Exhibit 10.2
GUARANTEE AGREEMENT
made by
LORAL SPACE & COMMUNICATIONS CORPORATION
and certain Subsidiaries of
LORAL SPACECOM CORPORATION
in favor of
BANK OF AMERICA, N.A.,
as Administrative Agent
Dated as of December 21, 2001
TABLE OF CONTENTS
Page
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SECTION 1. DEFINED TERMS................................................... 1
1.1 Definitions..................................................... 1
1.2 Other Definitional Provisions................................... 3
SECTION 2. GUARANTEES...................................................... 3
2.1 Guarantee of Borrower Obligations............................... 3
2.2 Intentionally Omitted........................................... 4
2.3 Right of Contribution........................................... 4
2.4 No Subrogation.................................................. 4
2.5 Amendments, etc. with respect to the Borrower Obligations....... 5
2.6 Guarantee Absolute and Unconditional............................ 5
2.7 Reinstatement................................................... 6
2.8 Payments........................................................ 6
SECTION 3. Intentionally Omitted........................................... 6
SECTION 4. REPRESENTATIONS AND WARRANTIES.................................. 6
4.1 Representations in Credit Agreement; Parent Representations..... 6
4.2 Intentionally Omitted........................................... 8
4.3 Intentionally Omitted........................................... 8
4.4 Chief Executive Office.......................................... 8
4.5 Intentionally Omitted........................................... 8
SECTION 5. COVENANTS....................................................... 8
5.1 Covenants in Credit Agreement................................... 8
5.2 Intentionally Omitted........................................... 8
5.3 Intentionally Omitted........................................... 8
5.4 Intentionally Omitted........................................... 8
5.5 Intentionally Omitted........................................... 8
5.6 Intentionally Omitted........................................... 8
5.7 Intentionally Omitted........................................... 8
SECTION 6. Intentionally Omitted........................................... 8
SECTION 7. Intentionally Omitted........................................... 8
SECTION 8. MISCELLANEOUS................................................... 9
8.1 Amendments in Writing........................................... 9
8.2 Notices......................................................... 9
8.3 No Waiver by Course of Conduct; Cumulative Remedies............. 9
8.4 Enforcement Expenses; Indemnification........................... 9
8.5 Successors and Assigns.......................................... 10
8.6 Set-Off......................................................... 10
8.7 Counterparts.................................................... 11
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8.8 Severability.................................................... 11
8.9 Section Headlines............................................... 11
8.10 Integration..................................................... 11
8.11 GOVERNING LAW................................................... 11
8.12 Submission To Jurisdiction; Waivers............................. 11
8.13 Acknowledgements................................................ 12
8.14 WAIVER OF JURY TRIAL............................................ 12
8.15 Additional Guarantors........................................... 12
8.16 Intentionally Omitted........................................... 13
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GUARANTEE AGREEMENT
GUARANTEE AGREEMENT, dated as of December 21, 2001, made by each of the
signatories hereto (together with any other entity that may become a party
hereto as provided herein, the "Guarantors"), in favor of BANK OF AMERICA, N.A.,
as Administrative Agent (in such capacity, the "Administrative Agent") for the
banks and other financial institutions (the "Banks") from time to time parties
to the Amended and Restated Credit Agreement, dated as of December 21, 2001 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among LORAL SPACECOM CORPORATION (the "Borrower"), the Banks and
the Administrative Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Banks have severally agreed
to make extensions of credit to the Borrower upon the terms and subject to the
conditions set forth therein;
WHEREAS, the Borrower is a member of an affiliated group of companies
that includes each Guarantor;
WHEREAS, the proceeds of the extensions of credit under the Credit
Agreement will be used in part to enable the Borrower to make valuable transfers
to one or more of the Guarantors in connection with the operation of their
respective businesses;
WHEREAS, the Borrower and the Guarantors are engaged in related
businesses, and each Guarantor will derive substantial direct and indirect
benefit from the making of the extensions of credit under the Credit Agreement;
and
WHEREAS, it is a condition precedent to the obligation of the Banks to
make their respective extensions of credit to the Borrower under the Credit
Agreement that the Guarantors shall have executed and delivered this Agreement
to the Administrative Agent for the ratable benefit of the Banks;
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Banks to enter into the Credit Agreement and to
induce the Banks to make their respective extensions of credit to the Borrower
thereunder, each Guarantor hereby agrees with the Administrative Agent, for the
ratable benefit of the Banks, as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions.
(a) Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
(b) The following terms shall have the following meanings:
"Agreement": this Guarantee Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"Borrower Obligations": the collective reference to the unpaid
principal of and interest on the Loans and L/C Obligations and all other
obligations and liabilities of the Borrower (including, without
limitation, interest accruing at the then applicable rate provided in the
Credit Agreement after the maturity of the Loans and L/C Obligations and
interest accruing at the then applicable rate provided in the Credit
Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding,
relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) to the
Administrative Agent or any Bank (or, in the case of any Hedge Agreement
referred to below, any Affiliate of any Bank), whether direct or indirect,
absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, the Credit
Agreement, this Agreement, the other Loan Documents, any Letter of Credit
or any Hedge Agreement (unless the foregoing specifies that such
obligations are not Borrower Obligations) entered into by the Borrower
with any Bank (or any Affiliate of any Bank) or any other document made,
delivered or given in connection therewith, in each case whether on
account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation,
all fees and disbursements of counsel to the Administrative Agent or to
the Banks that are required to be paid by the Borrower pursuant to the
terms of any of the foregoing agreements).
"Guarantor Obligations": with respect to any Guarantor, the
collective reference to (i) the Borrower Obligations and (ii) all
obligations and liabilities of such Guarantor which may arise under or in
connection with this Agreement or any other Loan Document to which such
Guarantor is a party, in each case whether on account of guarantee
obligations, reimbursement obligations, fees, indemnities, costs, expenses
or otherwise (including, without limitation, all fees and disbursements of
counsel to the Administrative Agent or to the Banks that are required to
be paid by such Guarantor pursuant to the terms of this Agreement or any
other Loan Document).
"Guarantors": as defined in the Preamble.
"Hedge Agreements": as to any Person, all interest rate swaps, caps
or collar agreements or similar arrangements entered into by such Person
providing for protection against fluctuations in interest rates or
currency exchange rates or the exchange of nominal interest obligations,
either generally or under specific contingencies.
"Obligations": (i) in the case of the Borrower, the Borrower
Obligations, and (ii) in the case of each Guarantor, its Guarantor
Obligations.
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1.2 Other Definitional Provisions.
(a) The words "hereof," "herein", "hereto" and "hereunder" and words
of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and Section and Schedule references are to this Agreement
unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. GUARANTEES
2.1 Guarantee of Borrower Obligations.
(a) Each of the Guarantors hereby, jointly and severally,
unconditionally and irrevocably, guarantees to the Administrative Agent,
for the ratable benefit of the Banks and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment and
performance by the Borrower when due (whether at the stated maturity, by
acceleration or otherwise) of the Borrower Obligations.
(b) The Parent shall have no liability for the payment of any
Obligations, and in any action or suit to collect any Obligations the
Administrative Agent and the Banks shall not seek any in personam judgment
against the Parent or any judgment for a deficiency but shall look solely
to the security interests granted under the Pledge Agreement and the
collateral described therein for payment of the Obligations of the Parent.
Nothing contained in this Section 2.1 shall be construed to impair the
validity of the Obligations or of this Agreement or to impair in any way
the right of the Administrative Agent and the Banks to exercise their
rights and remedies under the Credit Agreement, the Notes, this Agreement
or any other Loan Document in accordance with their respective terms.
(c) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and
under the other Loan Documents shall in no event exceed the amount which
can be guaranteed by such Guarantor under applicable federal and state
laws relating to the insolvency of debtors (after giving effect to the
right of contribution established in Section 2.3).
(d) Each Guarantor agrees that the Borrower Obligations may at any
time and from time to time exceed the amount of the liability of such
Guarantor hereunder without impairing the guarantee contained in this
Section 2.1 or affecting the rights and remedies of the Administrative
Agent or any Bank hereunder.
(e) The guarantee contained in this Section 2.1 shall remain in full
force and effect until all the Borrower Obligations and the obligations of
each Guarantor under the guarantee contained in this Section 2.1 shall
have been satisfied by payment in full, no Letter of Credit shall be
outstanding and the Commitments shall be terminated,
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notwithstanding that from time to time during the term of the Credit
Agreement the Borrower may be free from any Borrower Obligations.
(f) No payment made by any of the Guarantors, any other guarantor or
any other Person or received or collected by the Administrative Agent or
any Bank from any of the Guarantors, any other guarantor or any other
Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in reduction
of or in payment of the Borrower Obligations shall be deemed to modify,
reduce, release or otherwise affect the liability of any Guarantor
hereunder which shall, notwithstanding any such payment (other than any
payment made by such Guarantor in respect of the Borrower Obligations or
any payment received or collected from such Guarantor in respect of the
Borrower Obligations), remain liable for the Borrower Obligations up to
the maximum liability of such Guarantor hereunder until the Borrower
Obligations are paid in full, no Letter of Credit shall be outstanding and
the Commitments are terminated.
2.2 Intentionally Omitted.
2.3 Right of Contribution.
Each Guarantor hereby agrees that to the extent that a Subsidiary
Guarantor shall have paid more than its proportionate share of any Payment made
hereunder, such Subsidiary Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder which has not paid
its proportionate share of such payment. Each Subsidiary Guarantor's right of
contribution shall be subject to the terms and conditions of Section 2.4. The
provisions of this Section 2.3 shall in no respect limit the obligations and
liabilities of any Guarantor to the Administrative Agent and the Banks, and each
Guarantor shall remain liable to the Administrative Agent and the Banks for the
full amount guaranteed by such Guarantor hereunder.
2.4 No Subrogation.
Notwithstanding any payment made by any Guarantor hereunder or any set-off
or application of funds of any Guarantor by the Administrative Agent or any
Bank, no Guarantor shall be entitled to be subrogated to any of the rights of
the Administrative Agent or any Bank against the Borrower or any other Guarantor
or any collateral security or guarantee or right of offset held by the
Administrative Agent or any Bank for the payment of the Borrower Obligations,
nor shall any Guarantor seek or be entitled to seek any contribution or
reimbursement from the Borrower or any other Guarantor in respect of payments
made by such Guarantor hereunder, until all amounts owing to the Administrative
Agent and the Banks by the Borrower on account of the Borrower Obligations are
paid in full, no Letter of Credit shall be outstanding and the Commitments are
terminated. If any amount shall be paid to any Guarantor on account of such
subrogation rights at any time when all of the Borrower Obligations shall not
have been paid in full, such amount shall be held by such Guarantor in trust for
the Administrative Agent and the Banks, segregated from other funds of such
Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over
to the Administrative Agent in the
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exact form received by such Guarantor (duly indorsed by such Guarantor to the
Administrative Agent, if required), to be applied against the Borrower
Obligations, whether matured or unmatured, in such order as the Administrative
Agent may determine.
2.5 Amendments, etc. with respect to the Borrower Obligations.
Each Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against any Guarantor and without notice to or
further assent by any Guarantor, any demand for payment of any of the Borrower
Obligations made by the Administrative Agent or any Bank may be rescinded by the
Administrative Agent or such Bank and any of the Borrower Obligations continued,
and the Borrower Obligations, or the liability of any other Person upon or for
any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Administrative Agent or any Bank, and the Credit
Agreement and the other Loan Documents and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Administrative Agent (or, pursuant to
the respective terms of the Credit Agreement and the other Loan Documents, the
Required Banks or all Banks, as the case may be) may deem advisable from time to
time, and any collateral security, guarantee or right of offset at any time held
by the Administrative Agent or any Bank for the payment of the Borrower
Obligations may be sold, exchanged, waived, surrendered or released. Neither the
Administrative Agent nor any Bank shall have any obligation to protect, secure,
perfect or insure any Lien at any time held by it as security for the Borrower
Obligations or for the guarantees contained in this Section 2 or any property
subject thereto.
2.6 Guarantee Absolute and Unconditional.
Each Guarantor waives any and all notice of the creation, renewal,
extension or accrual of any of the Borrower Obligations and notice of or proof
of reliance by the Administrative Agent or any Bank upon its guarantee contained
in this Section 2 or acceptance of its guarantee contained in this Section 2;
the Borrower Obligations shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon the guarantees contained in this Section 2; and all dealings by and among
the Borrower and any of the Guarantors, on the one hand, and the Administrative
Agent and the Banks, on the other hand, likewise shall be conclusively presumed
to have been had or consummated in reliance upon the guarantees contained in
this Section 2. Each Guarantor waives diligence, presentment, protest, demand
for payment and notice of default or nonpayment to or upon any of the Guarantors
with respect to the Borrower Obligations. Each Guarantor understands and agrees
that its guarantee contained in this Section 2 shall be construed as a
continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity or enforceability of the Credit Agreement or any other Loan
Document, any of the Borrower Obligations or any other collateral security
therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by the Administrative Agent or any Bank, (b) any defense,
set-off or counterclaim (other than a defense of payment or performance) which
may at any time be available to or be asserted by the Borrower or any other
Person against the Administrative Agent or any Bank, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of such
Guarantor) which
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constitutes, or might be construed to constitute, an equitable or legal
discharge of the Borrower for the Borrower Obligations, or of such Guarantor
under its guarantee contained in this Section 2, in bankruptcy or in any other
instance. When making any demand hereunder or otherwise pursuing its rights and
remedies hereunder against any Guarantor, the Administrative Agent or any Bank
may, but shall be under no obligation to, make a similar demand on or otherwise
pursue such rights and remedies as it may have against the Borrower, any other
Guarantor or any other Person or against any collateral security or guarantee
for the Borrower Obligations or any right of offset with respect thereto, and
any failure by the Administrative Agent or any Bank to make any such demand, to
pursue such other rights or remedies or to collect any payments from the
Borrower, any other Guarantor or any other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of the Borrower, any other Guarantor or any other Person or any such
collateral security, guarantee or right of offset, shall not relieve any
Guarantor of any obligation or liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of the Administrative Agent or any Bank against any Guarantor.
For the purposes hereof "demand" shall include the commencement and continuance
of any legal proceedings.
2.7 Reinstatement.
The guarantees contained in this Section 2 shall continue to be effective,
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the Borrower Obligations is rescinded or must otherwise be
restored or returned by the Administrative Agent or any Bank upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrower or any Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
2.8 Payments.
Each Guarantor hereby guarantees that payments hereunder will be paid to
the Administrative Agent without set-off or counterclaim in Dollars at the
office of the Administrative Agent located at the address provided in the Credit
Agreement.
SECTION 3. Intentionally Omitted.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Banks to enter into the Credit
Agreement and to induce the Banks to make their respective extensions of credit
to the Borrower thereunder, each Guarantor hereby represents and warrants to the
Administrative Agent and each Bank that:
4.1 Representations in Credit Agreement; Parent Representations.
(a) In the case of each Guarantor, the representations and
warranties set forth in Section 6 of the Credit Agreement as they relate
to such Guarantor or to the Loan
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Documents to which such Guarantor is a party, each of which is hereby
incorporated herein by reference, are true and correct, and the
Administrative Agent and each Bank shall be entitled to rely on each of
them as if they were fully set forth herein, provided that each reference
in each such representation and warranty to the Borrower's knowledge
shall, for the purposes of this Section 4.1(a), be deemed to be a
reference to such Guarantor's knowledge.
(b) In the case of the Parent:
(i) the Parent (w) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its
organization, (x) has the corporate power and authority, and the
legal right, to own and operate its property, to lease the property
it operates as lessee and to conduct the business in which it is
currently engaged, (y) is duly qualified as a foreign corporation
and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its
business requires such qualification except to the extent that the
failure to so qualify would not reasonably be expected to have a
Material Adverse Effect and (z) is in compliance with all
Requirements of Law except to the extent that the failure to comply
therewith could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(ii) The Parent has the corporate power and authority, and the
legal right, to make, deliver and perform the Loan Documents to
which it is a party and has taken all necessary corporate action to
authorize the execution, delivery and performance of the Loan
Documents to which it is a party. No consent or authorization of,
filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required in connection
with the execution, delivery, performance, validity or
enforceability of the Loan Documents to which the Parent is a party.
This Agreement has been, and each other Loan Document to which it is
a party will be, duly executed and delivered on behalf of the
Parent. This Agreement constitutes, and each other Loan Document to
which it is a party when executed and delivered will constitute, a
legal, valid and binding obligation of the Parent enforceable
against the Parent in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(iii) The execution, delivery and performance of the Loan
Documents to which the Parent is a party will not violate any
Requirement of Law or Contractual Obligation of the Parent or of any
of its Subsidiaries and will not result in, or require, the creation
or imposition of any Lien on any of its or their respective
properties or revenues pursuant to any such Requirement of Law or
Contractual Obligation (other than pursuant to this Agreement).
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(iv) No litigation, investigation or proceeding of or before
any arbitrator or Governmental Authority is pending or, to the
knowledge of the Parent, threatened by or against the Parent or any
of its Subsidiaries or against any of its or their respective
properties or revenues (x) with respect to any of the Loan Documents
or any of the transactions contemplated hereby or thereby, or (y)
which could reasonably be expected to have a Material Adverse
Effect.
4.2 Intentionally Omitted.
4.3 Intentionally Omitted.
4.4 Chief Executive Office.
On the date hereof, such Guarantor's jurisdiction of organization and the
location of such Guarantor's chief executive office or sole place of business
are specified on Schedule 2.
4.5 Intentionally Omitted.
SECTION 5. COVENANTS
Each Guarantor covenants and agrees with the Administrative Agent and the
Banks that, from and after the date of this Agreement until the Obligations
shall have been paid in full, no Letter of Credit shall be outstanding and the
Commitments shall have terminated:
5.1 Covenants in Credit Agreement.
In the case of each Guarantor, such Guarantor shall take, or shall refrain
from taking, as the case may be, each action that is necessary to be taken or
not taken, as the case may be, so that no Default or Event of Default is caused
by the failure to take such action or to refrain from taking such action by such
Guarantor or any of its Subsidiaries.
5.2 Intentionally Omitted.
5.3 Intentionally Omitted.
5.4 Intentionally Omitted.
5.5 Intentionally Omitted.
5.6 Intentionally Omitted.
5.7 Intentionally Omitted.
SECTION 6. Intentionally Omitted
SECTION 7. Intentionally Omitted.
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SECTION 8. MISCELLANEOUS
8.1 Amendments in Writing.
None of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified except in accordance with subsection 12.1 of
the Credit Agreement.
8.2 Notices.
All notices, requests and demands to or upon the Administrative Agent or
any Guarantor hereunder shall be effected in the manner provided for in
subsection 12.2 of the Credit Agreement; provided that any such notice, request
or demand to or upon any Guarantor shall be addressed to such Guarantor at its
notice address set forth on Schedule 1.
8.3 No Waiver by Course of Conduct; Cumulative Remedies.
Neither the Administrative Agent nor any Bank shall by any act (except by
a written instrument pursuant to Section 8.1), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any
delay in exercising, on the part of the Administrative Agent or any Bank, any
right, power or privilege hereunder shall operate as a waiver thereof. No single
or partial exercise of any right, power or privilege hereunder shall preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. A waiver by the Administrative Agent or any Bank of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Administrative Agent or, such Bank would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
8.4 Enforcement Expenses; Indemnification.
(a) Each Guarantor agrees to pay or reimburse each Bank and the
Administrative Agent for all its costs and expenses incurred in collecting
against such Guarantor under the guarantee contained in Section 2 or
otherwise enforcing or preserving any rights under this Agreement and the
other Loan Documents to which such Guarantor is a party, including,
without limitation, the fees and disbursements of counsel (including those
of outside counsel and, without duplication, allocated costs of in-house
counsel to the extent such counsel performs services that would otherwise
be performed by outside counsel) to each Bank and of counsel to the
Administrative Agent.
(b) Each Guarantor agrees to pay, and to save the Administrative
Agent and the Banks harmless from, any and all liabilities with respect
to, or resulting from any delay in paying, any and all stamp, excise,
sales or other taxes which may be payable or
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determined to be payable in connection with any of the transactions
contemplated by this Agreement.
(c) Each Guarantor agrees to pay, and to save the Administrative
Agent and the Banks harmless from, any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement to the extent the Borrower would be required to do so pursuant
to subsection 12.5 of the Credit Agreement.
(d) The agreements in this Section 8.4 shall survive repayment of
the Obligations and all other amounts payable under the Credit Agreement
and the other Loan Documents.
8.5 Successors and Assigns.
This Agreement shall be binding upon the successors and assigns of each
Guarantor and shall inure to the benefit of the Administrative Agent and the
Banks and their successors and assigns; provided that no Guarantor may assign,
transfer or delegate any of its rights or obligations under this Agreement
without the prior written consent of the Administrative Agent.
8.6 Set-Off.
Each Guarantor hereby irrevocably authorizes the Administrative Agent and
each Bank at any time and from time to time while an Event of Default shall have
occurred and be continuing, without notice to such Guarantor or any other
Guarantor, any such notice being expressly waived by each Guarantor, to set-off
and appropriate and apply any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Administrative Agent or such Bank to or for the credit or the
account of such Guarantor, or any part thereof in such amounts as the
Administrative Agent or such Bank may elect, against and on account of the
obligations and liabilities of such Guarantor to the Administrative Agent or
such Bank hereunder and claims of every nature and description of the
Administrative Agent or such Bank against such Guarantor, in any currency,
whether arising hereunder, under the Credit Agreement, any other Loan Document
or otherwise, as the Administrative Agent or such Bank may elect, whether or not
the Administrative Agent or any Bank has made any demand for payment and
although such obligations, liabilities and claims may be contingent or
unmatured. The Administrative Agent and each Bank shall notify such Guarantor
promptly of any such set-off and the application made by the Administrative
Agent or such Bank of the proceeds thereof, provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of the Administrative Agent and each Bank under this Section 8.6 are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which the Administrative Agent or such Bank may have.
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8.7 Counterparts.
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts (including by telecopy), and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument.
8.8 Severability.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
8.9 Section Headlines.
The Section headings used in this Agreement are for convenience of
reference only and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
8.10 Integration.
This Agreement and the other Loan Documents represent the agreement of the
Guarantors, the Administrative Agent and the Banks with respect to the subject
matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any Bank relative
to subject matter hereof and thereof not expressly set forth or referred to
herein or in the other Loan Documents.
8.11 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.12 Submission To Jurisdiction; Waivers.
Each Guarantor hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the Courts
of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any
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such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or
claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to such
Guarantor at its address referred to in Section 8.2 or at such other
address of which the Administrative Agent shall have been notified
pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this Section any special, exemplary, punitive or consequential
damages.
8.13 Acknowledgements.
Each Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents to which it is a
party;
(b) neither the Administrative Agent nor any Bank has any fiduciary
relationship with or duty to any Guarantor arising out of or in connection
with this Agreement or any of the other Loan Documents, and the
relationship between the Guarantors, on the one hand, and the
Administrative Agent and Banks, on the other hand, in connection herewith
or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Banks or among the Guarantors and the Banks.
8.14 WAIVER OF JURY TRIAL.
EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
8.15 Additional Guarantors.
Each Subsidiary of the Borrower that is required to become a party to this
Agreement shall become a Guarantor for all purposes of this Agreement upon
execution and delivery by such Subsidiary of an Assumption Agreement in the form
of Annex 1 hereto.
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8.16 Intentionally Omitted.
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IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee
Agreement to be duly executed and delivered as of the date first above written.
LORAL SPACE & COMMUNICATIONS CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
SPACE SYSTEMS/LORAL, INC., a Delaware
corporation
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
LORAL COMMUNICATIONS SERVICES, INC., a
Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
LORAL GROUND SERVICES, L.L.C., a Delaware
limited liability company
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
LORAL SPACECOM CORPORATION
GUARANTEE AGREEMENT
ACCEPTED:
BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
LORAL SPACECOM CORPORATION
GUARANTEE AGREEMENT
