EXECUTION COPY
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT dated as of June 27, 2003 (this "AMENDMENT") to the
Amended and Restated Credit Agreement dated as of December 21, 2001 (as amended
by the First Amendment dated as of March 31, 2003 (the "FIRST AMENDMENT"), the
"CREDIT AGREEMENT") among LORAL SPACECOM CORPORATION, a Delaware corporation
(the "BORROWER"), the banks and other financial institutions party thereto (the
"BANKS") and BANK OF AMERICA, N.A., as administrative agent for the Banks (the
"ADMINISTRATIVE AGENT") and as Issuing Bank.
W I T N E S S E T H :
WHEREAS, Space Systems/Loral, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Borrower ("SS/L"), and INTELSAT LLC ("INTELSAT")
are parties to a Contract No. Intel-1700 dated as of March 18, 1997 (as amended,
the "EXISTING INTELSAT 1700 CONTRACT") and a Contract No. Intel-683 dated as of
October 4, 1988 (as amended, the "EXISTING INTELSAT 683 CONTRACT" and, together
with the Existing Intelsat 1700 Contract, the "EXISTING INTELSAT CONTRACTS");
WHEREAS, Intelsat has assigned the INTELSAT VII (the "SPACECRAFT") and the
Spacecraft payment obligations pursuant to the Existing Intelsat 683 Contract,
including certain performance and incentive payments in the future in relation
to the Spacecraft, to New Skies Satellites N.V. (the "NEW SKIES PAYMENTS");
WHEREAS, pursuant to the Existing Intelsat Contracts (i) SS/L is entitled
to receive from Intelsat certain performance and incentive payments in the
future in relation to the satellites described therein (not including the New
Skies Payments, the "ORBITAL PAYMENTS") and (ii) SS/L is liable to Intelsat for
loss of redundancy, certain on-orbit events, failure to support anomaly support
and certain other future events in relation to such satellites (not including
the liabilities relating to the Spacecraft, the "INTELSAT CONTRACT DAMAGES");
WHEREAS, in connection with the Existing Intelsat Contracts, SS/L and
Alcatel Space Industries ("ALCATEL") have entered into a Firm Fixed Price
Subcontract, S-612837-RJW, dated as of March 18, 1997 (as amended, the "EXISTING
ALCATEL RJW SUBCONTRACT"), a Firm Fixed Price Subcontract, SC-995212-AK, dated
as of October 4, 1988 (as amended, the "EXISTING ALCATEL AK
SUBCONTRACT") and a Firm Fixed Price Subcontract, KS-274516-S, dated as of
September 16, 1992 (as amended, the "EXISTING ALCATEL S SUBCONTRACT" and,
together with the Existing Alcatel RJW Subcontract and the Existing Alcatel AK
Subcontract, the "EXISTING ALCATEL SUBCONTRACTS"), pursuant to which Alcatel is
to be paid by SS/L a portion of the Orbital Payments (the "SUBCONTRACTOR ORBITAL
PAYMENTS"; the balance of the Orbital Payments is referred to herein as the
"SS/L ORBITAL PAYMENTS");
WHEREAS, SS/L and Intelsat desire to enter into an Amendment No. 7 (the
"INTELSAT 1700 AMENDMENT") to the Existing Intelsat 1700 Contract and an
Amendment No. 16 (the "INTELSAT 683 AMENDMENT") to the Existing Intelsat 683
Contract (as so amended, the Existing Intelsat Contracts are referred to herein
as the "INTELSAT CONTRACTS"), and SS/L and Alcatel desire to enter into an
Amendment No. 6 (the "ALCATEL RJW SUBCONTRACT AMENDMENT") to the Existing
Alcatel RJW Subcontract and an Amendment No. 8 (the "ALCATEL AK SUBCONTRACT
AMENDMENT" and, together with the Intelsat 1700 Amendment, the Intelsat 683
Amendment and the Alcatel RJW Subcontract Amendment, the "ORBITALS AMENDMENTS")
to the Existing Alcatel AK Subcontract (as so amended, the Existing Alcatel
Subcontracts are referred to herein as the "ALCATEL SUBCONTRACTS");
WHEREAS, pursuant to the Orbitals Amendments, (i) SS/L agrees to sell to
Intelsat the SS/L Orbital Payments for $60,000,000 in cash, $5,000,000 of which
will be deposited directly in the Intelsat Escrow Account (as described below),
(ii) SS/L agrees to assign to Alcatel all of its right, title and interest in
the Subcontractor Orbital Payments, (iii) SS/L agrees to maintain a balance of
at least $5,000,000 (the "ESCROW MINIMUM BALANCE") in addition to the amount of
any claims of Intelsat Contract Damages that are subject to a good faith dispute
(the "FROZEN FUNDS") in an escrow account held by Intelsat at a financial
institution acceptable to SS/L and Intelsat (the "INTELSAT ESCROW ACCOUNT") to
secure SS/L's performance of its obligations to pay the Intelsat Contract
Damages as they become due, with all amounts remaining in the Intelsat Escrow
Account upon termination of such obligations to be paid to SS/L, (iv) SS/L's
agreement to maintain the Escrow Minimum Balance in addition to any Frozen Funds
is to be evidenced by a contingent note of SS/L secured in an aggregate
principal amount of $45,000,000 in favor of Intelsat (the "SS/L CONTINGENT
NOTE") and (v) as security for SS/L's obligations to make payments under the
SS/L Contingent Note, SS/L agrees to deposit in a separate bank account (the
"WILDBLUE DEPOSIT ACCOUNT") all amounts (the "WILDBLUE RECEIVABLES") to be paid
to SS/L under a proposed contract with WildBlue Communications, Inc. (the
"WILDBLUE CONTRACT") to be entered into concurrently with the execution of the
Orbitals Amendments and providing for the resumption of construction by SS/L of
a satellite for WildBlue (the "WILDBLUE SATELLITE"), and to grant to Intelsat a
first priority security interest (with the Banks to retain a second priority
security interest) in the WildBlue Receivables and the WildBlue Deposit Account
(and all amounts therein), subject to SS/L's right to withdraw any amounts in
the
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WildBlue Deposit Account at any time when the Intelsat Escrow Account has the
Escrow Minimum Balance and no amount is due and unpaid under the SS/L Contingent
Note;
WHEREAS, Loral, the Parent, the Borrower and SS/L (collectively, the
"LORAL PARTIES") and Alcatel are currently engaged in arbitration proceedings
regarding certain disputes and propose to enter into a settlement agreement
relating to such disputes, substantially on the terms set forth in the June 20,
2003 outline of terms previously distributed to the Banks, pursuant to a filing
with the International Chamber of Commerce (the "ALCATEL SETTLEMENT");
WHEREAS, pursuant to the terms of the proposed Alcatel Settlement, (i) the
Loral Parties would pay to Alcatel (1) $5,000,000 in cash concurrently with the
effectiveness of the Alcatel Settlement and (2) an additional $8,000,000 on a
deferred, unsecured basis (the "DEFERRED PAYMENT"), (ii) the Loral Parties would
transfer to Alcatel all ownership interests held by Loral and its affiliates in
SkyBridge Limited Partnership ("SKYBRIDGE"), (iii) the Loral Parties would
transfer to Alcatel all ownership interests held by Loral and its affiliates in
Europe*Star Limited and certain affiliated entities (collectively,
"EUROPE*STAR"), (iv) SS/L would pay to Alcatel all amounts due under certain
contracts between SS/L and Alcatel, (v) Alcatel would transfer to Loral (or an
affiliate) all ownership interests held by Alcatel and its affiliates in
CyberStar, L.P. ("CYBERSTAR"), (vi) the Loral Parties and their affiliates would
waive and release any and all claims or rights against Alcatel and Europe*Star
with respect to Europe*Star and the Europe*Star I and Europe*Star II satellites,
including receivables owing to the Loral Parties relating to such satellites
(the "EUROPE*STAR RECEIVABLES"), and (vii) the Loral Parties and Alcatel would
give each other a variety of waivers and releases;
WHEREAS, the Borrower has requested certain amendments to the Credit
Agreement, in addition to those contained in the First Amendment, in connection
with the transactions contemplated by the Orbitals Amendments (collectively, the
"ORBITALS MONETIZATION") and the Alcatel Settlement; and
WHEREAS, the Banks party hereto have reviewed and do not object to the
proposed terms of the Orbitals Monetization and the Alcatel Settlement and have
agreed to the requested amendments on the terms and conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Defined Terms; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Credit Agreement
has the meaning assigned to such term in the Credit Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
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contained in the Credit Agreement shall, after this Amendment becomes effective,
refer to the Credit Agreement as amended hereby.
Section 2. Certain Modifications of the Credit Agreement. (a)
Notwithstanding the provisions of Section 9.2 of the Credit Agreement, SS/L
shall be permitted to incur Indebtedness evidenced by the SS/L Contingent Note.
(b) Notwithstanding the provisions of Section 9.3 of the Credit Agreement,
SS/L may create the first priority Liens contemplated by the Orbitals
Monetization on the WildBlue Deposit Account (and all amounts therein), the
WildBlue Receivables, the WildBlue Satellite work-in-progress (to secure
progress payments, milestone payments, advances, deferred payments and similar
arrangements under the WildBlue Contract) and the Intelsat Escrow Account,
provided that the Banks retain a second priority Lien on the WildBlue
Receivables and the WildBlue Deposit Account (and all amounts therein).
(c) Notwithstanding the provisions of Section 9.6 of the Credit Agreement,
SS/L shall be permitted to assign to Alcatel all of its right, title and
interest in the Subcontractor Orbital Payments to satisfy in full SS/L's
obligations to pay the Subcontractor Orbital Payments to Alcatel under the
Existing Alcatel Subcontracts.
(d) Notwithstanding the provisions of Section 9.6 of the Credit Agreement,
SS/L shall be permitted to (i) transfer to Alcatel all of its ownership
interests in SkyBridge pursuant to the Alcatel Settlement and (ii) release all
of its right, title and interest in the Euro*Star Receivables pursuant to the
Alcatel Settlement.
(e) The Borrower agrees, and Loral by its signature below agrees, that
without the prior consent of the Required Banks it shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly, pay or agree to pay
any retention, severance or performance bonuses or deferred compensation or
other retirement pay, other than in the ordinary course of business consistent
with past practice or payments made pursuant to plans, agreements or policies as
in effect on the date hereof.
(f) For all purposes of the First Amendment (including Section 7(k)(vi)
thereof), transactions with substantially the same substance as described in the
Borrower's description of the Orbitals Monetization distributed to the Banks by
the Administrative Agent on June 9, 2003 shall, subject to the other
requirements of the First Amendment, qualify as the "Orbitals Transaction."
(g) The Administrative Agent and the Collateral Agent are authorized and
directed to execute and deliver any consents, agreements or other instruments to
give effect to the foregoing.
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(h) The Borrower agrees, and Loral by its signature below agrees, that it
shall not, and shall not permit any of its Subsidiaries to, make the Deferred
Payment unless (i) Loral has delivered to the Administrative Agent a forecast
for the period ending on December 31, 2003 demonstrating that, after giving
effect to making the Deferred Payment, it will have adequate liquidity for its
businesses and (ii) the Required Banks, in their reasonable discretion, are
satisfied with the form and substance of such forecast.
Section 3. Miscellaneous Provisions. (a) The Borrower agrees that this
Amendment shall be considered a "Loan Document" for all purposes of the Credit
Agreement, including without limitation Section 10(e) thereof.
(b) The Borrower understands and accepts that:
(i) except as expressly set forth herein, this Amendment shall not
constitute a waiver or amendment of any term or condition of the Credit
Agreement or any other Loan Document and all such terms and conditions
shall remain in full force and effect and are hereby ratified and
confirmed in all respects, and that no failure or delay by the Banks or
any one of them in exercising any right, power or privilege under any Loan
Document, or any other action taken or not taken or statement made, during
the period prior to the date hereof or during the period thereafter shall
operate as a waiver thereof or obligate any Bank to agree to any further
amendments to or waivers under any Loan Document; and
(ii) the Banks have given no assurance that they will grant any
further amendments to the Credit Agreement or any other Loan Document.
(c) The Borrower acknowledges that although Xxxxx Xxxx & Xxxxxxxx is
engaged as special counsel to the Administrative Agent, Xxxxxx, Xxxxx & Bockius
LLP has been engaged by the Administrative Agent as special counsel for the
Banks for purposes of advising as to matters arising under the Credit Agreement
and the other Loan Documents, including issues where the interests of the Banks
are different from those of the lenders under the Satellite Credit Facility (as
defined in the First Amendment), and agrees that the fees and expenses of such
firm will be included in the expenses covered by Section 8(b) of the First
Amendment.
(d) The Borrower confirms that Loral has engaged Xxxxxx, Del Genio, Xxxxx
& Co., LLC to provide financial and other advisory services to Loral and its
Subsidiaries of a scope as previously described by the Borrower to the Steering
Committee (as defined in the First Amendment), and Loral, by its signature
below, confirms that it will maintain such an engagement with either such firm
or a successor firm of recognized national standing with comparable abilities.
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Section 4. Release of Bank Liability. The Borrower, for itself and on
behalf of its affiliated entities, successors, assigns and legal representatives
(the "BORROWER PARTIES"), jointly and severally releases, acquits and forever
discharges the Administrative Agent, the Collateral Agent and each Bank
(collectively, the "BANK PARTIES"), and their respective subsidiaries, parents,
affiliates, officers, directors, employees, agents, attorneys, successors and
assigns, both present and former (collectively, the "BANKS' Affiliates") from
any and all manner of actions, causes of action, suits, debts, controversies,
damages, judgments, executions, claims and demands whatsoever, asserted or
unasserted, in contract, tort, law or equity which the Borrower or any other
Borrower Party has or may have against any of the Bank Parties and/or the Banks'
Affiliates by reason of any action, failure to act, matter or thing whatsoever
arising from or based on facts occurring prior to the date hereof, including but
not limited to any claim or defense that relates to, in whole or in part,
directly or indirectly, (i) the making or administration of the Loans, including
without limitation, any such claims and defenses based on fraud, mistake,
duress, usury or misrepresentation, or any other claim based on so-called
"lender liability theories", (ii) any covenants, agreements, duties or
obligations set forth in the Loan Documents, (iii) any actions or omissions of
any of the Bank Parties and/or the Banks' Affiliates in connections with the
initiation or continuing exercise of any right or remedy contained in the Loan
Documents or at law or in equity, (iv) lost profits, (v) loss of business
opportunity, (vi) increased financing costs, (vii) increased legal or other
administrative fees or (viii) damages to business reputation.
Section 5. Representations of the Borrower. The Borrower represents and
warrants that, except as expressly waived hereby, the representations and
warranties of the Borrower set forth in Article 6 of the Credit Agreement (other
than Sections 6.2(a), 6.7 and 6.15) will be true on and as of the Amendment
Effective Date, except where such representations and warranties expressly
relate to an earlier date, in which case such representation and warranty shall
be true and correct as of such earlier date. The Borrower further represents and
warrants that all information (other than projections) heretofore furnished by
or on behalf of the Borrower to the Administrative Agent or any Bank for
purposes of or in connection with this Amendment does not, and all such
information hereafter furnished by or on behalf of the Borrower to the
Administrative Agent or any Bank will not, contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make
statements therein, in light of the circumstances under which they were or will
be made, not misleading.
Section 6. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
Section 7. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
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Section 8. Effectiveness. (a) This Amendment shall become effective as of
the date hereof on the date when the following conditions are met (the
"AMENDMENT EFFECTIVE DATE"):
(i) the Administrative Agent shall have received from each of the
Borrower, each Guarantor, Loral and the Required Banks a counterpart
hereof signed by such party or facsimile or other written confirmation (in
form satisfactory to the Administrative Agent) that such party has signed
a counterpart hereof;
(ii) confirmation that the Borrower has paid all statements of Xxxxx
Xxxx & Xxxxxxxx, special counsel for the Administrative Agent, Xxxxxx,
Xxxxx & Bockius, LLP, special counsel for the Banks, and of Ernst & Young
Corporate Finance LLC that have been rendered to the Borrower at least one
Business Day prior to the Amendment Effective Date in respect of this
Amendment or other Credit Agreement matters;
(iii) the Administrative Agent shall have received evidence
satisfactory to it that either prior to the time all of the other
conditions to the Amendment Effective Date (excluding the provisio at the
end of this Section 8(a)) have been satisfied the regularly scheduled
payments of principal (together with accrued interest) under the Credit
Agreement and the Satellite Credit Facility due on June 30, 2003 have been
paid or arrangements are in place for such payments to be made
concurrently with such conditions to the Amendment Effective Date being
satisfied (it being understood that if the Amendment Effective Date occurs
prior to June 30, 2003, such principal payments (together with accrued
interest) shall be made, by immediate application of a portion of the
proceeds of the Orbitals Monetization, on such prior day (and each Bank
party hereto waives (including, if the case, in its capacity as a lender
under the Satellite Credit Facility) any requirement of prior notice of
such payment)); and
(iv) the Administrative Agent shall have received such officer's and
secretary's certificates and such other documents relating to the
Borrower, the Guarantors and the matters contemplated hereby as it shall
have reasonably requested;
provided that the provisions of Section 2(d) shall not become effective until
the Administrative Agent has received a copy of the definitive documentation for
the Alcatel Settlement in substantially final form and has advised Loral that it
is satisfied that such documentation makes provision for issues affecting the
Banks and the lenders under the Satellite Credit Facility previously discussed
by the Administrative Agent with the Borrower and its advisors substantially as
discussed.
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Promptly upon the occurrence of the Amendment Effective Date, the Administrative
Agent shall notify each of the parties hereto, and such notice shall be
conclusive and binding on all parties hereto.
(b) Each Guarantor, by its signature below, hereby consents to this
Amendment and acknowledges that this Amendment shall not alter, release,
discharge or otherwise affect any of its obligations under the Credit Agreement
or any other Loan Document, and hereby ratifies and confirms all of the Loan
Documents to which it is a party.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
BORROWER: LORAL SPACECOM CORPORATION
By:/s/ Xxxx X. Xxxxxx
---------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Operating Officer
[Signature Pages Continue]
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GUARANTORS: LORAL SPACE & COMMUNICATIONS CORPORATION
By:/s/ Xxxx X. Xxxxxx
---------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Operating Officer
SPACE SYSTEMS/LORAL, INC.
By:/s/ C. Xxxxxxx XxXxxx
------------------------
Name: C. Xxxxxxx XxXxxx
Title: President and Chief Operating Officer
LORAL COMMUNICATIONS SERVICES, INC.
By:/s/ Xxxx X. Xxxxxx
---------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Operating Officer
LORAL GROUND SERVICES, L.L.C.
By:/s/ Xxxx X. Xxxxxx
---------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Operating Officer
LORAL: ACKNOWLEDGED AND AGREED
FOR PURPOSES OF SECTIONS 2(e),
2(h) and 3(d):
LORAL SPACE & COMMUNICATIONS
LTD.
By:/s/ Xxxx X. Xxxxxx
---------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Operating Officer
[Signature Pages Continue]
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AGENT: BANK OF AMERICA, N.A., in its capacity
as Administrative Agent
By:/s/ Xxxxxxxx Xxxxxxxx
------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Vice President
LENDERS: BANK OF AMERICA, N.A., individually in its
capacity as a Lender and Issuing Bank
By:/s/ X.X. Xxxxxxxx
--------------------
Name: X.X. Xxxxxxxx
Title: Managing Director
BANK OF MONTREAL
By:
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
Name:
Title:
BARCLAYS BANK PLC
By:
Name:
Title:
BAYERISCHE LANDESBANK
By:
Name:
Title:
[Signature Pages Continue]
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BNP PARIBAS
By:
Name:
Title:
By:
Name:
Title:
CANPARTNERS INVESTMENTS IV LLC
By:
Name:
Title:
COMM INVESTORS LLC
By:
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:/s/ Stephane Ducroizet
-------------------------
Name: Stephane Ducroizet
Title: Vice President
DB STRUCTURED PRODUCTS INC.
By:
Name:
Title:
[Signature Pages Continue]
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XXXXXXXX XXXX XX,
XXX XXXX BRANCH
By:/s/ Xxxxxx X. Xxxxx
----------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
By:/s/ Xxxxx X. Xxxx
--------------------
Name: Xxxxx X. Xxxx
Title: Director
DEUTSCHE BANK TRUST CO AMERICAS
By:
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By:/s/ Xxxx Xxxxxxx
-------------------
Name: Xxxx Xxxxxxx
Title: Duly Authorized Signatory
GE CAPITAL CFE INC
By:/s/ Xxxx Xxxxxxx
-------------------
Name: Xxxx Xxxxxxx
Title: Duly Authorized Signatory
GEOSTAR INVESTORS LLC
By:
Name:
Title:
GOLDENTREE HY OPPORTUNITIES II, L.P.
By:
Name:
Title:
[Signature Pages Continue]
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GOLDENTREE HIGH YIELD MASTER FUND, LTD
By:
Name:
Title:
XXXXXXX SACHS CREDIT PARTNERS L.P.
By:
Name:
Title:
JPMORGAN CHASE BANK
By:/s/ Xxxx Xxxxx Xxxxx
-----------------------
Name: Xxxx Xxxxx Xxxxx
Title: Vice President
XXXXXX XXXXXXX SENIOR FUNDING INC.
By:
Name:
Title:
NATIONAL CITY BANK
By:
Name:
Title:
REDWOOD MASTER FUND, LTD.
By:
Name:
Title:
[Signature Pages Continue]
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SANPAOLO IMI SPA
By:
Name:
Title:
By:
Name:
Title:
SOCIETE GENERALE
By:/s/ Xxxxxxx Xxxxxx
---------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
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