Exhibit 10.24
AMENDMENT NO. 6
THIS AMENDMENT NO. 6 dated as of February 20, 2002 (this "Amendment") to
---------
the Existing Credit Agreement referenced below is by and among XXXXXX
ELECTRONICS CORPORATION, a Delaware corporation (the `Borrower" or the
--------
"Company"), the Banks party hereto and BANK OF AMERICA, N.A., as Administrative
--------
Agent (in such capacity, the "Administrative Agent"). Capitalized terms used
--------------------
herein and not otherwise defined shall have the meanings provided in the Credit
Agreement (defined below).
W I T N E S S E T H
WHEREAS, a $750 million revolving credit facility has been established in
favor of the Borrower pursuant to the terms of that Amended and Restated
Revolving Credit Agreement (Multi-Year Facility) dated as of November 24, 1999
(as amended and modified, the "Existing Credit Agreement") among the Borrower,
-------------------------
the Banks identified therein, and the Administrative Agent;
WHEREAS, the Borrower has requested an increase in the commitments and
certain other modifications under the Existing Credit Agreement; and
WHEREAS, the Banks have agreed to the requested modifications on the terms
and conditions set forth herein;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
SECTION 1 Amendments to the Existing Credit Agreement. The Existing Credit
-------------------------------------------
Agreement is hereby amended in the following respects:
1.1 Subject to satisfaction of the terms and conditions set forth
herein, the Existing Credit Agreement (together with the Exhibits and
Schedules thereto) is hereby amended and restated in its entirety to read
in the form attached as Exhibit A to this Amendment (as amended and
---------
restated, the "Credit Agreement").
----------------
SECTION 2 Intercreditor Agreements. The Banks by action of the Majority
------------------------
Banks hereby authorize and direct the Administrative Agent and the Collateral
Agent to enter into each of the Intercreditor Agreements, in substantially the
form attached as Exhibit B to this Amendment, on their behalf.
---------
SECTION 3 Representations and Warranties. The Borrower hereby affirms
------------------------------
that, after giving effect to this Amendment, the representations and warranties
set forth in the Credit Agreement and the other Loan Documents are true and
correct in all material respects as of the date hereof (except those that
expressly relate to an earlier period).
SECTION 4 Conditions Precedent. This Amendment shall become effective
--------------------
immediately upon satisfaction of each of the following conditions precedent (the
date of satisfaction thereof being the "Amendment Date"):
--------------
(a) The Administrative Agent shall have received executed counterparts
of (i) this Amendment duly executed by the Borrower, the Majority Banks and
the Administrative Agent, (ii) the Guaranties from the Guarantors
identified therein, (iii) the promissory notes, if any, needed to give
effect to the increase in commitments under this Amendment, (iii) the
Security Agreement from the Borrower and the Guarantors identified therein,
(iv) the Pledge Agreement from the Borrower and the Guarantors identified
therein, (v) the other collateral documents, (vi) the stock certificates
and undated stock powers therefor executed in blank for the ownership
interests which are the subject of the Pledge Agreement, (vii) the
Intercreditor Agreements from the Borrower, the Administrative Agent and
the other parties thereto, and (viii) opinions of counsel to the Credit
Parties, in each case in form and substance reasonably satisfactory to the
Administrative Agent and the Majority Banks.
(b) The Administrative Agent shall have received from the Borrower and
each of the Guarantors (i) copies of the resolutions, in form and substance
reasonably acceptable to the Administrative Agent, authorizing the
execution, delivery and performance of this Amendment and the other Loan
Documents, of all other documents, if any, evidencing other necessary
corporate action and governmental approvals with respect to this Amendment,
and of the by-laws, partnership agreement, operating agreement or similar
document relating to corporate governance in each case certified by the
Secretary or an Assistant Secretary, in form reasonably satisfactory to the
Administrative Agent, (ii) an incumbency certificate with specimen
signatures for the officers authorized to sign the Loan Documents and the
other certificates and documents to be executed and delivered under the
Loan Documents certified by the Secretary or an Assistant Secretary, in
form reasonably satisfactory to the Administrative Agent, (iii) a certified
copy of the articles of incorporation or organization from the state of
organization and (iv) certificates of good standing or existence from the
state of organization.
(c) The Administrative Agent shall have received a certificate, in
form and detail reasonably satisfactory to the Administrative Agent, from
the chief financial officer or treasurer of the Borrower indicating that,
as of the end of the fiscal quarter ending December 31, 2001, after giving
pro forma effect to this Amendment (and the loans and commitments
established therewith assuming that the commitments are fully advanced) and
to the PAS financing referenced below in clause (e) (assuming all the
proceeds of such PAS financing are used to repay Revolving Loans under the
Credit Agreement), the Consolidated Leverage Ratio will not exceed
4.50:1.0.
(d) The Administrative Agent shall have received copies certified as
being true and correct by the Secretary or an Assistant Secretary of the
Borrower of the EchoStar Transaction Documents with all amendments,
modifications, supplements, addenda, attachments and exhibits, and of the
$5.525 billion financing commitment
2
provided by Credit Suisse First Boston and Deutsche Bank AG in connection
with the closing of the transactions contemplated therein.
(e) The Administrative Agent shall have received confirmation of (i)
the establishment of new financing facilities of at least $1.725 billion in
favor of PAS, and (ii) the establishment of the GMAC Financing Facility in
an aggregate principal amount of up to $2 billion and confirmation of,
among other things, extension of the maturity date under the GMAC Financing
Facility to a date not sooner than the Termination Date under the Credit
Agreement.
(f) The Administrative Agent shall have received confirmation of
repayment in full and termination of the commitments under any bridge
financing obtained by the Borrower and release of any liens given in
connection therewith.
(g) There shall not have occurred an event or development that has had
or is reasonably likely to have a Material Adverse Effect from December 31,
2000 to the Amendment Date (except for and other than as disclosed in Form
10K and Form 10Q filings with the Securities and Exchange Commission).
(h) The absence of any action, suit, investigation or proceeding
pending or threatened in any court or before any arbitrator or governmental
authority that could be reasonably expected (i) to materially and adversely
affect the Borrower and its subsidiaries taken as a whole, or the merger
with EchoStar Communications Corporation (or any of its subsidiaries)
described in the EchoStar Transaction Documents, or (ii) to affect any
transaction contemplated hereby or the ability of the Borrower or its
subsidiaries or any other obligor under the guarantees or security
documents to perform their respective obligations under the Loan Documents.
(i) No Event of Default or Unmatured Event of Default shall have
occurred and be continuing.
(j) The representations and warranties in the Credit Agreement and in
the other Loan Documents (except those which expressly relate to an earlier
date) shall be true and correct in all material respects as of the
Amendment Date.
(k) Payment by the Borrower of all fees and expenses owed by the
Credit Parties to the Banks and the Administrative Agent in connection
herewith.
SECTION 5 Miscellaneous.
-------------
5.1 Except as modified hereby, all of the terms and conditions of the
Existing Credit Agreement (including Schedules and Exhibits) shall remain
in full force and effect.
5.2 The Borrower agrees to pay all reasonable costs and expenses of
the Administrative Agent in connection with the preparation, execution and
3
delivery of this Amendment, including reasonable fees and expenses of Xxxxx
& Xxx Xxxxx, PLLC, counsel to the Administrative Agent.
5.3 This Amendment may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed an original, and it
shall not be necessary in making proof of this Amendment to produce or
account for more than one such counterpart.
5.4 This Amendment shall be deemed to be a contract made under, and
for all purposes shall be construed in accordance with the laws of the
State of New York.
[remainder of page intentionally left blank]
4
IN WITNESS WHEREOF, each of the parties has caused a counterpart of this
Amendment to be duly executed and delivered as of the date first above written.
XXXXXX ELECTRONICS CORPORATION,
a Delaware corporation
By:_________________________________
Name:
Title:
[Signature pages continue]
AGENT: BANK OF AMERICA, N.A., in its capacity
----- as Administrative Agent
By:_________________________________
Name:
Title:
LENDERS: BANK OF AMERICA, N.A., in its
------- capacity as a Lender
By:_________________________________
Name:
Title:
JPMORGAN CHASE BANK (as successor to XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK and
formerly known as THE CHASE MANHATTAN BANK)
By:__________________________________
Name:
Title:
DEUTSCHE BANK AG NEW YORK
BRANCH AND/OR CAYMAN ISLANDS BRANCH
By:__________________________________
Name:
Title:
CITICORP USA, INC.
By:__________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By:__________________________________
Name:
Title:
[Signature pages continue]
BANK OF NEW YORK
By:__________________________________
Name:
Title:
THE FUJI BANK, LIMITED
By:__________________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:__________________________________
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By:__________________________________
Name:
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By:__________________________________
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
By:__________________________________
Name:
Title:
FIRSTAR BANK, N.A.
By:__________________________________
Name:
Title:
[Signature pages continue]
BANK HAPOALIM B.M.
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION, NEW YORK BRANCH
By:__________________________________
Name:
Title:
BHF (USA) CAPITAL CORPORATION
By:__________________________________
Name:
Title:
ALLFIRST BANK
By:__________________________________
Name:
Title:
BANCA DI ROMA SPA
By:__________________________________
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:__________________________________
Name:
Title:
[Signature pages continue]
SANPAOLO IMI S.P.A.
By:__________________________________
Name:
Title:
BANK ONE, NA
By:__________________________________
Name:
Title:
CIBC, INC.
By:__________________________________
Name:
Title:
ING BANK N.V.
By:__________________________________
Name:
Title:
BANKERS TRUST COMPANY
By:__________________________________
Name:
Title:
Exhibit 10.24(a)
--------------------------------------------------------------------------------
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
(MULTI-YEAR FACILITY)
Dated as of November 24, 1999
among
XXXXXX ELECTRONICS CORPORATION
THE LENDERS NAMED HEREIN
and
BANK OF AMERICA, N.A.
as Administrative Agent
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
SECTION 1 DEFINITIONS...............................................................................2
1.1 Definitions.......................................................................2
-----------
1.2 Accounting Terms.................................................................20
----------------
SECTION 2 THE CREDIT...............................................................................20
2.1 The Commitments..................................................................20
---------------
2.2 Method of Borrowing..............................................................22
-------------------
2.3 Interest.........................................................................23
--------
2.4 Repayment........................................................................24
---------
2.5 Loan Accounts and Notes..........................................................24
-----------------------
2.6 Conversion and Continuation of Loans and Interest Periods........................24
---------------------------------------------------------
2.7 Disbursements and Payments.......................................................25
--------------------------
2.8 Fees.............................................................................26
----
2.9 Additional Provisions relating to Letters of Credit..............................27
---------------------------------------------------
SECTION 3 PAYMENT OF COSTS AND REDUCTION OF THE COMMITMENT.........................................31
3.1 Indemnification Upon Failure to Pay Eurodollar Loan..............................32
---------------------------------------------------
3.2 Increased Costs..................................................................32
---------------
3.3 Taxes............................................................................33
-----
3.4 Prepayments......................................................................34
-----------
3.5 Pro Rata Reduction of Commitments by Borrower....................................35
---------------------------------------------
3.6 Non-Ratable Increases and Reductions of Commitments by Borrower..................36
---------------------------------------------------------------
3.7 Notice of Reductions.............................................................38
--------------------
3.8 Designation of Replacement Bank..................................................38
-------------------------------
3.9 Effect of Reduction of Commitment................................................38
---------------------------------
3.10 Accrued Fees.....................................................................38
------------
3.11 Survival.........................................................................38
--------
SECTION 4 CHANGE IN CIRCUMSTANCES AFFECTING LOANS..................................................39
4.1 Inability to Determine Eurodollar Rate...........................................39
--------------------------------------
4.2 Illegality.......................................................................39
----------
SECTION 5 CONDITIONS PRECEDENT.....................................................................40
5.1 [Intentionally Omitted.].........................................................40
5.2 [Intentionally Omitted.].........................................................40
5.3 Conditions Precedent to Loans....................................................40
-----------------------------
SECTION 6 REPRESENTATIONS AND WARRANTIES...........................................................40
6.1 Authority........................................................................40
---------
6.2 Binding Obligations..............................................................41
-------------------
6.3 No Contravention.................................................................41
----------------
6.4 Notices..........................................................................41
-------
6.5 Financial Statements.............................................................41
--------------------
6.6 ERISA............................................................................42
-----
6.7 Government Regulations...........................................................42
----------------------
6.8 Subsidiaries.....................................................................42
------------
6.9 Taxes............................................................................42
-----
6.10 Insurance........................................................................43
---------
6.11 Use of Proceeds of Loans.........................................................43
------------------------
6.12 No Material Misstatements........................................................43
-------------------------
6.13 Liens............................................................................43
-----
6.14 Security Interests...............................................................43
------------------
SECTION 7 AFFIRMATIVE COVENANTS OF BORROWER........................................................44
7.1 Use of Proceeds of Loans.........................................................44
------------------------
7.2 Management of Business; Preservation of Existence................................44
-------------------------------------------------
7.3 Notice of Certain Events.........................................................44
------------------------
7.4 Records..........................................................................44
-------
7.5 Information Furnished............................................................45
---------------------
7.6 [Intentionally Omitted.].........................................................46
7.7 Insurance........................................................................46
---------
7.8 ERISA............................................................................46
-----
7.9 Administrative Agent's Fees......................................................46
---------------------------
7.10 Payment of Taxes and Other Indebtedness..........................................46
---------------------------------------
7.11 Performance of Obligations.......................................................47
--------------------------
7.12 Compliance with Law..............................................................47
-------------------
7.13 Maintenance of Property..........................................................47
-----------------------
7.14 Additional Credit Parties........................................................47
-------------------------
SECTION 8 NEGATIVE COVENANTS OF BORROWER...........................................................48
8.1 Indebtedness.....................................................................48
------------
8.2 Financial Covenants..............................................................50
-------------------
8.3 Liens............................................................................50
-----
8.4 Nature of Business...............................................................51
------------------
8.5 Merger and Consolidation, Dissolution and Acquisitions...........................51
------------------------------------------------------
8.6 Asset Dispositions...............................................................51
------------------
8.7 Investments......................................................................52
-----------
8.8 Restricted Payments..............................................................52
-------------------
8.9 Modifications and Payments in respect of Funded Debt.............................53
----------------------------------------------------
8.10 Transactions with Affiliates.....................................................53
----------------------------
8.11 Fiscal Year......................................................................53
-----------
8.12 Limitation on Restricted Actions.................................................53
--------------------------------
8.13 Ownership of Subsidiaries; Limitations on Borrower...............................53
--------------------------------------------------
8.14 Sale Leasebacks..................................................................54
---------------
SECTION 9 EVENTS OF DEFAULT........................................................................54
9.1 Events of Default................................................................54
-----------------
9.2 Recovery of Amounts Due..........................................................57
-----------------------
9.3 Rights Cumulative................................................................57
-----------------
ii
SECTION 10 THE BANKS...............................................................................57
10.1 Administration of Loan...........................................................57
----------------------
10.2 Representations By Banks.........................................................58
------------------------
SECTION 11 MISCELLANEOUS PROVISIONS................................................................58
11.1 Amendments and Waivers...........................................................58
----------------------
11.2 Notices..........................................................................58
-------
11.3 Waiver...........................................................................59
------
11.4 New York Law.....................................................................59
------------
11.5 Headings.........................................................................59
--------
11.6 [Intentionally Omitted.].........................................................59
-
11.7 Counterparts.....................................................................59
------------
11.8 Written Disclosure...............................................................59
------------------
11.9 Singular; Plural.................................................................59
----------------
11.10 Illegality.......................................................................60
----------
11.11 Assignments......................................................................60
-----------
11.12 Obligations Several..............................................................61
-------------------
11.13 Participations...................................................................61
--------------
11.14 Fees and Expenses................................................................62
-----------------
11.15 Indemnity........................................................................62
---------
11.16 Confidentiality..................................................................63
---------------
11.17 [Intentionally Omitted.].........................................................64
11.18 Waiver of Right to Trial by Jury.................................................64
--------------------------------
iii
SCHEDULES
---------
Schedule 1 ...........................................................................Banks and Commitments
Schedule 2.9(b) .................................................................Existing Letters of Credit
Schedule 3.4(b)(ii)............................................................Specified Asset Dispositions
Schedule 3.4(b)(ii)B....................................Insurance Proceeds in respect of Asset Dispositions
Schedule 6.8...................................................................................Subsidiaries
Schedule 6.13................................................................................Existing Liens
Schedule 7.7......................................................................................Insurance
Schedule 8.1..........................................................................Existing Indebtedness
Schedule 8.1B.........................................................Other Guaranty Shared Collateral Debt
Schedule 8.5(a)..................................................................Mergers and Consolidations
Schedule 8.5(b)................................................................................Dissolutions
Schedule 8.5(c)......................................................................Permitted Acquisitions
Schedule 8.6.............................................................................Asset Dispositions
Schedule 8.7...........................................................................Existing Investments
Schedule 8.8............................................................................Restricted Payments
Schedule 8.10..................................................................Transactions with Affiliates
EXHIBITS
--------
Exhibit A-1............................................................................Form of Loan Request
Exhibit A-2............................................................Form of Request for Letter of Credit
Exhibit B-1..........................................................................Form of Revolving Note
Exhibit B-2...............................................................................Form of Term Note
Exhibit C .................................................................Relations among Banks and Agents
Exhibit D .............................................................Lending Offices and Notice Addresses
Exhibit E ..........................................................................[Intentionally Omitted]
Exhibit F ...................................................................Form of Compliance Certificate
Exhibit G ......................................................Form of Notice of Assignment and Acceptance
Exhibit H ...................................................................Form of Bank Joinder Agreement
iv
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
(MULTI-YEAR FACILITY)
THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (MULTI-YEAR FACILITY)
("Agreement") is entered into as of November 24, 1999 among XXXXXX ELECTRONICS
---------
CORPORATION, a corporation organized and existing under the laws of Delaware
("Borrower"), the lenders named herein (collectively, together with any other
--------
lenders that become parties hereto pursuant to Section 3.6, 3.8 or 11.11, the
"Banks" and individually, a "Bank") and Bank of America, N.A., as administrative
----- ----
agent for the Banks (in such capacity, "Administrative Agent").
--------------------
RECITALS
--------
WHEREAS, pursuant to the Revolving Credit Agreement (Multi-Year Facility)
dated as of December 5, 1997, among Borrower, the financial institutions listed
on the signature pages thereof, Xxxxxx Guaranty Trust Company of New York, as
Syndication Agent (in such capacity, the "Syndication Agent"), Citicorp USA,
-----------------
Inc. and The Chase Manhattan Bank, as Documentation Agents (in such capacity,
the "Documentation Agents") and Administrative Agent (the "Original Credit
-------------------- ---------------
Agreement"), the Banks agreed to extend certain credit facilities to Borrower;
---------
WHEREAS, the Original Credit Agreement was amended pursuant to that certain
First Amendment to Revolving Credit Agreement (Multi-Year Facility) dated as of
December 15, 1998 among Borrower, the lending institutions identified therein,
the Administrative Agent, the Syndication Agent and the Documentation Agents
(the "First Amendment"; the Original Agreement, as amended by the First
---------
Amendment, the "Current Agreement");
-----------------
WHEREAS, Borrower, the lending institutions that executed the signature
pages thereof (which lenders constituted the Majority Banks), Syndication Agent,
Documentation Agents and Administrative Agent entered into that certain
Amendment Agreement Regarding Revolving Credit Agreement (Multi-Year Facility)
dated as of November 24, 1999 (the "Amendment Agreement"), pursuant to which the
-------------------
Current Agreement was amended and restated in its entirety as set forth therein;
and
WHEREAS, the Amendment Agreement has been further amended and restated in
its entirety, as provided in Amendment No. 6 to this Agreement dated as of
February , 2002;
----
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Borrower, Banks, and Administrative
Agent agree as follows:
SECTION 1
DEFINITIONS
1.1 Definitions.
-----------
"Acquisition", by any Person, means the purchase or acquisition by such
-----------
Person of any capital stock or other equity interest of another Person (other
than a Credit Party) or all or any substantial portion of the property of
another Person (other than a Credit Party), whether or not involving a merger or
consolidation with such other Person.
"Affiliate" means, with respect to a specified Person, another Person that
---------
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
Notwithstanding the foregoing, no individual shall be an Affiliate solely by
reason of his or her being a director, officer or employee of the Borrower or
any of its Affiliates.
"Amendment Date" means the effective date of Amendment No. 6 to the Credit
--------------
Agreement (being on or about February , 2002).
--
"Approved Bank Affiliate" means (i) any Affiliate of a Bank, (ii) any
-----------------------
Person that is administered or managed by any Bank or any Affiliate of any Bank
and that is engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
business, and (iii) with respect to any Bank which is a fund that invests in
commercial loans and similar extensions of credit, any such fund that is managed
or advised by the same investment advisor as such Bank or by an Affiliate of
such Bank or investment advisor.
"Approved Fund" means any Person (other than a natural Person) that is (or
-------------
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business, that is administered or managed by (i) a Bank, (ii) an affiliate of a
Bank or (iii) an entity or an affiliate of an entity that administers or manages
a Bank.
"Arrangers" means BAS and Xxxxxxx Xxxxx Xxxxxx, Inc.
---------
"Asset Disposition" shall mean and include (i) the sale, lease or other
-----------------
disposition of any property by any Credit Party, but for purposes hereof shall
not include, in any event, (A) the sale, lease or other disposition of any
property in the ordinary course of business, (B) the sale, lease or other
disposition of machinery and equipment no longer used or useful in the conduct
of business, (C) the sale, lease or other disposition of property to a Credit
Party, and (D) the sale or disposition of any investment identified on Schedule
--------
3.4(b)(ii), and (ii) receipt by any Credit Party of any cash insurance proceeds
----------
or condemnation award payable by reason of theft, loss, physical destruction or
damage, taking or similar event with respect to any of its property but
excluding any cash insurance proceeds or condemnation awards applied or
committed to be applied by such Credit Party to the repair, replacement or
restoration of such property and items identified on Schedule 3.4(b)(ii)B;
--------------------
provided, however, notwithstanding anything to the contrary contained herein,
-------- -------
(I) the sale or other disposition of the capital stock of DLA shall not be
2
considered an "Asset Disposition" for purposes of the mandatory prepayment
provisions of Section 3.4(b)(ii) or the limitations of Section 8.6, but shall be
subject to the mandatory prepayment provisions of Section 3.4(b)(iii) instead,
and (II) the sale or other disposition of the capital stock of PAS shall not be
considered an "Asset Disposition" for purposes of the mandatory prepayment
provisions of Section 3.4(b)(ii), but shall be subject to limitations of Section
8.6 and the mandatory prepayment provisions of Section 3.4(b)(iii) instead; and
provided, further, that in any case, the sale, lease or other disposition of
-------- -------
property or receipt of cash insurance proceeds or condemnation awards generating
less than $10 million in net cash proceeds in any individual transaction or
series of related transactions shall not be considered an "Asset Disposition".
-----------------
"Authorized Designee" means the chief executive officer, the vice chairman,
-------------------
the chief financial officer, treasurer or the assistant treasurer of Borrower,
or any other officer of Borrower specified as being an Authorized Designee in a
certificate delivered to the Administrative Agent.
"Availability Period" means the period commencing on the Effective Date and
-------------------
ending on the Termination Date.
"Bank of America" means Bank of America, N.A. in its capacity as a Bank.
---------------
"BAS" means Banc of America Securities LLC.
---
"Base Rate" means the higher of: (a) the rate of interest publicly
---------
announced from time to time by Bank of America in San Francisco, California as
its "reference rate," which is a rate set by Bank of America based upon various
--------------
factors including Bank of America's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate; and (b)
one-half percent per annum above the Federal Funds Rate. Any change in the
reference rate announced by Bank of America shall take effect at the opening of
business on the day specified in the public announcement of such change.
"Base Rate Loan" means a Loan bearing interest based on the Base Rate
--------------
calculated pursuant to Section 2.3(a)(i).
"Borrowing Date" means a date on which funds are advanced to Borrower by
--------------
one or more Banks pursuant to a Loan Request.
"Business Day" means a day other than a Saturday or Sunday on which banks
------------
are open for business in both San Francisco, California and New York, New York.
"Cash Equivalents" means (a) securities issued or directly and fully
----------------
guaranteed or insured by the United States or any agency or instrumentality
thereof (provided that the full faith and credit of the United States is pledged
in support thereof) having maturities of not more than twelve months from the
date of acquisition, (b) U.S. dollar denominated time deposits and certificates
of deposit of (i) any financial institution (other than GMAC) with which
Borrower has an established credit relationship, and (ii) whose short-term
credit rating from S&P is at least A-1 or from Xxxxx'x is at least P-1, in each
case with maturities of not more than 365 days from
3
the date of acquisition, (c) up to $250 million (but not, in any event, more
than twenty-five percent (25%) of the aggregate amount of cash and Cash
Equivalents at any time) in commercial paper issued by any approved issuer by
the Borrower bearing at least a "2" rating for any short-term rating provided by
S&P and/or Moody's and having maturities of not more than 270 days from the date
of acquisition; provided, however, that the issuer's long-term debt rating, if
applicable, must be at least A- by S&P or A3 by Moody's, (d) repurchase
agreements entered into by Borrower or any other Credit Party with a bank or
trust company (including any of the Banks) or recognized securities dealer
having capital and surplus in excess of $500 million for direct obligations
issued by or fully guaranteed by the United States, or for mortgage collateral
defined as "whole loan", in which Borrower shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least one hundred and two percent
(102%) of the amount of the repurchase obligations, (e) variable or fixed rate
notes issued by any approved issuer by the Borrower rated at least A-1 by S&P
(or the equivalent thereof) or at least P-1 by Moody's (or the equivalent
thereof) and maturing within one year of the date of acquisition, and (f)
Investments, classified in accordance with GAAP as current assets, in money
market investment programs registered under the Investment Company Act of 1940,
as amended, that are administered by reputable financial institutions having
capital of at least $500 million and the portfolios of which are limited to
Investments of the character described in the foregoing subdivisions (a) through
(e).
"Collateral Agent" means Bank of America, N.A. (or other party acceptable
----------------
to the Majority Banks) in its capacity as Collateral Agent under the Collateral
Documents, and its successors and assigns in such capacity.
"Collateral Documents" means the Security Agreement, the Pledge Agreement
--------------------
and such other documents executed and delivered in connection with the
attachment and perfection of the liens and security interests thereunder,
including UCC financing statements.
"Commitments" means the Revolving Commitments, the LOC Commitment and the
-----------
Term Loan Commitment.
"Compliance Certificate" means a certificate in the form of Exhibit F,
---------------------- ---------
properly completed and signed by an Authorized Designee.
"Consolidated Capital Expenditures" means for any period for the
---------------------------------
Consolidated Group (other than PAS), without duplication, all expenditures
(whether paid in cash or other consideration) during such period that, in
accordance with GAAP, are included in additions to property, plant and equipment
reflected in the consolidated statement of cash flows for such period; provided,
--------
that Consolidated Capital Expenditures shall not include, for purposes hereof,
expenditures of proceeds of insurance settlements, condemnation awards and other
settlements in respect of lost, destroyed, damaged or condemned assets,
equipment or other property to the extent such expenditures are made to replace
or repair such lost, destroyed, damaged or condemned assets, equipment or other
property or otherwise to acquire assets or properties useful in the business of
the members of the Consolidated Group (other than PAS).
4
"Consolidated EBITDA" means, for any period for the Consolidated Group, an
-------------------
amount equal to the sum of (i) Consolidated Net Income, plus (ii) to the extent
deducted in determining net income, without duplication, (A) consolidated
interest expense in accordance with GAAP, (B) taxes based on or measured by
income, and (C) depreciation and amortization expense, plus (iii) the non-cash
component of any unusual or nonrecurring item of loss or expense (or minus the
non-cash component of any unusual or nonrecurring item of gain or income) to the
extent used or included in determining Consolidated Net Income (including
without limitation the writedown of certain investments identified on Schedule
--------
3.4(b)(ii)), provided that with respect to accruals or reserves for future cash
-----------
disbursements, such future cash disbursements shall be deducted in the fiscal
period in which such cash disbursement is made, plus (iv) up to $300 million in
the aggregate charged in connection with the settlement of certain disputes
referred to in the Quarterly Report on Form 10Q of the Borrower dated September
30, 2001 (exclusive of the portion thereof that is in Consolidated Interest
Expense).
"Consolidated Funded Debt" means Funded Debt of the Consolidated Group
------------------------
determined on a consolidated basis in accordance with GAAP; but for purposes
hereof net of (i) the aggregate amount of cash collateral securing any Funded
Debt, (ii) the lesser of $300 million and the amount of unrestricted cash and
cash equivalents on the balance sheet of PAS determined in accordance with GAAP,
and (iii) for purposes of computing the Consolidated Leverage Ratio for the
fiscal quarter ending as of March 31, 2002, the lesser of $200 million and the
amount of unrestricted cash and cash equivalents on the balance sheet of the
Borrower determined in accordance with GAAP.
"Consolidated Group" means the Borrower and its subsidiaries determined in
------------------
accordance with GAAP on a consolidated basis.
"Consolidated Interest Expense" means, for any period for the Consolidated
-----------------------------
Group, all interest expense, including the amortization of debt discount and
premium, but for purposes hereof, net of interest income and excluding (i)
interest expense attributable to the settlement of certain disputes referred to
in the Quarterly Report on Form 10Q of the Borrower dated September 30, 2001 and
(ii) interest expense attributable to indebtedness referred to in Section 8.1(k)
if the proceeds of such indebtedness have been pledged to secure the Loan
Obligations and the first interest payment due with respect to such indebtedness
is after December 5, 2002, in each case on a consolidated basis determined in
accordance with GAAP.
"Consolidated Interest Coverage Ratio" means, as of the last day of each
------------------------------------
fiscal quarter, the ratio of (i) Consolidated EBITDA to (ii) Consolidated
Interest Expense relating to Funded Debt, each measured for the period of four
consecutive fiscal quarters ending as of such day.
"Consolidated Leverage Ratio" means, as of the last day of each fiscal
---------------------------
quarter, the ratio of (i) Consolidated Funded Debt on such day to (ii)
Consolidated EBITDA for the period of four consecutive fiscal quarters ending as
of such day.
"Consolidated Net Income" means, for any period for the Consolidated Group,
-----------------------
net income determined in accordance with GAAP.
5
"Consolidated Net Worth" means, as of any date for the Consolidated Group,
----------------------
net worth or shareholders' equity determined in accordance with GAAP.
"Control" means the possession, directly or indirectly, of the power to
-------
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
----------- ----------
"Core Assets" means DIRECTV (U.S.), DLA, PAS and the VSAT, DIRECWAY,
-----------
SPACEWAY and set-top box businesses, units or divisions of HNS.
"Credit Party" means any or all of the Borrower and the Guarantors;
------------
provided, however, HTS shall not be deemed a Credit Party for purposes of this
Agreement.
"DCS" means DirecTV Customer Services, Inc., a Delaware corporation.
---
"Debt Transaction" means, with respect to any Credit Party, any sale,
----------------
issuance, placement, assumption or guaranty of Funded Debt, whether or not
evidenced by promissory note or other written evidence of indebtedness, except
for Funded Debt permitted to be incurred pursuant to clauses (a) through (j) of
Section 8.1 and also clause (k) of Section 8.1, but only if, and to the extent,
the net cash proceeds from Funded Debt permitted under Section 8.1(k) are
pledged as collateral security for the loans and obligations hereunder (on terms
and conditions reasonably satisfactory to the Administrative Agent).
"DLA" means DIRECTV Latin America Holdings, Inc., a California corporation,
---
and all of its subsidiaries.
"DLA Credit Facility" means that certain Revolving Credit Agreement (Bridge
-------------------
Facility) among DIRECTV Latin America, LLC, Deutsche Bank AG, New York Branch,
as administrative agent, and the other lenders from time to time party thereto
dated as of January 5, 2001, as amended from time to time thereafter.
"Domestic Credit Party" means a Credit Party that is incorporated or
---------------------
organized under the laws of any state of the United States or the District of
Columbia.
"Domestic Subsidiary" means any Subsidiary that is incorporated or
-------------------
organized under the laws of any state of the United States or the District of
Columbia.
"EchoStar Transaction Documents" shall have the meaning given such term in
------------------------------
Section 3.4(b)(iv).
"Effective Date" means November 24, 1999.
--------------
"Eligible Assignee" means (i) a Bank; (ii) an Affiliate of a Bank; (iii) an
-----------------
Approved Fund; and (iv) any other Person (other than a natural Person) approved
by the Administrative Agent
6
and the Issuing Bank and, unless an Event of Default has occurred and is
continuing, the Borrower (each such approval not to be unreasonably withheld or
delayed).
"Equity Transaction" means, with respect to any Credit Party, any issuance
------------------
or sale of shares of its capital stock or other equity interest, other than an
issuance (i) to a Credit Party, (ii) in connection with a conversion of debt
securities to equity, (iii) in connection with exercise by a present or former
employee, officer or director under a stock incentive plan, stock option plan or
other equity-based compensation plan or arrangement, (iv) in connection with the
redemption of the Xxxxxx Series A Preferred Stock provided that there is a
concurrent contribution of capital back to the Borrower in an amount not less
than the amount of the redemption, or (v) to GM (or a subsidiary of GM) of the
Borrower's common stock, par value $0.01 per share (the "Xxxxxx Common Stock")
-------------------
in connection with the Xxxxxx Series A Preferred Stock or the transactions
contemplated in the EchoStar Transaction Documents.
"ERISA" means the Employee Retirement Income Security Act of 1974, as in
-----
effect from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
---------------
under common control with Borrower or any Subsidiary of Borrower within the
meaning of Section 414(b), 414(c) or 414(m) of Internal Revenue Code of 1986, as
amended, excluding GM and its subsidiaries (other than the Borrower and its
Subsidiaries).
"Eurodollar Banking Day" means a day on which banks are open for business
----------------------
in San Francisco, California, New York, New York and the applicable offshore
dollar interbank market and dealing in U. S. Dollar deposits.
"Eurodollar Loan" means a Loan at the rate of interest calculated pursuant
---------------
to Section 2.3(a)(ii).
"Eurodollar Rate" means for each Interest Period of a Eurodollar Loan the
---------------
rate per annum (rounded upwards, if necessary, to the nearest 1/100th of one
percent) in each case determined by the Administrative Agent to be equal to:
(a) the offered rate that appears on the Dow Xxxxx Telerate Screen
Page 3750 (or any successor page) that displays an average British Bankers
Association Interest Settlement Rate for deposits in U.S. dollars (for
delivery on the first day of the applicable Interest Period) for a term
equivalent to the applicable Interest Period at approximately 11:00 A.M.
(London, England time) two Business Days prior to the first day of the
applicable Interest Period; or
(b) if for any reason the foregoing rate in clause (a) is unavailable
or undeterminable, the offered rate on such other page or other service
that displays an average British Bankers Association Interest Settlement
Rate for deposits in U.S. dollars (for delivery on the first day of the
applicable Interest Period) for a term equivalent to the applicable
Interest Period at approximately 11:00 A.M. (London, England time) two
Business Days prior to the first day of the applicable Interest Period; or
7
(c) if for any reason the foregoing rates in clauses (a) and (b) are
unavailable or undeterminable, the rate of interest at which deposits in
U.S. dollars for delivery on the first day of the applicable Interest
Period in same day funds in the approximate amount of the applicable
Eurodollar Loan for a term equivalent to the applicable Interest Period
would be offered by Reference Banks to major banks in the offshore U.S.
dollar market at approximately 11:00 A.M. (London, England time) two
Business Days prior to the first day of the applicable Interest Period.
"Event of Default" means any event specified in Section 9.1.
----------------
"Existing Letters of Credit" means the letters of credit outstanding on the
--------------------------
Amendment Date and identified on Schedule 2.9(b).
---------------
"Extension of Credit" means, as to any Bank, the making of, or
-------------------
participation in, a Loan by such Bank (including continuations and conversions
thereof) or the issuance or extension of, or participation in, a Letter of
Credit by such Bank.
"Facility Fee" shall have the meaning given such term in Section 2.8(a).
------------
"Federal Funds Rate" means, for any day, the rate set forth in the weekly
------------------
statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Board (including any such successor,
"H.15(519)") for such day opposite the caption "Federal Funds (Effective)". If
--------- -------------------------
on any relevant day such rate is not yet published in H.15(519), the rate for
such day will be the rate set forth in the daily statistical release designated
as the Composite 3:30 p.m. Quotations for U.S. Government Securities, or any
successor publication, published by the Federal Reserve Bank of New York
(including any such successor, the "Composite 3:30 p.m. Quotation") for such day
-----------------------------
under the caption "Federal Funds Effective Rate". If on any relevant day the
----------------------------
appropriate rate for such day is not yet published in either H.15(519) or the
Composite 3:30 p.m. Quotations, the rate for such day will be the arithmetic
mean of the rates for the last transaction in overnight Federal funds arranged
prior to 9:00 A.M. (New York time) on that day by each of three leading brokers
of Federal funds transactions in New York City selected by Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve
---------------------
System, or any successor thereto.
"FML" means First HNS Mauritius Ltd., a business entity organized under the
---
laws of Mauritius.
"Foreign Subsidiary" means a Subsidiary that is not a Domestic Subsidiary.
------------------
"Funded Debt" means, with respect to any Person, without duplication, all
-----------
(i) obligations for borrowed money, (ii) obligations evidenced by bonds,
debentures, notes or similar instruments or upon which interest payments are
customarily made, (iii) purchase money indebtedness (including, for purposes
hereof, indebtedness and obligations in respect of
8
conditional sales and title retention agreements relating to property purchased
(other than customary reservation or title retention arrangements under
agreements entered into in the ordinary course of business with suppliers), and
the deferred purchase price of property or services acquired (other than trade
debt and minimum revenue guarantees incurred in the ordinary course of
business)) that would constitute, and be accounted for as, a liability under
GAAP, (iv) the attributed principal amount of obligations owing under capital
leases, (v) the maximum amount available to be drawn under standby letters of
credit (specifically excluding, for purposes hereof, performance letters of
credit and trade letters of credit) and bankers' acceptances issued or created
for its account, (vi) the attributed principal amount of securitization
transactions, (vii) the attributed principal amount of obligations owing under
Synthetic Leases, (viii) preferred stock or comparable equity interests
providing for mandatory redemption, sinking fund or other like payments, other
than the Xxxxxx Series A Preferred Stock, (ix) the Funded Debt of any
partnership or joint venture or other similar entity in which such Person is a
general partner or joint venturer and, as such, has personal liability for such
obligations, but only to the extent there is recourse to such Person for payment
thereof, (x) Support Obligations in respect of Funded Debt of another Person,
and (xi) Funded Debt of another Person secured by a Lien on any of its property,
whether or not such Funded Debt has been assumed, provided, however, for
purposes hereof, the amount of such Funded Debt shall be limited to the amount
of Funded Debt as to which there is recourse or to the fair market value of the
property that is the subject of such lien, if less.
"GAAP" means generally accepted accounting principles in the United States
----
of America applied on a consistent basis, subject to the provisions of Section
1.2.
"GM" means General Motors Corporation, a Delaware corporation.
--
"GMAC" shall have the meaning given such term in Section 8.1(b).
----
"GMAC Cash Secured Note" shall have the meaning given such term in Section
----------------------
8.1(b).
"GMAC Credit Agreement" shall have the meaning given such term in Section
---------------------
8.1(b).
"GMAC Credit Balance Account" means that account holding funds advanced to
---------------------------
GMAC pursuant to the GMAC Security Agreement (and any funds so advanced to GMAC
by the Borrower) and pledged to secure the loans and obligations owing under the
GMAC Credit Agreement as provided therein.
"GMAC Security Agreement" shall have the meaning given such term in Section
-----------------------
8.1(b).
"GMAC Shared Collateral Debt" means all loans and obligations (including
---------------------------
principal, interest, fees, indemnities and all other amounts, and including
interest accruing after commencement of a proceeding in bankruptcy,
reorganization or insolvency, whether or not allowable as a claim), whether now
or hereafter outstanding or incurred, evidenced by the GMAC Shared Collateral
Note, as amended, modified, supplemented, extended, renewed or replaced;
provided, however, in no event shall the principal amount of the GMAC Shared
--------
Collateral Debt exceed $500 million and interest thereon.
9
"GMAC Shared Collateral Note" shall have the meaning given such term in
---------------------------
Section 8.1(b).
"Governmental Authority" means any federal, state, local or foreign court
----------------------
or governmental agency, authority, instrumentality or regulatory body.
"Granting Bank" has the meaning specified in Section 11.11(c).
-------------
"Guaranties" means that guaranty agreement dated as of the Amendment Date
----------
given by the Subsidiaries identified therein in respect of the loans and
obligations under this Agreement, together with any other guaranty agreements or
guaranty joinder agreements given in respect of the loans and obligations under
this Agreement, in each case as amended and modified.
"Guarantors" means (i) each of the Significant Subsidiaries identified as a
----------
"guarantor" under the Guaranties, including Significant Subsidiaries that may
join in or give a Guaranty subsequent to the Amendment Date, and (ii) HTS and
DCS.
"Hedging Agreements" means any interest rate protection agreement or
------------------
foreign currency exchange agreement.
"HNS India" means HNS-India, Inc., a Delaware corporation.
---------
"HTS" means Xxxxxx Telecommunications & Space Company, a Delaware
---
corporation.
"Xxxxxx Series A Preferred Stock" means the 2,669,633 outstanding shares of
-------------------------------
Series A Preferred Stock, par value $.10 per share, of the Borrower that were
originally issued to General Motors in connection with its issuance of 2,669,633
shares of Series H 6.25% Automatically Convertible Preference Stock to America
Online, Inc. on June 21, 1999, or any shares of preferred stock issued in
replacement of, or substitution for, such Series A Preferred Stock in accordance
with the Certificate of Designations relating to the aforementioned Series H
Preferred Stock.
"Indebtedness" means, with respect to any Person, without duplication, all
------------
(i) Funded Debt, (ii) the maximum amount available to be drawn under performance
or trade letters of credit issued for its account, (iii) obligations under
take-or-pay or similar arrangements or under commodities agreements (other than
trade debt and minimum revenue guarantees incurred in the ordinary course of
business), (iv) obligations under Hedging Agreements, (v) Indebtedness of any
partnership or joint venture or other similar entity in which such Person is a
general partner or joint venturer and, as such, has personal liability for such
obligations, but only to the extent there is recourse to such Person for payment
thereof, (vi) Support Obligations in respect of Indebtedness of another Person,
and (vii) Indebtedness of another Person secured by a Lien on any of its
property, whether or not such Indebtedness has been assumed.
"Intercreditor Agreements" means the Intercreditor Agreement dated the
------------------------
Amendment Date among the Borrower, GMAC and Bank of America, in its capacity as
Administrative Agent
10
and as Collateral Agent, and any other intercreditor agreement entered into by
the Borrower, Bank of America and any holder of Other Guaranty Shared Collateral
Debt, in each case as amended, modified or supplemented from time to time.
"Interest Payment Date" means, with respect to each Eurodollar Loan, the
---------------------
last day of each Interest Period; provided, however, that if any Interest Period
-------- -------
exceeds three months, "Interest Payment Date" shall mean the last day of the
---------------------
third month of such Interest Period, as well as the last day of the relevant
Interest Period; and, with respect to each Base Rate Loan, means the 10th day of
each January, April, July, and October and the Termination Date. If any day
specified herein is not a Business Day or, in the case of a Eurodollar Loan, a
Eurodollar Banking Day, then the relevant Interest Payment Date shall be the
next succeeding Business Day or Eurodollar Banking Day, as applicable, except as
otherwise provided in the definition of Interest Period.
"Interest Period" means, with respect to each Eurodollar Loan, a period of
---------------
one, two, three or six months as selected by Borrower by a Loan Request
delivered to Administrative Agent in accordance with Section 2.2, subject to the
following:
(i) If the term of an Interest Period is not designated, a period of
one month shall be deemed selected for the relevant Eurodollar Loan;
(ii) The first Interest Period for each Loan shall commence on the
date such Loan is disbursed and each succeeding Interest Period for such
Loan shall commence on the last day of the preceding Interest Period for
such Loan;
(iii) In the case of a Eurodollar Loan, if the last day of an Interest
Period falls on a day that is not a Eurodollar Banking Day, the Interest
Period involved shall be extended to the next following Eurodollar Banking
Day unless as a result thereof it would fall into the next calendar month,
in which case the end of the Eurodollar Interest Period shall be the
preceding Eurodollar Banking Day, and in either case the next succeeding
Eurodollar Interest Period shall be measured from the last day of the
Interest Period as so adjusted;
(iv) If an Interest Period for a Eurodollar Loan commences on the last
Eurodollar Banking Day of a calendar month, it shall end on the last
Eurodollar Banking Day of a calendar month; and
(v) No Interest Period shall end on a day later than the Termination
Date.
"Investment" in any Person means (i) the acquisition (whether for cash,
----------
property, services, assumption of Indebtedness, securities or otherwise) of
capital stock, bonds, notes, debentures, partnership, joint ventures or other
ownership interests or other securities of such Person, (ii) any deposit with,
or advance, loan or other extension of credit to, such Person (other than
deposits made in connection with the purchase of equipment or other assets in
the ordinary course of business), (iii) any other capital contribution to or
investment in such Person, including, without limitation, any Support
Obligations (including any support for a letter of credit issued on behalf of
such Person) incurred for the benefit of such Person, but excluding any
11
Restricted Payment to such Person, and (iv) to the extent not covered by the
foregoing categories, any other Acquisition.
"Issuing Bank" means Bank of America, N.A.
------------
"Issuing Bank Fees" shall have the meaning given such term in Section
-----------------
2.8(b).
"Lending Office" means with respect to any Bank as the context shall
--------------
require, the branch office of such Bank designated as the Lending Office of such
Bank in Exhibit D attached hereto and incorporated herein by reference; or any
other branch office or Affiliate of such Bank hereafter selected and notified to
Borrower and Administrative Agent from time to time by such Bank; provided that
any Bank may from time to time by notice to Borrower and Administrative Agent
designate separate Lending Offices for its Eurodollar Loans and/or its Base Rate
Loans, in which case any reference to the Lending Office of such Bank shall be
deemed to refer to any or all of such offices, branches or affiliates as the
context may require.
"Letter of Credit" means any letter of credit issued by the Issuing Bank
----------------
for the account of Borrower under Section 2.1(b).
"Letter of Credit Fee" shall have the meaning given such term in Section
--------------------
2.8(b).
"Lien" means any trust deed, mortgage, pledge, hypothecation, assignment,
----
security interest, lien, charge or encumbrance, or preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, the lien of an attachment, judgment or
execution, or any conditional sale or other title retention agreement, any
capitalized lease, and the filing of, or agreement to give, any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction, but excluding financing statements filed to give notice of leases
in the ordinary course of business).
"Loan" or "Loans" means the Revolving Loans and the Term Loan, and the Base
---- -----
Rate Loans and Eurodollar Loans comprising such Loans.
"Loan Documents" means this Agreement, the Notes, the Guaranties, the LOC
--------------
Documents, the Collateral Documents and all other related agreements and
documents issued or delivered hereunder or thereunder or pursuant hereto or
thereto.
"Loan Obligations" means the Revolving Obligations and the Term Loan.
----------------
"Loan Request" means a notice given by Borrower pursuant to Section
------------
2.2(a)(i) or (ii).
"LOC Commitment" means, with respect to the Issuing Bank, the commitment of
--------------
the Issuing Bank to issue, and to honor payment obligations under, Letters of
Credit and, with respect to each Bank, the commitment of such Bank to purchase
participation interests in the Letters of Credit.
"LOC Committed Amount" shall have the meaning given such term in Section
--------------------
2.1(b).
12
"LOC Documents" means, with respect to any Letter of Credit, such Letter of
-------------
Credit, any amendments thereto, any documents delivered in connection therewith,
any application therefor, and any agreements, instruments, guarantees or other
documents (whether general in application or applicable only to such Letter of
Credit) governing or providing for (i) the rights and obligations of the parties
concerned or at risk or (ii) any collateral security for such obligations.
"LOC Obligations" means, at any time, the sum of (i) the maximum amount
---------------
which is, or at any time thereafter may become, available to be drawn under
Letters of Credit then outstanding, assuming compliance with all requirements
for drawings referred to in such Letters of Credit plus (ii) the aggregate
amount of all drawings under Letters of Credit honored by the Issuing Bank but
not theretofore reimbursed.
"Majority Banks" means those Banks whose Commitments constitute at least
--------------
60% of the Total Commitment as such Total Commitment may be adjusted from time
to time pursuant to the terms of this Agreement, or if the Commitments have
terminated, those Banks holding at least 60% of the outstanding Loans.
"Material Adverse Effect" means a material adverse effect on the condition
-----------------------
(financial or otherwise), operations, business, assets or liabilities of the
Credit Parties taken as a whole.
"Moody's" means Xxxxx'x Investors Service, Inc.
-------
"Non-Core Assets" means any business not identified as a Core Asset.
---------------
"Normal Percentage" means, with respect to each Bank, the percentage under
-----------------
the heading "Normal Percentage" set forth opposite such Bank's name on Schedule
----------------- --------
1 hereto, as such amount may be reduced or changed pursuant to Section 3.6 or
Section 11.11.
"Notes" means the Revolving Notes and the Term Notes.
-----
"Notice of Assignment and Acceptance" means a Notice of Assignment and
-----------------------------------
Acceptance substantially in the form of Exhibit G.
---------
"Other Guaranty Shared Collateral Debt" means those guaranty obligations of
-------------------------------------
the Borrower in respect of loans, letters of credit reimbursement obligations
and lines of credit extended to its subsidiaries as set forth on Schedule 8.1B
-------------
hereto by those Banks under this Agreement that have entered into an
Intercreditor Agreement with the Administrative Agent and the Collateral Agent,
in each case as amended, modified, supplemented, extended, renewed or replaced;
provided, however, in no event shall the principal amount of the Other Guaranty
--------
Shared Collateral Debt exceed $150 million and interest thereon.
"PAS" means PanAmSat Corporation, a Delaware corporation, and all of its
---
subsidiaries.
"Permitted Acquisition" means any Acquisition, provided that such
---------------------
Acquisition is either (A) described in Schedule 8.5(c) or (B) (i) the property
---------------
acquired (or the property of the Person acquired) in such Acquisition shall be
used or useful in the same or similar line of business as the members of the
Consolidated Group on the Amendment Date, (ii) all property to be acquired in
13
connection with such Acquisition shall be located in the United States of
America, (iii) in the case of an Acquisition of the capital stock or other
equity interest of another Person, the board of directors (or other comparable
governing body) of such other Person shall have duly approved such Acquisition,
(iv) no Event of Default or Unmatured Event of Default shall exist immediately
after giving effect to such Acquisition, (v) the representations and warranties
made by the Borrower herein shall be true and correct in all material respects
at and as if made as of the date of such Acquisition (after giving effect
thereto) except to the extent such representations and warranties expressly
relate to an earlier date, and (vi) the Borrower shall have delivered to the
Administrative Agent a compliance certificate signed by an Authorized Designee
demonstrating compliance with the financial covenants hereunder after giving
effect to the subject Acquisition on a Pro Forma Basis and reaffirming that the
representations and warranties made hereunder are true and correct in all
material respects as of such date.
"Permitted Investments" means Investments that are (i) cash and Cash
---------------------
Equivalents; (ii) accounts receivable created, acquired or made in the ordinary
course of business and payable or dischargeable in accordance with customary
trade terms; (iii) Investments consisting of capital stock, obligations,
securities or other property received in settlement of accounts receivable
(created in the ordinary course of business) from bankrupt obligors or in
settlement of litigation with respect to disputed receivables; (iv) Investments
made prior to the Amendment Date and set forth in Schedule 8.7; (v) advances or
------------
loans to directors, officers and employees that do not exceed $5 million in the
aggregate at any one time outstanding; (vi) all loans and advances to retail
subscribers in the ordinary course of business, (vii) loans and advances to
other customers and suppliers in the ordinary course of business, provided that
loans and advances to other customers and suppliers made after the Amendment
Date hereunder and investments under clause (xii) hereof shall not exceed $50
million in the aggregate at any time; (viii) Investments by members of the
Consolidated Group in their Subsidiaries and Affiliates (including specifically
without limitation the GMAC Credit Balance Account) existing on the Amendment
Date, and extensions, renewals or replacements of such Investments, (ix)
Investments by members of the Consolidated Group in and to Domestic Credit
Parties, (x) Investments by Credit Parties in members of the Consolidated Group
that are not Credit Parties (including intercompany debt) made after the
Amendment Date in an aggregate amount not to exceed $525 million at any time,
(xi) conversions of intercompany debt into equity to the extent such
intercompany debt is permitted by any other clauses hereof, (xii) equity in or
assets of programming suppliers or distributors of DIRECTV services, provided
that the cash expended in connection with such investments after the Amendment
Date hereunder and investments under clause (vii) hereof shall not to exceed $50
million in the aggregate, and (xiii) other Investments not included in the
foregoing subsections, including Permitted Acquisitions from the Amendment Date,
in an amount not to exceed $100 million in the aggregate at any time
outstanding.
"Permitted Liens" means:
---------------
(i) Liens given to secure ratably (A) the loans and obligations
hereunder and under the other Loan Documents, (B) the GMAC Shared
Collateral Debt, (C) the Other Guaranty Shared Collateral Debt and (D)
obligations under interest rate protection, foreign currency exchange
agreements and similar agreements with Banks under this Agreement or with
their affiliates;
14
(ii) Liens on up to $1.5 billion cash advanced by the Borrower to GMAC
pursuant to the GMAC Security Agreement and held on deposit in the GMAC
Credit Balance Account, and accrued interest thereon, securing loans and
obligations evidenced by the GMAC Cash Secured Note and accrued interest
thereon;
(iii) Liens on cash collateral given to secure indebtedness described
on Schedule 8.1B hereto;
-------------
(iv) Liens (other than Liens created or imposed under ERISA) for
taxes, assessments or governmental charges or levies not yet due or Liens
for taxes being contested in good faith by appropriate proceedings for
which adequate reserves determined in accordance with GAAP have been
established (and as to which the property subject to any such Lien is not
yet subject to foreclosure, sale or loss on account thereof);
(v) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and suppliers and other Liens imposed by law or
pursuant to customary reservations or retentions of title arising in the
ordinary course of business, provided that such Liens secure only amounts
--------
not yet due and payable or, if due and payable, are unfiled and no other
action has been taken to enforce the same or are being contested in good
faith by appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established (and as to which the property
subject to any such Lien is not yet subject to foreclosure, sale or loss on
account thereof);
(vi) Liens (other than Liens created or imposed under ERISA) incurred
or deposits made by any member of the Consolidated Group in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the performance
of tenders, statutory obligations, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);
(vii) Liens in connection with attachments or judgments (including
judgment or appeal bonds) provided that the judgments secured shall, within
--------
thirty days after the entry thereof, have been discharged or execution
thereof stayed pending appeal, or shall have been discharged within thirty
days after the expiration of any such stay;
(viii) easements, rights-of-way, covenants, restrictions (including
zoning restrictions), minor defects or irregularities in title and other
similar charges or encumbrances not, in any material respect, impairing the
use of the encumbered property for its intended purposes;
(ix) Liens on property of any Person securing purchase money and
sale/leaseback Indebtedness (including capital leases and Synthetic Leases)
of such Person to the extent permitted under Section 8.1(d), provided, that
--------
any such Lien attaches only to the property financed or leased and such
Lien attaches prior to, at the time of or
15
180 days after the later of the date of acquisition of such property or the
date such property is placed in service, for the purpose of financing all
or any part of the purchase price thereof; provided, however, that for
-------- -------
purposes of this clause (ix), (i) a satellite will be treated as a newly
acquired asset as of the date it is placed in service and (ii) any
satellite transponder acquired through the exercise of an early buy-out
option shall be treated as a newly-acquired asset as of the date such
option is exercised;
(x) leases or subleases granted to others not interfering in any
material respect with the business of any member of the Consolidated Group;
(xi) any interest or title of a lessor under, and Liens arising from
UCC financing statements (or equivalent filings, registrations or
agreements in foreign jurisdictions) relating to, leases permitted by this
Agreement;
(xii) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods; Liens deemed to exist in connection with Investments
in repurchase agreements that constitute Permitted Investments;
(xiii) normal and customary rights of setoff upon deposits of cash in
favor of banks or other depository institutions;
(xiv) Liens of a collection bank arising under Section 4-210 of the
Uniform Commercial Code on items in the course of collection;
(xv) Liens existing as of the Amendment Date and set forth on Schedule
--------
6.13; provided that (A) no such Lien shall at any time be extended to or
---- --------
cover any property other than the property subject thereto on the Amendment
Date and (B) the principal amount of the Indebtedness secured by such Liens
shall not be increased and shall be on then applicable market terms (except
in the case of Liens in favor of GMAC which shall be on existing terms);
and
(xvi) Liens on assets described in Schedule 3.4(b)(ii) to secure
-------------------
indebtedness permitted under Section 8.1(j).
"Person" means any individual, firm, company, corporation, joint venture,
------
joint-stock company, trust, unincorporated organization, governmental or state
entity, or any association or partnership (whether or not having separate legal
personality) of two or more of the foregoing.
"Plan" means any employee benefit pension plan which is subject to the
----
provisions of Title IV of ERISA and which is maintained for employees of
Borrower or any Subsidiary.
"Pledge Agreement" means the pledge agreement dated as of the Amendment
----------------
Date given by the Credit Parties to secure ratably the obligations referred to
in paragraph (i) of the definition of "Permitted Liens", as amended and
modified.
16
"Principal Amount" means, when used with reference to any Loan, the amount
----------------
requested in the Loan Request relating thereto and made available to Borrower by
the Banks hereunder.
"Principal Repayment Date" means, with respect to each Base Rate Loan, the
------------------------
Termination Date.
"Pro Forma Basis" means, for purposes of determining compliance with the
---------------
financial covenants hereunder, that the subject transaction shall be deemed to
have occurred as of the first day of the period of four consecutive fiscal
quarters ending as of the end of the most recent fiscal quarter for which annual
or quarterly financial statements shall have been delivered in accordance with
the provisions hereof. Further, for purposes of making calculations on a "Pro
Forma Basis" hereunder, (i) in the case of an Asset Disposition, (A) income
-----------
statement items (whether positive or negative) attributable to the property,
entities or business units that are the subject of the disposition shall be
excluded to the extent relating to any period prior to the date of subject
transaction, and (B) Indebtedness paid or retired in connection with the subject
transaction shall be deemed to have been paid and retired as of the first day of
the applicable period; and (ii) in the case of an Acquisition, (A) income
statement items (whether positive or negative) attributable to the property,
entities or business units that are the subject of the acquisition shall be
included to the extent relating to any period prior to the date of subject
transaction, and (B) Indebtedness incurred in connection with the subject
transaction shall be deemed to have been incurred as of the first day of the
applicable period (and interest expense shall be imputed for the applicable
period assuming prevailing interest rates hereunder).
"Reference Banks" means Bank of America, Citibank, N.A. and JPMorgan Chase
---------------
Bank.
"Reportable Event" means any of the events set forth in Section 4043(b) of
----------------
ERISA or the regulations thereunder excluding those events for which the 30-day
notice requirement is waived, a withdrawal from a Plan described in Section 4063
of ERISA, or a cessation of operations described in Section 4062(e) of ERISA.
"Requirement of Law" means, as to any Person, the certificate of
------------------
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule, regulation or ordinance or determination of
an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or to which any of its material
property is subject.
"Restricted Payment" means, with respect to any Person, (i) any dividend or
------------------
other payment or distribution, direct or indirect, on account of any shares of
any class of capital stock or other equity interest of such Person, now or
hereafter outstanding (including, without limitation, any payment in connection
with any dissolution, merger, consolidation or disposition of such Person), or
to the holders, in their capacity as such, of any shares of any class of capital
stock or other equity interest of such Person, now or hereafter outstanding
(other than dividends or distributions payable in the same class of capital
stock or other equity interest of the applicable Person), (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of capital stock or other
equity interest of such Person, now or hereafter outstanding, and (iii) any
payment made to retire,
17
or to obtain the surrender of, any outstanding warrants, options or other rights
to acquire shares of any class of capital stock or other equity interest of such
Person, now or hereafter outstanding.
"Revolving Commitment" of each Bank means the dollar amount set forth
--------------------
opposite such Bank's name on Schedule 1 hereto, as such amount may be reduced or
----------
changed pursuant to Sections 3.5 and 3.6.
"Revolving Committed Amount" means, for each Bank, the amount of such
--------------------------
Bank's Revolving Commitment. The respective Revolving Committed Amounts as of
the Amendment Date are identified on Schedule 1 hereto.
----------
"Revolving Loans" shall have the meaning given such term in Section 2.1(a).
---------------
"Revolving Notes" means the promissory notes, if any, evidencing the
---------------
Revolving Loans, as amended, modified, supplemented, extended, renewed or
replaced.
"Revolving Obligations" means, collectively, the Revolving Loans and the
---------------------
LOC Obligations.
"S&P" means Standard & Poor's Ratings Group.
---
"Security Agreement" means the security agreement dated as of the Amendment
------------------
Date given by the Credit Parties to secure ratably the obligations referred to
in paragraph (i) of the definition of "Permitted Liens", as amended and
modified.
"Significant Subsidiary" means each Subsidiary of the Borrower with assets
----------------------
that in the aggregate exceed $50 million determined in accordance with GAAP;
provided, however, neither HTS and its Subsidiaries nor HNS India and its
--------
Subsidiaries nor FML and its Subsidiaries shall be considered Significant
Subsidiaries for purposes of this Agreement.
"SPC" has the meaning specified in Section 11.11(c).
---
"Subsidiaries" (individually a "Subsidiary") means those corporations or
------------ ----------
entities of which Borrower owns, directly or indirectly, more than 50% of the
voting securities. If Borrower, subject to the terms hereof, permits its
ownership to fall to 50% or below of outstanding voting shares of any
Subsidiary, such Subsidiary shall thereupon cease to be a Subsidiary for all
purposes hereof.
"Support Obligations" means, with respect to any Person, without
-------------------
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or collection)
guaranteeing or intended to guarantee any Indebtedness of any other Person in
any manner, whether direct or indirect, and including, without limitation, any
obligation, whether or not contingent, (i) to purchase any such Indebtedness or
any property constituting security therefor, (ii) to advance or provide funds or
other support for the payment or purchase of any such Indebtedness or to
maintain working capital, solvency or other balance sheet condition of such
other Person (including, without limitation, keep-well agreements, maintenance
agreements or similar agreements or
18
arrangements) for the benefit of any holder of Indebtedness of such other
Person, (iii) to lease or purchase property, securities or services primarily
for the purpose of assuring the holder of such Indebtedness, or (iv) to
otherwise assure or hold harmless the holder of such Indebtedness against loss
in respect thereof. The amount of any Support Obligation hereunder shall
(subject to any limitations set forth therein) be deemed to be an amount equal
to the outstanding principal amount (or maximum principal amount, if larger) of
the Indebtedness in respect of which such Support Obligation is made.
"SurFin Credit Facilities" means (i) that certain Credit Agreement among
------------------------
SurFin Ltd., Citicorp USA, Inc., as administrative agent, and the other lenders
from time to time party thereto dated as of June 3, 1999, as amended from time
to time thereafter and (ii) that certain Credit Agreement among SurFin Ltd.,
Citicorp USA, Inc., as administrative agent, and the other lenders from time to
time party thereto dated as of September 20, 2000, as amended from time to time
hereafter.
"Synthetic Lease" means any synthetic lease, tax retention operating lease,
---------------
off-balance sheet loan or similar off-balance sheet financing product where such
transaction is considered borrowed money indebtedness for tax purposes but is
classified as an operating lease under GAAP.
"Tax" and "Taxes" mean all taxes, levies, imposts, duties, fees or other
--- -----
charges of whatsoever nature however imposed by any country or any subdivision
or authority of or in that country in any way connected with this Agreement or
any instrument or agreement required hereunder, and all interest, penalties or
similar liabilities with respect thereto, except such taxes as are imposed on or
measured by any Bank's net income or capital and franchise taxes, by the country
or any subdivision or authority of or in that country in which such Bank's
principal office or actual Lending Office is located.
"Term Loan" shall have the meaning given such term in Section 2.1(c).
---------
"Term Loan Commitment" means the commitment of each Bank to make its
--------------------
portion of the Term Loan hereunder, being the dollar amount set forth opposite
such Bank's name on Schedule 1 hereto, as such amount may be reduced or changed
----------
pursuant to Sections 3.5 and 3.6; provided that for purposes of making
--------
determinations of Majority Banks hereunder and for other purposes after date of
advance of Term Loan, the principal amount of the "Term Loan Commitments"
---------------------
hereunder shall be the outstanding principal amount of the Term Loan.
"Term Loan Committed Amount" means, for each Bank, the amount of such
--------------------------
Bank's Term Loan Commitment. The respective Term Loan Committed Amounts as of
the Amendment Date are identified on Schedule 1 hereto.
----------
"Term Notes" means the promissory notes, if any, evidencing the Term Loan,
----------
as amended, modified, supplemented, extended, renewed or replaced.
"Termination Date" means the earlier of (i) December 5, 2002 or, if such
----------------
day is not a Business Day, the next preceding Business Day or (ii) the effective
date of the merger between
19
the Borrower (or HEC Holdings, Inc., a holding company formed to hold all of the
capital stock of the Borrower) and EchoStar Communications Corporation (or any
of its subsidiaries) pursuant to the terms of the EchoStar Transaction
Documents.
"Total Commitment" means the aggregate amount of the Commitments.
----------------
"Total Revolving Commitments" shall have the meaning given such term in
---------------------------
Section 2.1(a).
"Unmatured Event of Default" means an event which with the passage of time
--------------------------
or the giving of notice, or both, would become an Event of Default.
"Voting Stock" means capital stock of Borrower having voting power under
------------
ordinary circumstances to elect directors of Borrower.
"Withdrawal Liability" means, as of any determination date, the aggregate
--------------------
amount of the liabilities, if any, pursuant to Section 4201 of ERISA if the
Borrower or any ERISA Affiliate made a complete withdrawal from all Plans and
any increase in contributions pursuant to Section 4243 or ERISA.
1.2 Accounting Terms.
----------------
Except as otherwise expressly provided herein, all accounting terms used herein
shall be interpreted, and all financial statements and certificates and reports
as to financial matters required to be delivered hereunder shall be prepared, in
accordance with GAAP applied on a consistent basis. All calculations made for
the purposes of determining compliance with this Credit Agreement shall (except
as otherwise expressly provided herein) be made by application of GAAP applied
on a basis consistent with the most recent annual or monthly financial
statements delivered pursuant to Section 7.5 (or, prior to the delivery of the
first financial statements pursuant to Section 7.5, consistent with the annual
audited financial statements referenced in Section 6.5(a)); provided, however,
if (a) the Borrower shall object to determining such compliance on such basis at
the time of delivery of such financial statements due to any change in GAAP or
the rules promulgated with respect thereto or (b) the Administrative Agent or
the Majority Banks shall so object in writing within sixty days after delivery
of such financial statements, then such calculations shall be made on a basis
consistent with the most recent financial statements delivered as to which no
such objection shall have been made.
SECTION 2
THE CREDIT
2.1 The Commitments.
---------------
(a) Revolving Commitments. From time to time, during the Availability
---------------------
Period, each Bank with a Revolving Commitment agrees to lend to the Borrower in
U.S. dollars (the "Revolving Loans") the amount set forth opposite such Bank's
---------------
name and identified as its "Revolving Commitment" on Schedule 1 hereto, subject
-------------------- ----------
to reduction or change of such amount at the Borrower's option pursuant to
Sections 3.5 and 3.6; provided that (i) with regard to the
--------
20
Banks collectively, the aggregate principal amount of Revolving Obligations
outstanding at any time shall not exceed ONE BILLION TWO HUNDRED THIRTY-FIVE
MILLION TWO HUNDRED FIFTY THOUSAND DOLLARS ($1,235,250,000) (as such amount may
be reduced as provided herein, the "Total Revolving Commitments"), and (ii) with
---------------------------
regard to each such Bank individually, such Bank's pro rata share of the
Revolving Obligations shall not exceed such Bank's Revolving Committed Amount.
Revolving Loans may consist of Base Rate Loans or Eurodollar Loans, or a
combination thereof, as the Borrower may request, and subject to the terms and
conditions provided herein, amounts repaid on the Revolving Loans may be
reborrowed.
(b) Letter of Credit Commitment. From time to time, during the Availability
---------------------------
Period, subject to the terms and conditions hereof and of the LOC Documents, if
any, and such other terms and conditions which the Issuing Bank may reasonably
require, the Issuing Bank shall issue, and the Banks with Revolving Commitments
shall participate in, such Letters of Credit in U.S. dollars as the Borrower may
request for its own account or for the account of its Subsidiaries and
Affiliates as provided herein, in a form acceptable to the Issuing Bank, for the
purposes hereinafter set forth; provided that (i) the aggregate amount of LOC
--------
Obligations outstanding at any time shall not exceed ONE HUNDRED MILLION DOLLARS
($100,000,000) (as such amount may be reduced as provided herein, the "LOC
---
Committed Amount"), (ii) with regard to the Banks collectively, the aggregate
----------------
principal amount of Revolving Obligations outstanding at any time shall not
exceed the Total Revolving Commitments, and (iii) with regard to each such Bank
individually, such Bank's pro rata share of the Revolving Obligations shall not
exceed such Bank's Revolving Committed Amount. Letters of Credit shall not have
an original expiry date more than one year from the date of issuance or
extension (although Letters of Credit may provide for automatic renewals or
extensions prior to the expiry thereof). No Letter of Credit shall have an
expiry date, whether as originally issued or by extension, extending beyond the
Termination Date, unless the Borrower agrees to provide cash collateral on the
Termination Date in the amount of the LOC Obligations extending beyond the
Termination Date. Each Letter of Credit shall comply with the related LOC
Documents. The issuance of each Letter of Credit shall be on a Business Day.
(c) Term Loan Commitment. On or after the Amendment Date, the Borrower may
--------------------
elect to establish a Term Loan Facility as provided in Section 3.6(b), and in
any such case, each Bank with a Term Loan Commitment will lend to the Borrower
in U.S. dollars (the "Term Loans") the amount set forth opposite such Bank's
----------
name and identified as its "Term Loan Commitment" on Schedule 1 hereto. The Term
-------------------- ----------
Loan may consist of Base Rate Loans or Eurodollar Loans, or a combination
thereof, as the Borrower may request. Amounts repaid on the Term Loan may not be
reborrowed.
(d) Bid Rate Loans. Bid Rate Loans previously available under this
--------------
Agreement prior to the Amendment Date will no longer available.
21
2.2 Method of Borrowing.
-------------------
(a) Notice of Request for Extensions of Credit. The Borrower shall request
------------------------------------------
an Extension of Credit by written notice from an Authorized Designee (or
telephonic notice promptly confirmed in writing) as follows:
(i) Revolving Loans. In the case of Revolving Loans, by the Borrower
---------------
to the Administrative Agent not later than 9:00 A.M. (California time) on
the day of the requested borrowing (which shall be a Business Day) in the
case of Base Rate Loans, and on the third Business Day prior to the date of
the requested borrowing in the case of Eurodollar Loans. Each such request
for borrowing shall be irrevocable and shall specify (A) that a Revolving
Loan is requested, (B) the date of the requested borrowing (which shall be
a Business Day), (C) the aggregate principal amount to be borrowed, and (D)
whether the borrowing shall be comprised of Base Rate Loans, Eurodollar
Loans or a combination thereof, and if Eurodollar Loans are requested, the
Interest Period(s) therefor. A form of Loan Request is attached as Exhibit
-------
A-1. The Administrative Agent shall give notice to each Bank with a
---
Revolving Commitment promptly upon receipt of each Loan Request pursuant to
this Section 2.2(a)(i), the contents thereof and each such Bank's share of
any borrowing to be made pursuant thereto.
(ii) Letters of Credit. In the case of Letters of Credit, by the
-----------------
Borrower to the Issuing Bank with a copy to the Administrative Agent not
later than 9:00 A.M. (California time) on the third Business Day prior to
the date of the requested issuance or extension (or such shorter period as
may be agreed by the Issuing Bank). Each such request for issuance or
extension of a Letter of Credit shall be irrevocable and shall specify,
among other things, (A) that a Letter of Credit is requested, (B) the date
of the requested issuance or extension, (C) the type, amount, expiry date
and terms on which the Letter of Credit is to be issued or extended, and
(D) the beneficiary. A form of Notice of Request for Letter of Credit is
attached as Exhibit A-2.
-----------
(iii) Term Loan. In the case of the Term Loan, to the Administrative
---------
Agent not later than 9:00 A.M. (California time) on the day of the
requested borrowing in the case of Base Rate Loans, and on the third
Business Day prior to the day of the requested borrowing in the case of
Eurodollar Loans. Each such request for borrowing shall be irrevocable and
shall specify (A) that an advance of the Term Loan is requested, (B) the
aggregate principal amount to be borrowed, and (C) whether the borrowing
shall be comprised of Base Rate Loans, Eurodollar Loans or a combination
thereof, and if Eurodollar Loans are requested, the Interest Period(s)
therefor. A form of Loan Request is attached as Exhibit A-1. The
-----------
Administrative Agent shall give notice to each Bank with a Term Loan
Commitment promptly upon receipt of each Loan Request pursuant to this
Section 2.1(a)(v), the contents thereof and each such Bank's share of any
borrowing to be made pursuant thereto.
(b) Minimum Amounts. Each Loan advance shall be in a minimum principal
---------------
amount of $5,000,000 (or, if less, the remaining Total Revolving Commitments)
and integral multiples of $1,000,000 in excess thereof.
22
(c) Information Not Provided. If in connection with any such request for a
------------------------
Loan, the Borrower shall fail to specify (i) an applicable Interest Period in
the case of a Eurodollar Loan, the Borrower shall be deemed to have requested an
Interest Period of one month, or (ii) the type of loan requested, the Borrower
shall be deemed to have requested a Base Rate Loan.
(d) Maximum Number of Eurodollar Loans. In connection with any request for
----------------------------------
a Loan, (i) Revolving Loans may be comprised of no more than ten (10) Eurodollar
Loans outstanding at any time, and (ii) the Term Loan shall be comprised of no
more than five (5) Eurodollar Loans outstanding at any time. For purposes
hereof, Eurodollar Loans with separate or different Interest Periods will be
considered as separate Eurodollar Loans even if their Interest Periods expire on
the same date.
2.3 Interest.
--------
(a) Subject to Section 2.7(f), the Loans shall bear interest at a per annum
rate, payable in arrears on each applicable Interest Payment Date (or at such
other times as may be specified herein), as follows:
(i) Base Rate Loans. During such periods as the Loans shall be
---------------
comprised of Base Rate Loans, a rate equal to the sum of the Base Rate plus
(A) in the case of Revolving Loans that are Base Rate Loans, (i) one
hundred fifty basis points (1.50%) with respect to each day on which the
aggregate amount of Revolving Obligations is less than or equal to fifty
percent (50%) of the Total Revolving Commitments and (ii) one hundred
sixty-two and one-half basis points (1.625%) with respect to each day on
which the aggregate amount of Revolving Obligations is greater than fifty
percent (50%) of the Total Revolving Commitments and (B) in the case of the
portion of the Term Loan that is comprised of Base Rate Loans, two hundred
basis points (2.0%) (in each case computed daily on the basis of a 365 or
366, as the case may be, day year and actual days elapsed); and
(ii) Eurodollar Loans. During such periods as the Loans shall be
----------------
comprised of Eurodollar Loans, a rate equal to the sum of the Eurodollar
Rate plus (A) in the case of Revolving Loans that are Eurodollar Loans, (i)
two hundred fifty basis points (2.50%) with respect to each day on which
the aggregate amount of Revolving Obligations is less than or equal to
fifty percent (50%) of the Total Revolving Commitments, and (ii) two
hundred sixty-two and one-half basis points (2.625%) with respect to each
day on which the aggregate amount of Revolving Obligations is greater than
fifty percent (50%) of the Total Revolving Commitments, and (B) in the case
of the portion of the Term Loan that is comprised of Eurodollar Loans,
three hundred basis points (3.0%), (in each case computed daily on the
basis of a 360 day year and actual days elapsed).
(b) [Intentionally Omitted.]
23
2.4 Repayment.
---------
(a) Revolving Loans. The principal amount of all Revolving Loans shall be
---------------
due and payable in full on the Termination Date.
(b) Term Loan. The principal amount of the Term Loan shall be due and
---------
payable in full on the Termination Date.
2.5 Loan Accounts and Notes. Each Bank shall open and maintain on its books
-----------------------
one or more loan accounts in Borrower's name. Each loan account shall show
(without duplication) as debits thereto each Bank's portion of each Base Rate
Loan and/or Eurodollar Loan and as credits thereto all Base Rate Loan and/or
Eurodollar Loan payments received by such Bank for the account of such Bank and
applied to principal so that the balance of the loan account(s) at all times
reflect the principal amount due each Bank from Borrower as Base Rate Loans and
Eurodollar Loans. All entries in said books shall be presumptive evidence of the
making of each Base Rate Loan and Eurodollar Loan, the obligation of Borrower to
repay each Base Rate Loan and Eurodollar Loan, and all payments received and
disbursed by such Bank. Borrower agrees that if, in the opinion of any Bank, a
promissory note or other evidence of debt is required or appropriate to reflect
or enforce any Loans outstanding to or to be made by such Bank, then Borrower
shall promptly execute and deliver to such Bank one or more promissory notes
payable to such Bank to evidence the Loans outstanding to such Bank under this
Agreement from time to time, together with such documents as such Bank may
reasonably request to evidence the due authorization, execution, delivery and
enforceability of such notes. If any notes are issued hereunder, Administrative
Agent and Borrower may treat the payee of that note as the owner of such note
for all purposes.
2.6 Conversion and Continuation of Loans and Interest Periods.
---------------------------------------------------------
(a) On any Eurodollar Banking Day Borrower may convert on a pro rata basis
among the Banks based on their respective Commitments any outstanding Base Rate
Loans or Eurodollar Loans into any other type of Loan available to Borrower
hereunder, or Borrower may change the Interest Period of any Eurodollar Loan to
another Interest Period available under this Agreement, subject to the following
limitations:
(i) No conversion of any Eurodollar Loan into any other Loan and no
continuation or conversion of the Interest Period of any Eurodollar Loan
may be made except on the last day of an Interest Period with respect
thereto; and
(ii) Any continuation or conversion shall be preceded by an
irrevocable written or telephonic notice from Borrower that it elects such
continuation or conversion, which notice shall be received by
Administrative Agent at least three (3) Eurodollar Banking Days prior to
the date requested for such conversion from or into a Eurodollar Loan or
continuation or conversion of the Interest Period of a Eurodollar Loan.
(b) Banks shall not be obligated to make or continue any Eurodollar Loan
when any Event of Default has occurred and is continuing, but any outstanding
Eurodollar Loan shall be
24
automatically converted to a Base Rate Loan on the last day of the Interest
Period for which a Eurodollar Rate was determined by Administrative Agent
following occurrence of such Event of Default, and, unless Section 2.7(f) is
applicable, Borrower shall be obligated to pay interest at the Base Rate from
the date any Loan is so converted until such Loan is repaid in full regardless
of the date when Administrative Agent obtains knowledge of such Event of
Default.
(c) Each conversion of a Loan into a Base Rate Loan or a Eurodollar Loan,
as the case may be, shall be effected by each Bank, on behalf of Borrower, as
applicable, by making a simultaneous payment of the relevant Eurodollar Loan, or
Base Rate Loan, as the case may be, from the proceeds of the new Loans,
procedures with respect thereto to be governed by the provisions of Section 2.2,
except that disbursement shall be made by means of such payment rather than
directly to Borrower to the extent applicable with respect to each Bank.
(d) If upon the expiration of any Interest Period applicable to Eurodollar
Loans, Borrower has failed to select a new Interest Period to be applicable
thereto, or if any Event of Default or Unmatured Event of Default shall then
exist, Borrower shall be deemed to have elected to convert such Eurodollar Loans
into Base Rate Loans effective as of the expiration date of such current
Interest Period.
2.7 Disbursements and Payments.
--------------------------
(a) Each Base Rate Loan and Eurodollar Loan shall be made on a pro rata
basis by Banks based on their respective Commitments, and each Bank's portion of
each Loan shall be determined by application of its Normal Percentage. Each
Bank's interest in each Loan and each payment to such Bank under this Agreement
shall be for the account of such Bank's Lending Office.
(b) Each Loan and each payment of principal, interest and other sums under
this Agreement shall be made in immediately available funds (or such other funds
as Administrative Agent may require) at Bank of America's Agency Administrative
Services-West, 0000 Xxxxxxx Xxxx., Xxxxxxx, Xxxxxxxxxx 00000, ABA #000000000,
Acct No. 3750836479, Ref: Xxxxxx Electronics Corporation or such other office
designated by Administrative Agent from time to time.
(c) Each Bank agrees it will make the funds which it is to advance
hereunder available to Bank of America's Agency Administrative Services-West,
0000 Xxxxxxx Xxxx., Xxxxxxx, Xxxxxxxxxx 00000, ABA #000000000, Acct No.
3750836479, Ref: Xxxxxx Electronics Corporation or such other office designated
by Administrative Agent from time to time not later than 11:00 A.M. California
time on the Borrowing Date, and Administrative Agent will thereupon promptly
advance to Borrower the amount so received from Banks.
(d) Payment of all sums under this Agreement shall be made by Borrower to
Administrative Agent, and the latter shall promptly distribute to each Bank its
share of such payments. Each payment by Borrower shall be made without setoff or
counterclaim and not later than 11:00 a.m. California time on the day such
payment is due. All sums received after such time shall be deemed received on
the next Business Day.
25
(e) If Administrative Agent makes available to Borrower an amount due from
any Bank which such Bank fails to make available to Administrative Agent, or if
Administrative Agent makes available to any Bank an amount due from Borrower
which Borrower fails to make available to Administrative Agent, Borrower or such
Bank, as the case may be, shall, on demand, refund such amount to Administrative
Agent, together with interest thereon for the period during which such amount
was available to Borrower or such Bank, as the case may be, at the Federal Funds
Rate.
(f) Any sum of principal or interest payable by Borrower hereunder if not
paid when due shall bear interest (payable on demand) from its due date until
payment in full (computed daily on the basis of a 365 or 366, as the case may
be, day year and actual days elapsed) at a rate per annum equal to the Base Rate
plus the margin applicable for Base Rate Loans under Section 2.3(a)(i) plus two
percentage points.
2.8 Fees.
----
(a) Facility Fee. In consideration of the Revolving Commitments, the
------------
Borrower shall pay to the Administrative Agent for the ratable benefit of the
Banks with Revolving Commitments a facility fee (the "Facility Fee") for the
------------
period from the Amendment Date to the Termination Date on the Total Revolving
Commitments at a per annum rate (computed on the basis of a 360-day year and
actual days elapsed) equal to (i) fifty basis points (0.50%) with respect to
each day on which the aggregate amount of Revolving Obligations is less than or
equal to fifty percent (50%) of the Total Revolving Commitments, and (ii)
thirty-seven and one-half basis points (0.375%) with respect to each day on
which the aggregate amount of Revolving Obligations is greater than fifty
percent (50%) of the Total Revolving Commitments. The Facility Fee shall be
payable quarterly in arrears on the 10th day of each January, April, July and
October (for the Facility Fee payable during the previous calendar quarter) and
on the Termination Date.
(b) Letter of Credit Issuance Fee.
-----------------------------
(i) Letter of Credit Issuance Fee. In consideration of the issuance of
-----------------------------
Letters of Credit, the Borrower promises to pay to the Administrative Agent
for the account of each Bank with Revolving Commitments a fee (the "Letter
------
of Credit Fee") based on such Bank's ratable share of the average daily
-------------
maximum amount available to be drawn under each such Letter of Credit
computed at a per annum rate (computed on the basis of a 360-day year and
actual days elapsed) for each day from the date of issuance to the date of
expiration equal to (i) two hundred fifty basis points (2.50%) with respect
to each day on which the aggregate amount of Revolving Obligations is less
than or equal to fifty percent (50%) of the Total Revolving Commitments,
and (ii) two hundred sixty-two and one-half basis points (2.625%) with
respect to each day on which the aggregate amount of Revolving Obligations
is greater than fifty percent (50%) of the Total Revolving Commitments. The
Letter of Credit Fee shall be payable quarterly in arrears on the 10th day
of each January, April, July and October (for the Letter of Credit Fee
payable during the previous calendar quarter) and on the Termination Date.
26
(ii) Issuing Bank Fees. In addition to the Letter of Credit Fee, the
-----------------
Borrower promises to pay to the Administrative Agent for the account of the
Issuing Bank without sharing by the other Banks (i) a letter of credit
fronting fee (the "Issuing Bank Fee") on the average daily maximum amount
----------------
available to be drawn under each Letter of Credit computed at a per annum
rate (computed on the basis of a 360-day year and actual days elapsed) for
each day from the date of issuance to the date of expiration equal to
one-eighth of one percent (0.125%) and (ii) the customary charges from time
to time of the Issuing Bank with respect to the issuance, amendment,
transfer, administration, cancellation and conversion of, and drawings
under, such Letters of Credit. The Issuing Bank Fee hereunder shall be
payable quarterly in arrears on the 1st day of each January, April, July
and October (for the Issuing Bank Fee payable during the previous calendar
quarter) and on the Termination Date.
(c) Administrative Fees. The Borrower agrees to pay to the Administrative
-------------------
Agent, for its own account, an administrative agency fee as may be mutually
agreed.
2.9 Additional Provisions relating to Letters of Credit.
---------------------------------------------------
(a) Reports. The Issuing Bank will provide to the Administrative Agent upon
-------
request, a detailed summary report on its Letters of Credit and the activity
thereon, in form and substance acceptable to the Administrative Agent. In
addition, the Issuing Bank will provide to the Administrative Agent for
dissemination to the Banks with Revolving Commitments at least quarterly, and
more frequently upon request, a detailed summary report on its Letters of Credit
and the activity thereon, including, among other things, the Credit Party for
whose account the Letter of Credit is issued, the beneficiary, the face amount,
and the expiry date. The Issuing Bank will provide copies of the Letters of
Credit to the Administrative Agent and the Banks with Revolving Commitments
promptly upon request.
(b) Participation. Each Bank with a Revolving Commitment, with respect to
-------------
the Existing Letters of Credit, hereby purchases a participation interest in
Existing Letters of Credit, and with respect to Letters of Credit issued on or
after the Closing Date, upon issuance of a Letter of Credit, shall be deemed to
have purchased without recourse a risk participation from the Issuing Bank in
such Letter of Credit and the obligations arising thereunder, in each case in an
amount equal to its pro rata share of the obligations under such Letter of
Credit (based on the pro rata share of the Banks with Revolving Commitments) and
shall absolutely, unconditionally and irrevocably assume, as primary obligor and
not as surety, and be obligated to pay to the Issuing Bank therefor and
discharge when due, its pro rata share of the obligations arising under such
Letter of Credit. Without limiting the scope and nature of each Bank with a
Revolving Commitment's participation in any Letter of Credit, to the extent that
the Issuing Bank has not been reimbursed as required hereunder or under any such
Letter of Credit, each Bank with a Revolving Commitment shall pay to the Issuing
Bank its pro rata share of such unreimbursed drawing in same day funds on the
day of notification by the Issuing Bank of an unreimbursed drawing pursuant to
the provisions of subsection (d) hereof. The obligation of each Bank with a
Revolving Commitment to so reimburse the Issuing Bank shall be absolute and
unconditional and shall not be affected by the occurrence of an Unmatured Event
of Default, an Event of
27
Default or any other occurrence or event. Any such reimbursement shall not
relieve or otherwise impair the obligation of the Borrower to reimburse the
Issuing Bank under any Letter of Credit, together with interest as hereinafter
provided.
(c) Reimbursement. In the event of any drawing under any Letter of Credit,
-------------
the Issuing Bank will promptly notify the Borrower and the Administrative Agent.
Unless the Borrower shall immediately notify the Issuing Bank that the Borrower
intends to otherwise reimburse the Issuing Bank for such drawing, the Borrower
shall be deemed to have requested that the Banks with Revolving Commitments make
a Revolving Loan in the amount of the drawing as provided in subsection (d)
hereof on the related Letter of Credit, the proceeds of which will be used to
satisfy the related reimbursement obligations. The Borrower promises to
reimburse the Issuing Bank on the day of drawing under any Letter of Credit
(either with the proceeds of a Revolving Loan obtained hereunder or otherwise)
in same day funds. If the Borrower shall fail to reimburse the Issuing Bank as
provided hereinabove, the unreimbursed amount of such drawing shall bear
interest at a per annum rate equal to the Base Rate plus the margin applicable
for Base Rate Loans under Section 2.3(a)(i) plus two percent (2%). The
Borrower's reimbursement obligations hereunder shall be absolute and
unconditional under all circumstances irrespective of any rights of setoff,
counterclaim or defense to payment the Borrower may claim or have against the
Issuing Bank, the Administrative Agent, the Banks with Revolving Commitments,
the beneficiary of the Letter of Credit drawn upon or any other Person,
including without limitation any defense based on any failure of the Borrower or
any other Credit Party to receive consideration or the legality, validity,
regularity or unenforceability of the Letter of Credit. The Administrative Agent
will promptly notify the other Banks with Revolving Commitments of the amount of
any unreimbursed drawing and each Bank with a Revolving Commitment shall
promptly pay to the Administrative Agent for the account of the Issuing Bank in
U.S. dollars and in immediately available funds, the amount of such Bank's
Revolving Commitment Percentage of such unreimbursed drawing. Such payment shall
be made on the day such notice is received by such Bank from the Issuing Bank if
such notice is received at or before 11:00 A.M. (California time) otherwise such
payment shall be made at or before 11:00 A.M. (California time) on the Business
Day next succeeding the day such notice is received. If such Bank does not pay
such amount to the Issuing Bank in full upon such request, such Bank shall, on
demand, pay to the Administrative Agent for the account of the Issuing Bank
interest on the unpaid amount during the period from the date of such drawing
until such Bank pays such amount to the Issuing Bank in full at a rate per annum
equal to, if paid within two (2) Business Days of the date that such Bank is
required to make payments of such amount pursuant to the preceding sentence, the
Federal Funds Rate and thereafter at a rate equal to the Base Rate. The
obligation of each Bank with a Revolving Commitment to make such payment to the
Issuing Bank, and the right of the Issuing Bank to receive the same, shall be
absolute and unconditional, shall not be affected by any circumstance whatsoever
and without regard to the termination of this Agreement or the Commitments
hereunder, the existence of an Event of Default or Unmatured Event of Default or
the acceleration of the obligations of the Borrower hereunder and shall be made
without any offset, abatement, withholding or reduction whatsoever.
Simultaneously with the making of each such payment by a Bank with a Revolving
Commitment to the Issuing Bank, such Bank shall, automatically and without any
further action on the part of the Issuing Bank or such Bank, acquire a
participation in an amount equal to such payment (excluding the portion of such
payment constituting interest owing to the Issuing Bank) in the
28
related unreimbursed drawing portion of the LOC Obligation and in the interest
thereon and in the related LOC Documents, and shall have a claim against the
Borrower with respect thereto.
(d) Repayment with Revolving Loans. On any day on which the Borrower shall
------------------------------
have requested, or been deemed to have requested, a Revolving Loan advance to
reimburse a drawing under a Letter of Credit, the Administrative Agent shall
promptly give notice to the Banks with Revolving Commitments that a Revolving
Loan has been requested or deemed requested by the Borrower to be made in
connection with a drawing under a Letter of Credit, in which case a Revolving
Loan advance comprised of Base Rate Loans (or Eurodollar Loans to the extent the
Borrower has complied with the procedures of Section 2.2(a)(i) with respect
thereto) shall be promptly made to the Borrower by all Banks with Revolving
Commitments (notwithstanding any termination of the Commitments pursuant to
Section 9.1) pro rata based on their respective Revolving Commitments
--- ----
(determined before giving effect to any termination of the Commitments pursuant
to Section 9.1) and the proceeds thereof shall be paid to the Issuing Bank for
application to the respective LOC Obligations. Each such Bank with a Revolving
Commitment hereby irrevocably agrees to make its pro rata share of each such
Revolving Loan promptly upon any such request or deemed request in the amount,
in the manner and on the date specified in the preceding sentence
notwithstanding (i) the amount of such borrowing may not comply with the minimum
---------------
amount for advances of Revolving Loans otherwise required hereunder, (ii)
whether any conditions specified in Section 5.3 are then satisfied, (iii)
whether an Event of Default or Unmatured Event of Default then exists, (iv)
failure for any such request or deemed request for Revolving Loan to be made by
the time otherwise required hereunder, (v) whether the date of such borrowing is
a date on which Revolving Loans are otherwise permitted to be made hereunder or
(vi) any termination of the Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any Revolving Loan
cannot for any reason be made on the date otherwise required above (including,
without limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code with respect to the Borrower or any Credit Party), then each
such Bank with a Revolving Commitment hereby agrees that it shall forthwith
purchase (as of the date such borrowing would otherwise have occurred, but
adjusted for any payments received from the Borrower on or after such date and
prior to such purchase) from the Issuing Bank such participation in the
outstanding LOC Obligations as shall be necessary to cause each such Bank with a
Revolving Commitment to share in such LOC Obligations ratably (based upon the
respective Revolving Commitments (determined before giving effect to any
termination of the Commitments pursuant to Section 9.1)), provided that in the
--------
event such payment is not made on the day of drawing, such Bank shall pay in
addition to the Issuing Bank interest on the amount of its unfunded
Participation Interest at a rate equal to, if paid within two (2) Business Days
of the date of drawing, the Federal Funds Rate, and thereafter at the Base Rate.
(e) Designation of other Credit Parties as Account Parties. Notwithstanding
------------------------------------------------------
anything to the contrary set forth in this Agreement, including without
limitation Section 2.1(b) and 2.2(a)(ii) hereof, a Letter of Credit issued
hereunder may contain a statement to the effect that such Letter of Credit is
issued for the account of a Credit Party other than the Borrower, provided that
notwithstanding such statement, the Borrower shall be the actual account party
for all purposes of this Agreement for such Letter of Credit and such statement
shall not affect the Borrower's reimbursement obligations hereunder with respect
to such Letter of Credit.
29
(f) Renewal, Extension. The renewal or extension of any Letter of Credit
------------------
shall, for purposes hereof, be treated in all respects the same as the issuance
of a new Letter of Credit hereunder.
(g) Uniform Customs and Practices. The Issuing Bank may have the Letters of
-----------------------------
Credit be subject to The Uniform Customs and Practice for Documentary Credits
(the "UCP") or the International Standby Practices 1998 (the "ISP98"), in either
--- -----
case as published as of the date of issue by the International Chamber of
Commerce, in which case the UCP or the ISP98, as applicable, may be incorporated
therein and deemed in all respects to be a part thereof.
(h) Indemnification; Nature of Issuing Bank's Duties.
------------------------------------------------
(i) In addition to its other obligations under this Section 2.9, the
Borrower hereby agrees to protect, indemnify, pay and save the Issuing Bank
and the Banks with Revolving Commitments harmless from and against any and
all claims, demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable attorneys' fees) that the Issuing Bank or
any Bank with a Revolving Commitment may incur or be subject to as a
consequence, direct or indirect, of (A) the issuance of any Letter of
Credit or (B) the failure of the Issuing Bank to honor a drawing under a
Letter of Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
governmental authority (all such acts or omissions, herein called
"Government Acts").
---------------
(ii) As between the Borrower and the Issuing Bank, the Borrower shall
assume all risks of the acts, omissions or misuse of any Letter of Credit
by the beneficiary thereof. The Issuing Bank shall not be responsible: (A)
for the form, validity, sufficiency, accuracy, genuineness or legal effect
of any document submitted by any party in connection with the application
for and issuance of any Letter of Credit, even if it should in fact prove
to be in any or all respects invalid, insufficient, inaccurate, fraudulent
or forged; (B) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole
or in part, that may prove to be invalid or ineffective for any reason; (C)
for errors, omissions, interruptions or delays in transmission or delivery
of any messages, by mail, cable, telegraph, telex or otherwise, whether or
not they be in cipher; (D) for any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under a
Letter of Credit or of the proceeds thereof; and (E) for any consequences
arising from causes beyond the control of the Issuing Bank, including,
without limitation, any Government Acts. None of the above shall affect,
impair, or prevent the vesting of the Issuing Bank's rights or powers
hereunder.
(iii) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by
the Issuing Bank, under or in connection with any Letter of Credit or the
related certificates, if taken or omitted in good faith, shall not put such
Issuing Bank under any resulting liability to the Borrower
30
or any other Credit Party. It is the intention of the parties that this
Agreement shall be construed and applied to protect and indemnify the
Issuing Bank against any and all risks involved in the issuance of the
Letters of Credit, all of which risks are hereby assumed by the Borrower
(on behalf of itself and each of the other Credit Parties), including,
without limitation, any and all Government Acts. The Issuing Bank shall
not, in any way, be liable for any failure by the Issuing Bank or anyone
else to pay any drawing under any Letter of Credit as a result of any
Government Acts or any other cause beyond the control of the Issuing Bank.
(iv) Nothing in this subsection (h) is intended to limit the
reimbursement obligations of the Borrower contained in subsection (d)
above. The obligations of the Borrower under this subsection (h) shall
survive the termination of this Agreement. No act or omissions of any
current or prior beneficiary of a Letter of Credit shall in any way affect
or impair the rights of the Issuing Bank to enforce any right, power or
benefit under this Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (h), the Borrower shall have no obligation to indemnify the
Issuing Bank in respect of any liability incurred by the Issuing Bank (A)
arising solely out of the gross negligence or willful misconduct of the
Issuing Bank, as determined by a court of competent jurisdiction, or (B)
caused by the Issuing Bank's failure to pay under any Letter of Credit
after presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit, as determined by a court of competent
jurisdiction, unless such payment is prohibited by any law, regulation,
court order or decree.
(i) Responsibility of Issuing Bank. It is expressly understood and agreed
------------------------------
that the obligations of the Issuing Bank hereunder to the Lenders are only those
expressly set forth in this Agreement and that the Issuing Bank shall be
entitled to assume that the conditions precedent set forth in Section 5.1 have
been satisfied unless it shall have acquired actual knowledge that any such
condition precedent has not been satisfied; provided, however, that nothing set
-------- -------
forth in this Section 2.9 shall be deemed to prejudice the right of any Lender
to recover from the Issuing Bank any amounts made available by such Lender to
the Issuing Bank pursuant to this Section 2.9 in the event that it is determined
by a court of competent jurisdiction that the payment with respect to a Letter
of Credit constituted gross negligence or willful misconduct on the part of the
Issuing Bank.
(j) Conflict with LOC Documents. In the event of any conflict between this
---------------------------
Agreement and any LOC Document (including any letter of credit application),
this Agreement shall control.
SECTION 3
PAYMENT OF COSTS AND REDUCTION
OF THE COMMITMENT
31
3.1 Indemnification Upon Failure to Pay Eurodollar Loan. If Borrower makes
---------------------------------------------------
any payment of principal with respect to any Eurodollar Loan on a day other than
the last day of the then current Interest Period applicable to such Loan
(including without limitation any payment upon reduction of the Commitments) or
fails to borrow, continue, convert, pay or prepay its Eurodollar Loan on a date
designated to Administrative Agent in a notice pursuant to this Agreement (if
such failure does not result from the application of Sections 4.1 or 4.2),
Borrower shall reimburse each Bank within 15 days after receipt of written
demand for any loss incurred by it as a result of the timing of such payment or
non-borrowing not reflected in the Eurodollar Rate, including without limitation
any loss incurred in liquidating or employing deposits from third parties and
loss of profit for the period after such payment or non-borrowing. A certificate
of such Bank setting forth the amounts reasonably necessary so to reimburse it
in respect of any loss shall be conclusive and binding absent manifest error.
3.2 Increased Costs.
---------------
(a) If after the date hereof, any applicable law, rule or regulation or any
change therein or in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof or compliance by any Bank (or its
Lending Office) with any request or directive of any such authority, central
bank or comparable agency, whether or not having the force of law, shall impose,
modify or deem applicable:
(i) any reserve (including, without limitation, any imposed by the
Board of Governors of the Federal Reserve System), special deposit,
compulsory loan or similar requirements against assets, commitments or
deposits or other liabilities with, of or for the account of, or credit
extended by, or any acquisition of funds by or for the account of any Bank
or its Lending Office or the London interbank market or any other condition
affecting its obligations to make the Loans to Borrower hereunder;
(ii) any capital or similar requirements against (or against any class
of or change in or the amount of) assets or liabilities of, or commitments
or extensions of credit by, such Bank; each Bank which is so affected shall
give prompt notice to Borrower describing such reserves or requirements at
least four Business Days prior to the date such Bank will begin to
implement such additional charges with respect to Borrower. If the result
of any of the foregoing is to increase the cost or reduce the profit to
such Bank (or its Lending Office) under this Agreement by an amount deemed
by such Bank to be material, then, within 15 days after written demand by
such Bank, Borrower will pay to such Bank such additional amount or amounts
as will compensate such Bank for such increased cost incurred or reduction
in profit suffered by such Bank. Such Bank will designate a different
Lending Office if such designation will avoid the need for, or reduce the
amount of, such compensation and will not be otherwise disadvantageous to
such Bank in the sole discretion of such Bank. A certificate of such Bank
setting forth the basis for determining such additional amount or amounts
necessary to compensate the Bank shall be conclusive in the absence of
manifest error.
32
(b) Without limiting the effect of the foregoing (but without duplication),
upon any Bank's prior written request, Borrower shall pay to such Bank on the
last day of each Interest Period, so long as such Bank may be required to
maintain reserves against "eurocurrency liabilities" under Regulation D (as at
------------------------
any time amended) of the Board of Governors of the Federal Reserve System, as
additional interest on the unpaid principal amount of each Eurodollar Loan by
such Bank outstanding during such Interest Period, an additional amount
(determined by such Bank and notified to Borrower in writing) up to but not
exceeding such amount as would, together with payments of interest on such
Eurodollar Loan for such Interest Period, result in the receipt by such Bank of
total interest on such Eurodollar Loan, for such Interest Period at a rate per
annum determined by such Bank to be equal to the sum of:
(i) the Eurodollar Rate divided by a sum equal to (a) 1 minus (b) the
rate (expressed as a decimal) of such reserves required by Regulation D,
plus
(ii) the applicable margin for such Eurodollar Loans referenced in
Section 2.3(a)(ii).
In determining the additional amount payable for an Interest Period pursuant to
this Section, such Bank shall take into account any transitional adjustment or
phase-in provisions of such reserve requirements applicable during such Interest
Period, which would reduce the reserve requirement otherwise applicable to
eurocurrency liabilities during such Interest Period; provided, however, each
Bank in its sole discretion may determine the allocation of reserve requirements
to its Eurodollar Loans. Each such determination made by such Bank, and each
such notification by such Bank to Borrower under this Section, shall be
conclusive as to the matters set forth therein in the absence of manifest error.
3.3 Taxes. All payments or reimbursements under this Agreement and any
-----
instrument or agreement required hereunder shall be made without setoff or
counterclaim and free and clear of and without deduction for any and all present
and future Taxes. Borrower agrees to cause all such Taxes to be paid on behalf
of any Bank or Administrative Agent directly to the appropriate governmental
authority. If Borrower is legally prohibited from complying with this
subsection, payments due to such Bank or Administrative Agent under this
Agreement and any instrument or agreement required hereunder shall be increased
so that, after provisions for Taxes and all Taxes on such increase, the amounts
received by such Bank or Administrative Agent will be equal to the amounts
required under this Agreement and any instrument or agreement required hereunder
as if no Taxes were due on such payments. Borrower shall indemnify each Bank and
Administrative Agent for the full amount of Taxes payable by such Bank or
Administrative Agent and any liabilities (including penalties, interest and
expenses) arising from such Taxes within 30 days from any written demand by such
Bank. Borrower shall provide evidence that all applicable Taxes have been paid
to the appropriate taxing authorities by delivering to Administrative Agent
official tax receipts or notarized copies or other evidence thereof satisfactory
to Administrative Agent, within 90 days after the due date for such Tax payment.
Such Bank will designate a different Lending Office if such designation will
avoid the need for, or reduce the amount of, such payment or reimbursement and
will not be otherwise disadvantageous to such Bank in the sole discretion of
such Bank.
33
3.4 Prepayments.
-----------
(a) Voluntary Prepayments. Upon the irrevocable written notice of Borrower
---------------------
received by Administrative Agent by 11:00 A.M. California time at least one
Business Day prior to the prepayment of a Base Rate Loan at least five
Eurodollar Banking Days prior to the prepayment of a Eurodollar Loan, Borrower
may prepay any Eurodollar Loan or Base Rate Loan; but such prepayment shall be
in an amount of at least $5,000,000 or multiple integrals of $1,000,000 in
excess thereof. The notice of prepayment shall specify the date of the
prepayment, the amount of the prepayment and the Loan to be prepaid. Each such
prepayment shall be made on the date specified and, in the case of a prepayment
of any Eurodollar Loan shall be accompanied by the payment of accrued interest
on the amount prepaid. Subject to compliance with the foregoing procedures, Base
Rate Loans may be prepaid at any time without cost or penalty of any kind. If
Borrower elects to prepay a Eurodollar Loan, Borrower shall, on demand by each
Bank, pay such Bank the amount (if any) by which (a) the additional interest
which would have been payable on the amount prepaid on such Bank's portion of
such Loan had it not been paid until the last day of the Interest Period of such
Loan exceeds (b) the interest which would have been recoverable by such Bank by
placing such prepaid amount on deposit in the offshore Dollar interbank markets
for a period starting on the date on which it was prepaid and ending on the last
day of the Interest Period for such Loan.
(b) Mandatory Prepayments.
---------------------
(i) Committed Amounts. If at any time (A) the aggregate principal
-----------------
amount of Revolving Obligations shall exceed the Total Revolving
Commitments, or (B) the aggregate amount of LOC Obligations shall exceed
the LOC Committed Amount, the Borrower shall immediately make payment on
the Revolving Loans and/or to a cash collateral account in respect of the
LOC Obligations, in an amount sufficient to eliminate the difference.
(ii) Asset Dispositions. The Loan Obligations shall be immediately
------------------
prepaid as hereafter provided in an amount equal to one hundred percent
(100%) of the net cash proceeds received from all Asset Dispositions after
the Amendment Date; provided, however, the net cash proceeds of Asset
--------
Dispositions may be retained by the Borrower and paid hereunder on the
earlier of (A) the occurrence of an Event of Default, or (B) the Business
Day on which the aggregate amount of such net cash proceeds not yet applied
to a prepayment of the Loan Obligations hereunder equals or exceeds $25
million.
(iii) PAS and DLA Capital Stock. The Loan Obligations shall be
-------------------------
immediately prepaid as hereafter provided in an amount equal to one hundred
percent (100%) of the net cash proceeds received from the sale or
disposition of any of the capital stock in PAS or DLA owned by the Borrower
(or any of its Subsidiaries).
(iv) EchoStar Break-Up Fee. The Loan Obligations shall be immediately
---------------------
prepaid as hereafter provided in an amount equal to one hundred percent
(100%) of the net cash proceeds of any break-up fees (or any similar fee or
amount) payable pursuant to the terms of the implementation, separation,
merger, stock purchase and related
34
agreements with EchoStar Communications Corporation, as the same may be
amended from time to time (collectively, the "EchoStar Transaction
--------------------
Documents").
---------
(v) Dividends and Distributions. The Loan Obligations shall be
---------------------------
immediately prepaid as hereafter provided in an amount equal to one hundred
percent (100%) of the net cash proceeds received by the Borrower (or any
other Credit Party) from any dividend or distribution received on or in
respect of the capital stock or other equity interest in any non-wholly
owned Subsidiary of the Borrower (including PAS and DLA).
(vi) Debt Transactions. The Loan Obligations shall be immediately
-----------------
prepaid as hereafter provided in an amount equal to one hundred percent
(100%) of the net cash proceeds received by any Credit Party from any Debt
Transaction.
(vii) Equity Transactions. The Loan Obligations shall be immediately
-------------------
prepaid as hereafter provided in an amount equal to one hundred percent
(100%) of the net cash proceeds received by any Credit Party from any
Equity Transaction.
(c) Application.
-----------
(i) Voluntary Prepayments. Voluntary prepayments on the Loan
---------------------
Obligations shall be applied as specified by the Borrower. Absent such
specification, voluntary prepayments shall be applied first to Base Rate
Loans and then to Eurodollar Loans in direct order of Interest Period
maturities.
(ii) Mandatory Prepayments. Mandatory prepayments made under
---------------------
subsection (b)(ii) in respect of Asset Dispositions, under subsection
(b)(iii) in respect of a sale of any capital stock in PAS or DLA, under
subsection (b)(iv) in respect of the EchoStar Transaction Documents, under
subsection (b)(v) in respect of dividends and distributions in respect of
non-wholly owned Subsidiaries, under subsection (b)(vi) in respect of Debt
Transactions, and under subsection (b)(vii) in respect of Equity
Transactions shall be applied (i) if the Term Loan has been made and is
outstanding, first to the Term Loan until paid in full, and thereafter, to
the Revolving Obligations, and (ii) if the Term Loan has not been made or
has been paid in full, to the Revolving Obligations. Within the foregoing
parameters for application, mandatory prepayments shall be applied first to
Base Rate Loans and then to Eurodollar Loans in direct order of Interest
Period maturities.
3.5 Pro Rata Reduction of Commitments by Borrower.
---------------------------------------------
(a) Voluntary Reduction of Revolving Commitments. Borrower may, upon 3 days
--------------------------------------------
prior written notice (which notice shall be irrevocable) to Banks through
Administrative Agent, reduce the Total Revolving Commitment on a pro rata basis
among the Banks with Revolving Commitments. Such a reduction shall be in an
integral multiple of $5,000,000. Borrower shall, on the effective date of each
such reduction, repay to each Bank with Revolving Commitments through
Administrative Agent that portion of each Revolving Loan which exceeds the
amount of each Bank's Revolving Commitment as reduced, together with accrued
interest on the amount
35
paid and accrued facility fees subject to such reduction. After the effective
date of each reduction, the Bank's obligations under this Agreement shall be
based on the reduced Revolving Commitments.
(b) Mandatory Reduction of Revolving Commitments. The Total Revolving
--------------------------------------------
Commitments shall be permanently reduced from time to time in an amount equal to
the amount of any prepayment on the Revolving Obligations required by Sections
3.4(b)(ii), (iii), (iv), (v), (vi) and (vii).
3.6 Non-Ratable Increases and Reductions of Commitments by Borrower.
---------------------------------------------------------------
(a) Increase in Revolving Commitments. Subject to the terms and conditions
---------------------------------
set forth herein, the Borrower may at any time upon notice to the Administrative
Agent increase the Total Revolving Commitments up to TWO BILLION DOLLARS
($2,000,000,000); provided that:
(i) any such increase shall be in a minimum aggregate principal amount
of $5 million and integral multiples of $1 million in excess thereof (or
the remaining amount, if less),
(ii) if any Revolving Loans are outstanding at the time of any such
increase, the Borrower shall make such payments and adjustments on the
Revolving Loans (including payment of any break-funding amounts owing under
Section 3.1) as necessary to give effect to the revised commitment
percentages and commitment amounts,
(iii) the conditions to the making of a Revolving Loan set forth in
Section 5.3 shall be satisfied (provided that, for purposes of establishing
--------
the increase in Revolving Commitments hereunder, subsection 5.3(d) shall
not apply),
(iv) the Borrower shall obtain commitments for the amount of the
increase from existing Banks or other commercial banks or financial
institutions reasonably acceptable to the Administrative Agent, provided
that such other commercial banks and financial institutions join in this
Agreement as Banks by joinder agreement in substantially the form attached
hereto as Exhibit H (the "Bank Joinder Agreement")or other arrangement
----------------------
reasonably acceptable to the Administrative Agent. In connection with any
such increase in the Revolving Commitments, Schedule 1 shall be revised to
----------
reflect the modified commitments and commitment percentages of the Banks,
and the Borrower will provide supporting corporate resolutions, legal
opinions, promissory notes and other items as may be reasonably requested
by the Administrative Agent and the Banks in connection therewith; and
(v) after giving effect to any such increase in Revolving Commitments,
the aggregate amount of Total Commitments (including the Term Loan
Commitments, if any) shall not exceed Two Billion Dollars ($2,000,000,000).
36
(b) Establishment of a Term Loan Facility. Subject to the terms and
-------------------------------------
conditions set forth herein, the Borrower may at any time upon notice to the
Administrative Agent establish a Term Loan Facility hereunder; provided that:
(i) any such Term Loan shall be in a minimum aggregate principal
amount of $5 million and integral multiples of $1 million in excess thereof
(or the remaining amount, if less),
(ii) the conditions to the making of a Loan set forth in Section 5.3
shall be satisfied,
(iii) the Borrower shall obtain commitments for the amount of the Term
Loan Facility from existing Banks or other commercial banks or financial
institutions reasonably acceptable to the Administrative Agent, provided
that such other commercial banks and financial institutions join in this
Agreement as Banks by joinder agreement or other arrangement reasonably
acceptable to the Administrative Agent. In connection with any such Term
Loan, Schedule 1 shall be revised to reflect the commitments and commitment
----------
percentages of the Banks, and the Borrower will provide supporting
corporate resolutions, legal opinions, promissory notes and other items as
may be reasonably requested by the Administrative Agent and the Banks in
connection therewith; and
(iv) after giving effect to any such Term Loan Facility, the aggregate
amount of Total Commitments (including the Term Loan Commitments, if any)
shall not exceed Two Billion Dollars ($2,000,000,000).
(c) Reduction of One Bank's Commitment by Borrower. If the amount of any
----------------------------------------------
payment to be made to or for the account of any Bank is increased under Section
3.3 or any Bank makes a claim under Section 3.2, then:
(i) Borrower may within 60 days after the notice thereof and by not
less than five Business Days' written notice to Administrative Agent,
cancel such Bank's Commitment, whereupon such Bank shall cease to be
obligated to participate in further Loans hereunder and its Commitment
shall be reduced to the amount of its outstanding Loans until such Loans
are repaid by Borrower either on the Principal Repayment Date for such
Loans or pursuant to Section 3.6(b), at which time such Bank's Commitment
shall be reduced to zero;
(ii) if Borrower cancels such Bank's Commitment pursuant to clause (i)
above and if Borrower so elects by written notice to Administrative Agent
given at the same time as the notice referred to in clause (i) above,
Borrower shall prepay such Bank's portion of each outstanding Loan together
with any accrued interest thereon plus all costs and expenses (including
break and funding costs in connection with the relending, reborrowing,
funding or other employing of funds) incurred by such Bank as a result of
such cancellation or prepayment on a date other than the Principal
Repayment Date for such Loan; and
37
3.7 Notice of Reductions. Each notice of reduction or prepayment given
--------------------
pursuant to Section 3.4, 3.5 or 3.6 shall be irrevocable, shall specify the date
upon which such reduction or prepayment is to be made and, in the case of a
notice of prepayment, shall obligate Borrower to make such prepayment on such
date. Borrower may not give a notice of reduction of a part of the Commitments
pursuant to Section 3.6 at any time prior to the date so specified in any
previous such notice.
3.8 Designation of Replacement Bank. If the Commitment of any Bank is
-------------------------------
cancelled by Borrower pursuant to Section 3.6 or if any Bank terminates its
Commitment with respect to Eurodollar Loans pursuant to Section 4.2, Borrower,
with the consent of Administrative Agent, may designate an Eligible Assignee
(or, if it deems appropriate, more than one Eligible Assignee) acceptable to
Administrative Agent to act as a Bank hereunder and upon execution of a written
agreement in form satisfactory to Administrative Agent by such Eligible Assignee
in which it agrees to abide by all of the terms, conditions and obligations
applicable to a Bank herein and to have a Commitment as specified in such
agreement, such Eligible Assignee shall be deemed a Bank hereunder to the same
extent as if it were a signatory hereto and, thereafter, such Eligible Assignee
shall for all purposes be considered a "Bank" hereunder.
----
3.9 Effect of Reduction of Commitment. If, at any time:
---------------------------------
(a) the Commitment of any Bank is reduced to zero in accordance with the
terms of this Agreement;
(b) all indebtedness and other amounts owed to such Bank by Borrower
hereunder or in connection herewith have been satisfied in full; and
(c) such Bank is under no further actual or contingent obligation
hereunder,
then such Bank shall cease to be a party hereto and a Bank for the purposes
hereof; provided, however, that the obligations of Borrower and such Bank under
-------- -------
Sections 3.1, 3.2, 3.3, 11.14, 11.15 and 11.16 shall survive the cancellation of
the Commitment and the termination of this Agreement.
3.10 Accrued Fees. On the date of the cancellation of any portion of the
------------
Total Commitment in accordance with Section 3.5 or of any Bank's Commitment
under Section 3.6, all accrued facility fees and letter of credit fees for such
portion of the Total Commitment or of such Bank's Commitment shall be paid in
full by Borrower.
3.11 Survival. The agreements and obligations of Borrower in this Section 3
--------
shall survive the termination of this Agreement.
38
SECTION 4
CHANGE IN CIRCUMSTANCES AFFECTING LOANS
4.1 Inability to Determine Eurodollar Rate. If any Reference Bank
--------------------------------------
determines (which determination shall be made in good faith and shall be
conclusive and binding upon Borrower) that (a) by reason of circumstances then
affecting the Eurodollar interbank market, adequate and reasonable means do not
or will not exist for ascertaining the interest rate applicable to any
Eurodollar Loans, or (b) Dollar deposits in the relevant amounts and for the
relevant Interest Period are not available to the Banks in the Eurodollar
interbank market, then it shall notify the Administrative Agent who shall
forthwith give written notice of such determination to Borrower and each Bank at
least one Business Day prior to the first day of any Interest Period so
affected; whereupon, until Administrative Agent shall notify Borrower that the
circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Banks to make Eurodollar Loans shall be suspended and (ii)
Borrower shall repay in full, without premium or penalty, the then outstanding
principal amount of the Eurodollar Loans, together with accrued interest
thereon, on the last day of the then current Interest Period pursuant to the
next sentence. Unless Borrower notifies Administrative Agent to the contrary
within one Business Day after receiving a notice from Administrative Agent
pursuant to this Section, Borrower shall, concurrently with prepaying the
Eurodollar Loans pursuant to this Section, be deemed automatically without any
further notice to Administrative Agent or the Banks to have requested and
received Base Rate Loans in an equal principal amount from the Banks, the
proceeds of which are deemed to have been used to repay the other Loans.
4.2 Illegality. If, after the Effective Date, the introduction of or any
----------
change in any applicable law, rule or regulation or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof or compliance by any Bank with any
request or directive (whether or not having the force of law) of any such
authority shall make it unlawful or impossible for such Bank (or its Lending
Office) to make, maintain or fund its Eurodollar Loans, such Bank shall
forthwith give written notice thereof to Administrative Agent and to Borrower.
Before giving any notice pursuant to this Section, such Bank shall designate a
different Lending Office if such designation will avoid the need for giving such
notice and will not be otherwise disadvantageous to such Bank in the sole
judgment of such Bank. Upon receipt of such notice (a) if such Bank has received
a request with respect to Eurodollar Loans and has not yet made such Loan, a
Base Rate Loan shall be deemed to have been designated without any further
notice; (b) all Loans which would otherwise be made by such Bank as Eurodollar
Loans shall be made instead as Base Rate Loans; and (c) Borrower shall prepay in
full, without premium or penalty, the then outstanding principal amount of such
Bank's Eurodollar Loans, together with accrued interest, on either (i) the last
day of the then-current Interest Period if such Bank may lawfully continue to
fund and maintain such Eurodollar Loans, to such day or (ii) immediately if such
Bank may not lawfully continue to fund and maintain such Eurodollar Loans to
such day together with an amount, if any, calculated as set forth in the last
sentence of Section 3.4(a). Concurrently with prepaying each such Eurodollar
Loan Borrower shall borrow a Base Rate Loan from such Bank in an amount equal to
the principal amount of such Bank's Eurodollar Loans, the proceeds of which are
deemed to have been used to repay such Bank's Eurodollar Loans. If circumstances
subsequently change so that such Bank is not further affected, and no Eligible
Assignee has been appointed pursuant to Section 3.8,such
39
Bank shall so notify Borrower and Administrative Agent and such Bank's
obligation to make and continue Eurodollar Loans shall be reinstated upon
written request of Borrower.
SECTION 5
CONDITIONS PRECEDENT
5.1 [Intentionally Omitted.]
5.2 [Intentionally Omitted.]
5.3 Conditions Precedent to Loans. The obligation of Banks to disburse each
-----------------------------
Loan (including the first Loan) is subject to the following conditions and by
communicating a Loan Request Borrower is deemed to certify that: (a) to the best
knowledge of the Authorized Designee making such Loan Request, the
representations and warranties contained in this Agreement and any other
documents delivered pursuant hereto are true and correct in all material
respects on the date of such Loan Request; (b) the financial statements
delivered to Administrative Agent by Borrower pursuant to Section 7.5 on the
date most nearly preceding the Loan Request present fairly the financial
position and results of operation and changes in financial position of Borrower
and its consolidated Subsidiaries as at the end of, and for the fiscal period to
which such statements relate, (subject, in the case of unaudited financial
statements to year end adjustments); (c) to the best knowledge of the Authorized
Designee making such Loan Request, no Event of Default or Unmatured Event of
Default has occurred and is continuing except such Events of Default or
Unmatured Events of Default as have been expressly waived by or on behalf of the
Banks; and (d) in the case of Revolving Loans, at least $2.0 billion in
principal amount shall be borrowed and outstanding under the GMAC Credit
Agreement at such time.
SECTION 6
REPRESENTATIONS AND WARRANTIES
6. Borrower represents and warrants that as of the Amendment Date:
6.1 Authority. Each Credit Party (a) is a corporation duly organized and
---------
existing under the laws of its jurisdiction of organization, with, in the case
of the Borrower, its executive offices in El Segundo, California, (b) has the
corporate power and authority to own and operate its property, lease the
property it operates as lessee and carry on its business as now being conducted,
(c) is duly qualified and authorized to do business, and is in good standing in
every state, country or other jurisdiction where the failure to be so qualified,
authorized and in good standing would have a Material Adverse Effect, (d) has
full power and authority to borrow or guarantee, as appropriate, the sums
provided for in this Agreement, to execute, deliver and perform this Agreement
and any instrument or agreement required hereunder, and to perform and observe
the terms and provisions hereof and thereof, (e) has taken all corporate action
necessary for the authorization, execution, delivery and performance of this
Agreement and any instrument or agreement required hereunder, (f) requires no
consent or approval of any trustee or holder of
40
any indebtedness or obligation and requires no consent, permission,
authorization, order or license of any Governmental Authority in connection with
the execution, delivery and performance of this Agreement and any instrument or
agreement required hereunder, or any transaction contemplated hereby or thereby,
except as may have been obtained and certified copies of which have been
delivered to Banks through Administrative Agent, and (g) is in compliance with
all material Requirements of Law, except to the extent the failure to comply
therewith would not have a Material Adverse Effect.
6.2 Binding Obligations. This Agreement is the legal, valid and binding
-------------------
obligation of Borrower, enforceable against it in accordance with its terms, and
each Loan Document is the legal, valid and binding obligation of the Borrower
and each other Credit Party thereto, enforceable against such Credit Party in
accordance with its terms, in each case except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
6.3 No Contravention. There is no charter, by-law, or capital stock
----------------
provision of Borrower or any other Credit Party and no provision of any
indenture or material agreement, written or oral, to which Borrower or any other
Credit Party is a party or under which Borrower or any other Credit Party is
obligated, nor is there any statute, rule or regulation, or any judgment, decree
or order of any court or agency binding on Borrower or any other Credit Party
which would be contravened by the execution, delivery and performance of this
Agreement or any instrument or agreement required hereunder, or by the
performance of any provision, condition, covenant or other term hereof or
thereof, nor would such execution, delivery and performance result in, or
require, the creation or imposition of any Lien on any of the properties or
revenues of the Borrower or any other Credit Party, except as contemplated by
the Loan Documents.
6.4 Notices. Except as previously disclosed in writing to Administrative
-------
Agent, no event has occurred which, to the best of its knowledge, would require
Borrower and each other Credit Party to notify Administrative Agent and the
Banks pursuant to Section 7.3 hereof.
6.5 Financial Statements. Each of the financial statements described below
--------------------
(copies of which have been provided to Administrative Agent for distribution to
Banks) are complete and correct in all material respects and present fairly the
financial condition (including disclosure of all material liabilities,
contingent or otherwise) and results of operations of the entities and for the
periods specified, subject in the case of interim company-prepared statements to
normal year-end adjustments and the absence of footnotes:
(a) the annual financial statements of Borrower and its consolidated
subsidiaries, which statements include at least the consolidated balance
sheet as of the close of December 31, 2000, and the consolidated statement
of operations and statement of cash flow for such fiscal year, audited by
Deloitte & Touche (or such other independent certified public accountants
of recognized international standing selected by Borrower) and prepared in
accordance with GAAP applied on a consistent basis, and which statements
include the opinion of such accountants, such opinion not qualified or
41
limited because of any restricted or limited nature of examination made by
such accountants or because of a "going concern" qualification;
-------------
(b) the unaudited consolidated balance sheet of Borrower and its
consolidated subsidiaries dated as of December 31, 2001, and the unaudited
consolidated statement of operations and statement of cash flow for such
quarter and for the fiscal year ending with such quarter, all prepared in
accordance with GAAP applied on a consistent basis; and
(c) after the Amendment Date, the annual and quarterly financial
statements provided in accordance with Sections 7.5(a) and (b).
6.6 ERISA. Based upon ERISA and the regulations and published
-----
interpretations thereunder, the Plans of Borrower and each member of the
Consolidated Group and, to the knowledge of Borrower, the Plans of any other
ERISA Affiliates, are in material and substantial compliance in all material
respects with the applicable provisions of ERISA and Borrower and each member of
the Consolidated Group are in compliance with such Plans in all material
respects. No Reportable Event which has or could be reasonably be expected to
result in termination thereof by the Pension Benefit Guaranty Corporation or for
the appointment by the appropriate United States District Court of a trustee to
administer such Plan has occurred and is continuing with respect to any Plan.
6.7 Government Regulations. Neither Borrower nor any other Credit Party is
----------------------
engaged principally, or as one of its important activities, in the business of
extending credit for the purposes of purchasing or carrying any "margin stock"
------------
within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System, and no part of the proceeds of the extensions of credit
hereunder will be used, directly or indirectly, for the purpose of purchasing or
carrying any "margin stock", or for the purpose of purchasing or carrying or
------------
trading in any other securities in violation of Regulation U; and neither
Borrower nor any other Credit Party is, or is controlled by, an "investment
----------
company" within the meaning of the Investment Company Act of 1940, as amended.
-------
6.8 Subsidiaries. Set forth on Schedule 6.8 are all of the Subsidiaries of
------------ ------------
the Borrower, as well as the jurisdiction of organization and, in the case of
the Credit Parties, classes of capital stock or other equity interests
(including options, warrants, rights of subscription, conversion and
exchangeability and other similar rights), ownership and ownership percentages
thereof held by the Borrower and its Subsidiaries. The outstanding shares of
capital stock or other equity interests shown have been validly issued, fully
paid and are non-assessable and owned free of Liens other than Permitted Liens.
The outstanding shares of capital stock or other equity interests of the Credit
Parties are not the subject of any buy-sell, voting trust or other shareholder
agreement.
6.9 Taxes. Borrower and each member of the Consolidated Group have filed,
-----
or had filed on their behalf, all federal and state tax returns which to the
knowledge of the financial officers of Borrower and each member of the
Consolidated Group are required to have been filed, and have paid prior to
delinquency all taxes that have become due pursuant to said returns or pursuant
to any assessment, except as are being contested in good faith by appropriate
42
proceedings and as to which adequate reserves have been provided on the books of
Borrower and each member of the Consolidated Group in accordance with GAAP and
except to the extent that the failure to do so would not have a Material Adverse
Effect.
6.10 Insurance. Borrower shall maintain, or cause to be maintained,
---------
insurance as required pursuant to Section 7.7 hereof.
6.11 Use of Proceeds of Loans. The proceeds of the Loans hereunder will be
------------------------
used by Borrower (i) to refinance the DLA Credit Facility and the SurFin Credit
Facilities (which may be accomplished by a purchase of the existing bank loans
and commitments thereunder) in full and (ii) to finance working capital, capital
expenditures and other lawful corporate purposes of the Consolidated Group.
6.12 No Material Misstatements. None of the information, reports, financial
-------------------------
statements, exhibits or schedules, taken as a whole, furnished by or on behalf
of any Credit Party to Administrative Agent or any Bank in connection with the
negotiation of the Credit Documents or included therein or delivered pursuant
thereto contained, contains or will contain any material misstatement of fact or
omitted, omits or will omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were, are or
will be made, not materially misleading, provided that to the extent any such
--------
information, report, financial statement, exhibit or schedule was based upon or
constitutes a forecast or projection, the Borrower represents only that it acted
in good faith and utilized reasonable assumptions and due care in the
preparation of such information, report, financial statement, exhibit or
schedule.
6.13 Liens. The properties and assets of Borrower and each other Credit
-----
Party, real, personal and mixed, are not subject to any Liens, except for
Permitted Liens.
6.14 Security Interests.
------------------
(a) Security Agreement. The Security Agreement is effective to create in
------------------
favor of the Collateral Agent, for the ratable benefit of the holders of the
Secured Obligations identified therein, a legal, valid and enforceable security
interest in the collateral identified therein owned by the Credit Parties and,
when financing statements in appropriate form are filed in the appropriate
offices for the locations specified in the schedules to the Security Agreement,
the Security Agreement shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the grantors thereunder in such
collateral that may be perfected by filing, recording or registering a financing
statement under the Uniform Commercial Code as in effect, in each case prior and
superior in right to any other Lien on any collateral other than Permitted
Liens.
(b) Pledge Agreement. The Pledge Agreement is effective to create in favor
----------------
of the Collateral Agent, for the ratable benefit of the holders of the Secured
Obligations identified therein, a legal, valid and enforceable security interest
in the collateral identified therein and, when such collateral is delivered to
the Collateral Agent, the Pledge Agreement shall constitute a fully perfected
first priority Lien on, and security interest in, all right, title and interest
of the pledgors thereunder in such collateral, in each case prior and superior
in right to any other Lien.
43
SECTION 7
AFFIRMATIVE COVENANTS OF BORROWER
7. Borrower covenants and agrees that so long as the credit hereby granted
shall remain available in whole or in part or until the full and final payment
of all indebtedness incurred hereunder, unless Majority Banks waive compliance
in writing:
7.1 Use of Proceeds of Loans. It will use the proceeds of the Loans made by
------------------------
Banks to Borrower hereunder solely for the purposes set forth in Section 6.11.
7.2 Management of Business; Preservation of Existence. It will, and it will
-------------------------------------------------
cause each other Credit Party to, (i) manage its business and conduct its
affairs such that the representations and warranties contained in Section 6
remain true and correct at all times, and (ii) except as otherwise permitted
hereunder, do all things necessary to preserve and keep in full force and effect
its existence, rights, franchises and authority, except to the extent that the
failure to do so would not have a Material Adverse Effect.
7.3 Notice of Certain Events. It will, and it will cause each other Credit
------------------------
Party to, give prompt written notice to Administrative Agent (who shall promptly
notify the Banks) of:
(a) all Events of Default or Unmatured Events of Default under any of
the terms or provisions of this Agreement;
(b) any event of default under any other agreement, contract,
indenture, document or instrument that could in the reasonable opinion of
Borrower be expected to result in a Material Adverse Effect;
(c) all material changes in senior management otherwise publicly
announced;
(d) all litigation, arbitration or administrative proceedings
involving Borrower or any of its Subsidiaries (including PAS and DLA) which
could in the reasonable opinion of Borrower be expected to result in a
Material Adverse Effect;
(e) any other matter which has resulted in, or might in the reasonable
opinion of Borrower result in, a Material Adverse Effect;
(f) any change in any debt rating of the Borrower by S&P or Xxxxx'x;
and
(g) any material amendments, modifications, supplements or change
under the EchoStar Transaction Documents (with copies thereof).
7.4 Records. It will, and it will cause each other Credit Party to, keep
-------
and maintain full and accurate accounts and records of its operations according
to GAAP and will permit Administrative Agent, and its designated officers,
employees, agents, and representatives, to
44
have access thereto and to make examination thereof at all reasonable times, to
make audits, and to inspect and otherwise check its properties, real, personal
and mixed; provided, however, that such examination and access shall be in
compliance with security and confidentiality requirements of all Governmental
Authorities and, subject to Section 11.16, Borrower's corporate policies.
7.5 Information Furnished. It will furnish to Banks and Administrative
---------------------
Agent:
(a) Within 45 days after the close of each quarter, except for the
last quarter of each fiscal year, its consolidated balance sheet as of the
close of such quarter and its consolidated statement of operations and
statement of cash flow for that quarter and for that portion of the fiscal
year ending with such quarter, all prepared in accordance with GAAP, and
all certified by its Authorized Designee as presenting fairly the financial
position and results of operation and changes in financial position of
Borrower and its consolidated subsidiaries as at the end of, and for the
fiscal period to which such statements relate, subject to normal year-end
adjustments.
(b) Within 90 days after the close of each fiscal year, a complete
copy of its annual financial statements, which statements shall include at
least its consolidated balance sheet as of the close of such fiscal year
and its consolidated statement of operations and statement of cash flow for
such fiscal year, audited by Deloitte & Touche (or such other independent
certified public accountants of recognized international standing selected
by Borrower) and prepared in accordance with GAAP applied on a consistent
basis, and which statements shall include the opinion of such accountants,
such opinion not to be qualified or limited because of any restricted or
limited nature of examination made by such accountants or because of a
"going concern" qualification.
-------------
(c) Within 45 days after the close of each quarter except for the last
quarter of each fiscal year, (and within 90 days after the close of each
fiscal year) its certificate executed by an Authorized Designee that (i)
the representations and warranties set forth in Section 6 are true and
correct in all material respects; and (ii) no Event of Default or Unmatured
Event of Default has occurred and is continuing except such Events of
Default or Unmatured Events of Default as have been expressly waived by or
on behalf of the Banks.
(d) Concurrently with the delivery of the financial statements
referred to in clauses (a) and (b), a duly completed Compliance Certificate
signed by an Authorized Designee, including demonstration of compliance
with the financial covenants (and the components thereof), in detail and
form reasonably acceptable to the Administrative Agent.
(e) Promptly upon transmission or receipt thereof, copies of any
filings and registrations with, and reports to or from, the Securities and
Exchange Commission, or any successor agency.
45
(f) Such other information concerning its affairs as Administrative
Agent or the Majority Banks may reasonably request.
7.6 [Intentionally Omitted.]
7.7 Insurance. It will, and will cause each of the Credit Parties to, at
---------
all times maintain in full force and effect insurance (including worker's
compensation insurance, liability insurance, casualty insurance and business
interruption insurance) in such amounts, covering such risks and liabilities and
with such deductibles or self-insurance retentions as are in accordance with
normal industry practice (or as otherwise required by the Collateral Documents).
The Collateral Agent shall be named as loss payee or mortgagee, as its interest
may appear, and/or additional insured with respect to any such insurance
providing coverage in respect of any collateral under the Collateral Documents,
and each provider of any such insurance shall agree, by endorsement upon the
policy or policies issued by it or by independent instruments furnished to the
Collateral Agent, that it will give the Collateral Agent thirty days prior
written notice before any such policy or policies shall be altered or canceled,
and that no act or default of any Credit Party or any other Person shall affect
the rights of the Collateral Agent or the Banks under such policy or policies.
The present insurance coverage of the Credit Parties is outlined as to carrier,
policy number, expiration date and type on Schedule 7.7; provided, however, that
------------
Borrower and each of the Credit Parties may self-insure to the extent they deem
prudent.
7.8 ERISA. It will, and it will cause each member of the Consolidated Group
-----
to:
(a) At all times, make prompt payment of contributions required to
meet the minimum funding standard set forth in ERISA with respect to its
Plans, except to the extent that waivers are granted by the appropriate
governmental agencies;
(b) Notify Administrative Agent immediately of (i) any Reportable
Event which could reasonably be expected to result in aggregate liability
to the members of the Consolidated Group in excess of $75,000,000 and (ii)
any other fact arising in connection with any of its Plans or a Plan of any
ERISA Affiliate which has resulted, or could reasonably be expected to
result, in termination thereof by the Pension Benefit Guaranty Corporation
or for the appointment by the appropriate United States District Court of a
trustee to administer such Plan, in each case together with a statement, if
requested by Administrative Agent, as to the reasons therefor and the
action, if any, which Borrower or such ERISA Affiliate proposes to take
with respect thereto; and
(c) Furnish to Administrative Agent, upon its written request, such
information concerning any of its Plans as may be reasonably requested.
7.9 Administrative Agent's Fees. It will compensate Administrative Agent as
---------------------------
mutually agreed.
7.10 Payment of Taxes and Other Indebtedness. It will, and will cause each
---------------------------------------
member of the Consolidated Group to, pay and discharge (i) all taxes,
assessments and governmental
46
charges or levies imposed upon it, or upon its income or profits, or upon any of
its properties, before they become delinquent, (ii) all lawful claims (including
claims for labor, material and supplies) that, if unpaid, might give rise to a
Lien upon any of its properties, and (iii) except as prohibited hereunder, all
of its other Indebtedness as it becomes due, except to the extent that the
failure to do so would not have a Material Adverse Effect; provided that no
--------
member of the Consolidated Group shall be required to pay any amount that is
being contested in good faith by appropriate proceedings for which adequate
reserves determined in accordance with GAAP have been established, unless
failure to make any such payment (A) could give rise to an immediate right to
foreclose on a Lien securing such amounts or (B) could have a Material Adverse
Effect.
7.11 Performance of Obligations. It will, and will cause each other Credit
--------------------------
Party to, perform in all material respects all of its obligations under the
terms of all material agreements, indentures, mortgages, security agreements and
other debt instruments to which it is a party or by which it is bound, a breach
of which would result in a Material Adverse Effect, except where contested in
good faith by appropriate proceedings diligently pursued.
7.12 Compliance with Law. It will, and will cause each member of the
-------------------
Consolidated Group to, comply with the requirements of all applicable laws,
rules, regulations, and orders of any Governmental Authority, a breach of which
would result in a Material Adverse Effect, except where contested in good faith
by appropriate proceedings diligently pursued.
7.13 Maintenance of Property. It will, and will cause each other Credit
-----------------------
Party to, maintain and preserve its material properties and equipment in good
repair, working order and condition, normal wear and tear and casualty and
condemnation excepted, and make all repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto as may be necessary or proper,
to the extent and in the manner customary for similar businesses.
7.14 Additional Credit Parties.
-------------------------
(a) Except for the Subsidiaries of HTS, which shall not be required to
become Guarantors hereunder, where Domestic Subsidiaries that are not Guarantors
hereunder (the "Non-Guarantor Subsidiaries") shall, at any time, individually in
--------------------------
any instance, qualify as a Significant Subsidiary, as of either the Amendment
Date or the end of the most recent fiscal quarter, then Borrower shall promptly
notify Administrative Agent thereof and cause such Non-Guarantor Subsidiaries to
be joined as Guarantors. In connection with any such joinder hereunder, Borrower
shall cause there to be delivered to Administrative Agent promptly, but in any
event within 30 days, (i) a Guaranty (or an amendment, supplement or joinder to
the existing Guaranty), and an amendment, supplement or joinder to the
Collateral Documents (including UCC financing statements), in form and substance
satisfactory to Administrative Agent, to join the applicable Domestic Subsidiary
as a Guarantor hereunder, and such other action necessary or advisable to cause
the Liens created by the Collateral Documents to be duly perfected by the filing
of appropriate financing statements, (ii) such supporting resolutions,
incumbency certificates, corporate formation and organizational documentation
and opinions of counsel as Administrative Agent may reasonably request, and
(iii) stock certificates and related pledge agreements and pledge joinder
agreements evidencing the pledge of 100% of the capital stock or
47
other equity interest of such Significant Subsidiary, together with undated
stock transfer powers executed in blank.
(b) Where there shall exist any Foreign Subsidiary which qualifies as a
Significant Subsidiary and is directly owned by the Borrower or a Domestic
Subsidiary, as of the end of the most recent fiscal quarter, then Borrower shall
promptly notify Administrative Agent thereof and cause to be delivered to
Administrative Agent promptly, but in any event within 30 days, (i) stock
certificates and related pledge agreements and pledge joinder agreements
evidencing the pledge of 65% of the voting capital stock or other equity
interest of such Foreign Subsidiary, together with undated stock transfer powers
executed in blank, and (ii) such supporting resolutions, incumbency
certificates, corporate formation and organizational documentation and opinions
of counsel as Administrative Agent may reasonably request, in connection
therewith.
SECTION 8
NEGATIVE COVENANTS OF BORROWER
8. Borrower covenants and agrees that so long as the credit hereby granted
shall remain available in whole or in part or until the full and final payment
of all indebtedness incurred hereunder, unless Majority Banks waive compliance
in writing:
8.1 Indebtedness. The Borrower will not, nor will it permit any other
------------
Credit Party to, create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness existing or arising under this Agreement or the other
Loan Documents;
(b) Indebtedness of up to $2.0 billion of principal owing under that
Revolving Credit Agreement dated as of October 1, 2001 (as amended and
modified, the "GMAC Credit Agreement") between the Borrower, as borrower,
---------------------
and General Motors Acceptance Corporation ("GMAC"), as lender, consisting
----
of up to $500 million of principal in revolving credit financing evidenced
by a promissory note in the principal amount of $500 million (as amended
and modified, the "GMAC Shared Collateral Note") to be secured by the same
---------------------------
collateral securing the loans and obligations under this Agreement and the
remaining amount of such financing evidenced by a promissory note in the
principal amount of $1.5 billion (as amended and modified, the "GMAC Cash
---------
Secured Note") to be secured by funds advanced by the Borrower to GMAC
------------
pursuant to that certain Loan Set-Off and Security Agreement dated as of
October 1, 2001 (as amended and modified, the "GMAC Security Agreement"),
-----------------------
with such funds being held on deposit in the GMAC Credit Balance Account,
such Credit Balance Account being pledged for the exclusive benefit of GMAC
(or subsequent holder of the loans and obligations under the GMAC Credit
Agreement), together with the guaranty of the GMAC Shared Collateral Debt
by certain subsidiaries of the Borrower;
(c) Indebtedness of the Borrower and the other Credit Parties existing
on the Amendment Date and set forth on Schedule 8.1, and renewals,
------------
refinancings and
48
extensions thereof on then applicable market terms and conditions (except
in the case of Indebtedness owing to GMAC which shall be on the terms in
the GMAC Credit Agreement);
(d) purchase money Indebtedness (including obligations in respect of
capital leases but excluding Synthetic Leases) hereafter incurred by the
Borrower or any of its Subsidiaries to finance the purchase of fixed assets
provided that (i) such Indebtedness when incurred shall not exceed the
--------
purchase price of the asset(s) financed; and (ii) no such Indebtedness
shall be refinanced for a principal amount in excess of the principal
balance outstanding thereon at the time of such refinancing;
(e) up to $140 million in the aggregate of obligations of the Borrower
and its Subsidiaries in respect of letters of credit issued after the
Amendment Date;
(f) obligations of the Borrower or any of the other Credit Parties
owing under interest rate, commodities and foreign currency exchange
protection agreements entered into in the ordinary course of business to
manage existing or anticipated risks and not for speculative purposes;
(g) unsecured intercompany Indebtedness owing by a Credit Party to a
member of the Consolidated Group;
(h) other Funded Debt in an aggregate principal amount of up to $100
million at any time;
(i) Support Obligations with respect to any Indebtedness permitted
under clauses (a) through (h) of this Section 8.1;
(j) Funded Debt of a Credit Party secured by Liens on the investments
described in Schedule 3.4(b)(ii), provided that no more than $25 million of
------------------- --------
such indebtedness shall have recourse to such Credit Party;
(k) Funded Debt of a Credit Party under notes issued in connection
with, or in anticipation of, the merger by the Borrower (or HEC Holdings,
Inc. a holding company formed to hold all of the capital stock of the
Borrower) with EchoStar Communications Corporation; and
(l) contracts for Indebtedness (but not the incurrence of such
Indebtedness, unless arrangements satisfactory to the Administrative Agent,
for the full and final payment of all Indebtedness incurred hereunder shall
have been made) to be incurred in connection with the consummation of the
transactions contemplated by the EchoStar Transaction Documents.
49
8.2 Financial Covenants.
-------------------
(a) Consolidated Net Worth. As of the end of each fiscal quarter,
----------------------
Consolidated Net Worth shall be not less than the sum of (i) $9.3 billion, (ii)
for each fiscal quarter ending after the Amendment Date, an amount equal to
fifty percent (50%) of Consolidated Net Income (but not less than zero) for such
fiscal quarter, such increases to be cumulative, and (iii) an amount equal to
one hundred percent (100%) of net proceeds received from Equity Transactions
occurring after the Amendment Date.
(b) Consolidated Leverage Ratio. As of the end of each fiscal quarter, the
---------------------------
Consolidated Leverage Ratio shall be not greater than:
Fiscal Quarter Ending
---------------------
March 31, 2002 6.0:1.0
June 30, 2002 6.75:1.0
September 30, 2002 6.75:1.0
December 31, 2002 6.0:1.0
(c) Consolidated Interest Coverage Ratio. As of the end of each fiscal
------------------------------------
quarter, the Consolidated Interest Coverage Ratio shall be not less than:
Fiscal Quarter Ending
---------------------
March 31, 2002 2.50:1.0
June 30, 2002 2.0:1.0
September 30, 2002 2.0:1.0
December 31, 2002 2.25:1.0
(d) Minimum Liquidity/Availability. The Borrower will maintain at all times
------------------------------
at least $150 million in the sum of (i) unrestricted and unencumbered cash and
Cash Equivalents on hand, and (ii) availability remaining under this Agreement
and availability under the GMAC Credit Agreement in excess of cash collateral in
the GMAC Credit Balance Account.
(e) Consolidated Capital Expenditures. Consolidated Capital Expenditures
---------------------------------
will not exceed:
Period
------
January 1, 2002 through March 31, 2002 $ 450,000,000
January 1, 2002 through June 30, 2002 $ 800,000,000
January 1, 2002 through September 30, 2002 $1,100,000,000
January 1, 2002 through December 5, 2002 $1,450,000,000
8.3 Liens. The Borrower will not, nor will it permit any other Credit Party
-----
to, contract, create, incur, assume or permit to exist any Lien with respect to
any of its property, whether now owned or after acquired, except for Permitted
Liens.
50
8.4 Nature of Business. The Borrower will not, nor will it permit the
------------------
Credit Parties taken as a whole to, substantively alter the character or conduct
of its or their business conducted as of the Amendment Date.
8.5 Merger and Consolidation, Dissolution and Acquisitions.
------------------------
(a) Except for the transactions contemplated in the EchoStar Transaction
Documents, the Credit Parties will not enter into any transaction of merger or
consolidation, except that:
(i) a Credit Party may be party to a transaction of merger or
consolidation with another Credit Party; provided that if the Borrower is a
--------
party to such transaction, it shall be the surviving entity;
(ii) a Foreign Subsidiary may be party to a transaction of merger or
consolidation with a Subsidiary of the Borrower; provided that (A) if a
--------
Domestic Subsidiary is a party thereto, it shall be the surviving entity
and if such Domestic Subsidiary is not already a Credit Party, it shall
execute and deliver such joinder agreements as may be necessary for
compliance with the provisions of Section 7.11, and (B) if a Foreign
Subsidiary is a party thereto and a Domestic Subsidiary is not a party
thereto, the surviving entity shall be a Foreign Subsidiary and the
Borrower and its Subsidiaries shall be in compliance with the requirements
of Section 7.11;
(iii) a Domestic Subsidiary of the Borrower may be a party to a
transaction of merger or consolidation with a Person other than a member of
the Consolidated Group; provided that (A) the surviving entity shall be a
--------
Domestic Subsidiary of the Borrower and shall execute and deliver such
joinder agreements as may be necessary for compliance with the provisions
of Section 7.11, (B) no Event of Default or Unmatured Event of Default
shall exist immediately after giving effect thereto, and (C) the
transaction shall otherwise constitute a Permitted Acquisition;
(iv) a Subsidiary of the Borrower may enter into a transaction of
merger or consolidation in connection with an Asset Disposition permitted
under Section 8.6; and
(v) a Credit Party may enter into a transaction of merger or
consolidation set forth in Schedule 8.5(a).
---------------
(b) Except as set forth in Schedule 8.5(b), the Credit Parties will not
---------------
dissolve, liquidate or wind up their affairs.
(c) No Credit Party shall make any Acquisition, unless after giving effect
to such acquisition, such Acquisition shall constitute both a Permitted
Acquisition and a Permitted Investment.
8.6 Asset Dispositions. The Borrower (I) will not sell or otherwise dispose
------------------
of the capital stock of PAS unless all shares owned by the Borrower, directly or
indirectly, are sold or
51
otherwise disposed of in such a transaction yielding minimum net cash proceeds
in an aggregate amount not less than the sum of the principal amount of Loan
Obligations hereunder and the principal amount of the GMAC Shared Collateral
Debt, and (II) will not nor will it permit any other Credit Party to, make any
other Asset Disposition, except for
(i) Asset Dispositions of up to $500 million in the aggregate from the
Amendment Date; provided that (A) not less than 85% of the sales proceeds
--------
shall be paid in cash on the date of sale, (B) no Event of Default or
Unmatured Event of Default shall exist after giving effect to any such sale
on a pro forma basis, and (C) the net cash proceeds from any such sale
shall be applied to the Loan Obligations hereunder as provided in Section
3.4(b)(ii);
(ii) the sale of Non-Core Assets with a net book tangible asset value
of up to $50 million in the aggregate from the Amendment Date, provided
--------
that (A) an Authorized Designee will deliver a certificate to the
Administrative Agent demonstrating that after giving effect to the sale on
a Pro Forma Basis the Consolidated Leverage Ratio will not increase, (B) no
Event of Default or Unmatured Event of Default shall exist after giving
effect to any such sale on a pro forma basis, and (C) the net cash proceeds
from any such sale that is an Asset Disposition shall be applied to the
Loan Obligations hereunder as provided in Section 3.4(b)(ii);
(iii) other Asset Dispositions with the consent of the Administrative
Agent and the Majority Banks;
(iv) Asset Dispositions resulting from the receipt of cash insurance
proceeds and condemnation awards; and
(v) Asset Dispositions described in Schedule 8.6.
------------
The parties agree any sale or disposition permitted by this Agreement shall
be made free and clear of the liens and encumbrances securing the loans and
obligations under this Agreement and the other loans and obligations secured by
the same collateral. In connection with any sale or disposition permitted by
this Agreement, the Collateral Agent and the Administrative Agent will deliver,
promptly upon the request and at the expense of the Borrower, such directions,
confirmation and documentation as is necessary or appropriate to give effect to
the release of the liens and security interests in the property that is the
subject of the sale or disposition in order to give effect to the provisions of
this Section, including amendment, release and termination of UCC financing
statements, return of pledged stock certificates and the release of a Guarantor,
as applicable, from its guaranty obligations to give effect to the sale or
disposition.
8.7 Investments. The Borrower will not, nor will it permit any other Credit
-----------
Party to, make or permit to exist Investments, except for Permitted Investments.
8.8 Restricted Payments. Except as set forth in Schedule 8.8, the Borrower
------------------- ------------
will not make or declare, any Restricted Payment without the prior written
consent of the Majority Banks.
52
8.9 Modifications and Payments in respect of Funded Debt. None of the
----------------------------------------------------
Credit Parties will, except in connection with a refinancing, refunding or
disposition of assets permitted hereunder, make any prepayment, redemption,
defeasance or acquisition for value of (including, without limitation, by way of
depositing money or securities with the trustee with respect thereto before due
for the purpose of paying when due), or refund, refinance or exchange of any
Funded Debt (other than the Indebtedness under the Loan Documents and
intercompany Indebtedness permitted hereunder) other than (i) regularly
scheduled payments of principal and interest on such Funded Debt and (ii) in the
case of Funded Debt under the GMAC Credit Agreement, prepayments of principal
but only at any time when the Loan Obligations hereunder shall have been paid to
zero ($0) or, in the case of LOC Obligations, cash collateralized and the
Commitments under this Agreement shall have been terminated, provided that the
--------
foregoing shall not in any way impair the ability of GMAC to set-off against the
GMAC Credit Balance Account (or take other remedial action in respect of the
GMAC Credit Balance Account).
8.10 Transactions with Affiliates. Except as set forth on Schedule 8.10,
---------------------------- -------------
the Borrower will not, nor will it permit any other Credit Party to, enter into
or permit to exist any material transaction or series of transactions with any
shareholder, Subsidiary or Affiliate of such Person other than (a) transactions
between members of the Consolidated Group in the ordinary course of business,
(b) transactions permitted by Section 8.1, Section 8.5, Section 8.6, Section
8.7, or Section 8.8 and (c) except as otherwise specifically limited in this
Agreement, other transactions which are entered into in the ordinary course of
such Person's business on terms and conditions substantially as favorable to
such Person as would be obtainable by it in a comparable arms-length transaction
with a Person other than a shareholder, Subsidiary or Affiliate.
8.11 Fiscal Year. The Borrower will not, nor will it permit any other
-----------
Credit Party to, change its fiscal year without the prior written consent of the
Majority Banks.
8.12 Limitation on Restricted Actions. The Borrower will not, nor will it
--------------------------------
permit any other Credit Party to, directly or indirectly, create or otherwise
cause or suffer to exist or become effective any encumbrance or restriction on
the ability of any such Person to (a) pay dividends or make any other
distributions on its capital stock or other equity interest or with respect to
any other interest or participation in, or measured by, its profits, (b) pay any
Indebtedness or other obligation, (c) make loans, advances or capital
contributions, (d) sell, lease or otherwise transfer any of the properties or
assets subject to the Collateral Documents, or (e) act as a guarantor or xxxxx x
Xxxx on or a pledge of its assets, except for such encumbrances or restrictions
existing under or by reason of (i) this Agreement and the other Loan Documents,
(ii) pursuant to the terms of any purchase money Indebtedness permitted by
Section 8.1(d) to the extent such limitations relate only to the property that
is the subject of such financing, (iii) under the GMAC Credit Agreement, (iv)
under the credit agreement or other instrument governing Funded Debt issued
under Section 8.1(j) or 8.1(k) or the cash collateral permitted in respect of
letters of credit under clause (iii) of the definition of "Permitted Liens", (v)
under the EchoStar Transaction Documents and (vi) restrictions of Governmental
Authorities.
8.13 Ownership of Subsidiaries; Limitations on Borrower. The Borrower will
--------------------------------------------------
not, nor will it permit any other Credit Party to, (i) permit any Person (other
than the Borrower or any
53
wholly owned Subsidiary of the Borrower) to own any capital stock or other
equity interest of any Credit Party (other than the Borrower), except (A) to
qualify directors where required by applicable law or to satisfy other
requirements of applicable law with respect to the ownership of capital stock or
other equity interest of Foreign Subsidiaries or (B) as a result of or in
connection with a dissolution, merger, consolidation or disposition of a
Subsidiary permitted under Section 8.5 or Section 8.6, (ii) permit any Credit
Party (other than the Borrower) to issue any shares of preferred capital stock
or other equity interest or (iii) permit, create, incur, assume or suffer to
exist any Lien on any capital stock or other equity interest of any Credit Party
(other than the Borrower), except for Permitted Liens.
8.14 Sale Leasebacks. Except for transactions described in the second
---------------
proviso of clause (ix) of the definition of "Permitted Liens", which shall not
constitute a sale and leaseback transaction hereunder, the Borrower will not,
nor will it permit any other Credit Party to, enter into any sale and leaseback
transaction unless such sale and leaseback transaction is permitted by Section
8.1(d) and Section 8.6, and the net proceeds therefrom are applied to the Loans
hereunder as provided in Section 3.4(b)(ii) hereof.
SECTION 9
EVENTS OF DEFAULT
9.1 Events of Default. If one or more of the following described Events of
-----------------
Default shall occur:
(a) Borrower shall default in the due and punctual payment of (i) the
principal of any Loan or reimbursement obligation in respect of any drawing
under a Letter of Credit when due,(ii) the interest on any Loan within two
Business Days of its due date, (iii) any fee due hereunder within 10 Business
Days of its due date; or (iv) any other amount due from it hereunder within 30
Business Days of its due date; or
(b) Borrower or any of the other Credit Parties shall fail to perform or
observe any of the terms, provisions, covenants, conditions, agreements or
obligations contained herein (other than Section 7.3, and Sections 8.1 through
8.14,) and such failure shall continue for more than 20 days after written
notice from Administrative Agent to Borrower of the existence and character of
such failure to perform or observe; or
(c) Borrower or any of the other Credit Parties shall fail to perform or
observe any of the terms, provisions, covenants, conditions agreements or
obligations contained in Section 7.3 and Sections 8.1 through 8.14; or
(d) (i) Borrower or any of the other Credit Parties or PanAmSat
Corporation, a Delaware corporation (which solely for purposes of this clause
(d) shall be deemed to be included as and considered to be a "Credit Party")
shall become insolvent, or be unable, or admit in writing its inability, to pay
its debts as they become due; or (ii) Borrower or any other Credit Party shall
make an assignment for the benefit of creditors or to an agent authorized to
liquidate any substantial amount of its properties or assets; or (iii) Borrower
or any other Credit Party shall
54
file or have filed against it a petition in bankruptcy or seeking reorganization
or to effect a plan or other arrangement with creditors or winding up or
dissolution and such filing against it shall not be dismissed within 60 days
after the date of such filing; or (iv) Borrower or any other Credit Party shall
apply for or consent to the appointment of or consent that an order be made
appointing any receiver or trustee for any of its or their properties, assets or
business, or if a receiver or a trustee shall be appointed for all or a
substantial part of its or their properties, assets or business; or (v) an order
for relief shall be entered against Borrower or any other Credit Party under the
United States federal bankruptcy laws as now or hereafter in effect; or (vi)
Borrower or any other Credit Party shall take any action indicating its consent
to, approval of or acquiescence in, any of the foregoing; or
(e) Any representation or warranty made by Borrower herein or by the
Borrower or any of the other Credit Parties in any other Loan Document or any
certificate or financial or other statement heretofore or hereafter furnished by
Borrower or any of its officers to Administrative Agent or the Banks proves to
be in any material respect false or misleading as of the date when made, deemed
made or reaffirmed; or
(f) Any final judgment, decrees, writs of execution, attachments or
garnishments or any Liens, or any other legal processes shall be issued or
levied against any of the assets or property of Borrower or any of the other
Credit Parties (and shall not have been vacated, discharged or stayed within
thirty days) in amounts which in the aggregate would result in a Material
Adverse Effect (without limiting the generality of the foregoing, a judgment in
excess of $75,000,000 in the aggregate shall, for purposes only of this Section
9.1(f), be deemed to result in a Material Adverse Effect); provided, however,
-------- -------
that such aggregate amount shall include only amounts in excess of (i) insurance
coverage therefor and (ii) reserves on the books of Borrower or any of the other
Credit Parties therefore; provided, further, that such aggregate amount shall
--------
not include any amounts with respect to matters subject to appeal conducted in
good faith and diligently pursued or other further legal process by Borrower or
any of the other Credit Parties, or any amounts with respect to any such legal
process which Borrower or any of the other Credit Parties has detached from such
property by posting of a bond or equivalent process; or
(g) All, or substantially all, of the assets and property of Borrower or
any of the other Credit Parties shall be condemned, seized or otherwise
appropriated; or
(h) Any fact or circumstance (including without limitation a Reportable
Event), which results in, or which Majority Banks determine in good faith could
reasonably be expected to result in, the termination of any Plan of Borrower,
any of its Subsidiaries or any ERISA Affiliate by the Pension Benefit Guaranty
Corporation or the appointment by an appropriate United States District Court of
a trustee to administer any such Plan, shall occur and shall continue for 30
days after written notice of such determination shall have been given to
Borrower or any of its Subsidiaries by Administrative Agent, or a trustee shall
be appointed by the appropriate United States District Court to administer any
Plan of Borrower or any of its Subsidiaries, or the Pension Benefit Guaranty
Corporation shall institute proceedings to terminate any Plan of Borrower or any
of its Subsidiaries or to appoint a trustee to administer any such Plan and,
upon the occurrence of any of the foregoing, the aggregate amount of the
55
unfunded vested liability for the benefits guaranteed by the Pension Benefit
Guaranty Corporation under all such Plans and the present value of any
Withdrawal Liability which remains unpaid is reasonably estimated to be in
excess of $75,000,000 and such liability is not covered by insurance; or
(i) Borrower or any of the other Credit Parties (i) fails to make any
payment (or otherwise satisfy) in respect of any indebtedness for money borrowed
when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) and such failure continues after the applicable grace or
notice period, if any, specified in the document relating thereto on the date of
such failure; or (ii) an event of default shall occur which permits the
acceleration of indebtedness for money borrowed under any other agreement,
contract, indenture, document or instrument executed, or which may be executed,
by Borrower or any of the other Credit Parties, which failure or event of
default has not been waived or cured; provided, however, that no Event of
Default shall exist hereunder if the amount of the indebtedness which is not
paid or may be accelerated with respect to the defaulted obligations shall not
exceed in the aggregate $75,000,000; or
(j) (i) Any Credit Party shall default in the due performance or observance
of any term, covenant or agreement in any of the other Loan Documents (and such
failure shall continue for 20 days after notice thereof) or (ii) except as a
result of or in connection with a dissolution, merger or disposition of a
Subsidiary permitted under Section 8.5 or Section 8.6, any Loan Document shall
fail to be in full force and effect or to give the Administrative Agent and/or
the Lenders the Liens, rights, powers and privileges purported to be created
thereby, or any Credit Party shall so state in writing; or
(k) Except as the result of or in connection with a dissolution, merger or
disposition of a Subsidiary permitted under Section 8.5 or Section 8.6, the
guaranty given by any Guarantor (including any Person that becomes a Guarantor
after the Amendment Date in accordance with Section 7.14) or any provision
thereof shall cease to be in full force and effect, or any Guarantor (including
any Person that becomes a Guarantor after the Amendment Date in accordance with
Section 7.14) or any Person acting by or on behalf of such Guarantor shall deny
or disaffirm such Guarantor's obligations under such guaranty, or any Guarantor
shall default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to any guaranty (and
such failure shall continue for 20 days); or
(l) Any sale, spin-off, disposition or other transaction whereby, (i) GM
will no longer beneficially own directly or indirectly at least 51 percent (51%)
of the issued and outstanding capital stock of Borrower having voting power
under ordinary circumstances to elect directors of Borrower shall have occurred
or (ii) the Borrower will no longer beneficially own directly or indirectly at
least 51 percent (51%) of the issued and outstanding capital stock of PanAmSat
Corporation, a Delaware corporation, having voting power under ordinary
circumstances to elect directors of PanAmSat Corporation shall have occurred;
then (a) automatically upon the occurrence of an Event of Default under Section
9.1(d), the Commitments shall immediately terminate, and all Loans and other
liabilities and obligations outstanding under this Agreement shall, without
presentment, demand, protest, or notice of any
56
kind, all of which are hereby expressly waived, be forthwith due and payable, if
not herein otherwise then due and payable, together with all costs and expenses
(including break and funding costs and other costs in connection with the
relending, reborrowing, funding or other employing of funds) incurred by the
Banks as a result thereof, anything herein or in any agreement, contract,
indenture, document or instrument contained to the contrary notwithstanding; and
(b) at any time after the occurrence of an Event of Default other than under
Section 9.1(d), and in each and every such case, unless such Event of Default
shall have been remedied by Borrower to the satisfaction of Majority Banks or
waived in writing by Majority Banks (except in the case of an Event of Default
under Section 9.1.(a), the waiver of which shall require the consent of all the
Banks), Administrative Agent may, with the consent of the Majority Banks, or
shall, upon the direction of Majority Banks, immediately terminate the
Commitments, whereupon the same shall be cancelled and reduced to zero and any
Loan Request given in respect of a Borrowing Date occurring on or after the date
of such notice of cancellation shall cease to have effect and all Loans and all
accrued interest thereon and all other liabilities and obligations (including an
obligation to pay over cash collateral in the amount of LOC Obligations)
outstanding under this Agreement shall, thereupon, without presentment, demand,
protest, or notice of any kind, all of which are hereby expressly waived, be
forthwith due and payable, if not otherwise then due and payable, together with
all reasonable costs and expenses (including break and funding costs and other
costs in connection with the relending, reborrowing, funding or other employing
of funds) incurred by the Banks as a result thereof, anything herein or in any
other agreement, contract, indenture, document or instrument contained to the
contrary notwithstanding. Thereafter any Bank or the Banks may immediately, and
without expiration of any period of grace, enforce payment of all liabilities
and obligations of Borrower under this Agreement.
9.2 Recovery of Amounts Due. If any amount payable hereunder is not paid as
-----------------------
and when due, Borrower hereby authorizes Administrative Agent, each Bank and
their respective Affiliates to proceed, to the fullest extent permitted by
applicable law, without prior notice, by right of set-off, banker's lien or
counterclaim, against any moneys or other assets of Borrower in any currency
that may at any time be in the possession of Administrative Agent or any of its
Affiliates or such Bank or any of its Affiliates, at any branch or office
thereof, to the full extent of all amounts payable to Administrative Agent and
the Banks hereunder. Any Bank that so proceeds or that has an Affiliate that so
proceeds shall forthwith give notice to Administrative Agent of any action taken
by such Bank or Affiliate pursuant to this Section 9.2.
9.3 Rights Cumulative. The rights of Administrative Agent and the Banks
-----------------
provided for herein are cumulative and are not exclusive of any other rights,
powers, privileges or remedies provided by law or in equity.
SECTION 10
THE BANKS
10.1 Administration of Loan. The general administration of the Loans shall
----------------------
be by Administrative Agent and shall be governed by the provisions set forth in
Exhibit C attached hereto and incorporated herein by reference.
---------
57
10.2 Representations By Banks. Each Bank hereby represents that it will
------------------------
make each Loan hereunder in the ordinary course of its business and not with a
view to engage in any distribution of any evidence of indebtedness to the public
and any participation or disposition of any Note shall not, without the consent
of Borrower, require Borrower to file a registration statement with the
Securities and Exchange Commission or apply to qualify any Note under the blue
sky law of any state; provided, however, disposition of any evidence of
indebtedness held by such Bank shall at all times be within its exclusive
control subject only to the provisions of Section 11.11 and Section 10 of
Exhibit C.
---------
SECTION 11
MISCELLANEOUS PROVISIONS
11.1 Amendments and Waivers. No amendment or waiver of any provision of
----------------------
this Agreement, and no consent with respect to any departure by Borrower
therefrom, shall be effective unless the same shall be in writing and signed by
Majority Banks (or by the Administrative Agent at the written request of
Majority Banks) and the Borrower and acknowledged by Administrative Agent, and
then any such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no such
waiver, amendment, or consent shall, unless in writing and signed by all Banks
and Borrower and acknowledged by Administrative Agent, do any of the following:
(a) increase or extend the Commitment of any Bank (or reinstate any Commitment
terminated pursuant to Section 9.1); (b) postpone or delay any date fixed by
this Agreement for any payment of principal, interest, fees or other amounts due
to the Banks (or any of them) hereunder; (c) reduce the principal of, or the
rate of interest specified herein on any Loan, or any fees or other amounts
payable hereunder; (d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required for the Banks
or any of them to take any action hereunder; or (e) amend this Section or any
provision herein providing for consent or other action by all Banks; provided,
--------
further, that no amendment, waiver or consent shall, unless in writing and
-------
signed by Administrative Agent in addition to Majority Banks or all Banks, as
the case may be, affect the rights or duties of Administrative Agent under this
Agreement or rights or privileges thereunder.
11.2 Notices. All notices, payments, requests, reports, information,
-------
demands and other communications which any party hereto may desire, or may be
required, to give or make to any other party hereto, shall (unless otherwise
permitted as a telephonic notice or request hereunder) be given by mailing the
same, postage prepaid, or by facsimile transmission, or by hand delivery or
courier, to each party at its address set forth in Exhibit D attached hereto and
---------
incorporated herein by reference, or to such other address as may, from time to
time, be specified in writing by Borrower or any Bank. Such communications shall
be deemed to have been duly given and received in the case of mail when sent by
pre-paid certified or registered mail correctly addressed to the addressee, in
the case of facsimile transmission, when transmission has been sent, in the case
of hand delivery or courier, when received. Administrative Agent may rely and
act upon any Loan Request made by telephonic or facsimile instructions to
Administrative Agent by any Person purporting to be an authorized Person of
Borrower, and Borrower shall be
58
unconditionally and absolutely estopped from denying the authenticity and
validity of any transaction or act made by Administrative Agent or any Bank in
reliance thereon. Each party hereto shall promptly confirm by facsimile any
telephone communication made by it to another pursuant to this Agreement but the
absence of such confirmation shall not affect the validity of such
communication, which shall be effective upon receipt. If there is any conflict
between any telephonic communication and a written confirmation, the written
communication shall govern; provided, however, that the recipient of such
communication shall be held harmless by all parties hereto with respect to any
action taken in reliance on the telephonic communication prior to the time such
recipient receives and has had reasonable time to review the subsequent written
confirmation and initiate such corrective action as the recipient deems
reasonable under the circumstances.
11.3 Waiver. Neither the failure of, nor any delay on the part of, any
------
party hereto in exercising any right, power or privilege hereunder, or under any
agreement, contract, indenture, document or instrument mentioned herein, shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege hereunder, or under any agreement, contract,
indenture, document or instrument mentioned herein, preclude other or further
exercise thereof or the exercise of any other right, power or privilege; nor
shall any waiver of any right, power, privilege or default hereunder, or under
any agreement, contract, indenture, document or instrument mentioned herein,
constitute a waiver of any other right, power, privilege or default or
constitute a waiver of any other default of the same or of any other term or
provision. All rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies otherwise provided by law.
11.4 New York Law. The interpretation, enforcement and effect of this
------------
Agreement, the Loans and any agreements, contracts, indentures, documents or
instruments delivered in accordance herewith, shall be governed and controlled
in all respects by and construed according to the substantive laws of the State
of New York, to the jurisdiction of whose courts the parties hereto hereby agree
to submit.
11.5 Headings. The headings set forth herein are solely for the purpose of
--------
identification and shall not be construed as a part of the sections or
subsections which they head.
11.6 [Intentionally Omitted.]
11.7 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the different parties hereto on separate counterparts, and
all of said counterparts taken together shall constitute one and the same
instrument.
11.8 Written Disclosure. Wherever written disclosure by Borrower to Banks
------------------
is required or permitted by this Agreement, written disclosure to Administrative
Agent by Borrower shall constitute such disclosure.
11.9 Singular; Plural. Whenever used herein, the singular number shall
----------------
include the plural, the plural the singular, and the use of any gender shall be
applicable to all genders.
59
11.10 Illegality. The illegality or unenforceability of any provision of
----------
this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
11.11 Assignments. This Agreement shall bind and inure to the benefit of
-----------
the parties hereto and their respective successors and assigns. No party hereto
may assign or transfer all or any part of its rights and obligations hereunder,
except that:
(a) Any Bank may, with the prior written consent of Borrower at all times
other than during the existence of an Event of Default, the Administrative Agent
and the Issuing Bank, which consents shall not be unreasonably withheld, at any
time assign and delegate to one or more Eligible Assignees (provided that no
written consent of Borrower or the Administrative Agent shall be required in
connection with any assignment and delegation by Bank to an Approved Bank
Affiliate of such Bank or another Bank), all or any part of the respective Loan
Obligations and the Commitments relating thereto and the other rights and
obligations of such Bank hereunder. Upon execution of a Notice of Assignment and
Acceptance by such Eligible Assignee in which it agrees to abide by all of the
terms, conditions and obligations applicable to a Bank herein and in the
Intercreditor Agreements and to have the Commitments as specified in such Notice
of Assignment and Acceptance, such Eligible Assignee shall be deemed a Bank
hereunder to the same extent as if it were a signatory hereto and, thereafter,
such Eligible Assignee shall for all purposes be considered a "Bank" hereunder.
----
Administrative Agent shall be entitled to a $2,500 processing fee, payable by
the assignor, with respect to any such assignment by a Bank.
(b) Subject to Section 11.16, Borrower authorizes each Bank and each
Arranger to disclose to any prospective assignee and assignee any and all
information in such Bank's or such Arranger's possession concerning Borrower,
this Agreement and any collateral.
(c) Notwithstanding anything to the contrary contained herein, any Bank (a
"Granting Bank") may grant to a special purpose funding vehicle (an "SPC"),
------------- ---
identified as such in writing from time to time by the Granting Bank to
Administrative Agent and Borrower, the option to provide to Borrower all or any
part of any Loan Obligations that such Granting Bank would otherwise be
obligated to make to the Borrower pursuant to this Agreement; provided that (i)
--------
nothing herein shall constitute a commitment by any SPC to make any Extension of
Credit, (ii) if an SPC elects not to exercise such option or otherwise fails to
provide all or any part of such Extension of Credit, the Granting Bank shall be
obligated to make such Extension of Credit pursuant to the terms hereof. The
making of an Extension of Credit by an SPC hereunder shall utilize the
Commitment of the Granting Bank to the same extent, and as if, such Extension of
Credit were made by such Granting Bank. Each party hereto hereby agrees that no
SPC shall be liable for any indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the Granting Bank). In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior indebtedness of any SPC, it will not institute against, or
join any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency
60
or liquidation proceedings under the laws of the United States or any state
thereof. In addition, notwithstanding anything to the contrary contained in this
Section, any SPC may (i) with notice to, but without the prior written consent
of, Borrower and Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loans to the Granting
Bank or to any financial institutions (consented to by Borrower and
Administrative Agent) providing liquidity and/or credit support to or for the
account of such SPC to support the funding or maintenance of the Loan
Obligations and (ii) subject to the provisions of Section 11.16 hereof, disclose
on a confidential basis any non-public information relating to its Loan
Obligations to any rating agency, commercial paper dealer or provider of any
surety, guarantee or credit or liquidity enhancement to such SPC. This section
may not be amended without the written consent of the SPC.
11.12 Obligations Several. The obligations of each Bank under this
-------------------
Agreement are several. Neither Administrative Agent nor any Bank shall be liable
for the failure of any other Bank to perform its obligations under this
Agreement.
11.13 Participations. Any Bank may at any time sell, or grant
--------------
participations in all or part of its Commitments or any Loan or Loans made to
Borrower under this Agreement to any other Person, other than an individual (a
"Participant"); provided, however, no Bank may be relieved of its obligations
-----------
under this Agreement except with the consent of Borrower and Administrative
Agent. Any such sale or grant of a participation is subject to the following
conditions:
(a) Administrative Agent and Borrower may, for all purposes of this
Agreement, deem and treat a Bank party to this Agreement as the owner of such
Bank's Loans hereunder for all purposes hereof until a written notice of the
sale or participation shall have been received by Administrative Agent, together
with Borrower's consent to treat such Participant as owner of such Loan.
(b) Subject to Section 11.16, Borrower authorizes each Bank and the
Administrative Agent to disclose to any prospective Participant and to any
Participant any and all information in such Bank's or the Administrative Agent's
possession concerning Borrower, this Agreement and any collateral.
(c) Any agreement pursuant to which a Bank grants a participation in its
rights with respect to any Loan or Loans shall provide that, with respect to any
such Loan or Loans, such Bank shall retain the sole right and responsibility to
exercise the rights of a Bank under this Agreement including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement and the right to take action to declare any amount
due and payable pursuant to Section 9; provided that such participation
agreement may provide that such Bank will not agree to any modification,
amendment or waiver of this Agreement without the consent of the Participant if
such modification, amendment or waiver would (i) increase the amount of the
Total Commitments or change the Commitments of such Bank, (ii) reduce interest,
principal or fees owing to such Bank hereunder, (iii) extend the fixed date on
which any sum is due hereunder, or (iv) release or subordinate any collateral.
61
(d) Except as provided in this Section 11.13, no recipient of a
participation in a Loan or Loans of any Bank shall have any rights under this
Agreement other than to receive payment of principal of, and interest on the
Loans and of such other amounts as Banks are entitled to receive pursuant to
Sections 3.1, 3.2, 3.3, and 3.4 of this Agreement and subject to the
Intercreditor Agreements; provided, however such recipients shall be entitled to
receive pursuant to Sections 3.1, 3.2 and 3.3 only the lesser of (i) the amount
that the Bank from which the recipient received its participation would have
received had such Bank not transferred an interest in its Loans to such
recipient and (ii) the additional costs actually incurred by such recipient; and
any demand by a Participant for payment hereunder shall certify that the amount
demanded does not exceed the amount Participant is entitled to receive under
this subsection (d).
(e) Notwithstanding any other provision set forth in this Agreement, any
Bank may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Loans owing to
it) in favor of any Federal Reserve Bank in accordance with Regulation A of the
Board of Governors of the Federal Reserve System.
11.14 Fees and Expenses. Borrower agrees to pay on demand (a) to
-----------------
Administrative Agent all reasonable costs, expenses and attorneys' fees
(including allocated costs for in-house legal services) incurred by
Administrative Agent in connection with the preparation and administration of
this Agreement and any documents including any amendments, waivers, or other
modifications and (b) all reasonable costs, expenses and attorneys' fees
(including allocated costs for in-house legal services) incurred by
Administrative Agent and Banks in connection with the enforcement of this
Agreement and any instrument or agreement required hereunder and in connection
with any refinancing or restructuring of the Loans in the nature of a
"work-out"; provided, however that, in addition to costs of Administrative
--------
Agent's in-house counsel, Borrower shall be obligated to pay for the costs of no
more than one counsel for Administrative Agent and all Banks (without prejudice
to any Bank's right to engage additional counsel at its own cost and expense)
unless any Bank shall in good faith reasonably determine that there is a
conflict of interest that causes it to be reasonably necessary for such Bank to
be represented by separate counsel.
11.15 Indemnity. Borrower agrees to indemnify the Administrative Agent,
---------
each Arranger, each Bank and their respective directors, officers, agents and
employees (collectively, the "Indemnitees") from and hold each of them harmless
-----------
against any and all losses, liabilities, claims, damages or expenses reasonably
incurred by any of them arising out of or by reason of any investigation by
governmental or judicial authorities or being made a party to any litigation or
other similar proceeding related to any use made or proposed to be made by
Borrower of the proceeds of any Loan for the acquisition of any other Person
including, without limitation, the reasonable fees and disbursements of counsel
(including allocated costs for in-house legal services) incurred in connection
with any such investigation, litigation or other proceeding; provided, however,
-------- -------
that Borrower shall have no obligation to indemnify or pay for the costs and
expenses of more than one counsel for the Indemnitees, unless any Indemnitee
shall in good faith reasonably determine that there is a conflict of interest
that causes it to be reasonably necessary for any Indemnitees to be represented
by other counsel. Counsel chosen to represent any Indemnitee pursuant to the
previous sentence shall be reasonably satisfactory to Borrower. The obligations
of Borrower under this Section shall survive the termination of this Agreement.
62
11.16 Confidentiality. In consideration of Borrower furnishing Confidential
---------------
Information (as defined below) to the Banks, the Arrangers and the
Administrative Agent (collectively, the "Recipients") and their respective
----------
directors, officers and employees (collectively, the "Representatives"), each
---------------
Recipient agrees for itself that:
(a) Such Recipient shall keep the Confidential Information confidential and
shall not, without Borrower's prior written consent, disclose it in any manner
whatsoever, in whole or in part, and shall not use the Confidential Information
other than in connection with this Agreement. Each Recipient agrees to reveal
the Confidential Information only to its Representatives, bank affiliates,
auditors, counsel and other advisors, representatives or agents who need to know
the Confidential Information for the purpose of this Agreement, who are informed
by such Recipient of the confidential nature of the Confidential Information and
who shall agree to act in accordance with the terms and conditions of this
section. Each Recipient shall be responsible for any breach of this Section by
its Representatives.
(b) Without Borrower's prior written consent, no Recipient shall disclose
to any Person the fact that the Confidential Information has been made
available, that such Recipient is entering into this Agreement, or any other
facts with respect to this Agreement.
(c) Upon payment in full of all obligations owing to a Recipient and
termination of such Recipient's Commitments, if any, hereunder, copies of the
Confidential Information shall be returned to Borrower immediately upon its
request, except for that portion of the information which consists of analyses,
compilations, forecasts, studies or other documents prepared by a Recipient or
its Representatives based on Confidential Information, which portion shall
either be destroyed (as evidenced by a certificate of destruction signed by a
duly authorized offer of such Recipient) or held by such Recipient and kept
confidential and subject to the terms of this section; provided that such
--------
Recipient shall not be required to return or destroy Confidential Information to
the extent such Recipient reasonably determines that its retention of such
Confidential Information is required by applicable law or regulation. Any oral
Confidential Information shall continue to be subject to the terms of this
Section.
(d) Confidential Information shall not include such portions of the
information furnished to a Recipient which (i) are or become generally available
to the public other than as a result of a disclosure by such Recipient or its
Representatives in violation of this Agreement, (ii) become available to such
Recipient on a non-confidential basis from a source (other than Borrower or its
Representatives) which is not known by such Recipient to be prohibited from
disclosing such information to such Recipient, or (iii) were in such Recipient's
possession prior to being furnished to such Recipient or its Representatives
provided that the source of such information was not known by such Recipient to
be prohibited from disclosing the information to such Recipient.
(e) Except as otherwise expressly set forth in this Agreement, each
Recipient acknowledges that neither Borrower nor any of its Representatives
makes any express or implied representation or warranty as to the accuracy or
completeness of the information furnished to such Recipient, and that neither
Borrower nor any of its Representatives shall have any liability
63
resulting from the use of the information furnished to any Recipient, errors
therein or omissions therefrom.
(f) In the event any Recipient or any person to whom it transmits the
Confidential Information pursuant to this Agreement becomes legally compelled to
disclose any of the information, such Recipient shall, to the extent permitted
by law, provide Borrower with prompt written notice thereof so that the Borrower
may seek a protective order or other appropriate remedy and/or waiver such
Recipient's compliance with the provisions of this section, In the event that
such protective order or other remedy is not obtained, or that Borrower waives
any Recipient's compliance with the provisions of this section, such Recipient
may furnish only that portion of the Confidential Information which it is
advised by written opinion of counsel that the disclosure thereof is legally
required, and shall exercise its best efforts to obtain reliable assurance that
confidential treatment will be accorded the Confidential Information so
disclosed.
(g) Notwithstanding the foregoing, a Recipient may (i) disclose any
Confidential Information to bank examiners; (ii) use any Confidential
Information in connection with the management, supervision and enforcement of
this Agreement, including the enforcement of such Recipient's rights under any
agreement executed in connection therewith; (iii) disclose any Confidential
Information in connection with any litigation or dispute involving any such
Person or the Borrower and related to this Agreement or to any use of proceeds
of the Loans; (iv) disclose any Confidential Information to other Recipients;
and (v) disclose Confidential Information to prospective assignees and
Participants and assignees and Participants pursuant to Sections 3.8, 11.11(b)
and 11.13(b); provided, further, that in each of the foregoing cases, such
Person shall use its best efforts to ensure that any such disclosure will be
made under procedures reasonably calculated to maintain the confidentiality of
such Confidential Information.
For purposes of this Section, "Confidential Information" means information
------------------------
relating to the business, operation or technology of Borrower or its affiliates
which Borrower has furnished to the Banks, the Arrangers, the Administrative
Agent, or their Representatives which is either non-public, confidential or
proprietary in nature, together with copies and other reproductions thereof, and
analyses, compilations, forecasts, studies or other documents prepared by any
Banks or its Representatives which contain or otherwise reflect such
information.
This section shall survive termination of the Agreement.
11.17 [Intentionally Omitted.]
11.18 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT HEREBY
--------------------------------
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH
RESPECT TO THIS AGREEMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
64
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
[remainder of page intentionally left blank]
65
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
in New York, New York as of the date first hereinabove written.
XXXXXX ELECTRONICS
CORPORATION
By:
----------------------------------------
Name:
Title:
BANK OF AMERICA, N.A., as
Administrative Agent
By:
----------------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as
Syndication Agent and a Bank
By:
----------------------------------------
Name:
Title:
CITICORP USA, INC., as Documentation
Agent and a Bank
By:
----------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as
Documentation Agent and a Bank
By:
----------------------------------------
Name:
Title:
BANK OF AMERICA, N.A., as a Bank
By:
----------------------------------------
Name:
Title:
BANKERS TRUST COMPANY
By:
----------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., LOS ANGELES AGENCY
By:
----------------------------------------
Name:
Title:
THE MITSUBISHI TRUST & BANKING
CORPORATION, NEW YORK BRANCH
By:
----------------------------------------
Name:
Title:
NATIONSBANK OF TEXAS, N.A.
By:
----------------------------------------
Name:
Title:
TORONTO-DOMINION (TEXAS), INC.
By:
----------------------------------------
Name:
Title:
BANCA DI ROMA - SAN XXXXXXXXX
XXXXXX
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
----------------------------------------
Name:
Title:
CIBC INC.
By:
----------------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:
----------------------------------------
Name:
Title:
DEUTSCHE BANK AG NEW YORK
AND/OR CAYMAN ISLANDS
BRANCHES
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
BANK ONE, N.A.
By:
-----------------------------------------
Name:
Title:
ALLFIRST BANK
By:
----------------------------------------
Name:
Title:
THE FUJI BANK, LIMITED LOS ANGELES
AGENCY
By:
----------------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED LOS ANGELES AGENCY
By:
----------------------------------------
Name:
Title:
ISTITUTO BANCARIO SAN
PAOLO DI TORINO SpA
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
----------------------------------------
Name:
Title:
