EXECUTION COPY
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$600,000,000
SENIOR BRIDGE LOAN CREDIT AGREEMENT
Dated as of July 3, 2006,
among
INTELSAT (BERMUDA), LTD.,
as the Borrower
The Several Lenders
from Time to Time Parties Hereto
DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH,
as Administrative Agent
DEUTSCHE BANK SECURITIES INC.,
as Syndication Agent
and
DEUTSCHE BANK SECURITIES INC., CITIGROUP GLOBAL MARKETS INC.,
CREDIT SUISSE SECURITIES (USA) LLC and XXXXXX BROTHERS INC.,
as Joint Lead Arrangers and Joint Bookrunners
Xxxxxx Xxxxxx & Xxxxxxx LLP
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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TABLE OF CONTENTS
PAGE
SECTION 1. Definitions
1.1. Defined Terms....................................................1
SECTION 2. Amount and Terms of Credit
2.1. Commitments.....................................................46
2.2. Minimum Amount of Each Borrowing................................47
2.3. Notice of Borrowing.............................................47
2.4. Disbursement of Funds...........................................48
2.5. Repayment of Loans; Evidence of Debt............................49
2.6. Continuations...................................................49
2.7. Pro Rata Borrowings.............................................49
2.8. Interest........................................................50
2.9. Interest Periods................................................50
2.10. Increased Costs, Illegality, etc................................51
2.11. Compensation....................................................53
2.12. Change of Lending Office........................................53
2.13. Notice of Certain Costs.........................................53
SECTION 3. [Reserved]
SECTION 4. Fees; Commitments
4.1. Fees............................................................54
4.2. Mandatory Termination of Commitments............................54
SECTION 5. Payments
5.1. Voluntary Prepayments...........................................54
5.2. Mandatory Prepayments...........................................54
5.3. Method and Place of Payment.....................................56
5.4. Net Payments....................................................56
5.5. Computations of Interest and Fees...............................58
5.6. Limit on Rate of Interest.......................................58
SECTION 6. Conditions Precedent to Initial Borrowing on
the Closing Date
6.1. Credit Documents................................................59
6.2. No Default; Representations and Warranties......................59
6.3. Notice of Borrowing.............................................59
6.4. Other Conditions Precedent......................................59
SECTION 7. [Reserved]
SECTION 8. Representations, Warranties and Agreements
8.1. Corporate Status................................................60
8.2. Corporate Power and Authority...................................60
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8.3. No Violation...................................................61
8.4. Litigation.....................................................61
8.5. Margin Regulations.............................................61
8.6. Governmental Approvals.........................................61
8.7. Investment Company Act.........................................61
8.8. True and Complete Disclosure...................................62
8.9. Financial Condition; Financial Statements......................62
8.10. Tax Returns and Payments.......................................62
8.11. Compliance with ERISA..........................................63
8.12. Subsidiaries...................................................63
8.13. Patents, etc...................................................63
8.14. Environmental Laws.............................................64
8.15. Properties.....................................................64
8.16. Solvency.......................................................64
8.17. [INTENTIONALLY OMITTED]........................................64
8.18. [Reserved].....................................................64
8.19. [Reserved].....................................................64
SECTION 9. Affirmative Covenants
9.1. Reports and Other Information..................................65
9.2. [Reserved].....................................................66
9.3. Maintenance of Insurance.......................................66
9.4. Payment of Taxes...............................................67
9.5. Consolidated Corporate Franchises..............................67
9.6. Compliance with Statutes, Regulations, etc.....................67
9.7. ERISA..........................................................67
9.8. Maintenance of Properties......................................68
9.9. [Reserved].....................................................68
9.10. [Reserved].....................................................68
9.11. [Reserved].....................................................68
9.12. Use of Proceeds................................................68
9.13. [Reserved].....................................................68
9.14. Further Instruments and Acts...................................69
9.15. [Reserved].....................................................69
9.16. Intelsat General Corporation...................................69
9.17. Refinancing of Loans...........................................69
SECTION 10. Negative Covenants
10.1. Limitation on Incurrence of Indebtedness and
Issuance of Disqualified Stock and
Preferred Stock................................................70
10.2. Limitation on Restricted Payments..............................75
10.3. Dividend and Other Payment Restrictions
Affecting Subsidiaries.........................................82
10.4. Asset Sales....................................................84
10.5. Transactions with Affiliates...................................85
10.6. Change of Control..............................................88
10.7. Future Guarantors..............................................88
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10.8. Liens..........................................................89
10.9. Suspension of Covenants........................................89
10.10. When Borrower May Merge or Transfer Assets.....................90
10.11. Successor Company Substituted..................................92
SECTION 11. [Reserved]
SECTION 12. Events of Default
12.1. Events of Default..............................................92
12.2. Acceleration...................................................94
12.3. Other Remedies.................................................94
12.4. Waiver of Past Defaults........................................95
12.5. Control by Majority............................................95
12.6. Limitation on Suits............................................95
12.7. Rights of the Lenders to Receive Payment.......................96
12.8. Priorities.....................................................96
SECTION 13. The Administrative Agent
13.1. Appointment....................................................96
13.2. Delegation of Duties...........................................96
13.3. Exculpatory Provisions.........................................97
13.4. Reliance by Administrative Agent...............................97
13.5. Notice of Default..............................................97
13.6. Non-Reliance on Administrative Agent and
Other Lenders..................................................98
13.7. Indemnification................................................98
13.8. Administrative Agent in Its Individual Capacity................99
13.9. Successor Agent................................................99
13.10. Withholding Tax................................................99
13.11. [Reserved].....................................................99
13.12. Trustee Act 2000...............................................99
SECTION 14. Miscellaneous
14.1. Amendments and Waivers........................................100
14.2. Notices.......................................................101
14.3. No Waiver; Cumulative Remedies................................102
14.4. Survival of Representations and Warranties....................102
14.5. Payment of Expenses and Taxes.................................103
14.6. Successors and Assigns; Participations and
Assignments...................................................103
14.7. Replacements of Lenders Under Certain
Circumstances.................................................106
14.8. Adjustments; Set-off..........................................107
14.9. Counterparts..................................................108
14.10. Severability..................................................108
14.11. Integration...................................................108
14.12. GOVERNING LAW.................................................108
14.13. Submission to Jurisdiction; Consent to
Service; Waivers..............................................108
14.14. Acknowledgments...............................................109
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14.15. WAIVERS OF JURY TRIAL.........................................109
14.16. Confidentiality...............................................110
14.17. [Reserved]....................................................110
14.18. USA PATRIOT Act...............................................110
14.19. Conversion of Currencies......................................110
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SCHEDULES
Schedule 1.1 (a) Commitments and Addresses of Lenders
EXHIBITS
Exhibit A Form of Guarantee
Exhibit B-1 Form of Legal Opinion of Wachtell, Lipton, Xxxxx & Xxxx
Exhibit B-2 Form of Legal Opinion of Xxxxxxx Xxxxxxxx Xxxxxx
Exhibit B-3 Form of Legal Opinion of Xxxxx Xxxx & Fielding LLP
Exhibit B-4 Form of Legal Opinion of General Counsel of the Borrower
Exhibit C Form of Closing Certificate
Exhibit D Form of Assignment and Acceptance
Exhibit E Form of Promissory Note
Exhibit F Form of Joinder Agreement
Exhibit G Form of Exchange Indenture
Exhibit H Form of Registration Rights Agreement
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SENIOR BRIDGE LOAN CREDIT AGREEMENT, dated as of July 3, 2006 (as
amended, restated, supplemented or otherwise modified from time to time, this
"AGREEMENT"), among INTELSAT (BERMUDA), LTD. (the "BORROWER"), the lending
institutions from time to time parties hereto (each a "LENDER" and,
collectively, the "LENDERS"), DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH, as
Administrative Agent, CITIGROUP GLOBAL MARKETS INC., as Joint Lead Arranger and
Joint Bookrunner, DEUTSCHE BANK SECURITIES INC., as Joint Lead Arranger and
Joint Bookrunner (such term and each other capitalized term used but not defined
in this introductory statement having the meaning provided in Section 1), CREDIT
SUISSE SECURITIES (USA) LLC, as Joint Lead Arranger and Joint Bookrunner,
DEUTSCHE BANK SECURITIES INC., as Syndication Agent, and XXXXXX BROTHERS INC.,
as Joint Lead Arranger and Joint Bookrunner.
WHEREAS, the Borrower intends to acquire PanAmSat Holdco (as defined
below) pursuant to the terms of the Transaction Agreement (the "ACQUISITION");
WHEREAS, in connection with the Acquisition, the Borrower will issue
$260,000,000 Floating Rate Senior Notes due 2013 (the "INTELSAT BERMUDA FLOATING
RATE NOTES"), $750,000,000, 9 1/4% Senior Notes due 2016 (the "INTELSAT BERMUDA
GUARANTEED FIXED RATE NOTES") and $1,330,000,000 11 1/4% Senior Notes due 2016
(tHE "INTELSAT BERMUDA NON-GUARANTEED FIXED RATE NOTES"), in a Rule 144A or
other private placement generating gross proceeds of $2,340,000,000 (the
"BERMUDA NOTES OFFERING"), and the Intelsat Bermuda Guaranteed Fixed Rate Notes
will be guaranteed by, INTER ALIOS, Holdings, Intelsat Sub Holdco and certain of
its Subsidiaries;
WHEREAS, in connection with the foregoing, Intelsat Sub Holdco has
entered into an amended and a new agreement in an aggregate principal amount of
up to $644,750,000; and
WHEREAS, in connection with the foregoing, PanAmSat Opco (as defined
below) has (x) issued $575,000,000 9% Senior Notes due 2016 and (y) entered into
an amended and restated credit agreement in an aggregate principal amount of up
to $2,241,010,000.
The parties hereto hereby agree as follows:
SECTION 1. Definitions.
1.1. DEFINED TERMS.
(a) As used herein, the following terms shall have the meanings
specified in this Section 1.1 (it being understood that defined terms in this
Agreement shall include in the singular number the plural and in the plural the
singular):
"10 3/8% DISCOUNT NOTES" shall mean the 10 3/8% Senior Discount Notes
due 2014 of PanAmSat Holdco.
"ACQUIRED INDEBTEDNESS" shall mean, with respect to any specified
Person:
(1) Indebtedness of any other Person existing at the time such other
Person is merged with or into or becomes a Restricted Subsidiary of such
specified Person, and
(2) Indebtedness secured by a Lien encumbering any asset acquired by
such specified Person,
in each case, other than Indebtedness Incurred as consideration in,
in contemplation of, or to provide all or any portion of the funds or credit
support utilized to consummate, the transaction or series of related
transactions pursuant to which such Restricted Subsidiary became a Restricted
Subsidiary or was otherwise acquired by such Person, or such asset was acquired
by such Person, as applicable.
"ACQUISITION" shall mean the transactions pursuant to which the
Borrower became the owner of all of the outstanding share capital of PanAmSat
Holdco pursuant to the Transaction Agreement.
"ACQUISITION DOCUMENTS" shall mean the Transaction Agreement, the
Credit Agreements, the New PanAmSat Indebtedness, the Intelsat Bermuda Notes,
this Agreement, the Loans under this Agreement (including any Exchange Notes
issued pursuant to the Exchange Indenture), the Specified Intercompany
Agreements and, in each case, any other document entered into in connection
therewith, in each case as amended, supplemented or modified from time to time.
"ADJUSTED EBITDA" shall mean, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus, without
duplication, to the extent the same was deducted in calculating Consolidated Net
Income:
(1) Consolidated Taxes; PLUS
(2) Consolidated Interest Expense; provided that any interest expense
set forth in clause (4) of the definition of Consolidated Interest Expense
shall be included in the calculation of Adjusted EBITDA solely for purposes
of calculating Cumulative Credit, unless the same was deducted in
calculating Consolidated Net Income; PLUS
(3) Consolidated Non-cash Charges; PLUS
(4) the amount of any restructuring charges or expenses (which, for
the avoidance of doubt, shall include retention, severance, systems
establishment costs, facility closure costs, leasehold termination costs or
excess pension charges); PLUS
(5) (a) the amount of any fees or expenses incurred or paid in such
period for transition services related to satellites or other assets or
businesses acquired and (b) the amount of management, monitoring,
consulting and advisory fees and related expenses paid to the Sponsors or
any other Permitted Holder (or any accruals relating to such fees and
related expenses) during such period, provided that such amount pursuant to
subclause (b) shall not exceed in any four-quarter period the greater of
(x) $12.5 million and (y) 1.25% of Adjusted EBITDA of such Person and its
Restricted Subsidiaries; PLUS
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(6) reversals of allowance for customer credits, including any
amounts receivable for such period in connection with contracts that are
attributable to Globo Comunicacoes e Participaoes, Ltda.'s involvement in
arrangements with Sky Multi-Country Partners; PLUS
(7) collections on investments in sales-type leases during such
period, to the extent not otherwise included in Consolidated Net Income for
such period; PLUS
(8) lease-back expenses net of deferred gains; LESS, without
duplication,
(9) any gross profit (loss) on sales-type leases included in
Consolidated Net In-come for such period; and
(10) non-cash items increasing Consolidated Net Income for such
period (excluding any items which represent the reversal of any accrual of,
or cash reserve for, anticipated cash charges in any prior period and any
items for which cash was received in any prior period).
"ADMINISTRATIVE AGENT" shall mean Deutsche Bank AG Cayman Islands
Branch as the administrative agent for the Lenders under this Agreement and the
other Credit Documents.
"ADMINISTRATIVE AGENT'S OFFICE" shall mean in respect of all Credit
Events for the account of the Borrower, the office of the Administrative Agent
located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other office as the
Administrative Agent may hereafter designate in writing as such to the other
parties hereto.
"ADMINISTRATIVE QUESTIONNAIRE" shall have the meaning provided in
Section 14.6(b).
"AFFILIATE" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"AGENT PARTIES" shall have the meaning provided in Section 14.17(c).
"AGENTS" shall mean each Joint Lead Arranger, the Administrative
Agent and the Syndication Agent.
"AGREEMENT" shall mean this Credit Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
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"AGREEMENT CURRENCY" shall have the meaning provided in Section
14.19(b).
"APPROVED FUND" shall have the meaning provided in Section 14.6.
"ASSET SALE" shall mean:
(1) the sale, conveyance, transfer or other disposition (whether in a
single transaction or a series of related transactions) of property or
assets (including by way of a Sale/Leaseback Transaction) of the Borrower
or any Restricted Subsidiary of the Borrower (each referred to in this
definition as a "disposition") or
(2) the issuance or sale of Equity Interests (other than directors'
qualifying shares or shares or interests required to be held by foreign
nationals) of any Restricted Subsidiary (other than to the Borrower or
another Restricted Subsidiary of the Borrower) (whether in a single
transaction or a series of related transactions),
in each case other than:
(a) a disposition of Cash Equivalents or Investment Grade Securities
or obsolete or worn out property or equipment in the ordinary course of
business (including the sale or leasing (including by way of sales-type
lease) of transponders or transponder capacity and the leasing or licensing
of teleports);
(b) the disposition of all or substantially all of the assets of the
Borrower in a manner permitted pursuant to Section 10.10 or any disposition
that constitutes a Change of Control;
(c) any Restricted Payment or Permitted Investment that is permitted
to be made, and is made, under Section 10.2;
(d) any disposition of assets or issuance or sale of Equity Interests
of any Restricted Subsidiary with an aggregate Fair Market Value of less
than $50.0 million;
(e) any disposition of property or assets or the issuance of
securities by a Restricted Subsidiary of the Borrower to the Borrower or by
the Borrower or a Restricted Subsidiary of the Borrower to a Restricted
Subsidiary of the Borrower;
(f) any exchange of assets for assets (including a combination of
assets and Cash Equivalents) of reasonably comparable or greater market
value or usefulness to the business of the Borrower and its Restricted
Subsidiaries as a whole, as determined in good faith by the Borrower, which
in the event of an exchange of assets with a Fair Market Value in excess of
(1) $50.0 million shall be evidenced by an Officers' Certificate, and (2)
$100.0 million shall be set forth in a resolution approved in good faith by
at least a majority of the Board of Directors of the Borrower;
(g) foreclosures on assets or property of the Borrower or its
Subsidiaries;
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(h) any sale of Equity Interests in, or Indebtedness or other
securities of, an Unrestricted Subsidiary;
(i) any disposition of inventory or other assets (including
transponders, transponder capacity and teleports) in the ordinary course of
business;
(j) the lease, assignment or sublease of any real or personal
property in the ordinary course of business;
(k) a sale of accounts receivable (including in respect of sales-type
leases) and related assets (including contract rights) of the type
specified in the definition of "Receivables Financing" to a Receivables
Subsidiary in a Qualified Receivables Financing or in factoring or similar
transactions;
(l) a transfer of accounts receivable and related assets of the type
specified in the definition of "Receivables Financing" (or a fractional
undivided interest therein) by a Receivables Subsidiary in a Qualified
Receivables Financing;
(m) the grant in the ordinary course of business of any license of
patents, trademarks, know-how and any other intellectual property;
(n) any Event of Loss;
(o) any sale or other disposition of assets or property in connection
with a Specified Sale/Leaseback Transaction;
(p) any sale of an Excluded Satellite; PROVIDED, that for purposes of
this clause (p) of this definition of Asset Sale, references in the
definition of Excluded Satellite to $75.0 million shall be deemed to be
$50.0 million; and PROVIDED, FURTHER, that any cash and Cash Equivalents
received in connection with the sale of an Excluded Satellite shall be
treated as Net Proceeds of an Asset Sale and shall be applied as provided
for in Sections 5.2(b) and 10.4;
(q) any disposition of assets, equity or property of the Borrower or
any Restricted Subsidiary of the Borrower pursuant to the Specified
Intercompany Agreements; and
(r) any disposition of assets in connection with the Transactions.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
substantially in the form of EXHIBIT D hereto.
"AUTHORIZED OFFICER" shall mean the President, the Chief Financial
Officer, the Treasurer, the Controller or any other senior officer of the
Borrower designated as such in writing to the Administrative Agent by the
Borrower.
"BANK INDEBTEDNESS" shall mean any and all amounts payable under or
in respect of any Credit Agreement or any other Senior Credit Documents, as
amended, restated, supple-
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mented, waived, replaced, restructured, repaid, refunded, refinanced or
otherwise modified from time to time (including after termination of any Credit
Agreement), including principal, premium (if any), interest (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Borrower whether or not a claim for post-filing
interest is allowed in such proceedings), fees, charges, expenses, reimbursement
obligations, guarantees and all other amounts payable thereunder or in respect
thereof.
"BANKRUPTCY CODE" shall mean Title II, United States Code, or any
similar U.S. Federal, state or any foreign law for the relief of debtors.
"BERMUDA NOTES OFFERING" shall have the meaning given in the recitals
to this Agreement.
"BOARD" shall mean the Board of Governors of the Federal Reserve
System of the United States (or any successor).
"BOARD OF DIRECTORS" means as to any Person, the board of directors
or managers, as applicable, of such Person (or, if such Person is a partnership,
the board of directors or other governing body of the general partner of such
Person) or any duly authorized committee thereof.
"BORROWER" shall have the meaning provided in the preamble to this
Agreement.
"BORROWING" shall mean and include the incurrence of the Loans on the
Closing Date.
"BUSINESS DAY" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day excluding Saturday, Sunday and any day that shall
be in The City of New York a legal holiday or a day on which banking
institutions are authorized by law or other governmental actions to close and
(ii) with respect to all notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, any day which is a
Business Day described in clause (i) above and which is also a day for trading
by and between banks in U.S. dollar deposits in the New York or London interbank
Eurodollar market.
"CAPITAL STOCK" shall mean:
(1) in the case of a corporation or a company, corporate stock or
shares;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"CAPITALIZED LEASE OBLIGATION" shall mean, at the time any
determination thereof is to be made, the amount of the liability in respect of a
capital lease that would at such time be
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required to be capitalized and reflected as a liability on a balance sheet
(excluding the footnotes thereto) in accordance with GAAP.
"CASH CONTRIBUTION AMOUNT" shall mean the aggregate amount of cash
contributions made to the capital of the Borrower or any Guarantor described in
the definition of "Contribution Indebtedness."
"CASH EQUIVALENTS" shall mean:
(1) U.S. dollars, pounds sterling, euros, national currency of any
participating member state in the European Union or, in the case of any
Foreign Subsidiary that is a Restricted Subsidiary, such local currencies
held by it from time to time in the ordinary course of business;
(2) securities issued or directly and fully guaranteed or insured by
the government of the United States or any country that is a member of the
European Union or any agency or instrumentality thereof, in each case with
maturities not exceeding two years from the date of acquisition;
(3) certificates of deposit, time deposits and eurodollar time
deposits with maturities of one year or less from the date of acquisition,
bankers' acceptances, in each case with maturities not exceeding one year,
and overnight bank deposits, in each case with any commercial bank having
capital and surplus in excess of $250 million, or the foreign currency
equivalent thereof, and whose long-term debt is rated "A" or the equivalent
thereof by Xxxxx'x or S&P (or reasonably equivalent ratings of another
internationally recognized ratings agency);
(4) repurchase obligations for underlying securities of the types
described in clauses (2) and (3) above entered into with any financial
institution meeting the qualifications specified in clause (3) above;
(5) commercial paper issued by a corporation (other than an Affiliate
of the Borrower) rated at least "A-1" or the equivalent thereof by Xxxxx'x
or S&P (or reasonably equivalent ratings of another internationally
recognized ratings agency) and in each case maturing within one year after
the date of acquisition;
(6) readily marketable direct obligations issued by any state of the
United States of America or any political subdivision thereof having one of
the two highest rating categories obtainable from either Xxxxx'x or S&P (or
reasonably equivalent ratings of another internationally recognized ratings
agency) in each case with maturities not exceeding two years from the date
of acquisition;
(7) Indebtedness issued by Persons (other than the Sponsors or any of
their Affiliates) with a rating of "A" or higher from S&P or "A-2" or
higher from Xxxxx'x (or reasonably equivalent ratings of another
internationally recognized ratings agency) in each case with maturities not
exceeding two years from the date of acquisition; and
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(8) investment funds investing at least 95% of their assets in
securities of the types described in clauses (1) through (7) above.
"CHANGE OF CONTROL" shall mean:
(1) the sale, lease or transfer, in one or a series of related
transactions, of all or substantially all the assets of the Borrower and
its Subsidiaries, taken as a whole, to a Person other than any of the
Permitted Holders, and other than any transaction in compliance with
Section 10.10 and 10.11; or
(2) the Borrower becomes aware (by way of a report or any other
filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written
notice or otherwise) of the acquisition by any Person or group (within the
meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any
successor provision), including any group acting for the purpose of
acquiring, holding or disposing of securities (within the meaning of Rule
13d-5(b)(1) under the Exchange Act), other than any of the Permitted
Holders, in a single transaction or in a related series of transactions, by
way of merger, amalgamation, consolidation or other business combination or
purchase of beneficial ownership (within the meaning of Rule 13d-3 under
the Exchange Act, or any successor provision), of more than 50% of the
total voting power of the Voting Stock of the Borrower or any Parent of the
Borrower.
Notwithstanding the foregoing, none of (i) the Acquisition (and any
related change in the composition of the Board of Directors of Holdings in
connection therewith), (ii) any Specified Merger/Transfer Transaction, or (iii)
any Subsidiary Transfer Transaction, shall constitute a Change of Control.
"CLOSING DATE" shall mean July 3, 2006.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the Closing
Date, and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"COMMITMENTS" shall mean, with respect to each Lender, such Lender's
Commitment set forth on Schedule 1.1(a).
"CONFIDENTIAL INFORMATION" shall have the meaning provided in Section
14.16.
"CONSOLIDATED INTEREST EXPENSE" shall mean, with respect to any
Person for any period, the sum, without duplication, of:
(1) consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, to the extent such expense was deducted in
computing Consolidated Net Income (including amortization of original issue
discount, the interest component of Capitalized Lease Obligations, and net
payments and receipts (if any) pursuant to interest rate Hedging
Obligations and excluding amortization of deferred financing fees,
expens-
-8-
ing of any bridge or other financing fees and any interest under
Satellite Purchase Agreements);
(2) consolidated capitalized interest of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued;
(3) commissions, discounts, yield and other fees and charges Incurred
in connection with any Receivables Financing which are payable to Persons
other than such Person and its Restricted Subsidiaries; and
(4) with respect to any Person, consolidated interest expense of any
Parent of such Person for such period with respect to the Existing Intelsat
Notes or any refinancing thereof to the extent cash interest is paid
thereon pursuant to Section 10.2(b)(xiii)(C);
less interest income for such period; PROVIDED that for purposes of calculating
Consolidated Interest Expense, no effect shall be given to the effect of any
purchase accounting adjustments in connection with the Transactions; PROVIDED,
FURTHER, that for purposes of calculating Consolidated Interest Expense, no
effect shall be given to the discount and/or premium resulting from the
bifurcation of derivatives under Statement of Financial Accounting Standards No.
133 and related interpretations as a result of the terms of the Indebtedness to
which such Consolidated Interest Expense relates.
"CONSOLIDATED NET INCOME" shall mean, with respect to any Person for
any period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis; PROVIDED, HOWEVER, that:
(1) any net after-tax extraordinary or nonrecurring or unusual gains
or losses (less all fees and expenses relating thereto), or income or
expense or charge (including, without limitation, any severance, relocation
or other restructuring costs) and fees, expenses or charges related to any
offering of equity interests, Investment, acquisition, disposition,
recapitalization or Indebtedness permitted to be Incurred by this Agreement
(in each case, whether or not successful), including any such fees,
expenses, charges or change in control payments related to the
Transactions, in each case, shall be excluded;
(2) any increase in amortization or depreciation or any one-time
non-cash charges resulting from purchase accounting in connection with the
Transactions or any acquisition shall be excluded;
(3) the Net Income for such period shall not include the cumulative
effect of a change in accounting principles during such period;
(4) any net after-tax income or loss from discontinued operations and
any net after-tax gains or losses on disposal of discontinued operations
shall be excluded;
(5) any net after-tax gains or losses (less all fees and expenses or
charges relating thereto) attributable to business dispositions or asset
dispositions other than in the
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ordinary course of business (as determined in good faith by the Board of
Directors of the Borrower) shall be excluded;
(6) any net after-tax gains or losses (less all fees and expenses or
charges relating thereto) attributable to the early extinguishment of
indebtedness shall be excluded;
(7) the Net Income for such period of any Person that is not a
Subsidiary of such Person, or is an Unrestricted Subsidiary, or that is
accounted for by the equity method of accounting, shall be excluded;
PROVIDED that Consolidated Net Income of the referent Person shall be
increased by the amount of dividends or distributions or other payments
paid in cash (or to the extent converted into cash) to the referent Person
or a Restricted Subsidiary thereof in respect of such period;
(8) solely for the purpose of determining the amount of Cumulative
Credit, the Net Income for such period of any Restricted Subsidiary (other
than any Subsidiary Guarantor) shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by such
Restricted Subsidiary of its Net Income is not at the date of determination
permitted by the operation of the terms of any agreement applicable to such
Restricted Subsidiary, unless (x) such restrictions with respect to the
payment of dividends or similar distributions have been legally waived or
(y) such restriction is permitted by Section 10.3; PROVIDED that the
Consolidated Net Income of such Person shall be increased by the amount of
dividends or other distributions or other payments actually paid in cash
(or converted into cash) by any such Restricted Subsidiary to such Person,
to the extent not already included therein;
(9) (a) any non-cash impairment charge or asset write-off resulting
from the application of Statement of Financial Accounting Standards No. 142
and 144, and the amortization of intangibles arising pursuant to No. 141,
shall be excluded and (b) the effects of adjustments in any line item in
such Person's consolidated financial statements required or permitted by
the Financial Accounting Standards Board Statement Nos. 141 and 142
resulting from the application of purchase accounting, net of taxes, shall
be excluded;
(10) any non-cash expenses realized or resulting from employee
benefit plans or post-employment benefit plans, grants of stock
appreciation or similar rights, stock options or other rights to officers,
directors and employees of such Person or any of its Restricted
Subsidiaries shall be excluded;
(11) any (a) severance or relocation costs or expenses, (b) one-time
non-cash compensation charges, (c) solely for purposes of calculating the
Debt to Adjusted EBITDA Ratio, the costs and expenses related to employment
of terminated employees, (d) costs or expenses realized in connection with,
resulting from or in anticipation of the Transactions or (e) costs or
expenses realized in connection with or resulting from stock appreciation
or similar rights, stock options or other rights of officers, directors and
employees, in each case of such Person or any of its Restricted
Subsidiaries, shall be excluded;
-10-
(12) accruals and reserves that are established within twelve months
after the Issue Date and that are so required to be established in
accordance with GAAP shall be excluded;
(13) (a)(i) the non-cash portion of "straight-line" rent expense
shall be excluded and (ii) the cash portion of "straight-line" rent expense
which exceeds the amount expensed in respect of such rent expense shall be
included and (b) non-cash gains, losses, income and expenses resulting from
fair value accounting required by Statement of Financial Accounting
Standards No. 133 and related interpretations shall be excluded;
(14) an amount equal to the amount of tax distributions actually made
to the holders of Capital Stock of such Person or any Parent of such Person
in respect of such period in accordance with Section 10.2(b)(xii) shall be
included as though such amounts had been paid as income taxes directly by
such Person for such period;
(15) any net loss resulting from currency exchange risk Hedging
Obligations shall be excluded;
(16) any reserves for long-term receivables and sales type lease
adjustments, including customer-related long-term receivables evaluated as
uncollectable shall be excluded;
(17) non-operating expenses, including transaction related fees and
expenses related to acquisitions and due diligence for acquisitions shall
be excluded; and
(18) minority interest expenses (less cash dividends actually paid to
the holders of such minority interests) shall be excluded.
Notwithstanding the foregoing, for the purpose of Section 10.2 only,
there shall be excluded from the calculation of Consolidated Net Income any
dividends, repayments of loans or advances or other transfers of assets from
Unrestricted Subsidiaries to such Person or a Restricted Subsidiary of such
Person in respect of or that originally constituted Restricted Investments to
the extent such dividends, repayments or transfers increase the amount of
Restricted Payments permitted under Section 10.2 pursuant to clause (5) or (6)
of the definition of "Cumulative Credit."
"CONSOLIDATED NON-CASH CHARGES" shall mean, with respect to any
Person for any period, the aggregate depreciation, amortization, impairment,
compensation, rent and other non-cash expenses of such Person and its Restricted
Subsidiaries for such period on a consolidated basis and otherwise determined in
accordance with GAAP, but excluding (i) any such charge which consists of or
requires an accrual of, or cash reserve for, anticipated cash charges for any
future period and (ii) the non-cash impact of recording the change in fair value
of any embedded derivatives under Statement of Financial Accounting Standards
No. 133 and related interpretations as a result of the terms of any agreement or
instrument to which such Consolidated Non-Cash Charges relate.
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"CONSOLIDATED TAXES" shall mean, with respect to any Person and its
Restricted Subsidiaries on a consolidated basis for any period, provision for
taxes based on income, profits or capital, including, without limitation, state
franchise and similar taxes, withholding taxes paid or accrued and including an
amount equal to the amount of tax distributions actually made to the holders of
Capital Stock of such Person or any Parent of such Person in respect of such
period in accordance with Section 10.2(b)(xii) which shall be included as though
such amounts had been paid as income taxes directly by such Person.
"CONSOLIDATED TOTAL INDEBTEDNESS" shall mean, as at any date of
determination, an amount equal to the sum of (1) the aggregate amount of all
outstanding Indebtedness of such Person and its Restricted Subsidiaries and (2)
the aggregate amount of all outstanding Disqualified Stock of such Person and
all Preferred Stock of its Restricted Subsidiaries, with the amount of such
Disqualified Stock and Preferred Stock equal to the greater of their respective
voluntary or involuntary liquidation preferences and maximum fixed repurchase
prices, in each case determined on a consolidated basis in accordance with GAAP.
For purposes hereof, the "MAXIMUM FIXED REPURCHASE price" of any
Disqualified Stock or Preferred Stock that does not have a fixed price shall be
calculated in accordance with the terms of such Disqualified Stock or Preferred
Stock as if such Disqualified Stock or Preferred Stock were purchased on any
date on which Consolidated Total Indebtedness shall be required to be determined
pursuant to this Agreement, and if such price is based upon, or measured by, the
fair market value of such Disqualified Stock or Preferred Stock, such fair
market value shall be determined reasonably and in good faith by the Board of
Directors of the Borrower.
"CONTINGENT OBLIGATIONS" shall mean, with respect to any Person, any
obligation of such Person guaranteeing any leases, dividends or other
obligations that do not constitute Indebtedness ("PRIMARY OBLIGATIONS") of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent:
(1) to purchase any such primary obligation or any property
constituting direct or indirect security therefor;
(2) to advance or supply funds:
(a) for the purchase or payment of any such primary obligation;
or
(b) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the
primary obligor; or
(3) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation against
loss in respect thereof.
"CONTRIBUTION INDEBTEDNESS" shall mean Indebtedness of the Borrower
or any Restricted Subsidiary in an aggregate principal amount not greater than
twice the aggregate amount of cash contributions (other than Excluded
Contributions) made (without duplication) to the capi-
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tal of the Borrower or such Restricted Subsidiary after January 28, 2005 (other
than any cash contributions in connection with the Transactions), PROVIDED that
(1) if the aggregate principal amount of such Contribution Indebtedness is
greater than the aggregate amount of such cash contributions to the capital of
the Borrower or such Restricted Subsidiary, as applicable, the amount in excess
shall be Indebtedness (other than Secured Indebtedness) that ranks subordinate
to the Loans with a Stated Maturity later than the Stated Maturity of the
Exchange Notes, and (2) such Contribution Indebtedness (a) is Incurred within
210 days after the making of such cash contributions and (b) is so designated as
Contribution Indebtedness pursuant to an Officers' Certificate on the date of
Incurrence thereof.
"CREDIT AGREEMENTS" shall mean the Intelsat Credit Agreement and the
PanAmSat Credit Agreement.
"CREDIT DOCUMENTS" shall mean this Agreement, any promissory notes
issued by the Borrower hereunder and any Guarantees, if applicable.
"CREDIT EVENT" shall mean and include the making of a Loan.
"CUMULATIVE CREDIT" shall mean the sum of (without duplication):
(1) cumulative Adjusted EBITDA of the Borrower for the period (taken
as one accounting period) from and after January 1, 2005 to the end of the
Borrower's most recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment (or, in the
case such Adjusted EBITDA for such period is a negative, minus the amount
by which cumulative Adjusted EBITDA is less than zero), PLUS
(2) 100% of the aggregate net proceeds, including cash and the Fair
Market Value (as determined in accordance with the next succeeding
sentence) of property other than cash, received by the Borrower after
January 28, 2005 from the issue or sale of Equity Interests of the Borrower
or any Parent of the Borrower (excluding (without duplication) Refunding
Capital Stock, Designated Preferred Stock, Excluded Contributions,
Disqualified Stock and the Cash Contribution Amount), including Equity
Interests issued upon conversion of Indebtedness or upon exercise of
warrants or options (other than an issuance or sale to a Restricted
Subsidiary of the Borrower or an employee stock ownership plan or trust
established by the Borrower or any of its Subsidiaries), PLUS
(3) 100% of the aggregate amount of contributions to the capital of
the Borrower received in cash and the Fair Market Value (as determined in
accordance with the next succeeding sentence) of property other than cash
after January 28, 2005 (other than Excluded Contributions, Refunding
Capital Stock, Designated Preferred Stock, Disqualified Stock and the Cash
Contribution Amount), PLUS
(4) the principal amount of any Indebtedness, or the liquidation
preference or maximum fixed repurchase price, as the case may be, of any
Disqualified Stock, of the Borrower or any Restricted Subsidiary thereof
issued after January 28, 2005 (other than Indebtedness or Disqualified
Stock issued to a Restricted Subsidiary) which has been
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converted into or exchanged for Equity Interests in the Borrower or any
Parent of the Borrower (other than Disqualified Stock), PLUS
(5) 100% of the aggregate amount received by the Borrower or any
Restricted Subsidiary in cash and the Fair Market Value (as determined in
accordance with the next succeeding sentence) of property other than cash
received by the Borrower or any Restricted Subsidiary from:
(A) the sale or other disposition (other than to the Borrower or
a Restricted Subsidiary of the Borrower) of Restricted Investments
made by the Borrower and its Restricted Subsidiaries and from
repurchases and redemptions of such Restricted Investments from the
Borrower and its Restricted Subsidiaries by any Person (other than
the Borrower or any of its Restricted Subsidiaries) and from
repayments of loans or advances which constituted Restricted
Investments (other than in each case to the extent that the
Restricted Investment was made pursuant to Section 10.2(b)(vii) or
(x),
(B) the sale (other than to the Borrower or a Restricted
Subsidiary of the Borrower) of the Capital Stock of an Unrestricted
Subsidiary or
(C) a distribution, dividend or other payment from an
Unrestricted Subsidiary, PLUS
(6) in the event any Unrestricted Subsidiary of the Borrower has been
redesignated as a Restricted Subsidiary or has been merged, consolidated or
amalgamated with or into, or transfers or conveys its assets to, or is
liquidated into, the Borrower or a Restricted Subsidiary of the Borrower,
the Fair Market Value (as determined in accordance with the next succeeding
sentence) of the Investments of the Borrower in such Unrestricted
Subsidiary at the time of such redesignation, combination or transfer (or
of the assets transferred or conveyed, as applicable) (other than in each
case to the extent that the designation of such Subsidiary as an
Unrestricted Subsidiary was made pursuant to Section 10.2(b)(vii) or (x) or
constituted a Permitted Investment).
The Fair Market Value of property other than cash covered by clauses (2), (3),
(4), (5) and (6) above shall be determined in good faith by the Borrower and
(A) in the event of property with a Fair Market Value in excess
of $50.0 million, shall be set forth in an Officers' Certificate or
(B) in the event of property with a Fair Market Value in excess
of $100.0 million, shall be set forth in a resolution approved by at
least a majority of the Board of Directors of the Borrower.
"CUMULATIVE INTEREST EXPENSE" shall mean, in respect of any
Restricted Payment, the sum of the aggregate amount of Consolidated Interest
Expense of the Borrower and the Restricted Subsidiaries for the period from and
after January 1, 2005 to the end of the Borrower's
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most recently ended fiscal quarter for which internal financial statements are
available and immediately preceding the proposed Restricted Payment.
"DEBT TO ADJUSTED EBITDA RATIO" shall mean, with respect to any
Person for any period, the ratio of (i) Consolidated Total Indebtedness as of
the date of calculation (the "CALCULATION DATE") to (ii) Adjusted EBITDA of such
Person for the four consecutive fiscal quarters immediately preceding such
Calculation Date. In the event that such Person or any of its Restricted
Subsidiaries Incurs or redeems any Indebtedness (other than in the case of
revolving credit borrowings, in which case interest expense shall be computed
based upon the average daily balance of such Indebtedness during the applicable
period) or issues or redeems Disqualified Stock or Preferred Stock subsequent to
the commencement of the period for which the Debt to Adjusted EBITDA Ratio is
being calculated but prior to the Calculation Date, then the Debt to Adjusted
EBITDA Ratio shall be calculated giving pro forma effect to such Incurrence or
redemption of Indebtedness, or such issuance or redemption of Disqualified Stock
or Preferred Stock, as if the same had occurred at the beginning of the
applicable four-quarter period.
For purposes of making the computation referred to above,
Investments, acquisitions, dispositions, mergers, amalgamations, consolidations
and discontinued operations (as determined in accordance with GAAP), in each
case with respect to an operating unit of a business, and other operational
changes that such Person or any of its Restricted Subsidiaries has both
determined to make and made after January 28, 2005 and during the four-quarter
reference period or subsequent to such reference period and on or prior to or
simultaneously with the Calculation Date shall be calculated on a pro forma
basis assuming that all such Investments, acquisitions, dispositions, mergers,
amalgamations, consolidations, discontinued operations and other operational
changes (and the change of any associated fixed charge obligations and the
change in Adjusted EBITDA resulting therefrom) had occurred on the first day of
the four-quarter reference period. If since the beginning of such period any
Person that subsequently became a Restricted Subsidiary or was merged with or
into such Person or any Restricted Subsidiary since the beginning of such period
shall have made any Investment, acquisition, disposition, merger, amalgamation,
consolidation, discontinued operation or operational change, in each case with
respect to an operating unit of a business, that would have required adjustment
pursuant to this definition, then the Debt to Adjusted EBITDA Ratio shall be
calculated giving pro forma effect thereto for such period as if such
Investment, acquisition, disposition, discontinued operation, merger,
amalgamation, consolidation or operational change had occurred at the beginning
of the applicable four-quarter period.
For purposes of this definition, whenever pro forma effect is to be
given to any transaction, the pro forma calculations shall be made in good faith
by a responsible financial or accounting officer of the Borrower. If any
Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest on such Indebtedness shall be calculated as if the rate in
effect on the Calculation Date had been the applicable rate for the entire
period (taking into account any Hedging Obligations applicable to such
Indebtedness if such Hedging Obligation has a remaining term in excess of 12
months). Interest on a Capitalized Lease Obligation shall be deemed to accrue at
an interest rate reasonably determined by a responsible financial or accounting
officer of the Borrower to be the rate of interest implicit in such Capitalized
Lease Obligation in accordance with GAAP. For purposes of making the computation
referred to above, interest
-15-
on any Indebtedness under a revolving credit facility computed on a pro forma
basis shall be computed based upon the average daily balance of such
Indebtedness during the applicable period. Interest on Indebtedness that may
optionally be determined at an interest rate based upon a factor of a prime or
similar rate, a eurocurrency interbank offered rate, or other rate, shall be
deemed to have been based upon the rate actually chosen, or, if none, then based
upon such optional rate chosen as the Borrower may designate. Any such pro forma
calculation may include adjustments appropriate, in the reasonable determination
of the Borrower as set forth in an Officers' Certificate, to reflect, among
other things, (1) operating expense reductions and other operating improvements
or synergies reasonably expected to result from any acquisition, amalgamation,
merger or operational change (including, to the extent applicable, from the
Transactions) and (2) all adjustments used in connection with the calculation of
"Adjusted EBITDA" as set forth in footnote 4 to the "Summary Historical and Pro
Forma Consolidated Financial Data" under "Offering Memorandum Summary" in the
Offering Memorandum to the extent such adjustments, without duplication,
continue to be applicable to such four-quarter period.
"DEFAULT" shall mean any event which is, or after notice or passage
of time, or both, would be an Event of Default.
"DEFAULTING LENDER" shall mean any Lender with respect to which a
Lender Default is in effect.
"DESIGNATED NON-CASH CONSIDERATION" shall mean the Fair Market Value
of non-cash consideration received by the Borrower or one of its Restricted
Subsidiaries in connection with an Asset Sale that is so designated as
Designated Non-cash Consideration pursuant to an Officers' Certificate, setting
forth the basis of such valuation, less the amount of Cash Equivalents received
in connection with a subsequent sale of such Designated Non-cash Consideration.
"DESIGNATED PREFERRED STOCK" shall mean Preferred Stock of the
Borrower, its Restricted Subsidiaries or any Parent of the Borrower or its
Restricted Subsidiaries, as applicable (other than Disqualified Stock), that is
issued for cash (other than to the Borrower or any of its Subsidiaries or an
employee stock ownership plan or trust established by the Borrower or any of its
Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an
Officers' Certificate, on the issuance date thereof, the cash proceeds of which
are excluded from the calculation set forth in the definition of "Cumulative
Credit."
"DISQUALIFIED STOCK" shall mean, with respect to any Person, any
Capital Stock of such Person which, by its terms (or by the terms of any
security into which it is convertible or for which it is redeemable or
exchangeable), or upon the happening of any event:
(1) matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise (other than as a result of a change of control or
asset sale; PROVIDED that the relevant asset sale or change of control
provisions, taken as a whole, are no more favorable in any material respect
to holders of such Capital Stock than the asset sale and change of control
provisions applicable to the Exchange Notes and any purchase requirement
triggered thereby may not become operative until compliance with the asset
sale and change of control provisions applicable to the Exchange Notes
(including the purchase of any notes tendered pursuant thereto)),
-16-
(2) is convertible or exchangeable for Indebtedness or Disqualified
Stock, or
(3) is redeemable at the option of the holder thereof, in whole or in
part, in each case prior to 91 days after the maturity date of the Exchange
Notes;
PROVIDED, HOWEVER, that only the portion of Capital Stock which so matures or is
mandatorily redeemable, is so convertible or exchangeable or is so redeemable at
the option of the holder thereof prior to such date shall be deemed to be
Disqualified Stock; PROVIDED, FURTHER, HOWEVER, that if such Capital Stock is
issued to any employee or to any plan for the benefit of employees of the
Borrower or its Subsidiaries or by any such plan to such employees, such Capital
Stock shall not constitute Disqualified Stock solely because it may be required
to be repurchased by the Borrower in order to satisfy applicable statutory or
regulatory obligations or as a result of such employee's termination, death or
disability; PROVIDED, FURTHER, that any class of Capital Stock of such Person
that by its terms authorizes such Person to satisfy its obligations thereunder
by delivery of Capital Stock that is not Disqualified Stock shall not be deemed
to be Disqualified Stock.
"DOLLAR EQUIVALENT" shall mean, on any date of determination, (a)
with respect to any amount denominated in Dollars, such amount, and (b) with
respect to any amount denominated in any Foreign Currency, the equivalent in
Dollars of such amount, determined by the Administrative Agent using the
applicable Exchange Rate.
"DOLLARS" and "$" shall mean dollars in lawful currency of the United
States of America.
"DRAWING" shall have the meaning provided in Section 3.4(b).
"EMPLOYEE TRANSFER AGREEMENT" shall mean the intercompany agreement
regarding transfer of employees, if any, dated on or about the Closing Date,
among Intelsat Global Service Corporation and PanAmSat Opco, and the other
parties thereto, if any, as amended from time to time (PROVIDED that no such
amendment materially affects the ability of the Borrower to make anticipated
principal or interest payments on the Loans) and the other agreements entered
into in connection therewith on or prior to the Closing Date.
"ENVIRONMENTAL CLAIMS" shall mean any and all actions, suits, orders,
decrees, demands, demand letters, claims, liens, notices of noncompliance,
violation or potential responsibility or investigation (other than internal
reports prepared by Holdings, the Borrower or any of the Subsidiaries (a) in the
ordinary course of such Person's business or (b) as required in connection with
a financing transaction or an acquisition or disposition of real estate) or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereinafter, "CLAIMS"),
including, without limitation, (i) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law and (ii)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief relating to
the presence, release or threatened release of Hazardous Materials or arising
from alleged injury or threat of injury to health or safety (to the extent
relating to human exposure to Hazardous Materials), or the environment
including,
-17-
without limitation, ambient air, surface water, groundwater, land surface and
subsurface strata and natural resources such as wetlands.
"ENVIRONMENTAL LAW" shall mean any applicable Federal, state, foreign
or local statute, law, rule, regulation, ordinance, code and rule of common law
now or hereafter in effect and in each case as amended, and any binding judicial
or administrative interpretation thereof, including any binding judicial or
administrative order, consent decree or judgment, relating to the protection of
environment, including, without limitation, ambient air, surface water,
groundwater, land surface and subsurface strata and natural resources such as
wetlands, or human health or safety (to the extent relating to human exposure to
Hazardous Materials), or Hazardous Materials.
"EQUITY INTERESTS" shall mean Capital Stock and all warrants, options
or other rights to acquire Capital Stock (but excluding any debt security that
is convertible into, or exchangeable for, Capital Stock).
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time. Section references to ERISA are to ERISA as
in effect at the Closing Date and any subsequent provisions of ERISA amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA AFFILIATE" shall mean each person (as defined in Section 3(9)
of ERISA) that together with the Borrower or a Subsidiary would be deemed to be
a "single employer" within the meaning of Section 414(b) or (c) of the Code or,
solely for purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.
"EVENT OF DEFAULT" shall have the meaning provided in Section 12.
"EVENT OF LOSS" shall mean any event that results in the Borrower or
its Restricted Subsidiaries receiving proceeds from any insurance covering any
Satellite, or in the event that the Borrower or any of its Restricted
Subsidiaries receives proceeds from any insurance maintained for it by any
Satellite Manufacturer or any launch provider covering any of such Satellites.
"EVENT OF LOSS PROCEEDS" shall mean, with respect to any proceeds
from any Event of Loss, all Satellite insurance proceeds received by the
Borrower or any of the Restricted Subsidiaries in connection with such Event of
Loss, after
(1) provision for all income or other taxes measured by or resulting
from such Event of Loss,
(2) payment of all reasonable legal, accounting and other reasonable
fees and expenses related to such Event of Loss,
(3) payment of amounts required to be applied to the repayment of
Indebtedness secured by a Lien on the Satellite that is the subject of such
Event of Loss,
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(4) provision for payments to Persons who own an interest in the
Satellite (including any transponder thereon) in accordance with the terms
of the agreement(s) governing the ownership of such interest by such Person
(other than provision for payments to insurance carriers required to be
made based on projected future revenues expected to be generated from such
Satellite in the good faith determination of the Borrower as evidenced by
an Officers' Certificate), and
(5) deduction of appropriate amounts to be provided by the Borrower
or such Restricted Subsidiary as a reserve, in accordance with GAAP,
against any liabilities associated with the Satellite that was the subject
of the Event of Loss.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"EXCHANGE INDENTURE" shall mean an indenture substantially in the
form of Exhibit G.
"EXCHANGE NOTES" shall mean any notes issued under the Exchange
Indenture pursuant to Section 2.1.
"EXCHANGE RATE" shall mean, on any day with respect to any Foreign
Currency, the rate at which such Foreign Currency may be exchanged into Dollars,
as set forth at approximately 11:00 a.m. (London time) on such day on the
Reuters World Currency Page for such Foreign Currency; in the event that such
rate does not appear on any Reuters World Currency Page, the Exchange Rate shall
be determined by reference to such other publicly available service for
displaying exchange rates as may be agreed upon by the Administrative Agent and
the Borrower, or, in the absence of such agreement, such Exchange Rate shall
instead be the arithmetic average of the spot rates of exchange of the
Administrative Agent in the market where its foreign currency exchange
operations in respect of such Foreign Currency are then being conducted, at or
about 10:00 a.m. (New York City time) on such date for the purchase of Dollars
for delivery two Business Days later.
"EXCLUDED CONTRIBUTIONS" shall mean the Cash Equivalents or other
assets (valued at their Fair Market Value as determined by the Borrower in good
faith) received by the Borrower after January 28, 2005 from:
(1) contributions to its common equity capital, and
(2) the sale (other than to a Subsidiary of the Borrower or pursuant
to any management equity plan or stock option plan or any other management
or employee benefit plan or agreement of the Borrower or any of its
Subsidiaries) of Capital Stock (other than Disqualified Stock and
Designated Preferred Stock) of the Borrower,
in each case designated as Excluded Contributions pursuant to an Officers'
Certificate executed by an Officer of the Borrower, which are excluded from the
calculation set forth in the definition of the term "Cumulative Credit."
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"EXCLUDED SATELLITE" shall mean any Satellite (or, if the entire
Satellite is not owned by the Borrower or any of its Subsidiaries, as the case
may be, the portion of the Satellite it owns or for which it has risk of loss)
(i) that is not expected or intended in the good faith determination of the
Borrower to earn revenues from the operation of such Satellite (or portion, as
applicable) in excess of $75.0 million for the immediately succeeding 12-month
calendar period or (ii) that has a net book value not in excess of $200.0
million or (iii) that (1) the procurement of In-Orbit Insurance therefor in the
amounts and on the terms required by Section 9.3 would not be available for a
price that is, and on other terms and conditions that are, commercially
reasonable or (2) the procurement of such In-Orbit Insurance therefor would be
subject to exclusions or limitations of coverage that would make the terms of
the insurance commercially unreasonable, in either case, in the good faith
determination of the Borrower, or (iv) for which In-Orbit Contingency Protection
is available or (v) whose primary purpose is to provide In-Orbit Contingency
Protection for the satellites (or portions) of the Borrower or its Subsidiaries
or other Affiliates and otherwise that is not expected or intended, in the good
faith determination of the Borrower, to earn revenues from the operation of such
Satellite (or portion, as applicable) in excess of $75.0 million for the
immediately succeeding 12-month calendar period.
"EXCLUDED TAXES" shall mean, with respect to the Administrative Agent
or any Lender, net income taxes and franchise taxes (imposed in lieu of net
income taxes) and capital taxes imposed on the Administrative Agent or any
Lender by any jurisdiction as a result of the Administrative Agent or such
Lender being organized in, or having its principal office of applicable lending
office in, such jurisdiction imposing such tax or any political subdivision or
taxing authority thereof or therein and (b) in the case of a Foreign Lender, any
Tax to the extent attributable to such Foreign Lender's failure to comply with
Section 5.4(d).
"EXISTING INTELSAT NOTES" means (a) the 5 1/4% Senior Notes due 2008,
(b) the 7?% Senior Notes due 2012 and (c) the 6 1/2% Senior Notes due 2013, in
each case, of Holdings.
"EXISTING SUBSIDIARY NOTES" shall mean (a) the Floating Rate Senior
Notes due 2012, the 8 1/4% Senior Notes due 2013 and the 8 5/8% Senior Notes due
2015, in each case, of Intelsat Subholdco, (b) the 9 1/4% Senior Discount Notes
due 2015 of Intelsat Intermediate Holdco (and including any notes issued in
exchange therefor), (c) the 10 3/8% discount notes and (d) the Secured 6 7/8%
Senior Notes due 2008, the Secured 6 3/8% Senior Debentures due 2028, the 9%
Senior Notes due 2014 and the 8 1/2% Senior Notes due 2012, in each case, of
PanAmSat Opco.
"FAIR MARKET VALUE" shall mean, with respect to any asset or
property, the price which could be negotiated in an arm's-length, free market
transaction, for cash, between a willing seller and a willing and able buyer,
neither of whom is under undue pressure or compulsion to complete the
transaction.
"FCC" shall mean the Federal Communications Commission or any
governmental authority substituted therefor.
"FCC LICENSES" shall mean all authorizations, licenses and permits
issued by the FCC to the Borrower or any of its Subsidiaries, under which the
Borrower or any of its Subsidiaries is authorized to launch and operate any of
its Satellites or to operate any of its TT&C Earth Stations (other than
authorizations, orders, licenses or permits that are no longer in effect).
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"FEE LETTER" shall mean the Fee Letter dated August 28, 2005 by and
among the Borrower and the lenders and agents party thereto, as supplemented
from time to time.
"FEES" shall mean all amounts payable pursuant to, or referred to in,
Section 4.1.
"FLOW THROUGH ENTITY" shall mean an entity that is treated as a
partnership not taxable as a corporation, a grantor trust or a disregarded
entity for U.S. federal income tax purposes or subject to treatment on a
comparable basis for purposes of state, local or foreign tax law.
"FOREIGN LENDER" shall mean any Lender that is not organized or
incorporated under the laws of Bermuda.
"FOREIGN PLAN" shall mean any employee benefit plan, program, fund,
policy, arrangement or agreement maintained or contributed to by the Borrower or
any of its Subsidiaries with respect to employees employed outside the United
States.
"FOREIGN SUBSIDIARY" shall mean a Restricted Subsidiary not organized
or existing under the laws of the United States of America or any state or
territory thereof or the District of Columbia and any direct or indirect
subsidiary of such Restricted Subsidiary.
"G2 TRANSFER AGREEMENT" shall mean the Agreement and Plan of Merger,
dated on or about the Closing Date, among Intelsat General Corporation and
PanAmSat Opco, and the other parties thereto, as amended from time to time
(PROVIDED that no such amendment materially affects the ability of the Borrower
to make anticipated principal or interest payments on the Loans), and the other
agreements entered into in connection therewith on or prior to the Closing Date.
"GAAP" shall mean generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on January 28, 2005. For the
purposes of this Agreement, the term "CONSOLIDATED" with respect to any Person
shall mean such Person consolidated with its Restricted Subsidiaries, and shall
not include any Unrestricted Subsidiary, but the interest of such Person in an
Unrestricted Subsidiary will be accounted for as an Investment.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any
state, province, territory or other political subdivision thereof, and any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"GOVERNMENT BUSINESS SUBSIDIARY" shall mean any Restricted Subsidiary
of the Borrower, including Intelsat General Corporation for so long as it is a
Restricted Subsidiary of the Borrower, that (i) is engaged primarily in the
business of providing services to customers similar to the services provided on
the Closing Date by Intelsat General Corporation and services or activities that
are reasonably similar thereto or a reasonable extension, development or
expan-
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sion thereof, or is complementary, incidental, ancillary or related thereto
and (ii) is subject to the Proxy Agreement or a substantially similar agreement
substantially restricting the Borrower's control of such Restricted Subsidiary.
"GUARANTEE" shall mean a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness or other obligations.
"GUARANTEE" shall mean any guarantee of the obligations of the
Borrower under this Agreement in accordance with the provisions hereof, if any.
"GUARANTOR" shall mean any Person that Incurs a Guarantee; PROVIDED
that upon the release or discharge of such Person from its Guarantee in
accordance with this Agreement, such Person ceases to be a Guarantor.
"HAZARDOUS MATERIALS" shall mean (a) any petroleum or petroleum
products, radioactive materials, friable asbestos, urea formaldehyde foam
insulation, transformers or other equipment that contain dielectric fluid
containing regulated levels of polychlorinated biphenyls, and radon gas; (b) any
chemicals, materials or substances defined as or included in the definition of
"hazardous substances," "hazardous waste," "hazardous materials," "extremely
hazardous waste," "restricted hazardous waste," "toxic substances," "toxic
pollutants," "contaminants" or "pollutants," or words of similar import, under
any applicable Environmental Law; and (c) any other chemical, material or
substance, which is prohibited, limited or regulated by any Environmental Law.
"HEDGING OBLIGATIONS" shall mean, with respect to any Person, the
obligations of such Person under:
(1) currency exchange or interest rate swap agreements, cap
agreements and collar agreements; and
(2) other agreements or arrangements designed to protect such Person
against fluctuations in currency exchange or interest rates.
"HOLDINGS" shall mean Intelsat, Ltd., until a successor replaces it
and, thereafter, means the successor.
"INCUR" shall mean issue, assume, guarantee, incur or otherwise
become liable for; PROVIDED, HOWEVER, that any Indebtedness or Capital Stock of
a Person existing at the time such Person becomes a Subsidiary (whether by
merger, amalgamation, consolidation, acquisition or otherwise) shall be deemed
to be Incurred by such Person at the time it becomes a Subsidiary.
"INDEBTEDNESS" shall mean, with respect to any Person:
(1) the principal and premium (if any) of any indebtedness of such
Person, whether or not contingent, (a) in respect of borrowed money, (b)
evidenced by bonds,
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notes, debentures or similar instruments or letters of credit or bankers'
acceptances (or, without duplication, reimbursement agreements in respect
thereof), (c) representing the deferred and unpaid purchase price of any
property, except any such balance that constitutes a current account
payable, trade payable or similar obligation Incurred, (d) in respect of
Capitalized Lease Obligations, or (e) representing any Hedging Obligations,
if and to the extent that any of the foregoing indebtedness (other than
letters of credit and Hedging Obligations) would appear as a liability on a
balance sheet (excluding the footnotes thereto) of such Person prepared in
accordance with GAAP;
(2) to the extent not otherwise included, any obligation of such
Person to be liable for, or to pay, as obligor, guarantor or otherwise, the
Indebtedness of another Person (other than by endorsement of negotiable
instruments for collection in the ordinary course of business);
(3) to the extent not otherwise included, Indebtedness of another
Person secured by a Lien on any asset owned by such Person (whether or not
such Indebtedness is assumed by such Person); provided, however, that the
amount of such Indebtedness will be the lesser of: (a) the Fair Market
Value of such asset at such date of determination, and (b) the amount of
such Indebtedness of such other Person; and
(4) to the extent not otherwise included, with respect to the
Borrower and its Restricted Subsidiaries, the amount then outstanding
(i.e., advanced, and received by, and available for use by, the Borrower or
any of its Restricted Subsidiaries) under any Receivables Financing (as set
forth in the books and records of the Borrower or any Restricted Subsidiary
and confirmed by the agent, trustee or other representative of the
institution or group providing such Receivables Financing);
PROVIDED, HOWEVER, that notwithstanding the foregoing, Indebtedness shall be
deemed not to include (1) Contingent Obligations incurred in the ordinary course
of business and not in respect of borrowed money; (2) deferred or prepaid
revenues; (3) purchase price holdbacks in respect of a portion of the purchase
price of an asset to satisfy warranty or other unperformed obligations of the
respective seller; (4) obligations to make payments to one or more insurers
under satellite insurance policies in respect of premiums or the requirement to
remit to such insurer(s) a portion of the future revenue generated by a
satellite which has been declared a constructive total loss, in each case in
accordance with the terms of the insurance policies relating thereto; (5)
Obligations under or in respect of any Qualified Receivables Financing; or (6)
any obligations to make progress or incentive payments or risk money payments
under any satellite manufacturing contract or to make payments under satellite
launch contracts in respect of launch services provided thereunder, in each
case, to the extent not overdue by more than 90 days.
Notwithstanding anything in this Agreement, Indebtedness shall not
include, and shall be calculated without giving effect to, the effects of
Statement of Financial Accounting Standards No. 133 and related interpretations
to the extent such effects would otherwise increase or decrease an amount of
Indebtedness for any purpose under this Agreement as a result of accounting for
any embedded derivatives created by the terms of such Indebtedness; and any such
amounts that would have constituted Indebtedness under this Agreement but for
the application of this sentence shall not be deemed an Incurrence of
Indebtedness under this Agreement.
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"INDEMNIFIED TAXES" shall mean all Taxes (other than Excluded Taxes)
and Other Taxes.
"INDEPENDENT FINANCIAL ADVISOR" shall mean an accounting, appraisal
or investment banking firm or consultant to Persons engaged in a Similar
Business, in each case of nationally recognized standing that is, in the good
faith determination of the Borrower, qualified to perform the task for which it
has been engaged.
"INITIAL LENDERS" shall mean Deutsche Bank AG Cayman Islands Branch,
Citicorp North America Inc., Credit Suisse, Cayman Islands Branch, Xxxxxx
Commercial Paper Inc., Bear Xxxxxxx Corporate Lending Inc., Xxxxxxx Xxxxx
Capital Corporation, Xxxxxxx Sachs Credit Partners L.P., JPMorgan Chase Bank,
N.A., BNP Paribas and The Royal Bank of Scotland plc.
"INITIAL MATURITY DATE" shall mean the one-year anniversary of the
Closing Date.
"IN-ORBIT CONTINGENCY PROTECTION" shall mean transponder capacity
that, in the good faith determination of the Borrower, is available on a
contingency basis from the Borrower or its Restricted Subsidiaries, or any
Subsidiary of any Parent of the Borrower, directly or from another satellite
operator pursuant to a contractual arrangement, to accommodate the transfer of
traffic representing at least 25% of the revenue-generating capacity with
respect to any Satellite (or, if the entire Satellite is not owned by the
Borrower or any of its Restricted Subsidiaries, as the case may be, the portion
of the Satellite it owns or for which it has risk of loss) that may suffer
actual or constructive total loss and that meets or exceeds the contractual
performance specifications for the transponders that had been utilized by such
traffic; it being understood that the Satellite (or portion, as applicable)
shall be deemed to be insured for a percentage of the Satellite's (or applicable
portion's) net book value for which In-Orbit Contingency Protection is
available.
"IN-ORBIT INSURANCE" shall mean, with respect to any Satellite (or,
if the entire Satellite is not owned by the Borrower or any of its Restricted
Subsidiaries, as the case may be, the portion of the Satellite it owns or for
which it has risk of loss), insurance (subject to a right of coinsurance in an
amount up to $150.0 million) or other contractual arrangement providing for
coverage against the risk of loss of or damage to such Satellite (or portion, as
applicable) attaching upon the expiration of the launch insurance therefor (or,
if launch insurance is not procured, upon the initial completion of in-orbit
testing) and attaching, during the commercial in-orbit service of such Satellite
(or portion, as applicable), upon the expiration of the immediately preceding
corresponding policy or other contractual arrangement, as the case may be,
subject to the terms and conditions set forth herein.
"INTELSAT BERMUDA FLOATING RATE NOTES" shall have the meaning given
in the recitals to this Agreement, and shall include any exchange notes issued
in exchange therefor pursuant to the applicable registration rights agreement.
"INTELSAT BERMUDA GUARANTEED FIXED RATE NOTES" shall have the meaning
given in the recitals to this Agreement, and shall include any exchange notes
issued in exchange therefor pursuant to the applicable registration rights
agreement.
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"INTELSAT BERMUDA INTERCOMPANY LOAN" shall mean one or more loans by
the Borrower to one or more of its Subsidiaries to fund, if applicable, the
payment of a portion of the purchase price of the Acquisition and to fund the
purchase of PanAmSat Holdco's 10 3/8% discount notes and, in each case, any fees
and expenses related thereto.
"INTELSAT BERMUDA NON-GUARANTEED FIXED RATE NOTES" shall have the
meaning given in the recitals to this Agreement, and shall include any exchange
notes issued in exchange therefor pursuant to the applicable registration rights
agreement.
"INTELSAT BERMUDA NOTES" shall mean the Intelsat Bermuda Floating
Rate Notes, the Intelsat Bermuda Guaranteed Fixed Rate Notes and the Intelsat
Bermuda Non-Guaranteed Fixed Rate Notes.
"INTELSAT BERMUDA NOTES INDENTURES" shall mean the Indentures dated
as of July 3, 2006, between Intelsat (Bermuda), Ltd. and Xxxxx Fargo Bank,
National Association, relating to the Intelsat Bermuda Notes, as in effect on
the Closing Date, as the same may be amended, supplemented or otherwise modified
in accordance with the terms hereof and thereof.
"INTELSAT CREDIT AGREEMENT" shall mean (i) the credit agreement
entered into on or prior to, the consummation of the Acquisition, among Intelsat
Sub Holdco, the financial institutions named therein and Citicorp North America,
Inc. (or an affiliate thereof), as Administrative Agent, as amended, restated,
supplemented, waived, replaced (whether or not upon termination, and whether
with the original lenders or otherwise), restructured, repaid, refunded,
refinanced or otherwise modified from time to time, including any one or more
agreements or indentures extending the maturity thereof, refinancing, replacing
or otherwise restructuring all or any portion of the Indebtedness under such
agreement or agreements or indenture or indentures or any successor or
replacement agreement or agreements or indenture or indentures or increasing the
amount loaned or issued thereunder or altering the maturity thereof and (ii)
whether or not the credit agreement referred to in clause (i) remains
outstanding, if designated by the Borrower to be included in the definition of
"Intelsat Credit Agreement," one or more (A) debt facilities or commercial paper
facilities, providing for revolving credit loans, term loans, receivables
financing (including through the sale of receivables to lenders or to special
purpose entities formed to borrow from lenders against such receivables) or
letters of credit, (B) debt securities, indentures or other forms of debt
financing (including convertible or exchangeable debt instruments or bank
guarantees or bankers' acceptances), or (C) instruments or agreements evidencing
any other Indebtedness, in each case, with the same or different borrowers or
Borrowers and, in each case, as amended, supplemented, modified, extended,
restructured, renewed, refinanced, restated, replaced or refunded in whole or in
part from time to time.
"INTELSAT INTERMEDIATE HOLDCO" shall mean Intelsat Intermediate
Holding Company, until a successor replaces it, and thereafter means such
successor.
"INTELSAT SUBHOLDCO" shall mean Intelsat Subsidiary Holding Company,
Ltd., until a successor replaces it, and thereafter means such successor.
"INTEREST PERIOD" shall mean, with respect to any Loan, the interest
period applicable thereto, as determined pursuant to Section 2.9.
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"INVESTMENT GRADE SECURITIES" means:
(1) securities issued or directly and fully guaranteed or insured by
the U.S. government or any agency or instrumentality thereof (other than
Cash Equivalents),
(2) securities that have an Investment Grade Rating, but excluding
any debt securities or loans or advances between and among the Borrower and
its Subsidiaries,
(3) investments in any fund that invests exclusively in investments
of the type described in clauses (1) and (2) which fund may also hold
immaterial amounts of cash pending investment and/or distribution, and
(4) corresponding instruments in countries other than the United
States customarily utilized for high quality investments and in each case
with maturities not exceeding two years from the date of acquisition.
"INVESTMENTS" shall mean, with respect to any Person, all investments
by such Person in other Persons (including Affiliates) in the form of loans
(including guarantees), advances or capital contributions (excluding accounts
receivable, trade credit and advances to customers and commission, travel and
similar advances to officers, employees and consultants made in the ordinary
course of business), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities issued by any other Person
and investments that are required by GAAP to be classified on the balance sheet
of the Borrower in the same manner as the other investments included in this
definition to the extent such transactions involve the transfer of cash or other
property. For purposes of the definition of "Unrestricted Subsidiary" and
Section 10.2:
(1) "Investments" shall include the portion (proportionate to the
Borrower's equity interest in such Subsidiary) of the Fair Market Value of
the net assets of a Subsidiary of the Borrower at the time that such
Subsidiary is designated an Unrestricted Subsidiary; provided, however,
that upon a redesignation of such Subsidiary as a Restricted Subsidiary,
the Borrower shall be deemed to continue to have a permanent "Investment"
in an Unrestricted Subsidiary equal to an amount (if positive) equal to:
(a) the Borrower's "Investment" in such Subsidiary at the time of
such redesignation LESS
(b) the portion (proportionate to the Borrower's equity interest
in such Subsidiary) of the Fair Market Value of the net assets of
such Subsidiary at the time of such redesignation; and
(2) any property transferred to or from an Unrestricted Subsidiary
shall be valued at its Fair Market Value at the time of such transfer, in
each case as determined in good faith by the Board of Directors of the
Borrower.
"JOINT LEAD ARRANGERS" shall mean Deutsche Bank Securities Inc.,
Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC and Xxxxxx
Brothers Inc.
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"JOINT VENTURE" shall mean any Person, other than an individual or a
Subsidiary of the Borrower, (i) in which the Borrower or a Restricted Subsidiary
of the Borrower holds or acquires an ownership interest (whether by way of
Capital Stock or otherwise) and (ii) which is engaged in a Similar Business.
"JUDGMENT CURRENCY" shall have the meaning provided in Section
14.19(b).
"LENDER" shall have the meaning provided in the preamble to this
Agreement.
"LENDER DEFAULT" shall mean (a) the failure (which has not been
cured) of a Lender to make available its portion of any Borrowing or to fund its
portion of any unreimbursed payment under Section 3.3 or (b) a Lender having
notified the Administrative Agent and/or the Borrower that it does not intend to
comply with the obligations under Section 2.1(a), 2.1(b), 2.1(d) or 3.3.
"LIBOR LOAN" shall mean any Loan bearing interest at the LIBOR Rate
plus the LIBOR Margin.
"LIBOR MARGIN" shall mean 600 basis points.
"LIBOR RATE" shall mean, in the case of any Loan, with respect to
each day during each Interest Period pertaining to such Loan, (a) the rate of
interest determined on the basis of the rate for deposits in Dollars for a
period equal to such Interest Period commencing on the first day of such
Interest Period appearing on Page 3750 of the Telerate screen as of 11:00 a.m.
(London time) two Business Days prior to the beginning of such Interest Period
multiplied by (b) the Statutory Reserve Rate. In the event that any such rate
does not appear on the applicable Page of the Telerate Service (or otherwise on
such service), the "LIBOR RATE" for the purposes of this paragraph shall be
determined by reference to such other publicly available service for displaying
LIBOR rates as may be agreed upon by the Administrative Agent and the Borrower
or, in the absence of such agreement, the "LIBOR RATE" for the purposes of this
paragraph shall instead be the rate PER ANNUM notified to the Administrative
Agent by the Reference Lender as the rate at which the Reference Lender is
offered Dollar deposits at or about 11:00 a.m. (London time) two Business Days
prior to the beginning of such Interest Period in the interbank LIBOR market
where the LIBOR and foreign currency and exchange operations in respect of its
LIBOR Loans are then being conducted for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to the amount of its LIBOR Term Loan or LIBOR Revolving Credit Loan,
as the case may be, to be outstanding during such Interest Period.
"LICENSE SUBSIDIARY" shall mean one or more wholly-owned Restricted
Subsidiaries of the Borrower (i) that holds, was formed for the purpose of
holding or is designated to hold FCC Licenses for the launch and operation of
Satellites or for the operation of any TT&C Earth Station (other than any FCC
License held by Intelsat General Corporation or any of its Subsidiaries) and
(ii) all of the shares of capital stock and other ownership interests of which
are held directly by the Borrower or a Subsidiary Guarantor.
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"LIEN" shall mean, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any other agreement to give a security interest and
any filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction); provided that in
no event shall an operating lease be deemed to constitute a Lien.
"LOAN" shall have the meaning set forth in Section 2.1.
"LOCKHEED NOTE" shall mean the $20.0 million note, dated November 25,
2002 from Intelsat Global Service Corporation to COMSAT Corporation.
"MANDATORY OFFER ELECTION TIME" means, with respect to any Mandatory
Prepayment Offer, noon, New York time, on the Business Day next preceding the
prepayment date with respect to such Mandatory Prepayment Offer.
"MANDATORY PREPAYMENT OFFER" refers to any offer to prepay Loans that
the Borrower is required to make pursuant to any of clauses (a) or (b) of
Section 5.2.
"MASTER INTERCOMPANY SERVICES AGREEMENT" shall mean the Master
Intercompany Services Agreement, dated on or about the Closing Date, among the
Borrower and certain direct and indirect Parent companies and Subsidiaries of
the Borrower, and the other parties thereto, as amended from time to time
(PROVIDED that no such amendment materially affects the ability of the Borrower
to make anticipated principal or interest payments on the Loans).
"MATERIAL ADVERSE CHANGE" shall mean any event or circumstance which
has resulted or is reasonably likely to result in a material adverse change in
the business, assets, operations, properties or financial condition of the
Borrower and its Subsidiaries, taken as a whole or that would materially
adversely affect the ability of the Borrower to perform its obligations under
this Agreement or any of the other Credit Documents.
"MATERIAL ADVERSE EFFECT" shall mean a circumstance or condition
affecting the business, assets, operations, properties or financial condition of
the Borrower and the Subsidiaries, taken as a whole, that would materially
adversely affect (a) the ability of the Borrower to perform its obligations
under this Agreement or any of the other Credit Documents or (b) the rights and
remedies of the Administrative Agent and the Lenders under this Agreement or any
of the other Credit Documents; PROVIDED that the Transactions shall not, in and
of themselves or in the aggregate, constitute a Material Adverse Effect.
"MATERIAL SUBSIDIARY" shall mean, at any date of determination, (1)
any Subsidiary that is a guarantor under and in respect of the Intelsat Bermuda
Guaranteed Fixed Rate Notes and (2) any other Significant Subsidiary of the
Borrower (after giving effect to the Transactions); PROVIDED that no Government
Business Subsidiary (including Intelsat General and its Subsidiaries) shall be
deemed a Material Subsidiary.
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"MOODY'S" shall mean Xxxxx'x Investors Service, Inc. or any successor
by merger or consolidation to its business.
"NET INCOME" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction in
respect of Preferred Stock dividends.
"NET PROCEEDS" shall mean the aggregate cash proceeds received by the
Borrower or any of its Restricted Subsidiaries in respect of any Asset Sale,
including, without limitation, any cash received in respect of or upon the sale
or other disposition of any Designated Non-cash Consideration received in any
Asset Sale, net of the direct costs relating to such Asset Sale and the sale or
disposition of such Designated Non-cash Consideration (including, without
limitation, legal, accounting and investment banking fees, and brokerage and
sales commissions), and any relocation expenses Incurred as a result thereof,
taxes paid or payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements related
thereto), amounts required to be applied to the repayment of principal, premium
(if any) and interest on Indebtedness required (other than pursuant to Section
10.4(b)) to be paid as a result of such transaction (including to obtain any
consent therefor), and any deduction of appropriate amounts to be provided by
the Borrower as a reserve in accordance with GAAP against any liabilities
associated with the asset disposed of in such transaction and retained by the
Borrower after such sale or other disposition thereof, including, without
limitation, pension and other post-employment benefit liabilities and
liabilities related to environmental matters or against any indemnification
obligations associated with such transaction.
"NET TRANSPONDER CAPACITY" shall mean the aggregate transponder
capacity for all in-orbit transponders then owned by the Borrower and its
Restricted Subsidiaries.
"NEW PANAMSAT INDEBTEDNESS" shall mean the (i) 9 % Senior Notes due
2016 of PanAmSat Opco issued on the Closing Date, in each case, including any
exchange notes issued in exchange therefor and (ii) the Intelsat Bermuda
Intercompany Loan.
"NON-CONSENTING LENDER" shall have the meaning provided in Section
14.7.
"NON-DEFAULTING LENDER" shall mean and include each Lender other than
a Defaulting Lender.
"NON-U.S. PARTICIPANT" shall mean any Participant that if it were a
Lender would qualify as a Non-U.S. Lender.
"NOTICE OF BORROWING" shall have the meaning provided in Section 2.3.
"OBLIGATIONS" shall mean any principal, interest, penalties, fees,
indemnifications, reimbursements (including, without limitation, reimbursement
obligations with respect to letters of credit and bankers' acceptances), damages
and other liabilities payable under the documentation governing any
Indebtedness.
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"OFFERING MEMORANDUM" shall mean the Offering Memorandum of the
Borrower dated June 19, 2006 in connection with the Intelsat Bermuda Notes.
"OFFICER" shall mean the Chairman of the Board, Chief Executive
Officer, Chief Financial Officer, President, any Executive Vice President,
Senior Vice President or Vice President, the Treasurer or the Secretary of the
Borrower, any Parent of the Borrower or any of the Borrower's Restricted
Subsidiaries.
"OFFICERS' CERTIFICATE" shall mean a certificate signed on behalf of
the Issuer by two Officers of the Borrower, any Parent of the Borrower or any of
the Borrower's Restricted Subsidiaries, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Borrower, any Parent of the Borrower or any
of the Borrower's Restricted Subsidiaries, that meets the requirements set forth
in this Agreement.
"OTHER TAXES" shall mean any and all present or future stamp,
documentary or any other excise, property or similar taxes (including interest,
fines, penalties, additions to tax and related expenses with regard thereto)
arising directly from any payment made or required to be made under this
Agreement or from the execution or delivery of, registration or enforcement of,
consummation or administration of, or otherwise with respect to, this Agreement
or any other Credit Document.
"PANAMSAT CREDIT AGREEMENT" shall mean (i) the credit agreement
entered into on or prior to, the consummation of the Acquisition, among PanAmSat
Opco and any of its affiliates, the financial institutions named therein and
Citicorp North America Inc. (or an affiliate thereof), as Administrative Agent,
as amended, restated, supplemented, waived, replaced (whether or not upon
termination, and whether with the original lenders or otherwise), restructured,
repaid, refunded, refinanced or otherwise modified from time to time, including
any one or more agreements or indentures extending the maturity thereof,
refinancing, replacing or otherwise restructuring all or any portion of the
Indebtedness under such agreement or agreements or indenture or indentures or
any successor or replacement agreement or agreements or indenture or indentures
or increasing the amount loaned or issued thereunder or altering the maturity
thereof, and (ii) whether or not the credit agreement referred to in clause (i)
remains outstanding, if designated by the Borrower to be included in the
definition of "PanAmSat Credit Agreement," one or more (A) debt facilities or
commercial paper facilities providing for revolving credit loans, term loans,
receivables financing (including through the sale of receivables to lenders or
to special purpose entities formed to borrow from lenders against such
receivables) or letters of credit, (B) debt securities, indentures or other
forms of debt financing (including convertible or exchangeable debt instruments
or bank guarantees or bankers' acceptances), or (C) instruments or agreements
evidencing any other Indebtedness, in each case, with the same or different
borrowers or Borrowers and, in each case, as amended, supplemented, modified,
extended, restructured, renewed, refinanced, restated, replaced or refunded in
whole or in part from time to time.
"PANAMSAT HOLDCO" shall mean PanAmSat Holding Corporation, until a
successor replaces it, and thereafter means such successor.
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"PANAMSAT OPCO" shall mean PanAmSat Corporation, until a successor
replaces it, and thereafter means such successor.
"PARENT" shall mean, with respect to any Person, any direct or
indirect parent company of such Person.
"PARI PASSU INDEBTEDNESS" shall mean:
(1) with respect to the Borrower, the Loans and any Indebtedness
which ranks pari passu in right of payment with the Loans; and
(2) with respect to any Guarantor, its Guarantee and any Indebtedness
which ranks pari passu in right of payment with such Guarantor's Guarantee.
"PARTICIPANT" shall have the meaning provided in Section 14.6(c)(i).
"PAYMENT OFFICE" shall mean the office of the Administrative Agent
located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other office as the
Administrative Agent may designate to the Borrower and the Lenders from time to
time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"PERMITTED DEBT" shall have the meaning provided in Section 10.1.
"PERMITTED HOLDERS" shall mean, at any time, the Sponsors. Any person
or group whose acquisition of beneficial ownership constitutes a Change of
Control in respect of which a Change of Control Offer is made in accordance with
the requirements of this Agreement will thereafter, together with its
Affiliates, constitute an additional Permitted Holder.
"PERMITTED INVESTMENTS" shall mean:
(1) any Investment in the Borrower or any Restricted Subsidiary;
(2) any Investment in Cash Equivalents or Investment Grade
Securities;
(3) any Investment by the Borrower or any Restricted Subsidiary of
the Borrower in a Person that is primarily engaged in a Similar Business if
as a result of such Investment (a) such Person becomes a Restricted
Subsidiary of the Borrower, or (b) such Person, in one transaction or a
series of related transactions, is merged, consolidated or amalgamated with
or into, or transfers or conveys all or substantially all of its assets to,
or is liquidated into, the Borrower or a Restricted Subsidiary of the
Borrower;
(4) any Investment in securities or other assets not constituting
Cash Equivalents and received in connection with an Asset Sale made
pursuant to the provisions of Section 10.4 or any other disposition of
assets not constituting an Asset Sale;
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(5) any Investment existing on the Closing Date and any Investments
made pursuant to binding commitments in effect on the Closing Date;
(6) advances to employees not in excess of $40.0 million outstanding
at any one time in the aggregate;
(7) any Investment acquired by the Borrower or any of its Restricted
Subsidiaries (a) in exchange for any other Investment or accounts
receivable held by the Borrower or any such Restricted Subsidiary in
connection with or as a result of a bankruptcy, workout, reorganization or
recapitalization of the Borrower of such other Investment or accounts
receivable, or (b) as a result of a foreclosure by the Borrower or any of
its Restricted Subsidiaries with respect to any secured Investment or other
transfer of title with respect to any secured Investment in default;
(8) Hedging Obligations permitted under Section 10.1(b)(x);
(9) [Reserved];
(10) additional Investments by the Borrower or any of its Restricted
Subsidiaries having an aggregate Fair Market Value, taken together with all
other Investments made pursuant to this clause (10) that are at that time
outstanding, not to exceed the greater of (x) $350.0 million and (y) 3% of
Total Assets of the Borrower at the time of such Investment (with the Fair
Market Value of each Investment being measured at the time made and without
giving effect to subsequent changes in value); provided, however, that if
any Investment pursuant to this clause (10) is made in any Person that is
not a Restricted Subsidiary of the Borrower at the date of the making of
such Investment and such Person becomes a Restricted Subsidiary of the
Borrower after such date, such Investment shall thereafter be deemed to
have been made pursuant to clause (1) above and shall cease to have been
made pursuant to this clause (10) for so long as such Person continues to
be a Restricted Subsidiary;
(11) loans and advances to officers, directors and employees for
business-related travel expenses, moving and relocation expenses and other
similar expenses, in each case Incurred in the ordinary course of business;
(12) Investments the payment for which consists of Equity Interests
of the Borrower or any Parent of the Borrower (other than Disqualified
Stock); provided, however, that such Equity Interests will not increase the
amount available for Restricted Payments under the calculation set forth in
the definition of the term "Cumulative Credit";
(13) any transaction to the extent it constitutes an Investment that
is permitted by and made in accordance with the provisions of Section
10.5(b) (except transactions described in clauses (ii)(a), (vi), (vii) and
(xi)(B) of such Section);
(14) Investments consisting of the licensing or contribution of
intellectual property pursuant to joint marketing arrangements with other
Persons;
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(15) guarantees not prohibited by or required pursuant to, as the
case may be, Section 10.1 and 10.7; PROVIDED that the proceeds of the
Indebtedness being guaranteed would be applied in a manner that would
otherwise comply with Section 10.2(a) (other than Section 10.2(a)(iv));
(16) any Investments by Subsidiaries that are not Restricted
Subsidiaries in other Subsidiaries that are not Restricted Subsidiaries of
the Borrower;
(17) Investments consisting of purchases and acquisitions of
inventory, supplies, materials and equipment or purchases of contract
rights or licenses or leases of intellectual property in each case in the
ordinary course of business;
(18) any Investment in a Receivables Subsidiary or any Investment by
a Receivables Subsidiary in any other Person in connection with a Qualified
Receivables Financing, including Investments of funds held in accounts
permitted or required by the arrangements governing such Qualified
Receivables Financing or any related Indebtedness; PROVIDED, HOWEVER, that
any Investment in a Receivables Subsidiary is in the form of a Purchase
Money Note, contribution of additional receivables or an equity interest;
(19) Investments resulting from the receipt of non-cash consideration
in a sale of assets or property that does not constitute an Asset Sale or
in an Asset Sale received in compliance with Sections 5.2(b) and 10.4;
(20) additional Investments in Joint Ventures of the Borrower or any
of its Restricted Subsidiaries existing on the Closing Date in an aggregate
amount not to exceed $50.0 million outstanding at any one time;
(21) Investments of a Restricted Subsidiary of the Borrower acquired
after the Closing Date or of an entity merged into, amalgamated with, or
consolidated with a Restricted Subsidiary of the Borrower in a transaction
that is not prohibited by Section 10.10 after the Closing Date to the
extent that such Investments were not made in contemplation of such
acquisition, merger, amalgamation or consolidation and were in existence on
the date of such acquisition, merger, amalgamation or consolidation;
(22) Investments in Subsidiaries or Joint Ventures formed for the
purpose of selling or leasing transponders or transponder capacity to
third-party customers in the ordinary course of business of the Borrower
and its Restricted Subsidiaries which investments are in the form of
transfers to such Subsidiaries or Joint Ventures for fair market value
transponders or transponder capacity sold or to be sold or leased or to be
leased by such Subsidiaries or Joint Ventures; PROVIDED that all such
Investments in Subsidiaries and Joint Ventures do not exceed 10% of Net
Transponder Capacity; and
(23) any Investment in the Intelsat Bermuda Notes or the Loans.
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"PERMITTED LIENS" shall mean, with respect to any Person:
(1) pledges or deposits by such Person under workmen's compensation
laws, unemployment insurance laws or similar legislation, or good faith
deposits in connection with bids, tenders, contracts (other than for the
payment of Indebtedness) or leases to which such Person is a party, or
deposits to secure public or statutory obligations of such Person or
deposits of cash or U.S. government bonds to secure surety or appeal bonds
to which such Person is a party, or deposits as security for contested
taxes or import duties or for the payment of rent, in each case Incurred in
the ordinary course of business;
(2) Liens imposed by law, such as carriers', warehousemen's and
mechanics' Liens, in each case for sums not yet due or being contested in
good faith by appropriate proceedings or other Liens arising out of
judgments or awards against such Person with respect to which such Person
shall then be proceeding with an appeal or other proceedings for review;
(3) Liens for taxes, assessments or other governmental charges not
yet due or payable or subject to penalties for nonpayment or which are
being contested in good faith by appropriate proceedings;
(4) Liens in favor of issuers of performance and surety bonds or bid
bonds or with respect to other regulatory requirements or letters of credit
issued at the request of and for the account of such Person in the ordinary
course of its business;
(5) minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, licenses, rights-of-way, sewers,
electric lines, telegraph and telephone lines and other similar purposes,
or zoning or other restrictions as to the use of real properties or Liens
incidental to the conduct of the business of such Person or to the
ownership of its properties which were not Incurred in connection with
Indebtedness and which do not in the aggregate materially adversely affect
the value of said properties or materially impair their use in the
operation of the business of such Person;
(6) (A) Liens securing an aggregate principal amount of Pari Passu
Indebtedness not to exceed the greater of (x) the aggregate principal
amount of Pari Passu Indebtedness permitted to be Incurred pursuant to
Section 10.1(b)(i) and (y) the maximum principal amount of Indebtedness
that, as of such date, and after giving effect to the Incurrence of such
Indebtedness and the application of the proceeds therefrom on such date,
would not cause the Secured Indebtedness Leverage Ratio of the Borrower to
exceed 2.50 to 1.00 and (B) Liens securing Indebtedness permitted to be
Incurred pursuant to Section 10.1(b)(ii), (iv) (PROVIDED that such Liens do
not extend to any property or assets that are not property being purchased,
leased, constructed or improved with the proceeds of such Indebtedness
being Incurred pursuant to clause (iv)), (xii) or (xx) of Section 10.1(b);
PROVIDED that in the case of Section 10.1(b)(xx), such Lien does not extend
to the property or assets of the Borrower;
(7) Liens existing on the Closing Date;
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(8) Liens on assets, property or shares of stock of a Person at the
time such Person becomes a Subsidiary; PROVIDED, HOWEVER, that such Liens
are not created or Incurred in connection with, or in contemplation of,
such other Person becoming such a Subsidiary; PROVIDED, FURTHER, HOWEVER,
that such Liens may not extend to any other property owned by the Borrower
or any Subsidiary Guarantor of the Borrower;
(9) Liens on assets or property at the time the Borrower or a
Restricted Subsidiary of the Borrower acquired the assets or property,
including any acquisition by means of a merger, amalgamation or
consolidation with or into the Borrower or any Restricted Subsidiary of the
Borrower; PROVIDED, HOWEVER, that such Liens are not created or Incurred in
connection with, or in contemplation of, such acquisition; PROVIDED,
FURTHER, HOWEVER, that the Liens may not extend to any other assets or
property owned by the Borrower or any Restricted Subsidiary of the
Borrower;
(10) Liens securing Indebtedness or other obligations of a Restricted
Subsidiary owing to the Borrower or another Restricted Subsidiary of the
Borrower permitted to be Incurred in accordance with Section 10.1;
(11) Liens securing Hedging Obligations permitted to be Incurred
under clause (x) of Section 10.1(b);
(12) Liens on specific items of inventory or other goods and proceeds
of any Person securing such Person's obligations in respect of bankers'
acceptances issued or created for the account of such Person to facilitate
the purchase, shipment or storage of such inventory or other goods;
(13) leases and subleases of real property which do not materially
interfere with the ordinary conduct of the business of the Borrower or any
of its Restricted Subsidiaries;
(14) Liens arising from Uniform Commercial Code financing statement
filings regarding operating leases entered into by the Borrower and its
Restricted Subsidiaries in the ordinary course of business;
(15) Liens in favor of the Borrower or any Restricted Subsidiary;
(16) Liens on equipment of the Borrower or any Restricted Subsidiary
granted in the ordinary course of business to the Borrower's client at
which such equipment is located;
(17) Liens on accounts receivable and related assets of the type
specified in the definition of "Receivables Financing" Incurred in
connection with a Qualified Receivables Financing;
(18) deposits made in the ordinary course of business to secure
liability to insurance carriers;
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(19) Liens on the Equity Interests of Unrestricted Subsidiaries;
(20) grants of software and other technology licenses in the ordinary
course of business;
(21) Liens to secure any refinancing, refunding, extension, renewal
or replacement (or successive refinancings, refundings, extensions,
renewals or replacements) as a whole, or in part, of any Indebtedness
secured by any Lien referred to in the foregoing clauses (6)(B), (7), (8),
(9), (10), (11) and (15); PROVIDED, HOWEVER, that (x) such new Lien shall
be limited to all or part of the same property that secured the original
Lien (plus improvements on such property), and (y) the Indebtedness secured
by such Lien at such time is not increased to any amount greater than the
sum of (A) the outstanding principal amount or, if greater, committed
amount of the Indebtedness described under clauses (6)(B), (7), (8), (9),
(10), (11) and (15) at the time the original Lien became a Permitted Lien
under this Agreement, and (B) an amount necessary to pay any fees and
expenses, including premiums, related to such refinancing, refunding,
extension, renewal or replacement; and
(22) other Liens securing obligations Incurred in the ordinary course
of business which obligations do not exceed $75.0 million at any one time
outstanding.
"PERSON" shall mean any individual, corporation, partnership, limited
liability company, Joint Venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"PLAN" shall mean any multiemployer or single-employer plan, as
defined in Section 4001 of ERISA and subject to Title IV of ERISA, that is or
was within any of the preceding six plan years maintained or contributed to by
(or to which there is or was an obligation to contribute or to make payments to)
the Borrower, a Subsidiary or an ERISA Affiliate.
"PREFERRED STOCK" shall mean any Equity Interest with preferential
right of payment of dividends or upon liquidation, dissolution or winding up.
"PRESUMED TAX RATE" shall mean the highest effective marginal
statutory combined U.S. federal, state and local income tax rate prescribed for
an individual residing in New York City (taking into account (i) the
deductibility of state and local income taxes for U.S. federal income tax
purposes, assuming the limitation of Section 68(a)(2) of the Code applies and
taking into account any impact of Section 68(f) of the Code, and (ii) the
character (long-term or short-term capital gain, dividend income or other
ordinary income) of the applicable income).
"PRIVATE ACT" shall mean separate legislation enacted in Bermuda with
the intention that such legislation apply specifically to a Credit Party, in
whole or in part.
"PURCHASE MONEY NOTE" shall mean a promissory note of a Receivables
Subsidiary evidencing a line of credit, which may be irrevocable, from the
Borrower or any Subsidiary of the Borrower to a Receivables Subsidiary in
connection with a Qualified Receivables Financ-
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ing, which note is intended to finance that portion of the purchase price that
is not paid by cash or a contribution of equity.
"PUT LOANS" shall mean to all Loans (or portions thereof) held by
Lenders that have notified the Administrative Agent in writing of such Lenders'
elections (and that have not subsequently validly withdrawn such elections) to
require all or a portion of such Loans to be prepaid in any Mandatory Prepayment
Offer in accordance with Section 5.2(c).
"QUALIFIED RECEIVABLES FINANCING" shall mean any Receivables
Financing of a Receivables Subsidiary that meets the following conditions:
(1) the Board of Directors of the Borrower shall have determined in
good faith that such Qualified Receivables Financing (including financing
terms, covenants, termination events and other provisions) is in the
aggregate economically fair and reasonable to the Borrower and the
Receivables Subsidiary,
(2) all sales of accounts receivable and related assets to the
Receivables Subsidiary are made at Fair Market Value (as determined in good
faith by the Borrower), and
(3) the financing terms, covenants, termination events and other
provisions thereof shall be market terms (as determined in good faith by
the Borrower) and may include Standard Securitization Undertakings.
The grant of a security interest in any accounts receivable of the
Borrower or any of its Restricted Subsidiaries (other than a Receivables
Subsidiary) to secure Bank Indebtedness shall not be deemed a Qualified
Receivables Financing.
"RATING AGENCY" shall mean (1) each of Xxxxx'x and S&P and (2) if
Moodys or S&P ceases to rate the Loans for reasons outside of the Borrower's
control, a "nationally recognized statistical rating organization" within the
meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the
Borrower or any Parent of the Borrower as a replacement agency for Moody's or
S&P, as the case may be.
"RECEIVABLES FEES" shall mean distributions or payments made directly
or by means of discounts with respect to any participation interest issued or
sold in connection with, and other fees paid to a Person that is not a
Restricted Subsidiary in connection with, any Receivables Financing.
"RECEIVABLES FINANCING" shall mean any transaction or series of
transactions that may be entered into by the Borrower or any of its Subsidiaries
pursuant to which the Borrower or any of its Subsidiaries may sell, convey or
otherwise transfer to (a) a Receivables Subsidiary (in the case of a transfer by
the Borrower or any of its Subsidiaries), and (b) any other Person (in the case
of a transfer by a Receivables Subsidiary), or may grant a security interest in,
any accounts receivable (whether now existing or arising in the future) of the
Borrower or any of its Subsidiaries, and any assets related thereto including,
without limitation, all collateral securing such accounts receivable, all
contracts and all guarantees or other obligations in respect of such accounts
receivable, proceeds of such accounts receivable and other assets which are
customarily trans-
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ferred or in respect of which security interests are customarily granted in
connection with asset securitization transactions involving accounts receivable
and any Hedging Obligations entered into by the Borrower or any such Subsidiary
in connection with such accounts receivable.
"RECEIVABLES REPURCHASE OBLIGATION" shall mean any obligation of a
seller of receivables in a Qualified Receivables Financing to repurchase
receivables arising as a result of a breach of a representation, warranty or
covenant or otherwise, including as a result of a receivable or portion thereof
becoming subject to any asserted defense, dispute, off-set or counterclaim of
any kind as a result of any action taken by, any failure to take action by or
any other event relating to the seller.
"RECEIVABLES SUBSIDIARY" shall mean a Wholly Owned Restricted
Subsidiary of the Borrower (or another Person formed for the purposes of
engaging in a Qualified Receivables Financing with the Borrower in which the
Borrower or any Subsidiary of the Borrower makes an Investment and to which the
Borrower or any Subsidiary of the Borrower transfers accounts receivable and
related assets) which engages in no activities other than in connection with the
financing of accounts receivable of the Borrower and its Subsidiaries, all
proceeds thereof and all rights (contractual or other), collateral and other
assets relating thereto, and any business or activities incidental or related to
such business, and which is designated by the Board of Directors of the Borrower
(as provided below) as a Receivables Subsidiary and:
(a) no portion of the Indebtedness or any other obligations
(contingent or otherwise) of which (i) is guaranteed by the Borrower or any
other Subsidiary of the Borrower (excluding guarantees of obligations
(other than the principal of, and interest on, Indebtedness) pursuant to
Standard Securitization Undertakings), (ii) is recourse to or obligates the
Borrower or any other Subsidiary of the Borrower in any way other than
pursuant to Standard Securitization Undertakings or (iii) subjects any
property or asset of the Borrower or any other Subsidiary of the Borrower,
directly or indirectly, contingently or otherwise, to the satisfaction
thereof, other than pursuant to Standard Securitization Undertakings,
(b) with which neither the Borrower nor any other Subsidiary of the
Borrower has any material contract, agreement, arrangement or understanding
other than on terms which the Borrower reasonably believes to be no less
favorable to the Borrower or such Subsidiary than those that might be
obtained at the time from Persons that are not Affiliates of the Borrower,
and
(c) to which neither the Borrower nor any other Subsidiary of the
Borrower has any obligation to maintain or preserve such entity's financial
condition or cause such entity to achieve certain levels of operating
results.
Any such designation by the Board of Directors of the Borrower shall
be evidenced to the Administrative Agent by providing the Administrative Agent
with a certified copy of the resolution of the Board of Directors of the
Borrower giving effect to such designation and certificate of an Authorized
Officer certifying that such designation complied with the foregoing conditions.
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"REFERENCE LENDER" shall mean the Administrative Agent.
"REGISTER" shall have the meaning provided in Section 14.6(b)(iv).
"REGISTRATION RIGHTS AGREEMENT" shall mean the registration rights
agreement substantially is the form of Exhibit H.
"REGULATION D" shall mean Regulation D of the Board as from time to
time in effect and any successor to all or a portion thereof establishing
reserve requirements.
"REGULATION T" shall mean Regulation T of the Board as from time to
time in effect and any successor to all or a portion thereof establishing margin
requirements.
"REGULATION U" shall mean Regulation U of the Board as from time to
time in effect and any successor to all or a portion thereof establishing margin
requirements.
"REGULATION X" shall mean Regulation X of the Board as from time to
time in effect and any successor to all or a portion thereof establishing margin
requirements.
"REPORTABLE EVENT" shall mean an event described in Section 4043 of
ERISA and the regulations thereunder.
"REQUIRED LENDERS" shall mean, at any date, (a) Non-Defaulting
Lenders having or holding a majority of the outstanding principal amount of the
Loans (excluding Loans held by Defaulting Lenders) at such date.
"REQUIREMENT OF LAW" shall mean, 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 or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or assets or to which such
Person or any of its property or assets is subject.
"RESTRICTED INVESTMENT" shall means an Investment other than a
Permitted Investment.
"RESTRICTED SUBSIDIARY" shall mean, with respect to any Person, any
Subsidiary of such Person other than an Unrestricted Subsidiary of such Person.
Unless otherwise indicated in this Agreement, all references to Restricted
Subsidiaries shall mean Restricted Subsidiaries of the Borrower.
"S&P" shall mean Standard & Poor's Ratings Group or any successor to
the rating agency business thereof.
"SALE/LEASEBACK TRANSACTION" shall mean an arrangement relating to
property now owned or hereafter acquired by the Borrower or a Restricted
Subsidiary whereby the Borrower or a Restricted Subsidiary transfers such
property to a Person and the Borrower or such Restricted Subsidiary leases it
from such Person, other than leases between the Borrower and a Restricted
Subsidiary of the Borrower or between Restricted Subsidiaries of the Borrower.
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"SATELLITE" shall mean any satellite owned by the Borrower or any of
its Restricted Subsidiaries and any satellite purchased pursuant to the terms of
a Satellite Purchase Agreement, whether such satellite is in the process of
manufacture, has been delivered for launch or is in orbit (whether or not in
operational service).
"SATELLITE MANUFACTURER" shall mean, with respect to any Satellite,
the prime contractor and manufacturer of such Satellite.
"SATELLITE PURCHASE AGREEMENT" shall mean, with respect to any
Satellite, the agreement between the applicable Satellite Purchaser and the
applicable Satellite Manufacturer relating to the manufacture, testing and
delivery of such Satellite.
"SATELLITE PURCHASER" shall mean the Borrower or Restricted
Subsidiary that is a party to a Satellite Purchase Agreement.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"SECURED INDEBTEDNESS" shall mean any Indebtedness secured by a Lien.
"SECURED INDEBTEDNESS LEVERAGE RATIO" shall mean, with respect to any
Person, at any date the ratio of (i) Secured Indebtedness of such Person and its
Restricted Subsidiaries as of such date of calculation (determined on a
consolidated basis in accordance with GAAP) to (ii) Adjusted EBITDA of such
Person for the four full fiscal quarters for which internal financial statements
are available immediately preceding such date on which such additional
Indebtedness is Incurred. In the event that such Person or any of its Restricted
Subsidiaries Incurs or redeems any Indebtedness subsequent to the commencement
of the period for which the Secured Indebtedness Leverage Ratio is being
calculated but prior to the event for which the calculation of the Secured
Indebtedness Leverage Ratio is made (the "SECURED LEVERAGE CALCULATION DATE"),
then the Secured Indebtedness Leverage Ratio shall be calculated giving pro
forma effect to such Incurrence or redemption of Indebtedness as if the same had
occurred at the beginning of the applicable four-quarter period.
For purposes of making the computation referred to above,
Investments, acquisitions, dispositions, mergers, amalgamations, consolidations
and discontinued operations (as determined in accordance with GAAP), in each
case with respect to an operating unit of a business, and other operational
changes that such Person or any of its Restricted Subsidiaries has both
determined to make and made after January 28, 2005 and during the four-quarter
reference period or subsequent to such reference period and on or prior to or
simultaneously with the Secured Leverage Calculation Date shall be calculated on
a pro forma basis assuming that all such Investments, acquisitions,
dispositions, mergers, consolidations, discontinued operations and other
operational changes (and the change in Adjusted EBITDA resulting therefrom) had
occurred on the first day of the four-quarter reference period. If since the
beginning of such period any Person that subsequently became a Restricted
Subsidiary or was merged with or into such Person or any Restricted Subsidiary
since the beginning of such period shall have made any Investment, acquisition,
disposition, merger, amalgamation, consolidation, discontinued operation or
operational change, in each case with respect to an operating unit of a
business, that would have re-
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quired adjustment pursuant to this definition, then the Secured Indebtedness
Leverage Ratio shall be calculated giving pro forma effect thereto for such
period as if such Investment, acquisition, disposition, discontinued operation,
merger, consolidation or operational change had occurred at the beginning of the
applicable four-quarter period.
For purposes of this definition, whenever pro forma effect is to be
given to any transaction, the pro forma calculations shall be made in good faith
by a responsible financial or accounting officer of the Borrower. Any such pro
forma calculation may include adjustments appropriate, in the reasonable
determination of the Borrower as set forth in an Officers' Certificate, to
reflect, among other things, (1) operating expense reductions and other
operating improvements or synergies reasonably expected to result from any
acquisition, merger or operational change (including, to the extent applicable,
from the Transactions) and (2) all adjustments used in connection with the
calculation of "Adjusted EBITDA" as set forth in footnote 4 to the "Summary
Historical and Pro Forma Consolidated Financial Data" under "Offering Memorandum
Summary" in the Offering Memorandum to the extent such adjustments, without
duplication, continue to be applicable to such four-quarter period.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"SENIOR CREDIT DOCUMENTS" shall mean the collective reference to any
Credit Agreement, the notes issued pursuant thereto and the guarantees thereof,
and the collateral documents relating thereto, as amended, supplemented or
otherwise modified from time to time.
"SIGNIFICANT SUBSIDIARY" shall means any Restricted Subsidiary that
would be a "significant subsidiary" of the Borrower within the meaning of Rule
1-02 under Regulation S-X promulgated by the SEC or any successor provision.
"SIMILAR BUSINESS" shall mean any business or activity of the
Borrower or any of its Subsidiaries currently conducted or proposed as of the
Closing Date, or any business or activity that is reasonably similar thereto or
a reasonable extension, development or expansion thereof, or is complementary,
incidental, ancillary or related thereto.
"SOLVENT" shall mean that, as of any date of determination, both (i)
(a) the sum of the Borrower's respective debt (including contingent liabilities)
does not exceed the present fair saleable value of the Borrower's respective
present assets; (b) the Borrower's capital is not unreasonably small in relation
to its respective businesses as contemplated on the Closing Date; and (c) the
Borrower has not incurred and does not intend to incur, or believe that it will
incur, debts including current obligations beyond its ability to pay such debts
as they become due (whether at maturity or otherwise); and (ii) the Borrower is
"solvent" within the meaning given that term and similar terms under applicable
laws relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability (irrespective of whether such contingent liabilities
meet the criteria for accrual under Statement of Financial Accounting Standard
No. 5).
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"SPECIFIED EXISTING PANAMSAT NOTES" shall mean (i) the 10 3/8%
discount notes and (ii) the 9% Senior Notes due 2014 of PanAmSat Opco.
"SPECIFIED INTERCOMPANY AGREEMENTS" shall mean the Master
Intercompany Services Agreement, the Employee Transfer Agreement, the G2
Transfer Agreement and the agreements or promissory notes evidencing the
Intelsat Bermuda Intercompany Loan and, in each case, agreements in connection
therewith.
"SPECIFIED MERGER/TRANSFER" shall have the meaning provided in
Section 10.10(a).
"SPECIFIED SALE/LEASEBACK TRANSACTION" shall mean one Sale/Leaseback
Transaction pursuant to which the Borrower or its Restricted Subsidiaries sell
one Satellite and related assets that is designated as a Specified
Sale/Leaseback Transaction pursuant to an Officers' Certificate.
"SPONSORS" shall mean (1) one or more investment funds advised,
managed or controlled by Apax Partners Worldwide LLP and Apax Partners, L.P.,
(2) one or more investment funds advised, managed or controlled by Apollo
Management V, L.P., (3) one or more investment funds advised, managed or
controlled by Madison Dearborn Partners and (4) one or more investment funds
advised, managed or controlled by Permira Advisers LLC and, in each case,
(whether individually or as a group) their Affiliates.
"STANDARD SECURITIZATION UNDERTAKINGS" shall mean representations,
warranties, covenants, indemnities and guarantees of performance entered into by
the Borrower or any Subsidiary of the Borrower which the Borrower has determined
in good faith to be customary in a Receivables Financing including, without
limitation, those relating to the servicing of the assets of a Receivables
Subsidiary, it being understood that any Receivables Repurchase Obligation shall
be deemed to be a Standard Securitization Undertaking.
"STATED MATURITY" shall mean, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the Borrower unless such
contingency has occurred).
"STATUTORY RESERVE RATE" shall mean, for any day as applied to any
LIBOR Loan, a fraction (expressed as a decimal), the numerator of which is the
number one and the denominator of which is the number one minus the aggregate of
the maximum reserve percentages that are in effect on that day (including any
marginal, special, emergency or supplemental reserves), expressed as a decimal,
as prescribed by the Board and to which the Administrative Agent is subject, for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. LIBOR Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any compara-
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ble regulation. The Statutory Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in any reserve percentage.
"SUBORDINATED INDEBTEDNESS" shall mean (a) with respect to the
Borrower, any Indebtedness of the Borrower which is by its terms subordinated in
right of payment to the Loans, and (b) with respect to any Guarantor, any
Indebtedness of such Guarantor which is by its terms subordinated in right of
payment to its Guarantee.
"SUBSIDIARY" shall mean, with respect to any Person, (1) any
corporation, association or other business entity (other than a partnership,
joint venture or limited liability company) of which more than 50% of the total
voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time of determination owned or controlled, directly
or indirectly, by such Person or one or more of the other Subsidiaries of such
Person or a combination thereof, (2) any partnership, joint venture or limited
liability company of which (x) more than 50% of the capital accounts,
distribution rights, total equity and voting interests or general and limited
partnership interests, as applicable, are owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of that
Person or a combination thereof, whether in the form of membership, general,
special or limited partnership interests or otherwise, and (y) such Person or
any Restricted Subsidiary of such Person is a controlling general partner or
otherwise controls such entity and (3) any Person that is consolidated in the
consolidated financial statements of the specified Person in accordance with
GAAP.
"SUBSIDIARY GUARANTEE" shall mean any Guarantee, made by any
Subsidiary Guarantor, if any, in favor of the Administrative Agent for the
benefit of the Lenders, substantially in the form of Exhibit A hereto, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof and hereof.
"SUBSIDIARY GUARANTORS" shall mean each Subsidiary that becomes a
Guarantor pursuant to Section 10.7.
"SUBSIDIARY TRANSFER TRANSACTIONS" shall mean the transfer of all or
a portion of the equity, assets and liabilities of any of the Borrower or any of
its Restricted Subsidiaries between or among any of the Borrower and/or any of
its Restricted Subsidiaries.
"SUCCESSOR BORROWER" shall have the meaning provided in Section
10.3(a).
"SYNDICATION AGENT" shall mean Deutsche Bank Securities Inc.,
together with its affiliates under this Agreement and the other Credit
Documents.
"TAX-AFFECTED INVESTOR" shall mean any holder of capital stock in any
Parent of the Borrower that is subject (or if such holder is a Flow-Through
Entity, any partner in which is subject) to a tax regime (for example, as a
United States shareholder within the meaning of section 951(b) of the Code) that
requires such person to recognize on a current basis taxable income attributable
to earnings and profits of the Borrower, or its Subsidiaries in advance of any
distribution of such earnings and profits.
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"TAXES" shall mean any and all present or future taxes, duties,
levies, imposts, assessments, deductions, withholdings or other similar charges
imposed by any Governmental Authority whether computed on a separate,
consolidated, unitary, combined or other basis and any and all liabilities
(including interest, fines, penalties or additions to tax) with respect to the
foregoing.
"TOTAL ASSETS" means, with respect to any Person, the total
consolidated assets of such Person and its Restricted Subsidiaries, as shown on
the most recent balance sheet; provided that until the Borrower files a Form
10-Q following the date of the Acquisition, such calculation shall be on a pro
forma basis after giving effect to the Transactions.
"TRANSACTION AGREEMENT" shall mean the Merger Agreement, dated as of
August 28, 2005, among Borrower, PanAmSat Holdco and the other parties thereto,
as amended, supplemented or modified from time to time.
"TRANSACTIONS" shall mean the Acquisition and the transactions
related thereto, including as contemplated by the Acquisition Documents
(including any Equity Interest payments made in connection therewith (whether on
the Closing Date or thereafter)), the incurrence of the New PanAmSat
Indebtedness, the Intelsat Bermuda Notes, amendments and borrowings made
pursuant to (and/or refinancing of) the Credit Agreements and this Agreement at
the time of closing, if any, the execution and performance of the Specified
Intercompany Agreements, the repurchase of the Specified Existing PanAmSat Notes
and the funding thereof, the Subsidiary Transfer Transactions, and the other
transactions in connection with the foregoing.
"TRANSFEREE" shall have the meaning provided in Section 14.6(e).
"TT&C EARTH STATION" shall mean any earth station licensed for
operation by the FCC or by any international, federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body,
authority, agency or commission or legislative body or other governmental entity
outside of the United States used for the provision of TT&C Services that is
owned and operated by the Borrower or any of its Subsidiaries.
"TT&C SERVICES" shall mean the provision of tracking, telemetry and
command services for the purposes of operational control of any Satellite.
"UNFUNDED CURRENT LIABILITY" of any Plan shall mean the amount, if
any, by which the present value of the accrued benefits under the Plan as of the
close of its most recent plan year, determined in accordance with Statement of
Financial Accounting Standards No. 87 as in effect on the Closing Date, based
upon the actuarial assumptions that would be used by the Plan's actuary in a
termination of the Plan, exceeds the fair market value of the assets allocable
thereto.
"UNRESTRICTED SUBSIDIARY" shall mean:
(1) any Subsidiary of the Borrower that at the time of determination
shall be designated an Unrestricted Subsidiary by the Board of Directors of
such Person in the manner provided below; and
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(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors of the Borrower may designate any Subsidiary
of the Borrower (including any newly acquired or newly formed Subsidiary of the
Borrower) to be an Unrestricted Subsidiary unless such Subsidiary or any of its
Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any
Lien on any property of, the Borrower or any other Subsidiary of the Borrower
that is not a Subsidiary of the Subsidiary to be so designated; PROVIDED,
HOWEVER, that the Subsidiary to be so designated and its Subsidiaries do not at
the time of designation have and do not thereafter Incur any Indebtedness
pursuant to which the lender has recourse to any of the assets of the Borrower
or any of its Restricted Subsidiaries (other than Equity Interests of
Unrestricted Subsidiaries); PROVIDED, FURTHER, HOWEVER, that either:
(a) the Subsidiary to be so designated has total consolidated assets
of $1,000 or less; or
(b) if such Subsidiary has consolidated assets greater than $1,000,
then such designation would be permitted under Section 10.2.
The Board of Directors of the Borrower may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; PROVIDED, HOWEVER, that immediately
after giving effect to such designation no Event of Default shall have occurred
and be continuing and either (1) the Borrower could Incur $1.00 of additional
Indebtedness pursuant to the Debt to Adjusted EBITDA Ratio test described in
Section 10.1(a) or (2) the Debt to Adjusted EBITDA Ratio for the Borrower and
its Restricted Subsidiaries would be less than such ratio for the Borrower and
its Restricted Subsidiaries immediately prior to such designation, in each case
on a pro forma basis taking into account such designation.
Any such designation by the Board of Directors of the Borrower shall
be evidenced to the Trustee by promptly filing with the Trustee a copy of the
resolution of the Board of Directors of the Borrower giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"U.S. DOLLAR EQUIVALENT" shall mean, with respect to any monetary
amount in a currency other than U.S. Dollars, at any time for the
determination thereof, the amount of U.S. Dollars obtained by converting
such foreign currency involved in such computation into U.S. Dollars at
the spot rate for the purchase of U.S. Dollars with the applicable foreign
currency as quoted by Reuters at approximately 10:00 A.M. (New York City
time) on such date of determination (or if no such quote is available on
such date, on the immediately preceding Business Day for which such a
quote is available).
"U.S. GOVERNMENT OBLIGATIONS" shall mean securities that are:
(1) direct obligations of the United States of America for the timely
payment of which its full faith and credit is pledged, or
(2) obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America the timely
payment of which is
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unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in each case, are not callable or
redeemable at the option of the Borrower thereof, and shall also include a
depository receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any such U.S. Government
Obligations or a specific payment of principal of or interest on any such
U.S. Government Obligations held by such custodian for the account of the
holder of such depository receipt; provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligations or the
specific payment of principal of or interest on the U.S. Government
Obligations evidenced by such depository receipt.
"VOTING STOCK" of any Person as of any date shall mean the Capital
Stock of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" shall mean, when applied to any
Indebtedness or Disqualified Stock, as the case may be, at any date, the
quotient obtained by dividing (1) the sum of the products of the number of years
from the date of determination to the date of each successive scheduled
principal payment of such Indebtedness or redemption or similar payment with
respect to such Disqualified Stock multiplied by the amount of such payment, by
(2) the sum of all such payments.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" is any Wholly Owned Subsidiary
that is a Restricted Subsidiary.
"WHOLLY OWNED SUBSIDIARY" of any Person shall mean a Subsidiary of
such Person 100% of the outstanding Capital Stock or other ownership interests
of which (other than directors' qualifying shares or shares or interests
required to be held by foreign nationals) shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person and one or
more Wholly Owned Subsidiaries of such Person.
The words "hereof," "herein" 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 references are to
Sections of this Agreement unless otherwise specified. The words "include,"
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation." Each reference to an agreement or document herein shall mean such
agreement or document as from time to time amended, supplemented or modified in
accordance with its terms, unless expressly stated otherwise.
SECTION 2. AMOUNT AND TERMS OF CREDIT.
2.1. COMMITMENTS.
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(a) Subject to and upon the terms and conditions herein set forth,
each Lender having a Commitment severally agrees to make a loan or loans (each a
"LOAN") on the Closing Date to the Borrower in Dollars, which Loans shall not
exceed for any such Lender the respective Commitment of such Lender and in the
aggregate shall not exceed $600,000,000.
Such Loans (i) shall be made on the Closing Date, (ii) except as set
forth herein, shall be incurred and maintained as LIBOR Loans, (iii) may be
repaid or prepaid in accordance with the provisions hereof, but once repaid or
prepaid, may not be reborrowed, (iv) shall not exceed for any such Lender the
Commitment of such Lender and (v) shall not exceed in the aggregate the total of
all Commitments. On the Initial Maturity Date, all then unpaid Loans shall
either (x) be repaid in full or (y) be exchanged for Exchange Notes in
accordance with Section 2.1(b). Upon any such repayment in full or exchange
pursuant to this Section 2.1, this Agreement shall be of no further force or
effect (other than any fees payable pursuant to Section 4.1).
(b) (i) Subject to satisfaction of the provisions of this Section
2.1(b) on the Initial Maturity Date, each Loan, to the extent not repaid, will
be exchanged for Exchange Notes in an aggregate principal amount equal to such
Lender's Loans outstanding on the Initial Maturity Date. The Exchange Notes
shall be governed by the Exchange Note Indenture. Upon issuance of the Exchange
Notes, any Notes representing Loans delivered hereunder shall be canceled by the
Borrower and the corresponding amount of the Loans deemed repaid. The Borrower
shall have appointed a trustee for the Exchange Notes (and to which the majority
of holders of Loans shall not have reasonably objected prior to the Initial
Maturity Date) and entered into the Exchange Note Indenture and the Registration
Rights Agreement, and in each case shall comply with the terms and conditions in
each such agreement.
(ii) On the Initial Maturity Date, the exchange of Loans to Exchange
Notes shall be subject to the following conditions: (A) no Event of Default
shall have occurred and be continuing under Section 12.1(e) or Section 12.1(f)
of this Agreement relating to the Borrower; (B) all fees then due to the
Arrangers and the Lenders pursuant to Section 4.1 and presented for payment
shall have been paid in full: and (C) no order, decree, injunction or judgment
enjoining any such refinancing shall be in effect. If an Event of Default under
Section 12.1(e) or Section 12.1(f) of this Agreement shall have occurred and be
continuing on the date of such exchange, any notices given or cure periods
commenced while the Loans were outstanding shall be deemed given or commenced
(as of the actual dates thereof) for all purposes with respect to the Exchange
Notes (with the same effect as if the Exchange Notes had been outstanding as of
the actual dates thereof).
2.2. MINIMUM AMOUNT OF EACH BORROWING. The aggregate principal amount
of the Borrowing of Loans shall be in a multiple of $1,000,000.
2.3. NOTICE OF BORROWING.
(a) The Borrower shall give the Administrative Agent at the
Administrative Agent's Office prior to 12:00 Noon (New York City time) at least
one Business Day prior written notice (or telephonic notice) of the Borrowing of
Loans. Such notice (a "NOTICE OF BORROWING") shall be irrevocable and shall
specify (i) the aggregate principal amount of the Loans to be made, (ii) the
date of the Borrowing (which shall be the Closing Date) and (iii) the Interest
Pe-
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riod to be initially applicable thereto. The Administrative Agent shall
promptly give each Lender written notice (or telephonic notice promptly
confirmed in writing) of the proposed Borrowing of Loans, of such Lender's
proportionate share thereof and of the other matters covered by the related
Notice of Borrowing.
(b) Without in any way limiting the obligation of the Borrower to
confirm in writing any notice it may give hereunder by telephone, the
Administrative Agent may act prior to receipt of written confirmation without
liability upon the basis of such telephonic notice believed by the
Administrative Agent in good faith to be from an Authorized Officer of the
Borrower. In each such case, the Borrower hereby waives the right to dispute the
Administrative Agent's record of the terms of any such telephonic notice.
2.4. DISBURSEMENT OF FUNDS.
(a) Subject to Section 6, no later than 9:00 a.m. (New York City
time) on the Closing Date, each Lender will make available its PRO RATA portion
based on its Commitment, if any, of each Borrowing requested to be made on such
date in the manner provided below.
(b) Each Lender shall make available all amounts it is to fund to the
Borrower in immediately available funds to the Administrative Agent at the
Administrative Agent's Office and the Administrative Agent will make available
to the Borrower, by depositing to the Borrower's account at the Administrative
Agent's Office the aggregate of the amounts so made available in Dollars. Unless
the Administrative Agent shall have been notified by any Lender prior to the
Closing Date that such Lender does not intend to make available to the
Administrative Agent its portion of the Borrowing to be made on such date, the
Administrative Agent may assume that such Lender has made such amount available
to the Administrative Agent on such date, and the Administrative Agent, in
reliance upon such assumption, may (in its sole discretion and without any
obligation to do so) make available to the Borrower a corresponding amount. If
such corresponding amount is not in fact made available to the Administrative
Agent by such Lender and the Administrative Agent has made available same to the
Borrower, the Administrative Agent shall be entitled to recover such
corresponding amount from such Lender. If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent's demand therefor
the Administrative Agent shall promptly notify the Borrower and the Borrower
shall immediately pay such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover from such Lender or the
Borrower interest on such corresponding amount in respect of each day from the
date such corresponding amount was made available by the Administrative Agent to
the Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate PER ANNUM equal to (i) if paid by such Lender,
the Federal Funds Effective Rate or (ii) if paid by the Borrower, the
then-applicable rate of interest or fees, calculated in accordance with Section
2.8, for the respective Loans.
(c) Nothing in this Section 2.4 shall be deemed to relieve any Lender
from its obligation to fulfill its commitments hereunder or to prejudice any
rights that the Borrower may have against any Lender as a result of any default
by such Lender hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to fulfill its commitments
hereunder).
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2.5. REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) Subject to Section 2.1, the Borrower shall repay to the
Administrative Agent, for the benefit of the Lenders, on the Initial Maturity
Date, the then-unpaid Loans, in Dollars.
(b) [INTENTIONALLY OMITTED]
(c) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to the
appropriate lending office of such Lender resulting from each Loan made by such
lending office of such Lender from time to time, including the amounts of
principal and interest payable and paid to such lending office of such Lender
from time to time under this Agreement.
(d) The Administrative Agent shall maintain the Register pursuant to
Section 14.6(b), and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount of each Loan made
hereunder and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(e) The entries made in the Register and accounts and subaccounts
maintained pursuant to paragraphs (d) and (e) of this Section 2.5 shall, to the
extent permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Borrower therein recorded; PROVIDED, HOWEVER,
that the failure of any Lender or the Administrative Agent to maintain such
account, such Register or such subaccount, as applicable, or any error therein,
shall not in any manner affect the obligation of the Borrower to repay (with
applicable interest) the Loans made to the Borrower by such Lender in accordance
with the terms of this Agreement.
2.6. CONTINUATIONS. The Borrower shall have the option on any
Business Day to continue the outstanding principal amount of any LIBOR Loans as
LIBOR Loans for an additional Interest Period, which Interest Period shall, at
the option of the Borrower be a one or three month period, provided that any
Interest Period may be for a period of less than one month if agreed by the
Borrower and the Administrative Agent (and shall be agreed if a one or three
month period would otherwise violate clause (c) of Section 2.9). Each such
continuation shall be effected by the Borrower by giving the Administrative
Agent at the Administrative Agent's Office prior to 12:00 Noon (New York City
time) at least three Business Days' prior written notice (or telephonic notice
promptly confirmed in writing) (each, a "NOTICE OF CONTINUATION") specifying the
Loans to be so continued and the Interest Period to be initially applicable
thereto. The Administrative Agent shall give each Lender notice as promptly as
practicable of any such proposed continuation affecting any of its Loans.
Failure to deliver a Notice of Continuation shall result in an Interest Period
that is the same as with respect to any LIBOR Loans then outstanding.
2.7. PRO RATA BORROWINGS. Each Borrowing of Loans under this
Agreement shall be granted by the Lenders PRO RATA on the basis of their
then-applicable Commitments. It is understood that no Lender shall be
responsible for any default by any other Lender in its obliga-
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tion to make Loans hereunder and that each Lender shall be obligated to make the
Loans provided to be made by it hereunder, regardless of the failure of any
other Lender to fulfill its commitments hereunder.
2.8. INTEREST.
(a) The unpaid principal amount of each Loan shall bear interest from
the date of the Borrowing thereof until maturity thereof (whether by
acceleration or otherwise) at a rate PER ANNUM that shall at all times (other
than as specified in Section 2.8 or Section 2.10) be the LIBOR Margin in effect
from time to time plus the relevant LIBOR Rate; PROVIDED, HOWEVER, in no event
shall the interest rate exceed 11.25% PER annum.
(b) If all or a portion of (i) the principal amount of any Loan or
(ii) any interest payable thereon shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate PER ANNUM that is (x) in the case of overdue principal, the
rate that would otherwise be applicable thereto PLUS 2% or (y) in the case of
any overdue interest, to the extent permitted by applicable law, the rate
described in Section 2.8(a) PLUS 2% from and including the date of such
non-payment to but excluding the date on which such amount is paid in full
(after as well as before judgment).
(c) Interest on each Loan shall accrue from and including the Closing
Date to but excluding the date of any repayment thereof and shall be payable on
the last day of each Interest Period applicable thereto and upon any prepayment
(on the amount prepaid), at maturity (whether by acceleration or otherwise) and,
after such maturity, on demand.
(d) All computations of interest hereunder shall be made in
accordance with Section 5.5.
(e) The Administrative Agent, upon determining the interest rate for
any Borrowing of LIBOR Loans, shall promptly notify the Borrower and the
relevant Lenders thereof. Each such determination shall, absent clearly
demonstrable error, be final and conclusive and binding on all parties hereto.
(f) To the extent that the LIBOR Rate shall be unavailable, the
Borrower and the Administrative Agent shall agree in good faith to find a
comparable rate for the Loans based upon the most recently available LIBOR Rate
(including, without limitation, as "ABR Loans" as provided in the Intelsat
Credit Agreement).
2.9. INTEREST PERIODS.
Notwithstanding anything to the contrary contained above:
(a) the initial Interest Period for any Borrowing of LIBOR Loans
shall commence on the date of such Borrowing and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the day
on which the next preceding Interest Period expires;
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(b) if any Interest Period would otherwise expire on a day that is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, PROVIDED that if any Interest Period in respect of
a LIBOR Loan would otherwise expire on a day that is not a Business Day but
is a day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the next preceding Business
Day;
(c) the Borrower shall not be entitled to elect any Interest Period
in respect of any LIBOR Loan if such Interest Period would extend beyond
the Initial Maturity Date; and
(d) in lieu of making any payment permitted or required under this
Agreement in respect of any LIBOR Loan other than on the last day of the
Interest Period therefor so long as no Default or Event of Default shall
have occurred and be continuing, the Borrower at its option may deposit
with the Administrative Agent an amount equal to the amount of the LIBOR
Loan to be prepaid and such LIBOR Loan shall be repaid on the last day of
the Interest Period therefor in the required amount. Such deposit shall be
held by the Administrative Agent in a corporate time deposit account
established on terms reasonably satisfactory to the Administrative Agent,
earning interest at the then-customary rate for accounts of such type. Such
deposit shall constitute cash collateral for the Obligations, PROVIDED that
the Borrower may at any time direct that such deposit be applied to make
the applicable payment required pursuant to this Section 2.9.
2.10. INCREASED COSTS, ILLEGALITY, ETC.
(a) In the event that (x) in the case of clause (i) below, the
Administrative Agent or (y) in the case of clauses (ii) and (iii) below, any
Lender shall have reasonably determined (which determination shall, absent
clearly demonstrable error, be final and conclusive and binding upon all parties
hereto):
(i) on any date for determining the LIBOR Rate for any Interest
Period that (x) deposits in the principal amounts of the Loans comprising
such LIBOR Borrowing are not generally available in the relevant market or
(y) by reason of any changes arising on or after the Closing Date affecting
the interbank LIBOR market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in the
definition of LIBOR Rate; or
(ii) at any time, that such Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any LIBOR Loans (other than any such increase or reduction attributable to
Taxes) because of (x) any change since the Closing Date in any applicable
law, governmental rule, regulation, guideline or order (or in the
interpretation or administration thereof and including the introduction of
any new law or governmental rule, regulation, guideline or order), such as,
for example, without limitation, a change in official reserve requirements,
and/or (y) other circumstances affecting the interbank LIBOR market or the
position of such Lender in such market; or
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(iii) at any time, that the making or continuance of any LIBOR Loan
has become unlawful by compliance by such Lender in good faith with any
law, governmental rule, regulation, guideline or order (or would conflict
with any such governmental rule, regulation, guideline or order not having
the force of law even though the failure to comply therewith would not be
unlawful), or has become impracticable as a result of a contingency
occurring after the Closing Date that materially and adversely affects the
interbank LIBOR market;
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i) above) shall within a reasonable time thereafter give notice
(if by telephone, confirmed in writing) to the Borrower and to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in
the case of clause (i) above, LIBOR Loans shall no longer be available until
such time as the Administrative Agent notifies the Borrower and the Lenders that
the circumstances giving rise to such notice by the Administrative Agent no
longer exist (which notice the Administrative Agent agrees to give at such time
when such circumstances no longer exist), (y) in the case of clause (ii) above,
the Borrower shall pay to such Lender, promptly after receipt of written demand
therefor such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
reasonable discretion shall determine) as shall be required to compensate such
Lender for such increased costs or reductions in amounts receivable hereunder
(it being agreed that a written notice as to the additional amounts owed to such
Lender, showing in reasonable detail the basis for the calculation thereof,
submitted to the Borrower by such Lender shall, absent clearly demonstrable
error, be final and conclusive and binding upon all parties hereto) and (z) in
the case of clause (iii) above, the Borrower shall take one of the actions
specified in Section 2.10(b) as promptly as possible and, in any event, within
the time period required by law. To the extent that the LIBOR Rate shall be
unavailable due to, or any Lender shall experience increased costs or reduced
receipts per, the circumstances described above, the Borrower and the
Administrative Agent shall agree in good faith to find a comparable rate for the
Loans based upon the most recently available LIBOR Rate (including, without
limitation, as "ABR Loans" as provided in the Intelsat Credit Agreement).
(b) If, after the Closing Date, the adoption of any applicable law,
rule or regulation regarding capital adequacy, or any change therein, or any
change in the interpretation or administration thereof by any governmental
authority, the National Association of Insurance Commissioners, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by a Lender or its parent with any request or directive made or
adopted after the Closing Date regarding capital adequacy (whether or not having
the force of law) of any such authority, association, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Lender's or its parent's or its Affiliate's capital or assets as a consequence
of such Lender's commitments or obligations hereunder to a level below that
which such Lender or its parent or its Affiliate could have achieved but for
such adoption, effectiveness, change or compliance (taking into consideration
such Lender's or its parent's policies with respect to capital adequacy), then
from time to time, promptly after demand by such Lender (with a copy to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender or its parent for such
reduction, it being understood and agreed, however, that a Lender shall not be
entitled to such com-
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pensation as a result of such Lender's compliance with, or pursuant to any
request or directive to comply with, any such law, rule or regulation as in
effect on the Closing Date. Each Lender, upon determining in good faith that any
additional amounts will be payable pursuant to this Section 2.10(b), will give
prompt written notice thereof to the Borrower which notice shall set forth in
reasonable detail the basis of the calculation of such additional amounts,
although the failure to give any such notice shall not, subject to Section 2.13,
release or diminish the Borrower's obligations to pay additional amounts
pursuant to this Section 2.10(b) upon receipt of such notice. To the extent that
the LIBOR Rate shall be unavailable due to, or any Lender shall experience
increased costs or reduced receipts per, the circumstances described above, the
Borrower and the Administrative Agent shall agree in good faith to find a
comparable rate for the Loans based upon the most recently available LIBOR Rate
(including, without limitation, as "ABR Loans" as provided in the Intelsat
Credit Agreement).
(c) It is understood that to the extent duplicative of Section 5.4,
this Section 2.10 shall not apply to Taxes and shall in no event apply to
Excluded Taxes.
2.11. COMPENSATION. If (a) any payment of principal of any Loan is
made by the Borrower to or for the account of a Lender other than on the last
day of the Interest Period for such Loan as a result of a payment or conversion
pursuant to Section 2.5, 2.6, 2.10, 5.1 or 5.2, as a result of acceleration of
the maturity of the Loans pursuant to Section 12 or for any other reason, (b)
any LIBOR Loan is not continued as a LIBOR Loan or (c) any prepayment of
principal of any LIBOR Loan is not made as a result of a withdrawn notice of
prepayment pursuant to Section 5.1 or 5.2, the Borrower shall, after receipt of
a written request by such Lender (which request shall set forth in reasonable
detail the basis for requesting such amount), pay to the Administrative Agent
for the account of such Lender any amounts required to compensate such Lender
for any additional losses, costs or expenses that such Lender may reasonably
incur as a result of such payment, failure to continue or failure to prepay,
including any loss, cost or expense (excluding loss of anticipated profits)
actually incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender to fund or maintain such LIBOR Loan.
2.12. CHANGE OF LENDING OFFICE. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.10(a)(ii),
2.10(a)(iii), 2.10(b) or 5.4 with respect to such Lender, it will, if requested
by the Borrower use reasonable efforts (subject to overall policy considerations
of such Lender) to designate another lending office for any Loans affected by
such event, PROVIDED that such designation is made on such terms that such
Lender and its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving
rise to the operation of any such Section. Nothing in this Section 2.12 shall
affect or postpone any of the obligations of the Borrower or the right of any
Lender provided in Section 2.10 or 5.4.
2.13. NOTICE OF CERTAIN COSTS. Notwithstanding anything in this
Agreement to the contrary, to the extent any notice required by Section 2.10,
2.11 or 5.4 is given by any Lender more than 90 days after such Lender has
knowledge (or should have had knowledge) of the occurrence of the event giving
rise to the additional cost, reduction in amounts, loss, tax or other additional
amounts described in such Sections, such Lender shall not be entitled to
compensation
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under Section 2.10, 2.11 or 5.4, as the case may be, for any such amounts
incurred or accruing prior to the 91st day prior to the giving of such notice to
the Borrower.
SECTION 3. [RESERVED]
SECTION 4. FEES; COMMITMENTS.
4.1. FEES. On the Initial Maturity Date, pursuant to Section 2(d) of
the Fee Letter, the Borrower shall pay to the Administrative Agent (for the
benefit of the Initial Lenders) a fee in the amount of 2.25% of the aggregate
principal amount of Loans outstanding on such date; PROVIDED that Exchange Notes
in such principal amount are issued on such date. Such fee shall be fully earned
when paid and shall not be refundable for any reason whatsoever, except as
provided in Section 2(d) of the Fee Letter. Without duplication, the Borrower
shall pay to the Lenders such fees as shall have been separately agreed upon in
writing in the amounts and at the times so specified; PROVIDED, that the parties
hereto acknowledge that except as otherwise provided in this Agreement, no other
fees are payable under the Fee Letter (or otherwise) in connection with the
Loans made pursuant to this Agreement. Any Loans made hereunder shall be deemed
"Interim Loans" for purposes of the engagement letter dated August 28, 2005
among the Borrower and the investment banks party thereto from time to time.
Except as otherwise provided for herein, no other fees shall be payable by the
Borrower in connection with any Loans made under this Agreement (under the Fee
Letter or otherwise).
4.2. MANDATORY TERMINATION OF COMMITMENTS.
The Commitments shall terminate at 5:00 p.m. (New York City time) on
the Closing Date.
SECTION 5. PAYMENTS.
5.1. VOLUNTARY PREPAYMENTS. The Borrower shall have the right to
prepay Loans without premium or penalty, in whole or in part from time to time,
prior to the Initial Maturity Date at a repayment price of 100% of the principal
amount so repaid plus accrued and unpaid interest to, but excluding, the date of
prepayment. Any prepayment of LIBOR Loans pursuant to this Section 5.1 on any
day other than the last day of an Interest Period applicable thereto shall be
subject to compliance by the Borrower with the applicable provisions of Section
2.11.
5.2. MANDATORY PREPAYMENTS.
(a) CHANGE OF CONTROL PREPAYMENT OFFER. Unless otherwise prepaid in
accordance with Section 5.1, upon the occurrence of a Change of Control, each
Lender shall have the right to require the Borrower to prepay all or any part of
such Lender's Loans at a price in cash equal to 101% of the principal amount
thereof, plus accrued and unpaid interest, if any, to the date of such
repayment.
Within 90 days following any Change of Control, the Borrower shall
provide a written notice to the Administrative Agent containing the following
information (such notice, a "CHANGE OF CONTROL OFFER"):
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(i) that a Change of Control has occurred and that such Lender has
the right to require the Borrower to repay such Lender's Loans at a price
in cash equal to 101% of the principal amount thereof, plus accrued and
unpaid interest to the date of purchase;
(ii) the circumstances and relevant facts and financial information
regarding such Change of Control;
(iii) the repayment date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed); and
(iv) a statement that any Lender wishing to have its Loans repaid
pursuant to such Change of Control must comply with Section 5.2(c).
A Change of Control Offer may be made in advance of a Change of
Control, and conditioned upon such Change of Control, if a definitive agreement
is in place for the Change of Control at the time of making the Change of
Control Offer.
Notwithstanding the foregoing provisions of this Section, the
Borrower shall not be required to make a Change of Control Offer upon a Change
of Control if a third party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements set forth in Section
5.2(a) applicable to a Change of Control Offer made by the Borrower and repays
all Loans validly offered and not withdrawn under such Change of Control Offer.
(b) ASSET SALE PREPAYMENT OFFER. Promptly, and in any event within
ten (10) Business Days after the Borrower becomes obligated to make a prepayment
offer pursuant to Section 10.4, the Borrower shall make an offer to prepay the
Loans at a price equal to 100% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the prepayment date (an "EXCESS PROCEEDS OFFER"). In
order to make an Excess Proceeds Offer, the Borrower shall provide a written
notice thereof to the Administrative Agent. Such notice shall contain the
following:
(i) that an Excess Proceeds Offer is being made pursuant to the
Agreement;
(ii) the prepayment price and prepayment date, which shall be,
subject to any contrary requirements of applicable law, a Business Day no
earlier than 30 days nor later than 60 days after the date on which such
notice is delivered to the Administrative Agent;
(iii) such information regarding the Borrower and its Subsidiaries as
the Borrower in good faith believes will enable Lenders to make an informed
decision with respect to such Excess Proceeds Offer; and
(iv) a statement that any Lender wishing to have its Loans repaid
pursuant to such Excess Proceeds Offer must comply with Section 5.2(c).
(c) PROCEDURES FOR LENDERS TO ACCEPT MANDATORY PREPAYMENT OFFERS;
WITHDRAWAL OF ACCEPTANCE OF A MANDATORY PREPAYMENT OFFER. In order to accept any
Mandatory Pre-
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payment Offer, a Lender shall notify the Administrative Agent in writing at its
address for notices contained in this Agreement prior to the Mandatory Offer
Election Time of such Lender's election to require the Borrower to prepay all or
a portion of such Lender's Loans pursuant to such Mandatory Prepayment Offer
(which, in the case of any election to require less than all of such Lender's
Loans to be prepaid in such Mandatory Prepayment Offer, shall be in a minimum
principal amount of $2,000 or an integral multiple thereof) and shall specify
the amount of such Lender's Loans which such Lender requests be prepaid in such
Mandatory Prepayment Offer. In order to validly withdraw any election with
respect to any Put Loans in any Mandatory Prepayment Offer, the Lender holding
such Put Loans shall notify the Administrative Agent in writing at its address
for notices contained in this Agreement prior to the Mandatory Offer Election
Time of such Lender's election to withdraw such Put Loans from such Mandatory
Prepayment Offer, which notification shall include a copy of such Lender's
previous notification electing to have its Put Loans prepaid in such Mandatory
Prepayment Offer and shall state that such election is withdrawn. The
Administrative Agent shall from time to time, upon request by the Borrower,
advise the Borrower of the amount of Put Loans with respect to any Mandatory
Prepayment Offer.
5.3. METHOD AND PLACE OF PAYMENT.
(a) Except as otherwise specifically provided herein, all payments
under this Agreement shall be made by the Borrower, without set-off,
counterclaim or deduction of any kind, to the Administrative Agent for the
ratable account of the Lenders entitled thereto not later than 12:00 Noon (New
York City time) on the date when due and shall be made in immediately available
funds at the Administrative Agent's Office or at such other office as the
Administrative Agent shall specify for such purpose by notice to the Borrower,
it being understood that written or facsimile notice by the Borrower to the
Administrative Agent to make a payment from the funds in the Borrower's account
at the Administrative Agent's Office shall constitute the making of such payment
to the extent of such funds held in such account. All payments under each Credit
Document (whether of principal, interest or otherwise) shall be made in Dollars.
The Administrative Agent will thereafter cause to be distributed on the same day
(if payment was actually received by the Administrative Agent prior to 2:00 p.m.
(New York City time) on such day) like funds relating to the payment of
principal or interest or Fees ratably to the Lenders entitled thereto.
(b) Any payments under this Agreement that are made later than 2:00
p.m. (New York City time) shall be deemed to have been made on the next
succeeding Business Day. Whenever any payment to be made hereunder shall be
stated to be due on a day that is not a Business Day, the due date thereof shall
be extended to the next succeeding Business Day and, with respect to payments of
principal, interest shall be payable during such extension at the applicable
rate in effect immediately prior to such extension.
5.4. NET PAYMENTS.
(a) Any and all payments made by or on behalf of the Borrower or any
Guarantor under this Agreement or any other Credit Document shall be made free
and clear of, and without deduction or withholding for or on account of, any
Indemnified Taxes; PROVIDED that if Borrower or any Guarantor shall be required
by law to deduct or withhold any Indemnified
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Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions and withholdings
(including deductions or withholdings of Indemnified Taxes applicable to
additional sums payable under this Section 5.4) the Administrative Agent or any
Lender, as the case may be, receives an amount equal to the sum it would have
received had no such deductions or withholdings been made, (ii) the Borrower or
any Guarantor shall make such deductions or withholdings and (iii) the Borrower
or any Guarantor shall pay the full amount deducted or withheld to the relevant
Governmental Authority in accordance with applicable law. Whenever any
Indemnified Taxes are payable by the Borrower, as promptly as possible
thereafter, the Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt (or other evidence acceptable to such Lender,
acting reasonably) received by the Borrower showing payment thereof.
(b) Borrower shall pay and shall indemnify and hold harmless the
Administrative Agent and each Lender (whether or not such Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority)
with regard to any Other Taxes.
(c) Borrower shall indemnify and hold harmless the Administrative
Agent and each Lender within 15 Business Days after written demand therefor, for
the full amount of any Indemnified Taxes imposed on the Administrative Agent or
such Lender as the case may be, on or with respect to any payment by or on
account of any obligation of the Borrower or any Guarantor hereunder or under
any other Credit Document (including Indemnified Taxes imposed or asserted on or
attributable to amounts payable under this Section 5.4) and any reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender or by the Administrative Agent
on its own behalf or on behalf of a Lender shall be conclusive absent manifest
error.
(d) A Foreign Lender that is entitled to an exemption from or
reduction in a withholding tax imposed under the laws of Bermuda with respect to
payments under this Agreement or any other Credit Document shall deliver to the
Borrower and the Administrative Agent, at the time or times prescribed by
applicable law and as reasonably requested by the Borrower or the Administrative
Agent such properly completed and executed documentation as will permit such
payments to be made without withholding or at a reduced rate, PROVIDED that such
Lender is legally entitled to complete, execute and deliver such documentation.
To the extent it is legally entitled to do so, each Lender agrees to use
reasonable efforts (consistent with legal and regulatory restrictions and
subject to overall policy considerations of such Lender) to file or deliver to
the Borrower and the Administrative Agent any certificate or document, as
reasonably requested by the Borrower or the Administrative Agent, that may be
necessary to establish any available exemption from, or reduction in the amount
of, any withholding taxes imposed by a jurisdiction other than Bermuda;
PROVIDED, HOWEVER, that a Lender shall not be required to file or deliver any
such certificate or document if in such Lender's reasonable judgment such
completion, execution or delivery would be disadvantageous to such Lender or
would subject such Lender to any unreimbursed cost.
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(e) If the Borrower determines in good faith that a reasonable basis
exists for contesting any taxes for which indemnification has been demanded
hereunder, the relevant Lender or the Administrative Agent, as applicable, shall
cooperate with the Borrower in challenging such taxes at the Borrower's expense
if so requested by the Borrower. If any Lender or the Administrative Agent, as
applicable, receives a refund of a tax for which a payment has been made by the
Borrower pursuant to this Agreement (or reduction of, or credit against its tax
liabilities in lieu of a refund), which refund, reduction or credit in the good
faith judgment of such Lender or Administrative Agent, as the case may be, is
attributable to such payment made by the Borrower, then the Lender or the
Administrative Agent, as the case may be, shall reimburse the Borrower for such
amount (together with any interest received thereon) as the Lender or
Administrative Agent, as the case may be, determines to be the proportion of the
refund, reduction or credit as will leave it, after such reimbursement, in no
better or worse position (taking into account expenses or any taxes imposed on
the refund) than it would have been in if the payment had not been required. A
Lender or Administrative Agent shall claim any refund, reduction or credit that
it determines is available to it, unless it concludes in its reasonable
discretion that it would be adversely affected by making such a claim. Neither
the Lender nor the Administrative Agent shall be obliged to disclose any
information regarding its tax affairs or computations to the Borrower in
connection with this paragraph (e) or any other provision of this Section 5.4.
(f) The agreements in this Section 5.4 shall survive the termination
of this Agreement and the payment of the Loans and all other amounts payable
hereunder.
5.5. COMPUTATIONS OF INTEREST AND FEES. Interest on LIBOR Loans shall
be calculated on the basis of a 360-day year for the actual days elapsed.
5.6. LIMIT ON RATE OF INTEREST.
(a) NO PAYMENT SHALL EXCEED LAWFUL RATE. Notwithstanding any other
term of this Agreement, the Borrower shall not be obliged to pay any interest or
other amounts under or in connection with this Agreement in excess of the amount
or rate permitted under or consistent with any applicable law, rule or
regulation.
(b) PAYMENT AT HIGHEST LAWFUL RATE. If the Borrower is not obliged to
make a payment which it would otherwise be required to make, as a result of
Section 5.6(a), the Borrower shall make such payment to the maximum extent
permitted by or consistent with applicable laws, rules and regulations.
(c) ADJUSTMENT IF ANY PAYMENT EXCEEDS LAWFUL RATE. If any provision
of this Agreement or any of the other Credit Documents would obligate the
Borrower to make any payment of interest or other amount payable to any Lender
in an amount or calculated at a rate which would be prohibited by any applicable
law, rule or regulation, then notwithstanding such provision, such amount or
rate shall be deemed to have been adjusted with retroactive effect to the
maximum amount or rate of interest, as the case may be, as would not be so
prohibited by law, such adjustment to be effected, to the extent necessary, by
reducing the amount or rate of interest required to be paid by the Borrower to
the affected Lender under Section 2.8.
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Notwithstanding the foregoing, and after giving effect to all
adjustments contemplated thereby, if any Lender shall have received from the
Borrower an amount in excess of the maximum permitted by any applicable law,
rule or regulation, then the Borrower shall be entitled, by notice in writing to
the Administrative Agent to obtain reimbursement from that Lender in an amount
equal to such excess, and pending such reimbursement, such amount shall be
deemed to be an amount payable by that Lender to the Borrower.
SECTION 6. CONDITIONS PRECEDENT TO INITIAL BORROWING ON THE CLOSING
DATE.
The Borrowings on the Closing Date under this Agreement are subject
to the satisfaction of the following conditions precedent, except as otherwise
agreed between the Borrower and the Administrative Agent.
6.1. CREDIT DOCUMENTS. The Administrative Agent shall have received
this Agreement, executed and delivered by a duly authorized officer of the
Borrower and the Administrative Agent.
6.2. NO DEFAULT; REPRESENTATIONS AND WARRANTIES. On the Closing Date
and also after giving effect thereto, (a) no Default or Event of Default shall
have occurred and be continuing and (b) all representations and warranties made
by the Borrower contained herein (other than those contained in Sections 8.4,
8.8, 8.9, 8.10, 8.11, 8.12, 8.13, 8.14, 8.15 and 8.16) shall be true and correct
in all material respects (except where such representations and warranties
expressly relate to an earlier date, in which case such representations and
warranties shall have been true and correct in all material respects as of such
earlier date).
6.3. NOTICE OF BORROWING. Prior to the making of any Loan, the
Administrative Agent shall have received a Notice of Borrowing (whether in
writing or by telephone) meeting the requirements of Section 2.3.
6.4. OTHER CONDITIONS PRECEDENT.
(a) TRANSACTION AGREEMENT. All conditions precedent to the
Acquisition shall be satisfied in accordance with the Transaction Agreement and
the Acquisition shall occur substantially contemporaneously with the making of
the Loans hereunder, and no material provision or condition of the Transaction
Agreement shall have been waived, amended, supplemented or otherwise modified in
a manner that is material and adverse to the Lead Arrangers or the Lenders
without the prior written consent of the Lead Arrangers, which shall not be
unreasonably withheld or delayed.
(b) EXECUTED COUNTERPARTS TO THIS AGREEMENT. The Administrative Agent
shall have received this Agreement, duly executed by (A) each Lender and (B) the
Borrower.
(c) CORPORATE AND OTHER PROCEEDINGS. The Administrative Agent shall
have received from the Borrower a certificate, executed by an officer the
Borrower in form and substance reasonably satisfactory to the Administrative
Agent, attaching: (i) a copy of the resolutions, in form and substance
reasonably satisfactory to the Administrative Agent, of the board of directors
(or similar body) of the Borrower (or a duly authorized committee thereof)
authorizing
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(A) the execution, delivery and performance of this Agreement (and any other
agreements relating thereto) and (B) the extensions of credit contemplated
hereunder; (ii) the certificate of incorporation and bylaws (or memorandum and
articles, or other documents of similar import pursuant to the laws of the
Borrower's jurisdiction of organization) of the Borrower; and (iii) a
certificate of good standing (or such other document of similar import as may be
acceptable to the Administrative Agent) with respect to the Borrower from the
secretary of state (or comparable body) of the jurisdiction in which the
Borrower is organized, dated as of a recent date.
(d) OPINIONS OF COUNSEL. The Administrative Agent shall have received
(i) a legal opinion from Wachtell, Lipton, Xxxxx & Xxxx, counsel to the
Borrower, substantially in the form of Exhibit B-1, (ii) a legal opinion from
Xxxxxxx Xxxxxxxx Xxxxxx, Bermuda counsel to the Borrower, substantially in the
form of Exhibit B-2, (iii) a legal opinion from Xxxxx Xxxx & Fielding LLP, U.S.
regulatory counsel to the Borrower, substantially in the form of Exhibit B-3,
(iv) a legal opinion from the general counsel of the Borrower, substantially in
the form of Exhibit B-4 and (v) such other opinions of counsel to the Borrower
as may be reasonably requested by the Administrative Agent or its counsel.
(e) PROMISSORY NOTES. Each applicable Lender shall have received, if
requested at least two (2) Business Days prior to the Closing Date, one or more
promissory notes payable to the order of such Lender duly executed by the
Borrower in substantially the form of EXHIBIT E evidencing its Loan.
(f) FEES AND EXPENSES. The Lenders shall have received any fees
required to be paid on the Closing Date and all expenses (including the
reasonable fees, disbursements and other charges of Xxxxxx Xxxxxx & Xxxxxxx LLP,
counsel for the Administrative Agent) for which invoices have been presented on
or prior to the Closing Date shall have been paid.
SECTION 7. [RESERVED].
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
In order to induce the Lenders to enter into this Agreement, to make
the Loans and issue or participate in Letters of Credit as provided for herein,
the Borrower make the following representations and warranties to, and
agreements with, the Lenders on the Closing Date:
8.1. CORPORATE STATUS. Each of the Borrower and the Material
Subsidiaries (a) is a duly organized and validly existing corporation or other
entity in good standing under the laws of the jurisdiction of its organization
and has the corporate or other organizational power and authority to own its
property and assets and to transact the business in which it is engaged and (b)
has duly qualified and is authorized to do business and is in good standing in
all jurisdictions where it is required to be so qualified, except where the
failure to be so qualified could not reasonably be expected to result in a
Material Adverse Effect.
8.2. CORPORATE POWER AND AUTHORITY. The Borrower has the corporate or
other organizational power and authority to execute, deliver and carry out the
terms and provisions of the Credit Documents to which it is a party and has
taken all necessary corporate or other organizational action to authorize the
execution, delivery and performance of the Credit Documents to
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which it is a party. The Borrower has duly executed and delivered each Credit
Document to which it is a party and each such Credit Document which is currently
in effect constitutes the legal, valid and binding obligation of the Borrower
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and subject to general principles of equity.
8.3. NO VIOLATION. Neither the execution, delivery or performance by
the Borrower of the Credit Documents to which it is a party and which is
currently in effect nor compliance with the terms and provisions thereof nor the
consummation of the Acquisition and the other transactions contemplated hereby
or thereby will (a) contravene any applicable provision of any material law,
statute, rule, regulation, order, writ, injunction or decree of any court or
governmental instrumentality, (b) result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under, or result
in the creation or imposition of (or the obligation to create or impose) any
Lien upon any of the property or assets of the Borrower or any of the Restricted
Subsidiaries (other than Liens created under the Credit Documents) pursuant to,
the terms of any material indenture (including the Senior Note Indentures), loan
agreement, lease agreement, mortgage, deed of trust, agreement or other material
instrument to which the Borrower or any of the Restricted Subsidiaries is a
party or by which it or any of its property or assets is bound or (c) violate
any provision of the certificate of incorporation, by-laws or other
constitutional documents of the Borrower or any of the Restricted Subsidiaries.
8.4. LITIGATION. There are no actions, suits or proceedings
(including Environmental Claims) pending or, to the knowledge of the Borrower,
threatened with respect to the Borrower or any of its Subsidiaries that could
reasonably be expected to result in a Material Adverse Effect or a Material
Adverse Change.
8.5. MARGIN REGULATIONS. Neither the making of any Loan hereunder nor
the use of the proceeds thereof will violate the provisions of Regulation T, U
or X of the Board.
8.6. GOVERNMENTAL APPROVALS. The execution, delivery and performance
of the Transaction Agreement or any Credit Document currently in effect does not
require any consent or approval of, registration or filing with, or any other
action by, any Governmental Authority, except for (i) such as have been obtained
or made and are in full force and effect, (ii) such FCC consents, approvals,
registrations, and filings as may be required in the ordinary course of business
of the Borrower and its Subsidiaries in connection with the use of proceeds of
the Loans hereunder, (iii) such licenses, approvals, authorizations and consents
as may be required by the U.S. Department of State pursuant to the International
Traffic in Arms Regulations, the U.S. Department of Commerce pursuant to the
Export Administration Regulations and the U.S. Department of Treasury pursuant
to Foreign Asset Control Regulations in connection with the exercise of rights
hereunder and under the Security Documents following an Event of Default and
(iv) such licenses, approvals, authorizations or consents the failure to obtain
or make could not reasonably be expected to have a Material Adverse Effect.
8.7. INVESTMENT COMPANY ACT. The Borrower is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
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8.8. TRUE AND COMPLETE DISCLOSURE.
(a) None of the factual information and data (taken as a whole)
heretofore or contemporaneously furnished by the Borrower, any of the
Subsidiaries or any of their respective authorized representatives in writing to
the Administrative Agent and/or any Lender in the Offering Memorandum and all
information contained in the Credit Documents currently in effect) for purposes
of or in connection with this Agreement or any transaction contemplated herein
contained any untrue statement or omitted to state any material fact necessary
to make such information and data (taken as a whole) not misleading at such time
in light of the circumstances under which such information or data was furnished
(subject, in the case of quarterly or interim financial statements, to normal
year-end audit adjustments), it being understood and agreed that for purposes of
this Section 8.8(a), such factual information and data shall not include
projections and pro forma financial information.
(b) The projections and pro forma financial information contained in
the information and data referred to in paragraph (a) above were based on good
faith estimates and assumptions believed by such Persons to be reasonable at the
time made, it being recognized by the Lenders that such projections as to future
events are not to be viewed as facts and that actual results during the period
or periods covered by any such projections may differ from the projected
results.
8.9. FINANCIAL CONDITION; FINANCIAL STATEMENTS. The unaudited
historical consolidated financial information of the Borrower as set forth in
the Offering Memorandum presents fairly in all material respects the combined
financial position of the Borrower at the respective dates of said information,
statements and results of operations for the respective periods covered thereby
(subject, in the case of quarterly or interim financial statements, to normal
year-end audit adjustments). There has been no Material Adverse Change since
December 31, 2005 (giving effect to the Transactions as if they had occurred
prior thereto).
8.10. TAX RETURNS AND PAYMENTS.
(a) The Borrower and each of the Subsidiaries has filed all federal
income tax returns and all other material tax returns, domestic and foreign,
required to be filed by it and has paid all material Taxes payable by it that
have become due, other than those (i) not yet delinquent or (ii) contested in
good faith as to which adequate reserves have been provided in accordance with
GAAP and which could not reasonably be expected to result in a Material Adverse
Effect. The Borrower and each of the Subsidiaries have paid, or have provided
adequate reserves (in the good faith judgment of the management of the Borrower)
in accordance with GAAP for the payment of, all material federal, state,
provincial and foreign income taxes applicable for all prior fiscal years and
for the current fiscal year.
(b) None of the Borrower or any of its Subsidiaries has ever been a
party to any understanding or arrangement constituting a "tax shelter" within
the meaning of Section 6662(d)(2)(C)(iii) of the Code or within the meaning of
Section 6111(c) or Section 6111(d) of the Code as in effect immediately prior to
the enactment of the American Jobs Creation of 2004, or has ever "participated"
in a "reportable transaction" within the meaning of Treasury Regula-
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tion Section 1.6011-4, except as could not reasonably be likely to, individually
or in the aggregate, have a Material Adverse Effect.
8.11. COMPLIANCE WITH ERISA.
(a) Each Plan is in compliance with ERISA, the Code and any
applicable Requirement of Law; no Reportable Event has occurred (or is
reasonably likely to occur) with respect to any Plan; no Plan is insolvent or in
reorganization (or is reasonably likely to be insolvent or in reorganization),
and no written notice of any such insolvency or reorganization has been given to
the Borrower, any Subsidiary or any ERISA Affiliate; no Plan (other than a
multiemployer plan) has an accumulated or waived funding deficiency (or is
reasonably likely to have such a deficiency); none of the Borrower, any
Subsidiary or any ERISA Affiliate has incurred (or is reasonably likely expected
to incur) any liability to or on account of a Plan pursuant to Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section
4971 or 4975 of the Code or has been notified in writing that it will incur any
liability under any of the foregoing Sections with respect to any Plan; no
proceedings have been instituted (or are reasonably likely to be instituted) to
terminate or to reorganize any Plan or to appoint a trustee to administer any
Plan, and no written notice of any such proceedings has been given to the
Borrower, any Subsidiary or any ERISA Affiliate; and no lien imposed under the
Code or ERISA on the assets of the Borrower or any Subsidiary or any ERISA
Affiliate exists (or is reasonably likely to exist) nor has the Borrower, any
Subsidiary or any ERISA Affiliate been notified in writing that such a lien will
be imposed on the assets of the Borrower, any Subsidiary or any ERISA Affiliate
on account of any Plan, except to the extent that a breach of any of the
representations, warranties or agreements in this Section 8.11 would not result,
individually or in the aggregate, in an amount of liability that would be
reasonably likely to have a Material Adverse Effect or relates to any matter
disclosed in the financial statements of the Borrower contained in the Offering
Memorandum. No Plan (other than a multiemployer plan) has an Unfunded Current
Liability that would, individually or when taken together with any other
liabilities referenced in this Section 8.11, be reasonably likely to have a
Material Adverse Effect. With respect to Plans that are multiemployer plans (as
defined in Section 3(37) of ERISA), the representations and warranties in this
Section 8.11(a), other than any made with respect to (i) liability under Section
4201 or 4204 of ERISA or (ii) liability for termination or reorganization of
such Plans under ERISA, are made to the best knowledge of the Borrower.
(b) All Foreign Plans are in compliance with, and have been
established, administered and operated in accordance with, the terms of such
Foreign Plans and applicable law, except for any failure to so comply,
establish, administer or operate the Foreign Plans as would not reasonably be
expected to have a Material Adverse Effect. All contributions or other payments
which are due with respect to each Foreign Plan have been made in full and there
are no funding deficiencies thereunder, except to the extent any such events
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
8.12. SUBSIDIARIES. All outstanding capital stock of the Borrower is
owned by Holdings.
8.13. PATENTS, ETC. The Borrower and each of the Restricted
Subsidiaries have obtained all patents, trademarks, servicemarks, trade names,
copyrights, licenses and other rights,
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free from burdensome restrictions, that are necessary for the operation of their
respective businesses as currently conducted and as proposed to be conducted,
except where the failure to obtain any such rights could not reasonably be
expected to have a Material Adverse Effect.
8.14. ENVIRONMENTAL LAWS.
(a) Except as could not reasonably be expected to have a Material
Adverse Effect: (i) the Borrower and each of the Subsidiaries and all Real
Estate are in compliance with all Environmental Laws; (ii) none of the Borrower
or any of the Subsidiaries is subject to any Environmental Claim or any other
liability under any Environmental Law; (iii) the Borrower and its Subsidiaries
are not conducting any investigation, removal, remedial or other corrective
action pursuant to any Environmental Law at any location; and (iv) no
underground storage tank or related piping, or any impoundment or other disposal
area containing Hazardous Materials is located at, on or under any Real Estate
currently owned or leased by the Borrower or any of its Subsidiaries.
(b) None of the Borrower or any of the Subsidiaries has treated,
stored, transported, released or disposed or arranged for disposal or transport
for disposal of Hazardous Materials at, on, under or from any currently or
formerly owned or leased Real Estate or facility in a manner that could
reasonably be expected to have a Material Adverse Effect.
8.15. PROPERTIES. The Borrower and each of the Subsidiaries have good
and marketable title to or leasehold interest in all properties that are
necessary for the operation of their respective businesses as currently
conducted and as proposed to be conducted, free and clear of all Liens (other
than any Liens permitted by this Agreement) and except where the failure to have
such good title could not reasonably be expected to have a Material Adverse
Effect.
8.16. SOLVENCY. On the Closing Date (after giving effect to the
Transactions), immediately following the making of each Loan and after giving
effect to the application of the proceeds of such Loans, the Borrower, on a
consolidated basis with its Subsidiaries, will be Solvent.
8.17. [INTENTIONALLY OMITTED].
8.18. [RESERVED].
8.19. [RESERVED].
SECTION 9. AFFIRMATIVE COVENANTS.
The Borrower hereby covenants and agrees that on the Closing Date and
thereafter, until the Loans, together with interest, Fees and all other
Obligations incurred hereunder, are paid in full or exchanged for Exchange Notes
in accordance with the terms hereof:
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9.1. REPORTS AND OTHER INFORMATION.
(a) Notwithstanding that the Borrower may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise
report on an annual and quarterly basis on forms provided for such annual and
quarterly reporting pursuant to rules and regulations promulgated by the
Securities and Exchange Commission (the "SEC"), the Borrower shall file with the
SEC (unless the SEC will not accept such a filing), and provide the
Administrative Agent and Lenders with copies thereof, without cost to each
Lender, within 15 days after it files or, in the case of a Form 6-K, furnishes
(or attempts to file or furnish) them with the SEC,
(i) within 90 days after the end of each fiscal year (or such longer
period as may be permitted by the SEC if the Borrower were then subject to
such SEC reporting requirements as a required filer, voluntary filer or
otherwise), an annual report (which, if permitted under applicable rules of
the SEC, may be the annual report of Holdings or another Parent of the
Borrower) on Form 10-K or 20-F (or any successor or comparable forms)
containing the information required to be contained therein (or required in
such successor or comparable form) and
(ii) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year (or such longer period as may be permitted by
the SEC if the Borrower were then subject to such SEC reporting
requirements as a required filer, voluntary filer or otherwise), a
quarterly report (which, if permitted under applicable rules of the SEC,
may be the quarterly report of Holdings or another Parent of the Borrower)
on Form 10-Q or 6-K (or any successor or comparable forms), including a
Management's Discussion and Analysis of Financial Condition and Results of
Operations or substantially similar section (whether or not required by
such form).
(b) The Borrower shall make the information required by Section
9.1(a) available to prospective lenders upon request. In addition, the Borrower
shall, for so long as any Loans remain outstanding during any period when it is
not subject to Section 13 or 15(d) of the Exchange Act, or otherwise permitted
to furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the
Exchange Act, furnish to the Lenders and prospective lenders, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
(c) Notwithstanding the foregoing Sections 9.1(a) and (b), the
Borrower will be deemed to have furnished the reports required by Sections
9.1(a) and (b) to the Administrative Agent and the Lenders if it or Holdings or
another Parent of the Borrower has filed (or, in the case of a Form 6-K,
furnished) such reports with the SEC via the XXXXX filing system and such
reports are publicly available. In addition, such requirements shall be deemed
satisfied prior to the commencement of the exchange offer relating to the
Intelsat Bermuda Notes contemplated by the applicable registration rights
agreement or the effectiveness of any shelf registration statement by the filing
with the SEC of the exchange offer registration statement and/or shelf
registration statement in accordance with the provisions of the applicable
registration rights agreement, and any amendments thereto, with such financial
information that satisfies Regulation S-X of the Securities Act and such
registration statement and/or amendments thereto are filed at times that
otherwise satisfy the time requirements set forth in Section 9.1(a) hereof.
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(d) In the event that any Parent of the Borrower is or becomes a
Guarantor or co-obligor of the Loans, the Borrower may satisfy its obligations
under this Section 9.1 with respect to financial information relating to the
Borrower by furnishing financial information relating to such Parent; PROVIDED
that, if required by Regulation S-X under the Securities Act, the same is
accompanied by consolidating information that explains in reasonable detail the
differences between the information relating to such Parent and any of its
Subsidiaries other than the Borrower and its Subsidiaries, on the one hand, and
the information relating to the Borrower, any Subsidiary Guarantors, if any, and
the other Subsidiaries of the Borrower on a stand-alone basis, on the other
hand.
(e) In the event that the Borrower changes its fiscal year end from
the fiscal year end used by the Borrower as of the Closing Date, the Borrower
shall promptly give notice of such change to the Administrative Agent.
9.2. [Reserved].
9.3. MAINTENANCE OF INSURANCE. The Borrower will, and will cause each
of its Restricted Subsidiaries to, obtain, maintain and keep in full force and
effect at all times (i) with respect to each Satellite procured by the Borrower
or any of its Restricted Subsidiaries for which the risk of loss passes to the
Borrower or such Restricted Subsidiary at or before launch, and for which launch
insurance or commitments with respect thereto are not in place as of the Closing
Date, launch insurance with respect to each such Satellite covering the launch
of such Satellite and a period of time thereafter, but only to the extent, if at
all, and on such terms (including coverage period, exclusions, limitations on
coverage, co-insurance, deductibles and coverage amount) as is determined by the
Borrower to be in the best interests of the Borrower, (ii) with respect to each
Satellite it currently owns or for which it has risk of loss (or, if the entire
Satellite is not owned, the portion it owns or for which it has risk of loss),
other than any Excluded Satellite, In-Orbit Insurance and (iii) at all times
subsequent to the coverage period of the launch insurance described in clause
(i) above, if any, or if launch insurance is not procured, at all times
subsequent to the initial completion of in-orbit testing, in each case with
respect to each Satellite it then owns or for which it has risk of loss (or
portion, as applicable), other than any Excluded Satellite, In-Orbit Insurance;
PROVIDED, HOWEVER, that at any time with respect to a Satellite that is not an
Excluded Satellite, none of the Borrower or any of its Subsidiaries shall be
required to maintain In-Orbit Insurance in excess of 33% of the aggregate net
book value of all in-orbit Satellites (and portions it owns or for which it has
risk of loss) insured (it being understood that any Satellite (or portion, as
applicable) protected by In-Orbit Contingency Protection shall be deemed to be
insured for a percentage of its net book value as set forth in the definition of
"In-Orbit Contingency Protection"). In the event that the expiration and
non-renewal of In-Orbit Insurance for such a Satellite (or portion, as
applicable) resulting from a claim of loss under such policy causes a failure to
comply with the proviso in the immediately preceding sentence, the Borrower and
its Restricted Subsidiaries shall be deemed to be in compliance with such
proviso for the 120 days immediately following such expiration or non-renewal,
PROVIDED that the Borrower or any of its Restricted Subsidiaries, as the case
may be, procures such In-Orbit Insurance or provides such In-Orbit Contingency
Protection as necessary to comply with such proviso within such 120-day period.
In the event of the unavailability of any In-Orbit Contingency Protection for
any reason, the Borrower or any of its Restricted Subsidiaries, as the case may
be,
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shall, subject to the first proviso above, within 120 days of such
unavailability, be required to have in effect In-Orbit Insurance complying with
clause (ii) or (iii) above, as applicable, with respect to all Satellites (or
portions, as applicable), other than Excluded Satellites that the unavailable
In-Orbit Contingency Protection was intended to protect and for so long as such
In-Orbit Contingency Protection is unavailable, PROVIDED that the Borrower and
its Restricted Subsidiaries shall be considered in compliance with this
insurance covenant for the 120 days immediately following such unavailability.
9.4. PAYMENT OF TAXES The Borrower will pay and discharge, and the
Borrower will cause each of its Restricted Subsidiaries to pay and discharge,
all material taxes, assessments and governmental charges or levies imposed upon
it or upon its income or profits, or upon any properties belonging to it, prior
to the date on which material penalties attach thereto, and all lawful material
claims that, if unpaid, could reasonably be expected to become a material Lien
upon any properties of the Borrower or any of its Restricted Subsidiaries,
PROVIDED that none of the Borrower or any of its Restricted Subsidiaries shall
be required to pay any such tax, assessment, charge, levy or claim that is being
contested in good faith and by proper proceedings if it has maintained adequate
reserves (in the good faith judgment of the management of the Borrower) with
respect thereto in accordance with GAAP and the failure to pay could not
reasonably be expected to result in a Material Adverse Effect.
9.5. CONSOLIDATED CORPORATE FRANCHISES. The Borrower will do, and the
Borrower will cause each Material Subsidiary to do, or cause to be done, all
things necessary to preserve and keep in full force and effect its existence,
corporate rights and authority, except to the extent that the failure to do so
could not reasonably be expected to have a Material Adverse Effect; PROVIDED,
HOWEVER, that the Borrower and its Subsidiaries may consummate any transaction
permitted under Section 10.4 or 10.10.
9.6. COMPLIANCE WITH STATUTES, REGULATIONS, ETC. The Borrower will,
and will cause each Subsidiary to, comply with all applicable laws, rules,
regulations and orders applicable to it or its property (including all FCC
Licenses and all other governmental approvals or authorizations required to
launch and operate the Satellites and the TT&C Stations related thereto) and to
transmit signals to and receive transmissions from the Satellites, and to
maintain all such FCC Licenses and other governmental approvals or
authorizations in full force and effect, in each case except where the failure
to do so could not reasonably be expected to have a Material Adverse Effect (it
being understood that any failure as it may relate to any FCC License for a
Satellite that is yet to be launched shall not, in itself, be considered or
deemed to result in a Material Adverse Effect).
9.7. ERISA. Promptly after the Borrower or any Subsidiary or any
ERISA Affiliate knows or has reason to know of the occurrence of any of the
following events that, individually or in the aggregate (including in the
aggregate such events previously disclosed or exempt from disclosure hereunder,
to the extent the liability therefor remains outstanding), would be reasonably
likely to have a Material Adverse Effect, the Borrower will deliver to each of
the Lenders a certificate of an Authorized Officer or any other senior officer
of the Borrower setting forth details as to such occurrence and the action, if
any, that the Borrower, such Subsidiary or such ERISA Affiliate is required or
proposes to take, together with any notices (required, pro-
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posed or otherwise) given to or filed with or by the Borrower, such Subsidiary,
such ERISA Affiliate, the PBGC, a Plan participant (other than notices relating
to an individual participant's benefits) or the Plan administrator with respect
thereto: that a Reportable Event has occurred; that an accumulated funding
deficiency has been incurred or an application is to be made to the Secretary of
the Treasury for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a Plan; that a
Plan having an Unfunded Current Liability has been or is to be terminated,
reorganized, partitioned or declared insolvent under Title IV of ERISA
(including the giving of written notice thereof); that a Plan has an Unfunded
Current Liability that has or will result in a lien under ERISA or the Code;
that proceedings will be or have been instituted to terminate a Plan having an
Unfunded Current Liability (including the giving of written notice thereof);
that a proceeding has been instituted against the Borrower, a Subsidiary or an
ERISA Affiliate pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Plan; that the PBGC has notified the Borrower, any Subsidiary
or any ERISA Affiliate of its intention to appoint a trustee to administer any
Plan; that the Borrower, any Subsidiary or any ERISA Affiliate has failed to
make a required installment or other payment pursuant to Section 412 of the Code
with respect to a Plan; or that the Borrower, any Subsidiary or any ERISA
Affiliate has incurred or will incur (or has been notified in writing that it
will incur) any liability (including any contingent or secondary liability) to
or on account of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062,
4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code.
9.8. MAINTENANCE OF PROPERTIES . The Borrower will, and will cause
each of its Restricted Subsidiaries to, keep and maintain all property material
to the conduct of its business in good working order and condition, ordinary
wear and tear excepted, which shall include, in the case of Satellites (other
than Satellites yet to be launched), the provision of tracking, telemetry,
control and monitoring of Satellites in their designated orbital positions in
accordance with prudent and diligent standards in the commercial satellite
industry, except to the extent that the failure to do so could reasonably be
expected to have a Material Adverse Effect.
9.9. [RESERVED]
9.10. [RESERVED]
9.11. [RESERVED]
9.12. USE OF PROCEEDS. The Borrower will use the proceeds of all
Loans for the purposes set forth in the Offering Memorandum.
9.13. [RESERVED]
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9.14. FURTHER INSTRUMENTS AND ACTS. Upon request of the
Administrative Agent, the Borrower shall execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper to
carry out more effectively the purpose of this Agreement.
9.15. [RESERVED].
9.16. INTELSAT GENERAL CORPORATION. The Borrower shall use its
commercially reasonable efforts (as may be permitted under that certain proxy
agreement (the "PROXY AGREEMENT") among Intelsat General Corporation ("INTELSAT
GENERAL") and the other parties thereto, and as may be permitted under any
substantially similar agreement) and shall use its commercially reasonable
efforts (as may be permitted under the Proxy Agreement, and as may be permitted
under any substantially similar agreement) to cause its Restricted Subsidiaries
(other than Intelsat General, and other than any other Government Business
Subsidiary), not to allow or permit, directly or indirectly, Intelsat General,
or such other Government Business Subsidiary, to take, or fail to take, any
action that would violate the covenants and terms of this Agreement.
9.17. REFINANCING OF LOANS.
(a) During the period beginning on the Closing Date and continuing to
the date that is 180 days after the Closing Date, the Borrower will not offer,
sell, contract to sell or otherwise incur, any Indebtedness (whether secured or
unsecured), the proceeds of which are used (directly or indirectly) to repay or
refinance the Loans under this Agreement.
(b) Upon notice (a "TAKE-OUT NOTICE") by, and at the sole discretion
of, any three of the four Joint Lead Arrangers (the "REQUISITE LEAD ARRANGERS"),
at any time and from time to time after the 180th day after the Closing Date and
until the Initial Maturity Date shall have occurred, the Borrower will, subject
to the terms and conditions set forth below, issue and sell debt securities
(which debt securities shall be non-convertible notes (unless otherwise agreed
by the Borrower) and may be, at the option of the Requisite Lead Arrangers in
consultation with the Borrower, any combination of senior or senior
subordinated) on no more than two occasions in an aggregate amount not greater
than that required to refinance the Loans in full (the "TAKE-OUT SECURITIES"),
upon such terms and conditions as specified in the Take-Out Notice and agreed by
the Borrower if and to the extent such issuance of, and the performance of the
obligations of the Borrower under, such Take-Out Securities, is permitted under
the Borrower and its subsidiaries' debt and other agreements as in effect on the
Closing Date (after giving effect to the Transactions). In no event shall the
overall yield on the Take-Out Securities exceed 11 1/4% per annum.
(c) The Requisite Lead Arrangers in their reasonable discretion after
consultation with the Borrower shall determine whether the Take-Out Securities
shall be issued through a public offering or a private placement. The Take-Out
Securities will contain terms and covenants to substantially the same effect as
those in the Intelsat Bermuda Non-Guaranteed Fixed Rate Notes due 2016.
(d) The Borrower will, and will cause its subsidiaries to,
participate in and cooperate in connection with, the issuance of Take-Out
Securities, as reasonably requested by the Requisite Lead Arrangers, including
by (i) preparing an offering memorandum, (ii) using their commercially
reasonable efforts to procure ratings for the Take-Out Securities, including,
with-
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out limitation, making appropriate officers of the Borrower available at
mutually agreeable times for meetings with rating agencies, (iii) preparing
materials related to, participating in, making management available at mutually
agreeable times for, and completing one or more "road shows", (iv) using all
reasonable efforts to procure a customary auditor comfort letter that does not
contain limits on liability and is otherwise issued on terms acceptable to the
Requisite Lead Arrangers in their sole discretion, and (v) entering into
customary agreements on mutually agreeable terms. In no event shall such
assistance interfere in any material way with the day-to-day operations of the
Borrower or its subsidiaries.
SECTION 10. NEGATIVE COVENANTS.
10.1. LIMITATION ON INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF
DISQUALIFIED STOCK AND PREFERRED STOCK.
(a) (i) The Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, Incur any Indebtedness
(including Acquired Indebtedness) or issue any shares of Disqualified Stock; and
(ii) the Borrower shall not permit any of its Restricted Subsidiaries to issue
any shares of Preferred Stock; PROVIDED, HOWEVER, that the Borrower and any
Restricted Subsidiary of the Borrower may Incur Indebtedness (including Acquired
Indebtedness) or issue shares of Disqualified Stock and any Restricted
Subsidiary may issue shares of Preferred Stock, in each case if the Debt to
Adjusted EBITDA Ratio of the Borrower for the most recently ended four full
fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is Incurred
or such Disqualified Stock or Preferred Stock is issued would be less than or
equal to 6.75 to 1.00 determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if the additional Indebtedness
had been Incurred, or the Disqualified Stock or Preferred Stock had been issued,
as the case may be, and the application of proceeds therefrom had occurred at
the beginning of such four-quarter period.
(b) The limitations set forth in Section 10.1(a) shall not apply to
(collectively, "PERMITTED DEBT"):
(i) the Incurrence by the Borrower or its Restricted Subsidiaries of
Indebtedness under any Credit Agreements and the issuance and creation of
letters of credit and bankers' acceptances thereunder (with letters of
credit and bankers' acceptances being deemed to have a principal amount
equal to the face amount thereof) up to an aggregate principal amount of
$4,000.0 million outstanding at any one time;
(ii) the Incurrence by the Borrower and its Restricted Subsidiaries
of Indebtedness represented by the Intelsat Bermuda Notes (and any
guarantees thereof, and exchange notes in respect thereof in accordance
with the applicable registration rights agreement), the Loans and any
Guarantees, if applicable (and any Exchange Notes and Guarantees thereof);
(iii) Indebtedness of the Borrower and its Restricted Subsidiaries
existing on the Closing Date, including any Indebtedness incurred on the
Closing Date (other than Indebtedness described in clauses (i) and (ii) of
this Section 10.1(b));
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(iv) Indebtedness (including Capitalized Lease Obligations) Incurred
by the Borrower or any of its Restricted Subsidiaries, Disqualified Stock
issued by the Borrower or any of its Restricted Subsidiaries and Preferred
Stock issued by any Restricted Subsidiaries of the Borrower to finance
(whether prior to or within 270 days after) the purchase, lease,
construction or improvement of property (real or personal) or equipment
(whether through the direct purchase of assets or the Capital Stock of any
Person owning such assets) in an aggregate principal amount which, when
aggregated with the principal amount of all other Indebtedness,
Disqualified Stock and Preferred Stock then outstanding that was Incurred
pursuant to this clause (iv), does not exceed the greater of (x) $450.0
million and (y) 4% of Total Assets of the Borrower at the time of
Incurrence;
(v) Indebtedness Incurred by the Borrower or any of its Restricted
Subsidiaries constituting reimbursement obligations with respect to letters
of credit and bank guarantees issued in the ordinary course of business,
including, without limitation, letters of credit in respect of workers'
compensation claims, health, disability or other benefits to employees or
former employees or their families or property, casualty or liability
insurance or self-insurance, or other Indebtedness with respect to
reimbursement type obligations regarding workers' compensation claims;
(vi) Indebtedness arising from agreements of the Borrower or a
Restricted Subsidiary providing for indemnification, adjustment of purchase
price or similar obligations, in each case, Incurred in connection with the
Transactions or the disposition of any business, assets or a Subsidiary of
the Borrower in accordance with the terms of this Agreement, other than
guarantees of Indebtedness Incurred by any Person acquiring all or any
portion of such business, assets or Subsidiary for the purpose of financing
such acquisition;
(vii) Indebtedness of the Borrower to a Restricted Subsidiary;
PROVIDED that any such Indebtedness is subordinated in right of payment to
the obligations of the Borrower under the Loans; PROVIDED, FURTHER, that
any subsequent issuance or transfer of any Capital Stock or any other event
which results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any other subsequent transfer of any such Indebtedness
(except to the Borrower or another Restricted Subsidiary) shall be deemed,
in each case, to be an Incurrence of such Indebtedness;
(viii) shares of Preferred Stock of a Restricted Subsidiary issued to
the Borrower or another Restricted Subsidiary; PROVIDED that any subsequent
issuance or transfer of any Capital Stock or any other event that results
in any Restricted Subsidiary that holds such shares of Preferred Stock of
another Restricted Subsidiary ceasing to be a Restricted Subsidiary or any
other subsequent transfer of any such shares of Preferred Stock (except to
the Borrower or another Restricted Subsidiary) shall be deemed, in each
case, to be an issuance of shares of Preferred Stock;
(ix) Indebtedness of a Restricted Subsidiary to the Borrower or
another Restricted Subsidiary; PROVIDED, that any subsequent issuance or
transfer of any Capital Stock or any other event which results in any
Restricted Subsidiary holding such Indebtedness ceasing to be a Restricted
Subsidiary or any other subsequent transfer of any such
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Indebtedness (except to the Borrower or another Restricted Subsidiary)
shall be deemed, in each case, to be an Incurrence of such Indebtedness;
(x) Hedging Obligations (other than for speculative purposes) (1) for
the purpose of fixing or hedging interest rate risk with respect to any
Indebtedness that is permitted by the terms of this Agreement to be
outstanding; or (2) for the purpose of fixing or hedging currency exchange
rate risk with respect to any currency exchanges;
(xi) obligations (including reimbursement obligations with respect to
letters of credit and bank guarantees) in respect of performance, bid,
appeal and surety bonds, completion guarantees and the Lockheed Note
provided by the Borrower or any Restricted Subsidiary in the ordinary
course of business;
(xii) Indebtedness or Disqualified Stock of the Borrower or any
Restricted Subsidiary of the Borrower and Preferred Stock of any Restricted
Subsidiary of the Borrower not otherwise permitted hereunder in an
aggregate principal amount which, when aggregated with the principal amount
or liquidation preference of all other Indebtedness and Disqualified Stock
then outstanding and Incurred pursuant to this clause (xii), does not
exceed the greater of (x) $450.0 million and (y) 4% of Total Assets of the
Borrower at any one time outstanding (it being understood that any
Indebtedness, Disqualified Stock or Preferred Stock Incurred or issued
under this clause (xii) shall cease to be deemed Incurred or outstanding
for purposes of this clause (xii) but shall be deemed Incurred for purposes
of Section 4.3(a) from and after the first date on which the Borrower or
the Restricted Subsidiary, as the case may be, could have Incurred or
issued such Indebtedness, Disqualified Stock or Preferred Stock under
Section 10.1(a) without reliance upon this clause (xii));
(xiii) any guarantee by the Borrower or a Restricted Subsidiary of
Indebtedness or other obligations of the Borrower or any of its Restricted
Subsidiaries so long as the Incurrence of such Indebtedness or other
Obligations by the Borrower or such Restricted Subsidiary is permitted
under the terms of this Agreement; PROVIDED that if such Indebtedness is by
its express terms subordinated in right of payment to the Loans or the
Guarantee of such Restricted Subsidiary, as applicable, any such guarantee
of such guarantor with respect to such Indebtedness shall be subordinated
in right of payment to the Loans or such Guarantor's Guarantee, as
applicable, substantially to the same extent as such Indebtedness is
subordinated to the Loans or the Guarantee of such Restricted Subsidiary,
as applicable;
(xiv) the Incurrence by the Borrower or any of its Restricted
Subsidiaries of Indebtedness or Disqualified Stock or Preferred Stock of a
Restricted Subsidiary of the Borrower which serves to refund or refinance
or defease any Indebtedness Incurred or Disqualified Stock or Preferred
Stock as permitted under Section 10.1(a) and clauses (ii), (iii), (iv),
(xiv), (xv), (xix), (xx) and (xxii) of this Section 10.1(b) or any
Indebtedness, Disqualified Stock or Preferred Stock Incurred to so refund
or refinance such Indebtedness, Disqualified Stock or Preferred Stock,
including any Indebtedness, Disqualified Stock or Preferred Stock Incurred
to pay premiums and fees in connection therewith
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(subject to the following proviso, "REFINANCING INDEBTEDNESS") prior to its
respective maturity; PROVIDED, HOWEVER, that such Refinancing Indebtedness:
(1) has a Weighted Average Life to Maturity at the time such
Refinancing Indebtedness is Incurred which is not less than the
shorter of (x) the remaining Weighted Average Life to Maturity of the
Indebtedness, Disqualified Stock or Preferred Stock being refunded or
refinanced and (y) the Weighted Average Life to Maturity that would
result if all payments of principal on the Indebtedness, Disqualified
Stock and Preferred Stock being refunded or refinanced that was due on
or after the date one year following the maturity date of any Exchange
Notes then outstanding were instead due on such date one year
following the maturity date of any Exchange Notes then outstanding;
(2) to the extent such Refinancing Indebtedness refinances (a)
Indebtedness junior to the Loans, such Refinancing Indebtedness is
junior to the Loans or (b) Disqualified Stock or Preferred Stock, such
Refinancing Indebtedness is Disqualified Stock or Preferred Stock;
(3) is Incurred in an aggregate principal amount (or if issued
with original issue discount, an aggregate issue price) that is equal
to or less than the aggregate principal amount (or if issued with
original issue discount, the aggregate accreted value) then
outstanding of the Indebtedness being refinanced plus premium and fees
Incurred in connection with such refinancing;
(4) shall not include (x) Indebtedness of the Borrower or a
Restricted Subsidiary that refinances Indebtedness of an Unrestricted
Subsidiary; and
(5) in the case of any Refinancing Indebtedness Incurred to
refinance Indebtedness outstanding under clause (iv) or (xx) of this
Section 10.1(b), shall be deemed to have been Incurred and to be
outstanding under such clause (iv) or (xx) of this Section 10.1(b), as
applicable, and not this clause (xiv) for purposes of determining
amounts outstanding under such clauses (iv) and (xx) of this Section
10.1(b);
and PROVIDED, FURTHER, that subclause (1) of this clause (xiv) shall not
apply to any refunding, refinancing or defeasance of (A) the Loans or (B)
any Secured Indebtedness;
(xv) Indebtedness, Disqualified Stock or Preferred Stock of Persons
that are acquired by the Borrower or any of its Restricted Subsidiaries or
merged or amalgamated into the Borrower or a Restricted Subsidiary in
accordance with the terms of this Agreement; PROVIDED, HOWEVER, that such
Indebtedness, Disqualified Stock or Preferred Stock is not Incurred in
contemplation of such acquisition, merger or amalgamation; PROVIDED,
FURTHER, HOWEVER, that after giving effect to such acquisition, merger or
amalgamation, either:
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(1) the Borrower would be permitted to Incur at least $1.00 of
additional Indebtedness pursuant to the Debt to Adjusted EBITDA Ratio
test set forth in Section 10.1(a); or
(2) the Debt to Adjusted EBITDA Ratio of the Borrower would be
less than or equal to such ratio immediately prior to such
acquisition;
(xvi) Indebtedness Incurred by a Receivables Subsidiary in a
Qualified Receivables Financing that is not recourse (except for Standard
Securitization Undertakings) to the Borrower or any Restricted Subsidiary
other than a Receivables Subsidiary;
(xvii) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business; PROVIDED that such
Indebtedness is extinguished within five Business Days of its Incurrence;
(xviii) Indebtedness of the Borrower or any Restricted Subsidiary
supported by a letter of credit or bank guarantee issued pursuant to the
Credit Agreement, in a principal amount not in excess of the stated amount
of such letter of credit or bank guarantee;
(xix) Contribution Indebtedness;
(xx) Indebtedness of Restricted Subsidiaries that are not Guarantors
not otherwise permitted hereunder; PROVIDED, HOWEVER, that the aggregate
principal amount of Indebtedness Incurred under this Section 10.1(b) (xx),
when aggregated with the principal amount of all other Indebtedness then
outstanding and Incurred pursuant to this clause (xx), does not exceed the
greater of (x) $75.0 million and (y) 10% of the Total Assets of the
Restricted Subsidiaries of Intelsat Subholdco that are not guarantors of
any Indebtedness of the Borrower;
(xxi) Indebtedness of the Borrower or any Restricted Subsidiary
consisting of (x) the financing of insurance premiums or (y) take-or-pay
obligations contained in supply arrangements, in each case, in the ordinary
course of business; and
(xxii) Indebtedness of the Borrower or any of the Restricted
Subsidiaries incurred to repurchase or refinance any Specified Existing
PanAmSat Notes.
(c) For purposes of determining compliance with this Section 10.1, in
the event that an item of Indebtedness, Disqualified Stock or Preferred Stock
meets the criteria of one or more of the categories of permitted Indebtedness,
Disqualified Stock or Preferred Stock described in Sections 10.1(b)(i) through
(xxii) above or is entitled to be Incurred pursuant to Section 10.1(a), the
Borrower shall, in its sole discretion divide, classify or reclassify or later
divide, classify or reclassify such item of Indebtedness, Disqualified Stock or
Preferred Stock in any manner that complies with this Section 10.1 and such item
of Indebtedness, Disqualified Stock or Preferred Stock shall be treated as
having been Incurred pursuant to one or more of such clauses or pursuant to
Section 10.1(a); PROVIDED that all Indebtedness under the Credit Agreements
outstanding on the Closing Date shall be deemed to have been Incurred pursuant
to Section
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10.1(b)(i). Accrual of interest, the accretion of accreted value, amortization
or original issue discount, the payment of interest in the form of additional
Indebtedness with the same terms, the payment of dividends on Preferred Stock in
the form of additional shares of Preferred Stock of the same class, the
accretion of liquidation preference and increases in the amount of Indebtedness
outstanding solely as a result of fluctuations in the exchange rate of
currencies shall not be deemed to be an Incurrence of Indebtedness for purposes
of this Section 10.1. Guarantees of, or obligations in respect of letters of
credit relating to, Indebtedness which is otherwise included in the
determination of a particular amount of Indebtedness shall not be included in
the determination of such amount of Indebtedness; PROVIDED that the Incurrence
of the Indebtedness represented by such guarantee or letter of credit, as the
case may be, was in compliance with this Section 10.1.
For purposes of determining compliance with any U.S.
dollar-denominated restriction on the Incurrence of Indebtedness, the U.S.
Dollar Equivalent principal amount of Indebtedness denominated in a foreign
currency shall be calculated based on the relevant currency exchange rate in
effect on the date such Indebtedness was Incurred, in the case of term debt, or
first committed or first Incurred (whichever yields the lower U.S. Dollar
Equivalent), in the case of revolving credit debt; PROVIDED that if such
Indebtedness is Incurred to refinance other Indebtedness denominated in a
foreign currency, and such refinancing would cause the applicable U.S.
dollar-denominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such U.S.
dollar-denominated restriction shall be deemed not to have been exceeded so long
as the principal amount of such refinancing Indebtedness does not exceed the
principal amount of such Indebtedness being refinanced.
10.2. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any distribution on account
of the Borrower's or any of its Restricted Subsidiaries' Equity Interests,
including any payment with respect to such Equity Interests made in
connection with any merger, amalgamation or consolidation involving the
Borrower (other than (A) dividends or distributions by the Borrower payable
solely in Equity Interests (other than Disqualified Stock) of the Borrower;
or (B) dividends or distributions by a Restricted Subsidiary so long as, in
the case of any dividend or distribution payable on or in respect of any
class or series of securities issued by a Restricted Subsidiary other than
a Wholly Owned Restricted Subsidiary, the Borrower or a Restricted
Subsidiary receives at least its pro rata share of such dividend or
distribution in accordance with its Equity Interests in such class or
series of securities);
(ii) purchase or otherwise acquire or retire for value any Equity
Interests of the Borrower or any Parent of the Borrower;
(iii) make any principal payment on, or redeem, repurchase, defease
or otherwise acquire or retire for value, in each case prior to any
scheduled repayment or scheduled maturity, any Subordinated Indebtedness of
the Borrower or any Restricted Subsidiary (other than the payment,
redemption, repurchase, defeasance, acquisition or retire-
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ment of (A) Subordinated Indebtedness in anticipation of satisfying a
sinking fund obligation, principal installment or final maturity, in each
case due within one year of the date of such payment, redemption,
repurchase, defeasance, acquisition or retirement and (B) Indebtedness
permitted under clauses (vii) and (ix) of Section 10.1(b)); or
(iv) make any Restricted Investment
(all such payments and other actions set forth in clauses (i) through (iv) above
being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the time of
such Restricted Payment:
(1) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(2) immediately after giving effect to such transaction on a pro
forma basis, the Borrower would have a Debt to Adjusted EBITDA Ratio of
less than or equal to 5.5 to 1.0; and
(3) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by the Borrower and its Restricted
Subsidiaries after January 28, 2005 (including Restricted Payments
permitted by clauses (i), (iv) (only to the extent of one-half of the
amounts paid pursuant to such clause), (vi) and (viii) of Section 10.2(b),
but excluding all other Restricted Payments permitted by Section 10.2(b)),
is less than the amount equal to the difference between (1) the Cumulative
Credit and (2) 1.4 times Cumulative Interest Expense (it being understood
that for purposes of calculating Cumulative Interest Expense for this
purpose only, any of the Borrower's or its Subsidiaries' non-cash interest
expense and amortization of original issue discount shall be excluded).
(b) The provisions of Section 10.2(a) shall not prohibit:
(i) the payment of any dividend or distribution within 60 days after
the date of declaration thereof, if at the date of declaration such payment
would have complied with the provisions of this Agreement;
(ii) (A) the repurchase, retirement or other acquisition of any
Equity Interests ("RETIRED CAPITAL STOCK") of the Borrower or any Parent of
the Borrower or Subordinated Indebtedness of the Borrower or any Subsidiary
Guarantor in exchange for, or out of the proceeds of the substantially
concurrent sale (other than the sale of any Disqualified Stock or any
Equity Interests sold to a Restricted Subsidiary of the Borrower or to an
employee stock ownership plan or any trust established by the Borrower or
any of its Subsidiaries) of Equity Interests of the Borrower or any Parent
of the Borrower or contributions to the equity capital of the Borrower
(collectively, including any such contributions, "REFUNDING CAPITAL STOCK")
and (B) the declaration and payment of accrued dividends on the Retired
Capital Stock out of the proceeds of the substantially concurrent sale
(other than to a Subsidiary of the Borrower or to an employee stock
ownership plan or any trust established by the Borrower or any of its
Subsidiaries) of Refunding Capital Stock;
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(iii) the redemption, repurchase or other acquisition or retirement
of Subordinated Indebtedness of the Borrower or any Subsidiary Guarantor
made by exchange for, or out of the proceeds of the substantially
concurrent sale of, new Indebtedness of the Borrower or any Subsidiary
Guarantor which is Incurred in accordance with Section 10.1 so long as
(A) the principal amount of such new Indebtedness does not
exceed the principal amount of the Subordinated Indebtedness being so
redeemed, repurchased, acquired or retired for value (plus the amount
of any premium required to be paid under the terms of the instrument
governing the Subordinated Indebtedness being so redeemed,
repurchased, acquired or retired plus any fees incurred in connection
therewith),
(B) such Indebtedness is subordinated to the Loans or the
related Guarantee, as the case may be, at least to the same extent as
such Subordinated Indebtedness so purchased, exchanged, redeemed,
repurchased, acquired or retired for value,
(C) such Indebtedness has a final scheduled maturity date equal
to or later than the earlier of (x) final scheduled maturity date of
the Subordinated Indebtedness being so redeemed, repurchased,
acquired or retired or (y) one year following the maturity date of
any Exchange Notes then outstanding, and
(D) such Indebtedness has a Weighted Average Life to Maturity at
the time Incurred which is not less than the shorter of (x) the
remaining Weighted Average Life to Maturity of the Subordinated
Indebtedness being so redeemed, repurchased, acquired or retired and
(y) the Weighted Average Life to Maturity that would result if all
payments of principal on the Subordinated Indebtedness being
redeemed, repurchased, acquired or retired that were due on or after
the date one year following the last maturity date of any Exchange
Notes then outstanding were instead due on such date one year
following the maturity date of any Exchange Notes then outstanding;
(iv) the repurchase, retirement or other acquisition (or dividends to
any Parent of the Borrower to finance any such repurchase, retirement or
other acquisition) for value of Equity Interests of the Borrower or any
Parent of the Borrower held by any future, present or former employee,
director or consultant of the Borrower, any Parent of the Borrower or any
Subsidiary of the Borrower pursuant to any management equity plan or stock
option plan or any other management or employee benefit plan or other
agreement or arrangement; PROVIDED, HOWEVER, that the aggregate amounts
paid under this clause (iv) do not exceed $35.0 million in any calendar
year (with unused amounts in any calendar year being permitted to be
carried over to succeeding calendar years subject to a maximum payment
(without giving effect to the following proviso) of $70.0 million in any
calendar year); PROVIDED, FURTHER, HOWEVER, that such amount in any
calendar year may be increased by an amount not to exceed:
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(A) the cash proceeds received by the Borrower or any of its
Restricted Subsidiaries from the sale of Equity Interests (other than
Disqualified Stock) of the Borrower or any Parent of the Borrower (to
the extent contributed to the Borrower) to members of management,
directors or consultants of the Borrower and its Restricted
Subsidiaries or any Parent of the Borrower that occurs after January
28, 2005 (PROVIDED that the amount of such cash proceeds
utilized for any such repurchase, retirement, other acquisition or
dividend shall not increase the amount available for Restricted
Payments under Section 10.2(a)(3)); PLUS
(B) the cash proceeds of key man life insurance policies
received by the Borrower, any Parent of the Borrower (to the extent
contributed to the Borrower) or the Borrower's Restricted
Subsidiaries after January 28, 2005;
PROVIDED that the Borrower may elect to apply all or any portion of the
aggregate increase contemplated by clauses (A) and (B) above in any
calendar year; and provided, FURTHER, that the cancellation of Indebtedness
owing to the Borrower from members of management of the Borrower, of any
direct or indirect Parent of the Borrower or of any Restricted Subsidiary
of the Borrower in connection with a repurchase of Equity Interests of the
Borrower or any Parent of the Borrower will not be deemed to constitute a
Restricted Payment for purposes of this covenant or any other provision of
this Agreement;
(v) the declaration and payment of dividends or distributions to
holders of any class or series of Disqualified Stock of the Borrower or any
of its Restricted Subsidiaries issued or incurred in accordance with
Section 10.1;
(vi) the declaration and payment of dividends or distributions (a) to
holders of any class or series of Designated Preferred Stock (other than
Disqualified Stock) issued after January 28, 2005, (b) to any Parent of the
Borrower, the proceeds of which will be used to fund the payment of
dividends to holders of any class or series of Designated Preferred Stock
(other than Disqualified Stock) of any Parent of the Borrower issued after
January 28, 2005 and (c) on Refunding Capital Stock in excess of amounts
permitted pursuant to clause (2) of this paragraph; PROVIDED, HOWEVER, that
(A) in the case of (a), (b) and (c) of this clause (vi), for the most
recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date of issuance of such
Designated Preferred Stock, or the declaration of such dividends on
Refunding Capital Stock, after giving effect to such issuance (and the
payment of dividends or distributions) on a pro forma basis, the Borrower
would be permitted to Incur at least $1.00 of additional Indebtedness
pursuant to the Debt to Adjusted EBITDA Ratio test in Section 10.1(a) and
(B) the aggregate amount of dividends declared and paid pursuant to
subclauses (a) and (b) of this clause (vi) does not exceed the net cash
proceeds actually received by the Borrower from any such sale of Designated
Preferred Stock (other than Disqualified Stock) issued after January 28,
2005;
(vii) Investments in Unrestricted Subsidiaries having an aggregate
Fair Market Value, taken together with all other Investments made pursuant
to this clause (vii) that are at that time outstanding, not to exceed
$125.0 million at the time of such Investment
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(with the Fair Market Value of each Investment being measured at the time
made and without giving effect to subsequent changes in value);
(viii) the payment of dividends on the Borrower's ordinary shares or
common stock (or the payment of dividends to any Parent of the Borrower, as
the case may be, to fund the payment by any Parent of the Borrower of
dividends on such entity's ordinary shares or common stock) of up to 7.5%
per annum of the net proceeds received by the Borrower from any public
offering of ordinary shares or common stock or contributed to the Borrower
by any Parent of the Borrower from any public offering of ordinary shares
or common stock;
(ix) Investments that are made with Excluded Contributions;
(x) other Restricted Payments in an aggregate amount not to exceed
$200.0 million if, immediately after giving effect to such Restricted
Payment on a pro forma basis, the Borrower would have a Debt to Adjusted
EBITDA Ratio of less than or equal to 5.5 to 1.0;
(xi) the distribution, as a dividend or otherwise, of shares of
Capital Stock of, or Indebtedness owed to the Borrower or a Restricted
Subsidiary of the Borrower by, Unrestricted Subsidiaries;
(xii) (A) with respect to any tax year or portion thereof that a
Tax-affected Investor would be required to recognize on a current basis
taxable income attributable to earnings and profits of the Borrower or its
Subsidiaries in advance of any distribution of such earnings and profits by
the Borrower, an amount equal to the product of (i) the amount of the
income so required to be included (it being understood that for purposes of
calculating such income pursuant to clause (A), any of the Borrower's and
its Subsidiaries non-cash interest expense and amortization of original
issue discount shall be excluded) and (ii) the Presumed Tax Rate; PROVIDED
that in the case of any such distribution other than a distribution solely
on account of any Parent of the Borrower qualifying as a Flow Through
Entity, the Trustee shall have received an opinion of nationally recognized
tax counsel to the effect that the earnings and profits of the Borrower and
its Subsidiaries are subject to inclusion in income of a Tax-affected
Investor on a current basis in advance of any distribution of such earnings
and profits; and (B) for any taxable year, payment of dividends or other
distributions to any Parent of the Borrower if any Parent of the Borrower
is required to file a consolidated, unitary or similar tax return
reflecting income of the Borrower or its Restricted Subsidiaries in an
amount equal to the portion of such taxes attributable to the Borrower
and/or its Restricted Subsidiaries that are not payable directly by the
Borrower or its Restricted Subsidiaries, but not to exceed the amount that
the Borrower or such Restricted Subsidiaries would have been required to
pay in respect of taxes if the Borrower and such Restricted Subsidiaries
had been required to pay such taxes directly as standalone taxpayers (or a
standalone group separate from such Parent);
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(xiii) the payment of dividends, other distributions or other amounts
by the Borrower to, or the making of loans to, any Parent, in amounts
required for such Parent to:
(A) pay amounts equal to the amounts required for any Parent of
the Borrower to pay fees and expenses (including franchise or similar
taxes) required to maintain its corporate existence, customary
salary, bonus and other benefits payable to, and indemnities provided
on behalf of, officers and employees of any Parent of the Borrower
and general corporate overhead expenses of any Parent of the
Borrower, in each case to the extent such fees, expenses, salaries,
bonuses, benefits and indemnities are attributable to the ownership
or operation of the Borrower and its Subsidiaries;
(B) pay amounts equal to amounts required for any Parent of the
Borrower to pay interest and/or principal on Indebtedness the
proceeds of which have been contributed to the Borrower or any of its
Restricted Subsidiaries and that has been guaranteed by, or is
otherwise considered Indebtedness of, the Borrower Incurred in
accordance with Section 10.1; and
(C) pay cash interest on the Existing Intelsat Notes pursuant to
the terms of the agreements governing such Existing Intelsat Notes as
in effect on the Closing Date and to pay any cash interest on any
Indebtedness refinancing the Existing Intelsat Notes; PROVIDED that
such Indebtedness remains the sole obligation of Holdings and the
principal amount of any such Indebtedness redeeming, refinancing or
replacing the Existing Intelsat Notes does not exceed the principal
amount of the Indebtedness refinanced, plus any premiums, fees and
expenses payable in connection with such refinancing;
(xiv) any Restricted Payment used to fund the Transactions and the
fees and expenses related thereto or made in connection with the
consummation of the Transactions (including pursuant to or as contemplated
by the Acquisition Documents, whether on the Closing Date or thereafter),
or owed by the Borrower or any Parent of the Borrower or Restricted
Subsidiaries of the Borrower to Affiliates, in each case to the extent
permitted by Section 10.5;
(xv) repurchases of Equity Interests deemed to occur upon exercise of
stock options or warrants if such Equity Interests represent a portion of
the exercise price of such options or warrants;
(xvi) purchases of receivables pursuant to a Receivables Repurchase
Obligation in connection with a Qualified Receivables Financing and the
payment or distribution of Receivables Fees;
(xvii) the payment, purchase, redemption, defeasance or other
acquisition or retirement of Subordinated Indebtedness, Disqualified Stock
or Preferred Stock of the Borrower and its Restricted Subsidiaries,
pursuant to provisions similar to those described under Sections 10.4 and
10.6; PROVIDED that, prior to such payment, purchase, redemption,
defeasance or other acquisition or retirement, the Borrower (or a third
party to the
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extent permitted by the indenture) has made a Change of Control Offer or
Excess Proceeds Offer, as the case may be, with respect to the Loans as a
result of such Change of Control or Asset Sale, as the case may be, and has
repurchased all notes validly tendered and not withdrawn in connection with
such Change of Control Offer or Excess Proceeds Offer, as the case may be;
(xviii) any payments made in connection with the consummation of the
Transactions or as contemplated by the Acquisition Documents (other than
payments to any Permitted Holder or any Affiliate thereof);
(xix) the repurchase, redemption or other acquisition or retirement
for value (including repayment at maturity) of (a) Holdings' 5 1/4% Senior
Notes due 2008 and (b) the Lockheed Note (including any payments to any
Parent of the Borrower to effect the foregoing); PROVIDED that any
Indebtedness Incurred in connection with any such redemption, repurchase or
other acquisition is Incurred in accordance with Section 10.1;
(xx) the repurchase, redemption or other acquisition or retirement
for value of any of the Existing Intelsat Notes from the proceeds of a
Specified Sale/Leaseback Transaction (including any payments to any Parent
of the Borrower to effect the foregoing); and
(xxi) the payment of dividends, other distributions or other amounts
by the Borrower to, or the making of loans by the Borrower or any of its
Restricted Subsidiaries to, any Parent of the Borrower to the extent that
amounts equal to such dividends, distributions, other amounts or loans are
promptly contributed to the capital of the Borrower by such Parent or
otherwise promptly repaid by such Parent to the Borrower or any Restricted
Subsidiary of the Borrower (whether in the form of interest or principal or
other payment on debt existing on the Closing Date); PROVIDED that any
amounts contributed to the capital of the Borrower or otherwise repaid
pursuant to this clause (xxi) shall be excluded from the calculation set
forth in the definition of the term "Cumulative Credit";
PROVIDED, HOWEVER, that at the time of, and after giving effect to, any
Restricted Payment permitted under clauses (v), (vi), (vii), (x), (xi),
(xiii)(C), (xvii) and (xix) of this Section 10.2(b), no Default or Event of
Default shall have occurred and be continuing or would occur as a consequence
thereof.
(c) As of the Closing Date, all of the Borrower's Subsidiaries shall
be Restricted Subsidiaries. The Borrower shall not permit any Unrestricted
Subsidiary to become a Restricted Subsidiary except pursuant to the definition
of "Unrestricted Subsidiary." For purposes of designating any Restricted
Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the
Borrower and its Restricted Subsidiaries (except to the extent repaid) in the
Subsidiary so designated shall be deemed to be Restricted Payments or Permitted
Investments in an amount determined as set forth in the last sentence of the
definition of "Investments." Such designation shall only be permitted if
Restricted Payments or Permitted Investments in such amount would be permitted
at such time and if such Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary.
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10.3. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.
The Borrower shall not, and shall not permit any of its Restricted Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or consensual restriction on the
ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Borrower
or any of its Restricted Subsidiaries (1) on its Capital Stock; or (2) with
respect to any other interest or participation in, or measured by, its
profits; or (ii) pay any Indebtedness owed to the Borrower or any of its
Restricted Subsidiaries;
(b) make loans or advances to the Borrower or any of its Restricted
Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the
Borrower or any of its Restricted Subsidiaries;
except in each case for such encumbrances or restrictions existing under or by
reason of:
(1) contractual encumbrances or restrictions in effect on the Closing
Date, including pursuant to the Credit Agreements and the other Senior
Credit Documents, and pursuant to documents and agreements relating to the
Specified Intercompany Agreements, the Existing Intelsat Notes, the
Existing Subsidiary Notes (including any exchange notes therefor), the New
PanAmSat Indebtedness (including any exchange notes therefor) and the
Lockheed Note;
(2) the Intelsat Bermuda Notes, this Agreement and the Loans (and, in
each case, any exchange notes and guarantees thereof);
(3) applicable law or any applicable rule, regulation or order;
(4) any agreement or other instrument of a Person acquired by the
Borrower or any Restricted Subsidiary which was in existence at the time of
such acquisition (but not created in contemplation thereof), which
encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the property
or assets of the Person, so acquired;
(5) contracts or agreements for the sale of assets, including
customary restrictions with respect to a Subsidiary pursuant to an
agreement that has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of such Subsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant
to Sections 10.1 and 10.8 that limit the right of the debtor to dispose of
the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business;
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(8) customary provisions in joint venture agreements and other
similar agreements (including customary provisions in agreements relating
to any Joint Venture);
(9) purchase money obligations for property acquired and Capitalized
Lease Obligations in the ordinary course of business that impose
restrictions of the nature discussed in clause (c) above on the property so
acquired;
(10) customary provisions contained in leases, licenses, contracts
and other similar agreements entered into in the ordinary course of
business that impose restrictions of the type described in clause (c) above
on the property subject to such lease;
(11) any encumbrance or restriction of a Receivables Subsidiary
effected in connection with a Qualified Receivables Financing that, in the
good faith judgment of the Borrower, are necessary or advisable in
connection therewith; PROVIDED, HOWEVER, that such restrictions apply only
to such Receivables Subsidiary;
(12) agreements and instruments, including agreements and instruments
governing Indebtedness, Disqualified Stock or Preferred Stock of any
Restricted Subsidiary of the Borrower that is Incurred subsequent to the
Closing Date and permitted pursuant to Section 10.1; PROVIDED that either
(A) the provisions relating to such encumbrance or restriction contained in
such agreements or instruments are no less favorable to the Borrower, taken
as a whole, as determined by the Board of Directors of the Borrower in good
faith, than the provisions contained in either Credit Agreement and the
other Senior Credit Documents or in an indenture or agreement governing the
Existing Intelsat Notes, the Existing Subsidiary Notes, the New PamAmSat
Indebtedness, the Intelsat Bermuda Notes or the Loans in each case, as in
effect on the Closing Date or (B) such encumbrances and restrictions
contained in any agreement or instrument will not materially affect the
Borrower's ability to make anticipated principal or interest payments on
the Loans (as determined by the Borrower in good faith);
(13) any Restricted Investment not prohibited by Section 10.2 and any
Permitted Investment; and
(14) any encumbrances or restrictions of the type referred to in
clauses (a), (b) and (c) above imposed by any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings of the contracts, instruments or obligations referred to in
clauses (1) through (13) above; PROVIDED that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are, in the good faith judgment of the
Borrower, no more restrictive as a whole with respect to such encumbrances
and restrictions than those prior to such amendment, modification,
restatement, renewal, increase, supplement, refunding, replacement or
refinancing.
For purposes of determining compliance with this covenant, (i) the
priority of any Preferred Stock in receiving dividends or liquidating
distributions prior to dividends or liquidating distributions being paid on
ordinary shares shall not be deemed a restriction on the ability to make
distributions on Capital Stock and (ii) the subordination of loans or advances
made to the
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Borrower or a Restricted Subsidiary of the Borrower to other Indebtedness
Incurred by the Borrower or any such Restricted Subsidiary shall not be deemed a
restriction on the ability to make loans or advances.
10.4. ASSET SALES.
(a) The Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, cause or make an Asset Sale, unless (x) the Borrower
or any of its Restricted Subsidiaries, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the Fair Market
Value (as determined in good faith by the Borrower) of the assets sold or
otherwise disposed of and (y) at least 75% of the consideration therefor
received by the Borrower or such Restricted Subsidiary, as the case may be, is
in the form of Cash Equivalents; PROVIDED that the amount of:
(i) any liabilities (as shown on the Borrower's or such Restricted
Subsidiary's most recent balance sheet or in the notes thereto) of the
Borrower or any Restricted Subsidiary of the Borrower (other than
liabilities that are by their terms subordinated to the Loans) that are
assumed by the transferee of any such assets,
(ii) any notes or other obligations or other securities or assets
received by the Borrower or such Restricted Subsidiary of the Borrower from
such transferee that are converted by the Borrower or such Restricted
Subsidiary of the Borrower into cash within 180 days of the receipt thereof
(to the extent of the cash received), and
(iii) any Designated Non-cash Consideration received by the Borrower
or any of its Restricted Subsidiaries in such Asset Sale having an
aggregate Fair Market Value, taken together with all other Designated
Non-cash Consideration received pursuant to this clause (iii) that is at
that time outstanding, not to exceed 6.25% of Total Assets of the Borrower
at the time of the receipt of such Designated Non-cash Consideration (with
the Fair Market Value of each item of Designated Non-cash Consideration
being measured at the time received and without giving effect to subsequent
changes in value)
shall be deemed to be Cash Equivalents for the purposes of this Section 10.4(a).
(b) Within 485 days after the Borrower's or any Restricted Subsidiary
of the Borrower's receipt of the Net Proceeds of any Asset Sale (or Event of
Loss Proceeds), the Borrower or such Restricted Subsidiary of the Borrower may
apply the Net Proceeds from such Asset Sale together with any Event of Loss
Proceeds, at its option:
(i) to permanently reduce Obligations under Secured Indebtedness or
Pari Passu Indebtedness (PROVIDED that if the Borrower or any Guarantor
shall so reduce Obligations under Pari Passu Indebtedness (other than Pari
Passu Indebtedness that is Secured Indebtedness and other than Pari Passu
Indebtedness that is Indebtedness represented by the Borrower's guarantee
of Indebtedness of any Restricted Subsidiary of the Borrower), the Borrower
shall equally and ratably reduce Obligations under this Agreement if the
Loans are then prepayable or, if the Loans may not then be prepaid, by
making an offer (in accordance with the procedures set forth below for an
Excess Proceeds Offer) to all
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Holders to purchase at a purchase price equal to 100% of the principal
amount thereof, plus accrued and unpaid interest and additional interest,
if any, the pro rata principal amount of Loans that would otherwise be
prepaid) or Indebtedness of a Restricted Subsidiary that is not a
Guarantor, in each case other than Indebtedness owed to the Borrower or an
Affiliate of the Borrower; PROVIDED that if an offer to purchase any
Indebtedness of any of the Borrower or its Restricted Subsidiaries is made
in accordance with the terms of such Indebtedness, the obligation to
permanently reduce Indebtedness of the Borrower or a Restricted Subsidiary,
as the case may be, will be deemed to be satisfied to the extent of the
amount of the offer, whether or not accepted by the holders thereof, and no
Net Proceeds in the amount of such offer will be deemed to exist following
such offer,
(ii) to an investment in any one or more businesses (PROVIDED that if
such investment is in the form of the acquisition of Capital Stock of a
Person, such acquisition results in such Person becoming a Restricted
Subsidiary of the Borrower), or capital expenditures or assets, in each
case used or useful in a Similar Business, and/or
(iii) to make an investment in any one or more businesses (PROVIDED
that if such investment is in the form of the acquisition of Capital Stock
of a Person, such acquisition results in such Person becoming a Restricted
Subsidiary of the Borrower), properties or assets that replace the
properties and assets that are the subject of such Asset Sale or Event of
Loss;
PROVIDED that in the case of clauses (ii) and (iii) above, a binding commitment
shall be treated as a permitted application of the Net Proceeds from the date of
such commitment and, in the event such binding commitment is later canceled or
terminated for any reason before such Net Proceeds are so applied, the Borrower
or such Restricted Subsidiary enters into another binding commitment within nine
months of such cancellation or termination of the prior binding commitment.
Pending the final application of any such Net Proceeds (or Event of Loss
Proceeds), the Borrower or such Restricted Subsidiary of the Borrower may
temporarily reduce Indebtedness under a revolving credit facility, if any, or
otherwise invest such Net Proceeds (or Event of Loss Proceeds) in Cash
Equivalents or Investment Grade Securities. Any Net Proceeds from any Asset Sale
(or Event of Loss Proceeds) that are not applied as provided and within the time
period set forth in the first sentence of this Section 10.4(b) (it being
understood that any portion of such Net Proceeds (or Event of Loss Proceeds)
used to make an offer to prepay the Loans, as described in clause (i) above,
shall be deemed to have been invested whether or not such offer is accepted)
shall be deemed to constitute "EXCESS PROCEEDS." When the aggregate amount of
Excess Proceeds exceeds $55.0 million, the Borrower shall make a Prepayment
Offer pursuant to Section 5.2 and in accordance with this Section 10.4. Upon
completion of any such Excess Proceeds Offer, the amount of Excess Proceeds
shall be reset at zero.
10.5. TRANSACTIONS WITH AFFILIATES.
(a) The Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, make any payment to, or
sell, lease, transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or assets from, or enter into or make or amend any
transaction or series of transactions, contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate of the Borrower
(each of the forego-
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ing, an "AFFILIATE Transaction") involving aggregate consideration in excess of
$15.0 million, unless:
(i) such Affiliate Transaction is on terms that are not materially
less favorable to the Borrower or the relevant Restricted Subsidiary than
those that could have been obtained in a comparable transaction by the
Borrower or such Restricted Subsidiary with an unrelated Person; and
(ii) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $35.0
million, the Borrower delivers to the Trustee a resolution adopted in good
faith by the majority of the Board of Directors of the Borrower or any
Parent of the Borrower approving such Affiliate Transaction and set forth
in an Officers' Certificate certifying that such Affiliate Transaction
complies with clause (i) above.
(b) The provisions of Section 10.5(a) shall not apply to the
following:
(i) (A) transactions between or among the Borrower and/or any of its
Restricted Subsidiaries and (B) any merger or amalgamation of the Borrower
and any direct parent company of Borrower; PROVIDED that such parent
company shall have no material liabilities and no material assets other
than cash, Cash Equivalents and the Capital Stock of the Borrower and such
merger or amalgamation is otherwise in compliance with the terms of this
Agreement and effected for a bona fide business purpose;
(ii) (A) Restricted Payments permitted by Section 10.2 and (B)
Investments under the definition of "Permitted Investments";
(iii) the entering into of any agreement to pay, and the payment of,
management, consulting, monitoring and advisory fees and expenses to the
Sponsors in an aggregate amount in any fiscal year not to exceed the
greater of (x) $12.5 million and (y) 1.25% of Adjusted EBITDA of the
Borrower and its Restricted Subsidiaries for the immediately preceding
fiscal year;
(iv) the payment of reasonable and customary fees to, and indemnity
provided on behalf of officers, directors, employees or consultants of the
Borrower or any Restricted Subsidiary of the Borrower or any Parent of the
Borrower;
(v) payments by the Borrower or any of its Restricted Subsidiaries to
the Sponsors made for any financial advisory, financing, underwriting or
placement services or in respect of other investment banking activities,
including, without limitation, in connection with acquisitions or
divestitures, which payments are (x) approved by a majority of the Board of
Directors of the Borrower in good faith or (y) made pursuant to any
agreement described under the caption "Certain Relationships and Related
Party Transactions" in the Offering Memorandum;
(vi) transactions in which the Borrower or any of its Restricted
Subsidiaries, as the case may be, delivers to the Trustee a letter from an
Independent Financial Advisor
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stating that such transaction is fair to the Borrower or such Restricted
Subsidiary from a financial point of view or meets the requirements of
clause (i) of Section 10.5(a);
(vii) payments or loans (or cancellation of loans) to employees or
consultants that are approved by a majority of the Board of Directors of
the Borrower in good faith;
(viii) any agreement as in effect as of the Closing Date and any
amendment thereto (so long as any such agreement together with all
amendments thereto, taken as a whole, is not more disadvantageous to the
Lenders in any material respect than the original agreement as in effect on
the Closing Date) or any transaction contemplated thereby;
(ix) the existence of, or the performance by the Borrower or any of
its Restricted Subsidiaries of its obligations under the terms of,
Acquisition Documents and any amendment thereto or similar agreements which
it may enter into thereafter; PROVIDED, HOWEVER, that the existence of, or
the performance by the Borrower or any of its Restricted Subsidiaries of
its obligations under, any future amendment to any such existing agreement
or under any similar agreement entered into after the Closing Date shall
only be permitted by this clause (ix) to the extent that the terms of any
such existing agreement together with all amendments thereto, taken as a
whole, or new agreement are not otherwise more disadvantageous to the
Lenders in any material respect than the original agreement as in effect on
the Closing Date;
(x) transactions to effect the Transactions and the payment of all
fees and expenses related to the Transactions, as described in the Offering
Memorandum or contemplated by the Acquisition Documents;
(xi) (A) transactions with customers, clients, suppliers or
purchasers or sellers of goods or services, in each case in the ordinary
course of business and otherwise in compliance with the terms of this
Agreement, which are fair to the Borrower and its Restricted Subsidiaries,
in the reasonable judgment of the Borrower, or are on terms at least as
favorable as might reasonably have been obtained at such time from an
unaffiliated party and (B) transactions with Joint Ventures or Unrestricted
Subsidiaries entered into in the ordinary course of business;
(xii) any transaction effected as part of a Qualified Receivables
Financing;
(xiii) the issuance of Equity Interests (other than Disqualified
Stock) of the Borrower to any Permitted Holder or to any director, officer,
employee or consultant of the Borrower or any Parent of the Borrower;
(xiv) the issuances of securities or other payments, awards or grants
in cash, securities or otherwise pursuant to, or the funding of, employment
arrangements, stock option and stock ownership plans or similar employee
benefit plans approved by the Board of Directors of the Borrower or any
Parent of the Borrower or of a Restricted Subsidiary of the Borrower, as
appropriate, in good faith;
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(xv) the entering into of any tax sharing agreement or arrangement
and any payments permitted by clause (xii) of Section 10.2(b);
(xvi) any contribution to the capital of the Borrower;
(xvii) transactions permitted by, and complying with, the provisions
of Section 10.10;
(xviii) transactions between the Borrower or any of its Restricted
Subsidiaries and any Person, a director of which is also a director of the
Borrower or any Parent of the Borrower; PROVIDED, HOWEVER, that such
director abstains from voting as a director of the Borrower or such Parent,
as the case maybe, on any matter involving such other Person;
(xix) pledges of Equity Interests of Unrestricted Subsidiaries;
(xx) any employment agreements entered into by the Borrower or any of
its Restricted Subsidiaries in the ordinary course of business; and
(xxi) any transaction pursuant to or in connection with the Specified
Intercompany Agreements.
10.6. CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, each Lender shall
have the right to require the Borrower to repurchase all or any part of such
Lender's Loans at a purchase price in cash equal to 101% of the principal amount
thereof, plus accrued and unpaid interest, if any, to the date of repurchase in
accordance with Section 5.2(b).
(b) Notwithstanding the foregoing provisions of this Section, the
Borrower shall not be required to make a Change of Control Offer upon a Change
of Control if a third party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements set forth in this
Section and Section 5.2(b) applicable to a Change of Control Offer made by the
Borrower and purchases all Loans validly surrendered and not withdrawn under
such Change of Control Offer.
10.7. FUTURE GUARANTORS. The Borrower shall not permit any of its
Restricted Subsidiaries (other than (i) any Receivables Subsidiary formed in
connection with a Qualified Receivables Financing and (ii) any License
Subsidiary in connection with any guarantee of any Credit Agreement) that is not
a Guarantor to, directly or indirectly, guarantee the payment of any
Indebtedness of the Borrower other than Permitted Debt unless such Subsidiary
executes and delivers to the Administrative Agent a Guarantee substantially in
the form of Exhibit A (together with such opinions or certificates reasonably
requested in connection therewith) pursuant to which such Subsidiary will
guarantee payment of the Loans. Each Guarantee shall be limited to an amount not
to exceed the maximum amount that can be guaranteed by that Restricted
Subsidiary without rendering the Guarantee, as it relates to such Restricted
Subsidiary, voidable under applicable law relating to fraudulent conveyance,
financial assistance or fraudulent transfer or similar laws affecting the rights
of creditors generally.
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10.8. LIENS. The Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, Incur or suffer to
exist any Lien (other than Permitted Liens) that secures any obligations under
Indebtedness of the Borrower against or on any asset or property now owned or
hereafter acquired by the Borrower, or any income or profits therefrom, unless:
(1) in the case of Liens securing Indebtedness that is Subordinated
Indebtedness, the Loans are secured by a Lien on such property or assets
that is senior in priority to such Liens; and
(2) in all other cases, the Loans are equally and ratably secured;
PROVIDED that any Lien which is granted to secure the Loans under this covenant
shall be automatically released and discharged at the same time as the release
of the Lien that gave rise to the obligation to secure the Loans under this
covenant.
10.9. SUSPENSION OF COVENANTS.
(a) During any period of time that: (i) the Loans have Investment
Grade Ratings from two Rating Agencies and (ii) no Default or Event of Default
has occurred and is continuing (the occurrence of the events described in the
foregoing clauses (i) and (ii) being collectively referred to as a "COVENANT
SUSPENSION EVENT"), the Borrower and the Restricted Subsidiaries shall not be
subject to the provisions of Sections 9.3, 10.1, 10.2, 10.3, 10.4, 10.5, 10.7,
10.10(a)(iv) (collectively, the "SUSPENDED COVENANTS").
(b) Upon the occurrence of a Covenant Suspension Event, any
Guarantees of any Subsidiary Guarantors, if any, will also be suspended as of
such date (the "SUSPENSION DATE").
(c) In the event that the Borrower and the Restricted Subsidiaries
are not subject to the Suspended Covenants for any period of time as a result of
the foregoing, and on any subsequent date (the "REVERSION DATE") one or both of
the Rating Agencies withdraws its Investment Grade Rating or downgrades the
rating assigned to the Loans below an Investment Grade Rating, then the Borrower
and the Restricted Subsidiaries will thereafter again be subject to the
Suspended Covenants with respect to future events and the Guarantees, if any, of
any Subsidiary Guarantors will be reinstated if such guarantees are then
required by the terms of this Agreement. The period of time between the
Suspension Date and the Reversion Date is referred to in this Agreement as the
"SUSPENSION PERIOD."
(d) Notwithstanding that the Suspended Covenants may be reinstated,
no Default or Event of Default will be deemed to have occurred as a result of a
failure to comply with the Suspended Covenants during the Suspension Period (or
upon termination of the Suspension Period or after that time based solely on
events that occurred during the Suspension Period).
(e) On the Reversion Date, all Indebtedness Incurred, or Disqualified
Stock or Preferred Stock issued, during the Suspension Period will be classified
as having been Incurred or issued pursuant to Section 10.1(a) or Section 10.1(b)
(to the extent such Indebtedness or Dis-
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qualified Stock or Preferred Stock would be permitted to be Incurred or issued
thereunder as of the Reversion Date and after giving effect to Indebtedness
Incurred or issued prior to the Suspension Period and outstanding on the
Reversion Date). To the extent such Indebtedness or Disqualified Stock or
Preferred Stock would not be so permitted to be Incurred or issued pursuant to
Sections 10.1(a) or (b), such Indebtedness or Disqualified Stock or Preferred
Stock will be deemed to have been outstanding on the Closing Date, so that it is
classified as permitted under Section 10.1(b)(iii). Calculations made after the
Reversion Date of the amount available to be made as Restricted Payments under
Section 10.2 will be made as though under Section 10.2 had been in effect since
the Closing Date and throughout the Suspension Period. For the avoidance of
doubt, Restricted Payments made during the Suspension Period shall reduce the
amount available to be made as Restricted Payments under Section 10.2(a). No
Default or Event of Default shall be deemed to have occurred on the Reversion
Date as a result of any actions taken by the Borrower or its Restricted
Subsidiaries during the Suspension Period.
(f) The Borrower shall deliver promptly to the Trustee an Officer's
Certificate notifying the Trustee of any Covenant Suspension Event or Reversion
Date, as the case may be, pursuant to this Section 10.9.
10.10. WHEN BORROWER MAY MERGE OR TRANSFER ASSETS.
(a) The Borrower shall not consolidate, amalgamate or merge with or
into or wind up into (whether or not the Borrower is the surviving corporation),
or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions to, any Person unless:
(i) the Borrower is a surviving Person or the Person formed by or
surviving any such consolidation, amalgamation or merger (if other than the
Borrower) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation, partnership or
limited liability company organized or existing under the laws of the
United States, any state thereof, the District of Columbia, or any
territory thereof, under the laws of the jurisdiction of organization of
the Borrower or any Subsidiary or Parent of the Borrower or under the laws
of Bermuda or any country that is a member of the European Union (the
Borrower or such Person, as the case may be, being herein called the
"SUCCESSOR COMPANY");
(ii) the Successor Company (if other than the Borrower) expressly
assumes all the obligations of the Borrower under this Agreement and the
Loans pursuant to documents or instruments in form reasonably satisfactory
to the Administrative Agent;
(iii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction,
as if such transaction had occurred at the beginning of the applicable
four-quarter period (and treating any Indebtedness which becomes an
obligation of the Successor Company or any of its Restricted Subsidiaries
as a result of such transaction as having been Incurred by the Successor
Company or such Restricted Subsidiary at the time of such transaction),
either
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(1) the Successor Company would be permitted to Incur at least
$1.00 of additional Indebtedness pursuant to the Debt to Adjusted
EBITDA Ratio test set forth in Section 10.1(a); or
(2) the Debt to Adjusted EBITDA Ratio for the Successor Company
and its Restricted Subsidiaries would be equal to or less than such
ratio for the Borrower and its Restricted Subsidiaries immediately
prior to such transaction; and
(v) any Guarantor, unless it is the other party to the transactions
described above, shall have confirmed in writing that its Guarantee shall
apply to such Person's obligations under this Agreement and the Loans.
Notwithstanding the foregoing clauses (iii) and (iv) of this Section
10.10(a), (A) the Borrower or any Restricted Subsidiary may consolidate or
amalgamate with, merge into, sell, assign or transfer, lease, convey or
otherwise dispose of all or part of its properties and assets to the Borrower or
to another Restricted Subsidiary and (B) the Borrower may merge, amalgamate or
consolidate with an Affiliate incorporated solely for the purpose of
reincorporating the Borrower in a (or another) state of the United States, the
District of Columbia, any territory of the United States, Bermuda or any country
that is a member of the European Union so long as the amount of Indebtedness of
the Borrower and its Restricted Subsidiaries is not increased thereby (any
transaction described in this sentence a "SPECIFIED MERGER/TRANSFER
TRANSACTION").
(b) Subject to the provisions of any Guarantee, any Subsidiary
Guarantor shall not, and the Borrower shall not permit any Subsidiary Guarantor
to, consolidate, amalgamate or merge with or into or wind up into (whether or
not such Subsidiary Guarantor is the surviving Person), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions to, any Person unless:
(i) such Subsidiary Guarantor is a surviving Person or the Person
formed by or surviving any such consolidation, amalgamation or merger (if
other than such Subsidiary Guarantor) or to which such sale, assignment,
transfer, lease, conveyance or other disposition is made is a corporation,
partnership or limited liability company organized or existing under the
laws of the United States, any state thereof, the District of Columbia, or
any territory thereof, under the laws of the jurisdiction of organization
of the Borrower or any Subsidiary or Parent of the Issuer or under the laws
of Bermuda or any country that is a member of the European Union (such
Subsidiary Guarantor or such Person, as the case may be, being herein
called the "SUCCESSOR GUARANTOR");
(ii) the Successor Guarantor (if other than such Subsidiary
Guarantor) expressly assumes all the obligations of such Subsidiary
Guarantor under this Agreement and such Subsidiary Guarantor's Guarantee
pursuant to documents or instruments in form reasonably satisfactory to the
Administrative Agent; and
(iii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Guarantor or any of its Subsidiaries as a result of such transaction as
having been Incurred by the Successor Guaran-
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tor or such Subsidiary at the time of such transaction) no Default or Event
of Default shall have occurred and be continuing.
Subject to the limitations described in this Agreement, the Successor
Guarantor shall succeed to, and be substituted for, such Subsidiary Guarantor
under this Agreement and such Subsidiary Guarantor's Guarantee, and such
Subsidiary Guarantor will automatically be released and discharged from its
obligations under this Agreement and such Subsidiary Guarantor's guarantee.
Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate
or consolidate with an Affiliate incorporated solely for the purpose of
reincorporating such Subsidiary Guarantor in a (or another) state of the United
States, the District of Columbia, any territory of the United States, Bermuda or
any country that is a member of the European Union or the jurisdiction of
organization of the Borrower, so long as the amount of Indebtedness of the
Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may
merge amalgamate or consolidate with another Subsidiary Guarantor or the
Borrower.
(c) Notwithstanding Sections 10.10(a) and (b) and Section 10.11
below, nothing in these Sections 10.10 and 10.11 shall prevent any Subsidiary
Transfer Transaction, which need not comply with Sections 10.10(a) or (b) and
10.11.
10.11. SUCCESSOR COMPANY SUBSTITUTED.
Upon any consolidation, merger or amalgamation, or any sale, lease,
conveyance or other disposition of all or substantially all of the assets of the
Borrower in accordance or permitted by with Section 10.10 hereof, the Successor
Company (if other than the Borrower) shall succeed to and be substituted for,
and may exercise every right and power of, the Borrower under this Agreement
with the same effect as if such Successor Company had been named as the Borrower
herein.
SECTION 11. [RESERVED].
SECTION 12. EVENTS OF DEFAULT.
12.1. EVENTS OF DEFAULT. An "EVENT OF DEFAULT" occurs if:
(a) the Borrower defaults in any payment of interest on any Loan when
the same becomes due and payable, and such default continues for a period
of 30 days,
(b) the Borrower defaults in the payment of principal or premium, if
any, of any Loan when due at its Stated Maturity, upon optional redemption,
upon required repurchase, upon declaration or otherwise,
(c) the Borrower or any of its Restricted Subsidiaries fails to
comply with any of its agreements in the Notes or this Agreement (other
than those referred to in (a) or (b) above) and such failure continues for
60 days after the notice specified below; PROVIDED, HOWEVER, that to the
extent such failure relates solely to an action or inaction by Intelsat
General or another Government Business Subsidiary, and the Borrower and its
Restricted Subsidiaries have otherwise complied with Section 9.19, no Event
of Default shall occur,
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(d) Holdings, the Borrower or any Significant Subsidiary fails to pay
any Indebtedness (other than Indebtedness owing to a Parent of the Borrower
or a Restricted Subsidiary of the Borrower) within any applicable grace
period after final maturity or the acceleration of any such Indebtedness by
the holders thereof because of a default, in each case, if the total amount
of such Indebtedness unpaid or accelerated exceeds $75.0 million or its
foreign currency equivalent,
(e) Holdings, the Borrower or any Significant Subsidiary pursuant to
or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in
an involuntary case;
(iii) consents to the appointment of a Custodian of it or for
any substantial part of its property; or
(iv) makes a general assignment for the benefit of its creditors
or takes any comparable action under any foreign laws relating to
insolvency,
(f) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against Holdings, the Borrower or any
Significant Subsidiary of the Borrower in an involuntary case;
(ii) appoints a Custodian of Holdings, the Borrower or any
Significant Subsidiary of the Borrower or for any substantial part of
its property; or
(iii) orders the winding up or liquidation of Holdings, the
Borrower or any Significant Subsidiary of the Borrower;
or any similar relief is granted under any foreign laws and the order or
decree remains unstayed and in effect for 60 days, or
(g) Holdings, the Borrower or any Significant Subsidiary fails to pay
final judgments aggregating in excess of $75.0 million or its foreign
currency equivalent (net of any amounts which are covered by enforceable
insurance policies issued by solvent carriers), which judgments are not
discharged, waived or stayed for a period of 60 days following the entry
thereof.
The foregoing shall constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
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The term "BANKRUPTCY LAW" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar U.S. Federal, state or any foreign law for the relief of debtors. The
term "CUSTODIAN" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clause (c) above shall not constitute an Event of
Default until the Administrative Agent or Lenders of at least 25% in principal
amount of the outstanding Loans notify the Borrower of the Default and the
Borrower does not cure such Default within the time specified in clause (c)
above after receipt of such notice. Such notice must specify the Default, demand
that it be remedied and state that such notice is a "Notice of Default". The
Borrower shall deliver to the Administrative Agent, within thirty days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which is, or with the giving of notice or the lapse of time or both
would become, an Event of Default, its status and what action the Borrower is
taking or proposes to take with respect thereto.
12.2. ACCELERATION. If an Event of Default (other than an Event of
Default specified in Section 12.1(e) or (f) with respect to the Borrower) occurs
and is continuing, the Administrative Agent or Lenders of at least 25% in
principal amount of outstanding Loans by notice to the Borrower, may declare the
principal of, premium, if any, and accrued but unpaid interest on all the Loans
to be due and payable. Upon such a declaration, such principal and interest
shall be due and payable immediately. If an Event of Default specified in
Section 12.1(e) or (f) with respect to the Borrower occurs, the principal of,
premium, if any, and interest on all the Loans shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Administrative Agent or any Lenders. The Required Lenders by notice to the
Administrative Agent may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpayment of principal or
interest that has become due solely because of acceleration. No such rescission
shall affect any subsequent Default or impair any right consequent thereto.
In the event of any Event of Default specified in Section 12.1(d),
such Event of Default and all consequences thereof (excluding, however, any
resulting payment default) shall be annulled, waived and rescinded,
automatically and without any action by the Administrative Agent or the Lenders,
if within 30 days after such Event of Default arose the Borrower delivers an
Officers' Certificate to the Administrative Agent stating that (x) the
Indebtedness or guarantee that is the basis for such Event of Default has been
discharged or (y) the holders thereof have rescinded or waived the acceleration,
notice or action (as the case may be) giving rise to such Event of Default or
(z) the default that is the basis for such Event of Default has been cured, it
being understood that in no event shall an acceleration of the principal amount
of the Loans as described above be annulled, waived or rescinded upon the
happening of any such events.
12.3. OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Administrative Agent may pursue any available remedy at law or
in equity to collect the payment of principal of or interest on the Loans or to
enforce the performance of any provision of the Loans or this Agreement.
The Administrative Agent may maintain a proceeding even if it does
not possess any of the Loans or does not produce any of them in the proceeding.
A delay or omission by the
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Administrative Agent or any Lender in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative.
12.4. WAIVER OF PAST DEFAULTS. Provided the Loans are not then due
and payable by reason of a declaration of acceleration, the Required Lenders by
notice to the Administrative Agent may waive an existing Default and its
consequences except (a) a Default in the payment of the principal of or interest
on a Note, (b) a Default arising from the failure to redeem or purchase any Loan
when required pursuant to the terms of this Indenture or (c) a Default in
respect of a provision that under Section 14.1 cannot be amended without the
consent of each Lender affected. When a Default is waived, it is deemed cured
and the Borrower, the Administrative Agent and the Lenders will be restored to
their former positions and rights under this Agreement, but no such waiver shall
extend to any subsequent or other Default or impair any consequent right.
12.5. CONTROL BY MAJORITY. The Required Lenders may direct the time,
method and place of conducting any proceeding for any remedy available to the
Administrative Agent or of exercising any trust or power conferred on the
Administrative Agent. However, the Administrative Agent may refuse to follow any
direction that conflicts with law or this Agreement or, subject to Article 13,
that the Administrative Agent determines is unduly prejudicial to the rights of
any other Lender or that would involve the Administrative Agent in personal
liability; PROVIDED, HOWEVER, that the Administrative Agent may take any other
action deemed proper by the Administrative Agent that is not inconsistent with
such direction. Prior to taking any action under this Agreement, the
Administrative Agent shall be entitled to indemnification satisfactory to it in
its sole discretion against all losses and expenses caused by taking or not
taking such action.
12.6. LIMITATION ON SUITS.
(a) Except to enforce the right to receive payment of principal,
premium (if any) or interest when due, no Lender may pursue any remedy with
respect to this Agreement or the Loans unless:
(i) the Lender gives to the Administrative Agent written notice
stating that an Event of Default is continuing;
(ii) the Lenders of at least 25% in principal amount of the
outstanding Loans make a written request to the Administrative Agent to
pursue the remedy;
(iii) such Lender or Lenders offer to the Administrative Agent
reasonable security or indemnity satisfactory to it against any loss,
liability or expense;
(iv) the Administrative Agent does not comply with the request within
60 days after receipt of the request and the offer of security or
indemnity; and
(v) the Required Lenders do not give the Administrative Agent a
direction inconsistent with the request during such 60-day period.
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(b) A Lender may not use this Agreement to prejudice the rights of
another Lender or to obtain a preference or priority over another Lender.
12.7. RIGHTS OF THE LENDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Agreement, the right of any Lender to receive payment of
principal of and interest on the Loans held by such Lender, on or after the
respective due dates expressed or provided for in the Loans, or to bring suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Lender.
12.8. PRIORITIES. If the Administrative Agent collects any money or
property pursuant to this Section 12, it shall pay out the money or property in
the following order:
FIRST: to the Administrative Agent for amounts due under Section 13;
SECOND: to Lenders for amounts due and unpaid on the Loans for
principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Loans
for principal and interest, respectively; and
THIRD: to the Borrower or, to the extent the Administrative Agent
collects any amount from any Guarantor, to such Guarantor.
The Administrative Agent may fix a record date and payment date for
any payment to the Lenders pursuant to this Section. At least 15 days before
such record date, the Administrative Agent shall mail to each Lender and the
Borrower a notice that states the record date, the payment date and amount to be
paid.
SECTION 13. THE ADMINISTRATIVE AGENT.
13.1. APPOINTMENT. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Credit Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Credit Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Credit Document or
otherwise exist against the Administrative Agent. The Syndication Agent, in its
capacity as such, shall have no obligations, duties or responsibilities under
this Agreement but shall be entitled to all benefits of this Section 13.
13.2. DELEGATION OF DUTIES. The Administrative Agent may execute any
of its duties under this Agreement and the other Credit Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties.
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The Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
13.3. EXCULPATORY PROVISIONS. Neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (a) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Credit Document (except for its or such Person's own gross negligence or
willful misconduct) or (b) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or any other Credit Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Administrative Agent under or in connection with,
this Agreement or any other Credit Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Credit Document or for any failure of the Borrower to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Credit Document, or to inspect the properties, books or
records of the Borrower.
13.4. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including counsel to the Borrower), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent may deem and
treat the Lender specified in the Register with respect to any amount owing
hereunder as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Credit
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense that may
be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Credit Documents in
accordance with a request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
13.5. NOTICE OF DEFAULT. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders, PROVIDED that unless and until the
Administrative Agent shall have received such direc-
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tions, the Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the Lenders
(except to the extent that this Agreement requires that such action be taken
only with the approval of the Required Lenders or each of the Lenders, as
applicable).
13.6. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each
Lender expressly acknowledges that neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Borrower shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrower and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Credit Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, assets, operations, properties, financial condition,
prospects or creditworthiness of the Borrower that may come into the possession
of the Administrative Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
13.7. INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective portions of the Loans held by such Lenders
in effect on the date on which indemnification is sought (or, if indemnification
is sought after the date upon which the Loans shall have been paid in full,
ratably in accordance with their respective portions of the Loans held by such
Lenders in effect immediately prior to such date), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever that may at any time
(including at any time following the payment of the Loans) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of, the Commitments, this Agreement, any of the other Credit
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent under or in connection with any of the foregoing,
PROVIDED that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct.
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The agreements in this Section 13.7 shall survive the payment of the Loans and
all other amounts payable hereunder.
13.8. ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower or any Guarantor
as though the Administrative Agent were not the Administrative Agent hereunder
and under the other Credit Documents. With respect to the Loans made by it, the
Administrative Agent shall have the same rights and powers under this Agreement
and the other Credit Documents as any Lender and may exercise the same as though
it were not the Administrative Agent, and the terms "Lender" and "Lenders" shall
include the Administrative Agent in its individual capacity.
13.9. SUCCESSOR AGENT. The Administrative Agent may resign as
Administrative Agent upon 20 days' prior written notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Credit Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall be approved by the Borrower (which approval shall not be
unreasonably withheld) so long as no Default or Event of Default is continuing,
whereupon such successor agent shall succeed to the rights, powers and duties of
the Administrative Agent, and the term "Administrative Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Section 12 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Credit Documents.
13.10. WITHHOLDING TAX. To the extent required by any applicable law,
the Administrative Agent may withhold from any interest payment to any Lender an
amount equivalent to any applicable withholding tax. If any Governmental
Authority asserts a claim that the Administrative Agent did not properly
withhold tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered, was not properly executed, or because such
Lender failed to notify the Administrative Agent of a change in circumstances
which rendered the exemption from, or reduction of, withholding tax ineffective,
or for any other reason), such Lender shall indemnify the Administrative Agent
(to the extent that the Administrative Agent has not already been reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so) fully
for all amounts paid, directly or indirectly, by the Administrative Agent as tax
or otherwise, including penalties and interest, together with all expenses
incurred, including legal expenses, allocated staff costs and any out of pocket
expenses.
13.11. [RESERVED].
13.12. TRUSTEE XXX 0000. Section 1 of the Trustee Act 2000 shall not
apply to the duties of the Administrative Agent in relation to the trusts
constituted by this Agreement. Where there are any inconsistencies between the
Trustee Xxx 0000 or the Trustee Xxx 0000 and the provisions of this Agreement,
the provisions of this Agreement shall, to the extent permitted by law,
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prevail, and in the case of any inconsistency with the Trustee Xxx 0000, the
provisions of this Agreement shall constitute a restriction or exclusion for the
purposes of that Act.
SECTION 14. MISCELLANEOUS.
14.1. AMENDMENTS AND WAIVERS.
(a) WITHOUT CONSENT OF THE LENDERS. The Borrower and the
Administrative Agent may amend this Agreement without notice to or consent of
any Lender:
(i) to cure any ambiguity, omission, defect or inconsistency;
(ii) to comply with Section 10.10;
(iii) to add Guarantees with respect to the Loans or to secure the
Loans;
(iv) to add to the covenants of the Borrower for the benefit of the
Lenders or to surrender any right or power herein conferred upon the
Borrower;
(v) to effect any provision of this Agreement (including to release
any Guarantees in accordance with the terms of this Agreement);
(vi) to make any change that does not adversely affect the rights of
any Lender;
(vii) to provide for the issuance of the Exchange Notes; or
(viii) to release the Guarantee of any Parent of the Borrower.
After an amendment under this Section 14.1(a) becomes effective, the
Borrower shall mail to Lenders a notice briefly describing such amendment. The
failure to give such notice to all Lenders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 14.1(a).
(b) WITH CONSENT OF THE LENDERS. The Borrower and the Administrative
Agent may amend this Agreement with the written consent of the Required Lenders.
However, without the consent of each Lender of an outstanding Loan affected, an
amendment may not:
(i) reduce the amount of Loans whose Lenders must consent to an
amendment,
(ii) reduce the rate of or extend the time for payment of interest on
any Loan,
(iii) reduce the principal of or change the Stated Maturity of any
Loan,
(iv) make any Loan payable in money other than that stated in such
Loan,
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(v) make any change in Section 12.4 or 12.7 or the second sentence of
this Section 14.1(b), or
(vi) expressly subordinate the Loans or any Guarantee to any other
Indebtedness of the Borrower or any Guarantor.
It shall not be necessary for the consent of the Lenders under this
Section 14.1(b) to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 14.1(b) becomes effective, the
Administrative Agent shall provide to the Lenders a notice briefly describing
such amendment. The failure to give such notice to all Lenders entitled to
receive such notice, or any defect therein, shall not impair or affect the
validity of an amendment under this Section 14.1(b).
(c) Neither the Borrower or any Affiliate of the Borrower shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Lender for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Agreement
or the Notes unless such consideration is offered to be paid to all Lenders that
so consent, waive or agree to amend in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement.
(d) All Lenders holding Loans issued under this Agreement shall vote
and consent together on all matters (as to which any such Loans may vote) as one
class and no Lenders will have the right to vote or consent as a separate class
on any matter.
14.2. NOTICES. Except as set forth in Section 14.17, all notices,
requests and demands to or upon the respective parties hereto to be effective
shall be in writing (including by facsimile or electronic mail), and, unless
otherwise expressly provided herein, shall be deemed to have been duly given or
made when delivered, or three days after being deposited in the mail, postage
prepaid, or, in the case of telecopy or electronic mail notice, when received,
addressed as follows in the case of the Borrower and the Administrative Agent,
and as set forth on SCHEDULE 1.1(A) in the case of the other parties hereto, or
to such other address as may be hereafter notified by the respective parties
hereto:
The Borrower: Intelsat (Bermuda), Ltd.
Wellesly House North, 2d Xxxxx
00 Xxxxx Xxx Xxxx
Xxxxxxxx XX00
Xxxxxxx
Xxxxxxxxx: General Counsel
Fax: (000) 000-0000
with a copy to
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Milbank, Tweed, Xxxxxx & XxXxxx LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx III
Fax: (000) 000-0000
and
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
Fax: (000) 000-0000
The Administrative Agent: Deutsche Bank AG Cayman Islands Branch
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Fax: (000) 000-0000
Email: xxxx.xxxxxx@xx.xxx
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx LLP
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx, Esq.
Fax: 000-000-0000
E-mail: xxxxxxxxxx@xxxxxx.xxx
PROVIDED that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to Sections 2.3, 2.6 and 2.9 shall not be effective
until received.
14.3. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Credit Documents
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
14.4. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder, in the other Credit Documents and in any
document, certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Agreement and the
making of the Loans hereunder.
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14.5. PAYMENT OF EXPENSES AND TAXES. The Borrower agrees (a) to pay
or reimburse the Agents for all their reasonable out-of-pocket costs and
expenses incurred in connection with the development, preparation and execution
of, and any amendment, supplement or modification to, this Agreement and the
other Credit Documents and any other documents prepared in connection herewith
or therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including the reasonable fees, disbursements
and other charges of counsel to the Agents, (b) to pay or reimburse each Lender
and Agent for all its reasonable and documented costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Credit Documents and any such other documents, including
the reasonable fees, disbursements and other charges of counsel to each Lender
and of counsel to the Agents, (c) to pay, indemnify, and hold harmless each
Lender and Agent from, any and all recording and filing fees and (d) to pay,
indemnify, and hold harmless each Lender and Agent and their respective
directors, officers, employees, trustees, investment advisors and agents from
and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever, including reasonable and documented fees,
disbursements and other charges of counsel, with respect to the execution,
delivery, enforcement, performance and administration of this Agreement, the
other Credit Documents and any such other documents, including, without
limitation, any of the foregoing relating to the violation of, noncompliance
with or liability under, any Environmental Law or to any actual or alleged
presence, release or threatened release of Hazardous Materials involving or
attributable to the operations of the Borrower, any of its Subsidiaries or any
of the Real Estate (all the foregoing in this clause (d), collectively, the
"INDEMNIFIED LIABILITIES"), PROVIDED that the Borrower shall have no obligation
hereunder to the Administrative Agent or any Lender nor any of their respective
directors, officers, employees and agents with respect to indemnified
liabilities to the extent attributable to (i) the gross negligence or willful
misconduct of the party to be indemnified as determined in a final and
non-appealable judgment by a court of competent jurisdiction or (ii) disputes
among the Administrative Agent, the Lenders and/or their transferees. The
agreements in this Section 14.5 shall survive repayment of the Loans and all
other amounts payable hereunder.
14.6. SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that (i) the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by the Borrower
or without such consent shall be null and void) and (ii) no Lender may assign or
otherwise transfer its rights or obligations hereunder except in accordance with
this Section 14.6. Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby and to the Participants (to
the extent provided in paragraph (c) of this Section 14.6) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans at the time owing to
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it) prior to the Initial Maturity Date (other than to a "Disqualified Lender"
(as defined in the Commitment Letter referred to in the Fee Letter)) only (i)
after consultation with the Borrower and (ii) provided the Initial Lenders,
after giving effect to any such assignment, continue to hold at least 51% of the
aggregate principal amount of Loans outstanding under this Agreement:
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of
a Lender or an Approved Fund, the amount of the Loans of the assigning
Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to
the Administrative Agent) shall not be less than $1.0 million , and
increments of $1.0 million in excess thereof, unless each of the Borrower
and the Administrative Agent otherwise consents (which consents shall not
be unreasonably withheld or delayed), PROVIDED that no such consent of the
Borrower shall be required if an Event of Default under Section 12.1 has
occurred and is continuing; PROVIDED, FURTHER, that contemporaneous
assignments to a single assignee made by Affiliates of Lenders and related
Approved Funds shall be aggregated for purposes of meeting the minimum
assignment amount requirements stated above;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500, PROVIDED that only one such fee
shall be payable in the event of simultaneous assignments to or from two or
more Approved Funds; and
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an administrative questionnaire in a form approved by
the Administrative Agent (the "ADMINISTRATIVE QUESTIONNAIRE").
For the purpose of this Section 14.6(b), the term "APPROVED FUND"
means any Person (other than a natural person) that is engaged in making,
purchasing, holding or investing in bank loans and similar extensions of credit
in the ordinary course and that is administered, advised or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers, advises or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(v) of this Section 14.6, from and after the effective date
specified in each Assignment and Acceptance, the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.10, 2.11, 5.4 and 14.5). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 14.6
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shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section 14.6.
(iv) The Administrative Agent, acting for this purpose as an agent of
the Borrower shall maintain at the Administrative Agent's Office a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitments of, and principal
amount of the Loans (the "REGISTER"). Further, the Register shall contain the
name and address of the Administrative Agent and the lending office through
which each such Person acts under this Agreement. The entries in the Register
shall be conclusive, and the Borrower, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section 14.6 and any written consent to such assignment required by
paragraph (b) of this Section 14.6, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(each, a "PARTICIPANT") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its Commitments
and the Loans owing to it), PROVIDED that (A) such Lender's obligations under
this Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (C) the Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this Agreement
or any other Credit Document, PROVIDED that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver described in the first proviso to
Section 14.1 that affects such Participant. Subject to paragraph (c)(ii) of this
Section 14.6, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.10, 2.11 and 5.4 to the same extent as if it were a
Lender (subject to the requirements of those Sections) and had acquired its
interest by assignment pursuant to paragraph (b) of this Section 14.6. To the
extent permitted by law, each Participant also shall be entitled to the benefits
of Section 14.8(b) as though it were a Lender, PROVIDED such Participant agrees
to be subject to Section 14.8(a) as though it were a Lender. Notwithstanding the
foregoing, on and prior to the Initial Maturity Date, the Initial Lenders shall
retain at least 51% of the voting rights for all Loans issued under this
Agreement (subject to allowances for customary participation voting rights).
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(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.10 or 5.4 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent (which consent shall not be unreasonably
withheld).
(d) Any Lender may, without the consent of the Borrower or the
Administrative Agent, at any time pledge or assign a security interest in all or
any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section 14.6 shall not apply to any such pledge or
assignment of a security interest, PROVIDED that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto. In
order to facilitate such pledge or assignment, the Borrower hereby agrees that,
upon request of any Lender at any time and from time to time after the Borrower
has made its initial borrowing hereunder, the Borrower shall provide to such
Lender, at the Borrower's own expense, a promissory note, substantially in the
form of EXHIBIT E.
(e) Subject to Section 14.16, the Borrower authorizes each Lender to
disclose to any Participant, secured creditor of such Lender or assignee (each,
a "TRANSFEREE") and any prospective Transferee any and all financial information
in such Lender's possession concerning the Borrower and its Affiliates that has
been delivered to such Lender by or on behalf of the Borrower and its Affiliates
pursuant to this Agreement or which has been delivered to such Lender by or on
behalf of the Borrower and its Affiliates in connection with such Lender's
credit evaluation of the Borrower and its Affiliates prior to becoming a party
to this Agreement.
(f) Each Lender hereby agrees that it shall not transfer, assign or
participate any Loan to any Person other than a "Qualified Institutional Buyer"
(as defined under Rule 144A of the Securities Act of 1933, as amended) or an
"accredited investor" (as defined under Regulation D), or otherwise pursuant to
a similar exemption under the Securities Act, and the Administrative Agent
agrees that it will not facilitate any transfer other than in compliance with
this sentence.
14.7. REPLACEMENTS OF LENDERS UNDER CERTAIN CIRCUMSTANCES.
(a) The Borrower shall be permitted to replace any Lender that (a)
requests reimbursement for amounts owing pursuant to Section 2.10, 2.12 or 5.4,
(b) is affected in the manner described in Section 2.10(a)(iii) and as a result
thereof of any of the actions described in such Section is required to be taken
or (c) becomes a Defaulting Lender, with a replacement bank or other financial
institution, provided that (i) such replacement does not conflict with any
Requirement of Law, (ii) no Event of Default shall have occurred and be
continuing at the time of such replacement, (iii) the Borrower shall repay (or
the replacement bank or institution shall purchase, at par) all Loans and other
amounts (other than an disputed amounts), pursuant to Section 2.10, 2.11, 2.12
or 5.4, as the case may be) owing to such replaced Lender prior to the date of
replacement, (iv) the replacement bank or institution, if not already a Lender,
and the terms and conditions of such replacement, shall be reasonably
satisfactory to the Administrative Agent, (v) the replaced Lender shall be
obligated to make such replacement in accordance with the provi-
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sions of Section 14.6 (provided that the Borrower shall be obligated to pay the
registration and processing fee referred to therein) and (vi) any such
replacement shall not be deemed to be a waiver of any rights that the Borrower,
the Administrative Agent or any other Lender shall have against the replaced
Lender.
(b) If any Lender (such Lender, a "NON-CONSENTING LENDER") has failed
to consent to a proposed amendment, waiver, discharge or termination which
pursuant to the terms of Section 14.1(b) requires the consent of all of the
Lenders affected and with respect to which the Required Lenders shall have
granted their consent, then provided no Event of Default (other than any Event
of Default to be cured by such amendment, waiver, discharge or termination) then
exists, the Borrower shall have the right (unless such Non Consenting Lender
grants such consent) to replace such Non Consenting Lender by deeming such Non
Consenting Lender to have assigned its Loans, and its Commitments hereunder to
one or more assignees, reasonably acceptable to the Administrative Agent,
provided that: (a) all Obligations of the Borrower owing to such Non Consenting
Lender being replaced shall be paid in full to such Non Consenting Lender
concurrently with such assignment, and (b) the replacement Lender shall purchase
the foregoing by paying to such Non Consenting Lender a price equal to the
principal amount thereof plus accrued and unpaid interest thereon. No action by
or consent of the Non Consenting Lender shall be necessary in connection with
such assignment, which shall be immediately and automatically effective upon
payment of such purchase price. In connection with any such assignment, the
Borrower, Administrative Agent, such Non Consenting Lender and the replacement
Lender shall otherwise comply with Section 14.6.
14.8. ADJUSTMENTS; SET-OFF.
(a) If any Lender (a "BENEFITED LENDER") shall at any time receive
any payment of all or part of its Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Article 12, or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender's Loans,
or interest thereon, such benefited Lender shall purchase for cash from the
other Lenders a participating interest in such portion of each such other
Lender's Loan, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefited Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; PROVIDED, HOWEVER, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
benefited Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.
(b) After the occurrence and during the continuance of an Event of
Default, in addition to any rights and remedies of the Lenders provided by law,
each Lender shall have the right, without prior notice to the Borrower, any such
notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to
set-off and appropriate and apply against such amount 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 un-
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matured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent after any such
set-off and application made by such Lender, PROVIDED that the failure to give
such notice shall not affect the validity of such set-off and application.
14.9. COUNTERPARTS. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by facsimile or other electronic transmission), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A set
of the copies of this Agreement signed by all the parties shall be lodged with
the Borrower and the Administrative Agent.
14.10. SEVERABILITY. Any provision of this Agreement that 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.
14.11. INTEGRATION. This Agreement and the other Credit Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Borrower, the Administrative
Agent or any Lender relative to subject matter hereof not expressly set forth or
referred to herein or in the other Credit Documents.
14.12. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
14.13. SUBMISSION TO JURISDICTION; CONSENT TO SERVICE; WAIVERS.
(a) The Borrower hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Credit 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;
(ii) 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 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;
(iii) 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 the
Borrower at its address set forth in Section 14.2
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or at such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(iv) 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
(v) 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 14.13 any special, exemplary, punitive or consequential
damages.
(b) By the execution and delivery of this Agreement, the Borrower
acknowledges that it has by separate written instrument, designated and
appointed CT Corporation System, 0000 Xxxxxxxx, Xxx Xxxx, XX 00000 (and any
successor entity), as its authorized agent upon which process may be served in
any suit or proceeding arising out of or relating to this Agreement or the
Credit Documents that may be instituted in any federal or state court in the
State of New York.
(c) The Borrower, to the extent that it has or hereafter may acquire
any immunity (sovereign or otherwise) from any legal action, suit or proceeding,
from jurisdiction of any court or from setoff or any legal process (whether
service of notice, attachment prior to judgment, attachment in aid of execution
of judgment, execution of judgment or otherwise) with respect to itself or any
of its property or assets, hereby waives and agrees not to plead or claim such
immunity in respect of its obligations under this Agreement and the other Credit
Documents (it being understood that the waivers contained in this paragraph (c)
shall have the fullest extent permitted under the Foreign Sovereign Immunities
Act of 1976, as amended, and are intended to be irrevocable and not subject to
withdrawal for the purposes of such Act).
14.14. ACKNOWLEDGMENTS. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in connection with
this Agreement or any of the other Credit Documents, and the relationship
between Administrative Agent and Lenders, on one hand, and the Borrower, 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 Credit
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower and the Lenders.
14.15. WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RE-
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LATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
14.16. CONFIDENTIALITY. The Administrative Agent and each Lender
shall hold all non-public information furnished by or on behalf of the Borrower
in connection with such Lender's evaluation of whether to become a Lender
hereunder or obtained by such Lender or the Administrative Agent pursuant to the
requirements of this Agreement ("CONFIDENTIAL INFORMATION"), confidential in
accordance with its customary procedure for handling confidential information of
this nature and (in the case of a Lender that is a bank) in accordance with safe
and sound banking practices and in any event may make disclosure as required or
requested by any governmental agency or representative thereof or pursuant to
legal process or to such Lender's or the Administrative Agent's attorneys,
professional advisors or independent auditors or Affiliates, PROVIDED that
unless specifically prohibited by applicable law or court order, each Lender and
the Administrative Agent shall notify the Borrower of any request by any
governmental agency or representative thereof (other than any such request in
connection with an examination of the financial condition of such Lender by such
governmental agency) for disclosure of any such non-public information prior to
disclosure of such information, and PROVIDED, FURTHER, that in no event shall
any Lender or the Administrative Agent be obligated or required to return any
materials furnished by Holdings, the Borrower or any Subsidiary of the Borrower.
Each Lender and the Administrative Agent agrees that it will not provide to
prospective Transferees or to prospective direct or indirect contractual
counterparties in swap agreements to be entered into in connection with Loans
made hereunder any of the Confidential Information unless such Person is advises
of and agrees to be bound by the provisions of this Section 14.16.
14.17. [RESERVED].
14.18. USA PATRIOT ACT. Each Lender hereby notifies Holdings and the
Borrower that pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the "PATRIOT ACT"), it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance
with the Patriot Act.
14.19. CONVERSION OF CURRENCIES.
(a) If, for the purpose of obtaining judgment in any court, it is
necessary to convert a sum owing hereunder in one currency into another
currency, each party hereto agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures in the relevant jurisdiction the first
currency could be purchased with such other currency on the Business Day
immediately preceding the day on which final judgment is given.
(b) The obligations of the Borrower in respect of any sum due to any
party hereto or any holder of the obligations owing hereunder (the "APPLICABLE
CREDITOR") shall, notwithstanding any judgment in a currency (the "JUDGMENT
CURRENCY") other than the currency in which such sum is stated to be due
hereunder (the "AGREEMENT CURRENCY"), be discharged only to the extent that, on
the Business Day following receipt by the Applicable Creditor of any sum
ad-
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judged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, the Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrower contained
in this Section 14.19 shall survive the termination of this Agreement and the
payment of all other amounts owing hereunder.
(c) For purposes of this Agreement, the Dollar Equivalent of the
Stated Amount of any Letter of Credit shall be calculated on the date when such
Letter of Credit is issued, on the first Business Day of each month and at such
other times as designated by the Administrative Agent. Such Dollar Equivalent
shall remain in effect until the same is recalculated by the Administrative
Agent as provided above and notice of such recalculation is received by the
Borrower, it being understood that until such notice is received, the Dollar
Equivalent shall be as last reported by the Administrative Agent to the
Borrower. The Administrative Agent shall promptly notify the Borrower of each
such determination of Dollar Equivalents.
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
INTELSAT (BERMUDA), LTD.
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Chairman
DEUTSCHE BANK AG CAYMAN ISLANDS
BRANCH, as Administrative Agent and Lender
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: Director
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Director
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arranger and Joint Bookrunner
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
DEUTSCHE BANK SECURITIES INC.,
as Joint Lead Arranger, Joint Bookrunner and
Syndication Agent
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
CREDIT SUISSE SECURITIES (USA) LLC,
as Joint Lead Arranger and Joint Bookrunner
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
XXXXXX BROTHERS INC.,
as Joint Lead Arranger and Joint Bookrunner
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Authoirzed Signatory
CITICORP NORTH AMERICA, INC., as Lender
By: /s/ Xxxxxx Xxxx
-----------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
CREDIT SUISSE, CAYMAN ISLANDS
BRANCH, as Lender
By: /s/ Xxxxxxx X'Xxxx
-----------------------------------
Name: Xxxxxxx X'Xxxx
Title: Director
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Associate
XXXXXX COMMERCIAL PAPER INC., as
Lender
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Authoirzed Signatory
BEAR XXXXXXX CORPORATE LENDING INC.,
as Lender
By: /s/ Xxxxxx Xxxxxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
as Lender
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
XXXXXXX XXXXX CAPITAL CORPORATION,
as Lender
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
BNP PARIBAS, as Lender
By: /s/ Xxxx Xxx
-----------------------------------
Name: Xxxx Xxx
Title: Managing Director
JPMORGAN CHASE BANK, N.A., as Lender
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
The Royal Bank of Scotland PLC, as Lender
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
