EXHIBIT 4.3.3
SUBORDINATION AND AMENDMENT AGREEMENT
SUBORDINATION AND AMENDMENT AGREEMENT dated as of February 20, 1998 among
XXXXXX ELECTRONICS CORPORATION (together with its successors and assigns,
"Xxxxxx Electronics"), PANAMSAT CORPORATION (the "Borrower") and CITICORP USA,
INC., as Administrative Agent for the Lenders under the Credit Agreement
referred to below (in such capacity, the "Administrative Agent").
RECITALS
(1) The Borrower has entered into the Credit Agreement dated as of
February 20, 1998, with certain financial institutions (collectively, including
without limitation any entity acquiring the rights of a "Lender" under the
Credit Agreement after the date hereof, the "Lenders"), each of the Co-
Documentation Agents party thereto and the Administrative Agent (as from time to
time amended, the "Credit Agreement"), providing among other things for the
making of advances by the Lenders to the Borrower (the "Advances") in an
aggregate principal amount at any one time outstanding up to $500,000,000.
(2) Xxxxxx Electronics has entered into the Loan Agreement dated as of May
15, 1997 with the Borrower (as from time to time amended, the "Xxxxxx Loan
Agreement") pursuant to which Xxxxxx Electronics has extended a credit facility
in the amount of $1,725,000,000 to the Borrower evidenced by the promissory note
dated May 15, 1997 (as from time to time amended, the "Xxxxxx Note").
(3) It is a condition precedent to the effectiveness of the Credit
Agreement that Xxxxxx Electronics and the Borrower shall have executed and
delivered an agreement in substantially the form hereof. Accordingly, the
parties agree as follows:
(S)1. Definitions. Except as otherwise expressly provided herein, terms
defined in the Credit Agreement have their respective defined meanings when used
herein. In addition, as used herein the following terms shall have the
following respective meanings:
"Excess Cash Flow" shall mean, for any period, with respect to the Borrower
and its consolidated Subsidiaries on a consolidated basis, the sum of (a) net
income plus (b) cash taxes plus (c) depreciation and amortization plus (d) non-
cash charges plus (or minus, as the case may be) (e) change in the level of
working capital and minus (f) the aggregate amount of capital expenditures made
during such period, all determined in accordance with GAAP. For purposes of
this definition, "working capital" means the excess, if any, of current assets
(excluding cash) over current liabilities, determined in accordance with GAAP.
"Final Payment Date" shall mean, with respect to the Senior Obligations,
the date of the final payment in full in cash of the principal thereof and
interest thereon and all other amounts now or hereafter payable or becoming
payable in connection therewith.
"Pay" and "Payment" shall mean, with respect to the Subordinated
Obligations or any of them, any payment or prepayment or other distribution on
or in respect of the Subordinated Obligations or any portion thereof, whether in
cash, securities or other property, by set-off, by purchase or redemption
thereof, by defeasance thereof, by the provision of a sinking fund or otherwise.
"Senior Obligations" shall mean, collectively, all present and future
obligations of the Borrower to the Administrative Agent and the Lenders under
the Credit Agreement and the other Loan Documents, including without limitation
the obligations of the Borrower thereunder to pay the principal of
and interest (including, without limitation, interest accruing after the date of
any filing by the Borrower of any petition in bankruptcy or the commencement of
any bankruptcy, insolvency, reorganization or similar proceedings with respect
to the Borrower whether or not allowed as a claim in such proceedings) on the
Advances and all other amounts whatsoever payable or becoming payable under or
in respect of the Credit Agreement and the other Loan Documents, whenever
incurred, accruing or arising.
"Subordinated Obligations" shall mean, collectively, all present and future
obligations of the Borrower to Xxxxxx Electronics under the Xxxxxx Loan
Agreement and the Xxxxxx Note, including without limitation the obligations of
the Borrower to pay the principal of and interest (including, without
limitation, interest accruing after the date of any filing by the Borrower of
any petition in bankruptcy or the commencement of any bankruptcy, insolvency,
reorganization or similar proceedings with respect to the Borrower whether or
not allowed as a claim in such proceedings) on the Xxxxxx Note and any and all
other amounts whatsoever from time to time owing or becoming owing to Xxxxxx
Electronics by the Borrower under the Xxxxxx Loan Agreement and the Xxxxxx Note,
whenever incurred, accrued or arising.
(S)2. Amendment of Xxxxxx Loan. The Maturity Date (as defined in the
Xxxxxx Loan Agreement and for all purposes of the Xxxxxx Note) of the Xxxxxx
Loan is hereby amended to be June 24, 2003.
(S)3. Subordination. Xxxxxx Electronics hereby agrees with the
Administrative Agent for the benefit of the Administrative Agent and the Lenders
that except as expressly permitted by (S)4 hereof, (a) the Subordinated
Obligations are and shall be subordinated and subject in right of payment to the
prior payment in full of the Senior Obligations to the extent provided in (S)4
hereof, (b) Xxxxxx Electronics will not ask, demand, accelerate, xxx for, take
or receive from the Borrower, by set-off or in any other manner, any Payment of
the whole or any part of the Subordinated Obligations or any security therefor,
and (c) Xxxxxx Electronics will not, without the prior written consent of the
Required Lenders, agree or consent to any amendment, waiver or other
modification of any provision of the Xxxxxx Loan Agreement or the Xxxxxx Note if
such amendment, waiver or modification would (i) increase the amount or change
the time of payment of any sum payable by the Borrower thereunder or otherwise
increase any of the obligations of the Borrower thereunder or (ii) adversely
affect in any way the rights or remedies of the Administrative Agent and the
Lenders. Xxxxxx Electronics hereby directs the Borrower to make such prior
payment of the Senior Obligations.
(S)4. Payments. (a) Until the Final Payment Date, Xxxxxx Electronics
and the Borrower agree with the Administrative Agent for the benefit of the
Administrative Agent and the Lenders that the Borrower shall not make and Xxxxxx
Electronics shall not be entitled to receive or retain any Payment in respect of
any principal of the Subordinated Obligations except to the extent expressly
permitted by (S)4(b) and (c) hereof.
(b) The Borrower may, subject to the terms of (S)(S)5 and 6 hereof, make
payments of principal of the Xxxxxx Note on or after January 1, 2001, in an
aggregate amount not exceeding in any fiscal year of the Borrower an amount
equal to 50% of Excess Cash Flow for the preceding fiscal year of the Borrower,
as set forth in the annual financial statements of the Borrower provided
pursuant to Section 5.03(c) of the Credit Agreement; provided, that no payment
of principal under this Section 4(b) shall be permitted at any time when the
Borrower Debt Rating is lower than BBB in the case of S&P or Baa2 in the case of
Xxxxx'x.
(c) The Borrower may at any time, subject to the terms of (S)(S)5 and 6
hereof, make payments of principal of the Xxxxxx Note out of the proceeds of (i)
any issuance by the Borrower of shares of capital stock and (ii) any issuance by
the Borrower of Subordinated Debt.
(d) The Borrower may, subject to (S)(S)5 and 6 hereof, make payments of
interest on the Xxxxxx Note at a rate per annum not exceeding the interest rate
per annum applicable to the Advances,
plus additional interest at a rate not exceeding the rate at which facility fee
is payable under Section 2.07 of the Credit Agreement as in effect from time to
time.
(e) Xxxxxx Electronics agrees that it will not take any guaranty of or
security for the Subordinated Obligations or any or them, unless in the case of
a guaranty such guaranty is subject to the provisions of this Agreement.
(f) Xxxxxx Electronics will give to the Administrative Agent at least 15
days' prior written notice of any request by Xxxxxx Electronics pursuant to the
Xxxxxx Loan Agreement that the Borrower seek refinancing for or in respect of
the Xxxxxx Note (it being understood that the Senior Debt must be paid in full
prior to any such refinancing).
(S)5. Distribution, Etc. In furtherance of, and to make effective, the
subordination provided for herein, Xxxxxx Electronics agrees with the
Administrative Agent for the benefit of the Administrative Agent and the Lenders
as follows:
(a) In the event of any distribution, division or application, partial or
complete, voluntary or involuntary, by operation of law or otherwise, of all or
any part of the assets of the Borrower, or upon any indebtedness of the
Borrower, by reason of any Event of Default specified in Section 6.01(f) of the
Credit Agreement relating to the Borrower, then and in any such event and during
the continuance thereof:
(i) any Payment which but for this Agreement would be payable or
deliverable upon or with respect to the Subordinated Obligations or any of them
(including without limitation any Payment payable to Xxxxxx Electronics under
any agreement relating to the subordination of any other indebtedness to the
payment of the Subordinated Obligations) shall instead be paid or delivered
directly to the Administrative Agent for application to the Senior Obligations;
and
(ii) Xxxxxx Electronics hereby irrevocably authorizes and empowers the
Administrative Agent to demand, xxx for, collect and receive every such Payment
and give acquittances therefor, and to file and/or vote claims and take such
other proceedings, in the Administrative Agent's own name or in the name of
Xxxxxx Electronics or otherwise, as the Administrative Agent may deem necessary
or advisable for the enforcement of this Agreement; and Xxxxxx Electronics
agrees duly and promptly to take such action as may be reasonably requested by
the Administrative Agent to assist in the collection of the Subordinated
Obligations for the account of the Administrative Agent and the Lenders, and/or
to file appropriate proofs of claim in respect of the Subordinated Obligations,
and to execute and deliver to the Administrative Agent on demand such powers of
attorney, proofs of claim, assignments of claim or other instruments as may be
requested by the Administrative Agent to enable the Administrative Agent to (x)
enforce any and all claims upon or with respect to the Subordinated Obligations,
and (y) to collect and receive any and all Payments which may be payable or
deliverable at any time upon or with respect to the Subordinated Obligations.
(b) If any Payment shall be received by Xxxxxx Electronics upon or in
respect of the Subordinated Obligations in contravention of the provisions of
this (S)5 or of (S)4 or (S)6 hereof, Xxxxxx Electronics will forthwith deliver
the same to the Administrative Agent in precisely the form received (except for
the endorsement or assignment of Xxxxxx Electronics where necessary), for
application to the Senior Obligations, whether then due or not due, and, until
so delivered, the same shall be held in trust by Xxxxxx Electronics for the sole
benefit of the Administrative Agent and the Lenders. In the event of the
failure by Xxxxxx Electronics to make any such endorsement or assignment, the
Administrative Agent, or any of its officers or employees, is hereby irrevocably
authorized to make the same.
(c) Any Payment received by Xxxxxx Electronics that was not made or
received in contravention of the provisions of this (S)5 or of (S)4 or (S)6
hereof may be retained by Xxxxxx Electronics.
(S)6. Event of Default. Xxxxxx Electronics and the Borrower agree with
the Administrative Agent for the benefit of the Administrative Agent and the
Lenders that if there shall occur an Event of Default, no Payment shall be made
on or in respect of the Subordinated Obligations or any portion thereof, whether
of principal, interest or otherwise, until such time as the Administrative Agent
notifies Xxxxxx Electronics in writing that such Event of Default has been
remedied, after which the Borrower may resume making required Payments (to the
extent permitted by (S)(S)4 and 5 hereof) in respect of the Subordinated
Obligations in accordance with the terms of the Xxxxxx Note (including without
limitation any missed Payments). Without prejudice to the foregoing provisions
of this (S)6, the Administrative Agent will give Xxxxxx Electronics and the
Borrower prompt notice of the occurrence of any Event of Default.
(S)7. Continuing Subordination, Etc. The subordination effected by this
Agreement is a continuing subordination, and Xxxxxx Electronics hereby agrees
that at any time and from time to time without notice to it the Administrative
Agent or the Lenders may:
(a) change the manner, place or terms of payment or change or extend the
time of payment of, or renew, exchange, amend or alter, the terms of any Senior
Obligation, any security therefor or guarantee thereof or any liability of the
Borrower or any other Person to the Administrative Agent or the Lenders, or any
liability incurred directly or indirectly in respect thereof, or otherwise
amend, renew, exchange, modify or supplement in any manner the Senior
Obligations (without prejudice to the limitation on subordination set forth in
the proviso in the definition of "Senior Obligations"), any Loan Document or any
instrument evidencing or guaranteeing or securing the same or any agreement
under which the Senior Obligations are outstanding; provided, that the
Administrative Agent and the Lenders will not amend or modify the terms of the
Senior Debt in a way that (i) increases the principal amount of the Senior Debt
beyond an aggregate amount of $500,000,000, or (ii) increases the rate of
interest on the Senior Debt (except as set forth in the Credit Agreement), or
(iii) extends the Commitment Termination Date;
(b) sell, exchange, release, surrender, realize upon, enforce or otherwise
deal with in any manner and any order any property securing the Senior
Obligations or any liability of the Borrower or any other Person to the
Administrative Agent or the Lenders, or any liability incurred directly or
indirectly in respect thereof;
(c) settle or compromise any Senior Obligation or any other liability of
the Borrower or any other Person in respect of the Senior Obligations to the
Administrative Agent or the Lenders or any security therefor or any liability
incurred directly or indirectly in respect thereof and apply any sums by
whomsoever paid and however realized to any liability (including without
limitation, the Senior Obligations) in any manner or order; and
(d) fail to take or to record or otherwise perfect, for any reason or for
no reason, any Lien securing the Senior Obligations by whomsoever granted,
exercise or delay in or refrain from exercising any right or remedy against the
Borrower or any other Person or any security, elect any remedy and otherwise
deal freely with the Borrower and any guarantor of or security for the Senior
Obligations or any liability of the Borrower or any guarantor to such holder or
any liability incurred directly or indirectly in respect thereof.
The Borrower agrees to notify Xxxxxx Electronics of each of the events
described in paragraphs (a) through (d) above; provided, that failure by the
Borrower so to notify Xxxxxx Electronics shall not in any way affect the rights
of the Administrative Agent or the Lenders under this Agreement.
(S)8. Covenants.
(a) Xxxxxx Electronics agrees that it will not transfer, assign, pledge or
encumber the Subordinated Obligations or any part thereof except to General
Motors Corporation or any Affiliate thereof, provided that in connection with
any such transaction, the respective instrument of assignment
specifically provides that the assignee takes the Subordinated Obligations or
such part thereof subject to the provisions of this Agreement and such assignee
executes and delivers to the Administrative Agent an instrument in form and
substance satisfactory to the Administrative Agent pursuant to which such
assignee agrees to be bound by the provisions of this Agreement.
(b) Xxxxxx Electronics agrees that it will give not less than ten (10)
days' prior written notice to the Administrative Agent in accordance with
Section 19 hereof of any acceleration by Xxxxxx Electronics of the maturity of
the Subordinated Obligations or any thereof (without prejudice to the provisions
of (S)(S)3, 4, 5 and 6 hereof).
(c) Nothing in this Agreement shall limit the right of the Administrative
Agent and the Lenders to pursue any of their rights and remedies under the
Credit Agreement or the Loan Documents or applicable law at such times and in
such manner as they may determine.
(S)9. Waiver of Notice. Xxxxxx Electronics hereby unconditionally waives
notice of the incurrence of the Senior Obligations or any part thereof and
waives notice of reliance by the Administrative Agent or the Lenders upon the
subordination of the Subordinated Obligations to the Senior Obligations.
(S)10. Representations and Warranties. Xxxxxx Electronics hereby
represents and warrants that (i) it is a corporation duly incorporated and
validly existing under the laws of Delaware; (ii) its making and performance of
this Agreement have been duly authorized by all necessary action on its part;
(iii) the making and performance by it of this Agreement do not violate any
provision of applicable law or regulation or any contract or agreement to which
it is a party; and (iv) this Agreement constitutes its legal, valid and binding
obligation, enforceable in accordance with its terms.
(S)11. Subrogation. On the Final Payment Date, Xxxxxx Electronics shall,
to the extent of any amounts paid to the Administrative Agent hereunder, be
subrogated to the rights of the Administrative Agent and the Lenders to receive,
accept and retain distributions of assets of the Borrower, or Payments by or on
behalf of the Borrower, made on the Senior Obligations, until the Subordinated
Obligations shall be paid in full. For purposes solely of such subrogation, no
Payments to the Administrative Agent or the Lenders to which Xxxxxx Electronics
would be entitled but for the provisions hereof, pursuant to the provisions
hereof, to the Administrative Agent or the Lenders by Xxxxxx Electronics shall,
as between the Borrower, their creditors other than the Administrative Agent or
the Lenders, and Xxxxxx Electronics, be deemed to be a payment or distribution
by the Borrower on account of the Senior Obligations.
(S)12. Benefit of Subordination Provisions. The subordination provisions
of this Agreement are intended solely to define the relative rights of Xxxxxx
Electronics and its successors and assigns on the one hand and the
Administrative Agent and the Lenders and their successors and assigns on the
other hand, and nothing contained herein shall impair, as between the Borrower
and Xxxxxx Electronics, the obligations of the Borrower (which are absolute and
unconditional) to pay the Subordinated Obligations as and when the same shall
become due and payable in accordance with the terms thereof, or affect the
relative rights against the Borrower of Xxxxxx Electronics and creditors of the
Borrower other than the Administrative Agent and the Lenders.
(S)13. Reinstatement. If at any time any payment in respect of the Senior
Obligations (or in respect of any Subordinated Obligation that was paid over to
the Administrative Agent) is rescinded or must otherwise be restored or returned
by the Administrative Agent or any of the Lenders in connection with any
bankruptcy, insolvency, reorganization or similar proceeding, 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 Xxxxxx Electronics or any
substantial part of the Borrower's or Xxxxxx Electronics' property, the
obligations of Xxxxxx Electronics under this Agreement shall continue to be
effective, or be reinstated as of the time such payment in respect of the Senior
Obligations is so rescinded or must otherwise be restored, as the case may be,
all as though such payment had not then been made.
(S)14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be identical and all of which, when taken
together, shall constitute one and the same instrument, and any of the parties
hereto may execute this Agreement by signing any such counterpart.
(S)15. No Waiver. No failure on the part of the Administrative Agent or
any Lender to exercise, no delay in exercising, and no course of dealing with
respect to, any right or remedy hereunder will operate as a waiver thereof; nor
will any single or partial exercise of any right or remedy hereunder preclude
any other or further exercise thereof or the exercise of any other right or
remedy. This Agreement may not be amended or modified except by written
agreement of the Borrower, Xxxxxx Electronics and the Administrative Agent, and
no consent or waiver hereunder shall be valid unless in writing and signed by
the Administrative Agent.
(S)16. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, and their respective successors and
assigns, and each holder from time to time of any of the Senior Obligations or
Subordinated Obligations.
(S)17. Governing Law. This Agreement shall be governed by and construed
in accordance with the law of the State of New York.
(S)18. Submission to Jurisdiction; Waiver of Jury Trial. Xxxxxx
Electronics hereby submits, to the fullest extent permitted by law, to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in New York City
for purposes of all legal proceedings arising out of or relating to this
Agreement or any of the other documents or the transactions contemplated hereby
or thereby, and irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court, any claim that any such proceeding
brought in such a court has been brought in any inconvenient forum and any
claims or defenses arising from or related to any theory of sovereign immunity.
EACH OF XXXXXX ELECTRONICS, THE BORROWER AND THE ADMINISTRATIVE AGENT HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OF THE OTHER DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY.
(S)19. Miscellaneous. All notices, requests and demands to or upon a
party hereto to be effective shall be in writing, shall be sent by certified or
registered mail, return receipt requested, or by telecopier or delivered by hand
or by a recognized overnight courier service and shall be deemed to have been
validly served, given or delivered when delivered against receipt or, in the
case of telecopy notice, when sent, or, in the case of telex, when the
appropriate answerback received, addressed as follows:
If to Xxxxxx Electronics:
Xxxxxx Electronics Corporation
0000 Xxxxxx Xxxxxxx
Mail Station A-135, Building C-1
X.X. Xxx 00000
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Assistant Treasurer
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to the Administrative Agent:
Citicorp USA, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to PanAmSat:
PanAmSat Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
or to such other address as each party may designate for itself by like notice
given in accordance with this (S)19.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and
year first above written.
XXXXXX ELECTRONICS CORPORATION
By Xxxxxx X. Xxxxxxxx
------------------------------------------
Title: Assistant Treasurer
PANAMSAT CORPORATION
By Xxxxxxx X. Xxxxxx
------------------------------------------
Title:
CITICORP USA, INC.,
as Administrative Agent
By [Signature Illegible]
------------------------------------------
Title: Attorney-in-Fact
