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$644,750,000
CREDIT AGREEMENT
Dated as of July 3, 2006,
among
INTELSAT SUBSIDIARY HOLDING COMPANY, LTD.,
as the Borrower
INTELSAT INTERMEDIATE HOLDING COMPANY, LTD.
The Several Lenders
from Time to Time Parties Hereto
CITICORP USA, INC.,
as Administrative Agent
CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
as Syndication Agent
and
CITIGROUP GLOBAL MARKETS INC., DEUTSCHE BANK SECURITIES 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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781332
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS
1.1. DEFINED TERMS..................................................2
1.2. EXCHANGE RATES................................................48
SECTION 2. AMOUNT AND TERMS OF CREDIT
2.1. COMMITMENTS...................................................48
2.2. MINIMUM AMOUNT OF EACH BORROWING; MAXIMUM NUMBER OF
BORROWINGS..................................................50
2.3. NOTICE OF BORROWING...........................................51
2.4. DISBURSEMENT OF FUNDS.........................................52
2.5. REPAYMENT OF LOANS; EVIDENCE OF DEBT..........................53
2.6. CONVERSIONS AND CONTINUATIONS.................................55
2.7. PRO RATA BORROWINGS...........................................56
2.8. INTEREST......................................................56
2.9. INTEREST PERIODS..............................................57
2.10. INCREASED COSTS, ILLEGALITY, ETC..............................57
2.11. COMPENSATION..................................................59
2.12. CHANGE OF LENDING OFFICE......................................60
2.13. NOTICE OF CERTAIN COSTS.......................................60
2.14. INCREMENTAL FACILITIES........................................60
SECTION 3. LETTERS OF CREDIT
3.1. LETTERS OF CREDIT.............................................62
3.2. LETTER OF CREDIT REQUESTS.....................................63
3.3. LETTER OF CREDIT PARTICIPATIONS...............................63
3.4. AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS..................65
3.5. INCREASED COSTS...............................................66
3.6. SUCCESSOR LETTER OF CREDIT ISSUER.............................67
SECTION 4. FEES; COMMITMENTS
4.1. FEES..........................................................68
4.2. VOLUNTARY REDUCTION OF REVOLVING CREDIT COMMITMENTS...........68
4.3. MANDATORY TERMINATION OF COMMITMENTS..........................69
SECTION 5. PAYMENTS
5.1. VOLUNTARY PREPAYMENTS.........................................69
5.2. MANDATORY PREPAYMENTS.........................................70
5.3. METHOD AND PLACE OF PAYMENT...................................73
5.4. NET PAYMENTS..................................................73
5.5. COMPUTATIONS OF INTEREST AND FEES.............................75
5.6. LIMIT ON RATE OF INTEREST.....................................75
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SECTION 6. CONDITIONS PRECEDENT TO INITIAL BORROWING ON
THE CLOSING DATE
6.1. CONSUMMATION OF THE ACQUISITION...............................76
6.2. EXECUTED COUNTERPARTS OF THIS AGREEMENT.......................76
6.3. EXECUTED COUNTERPART OF SUBSIDIARY GUARANTEE..................76
6.4. CORPORATE AND OTHER PROCEEDINGS...............................76
6.5. OPINIONS OF COUNSEL...........................................77
6.6. BORROWING REQUEST.............................................77
6.7. PROMISSORY NOTES..............................................77
6.8. FEES..........................................................77
6.9. COLLATERAL....................................................77
6.10. PERFECTION CERTIFICATE........................................78
6.11. INTERCOMPANY SUBORDINATION AGREEMENT..........................78
SECTION 7. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS
7.1. NO DEFAULT; REPRESENTATIONS AND WARRANTIES....................78
7.2. NOTICE OF BORROWING; LETTER OF CREDIT REQUEST.................78
7.3. INTELSAT LTD. NOTES CONDITION.................................79
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS
8.1. CORPORATE STATUS..............................................79
8.2. CORPORATE POWER AND AUTHORITY.................................79
8.3. NO VIOLATION..................................................79
8.4. LITIGATION....................................................80
8.5. MARGIN REGULATIONS............................................80
8.6. GOVERNMENTAL APPROVALS........................................80
8.7. INVESTMENT COMPANY ACT........................................80
8.8. TRUE AND COMPLETE DISCLOSURE..................................80
8.9. FINANCIAL CONDITION; FINANCIAL STATEMENTS.....................81
8.10. TAX RETURNS AND PAYMENTS......................................81
8.11. COMPLIANCE WITH ERISA.........................................82
8.12. SUBSIDIARIES..................................................82
8.13. PATENTS, ETC..................................................83
8.14. ENVIRONMENTAL LAWS............................................83
8.15. PROPERTIES....................................................83
8.16. SOLVENCY......................................................83
8.17. [INTENTIONALLY OMITTED].......................................83
8.18. FCC LICENSES, ETC.............................................83
8.19. SATELLITES....................................................84
SECTION 9. AFFIRMATIVE COVENANTS
9.1. INFORMATION COVENANTS.........................................84
9.2. BOOKS, RECORDS AND INSPECTIONS................................89
9.3. MAINTENANCE OF INSURANCE......................................89
9.4. PAYMENT OF TAXES..............................................91
9.5. CONSOLIDATED CORPORATE FRANCHISES.............................91
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9.6. COMPLIANCE WITH STATUTES, REGULATIONS, ETC....................91
9.7. ERISA.........................................................91
9.8. MAINTENANCE OF PROPERTIES.....................................92
9.9. TRANSACTIONS WITH AFFILIATES..................................92
9.10. END OF FISCAL YEARS; FISCAL QUARTERS..........................93
9.11. ADDITIONAL GUARANTORS AND GRANTORS............................93
9.12. PLEDGES OF ADDITIONAL STOCK AND EVIDENCE OF INDEBTEDNESS......94
9.13. USE OF PROCEEDS...............................................95
9.14. CHANGES IN BUSINESS...........................................95
9.15. FURTHER ASSURANCES............................................95
9.16. ACCESS AND COMMAND CODES......................................96
9.17. TTC&M PROVIDERS...............................................97
9.18. MAINTENANCE OF RATING OF FACILITIES...........................97
9.19. INTELSAT GENERAL CORPORATION..................................97
9.20. POST-CLOSING COVENANTS........................................98
SECTION 10. NEGATIVE COVENANTS
10.1. LIMITATION ON INDEBTEDNESS....................................98
10.2. LIMITATION ON LIENS..........................................102
10.3. LIMITATION ON FUNDAMENTAL CHANGES............................103
10.4. LIMITATION ON SALE OF ASSETS.................................105
10.5. LIMITATION ON INVESTMENTS....................................107
10.6. LIMITATION ON DIVIDENDS......................................109
10.7. LIMITATIONS ON DEBT PAYMENTS AND AMENDMENTS..................111
10.8. LIMITATIONS ON SALE LEASEBACKS...............................111
10.9. NON-MATERIAL SUBSIDIARIES....................................111
10.10. PRIVATE ACT..................................................111
SECTION 11. FINANCIAL COVENANT
SECTION 12. EVENTS OF DEFAULT
12.1. PAYMENTS.....................................................112
12.2. REPRESENTATIONS, ETC.........................................112
12.3. COVENANTS....................................................112
12.4. DEFAULT UNDER OTHER AGREEMENTS...............................113
12.5. BANKRUPTCY, ETC..............................................113
12.6. ERISA........................................................114
12.7. GUARANTEE....................................................114
12.8. PLEDGE AGREEMENTS............................................114
12.9. SECURITY AGREEMENTS..........................................114
12.10. MORTGAGES....................................................114
12.11. JUDGMENTS....................................................114
12.12. CHANGE OF CONTROL............................................115
12.13. CONDITION SUBSEQUENT.........................................115
12.14. PERMITTED EQUITY ISSUANCE....................................115
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SECTION 13. THE ADMINISTRATIVE AGENT
13.1. APPOINTMENT..................................................116
13.2. DELEGATION OF DUTIES.........................................116
13.3. EXCULPATORY PROVISIONS.......................................116
13.4. RELIANCE BY ADMINISTRATIVE AGENT.............................117
13.5. NOTICE OF DEFAULT............................................117
13.6. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.......117
13.7. INDEMNIFICATION..............................................118
13.8. ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY..............118
13.9. SUCCESSOR AGENT..............................................118
13.10. WITHHOLDING TAX..............................................119
13.11. SPECIAL APPOINTMENT OF ADMINISTRATIVE AGENT FOR GERMAN
PLEDGE AGREEMENT...........................................119
13.12. U.K. SECURITY DOCUMENTS......................................120
SECTION 14. MISCELLANEOUS
14.1. AMENDMENTS AND WAIVERS.......................................120
14.2. NOTICES......................................................121
14.3. NO WAIVER; CUMULATIVE REMEDIES...............................123
14.4. SURVIVAL OF REPRESENTATIONS AND WARRANTIES...................123
14.5. PAYMENT OF EXPENSES AND TAXES................................123
14.6. SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.......124
14.7. REPLACEMENTS OF LENDERS UNDER CERTAIN CIRCUMSTANCES..........127
14.8. ADJUSTMENTS; SET-OFF.........................................128
14.9. COUNTERPARTS.................................................129
14.10. SEVERABILITY.................................................129
14.11. INTEGRATION..................................................129
14.12. GOVERNING LAW................................................129
14.13. SUBMISSION TO JURISDICTION; CONSENT TO SERVICE; WAIVERS......129
14.14. ACKNOWLEDGMENTS..............................................130
14.15. WAIVERS OF JURY TRIAL........................................131
14.16. CONFIDENTIALITY..............................................131
14.17. CITIGROUP DIRECT WEBSITE COMMUNICATIONS......................131
14.18. USA PATRIOT ACT..............................................132
14.19. CONVERSION OF CURRENCIES.....................................132
14.20. ABSTRACT ACKNOWLEDGMENT OF INDEBTEDNESS AND
JOINT CREDITORSHIP.........................................133
14.21. CERTAIN COLLATERAL AND GUARANTEE MATTERS.....................134
SECTION 15. HOLDINGS GUARANTEE
15.1. THE HOLDINGS GUARANTEE.......................................135
15.2. BANKRUPTCY...................................................135
15.3. NATURE OF LIABILITY..........................................135
15.4. INDEPENDENT OBLIGATIONS......................................136
15.5. AUTHORIZATION................................................136
15.6. RELIANCE.....................................................137
15.7. SUBORDINATION................................................137
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15.8. WAIVERS......................................................138
15.9. MAXIMUM LIABILITY............................................138
15.10. HOLDINGS GUARANTEE RELEASE...................................139
SECTION 16. CONDITION SUBSEQUENT
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ANNEXES
Annex I Commitments
SCHEDULES
Schedule 1.1 (a) Existing Letters of Credit
Schedule 1.1 (b) [INTENTIONALLY OMITTED]
Schedule 1.1 (c) [INTENTIONALLY OMITTED]
Schedule 1.1 (d) [INTENTIONALLY OMITTED]
Schedule 1.1(e) Acquisition-Related Restructurings
Schedule 8.12 Subsidiaries
Schedule 8.18 FCC Licenses
Schedule 8.19 Satellites
Schedule 9.9 Existing Affiliate Transactions
Schedule 9.15(c) Property to be Mortgaged
Schedule 10.1 Indebtedness
Schedule 10.2 Liens
Schedule 10.5 Investments
EXHIBITS
Exhibit A Form of Closing Compliance Certificate
Exhibit C Form of Guarantee
Exhibit E Form of Perfection Certificate
Exhibit F-1 Form of Bermuda Pledge Agreement
Exhibit F-2 Form of German Pledge Agreement
Exhibit F-3 Form of U.K. Pledge Agreement
Exhibit F-4 Form of U.S. Pledge Agreement
Exhibit G-1-A Form of Bermuda Debenture
Exhibit G-1-B Form of Bermuda Assignment of Intercompany Loans
Exhibit G-2 Form of U.K. Security Agreement
Exhibit G-3 Form of U.S. Security Agreement
Exhibit H Form of Letter of Credit Request
Exhibit I-1 Form of Legal Opinion of Wachtell, Lipton, Xxxxx & Xxxx
Exhibit I-2 Form of Legal Opinion of Xxxxxxxx Xxxxxx & Finger
Exhibit I-3 Form of Legal Opinion of Xxxxxxx Xxxxxxxx Xxxxxx
Exhibit I-4 Form of Legal Opinion of White & Case LLP (UK)
Exhibit I-5 Form of Legal Opinion of White & Case LLP (Germany)
Exhibit I-6 Form of Legal Opinion of Wiley, Rein & Fielding LLP
(U.S. Regulatory)
Exhibit J [INTENTIONALLY OMITTED]
Exhibit K Form of Assignment and Acceptance
Exhibit L-1 Form of Promissory Note (Tranche B Term Loans and
Incremental Tranche B Term Loans)
Exhibit L-2 Form of Promissory Note (Revolving Credit Loans
and Swingline Loans)
Exhibit M Form of Joinder Agreement
Exhibit N Form of Intercompany Subordination Agreement
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Exhibit O Form of Satellite Health Report
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CREDIT AGREEMENT, dated as of July 3, 2006 (as amended, restated,
supplemented or otherwise modified from time to time, this "AGREEMENT"), among
INTELSAT INTERMEDIATE HOLDING COMPANY, LTD. ("HOLDINGS"), INTELSAT SUBSIDIARY
HOLDING COMPANY, LTD. (the "BORROWER"), the lending institutions from time to
time parties hereto (each a "LENDER" and, collectively, the "LENDERS"), CITICORP
USA, INC., 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, CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as Syndication Agent, XXXXXX
BROTHERS INC., as Joint Lead Arranger and Joint Bookrunner and DEUTSCHE BANK
TRUST COMPANY AMERICAS, as a Letter of Credit Issuer.
WHEREAS, Intelsat (Bermuda), Ltd. ("INTELSAT BERMUDA") intends to
acquire PanAmSat Holding Corporation ("PANAMSAT Holdco") pursuant to the terms
of the Acquisition Agreement (the "ACQUISITION");
WHEREAS, in connection with the Acquisition, Intelsat Bermuda will (i)
borrow $600,000,000 under the Intelsat Bermuda Bridge Loan and (ii) issue
$260,000,000 principal amount of Floating Rate Senior Notes due 2013 (the
"INTELSAT BERMUDA FLOATING RATE NOTES"), $750,000,000 principal amount of 9.25%
Senior Notes due 2016 (the "INTELSAT BERMUDA GUARANTEED FIXED RATE NOTES") and
$1,330,000,000 principal amount of 11.25% Senior Notes due 2016 (the "INTELSAT
BERMUDA NON-GUARANTEED FIXED RATE NOTES"), in a Rule 144A or other private
placement, and the Intelsat Bermuda Guaranteed Senior Notes will be guaranteed
by, INTER ALIOS, Borrower and the Subsidiary Guarantors (collectively, the
"BERMUDA DEBT OFFERINGS");
WHEREAS, in connection with the foregoing, the Borrower has requested
the Lenders to (a) extend Term Loans, in an aggregate principal amount of
$344,750,000, to Borrower on the Closing Date and (b) provide Revolving Credit
Loans to the Borrower at any time and from time to time prior to the Revolving
Credit Maturity Date, in an aggregate principal amount at any time outstanding
not in excess of $300,000,000 less the sum of (i) the aggregate Letters of
Credit Outstanding at such time and (ii) the aggregate principal amount of all
Swingline Loans outstanding at such time. The Borrower has requested the Letter
of Credit Issuer to issue Letters of Credit at any time and from time to time
prior to the L/C Maturity Date, in an aggregate face amount at any time
outstanding not in excess of $200,000,000. The Borrower has requested the
Swingline Lender to extend credit in the form of Swingline Loans at any time and
from time to time prior to the Swingline Maturity Date, in an aggregate
principal amount at any time outstanding not in excess of $35,000,000; and
WHEREAS, the proceeds of the Term Loans will be used to refinance
loans outstanding under the Borrower's existing credit facilities; proceeds of
Revolving Credit Loans and Swingline Loans will be used by the Borrower for
general corporate purposes (including Permitted Acquisitions); and Letters of
Credit have been and will be used by the Borrower for general corporate
purposes;
NOW THEREFORE, 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):
"ABR" shall mean, for any day, a rate PER ANNUM (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in
effect on such day or (b) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. Any change in the ABR due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective as of the opening of business on
the effective day of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively.
"ABR LOAN" shall mean each Loan bearing interest at the rate provided
in Section 2.8(a) and, in any event, shall include all Swingline Loans.
"ACQUIRED EBITDA" shall mean, with respect to any Acquired Entity or
Business, any Converted Restricted Subsidiary, any Sold Entity or Business or
any Converted Unrestricted Subsidiary (any of the foregoing, a "PRO FORMA
ENTITY") for any period, the amount for such period of Consolidated EBITDA of
such Pro Forma Entity (determined using such definitions as if references to the
Borrower and its Subsidiaries therein were to such Pro Forma Entity and its
Subsidiaries), all as determined on a consolidated basis for such Pro Forma
Entity in accordance with GAAP, but subject to the provisos to the definition of
Consolidated EBITDA.
"ACQUIRED ENTITY OR BUSINESS" shall have the meaning provided in the
definition of the term "Consolidated EBITDA."
"ACQUISITION" shall have the meaning provided in the preamble hereto.
"ACQUISITION AGREEMENT" shall mean the Merger Agreement, dated as of
August 28, 2005, among Intelsat Bermuda, Proton Acquisition Corporation and
PanAmSat Holdco.
"ADJUSTED TOTAL REVOLVING CREDIT COMMITMENT" shall mean at any time
the Total Revolving Credit Commitment less the aggregate Revolving Credit
Commitments of all Defaulting Lenders.
"ADJUSTED TOTAL TERM LOAN COMMITMENT" shall mean at any time the Total
Term Loan Commitment less the Term Loan Commitments of all Defaulting Lenders.
"ADMINISTRATIVE AGENT" shall mean Citicorp USA, Inc., 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 000 Xxxxxxxxx Xxxxxx,
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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)(ii).
"AFFILIATE" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with such Person. A Person shall be deemed to control a
corporation if such Person possesses, directly or indirectly, the power (a) to
vote 10% or more of the securities having ordinary voting power for the election
of directors of such corporation or (b) to direct or cause the direction of the
management and policies of such corporation, whether through the ownership of
voting securities, by contract or otherwise.
"AGENT PARTIES" shall have the meaning provided in Section 14.17(c).
"AGENTS" shall mean each Joint Lead Arranger, the Administrative
Agent, the Syndication Agent.
"AGGREGATE REVOLVING CREDIT OUTSTANDINGS" shall have the meaning
provided in Section 5.2(b).
"AGREEMENT" shall mean this Credit Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"AGREEMENT CURRENCY" shall have the meaning provided in Section
14.19(b).
"AMORTIZATION AMOUNT" shall have the meaning provided in Section
5.2(c).
"APPLICABLE ABR MARGIN" shall mean, at any date, the applicable
percentage PER ANNUM set forth below based upon the Status in effect on such
date:
Applicable ABR Margin for
Tranche B Term Loans,
REVOLVING CREDIT AND SWINGLINE
STATUS LOANS
Level I Status 1.25%
Level II Status 1.00%
Notwithstanding the foregoing, the "Applicable ABR Margin" shall mean,
with respect to each ABR Loan, the percentage relating to the Status on the
Closing Date set forth in a certificate of an Authorized Officer in the form of
EXHIBIT A hereto (the "Closing Compliance Certificate") and determined on a pro
forma basis after giving effect to the Transactions, during the period from and
including the Closing Date to but excluding the first date following the Closing
Date that financial statements are required to be delivered under Section 9.1
for the first full fiscal quarter completed after the Closing Date.
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"APPLICABLE AMOUNT" shall mean on any date (the "REFERENCE DATE") (A)
$125,000,000 PLUS (B) the result of (x) Consolidated EBITDA for the Measurement
Period MINUS (y) 1.4 times Consolidated Interest Expense for the Measurement
Period (calculated after giving pro forma effect to any Investment or dividend
or prepayment, repurchase or redemption actually made pursuant to Section
10.5(i), 10.6(c) or 10.7(a)), PROVIDED that the amounts in clauses (A) and (B)
shall only be available if the Consolidated Total Debt to Consolidated EBITDA
Ratio of the Borrower for the Test Period last ended is less than 4.75:1.00,
determined on a pro forma basis after giving effect to any dividend or
prepayment, repurchase or redemption actually made pursuant to Section 10.6(c)
or 10.7(a) (for avoidance of doubt, if the amount in this clause (B) is
negative, MINUS the amount by which the amount in this clause (B) is less than
zero), PLUS (C) the aggregate net proceeds, including cash and the Fair Market
Value of property other than cash, received by the Borrower after the Closing
Date (x) from the issue or sale (other than to Holdings or any Subsidiary of
Holdings or to an employee stock ownership plan or trust established by Holdings
or any Subsidiary) of equity interests of Holdings or any parent of Holdings, in
each case so long as such net proceeds are simultaneously contributed to the
common equity of the Borrower (other than Disqualified Preferred Stock, CI
Contributions and Permitted Equity Issuances made pursuant to Section 12.14),
including equity interests issued upon conversion of Indebtedness or upon
exercise of warrants or options and/or (y) from contributions (other than from
Holdings or any Subsidiary of Holdings) to the capital of Holdings that are
contributed to the common equity of the Borrower (other than contributions in
the form of Disqualified Preferred Stock, CI Contributions and other than
Permitted Equity Issuances made pursuant to Section 12.14), PLUS (D) the
principal amount of any Indebtedness (or the liquidation preference or maximum
fixed repurchase price, as the case may be, of any Disqualified Preferred Stock)
of the Borrower or any Restricted Subsidiary issued after the Closing Date
(other than to the Borrower or a Subsidiary of the Borrower) which has been
converted into or exchanged for equity interests in the Borrower or any parent
of the Borrower (other than Disqualified Preferred Stock), PLUS (E) the
aggregate net cash proceeds, and the Fair Market Value of property other than
cash, received by the Borrower or any Restricted Subsidiary from the sale or
other disposition (other than to the Borrower or a Restricted Subsidiary) of any
Investment previously made after the Closing Date pursuant to Section 10.5(i),
PLUS (F) without duplication, an amount equal to any repayments, interest,
returns, profits, distributions, income and similar amounts actually received in
cash (or received in kind and reduced to cash) in respect of any Investment
previously made after the Closing Date pursuant to Section 10.5(i) (which amount
shall not exceed the amount of such Investment valued at the Fair Market Value
of such Investment at the time such Investment was made), PLUS (G) in the event
any Unrestricted Subsidiary of the Borrower that was designated as an
Unrestricted Subsidiary after the Closing Date under Section 10.5(i) 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 any Restricted Subsidiary, the Fair Market
Value of the Investments of the Borrower and the Restricted Subsidiaries in such
Unrestricted Subsidiary (or of the assets transferred or conveyed, as
applicable) at the time, MINUS (H) the sum at the time of determination of (i)
the aggregate amount of Investments made since the Closing Date pursuant to
Section 10.5(i) and from April 1, 2006 thorough the Closing Date that would have
been required to be made in reliance on Section 10.5(i) had this Agreement been
in effect during such period, (ii) the aggregate amount of dividends made since
the Closing Date pursuant to Section 10.6(c) and (iii) the aggregate amount of
prepayments, repurchases and redemptions made since the Closing Date pursuant to
Section 10.7(a) and from April 1, 2006
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through the Closing Date of the type described in Section 10.7(a) (assuming this
Agreement had then been in effect), MINUS (I) the sum of all dividends (as
defined in Section 10.6) made by the Borrower during the period beginning April
1, 2006, and ending on the Closing Date (prior to giving effect to the
Transactions and other than the dividend contemplated by Section 10.6(e)), other
than dividends that would have been permitted pursuant to Xxxxxxxx 00.0(x), (x),
(x), (x), (x), (x), (x), (x) and (k) if this Agreement had been in effect at
such time.
"APPLICABLE CREDITOR" shall have the meaning provided in Section
14.19(b).
"APPLICABLE LIBOR MARGIN" shall mean, at any date, with respect to
each LIBOR Loan, the applicable percentage PER ANNUM set forth below based upon
the Status in effect on such date:
Applicable LIBOR Margin for
Tranche B Term Loans,
REVOLVING CREDIT AND SWINGLINE
STATUS LOANS
Level I Status 2.25%
Level II Status 2.00%
Notwithstanding the foregoing, the "Applicable LIBOR Margin" shall
mean, with respect to each LIBOR Loan, the percentage relating to the Status on
the Closing Date set forth in the Closing Compliance Certificate, and determined
on a pro forma basis after giving effect to the Transactions, during the period
from and including the Closing Date to but excluding the first date following
the Closing Date that financial statements are required to be delivered under
Section 9.1 for the first full fiscal quarter completed after the Closing Date.
"APPROVED FUND" shall have the meaning provided in Section 14.6.
"ASSET SALE PREPAYMENT EVENT" shall mean any sale, transfer or other
disposition of any business units, assets or other property of the Borrower or
any of the Restricted Subsidiaries not in the ordinary course of business
(including any sale, transfer or other disposition of any capital stock of any
Subsidiary of the Borrower owned by the Borrower or a Restricted Subsidiary,
including any sale or issuance of any capital stock of any Restricted Subsidiary
other than any such event or transaction (or series of related events or
transactions) the Net Cash Proceeds of which are less than $10,000,000.
Notwithstanding the foregoing, the term "Asset Sale Prepayment Event" shall not
include any Permitted Sale Leaseback or any transaction permitted by Section
10.4, other than transactions permitted by Sections 10.4(b) and (e).
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
substantially in the form of EXHIBIT K 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.
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"AVAILABLE COMMITMENT" shall mean an amount equal to the excess, if
any, of (a) the amount of the Total Revolving Credit Commitment over (b) the sum
of (i) the aggregate principal amount of all Revolving Credit Loans (but not
Swingline Loans) then outstanding and (ii) the aggregate Letters of Credit
Outstanding at such time.
"BANKRUPTCY CODE" shall have the meaning provided in Section 12.5.
"BENEFITED LENDER" shall have the meaning provided in Section 14.8(a).
"BERMUDA DEBT OFFERINGS" shall have the meaning given in the recitals
to this Agreement.
"BERMUDA PLEDGE AGREEMENT" means the charge over shares dated the date
hereof between Holdings and the Administrative Agent for the benefit of the
Secured Parties, substantially in the form of Exhibit F-1, as the same may be
amended, supplemented or otherwise modified from time to time.
"BERMUDA SECURITY AGREEMENT" shall mean the collective reference to
(i) the Debenture dated the date hereof entered into by the Grantors party
thereto and the Administrative Agent for the benefit of the Secured Parties,
substantially in the form of Exhibit G-1-A and (ii) the Assignment of
Inter-Company Loans dated the date hereof entered into by the Grantors party
thereto and the Administrative Agent for the benefit of the Secured Parties,
substantially in the form of Exhibit G-1-B.
"BOARD" shall mean the Board of Governors of the Federal Reserve
System of the United States (or any successor).
"BORROWER" shall have the meaning provided in the preamble to this
Agreement.
"BORROWER FLOATING RATE NOTES" shall mean the Borrower's $1,000.0
million Floating Rate Senior Notes due 2012.
"BORROWING" shall mean and include (a) the incurrence of Swingline
Loans from the Swingline Lender on a given date, (b) the incurrence of one Type
of Term Loan on the Closing Date (or resulting from conversions on a given date
after the Closing Date) having, in the case of LIBOR Term Loans, the same
Interest Period (PROVIDED that ABR Loans incurred pursuant to Section 2.10(b)
shall be considered part of any related Borrowing of LIBOR Term Loans) and (c)
the incurrence of one Type of Revolving Credit Loan on a given date (or
resulting from conversions on a given date) having, in the case of LIBOR
Revolving Credit Loans, the same Interest Period (PROVIDED that ABR Loans
incurred pursuant to Section 2.10(b) shall be considered part of any related
Borrowing of LIBOR Revolving Credit Loans).
"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 de-
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scribed 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 LEASE" shall mean, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is, or is required to be, accounted for as a capital lease
on the balance sheet of that Person.
"CAPITALIZED LEASE OBLIGATIONS" shall mean, as applied to any Person,
all obligations under Capital Leases of such Person or any of its Subsidiaries,
in each case taken at the amount thereof accounted for as liabilities in
accordance with GAAP.
"CASUALTY EVENT" shall mean, with respect to any property (including
any Satellite) of any Person, any loss of or damage to, or any condemnation or
other taking by a Governmental Authority of, such property for which such Person
or any of its Restricted Subsidiaries receives insurance proceeds, or proceeds
of a condemnation award or other compensation.
"CHANGE IN LAW" shall mean (a) the adoption of any law, treaty, order,
policy, rule or regulation after the Closing Date, (b) any change in any law,
treaty, order, policy, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the Closing Date or (c)
compliance by the Lender with any guideline, request or directive issued or made
after the Closing Date by any central bank or other governmental or
quasi-governmental authority (whether or not having the force of law).
"CHANGE OF CONTROL" shall mean the occurrence of any of the following:
(a) at any time prior to the consummation of a Qualified IPO, the Permitted
Holders shall cease to own, directly or indirectly, on a fully diluted basis in
the aggregate, at least a majority of the total voting power of the Voting Stock
of Holdings; (b) at any time after a Qualified IPO, Holdings becomes aware of
(by way of a report or any other filing pursuant Section 13(d) of the Exchange
Act, proxy, vote, written notice or otherwise) 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 the Permitted Holders, in a
single transaction or in a related series of transactions, by way of merger,
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 50% or more of the total voting power of the Voting Stock of
Intelsat Bermuda or any of its direct or indirect parent entities; (c) Holdings
shall cease to own 100% of the outstanding capital stock of the Borrower; and/or
(d) a "Change of Control" (or term of substantially similar import) as defined
in any of (i) the Senior Notes Indenture, (ii) the Holdings Discount Notes
Indenture or (iii) any of the Intelsat Bermuda Notes Indentures, shall have
occurred.
"CI CONTRIBUTIONS" shall have the meaning provided in the definition
of the term "Contribution Indebtedness."
"CLASS," when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Credit
Loans, Incremental Revolving Loans, Tranche B Term Loans, Incremental Tranche B
Term Loans (of each Series) or
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Swingline Loans and, when used in reference to any Commitment, refers to whether
such Commitment is a Revolving Credit Commitment, Incremental Revolving Credit
Commitment, Tranche B Term Loan Commitment or Incremental Tranche B Term Loan
Commitment.
"CLOSING DATE" shall mean July 3, 2006, the date of the initial Credit
Event hereunder.
"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.
"COLLATERAL" shall have the meaning provided in the Pledge Agreements,
the Security Agreements or any Mortgage, as applicable.
"COMMITMENT FEE RATE" shall mean, with respect to the Available
Commitment on any day, a rate PER ANNUM of 0.375%.
"COMMITMENTS" shall mean, with respect to each Lender, such Lender's
Term Loan Commitment, Revolving Credit Commitment, Incremental Revolving Credit
Commitment or Incremental Tranche B Term Loan Commitment.
"COMMUNICATIONS" shall have the meaning provided in Section 14.17(a).
"CONFIDENTIAL INFORMATION" shall have the meaning provided in Section
14.16.
"CONFIDENTIAL INFORMATION MEMORANDUM" shall mean the Confidential
Information Memorandum of the Borrower dated May 2006, delivered to the Lenders
in connection with this Agreement.
"CONSOLIDATED EARNINGS" shall mean, for any period, "income (loss)
before the deduction of income taxes" of the Borrower and the Restricted
Subsidiaries, excluding (a) extraordinary items, for such period, determined in
a manner consistent with the manner in which such amount was determined in
accordance with the audited financial statements referred to in Section 9.1(a)
and (b) the cumulative effect of a change in accounting principles during such
period.
"CONSOLIDATED EBITDA" shall mean, for any period, the sum, without
duplication, of the amounts for such period of:
(a) Consolidated Earnings; plus
(b) to the extent (and in the same proportion after giving effect to
the exclusion in clause (ii) in the proviso to this definition) already
deducted in arriving at Consolidated Earnings, the following:
(i) interest expense as used in determining such Consolidated
Earnings,
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(ii) depreciation expense;
(iii) amortization expense;
(iv) extraordinary losses and unusual or non-recurring charges
(including severance, relocation costs and one-time
compensation charges;
(v) non-cash charges (PROVIDED that if any such non-cash charges
represent an accrual or reserve for potential cash items in
any future period, the cash payment in respect thereof in
such future period shall be subtracted from Consolidated
EBITDA to such extent, and excluding amortization of a
prepaid cash item that was paid in a prior period);
(vi) losses on asset sales;
(vii) restructuring charges or reserves (including costs related
to closure of facilities);
(viii) Transaction Expenses;
(ix) any expenses or charges incurred in connection with any
issuance of debt, equity securities or any refinancing
transaction or any amendment or other modification of any
debt instrument (in each case, whether or not consummated);
(x) any fees and expenses related to Permitted Acquisitions and
Investments permitted under Section 10.5, in each case,
whether or not consummated;
(xi) any deductions attributable to minority interests;
(xii) the amount of management, monitoring, consulting and
advisory fees and related expenses paid directly by the
Borrower or any Restricted Subsidiary to the Sponsors;
(xiii) any impairment charge or asset write-off pursuant to
Financial Accounting Standards Board Statement No. 142 or
No. 144 and the amortization of intangibles arising pursuant
to No. 141;
(xiv) [INTENTIONALLY OMITTED]
(xv) foreign withholding taxes paid or accrued in such period;
(xvi) [INTENTIONALLY OMITTED]
(xvii) non-cash charges related to stock compensation expenses;
(xviii) loss from the early extinguishment of Indebtedness or
hedging obligations or other derivative instruments;
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(xix) an amount equal to the amounts paid pursuant to Section
9.9(j) other than by way of dividend, which shall be treated
as though such amounts had been paid as income taxes
directly by the Borrower;
(xx) 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
(xxi) for purpose of determining compliance with Section 11 only,
Permitted Equity Issuances pursuant to and in accordance
with Section 12.14; PLUS
(c) to the extent not otherwise included in arriving at Consolidated
Earnings, collections on investments in sale-type leases during such
period;
LESS, to the extent included in arriving at Consolidated Earnings, the sum of
the following amounts for such period of:
(a) extraordinary gains and non-recurring gains,
(b) non-cash gains (excluding any such non-cash gain to the extent it
represents the reversal of an accrual or reserve for potential cash item
in any prior period),
(c) gains on asset sales,
(d) any gross profit on sales-type leases included in Consolidated
Earnings for such period, except for collection on investments in sales-
type leases during such period, to the extent included in Consolidated
Earnings for such period,
(e) any income from the early extinguishment of Indebtedness or
hedging obligations on other derivative instruments, and
(f) interest income received by any Subsidiary of the Borrower from
the proceeds of a dividend permitted in accordance with Section 10.6(f),
in each case, as determined on a consolidated basis for the Borrower and the
Restricted Subsidiaries in accordance with GAAP, PROVIDED that
(i) except as provided in clause (iv) below, there shall be excluded
from Consolidated Earnings for any period the income or loss from
continuing operations before income taxes and extraordinary items of all
Unrestricted Subsidiaries for such period to the extent otherwise included
in Consolidated Earnings, except to the extent any such income is actually
received in cash by the Borrower or its Restricted Subsidiaries or such
losses funded by the Borrower or a Restricted Subsidiary in cash, in each
case during such period through dividends or other distributions,
(ii) there shall be excluded from Consolidated Earnings for any period
the non-cash loss from continuing operations before income taxes and
extraordinary items of each Joint Venture for such period corresponding to
the percentage of capital stock or
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other equity interests in such Joint Venture owned by the Borrower or its
Restricted Subsidiaries,
(iii) there shall be excluded in determining Consolidated EBITDA
non-operating currency transaction gains and losses (including the net loss
or gain resulting from Hedge Agreements for currency exchange risk),
(iv) (x) there shall be included in determining Consolidated EBITDA
for any period (A) the Acquired EBITDA of any Person, property, business or
asset (other than an Unrestricted Subsidiary) acquired to the extent not
subsequently sold, transferred or otherwise disposed of (but not including
the Acquired EBITDA of any related Person, property, business or assets to
the extent not so acquired) by the Borrower or any Restricted Subsidiary
during such period (each such Person, property, business or asset acquired
and not subsequently so disposed of, an "ACQUIRED ENTITY OR BUSINESS"), and
the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a
Restricted Subsidiary during such period (each, a "CONVERTED RESTRICTED
SUBSIDIARY"), in each case based on the actual Acquired EBITDA of such
Acquired Entity or Business or Converted Restricted Subsidiary for such
period (including the portion thereof occurring prior to such acquisition
or conversion) and (B) other than for purposes of clause (B)(x) of the
definition of "Applicable Amount" and for determining the Status of the
Borrower, an adjustment in respect of each Acquired Entity or Business
equal to the amount of the Pro Forma Adjustment with respect to such
Acquired Entity or Business for such period (including the portion thereof
occurring prior to such acquisition or conversion) as specified in the Pro
Forma Adjustment Certificate delivered to the Lenders and the
Administrative Agent, (y) for purposes of determining the Consolidated
Total Debt to Consolidated EBITDA Ratio only, there shall be excluded in
determining Consolidated EBITDA for any period the Acquired EBITDA of any
Person, property, business or asset (other than an Unrestricted Subsidiary)
sold, transferred or otherwise disposed of, closed or classified as
discontinued operations by the Borrower or any Restricted Subsidiary during
such period (each such Person, property, business or asset so sold or
disposed of, a "SOLD ENTITY OR BUSINESS"), and the Acquired EBITDA of any
Restricted Subsidiary that is converted into an Unrestricted Subsidiary
during such period (each, a "CONVERTED UNRESTRICTED SUBSIDIARY"), in each
case based on the actual Acquired EBITDA of such Sold Entity or Business or
Converted Unrestricted Subsidiary for such period (including the portion
thereof occurring prior to such sale, transfer, disposition or conversion)
and (z) other than for purposes of clause (B)(x) of the definition of
"Applicable Amount" and for determining the Status of the Borrower,
Consolidated EBITDA shall be calculated for any period after giving effect
on a pro forma basis (as if they had occurred on the first day of the
applicable Test Period) to restructurings of the business of the Borrower
or any of its Restricted Subsidiaries occurring during such period that are
expected to have a continuing impact and are factually supportable, which
would include cost savings resulting from head count reduction, closure of
facilities and similar operational and other cost savings, which
adjustments the Borrower determines are reasonable as set forth in a
certificate of an Authorized Officer (it being acknowledged and agreed that
the restructurings contemplated in Schedule 1.1(e) in connection with the
Acquisition satisfy the foregoing standard),
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(v) there shall be excluded from Consolidated Earnings and the
determination of Consolidated EBITDA for any period the effects of
adjustments in component amounts required or permitted by the Financial
Accounting Standards Board Statements of Financial Accounting Standards
Nos. 141 and 142 and related authoritative pronouncements, as a result of
the Transactions or Permitted Acquisitions or the amortization or write-off
of any amounts in connection therewith and related financings thereof,
(vi) lease payment expenses made by the Borrower or a Restricted
Subsidiary in connection with joint ventures or other Investments shall be
excluded from Consolidated Earnings to the extent that the Borrower or its
Restricted Subsidiaries receive distributions from such joint venture or
other Investment by the end of the next fiscal quarter following the making
of such lease payments and such distributions (to the extent of the
applicable lease payments to Joint Ventures, but not distributions in
excess of such lease payments) shall also be excluded from Consolidated
Earnings,
(vii) (i) the non-cash portion of "straight-line" rent expense shall
be excluded from Consolidated Earnings, (ii) the cash from portion of
"straight-line" rent expense which exceeds the amount expensed in respect
of such rent expense shall be included and (iii) 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, in each case from or in Consolidated
Earnings,
(viii) subject to clause (vi) above, there shall be included in
Consolidated Earnings, to the extent not already included, the amount of
any cash dividends or other cash distributions paid by any Unrestricted
Subsidiary or Joint Venture to the Borrower or any Restricted Subsidiary,
and
(ix) there shall be excluded from Consolidated Earnings for any period
any net after-tax income or loss from discontinued operations and any net
after-tax gains or losses on disposal of discontinued operations.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period, the cash
interest expense (including that attributable to Capital Leases in accordance
with GAAP), net of cash interest income, of the Borrower and the Restricted
Subsidiaries on a consolidated basis with respect to all outstanding
Indebtedness of the Borrower and the Restricted Subsidiaries, including (i) all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing and net costs under Hedge Agreements
(other than currency swap agreements, currency future or option contracts and
other similar agreements), (ii) commissions, discounts, yield and other fees and
charges incurred in connection with any Receivables Financing, which are payable
to persons other than the Borrower and its Subsidiaries, and (iii) without
duplication, capitalized interest in connection with the purchase of Satellites
to the extent paid in cash, but excluding, however, amortization of deferred
financing costs and any other amounts of non-cash interest, all as calculated on
a consolidated basis in accordance with GAAP and excluding, for avoidance of any
doubt, any interest in respect of items excluded from Indebtedness in the
proviso to the definition thereof; PROVIDED that (a) except as provided in
clause (b) below, there shall be excluded from Consolidated Interest Expense for
any period the cash interest expense (or cash interest income) of all
Unrestricted Subsidiaries for such period to the extent oth-
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erwise included in Consolidated Interest Expense and (b) there shall be included
in determining Consolidated Interest Expense for any period (i) the cash
interest expense (or income) of any Acquired Entity or Business acquired during
such period and of any Converted Restricted Subsidiary converted during such
period, in each case based on the cash interest expense (or income) of such
Acquired Entity or Business or Converted Restricted Subsidiary for such period
(including the portion thereof occurring prior to such acquisition or
conversion) assuming any Indebtedness incurred or repaid in connection with any
such acquisition or conversion had been incurred or prepaid on the first day of
such period and (ii) the amount of cash payments in respect of interest on
Existing Parent Indebtedness made by Borrower pursuant to Section 10.6(j)(i) and
interest on other Indebtedness made by the Borrower pursuant to Section 10.6(g).
"CONSOLIDATED SECURED DEBT" shall mean, as of any date of
determination, (a) the sum of all Indebtedness of the Borrower and the
Restricted Subsidiaries for borrowed money outstanding on such date that is
secured by a Lien on property of the Borrower or a Restricted Subsidiary
including Indebtedness permitted by Section 10.1(A)(w) and Capitalized Lease
Obligations, excluding (i) any subordinated Indebtedness and (ii) unsecured
Indebtedness of the Borrower and the Restricted Subsidiaries outstanding on such
date, all calculated on a consolidated basis in accordance with GAAP MINUS (b)
the aggregate amount of cash and Permitted Investments included in the accounts
listed on the consolidated balance sheet of the Borrower and the Restricted
Subsidiaries as at such date to the extent the use thereof for application to
payment of Indebtedness is not prohibited by law or any contract to which the
Borrower or any of the Restricted Subsidiaries is a party.
"CONSOLIDATED SECURED DEBT TO CONSOLIDATED EBITDA RATIO" shall mean,
as of any date of determination, the ratio of (a) Consolidated Secured Debt as
of the last day of the relevant Test Period to (b) Consolidated EBITDA for such
Test Period.
"CONSOLIDATED TOTAL DEBT" shall mean, as of any date of determination,
(a) the sum of (i) all Indebtedness of the Borrower and the Restricted
Subsidiaries for borrowed money outstanding on such date and all Indebtedness
for borrowed money of any parent of Borrower that is guaranteed by Borrower or
any Restricted Subsidiary and (ii) all Capitalized Lease Obligations of the
Borrower and the Restricted Subsidiaries outstanding on such date, all
calculated on a consolidated basis in accordance with GAAP MINUS (b) the
aggregate amount of cash and Permitted Investments included in the accounts
listed on the consolidated balance sheet of the Borrower and the Restricted
Subsidiaries as at such date to the extent the use thereof for application to
payment of Indebtedness is not prohibited by law or any contract to which the
Borrower or any of the Restricted Subsidiaries is a party.
"CONSOLIDATED TOTAL DEBT TO CONSOLIDATED EBITDA RATIO" shall mean, as
of any date of determination, the ratio of (a) Consolidated Total Debt as of the
last day of the relevant Test Period to (b) Consolidated EBITDA for such Test
Period.
"CONTRIBUTION INDEBTEDNESS" shall mean Indebtedness of the Borrower or
any Subsidiary Guarantor in an aggregate principal amount not greater than twice
the aggregate amount of cash contributions made to the capital of the Borrower
after the Closing Date (other than any cash contributions in connection with the
Transactions, that constitute Permitted Equity Issuances used pursuant to
Section 12.14 or that are included in the calculation of the Applicable
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Amount), (such cash contributions "CI CONTRIBUTIONS"), PROVIDED that the
aggregate amount of such Contribution Indebtedness (i) is incurred within 210
days after the making of such cash contributions and (ii) is so designated as
Contribution Indebtedness pursuant to a certificate of an Authorized Officer on
or prior to the incurrence date thereof.
"CONVERTED RESTRICTED SUBSIDIARY" shall have the meaning provided in
the definition of the term "Consolidated EBITDA."
"CONVERTED UNRESTRICTED SUBSIDIARY" shall have the meaning provided in
the definition of the term "Consolidated EBITDA."
"CREDIT DOCUMENTS" shall mean this Agreement, the Security Documents,
each Letter of Credit and any promissory notes issued by the Borrower hereunder.
"CREDIT EVENT" shall mean and include the making (but not the
conversion or continuation) of a Loan and the issuance of a Letter of Credit.
"CREDIT FACILITY" shall mean a category of Commitments and extensions
of credit thereunder.
"CREDIT PARTY" shall mean each of the Borrower, Holdings, the
Subsidiary Guarantors and each other Subsidiary of the Borrower that is a party
to a Credit Document.
"DEBT INCURRENCE PREPAYMENT EVENT" shall mean any issuance or
incurrence by the Borrower or any of the Restricted Subsidiaries of any
Indebtedness but excluding any Indebtedness permitted to be issued or incurred
under Section 10.1 other than Section 10.1(A)(o) and the maximum permitted
advance amount with respect to the initial incurrence permitted by Section
10.1(A)(w).
"DEFAULT" shall mean any event, act or condition that with notice or
lapse of time, or both, would constitute an Event of Default.
"DEFAULTING LENDER" shall mean any Lender with respect to which a
Lender Default is in effect.
"DISQUALIFIED PREFERRED STOCK" shall mean any preferred capital stock
or preferred equity interest of the Borrower other than Qualified PIK
Securities.
"DIVIDENDS" shall have the meaning provided in Section 10.6.
"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.
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"DOMESTIC SUBSIDIARY" shall mean each Subsidiary of the Borrower that
is organized under the laws of the United States, any state or territory
thereof, or the District of Columbia.
"DRAWING" shall have the meaning provided in Section 3.4(b).
"8 1/4% SENIOR NOTES" shall mean the Borrower's $875.0 million
principal amount of 8 1/4% Senior Notes due 2013.
"8 5/8% SENIOR NOTES" shall mean the Borrower's $675.0 million
principal amount of 8 5/8% Senior Notes due 2015.
"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, 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.
"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.
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"EUROS" or "(EURO)" shall mean the single currency of the European
Union as constituted by the treaty establishing the European Community being the
Treaty of Rome, as amended from time to time.
"EVENT OF DEFAULT" shall have the meaning provided in Section 12.
"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 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 $75,000,000 for the immediately succeeding 12-month
calendar period or (ii) that has a net book value not in excess of $200,000,000
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 of the Borrower or its Subsidiaries or other Affiliates (or portion)
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 $75,000,000 for the immediately succeeding
12-month calendar period.
"EXCLUDED TAXES" shall mean (a) 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, (i)
any Bermuda federal withholding tax that is imposed on amounts payable to such
Foreign Lender under the law in effect at the time such Foreign Lender becomes a
party to this Agreement (or, in the case of a Foreign Participant, on the date
such Foreign Participant became a Participant hereunder); PROVIDED that this
clause (b)(i) shall not apply to the extent that (x) the indemnity payments or
additional amounts any Lender (or Participant) would be entitled to receive
(without regard to this clause
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(b)(i)) do not exceed the indemnity payment or additional amounts that the
person making the assignment, participation or transfer to such Lender (or
Participant) would have been entitled to receive in the absence of such
assignment, participation or transfer or (y) any Tax is imposed on a Lender in
connection with an interest or participation in any Loan or other obligation
that such Lender was required to acquire pursuant to Section 14.8(a) of this
Agreement or that such Lender acquired pursuant to Section 14.7 of this
Agreement (it being understood and agreed, for the avoidance of doubt, that any
withholding tax imposed on a Foreign Lender as a result of a Change in Law
occurring after the time such Foreign Lender became a party to this Agreement
(or designates a new lending office) shall not be an Excluded Tax) or (ii) any
Tax to the extent attributable to such Foreign Lender's failure to comply with
Section 5.4(d).
"EXISTING CREDIT AGREEMENT" shall mean the Credit Agreement, dated as
of January 28, 2005, among the Borrower, Intelsat Bermuda, Deutsche Bank Trust
Company Americas, as administrative agent and collateral agent, and the other
agents and lenders party thereto from time to time, as amended, restated,
supplemented or otherwise modified prior to the Closing Date.
"EXISTING LETTERS OF CREDIT" shall mean all letters of credit
outstanding on the Closing Date and listed on Schedule 1.1(a).
"EXISTING PARENT INDEBTEDNESS" shall mean (i) the Holdings Discount
Notes, (ii) the Intelsat Ltd. Notes, (iii) the Intelsat Bermuda Notes and (iv)
the Intelsat Bermuda Bridge Loan (PROVIDED that interest in respect of the
Indebtedness referred to in the foregoing subsections (i) through (iv) shall be
paid at the times and in the amounts contemplated in the indentures and other
agreements governing such Existing Parent Indebtedness, as in effect on the
Closing Date (or such later date as such Existing Parent Indebtedness is
initially issued or incurred)), and (v) any Indebtedness which may redeem,
refinance or replace such Existing Parent Indebtedness (including any exchange
notes therefor); PROVIDED that (A) the Indebtedness remains the primary
obligation of the issuer of such Existing Parent Indebtedness and (B) the
principal amount of any such Indebtedness redeeming, refinancing or replacing
such Existing Parent Indebtedness shall not exceed the principal amount of the
Indebtedness refinanced, plus any reasonable premiums, fees and expenses payable
in connection with such refinancing.
"FAIR MARKET VALUE" of a specified asset shall mean the fair market
value of assets as determined in good faith by the Borrower and (i) in the event
the specified asset has a Fair Market Value in excess of $25,000,000, shall be
set forth in a certificate of an Authorized Officer or (ii) in the event the
specified asset has a Fair Market Value in excess of $50,000,000, shall be set
forth in a resolution approved by a majority of the board of directors of the
Borrower.
"FCC" shall mean the Federal Communications Commission or any
governmental authority substituted therefor.
"FCC LICENSES" shall mean all authorizations, orders, licenses and
permits issued by the FCC to Holdings, the Borrower or any of its Restricted
Subsidiaries, under which the Borrower or any of its Restricted Subsidiaries is
authorized to launch and operate any of its Satellites or to operate any of its
transmit only, receive only or transmit and receive earth stations.
- 17-
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the weighted
average of the PER ANNUM rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business Day,
the average of the quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by it.
"FEES" shall mean all amounts payable pursuant to, or referred to in,
Section 4.1.
"FINAL DATE" shall mean the date on which the Revolving Credit
Commitments shall have terminated, no Revolving Credit Loans shall be
outstanding and the Letters of Credit Outstanding shall have been reduced to
zero.
"FOREIGN CURRENCIES" shall mean Euro and Sterling.
"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 each Subsidiary of the Borrower that
is not a Domestic Subsidiary.
"FRONTING FEE" shall have the meaning provided in Section 4.1(c).
"G2 ACQUISITION" shall mean the sale by PanAmSat Holdco or any of its
subsidiaries of (or the merger of) G2 Satellite Solutions Corporation to (or
into) a wholly-owned subsidiary of Intelsat Bermuda other than PanAmSat Holdco
or any of its Subsidiaries pursuant to that certain Agreement and Plan of
Merger, dated as of July 3, 2006, by and among Intelsat General Corporation, G2
Satellite Solutions Corporation and PanAmSat.
"GAAP" shall mean generally accepted accounting principles in the
United States of America, as in effect from time to time; PROVIDED, HOWEVER,
that if there occurs after the Closing Date any change in GAAP that affects in
any respect the calculation of any covenant contained in Section 10 or Section
11 or any financial ratio otherwise used in this Agreement for any purpose, the
Lenders and the Borrower shall negotiate in good faith amendments to the
provisions of this Agreement that relate to the calculation of such covenant or
financial ratio with the intent of having the respective positions of the
Lenders and the Borrower after such change in GAAP conform as nearly as possible
to their respective positions as of the Closing Date and, until any such
amendments have been agreed upon, the covenants in Section 10 and Section 11 and
any such financial ratio shall be calculated as if no such change in GAAP has
occurred.
"GERMAN PLEDGE AGREEMENT" means the Share Pledge Agreement, dated as
of the date hereof, entered into by the pledgors party thereto and the
Administrative Agent for the bene-
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fit of the Secured Parties, substantially in the form of Exhibit F-2 hereto, as
the same may be amended, supplemented or otherwise modified from time to time.
"GERMAN SECURITY" shall mean the assets which are the subject of a
security document that is governed by German law.
"GLOBAL SERVICE EMPLOYEE TRANSFER" shall mean the transfer of certain
employees of Intelsat Global Service Corporation, and the liabilities
corresponding thereto, to PanAmSat.
"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.
"GUARANTEE" shall mean (a) in the case of Holdings, the Holdings
Guarantee, and (b) in the case of any Subsidiary Guarantor, the Subsidiary
Guarantee.
"GUARANTEE AND COLLATERAL EXCEPTION AMOUNT" shall mean, at any time:
(a) $200,000,000 MINUS (b) the sum of (i) the aggregate amount of Indebtedness
incurred or assumed prior to such time and after the Closing Date pursuant to
Section 10.1(A)(j) or (A)(k) that is outstanding at such time and that was used
to acquire, or was assumed in connection with the acquisition of, capital stock
and/or assets in respect of which guarantees, pledges and security have not been
given pursuant to Sections 9.11 and 9.12, (ii) the aggregate Incremental Loan
Commitments at such time and (iii) any Indebtedness outstanding at such time
incurred after the Closing Date by any Restricted Subsidiary that is not a
Guarantor, PROVIDED that if such amount is a negative number, the Guarantee and
Collateral Exception Amount shall be zero.
"GUARANTEE OBLIGATIONS" shall mean, as to any Person, any obligation
of such Person guaranteeing or intended to guarantee any Indebtedness of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, including any obligation of such Person, whether or not contingent,
(a) to purchase any such Indebtedness or any property constituting direct or
indirect security therefor, (b) to advance or supply funds (i) for the purchase
or payment of any such Indebtedness or (ii) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (c) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such
Indebtedness of the ability of the primary obligor to make payment of such
Indebtedness or (d) otherwise to assure or hold harmless the owner of such
Indebtedness against loss in respect thereof; PROVIDED, HOWEVER, that the term
"Guarantee Obligations" shall not include endorsements of instruments for
deposit or collection in the ordinary course of business or standard contractual
indemnities or guarantees (including performance guarantees) that are not direct
guarantees of payments of Indebtedness. The amount of any Guarantee Obligation
shall be deemed to be an amount equal to the stated or determinable amount of
the Indebtedness in respect of which such Guarantee Obligation is made or, if
not stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith.
"GUARANTOR" shall mean each of Holdings and each Subsidiary Guarantor.
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"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.
"HEDGE AGREEMENTS" shall mean interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap agreements,
currency future or option contracts, commodity price protection agreements or
other commodity price hedging agreements, and other similar agreements entered
into by the Borrower in the ordinary course of business (and not for speculative
purposes) in order to protect the Borrower or any of the Restricted Subsidiaries
against fluctuations in interest rates, currency exchange rates or commodity
prices.
"HISTORICAL FINANCIAL STATEMENTS" shall mean, as of the Closing Date,
the audited financial statements of the Borrower and its Subsidiaries, for the
immediately preceding three fiscal years, consisting of balance sheets and the
related consolidated statements of income, stockholders' equity and cash flows
for such fiscal years.
"HOLDINGS" shall have the meaning given in the preamble to this
Agreement; PROVIDED that (i) from and after the consummation of any Holdings
Dropdown Transaction in accordance with the definition thereof, "Holdings" shall
refer to the "Holdings Successor" (as defined in the definition of "Holdings
Dropdown Transaction") and (ii) from and after the consummation of any
Holdings-Borrower Merger in accordance with the definition thereof, "Holdings"
shall refer to the "Replacement Holdings" (as defined in the definition of
"Holdings-Borrower Merger") (it being understood that there may be more than one
Holdings Dropdown Transaction and/or Holdings-Borrower Merger, and that this
proviso shall be effective with respect to each such transaction).
"HOLDINGS-BORROWER MERGER" shall mean any transaction in which
Holdings (as defined prior to such Holding-Borrower Merger, "PRE-MERGER
HOLDINGS") and the Borrower merge, consolidate or amalgamate in a transaction
that complies with the provisions of SECTION 10.3(A) and as a result of which
(i) the Successor Borrower is a wholly owned direct or indirect Subsidiary of
Intelsat, Ltd. and (ii) all of the capital stock of the Successor Borrower is
owned directly by one Person ("REPLACEMENT HOLDINGS"); PROVIDED that: (A) the
Borrower and Holdings shall give the Administrative Agent not less than 15
Business Days' prior written notice of such transaction; (B) such transaction is
consummated pursuant to definitive documentation in form and substance
reasonably satisfactory to the Administrative Agent (which shall include,
without limitation, customary corporate and transactional representations); (C)
Replacement Holdings enters into a joinder hereto, in form and substance
satisfactory to the Admin-
-20-
istrative Agent, pursuant to which it assumes and succeeds to the obligations of
Holdings hereunder; (D) Replacement Holdings enters into a joinder to the
Bermuda Pledge Agreement (or enters into another supplement or a new pledge
agreement) in form and substance satisfactory to the Administrative Agent to
effect a pledge of the capital stock of the Successor Borrower to the
Administrative Agent for the benefit of the Secured Parties, and delivers an
opinion of counsel in form and substance satisfactory to the Administrative
Agent addressing the creation and perfection of the security interest created
thereby; (E) without limitation to the foregoing, Replacement Holdings complies
with the provisions of Section 9.15(a); and (F) Replacement Holdings furnishes
to the Administrative Agent a certificate, executed by the Chief Financial
Officer of Replacement Holdings, certifying that Replacement Holdings is
"Solvent" (as defined herein, MUTATIS MUTANDIS) on the date of the consummation
of such transaction after giving effect thereto.
"HOLDINGS DISCOUNT NOTES" shall mean Holdings' $338.4 million 9 1/4%
Senior Discount Notes due 2015, as in effect on the Closing Date and as the same
may be exchanged, modified, supplemented, restate and/or amended from time to
time in accordance with the terms hereof and thereof.
"HOLDINGS DISCOUNT NOTES INDENTURE" shall mean the Indenture, dated as
of February 11, 2005, among Intelsat, Ltd., Zeus Special Subsidiary Limited and
Xxxxx Fargo Bank, National Association, as trustee, relating to the Holdings
Discount 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.
"HOLDINGS DROPDOWN TRANSACTION" shall mean any transaction in which
(x) Holdings (as defined prior to such Holdings Dropdown Transaction,
"PREDECESSOR HOLDINGS") merges with and into another Person that, upon
consummation of such transaction is a wholly-owned direct or indirect Subsidiary
of Intelsat, Ltd., or (y) Holdings transfers all (but not less than all) of the
capital stock of the Borrower to another Person that, upon consummation of such
transaction is a wholly-owned direct or indirect Subsidiary of Intelsat, Ltd.
(such surviving Person or transferee, the "HOLDINGS SUCCESSOR"); PROVIDED that:
(A) Holdings shall give the Administrative Agent not less than 15 Business Days'
prior written notice of such transaction; (B) such transaction is consummated
pursuant to definitive documentation in form and substance reasonably
satisfactory to the Administrative Agent (which shall include, without
limitation, customary corporate and transactional representations); (C) in the
case of a transaction of the type described in clause (x), the Holdings
Successor re-affirms its obligations under the Bermuda Pledge Agreement, and
delivers an opinion of counsel in form and substance satisfactory to the
Administrative Agent with addressing the continued validity and perfection of
the security interest created thereby; (D) in the case of a transaction of the
type described in clause (y), the Holdings Successor enters into (i) a joinder
hereto, in form and substance satisfactory to the Administrative Agent, pursuant
to which it assumes and succeeds to the obligations of Holdings hereunder and
(ii) a joinder to the Bermuda Pledge Agreement (or enters into another
supplement or a new pledge agreement) in form and substance satisfactory to the
Administrative Agent to effect a pledge of the capital stock of the Successor
Borrower to the Administrative Agent for the benefit of the Secured Parties, and
delivers an opinion of counsel in form and substance satisfactory to the
Administrative Agent addressing the creation and perfection of the security
interest created thereby; (E) without limitation to the foregoing, the Holdings
Successor complies with the provisions of Section 9.15(a); and (F) in the case
of a transaction of the type described in clause (y), the Holdings Successor
furnishes to the Administrative Agent a certificate, executed by the Chief
Financial Officer of the Holdings Successor, certifying that the Holdings
Successor is "Solvent"
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(as defined herein, MUTATIS MUTANDIS) on the date of the consummation of such
transaction after giving effect thereto.
"HOLDINGS GUARANTEE" shall mean the guarantee issued by Holdings
pursuant to Section 15.
"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 $150,000,000) 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.
"IN-ORBIT SATELLITE" shall mean a Satellite owned by the Borrower or
any of its Restricted Subsidiaries that has been launched (or, if the entire
Satellite is not owned by the Borrower or any of its Restricted Subsidiaries,
the portion of the Satellite the Borrower and/or such Restricted Subsidiary
owns), excluding any such Satellite that has been decommissioned or that has
otherwise suffered a constructive or actual total loss.
"INCREASED AMOUNT DATE" shall have the meaning provided in Section
2.14.
"INCREMENTAL LOAN COMMITMENTS" shall have the meaning provided in
Section 2.14.
"INCREMENTAL REVOLVING CREDIT COMMITMENTS" shall have the meaning
provided in Section 2.14.
"INCREMENTAL REVOLVING LOAN LENDER" shall have the meaning provided in
Section 2.14.
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"INCREMENTAL REVOLVING LOANS" shall have the meaning provided in
Section 2.14.
"INCREMENTAL TRANCHE B TERM LOAN COMMITMENTS" shall have the meaning
provided in Section 2.14.
"INCREMENTAL TRANCHE B TERM LOAN LENDER" shall have the meaning
provided in Section 2.14.
"INCREMENTAL TRANCHE B TERM LOAN MATURITY DATE" shall mean the date on
which an Incremental Tranche B Term Loan matures.
"INCREMENTAL TRANCHE B TERM LOANS" shall have the meaning provided in
Section 2.14.
"INDEBTEDNESS" of any Person shall mean, without duplication, (A) all
indebtedness of such Person for borrowed money, (B) the deferred purchase price
of assets or services that in accordance with GAAP would be included as
liabilities in the balance sheet of such Person but excluding deferred rent to
the extent not capitalized in accordance with GAAP, (C) the face amount of all
letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder, (D) all Indebtedness of a second
Person secured by any Lien on any property owned by such first Person, whether
or not such Indebtedness has been assumed, (E) all Disqualified Preferred Stock
of such Person, (F) all obligations of such Person under interest rate swap, cap
or collar agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts, commodity price protection
agreements or other commodity price hedging agreements and other similar
agreements, (G) without duplication, all Guarantee Obligations of such Person,
(H) purchase price adjustments (that are in the nature of earn outs or similar
deferred purchase price mechanisms not described in clause (iv) of the proviso
to this definition) in connection with acquisitions or sales of assets and/or
businesses effected in accordance with the requirements of this Agreement, (I)
to the extent not otherwise included, with respect to the Borrower and its
Restricted Subsidiaries, the amount then outstanding (I.E., 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 Borrower or
any of its Restricted Subsidiaries and confirmed by the agent, trustee or other
representative of the institution or group providing such Receivables Financing)
and (J) all obligations of such Person in respect of Disqualified Preferred
Stock, PROVIDED that Indebtedness shall not include (i) trade payables and
accrued expenses, in each case payable directly or through a bank clearing
arrangement and arising in the ordinary course of business, (ii) obligations
under Satellite Purchase Agreements, Launch Service Agreements, in each case,
not overdue by more than 90 days, (iii) deferred or prepaid revenue, (iv)
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 and (v) obligations to make payments to one or more insurers under
satellite insurance policies or post-closing working capital adjustments in
respect of premiums or the requirement to remit to such insurer(s) a portion of
the future revenues 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. Notwithstanding the foregoing, (i)
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
-23-
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 and (ii) the amount of
any Indebtedness that is non-recourse to the cash flows or assets of the
Borrower and its Restricted Subsidiaries (other than the assets securing such
Indebtedness and proceeds thereof) shall be deemed to be the lesser of the face
amount of such Indebtedness and the fair market value of the collateral securing
such Indebtedness.
"INDEMNIFIED TAXES" shall mean all Taxes (other than Excluded Taxes)
and Other Taxes.
"INTELSAT BERMUDA" shall have the meaning provided in the recitals to
this Agreement.
"INTELSAT BERMUDA BRIDGE LOAN" shall mean the $600,000,000 senior
unsecured credit facility of Intelsat Bermuda entered into on the Closing Date
in conjunction with the Acquisition.
"INTELSAT BERMUDA FLOATING RATE NOTES" shall have the meaning given in
the recitals to this Agreement.
"INTELSAT BERMUDA GUARANTEED FIXED RATE NOTES" shall have the meaning
given in the recitals to this Agreement.
"INTELSAT BERMUDA NON-GUARANTEED FIXED RATE NOTES" shall have the
meaning given in the recitals to this 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 GLOBAL" shall mean Intelsat Global Service Corporation, a
Delaware corporation.
"INTELSAT GLOBAL SECURED OBLIGATIONS" shall have the meaning provided
in Section 14.20.
The "INTELSAT LTD. NOTES CONDITION" shall be satisfied, with respect
to any Credit Event, if after giving effect to such Credit Event the sum of (a)
the aggregate principal amount of all Loans then outstanding PLUS (b) the
aggregate amount of Letters of Credit Outstanding PLUS (c) the aggregate amount
of all other "Secured Debt" and "Attributable Debt" of Intelsat, Ltd.
-24-
and its "Restricted Subsidiaries" (each as defined in the Intelsat Ltd. Notes
Indenture) for purposes of, and calculated in accordance with, Section 1009 of
the Intelsat Ltd. Notes Indenture (giving effect to the exclusions set forth
therein), does not exceed an amount that is $1,000 less than 15% of Consolidated
Net Tangible Assets (as defined in the Intelsat Ltd. Notes Indenture). For
purposes of this definition of "Intelsat Ltd. Notes Condition", the "aggregate
amount" of any Loans, Letter of Credit Outstandings, Secured Debt, Attributable
Debt or other Indebtedness relating to any of the foregoing shall be calculated
in the same manner as the amount of "Indebtedness" is calculated pursuant to the
definition thereof in the Intelsat Ltd. Notes Indenture.
"INTELSAT LTD. NOTES INDENTURE" shall mean the Indenture dated as of
April 1, 2002, between Intelsat, Ltd. and The Bank of New York, relating to the
Intelsat Ltd. 5 1/4% Notes, Intelsat Ltd. 6 1/2% Notes and Intelsat Ltd. 7 5/8%
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 LTD. 5 1/4% NOTES" shall mean Intelsat, Ltd.'s $400.0
million 5 1/4% Senior Notes due 2008, as in effect on the Closing Date.
"INTELSAT LTD. 6 1/2% NOTES" shall mean Intelsat, Ltd.'s $700.0
million 6 1/2% Senior Notes due 2013, as in effect on the Closing Date.
"INTELSAT LTD. 7 5/8% NOTES" shall mean Intelsat, Ltd.'s $600.0
million 7 5/8% Senior Notes due 2012, as in effect on the Closing Date.
"INTELSAT LTD. NOTES" shall mean the Intelsat Ltd. 5 1/4% Notes, the
Intelsat Ltd. 6 1/2% Notes and the Intelsat Ltd. 7 5/8% Notes.
"INTERCOMPANY SERVICES AGREEMENT" shall mean the Master Intercompany
Services Agreement, of even date herewith, among Intelsat Bermuda, Borrower and
various of their Affiliates as in effect on the Closing Date.
"INTERCOMPANY SUBORDINATION AGREEMENT" shall have the meaning provided
in Section 9.12(c).
"INTEREST PERIOD" shall mean, with respect to any Term Loan or
Revolving Credit Loan, the interest period applicable thereto, as determined
pursuant to Section 2.9.
"INVESTMENT" shall mean, for any Person: (a) the acquisition (whether
for cash, property, services or securities or otherwise) of capital stock,
bonds, notes, debentures, partnership or other ownership interests or other
securities of any other Person (including any "short sale" or any sale of any
securities at a time when such securities are not owned by the Person entering
into such sale); (b) the making of any deposit with (other than demand deposits
with commercial banks made in the ordinary course of business), or advance, loan
or other extension of credit to, any other Person (including the purchase of
property from another Person subject to an understanding or agreement,
contingent or otherwise, to resell such property to such Person), but excluding
any such advance, loan or extension of credit having a term not exceeding 364
days arising in the ordinary course of business and excluding also any
Investment in leases entered
-25-
tered into in the ordinary course of business; or (c) the entering into of any
guarantee of, or other contingent obligation with respect to, Indebtedness or
other monetary liability of any other Person.
"JOINDER AGREEMENT" shall mean an agreement substantially in the form
of EXHIBIT M hereto.
"JOINT LEAD ARRANGERS" shall mean Citigroup Global Markets Inc.,
Deutsche Bank Securities Inc., Credit Suisse Securities (USA) LLC and Xxxxxx
Brothers Inc.
"JOINT VENTURES" shall mean any Person in which the Borrower or a
Restricted Subsidiary maintains an equity investment (including those 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), but which is not a Subsidiary of the Borrower.
"JUDGMENT CURRENCY" shall have the meaning provided in Section
14.19(b).
"L/C MATURITY DATE" shall mean the date that is three Business Days
prior to the Revolving Credit Maturity Date.
"L/C PARTICIPANT" shall have the meaning provided in Section 3.3(a).
"L/C PARTICIPATION" shall have the meaning provided in Section 3.3(a).
"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 Sections 2.1(a), 2.1(b), 2.1(d) or 3.3, in
each case whether by reason of the provisions of the Financial Institutions
Reform, Recovery and Enforcement Act of 1989, as amended, or otherwise.
"LETTER OF CREDIT" shall have the meaning provided in Section 3.1(a).
"LETTER OF CREDIT COMMITMENT" shall mean $200,000,000, as the same may
be reduced from time to time pursuant to Section 3.1.
"LETTER OF CREDIT EXPOSURE" shall mean, with respect to any Lender, at
any time, the sum of (a) the amount of any Unpaid Drawings in respect of which
such Lender has made (or is required to have made) payments to the Letter of
Credit Issuer pursuant to Section 3.4(a) at such time and (b) such Lender's
Revolving Credit Commitment Percentage of the Letters of Credit Outstanding at
such time (excluding the portion thereof consisting of Unpaid Drawings in
respect of which the Lenders have made (or are required to have made) payments
to the Letter of Credit Issuer pursuant to Section 3.4(a)).
"LETTER OF CREDIT FEE" shall have the meaning provided in Section
4.1(b).
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"LETTER OF CREDIT ISSUER" shall mean (a) with respect to the Existing
Letters of Credit only, Deutsche Bank Trust Company Americas or any of its
Affiliates and (b) Citicorp USA, Inc., any of its Affiliates or any successor
pursuant to Section 3.6. The Letter of Credit Issuer may, in its discretion,
arrange for one or more Letters of Credit to be issued by Affiliates of the
Letter of Credit Issuer, and in each such case the term "Letter of Credit
Issuer" shall include any such Affiliate with respect to Letters of Credit
issued by such Affiliate. In the event that there is more than one Letter of
Credit Issuer at any time, references herein and in the other Credit Documents
to the Letter of Credit Issuer shall be deemed to refer to the Letter of Credit
Issuer in respect of the applicable Letter of Credit or to all Letter of Credit
Issuers, as the context requires.
"LETTERS OF CREDIT OUTSTANDING" shall mean, at any time, the sum of,
without duplication, (a) the aggregate Stated Amount of all outstanding Letters
of Credit and (b) the aggregate amount of all Unpaid Drawings in respect of all
Letters of Credit.
"LETTER OF CREDIT REQUEST" shall have the meaning provided in Section
3.2(a).
"LEVEL I STATUS" shall mean, on any date, the Consolidated Total Debt
to Consolidated EBITDA Ratio is greater than 3.50 to 1.00 as of such date.
"LEVEL II STATUS" shall mean, on any date, the Consolidated Total Debt
to Consolidated EBITDA Ratio is less than or equal to 3.50 to 1.00 as of such
date.
"LIBOR LOAN" shall mean any LIBOR Term Loan or LIBOR Revolving Credit
Loan.
"LIBOR RATE" shall mean, in the case of any LIBOR Term Loan or LIBOR
Revolving Credit Loan, with respect to each day during each Interest Period
pertaining to such LIBOR 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.
"LIBOR REVOLVING CREDIT LOAN" shall mean any Revolving Credit Loan
bearing interest at a rate determined by reference to the LIBOR Rate.
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"LIBOR TERM LOAN" shall mean any Term Loan bearing interest at a rate
determined by reference to the LIBOR Rate.
"LICENSE SUBSIDIARY" shall mean Intelsat North America LLC., a
Delaware limited liability company, and any other Wholly-Owned Subsidiary formed
for the purpose of holding Subject Licenses to be used by the Borrower or any of
its Restricted Subsidiaries in the operation of their respective businesses and
all of the shares of capital stock and other ownership interests of which are
held by a Guarantor.
"LIEN" shall mean any mortgage, pledge, security interest,
hypothecation, conditional or security assignment, lien (statutory or other) or
similar encumbrance (including any currently effective agreement to give any of
the foregoing, any conditional sale or other title retention agreement or any
lease in the nature thereof).
"LOAN" shall mean any Revolving Credit Loan, Swingline Loan, Term
Loan, Incremental Revolving Loan or Incremental Tranche B Term Loan made by any
Lender hereunder.
"LOCKHEED NOTE" shall mean the $20,000,000 note, dated November 25,
2002 from Intelsat Global Service Corporation to COMSAT Corporation.
"MANAGEMENT INVESTORS" shall mean directors and/or members of senior
management of Intelsat Holdings, Ltd. and any Subsidiaries of Intelsat Holdings,
Ltd., or any of their respective spouses, direct lineal descendants, heirs or
trusts for the benefit of any of the foregoing.
"MANDATORY BORROWING" shall have the meaning provided in Section
2.1(d).
"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 Holdings,
the Borrower and its Subsidiaries, taken as a whole or that would materially
adversely affect the ability of the Borrower and the other Credit Parties, taken
as a whole, to perform their 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
Holdings, the Borrower and the Subsidiaries, taken as a whole, that would
materially adversely affect (a) the ability of the Borrower and the other Credit
Parties, taken as a whole, to perform their 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)
each License Subsidiary, (2) each Guarantor under the Existing Credit Agreement
immediately prior to the Closing Date and (3) each Restricted Subsidiary of the
Borrower (a) whose total assets at the last day of the Test Period ending on the
last day of the most recent fiscal period for which Sec-
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tion 9.1 Financials have been delivered were equal to or greater than 5% of the
consolidated total assets of the Borrower and the Restricted Subsidiaries at
such date, (b) whose gross revenues for such Test Period were equal to or
greater than 5% of the consolidated gross revenues of the Borrower and the
Restricted Subsidiaries for such period, in each case determined in accordance
with GAAP or (c) who guarantees the Senior Notes or the Intelsat Bermuda Notes
or the Intelsat Bermuda Bridge Loan; PROVIDED that Intelsat General Corporation
and its Subsidiaries shall be deemed not to be a Material Subsidiary.
"MATURITY DATE" shall mean the Tranche B Term Loan Maturity Date or
the Revolving Credit Maturity Date.
"MEASUREMENT PERIOD" shall mean the period from April 1, 2006 to the
end of the Borrower's most recently ended fiscal quarter for which internal
financial statements are available.
"MINIMUM BORROWING AMOUNT" shall mean (a) with respect to a Borrowing
of Term Loans or Revolving Credit Loans, $1,000,000, and (b) with respect to a
Borrowing of Swingline Loans, $100,000.
"MINORITY INVESTMENT" shall mean any Person (other than a Subsidiary)
in which the Borrower or any Restricted Subsidiary owns capital stock or other
equity interests.
"MOODY'S" shall mean Xxxxx'x Investors Service, Inc. or any successor
by merger or consolidation to its business.
"MORTGAGE" shall mean a Mortgage, Assignment of Leases and Rents,
Security Agreement and Financing Statement or other security document entered
into by the owner of a Mortgaged Property and the Administrative Agent for the
benefit of the Secured Parties in respect of that Mortgaged Property, in form
and substance satisfactory to the Administrative Agent.
"MORTGAGED PROPERTY" shall mean each parcel of real property and
improvements thereto with respect to which a Mortgage is granted pursuant to
Section 9.15.
"NET CASH PROCEEDS" shall mean, with respect to any Prepayment Event,
(a) the gross cash proceeds (including payments from time to time in respect of
installment obligations, if applicable) received by or on behalf of the Borrower
or any of the Restricted Subsidiaries in respect of such Prepayment Event, less
(b) the sum of:
(i) in the case of any Prepayment Event, the amount, if any, of all
taxes paid or estimated to be payable by the Borrower or any of the
Restricted Subsidiaries in connection with or as a result of such
Prepayment Event,
(ii) in the case of any Prepayment Event, the amount of any reasonable
reserve (other than any taxes deducted pursuant to clause (i) above) and
only for a period not to exceed one year; PROVIDED that in the event such
amount of proceeds so reserved exceeds $500,000, the Borrower shall deliver
to the Lenders the certificate of an Author-
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ized Officer as to the reasonableness of such determination) established in
good faith against any liabilities (x) associated with the assets that are
the subject of such Prepayment Event and (y) retained by the Borrower or
any of the Restricted Subsidiaries, PROVIDED that the amount of any
subsequent reduction of such reserve (other than in connection with a
payment in respect of any such liability) shall be deemed to be Net Cash
Proceeds of such a Prepayment Event occurring on the date of such
reduction,
(iii) in the case of any Prepayment Event, the amount of any
Indebtedness secured by a Lien on the assets that are the subject of such
Prepayment Event to the extent that the instrument creating or evidencing
such Indebtedness or any agreement relating to such Prepayment Event
requires that such Indebtedness be repaid upon consummation of such
Prepayment Event and payments of liabilities relating to such assets which
are retained by the Borrower or any Restricted Subsidiary,
(iv) in the case of any Asset Sale Prepayment Event (other than a
transaction permitted by Section 10.4(e)(ii)), Casualty Event or Permitted
Sale Leaseback, the amount of any proceeds of such Prepayment Event that
the Borrower or any Subsidiary has reinvested (or intends to reinvest
within the Reinvestment Period or has entered into a binding commitment
prior to the last day of the Reinvestment Period to reinvest) in the
business of the Borrower or any of the Restricted Subsidiaries (subject to
Section 9.14), including by way of Permitted Acquisitions and by purchase
of Minority Investments or interests in Joint Ventures (subject to Section
10.5), PROVIDED that any portion of such proceeds that has not been so
reinvested within such Reinvestment Period shall, unless the Borrower or a
Subsidiary has entered into a binding commitment prior to the last day of
such Reinvestment Period to reinvest such proceeds, (x) be deemed to be Net
Cash Proceeds of an Asset Sale Prepayment Event, Casualty Event or
Permitted Sale Leaseback occurring on the last day of such Reinvestment
Period and (y) be applied to the repayment of Term Loans in accordance with
Section 5.2(a)(i); and
(v) in the case of any Prepayment Event, reasonable and customary
fees, commissions, expenses, issuance costs, discounts, premiums, consent
payments and redemption, tender offer, defeasance and other costs paid by
the Borrower or any of the Restricted Subsidiaries, as applicable, in
connection with such Prepayment Event (other than those payable to the
Borrower or any Subsidiary of the Borrower), in each case only to the
extent not already deducted in arriving at the amount referred to in clause
(a) above.
Net Cash Proceeds shall not include (i) any trade-in-credits or purchase price
reductions received by the Borrower or any of its Restricted Subsidiaries in
connection with an exchange of equipment for replacement equipment that is the
functional equivalent of such exchanged equipment, (ii) proceeds from business
interruption insurance, third party liability insurance, rent insurance and
other payments, in each case, for interruption of operations or (iii) the first
$100,000,000 in Net Cash Proceeds from Asset Sale Prepayment Events since the
Closing Date.
"NON-CONSENTING LENDER" shall have the meaning provided in Section
14.7(b).
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"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(a).
"NOTICE OF CONVERSION OR CONTINUATION" shall have the meaning provided
in Section 2.6(a).
"NOTICE OF INTENT TO CURE" shall have the meaning provided in Section
9.1(d).
"OBLIGATIONS" shall mean the collective reference to the "Obligations"
and/or "Secured Obligations" (or any terms of similar import) as defined in the
various Security Documents.
"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" shall mean PanAmSat Corporation.
"PANAMSAT HOLDCO" shall have the meaning provided in the recitals to
this Agreement.
"PARTICIPANT" shall have the meaning provided in Section 14.6(c)(i).
"PAYMENT OFFICE" shall mean the office of the Administrative Agent
located at 0 Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx 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.
"PERFECTION CERTIFICATE" shall mean a certificate of the Borrower in
the form of EXHIBIT E hereto or any other form approved by the Administrative
Agent.
"PERMITTED ACQUISITION" shall mean the acquisition, by merger or
otherwise, by the Borrower or any of the Restricted Subsidiaries of assets or
capital stock or other equity interests, so long as (a) such acquisition and all
transactions related thereto shall be consummated in accordance with applicable
law; (b) such acquisition shall result in the issuer of such capital stock or
other equity interests becoming a Restricted Subsidiary and a Subsidiary
Guarantor, to the extent required by Section 9.11; (c) such acquisition shall
result in the Administrative Agent, for the benefit of the applicable Lenders,
being granted a security interest in any capital stock or
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any assets so acquired, to the extent required by Sections 9.11, 9.12 and/or
9.15; (d) after giving effect to such acquisition, no Default or Event of
Default shall have occurred and be continuing; and (e) the Borrower shall be in
compliance, on a pro forma basis after giving effect to such acquisition
(including any Indebtedness assumed or permitted to exist or incurred pursuant
to Sections 10.1(A)(j) and 10.1(A)(k), respectively, and any related Pro Forma
Adjustment), with the covenant set forth in Section 11 (without giving effect to
any waiver pursuant to clause (a) thereto or any application of clause (b)
thereto and regardless of whether or not the Revolving Credit Commitment has
been terminated), as such covenants are recomputed as at the last day of the
most recently ended Test Period under such Section as if such acquisition had
occurred on the first day of such Test Period.
"PERMITTED ADDITIONAL NOTES" shall mean senior or senior subordinated
notes, issued by the Borrower, (a) the terms of which (i) do not provide for any
scheduled repayment, mandatory redemption or sinking fund obligation prior to
the date on which the final maturity of the 8 5/8% Senior Notes occurs (as in
effect on the Closing Date) (other than customary offers to purchase upon a
change of control, asset sale or event of loss and customary acceleration rights
after an event of default) and (ii) to the extent senior subordinated notes,
provide for customary subordination to the Obligations under the Credit
Documents, (b) the covenants, events of default, Subsidiary guarantees and other
terms of which (other than interest rate and redemption premiums), taken as a
whole, are not more restrictive to the Borrower and the Subsidiaries than those
in the Senior Notes Indenture and (c) of which no Subsidiary of the Borrower
(other than a Guarantor) is an obligor under such notes that is not an obligor
under the Senior Notes.
"PERMITTED BUSINESS" shall have the meaning provided in Section
9.14(a).
"PERMITTED EQUITY ISSUANCE" means any sale or issuance of any Equity
Interests of Holdings to the extent permitted hereunder.
"PERMITTED HOLDERS" shall mean the Sponsors and the Management
Investors.
"PERMITTED INVESTMENTS" shall mean:
(a) securities issued or unconditionally guaranteed by the United
States government or any agency or instrumentality thereof, in each case
having maturities of not more than 24 months from the date of acquisition
thereof;
(b) securities issued by any state of the United States of America or
any political subdivision of any such state or any public instrumentality
thereof or any political subdivision of any such state or any public
instrumentality thereof having maturities of not more than 24 months from
the date of acquisition thereof and, at the time of acquisition, having an
investment grade rating generally obtainable from either S&P or Moody's
(or, if at any time neither S&P nor Moody's shall be rating such
obligations, then from another nationally recognized rating service);
(c) commercial paper issued by any Lender or any bank holding company
owning any Lender;
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(d) commercial paper maturing no more than 12 months after the date of
creation thereof and, at the time of acquisition, having a rating of at
least A-2 or P-2 from either S&P or Moody's (or, if at any time neither S&P
nor Moody's shall be rating such obligations, an equivalent rating from
another nationally recognized rating service);
(e) domestic and LIBOR certificates of deposit or bankers' acceptances
maturing no more than two years after the date of acquisition thereof
issued by any Lender or any other bank having combined capital and surplus
of not less than $250,000,000 in the case of domestic banks and
$100,000,000 (or the Dollar Equivalent thereof) in the case of foreign
banks;
(f) repurchase agreements with a term of not more than 30 days for
underlying securities of the type described in clauses (a), (b) and (e)
above entered into with any bank meeting the qualifications specified in
clause (e) above or securities dealers of recognized national standing;
(g) marketable short-term money market and similar funds (x) either
having assets in excess of $250,000,000 or (y) having a rating of at least
A-2 or P-2 from either S&P or Moody's (or, if at any time neither S&P nor
Moody's shall be rating such obligations, an equivalent rating from another
nationally recognized rating service);
(h) shares of investment companies that are registered under the
Investment Company Act of 1940 and substantially all the investments of
which are one or more of the types of securities described in clauses (a)
through (g) above; and
(i) in the case of Investments by the Borrower or any Restricted
Foreign Subsidiary or Investments made in a country outside the United
States of America, other customarily utilized high-quality Investments in
the country where such Restricted Foreign Subsidiary is located or in which
such Investment is made.
"PERMITTED LIENS" shall mean:
(a) Liens for taxes, assessments or governmental charges or claims not
yet due or which are being contested in good faith and by appropriate
proceedings for which appropriate reserves have been established in
accordance with GAAP;
(b) Liens in respect of property or assets of the Borrower or any of
the Subsidiaries imposed by law, such as carriers', warehousemen's,
repairmen's, bankers', landlords' and mechanics' Liens and other similar
Liens, in each case so long as such Liens arise in the ordinary course of
business and do not individually or in the aggregate have a Material
Adverse Effect;
(c) Liens arising from judgments or decrees in circumstances not
constituting an Event of Default under Section 12.11;
(d) Liens incurred or deposits made in connection with workers'
compensation, unemployment insurance and other types of social security
legislation, or to secure
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the performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, performance and return-of-money bonds
and other similar obligations incurred in the ordinary course of business;
(e) ground leases in respect of real property on which facilities
owned or leased by the Borrower or any of its Subsidiaries are located;
(f) easements, rights-of-way, restrictions, minor defects or
irregularities in title, violations of zoning or other municipal
ordinances, and other similar charges or encumbrances not interfering in
any material respect with the business of the Borrower and its
Subsidiaries, taken as a whole;
(g) any interest or title of a lessor or secured by a lessor's
interest under any lease permitted by this Agreement;
(h) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(i) Liens on goods the purchase price of which is financed by a
documentary letter of credit issued for the account of the Borrower or any
of its Subsidiaries, PROVIDED that such Lien secures only the obligations
of the Borrower or such Subsidiaries in respect of such letter of credit to
the extent permitted under Section 10.1;
(j) licenses, sublicenses, leases or subleases granted to others not
interfering in any material respect with the business of the Borrower and
its Subsidiaries, taken as a whole;
(k) Liens on equipment of the Borrower or any Subsidiary granted in
the ordinary course of business to customers at whose premises such
equipment is located; and
(l) Liens created in the ordinary course of business in favor of banks
and other financial institutions over credit balances of any bank accounts
of the Borrower and the Restricted Subsidiaries held at such banks or
financial institutions, as the case may be, to facilitate the operation of
cash pooling and/or interest set-off arrangements in respect of such bank
accounts in the ordinary course of business.
"PERMITTED REFINANCING INDEBTEDNESS" shall mean any Indebtedness
issued in exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease or refund (collectively, to "REFINANCE"), the
Indebtedness being Refinanced (or previous refinancing thereof constituting
Permitted Refinancing Indebtedness); PROVIDED that (a) the principal amount (or
accreted value, if applicable) of such Permitted Refinancing Indebtedness does
not exceed the principal amount (or accreted value, if applicable) of the
Indebtedness so Refinanced (plus unpaid accrued interest and premium thereon),
(b) the weighted average life to maturity of such Permitted Refinancing
Indebtedness at the time such Refinancing Indebtedness is incurred or issued is
greater than or equal to the lesser of (i) the weighted average life to maturity
at such time of the Indebtedness being Refinanced and (ii) the weighted average
life to maturity that would result if all payments of principal on the
Indebtedness being refinanced that would have
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been due on or after the date that is 91 days following the Tranche B Term Loan
Maturity Date were instead due on such date 91 days following the Tranche B Term
Loan Maturity Date, (c) if the Indebtedness being Refinanced is subordinated in
right of payment to the Obligations, such Permitted Refinancing Indebtedness
shall be subordinated in right of payment to such Obligations on terms at least
as favorable to the Lenders as those contained in the documentation governing
the Indebtedness being Refinanced, (d) no Permitted Refinancing Indebtedness
shall have additional obligors, or greater guarantees or security, than the
Indebtedness being Refinanced, except to the extent otherwise permitted
hereunder and (e) if the Indebtedness being Refinanced is secured by any assets
securing the Obligations (whether equally and ratably with, or junior to, the
Secured Parties or otherwise), such Permitted Refinancing Indebtedness may be
secured only by such collateral on terms no less favorable to the Secured
Parties than those contained in the documentation governing the Indebtedness
being Refinanced; PROVIDED that Indebtedness incurred to refinance Indebtedness
outstanding under Sections 10.1(A)(f), (g), (h), (i), (s), (u), (v), (w) and (x)
shall be deemed to have been incurred and to be outstanding under such clauses
(f), (g), (h), (i), (s), (u), (v), (w) or (x), as applicable, and not Section
10.1(A)(y) for purposes of determining amounts outstanding under such Sections
10.1(A)(f), (g), (h), (i), (s), (u), (v), (w) and (x).
"PERMITTED SALE LEASEBACK" shall mean any Sale Leaseback consummated
by the Borrower or any of the Restricted Subsidiaries after the Closing Date,
PROVIDED that any such Sale Leaseback (other than any Sale Leaseback that is
between the Borrower and any Guarantor or any Guarantor and another Guarantor)
is consummated for fair value as determined at the time of consummation in good
faith by the Borrower and, in the case of any Sale Leaseback (or series of
related Sales Leasebacks) the aggregate proceeds of which exceed $20,000,000,
the board of directors of the Borrower (which such determination may take into
account any retained interest or other Investment of the Borrower or such
Restricted Subsidiary in connection with, and any other material economic terms
of, such Sale Leaseback).
"PERSON" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any Governmental Authority.
"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.
"PLATFORM" shall have the meaning provided in Section 14.17(b).
"PLEDGE AGREEMENTS" shall mean the Bermuda Pledge Agreement, the
German Pledge Agreement, the U.K. Pledge Agreement and the U.S. Pledge
Agreement.
"POST-CLOSING TRANSACTIONS" shall mean the G2 Acquisition and the
Global Service Employee Transfer.
"PRE-MERGER HOLDINGS" shall have the meaning provided in the
definition of the term "Holdings-Borrower Merger."
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"PREPAYMENT EVENT" shall mean any Asset Sale Prepayment Event, Debt
Incurrence Prepayment Event, Casualty Event or any Permitted Sale Leaseback, in
each case other than any of the Transactions; PROVIDED that with respect to the
Specified Sale Leaseback, only the Net Cash Proceeds in excess of $150,000,000
from such Prepayment Event shall constitute "Net Cash Proceeds" for purposes of
Section 5.2.
"PRIME RATE" shall mean the rate of interest PER ANNUM publicly
announced from time to time by the Administrative Agent as its reference rate in
effect at its principal office in New York City (the Prime Rate not being
intended to be the lowest rate of interest charged by Citibank, N.A. in
connection with extensions of credit to debtors).
"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.
"PRO FORMA ADJUSTMENT" shall mean, for any Test Period that includes
any of the six consecutive fiscal quarters first ending following any Permitted
Acquisition, with respect to the Acquired EBITDA of the applicable Acquired
Entity or Business or the Consolidated EBITDA of the Borrower affected by such
acquisition, the pro forma increase or decrease in such Acquired EBITDA or such
Consolidated EBITDA, as the case may be, projected by the Borrower in good faith
as a result of reasonably identifiable and factually supportable net cost
savings or additional net costs, as the case may be, realizable during such
period by combining the operations of such Acquired Entity or Business with the
operations of the Borrower and its Subsidiaries, PROVIDED that so long as such
net cost savings or additional net costs will be realizable at any time during
such six-quarter period, it may be assumed, for purposes of projecting such pro
forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA,
as the case may be, that such net cost savings or additional net costs will be
realizable during the entire such period; PROVIDED FURTHER that any such pro
forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA,
as the case may be, shall be without duplication for net cost savings or
additional net costs actually realized during such period and already included
in such Acquired EBITDA or such Consolidated EBITDA, as the case may be. Without
duplication of adjustments provided above, in case of any Permitted Acquisition
consummated after the first day of the relevant period being tested, the Pro
Forma Adjustment shall give effect to the termination or replacement of
operating leases with Capitalized Lease Obligations or other Indebtedness, and
to any replacement of Capitalized Lease Obligations or other Indebtedness with
operating leases, in each case effected at the time of the consummation of such
Permitted Acquisition or thereafter, in each case if effected after the first
day of the period being tested and prior to the date the respective
determination is being made, as if such termination or replacement had occurred
on the first day of the relevant period.
"PRO FORMA ADJUSTMENT CERTIFICATE" shall mean any certificate of an
Authorized Officer of the Borrower delivered pursuant to Section 9.1(h) or
setting forth the information described in clause (iv) to Section 9.1(d).
"PROXY AGREEMENT" shall have the meaning provided in Section 9.19.
"QUALIFIED IPO" shall mean an underwritten public offering of the
Voting Stock of Holdings or any other direct or indirect parent entity thereof
(i) after giving effect to which, at
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least 17.5% of the outstanding Voting Stock of Holdings or such parent is
publicly traded or (ii) resulting in gross proceeds in respect of the Voting
Stock of Holdings or such parent equal to or greater than $300,000,000.
"QUALIFIED PIK SECURITIES" shall mean (1) any preferred capital stock
or preferred equity interest of the Borrower (a) that does not provide for any
cash dividend payments or other cash distributions in respect thereof on or
prior to the Tranche B Term Loan Maturity Date and (b) that by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable or exercisable) or upon the happening of any event does not (i)(x)
mature or become mandatorily redeemable pursuant to a sinking fund obligation or
otherwise, (y) become convertible or exchangeable at the option of the holder
thereof for Indebtedness or preferred stock that is not Qualified PIK Securities
or (z) become redeemable at the option of the holder thereof (other than as a
result of a change of control), in whole or in part, in each case on or prior to
the 91st day following the Tranche B Term Loan Maturity Date and (ii) provide
holders thereunder with any rights to payment (directly or indirectly) upon the
occurrence of a "change of control" event prior to the repayment of the
Obligations under the Credit Documents and (2) any Indebtedness of the Borrower
which has payments terms at least as favorable to the Borrower and Lenders as
described in clauses (1)(a) and (b) above and is subordinated on customary terms
and conditions (including remedy standstills at all times prior to the Tranche B
Term Loan Maturity Date) and has other terms, other than with respect to
interest rates, at least as favorable to the Borrower and Lenders as the Senior
Notes, taken as a whole.
"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 Indebtedness outstanding under this Agreement shall not be
deemed a Qualified Receivables Financing.
"REAL ESTATE" shall have the meaning provided in Section 9.1(f).
"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 Restricted Subsidiaries), and (b) any other
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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 Restricted 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 transferred or in respect of which security
interests are customarily granted in connection with asset securitization
transactions involving accounts receivable and any obligations under Hedge
Agreements entered into by the Borrower or any such Restricted 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 Restricted
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.
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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.
"REFERENCE LENDER" shall mean Citibank, N.A.
"REGISTER" shall have the meaning provided in Section 14.6(b)(iv).
"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.
"REINVESTMENT PERIOD" shall mean the period from the date of the
applicable Prepayment Event until the earlier of (a) 10 Business Days prior to
the occurrence of an obligation to make an offer to repurchase Senior Notes (or
any Permitted Additional Notes) pursuant to the asset sale or event of loss
provisions of any of the Senior Note Indentures and (b) 15 months following the
date of such Prepayment Event.
"RELATED PARTIES" shall mean, with respect to any specified Person,
such Person's Affiliates and the directors, officers, employees, agents,
trustees, advisors of such Person and any Person that possesses, directly or
indirectly, the power to direct or cause the direction of the management or
policies of such Person, whether through the ability to exercise voting power,
by contract or otherwise.
"REPAYMENT AMOUNT" shall have the meaning provided in Section 2.5(c).
"REPAYMENT DATE" shall have the meaning provided in Section 2.5(c).
"REPLACEMENT HOLDINGS" shall have the meaning provided in the
definition of the term "Holdings-Borrower Merger."
"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 sum of (i) the Adjusted Total Revolving
Credit Commitment at such date, and (ii) the outstanding principal amount of the
Term Loans (excluding Term Loans held by Defaulting Lenders) at such date or (b)
if the Total Revolving Credit Commitment and the
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Total Term Loan Commitment have been terminated or for the purposes of
acceleration pursuant to Section 12, the holders (excluding Defaulting Lenders)
of a majority of the outstanding principal amount of the Loans and Letter of
Credit Exposures (excluding the Loans and Letter of Credit Exposure of
Defaulting Lenders) in the aggregate at such date.
"REQUIRED TRANCHE B TERM LOAN LENDERS" shall mean, at any date,
Non-Defaulting Lenders having or holding a majority of the sum of (a) the
portion of the Adjusted Total Term Loan Commitment that relates to Tranche B
Term Loan Commitments at such date and (b) the outstanding principal amount of
the Tranche B Term Loans (excluding Tranche B Term Loans held by Defaulting
Lenders) in the aggregate 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.
"REQUISITE REVOLVING CREDIT LENDERS" shall mean, at any date, (a)
Non-Defaulting Lenders having or holding a majority of the Adjusted Total
Revolving Credit Commitment at such date or (b) if the Total Revolving Credit
Commitment has been terminated or for the purposes of acceleration pursuant to
Section 12, the holders (excluding Defaulting Lenders) of a majority of the
outstanding principal amount of the Revolving Credit Loans and Letter of Credit
Exposures (excluding the Revolving Credit Loans and Letter of Credit Exposure of
Defaulting Lenders) in the aggregate at such date.
"RESTRICTED FOREIGN SUBSIDIARY" shall mean a Foreign Subsidiary that
is a Restricted Subsidiary.
"RESTRICTED SUBSIDIARY" shall mean any Subsidiary of the Borrower
other than an Unrestricted Subsidiary; PROVIDED that in any event each License
Subsidiary and each Receivables Subsidiary shall be a Restricted Subsidiary.
"REVOLVING CREDIT COMMITMENT" shall mean, (a) in the case of each
Lender that is a Lender on the Closing Date, the amount set forth opposite such
Lender's name on Annex I as such Lender's "Revolving Credit Commitment" and (b)
in the case of any Lender that is not covered by clause (a) of this definition
and becomes a Lender on or after the Closing Date, the amount specified as such
Lender's "Revolving Credit Commitment" in the Assignment and Acceptance pursuant
to which such Lender assumed a portion of the Total Revolving Credit Commitment,
as the case may be, in each case as the same may be changed from time to time
pursuant to the terms hereof. The aggregate amount of the Revolving Credit
Commitment as of the Closing Date is $300,000,000.
"REVOLVING CREDIT COMMITMENT PERCENTAGE" shall mean, at any time, for
each Lender, the percentage obtained by dividing (a) such Lender's Revolving
Credit Commitment by (b) the aggregate amount of the Revolving Credit
Commitments, PROVIDED that at any time when the Total Revolving Credit
Commitment shall have been terminated, each Lender's Revolving
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Credit Commitment Percentage shall be its Revolving Credit Commitment Percentage
as in effect immediately prior to such termination.
"REVOLVING CREDIT EXPOSURE" shall mean, with respect to any Lender at
any time, the sum of (a) the aggregate principal amount of the Revolving Credit
Loans of such Lender then outstanding, (b) such Lender's Letter of Credit
Exposure at such time and (c) such Lender's Revolving Credit Commitment
Percentage of the aggregate principal amount of all outstanding Swingline Loans.
"REVOLVING CREDIT LOANS" shall have the meaning provided in Section
2.1(b).
"REVOLVING CREDIT MATURITY DATE" shall mean the date that is six years
after the Closing Date or, if such date is not a Business Day, the next
preceding Business Day.
"SALE LEASEBACK" shall mean any transaction or series of related
transactions pursuant to which the Borrower or any of the Restricted
Subsidiaries (a) sells, transfers or otherwise disposes of any property, real or
personal, whether now owned or hereafter acquired, and (b) as part of such
transaction, thereafter rents or leases such property or other property that it
intends to use for substantially the same purpose or purposes as the property
being sold, transferred or disposed.
"SATELLITE" shall mean any satellite owned by, or leased to, 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 HEALTH REPORT" shall mean a satellite health report,
prepared by the Borrower and certified by an Authorized Officer, in the form of
Exhibit O (appropriately completed).
"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 or Launch Services Agreement,
as the case may be.
"S&P" shall mean Standard & Poor's Ratings Services or any successor
by merger or consolidation to its business.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
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"SECTION 9.1 FINANCIALS" shall mean the financial statements
delivered, or required to be delivered, pursuant to Section 9.1(a) or (b)
together with the accompanying officer's certificate delivered, or required to
be delivered, pursuant to Section 9.1(d).
"SECURED PARTIES" shall have the meaning assigned to such term in the
applicable Security Documents (or, in the case of the German Pledge Agreement,
the U.K. Pledge Agreement and the U.K. Security Agreement, the meaning assigned
to the term "Secured Creditors", or any term of similar import in any other
Security Document), or, where the context so requires, shall be the collective
reference to all such Persons.
"SECURITY AGREEMENTS" shall mean the Bermuda Security Agreement, the
U.K. Security Agreement and the U.S. Security Agreement.
"SECURITY DOCUMENTS" shall mean, collectively, (a) the Guarantee, (b)
the Pledge Agreements, (c) the Security Agreements, (d) the Mortgages and (e)
each other security agreement or other instrument or document executed and
delivered pursuant to Section 9.11 or 9.12 or pursuant to any of the Security
Documents to secure any of the Obligations.
"SENIOR NOTE INDENTURE" shall mean the Indenture, dated as of January
28, 2005, initially among the Borrower (as successor to Intelsat Bermuda) and
Xxxxx Fargo Bank, National Association, as Trustee, relating to the 8 1/4%
Senior Notes, the 8 5/8% Senior Notes and the Borrower Floating Rate Notes, as
the same may be amended, supplemented or otherwise modified from time to time in
accordance with the terms hereof.
"SENIOR NOTES" shall mean the 8 1/4% Senior Notes, the 8 5/8% Senior
Notes and the Borrower Floating Rate Notes.
"SERIES" shall have the meaning as provided in Section 2.14.
"SOLD ENTITY OR BUSINESS" shall have the meaning provided in the
definition of the term "Consolidated EBITDA."
"SOLVENT" shall mean, with respect to Holdings or the Borrower, as
applicable, that as of any date of determination, both (i) (a) the sum of
Holdings' or the Borrower's (as applicable) respective debt (including
contingent liabilities) does not exceed the present fair saleable value of
Holdings' and the Borrower's respective present assets; (b) Holdings' or the
Borrower's (as applicable) respective capital is not unreasonably small in
relation to its respective businesses as contemplated on the Closing Date; and
(c) Holdings or the Borrower, as applicable, 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) Holdings or the Borrower (as applicable) 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 SALE LEASEBACK" shall mean one Permitted Sale Leaseback of
a Satellite designated by the Borrower in a certificate of an Authorized
Officer.
"SPECIFIED SUBSIDIARY" shall mean, at any date of determination, (a)
any Material Subsidiary or (b) any Unrestricted Subsidiary (i) whose total
assets at the last day of the Test Period ending on the last day of the most
recent fiscal period for which Section 9.1 Financials have been delivered were
equal to or greater than 10% of the consolidated total assets of the Borrower
and the Subsidiaries at such date, (ii) whose gross revenues for such Test
Period were equal to or greater than 10% of the consolidated gross revenues of
Holdings, the Borrower and the Subsidiaries for such period, in each case
determined in accordance with GAAP and (c) each other Subsidiary that is the
subject of a case, proceeding or action of the type described in Section 12.5
and that, when combined with any other Subsidiary that is the subject of a case,
proceeding or action of the type described in Section 12.5 would constitute a
Specified Subsidiary under clause (a) or (b) above.
"SPONSOR" shall mean any of (i) one or more investment funds advised,
managed or controlled by Apax Partners Worldwide, LLP and Apax Partners, L.P.,
(ii) one or more investment funds advised, managed or controlled by Apollo
Management V, L.P., (iii) one or more investment funds advised, managed or
controlled by Madison Dearborn Partners, LLC and (iv) 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 AMOUNT" shall mean, as to any Letter of Credit, (i) if the
Letter of Credit is denominated in Dollars, the maximum amount from time to time
available to be drawn thereunder at such time, determined without regard to
whether any conditions to drawing could then be met and (ii) if the Letter of
Credit is denominated in Euros, the Dollar Equivalent of the maximum amount from
time to time available to be drawn thereunder at such time, determined without
regard to whether any conditions to drawing could then be met.
"STATUS" shall mean, as to the Borrower as of any date, the existence
of Level I Status or Level II Status, as the case may be on such date. Changes
in Status resulting from changes in the Consolidated Total Debt to Consolidated
EBITDA Ratio shall become effective (the date of such effectiveness, the
"EFFECTIVE DATE") as of the first day following the day (a) Section 9.1
Financials are delivered to the Lenders under Section 9.1 and (b) an officer's
certificate is delivered by the Borrower to the Lenders setting forth, with
respect to such Section 9.1 Financials, the then-applicable Status, and shall
remain in effect until the next change to be effected pursuant to this
definition; PROVIDED that each determination of the Consolidated Total Debt to
Consolidated EBITDA Ratio pursuant to this definition shall be made with respect
to the Test Period ending at the end of the fiscal period covered by the
relevant financial statements.
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"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 comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"SUBJECT LICENSES" shall mean all 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).
"SUBORDINATED INDEBTEDNESS" shall mean Indebtedness of the Borrower or
any Guarantor that is by its terms subordinated in right of payment to the
obligations of the Borrower and such Guarantor, as applicable, under this
Agreement.
"SUBSIDIARY" of any Person shall mean and include (a) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (b) any partnership, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries has more than a 50% equity interest at the time. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of the Borrower (or, if the context so requires, Holdings).
"SUBSIDIARY GUARANTEE" shall mean the Guarantee, made by each
Subsidiary Guarantor in favor of the Administrative Agent for the benefit of the
Secured Parties, substantially in the form of Exhibit C 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 (a) each Subsidiary that is a
guarantor under the Existing Credit Agreement or related guarantee (other than
an Unrestricted Subsidiary) immediately prior to the Closing Date, (b) Intelsat
North America LLC and (c) each Subsidiary that becomes a party to the Guarantee
after the Closing Date pursuant to Section 9.11; PROVIDED that, notwithstanding
anything to the contrary, no Receivables Subsidiary shall be a Subsidiary
Guarantor.
"SUCCESSOR BORROWER" shall have the meaning provided in Section
10.3(a).
"SUPPLEMENTAL SECURITY AGREEMENT" means, (i) with respect to a Person
organized under the laws of Bermuda, a supplement to the Bermuda Security
Agreement in form substance
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acceptable to the Administrative Agent and , (ii) with respect to a Person
organized under the laws of England and Wales, a debenture substantially in the
form of Exhibit F-3 hereto, (iii) in the case of a person organized under the
laws of the United States or any subdivision or possession thereof, a supplement
to the U.S. Security Agreement substantially in the form of Annex B thereto, and
(iv) in the case of any other person, a security agreement in form and substance
satisfactory to the Administrative Agent, which shall in its scope be
substantially similar to the scope of the U.S. Security Agreement (to the extent
practicable), with such modifications as may be necessary in light of local
legal considerations; or, in each case, such other security agreement or
supplemental security agreement as may be satisfactory in form and substance to
the Administrative Agent.
"SWINGLINE COMMITMENT" shall mean $35,000,000.
"SWINGLINE LENDER" shall mean Citicorp USA, Inc. in its capacity as
lender of Swingline Loans hereunder.
"SWINGLINE LOANS" shall have the meaning provided in Section 2.1(c).
"SWINGLINE MATURITY DATE" shall mean, with respect to any Swingline
Loan, the date that is five Business Days prior to the Revolving Credit Maturity
Date.
"SYNDICATION AGENT" shall mean Credit Suisse together with its
affiliates under this Agreement and the other Credit Documents.
"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.
"TERM LOAN COMMITMENT" shall mean, with respect to each Lender, such
Lender's Tranche B Term Loan Commitment.
"TERM LOANS" shall mean the Tranche B Term Loans.
"TEST PERIOD" shall mean, for any determination under this Agreement,
the four consecutive fiscal quarters of the Borrower then last ended.
"TOTAL COMMITMENT" shall mean the sum of the Total Term Loan
Commitment and the Total Revolving Credit Commitment.
"TOTAL CREDIT EXPOSURE" shall mean, at any date, the sum of (a) the
Total Revolving Credit Commitment at such date, (b) the unfunded portion of the
Total Term Loan Commitment at such date and (c) the outstanding principal amount
of all Term Loans at such date.
"TOTAL REVOLVING CREDIT COMMITMENT" shall mean the sum of the
Revolving Credit Commitments of all the Lenders.
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"TOTAL TERM LOAN COMMITMENT" shall mean the sum of the Tranche B
Commitments and Incremental Tranche B Term Loan Commitments, if applicable, of
all the Lenders.
"TRANCHE B TERM LOAN" shall have the meaning provided in Section 2.1.
"TRANCHE B TERM LOAN COMMITMENT" shall mean, (a) in the case of each
Lender that is a Lender on the Closing Date, the amount set forth opposite such
Lender's name on Annex I as such Lender's "Tranche B Term Loan Commitment" and
(b) in the case of any Lender that is not covered by clause (a) of this
definition and becomes a Lender after the Closing Date, the amount specified as
such Lender's "Tranche B Term Loan Commitment" in the Assignment and Acceptance
pursuant to which such Lender renewed a portion of the Tranche B Commitment, as
the case may be, in each case as the same may be changed from time to time
pursuant to the terms hereof. The aggregate amount of the Tranche B Commitments
as of the Closing Date is $344,750,000.
"TRANCHE B TERM LOAN LENDER" shall mean a Lender with a Tranche B Term
Loan Commitment or an outstanding Tranche B Term Loan.
"TRANCHE B TERM LOAN MATURITY DATE" shall mean the date that is seven
years after the Closing Date or, if such date is not a Business Day, the first
Business Day thereafter.
"TRANSACTION EXPENSES" shall mean any fees or expenses incurred or
paid by the Borrower or any of its Subsidiaries in connection with the
Post-Closing Transactions, the Acquisition and the transactions related thereto,
the Bermuda Debt Offerings, this Agreement and the other Credit Documents and
the transactions contemplated hereby and thereby.
"TRANSACTIONS" shall mean, collectively, the transactions contemplated
by this Agreement, the Acquisition and the transactions related thereto, the
Bermuda Debt Offerings and the Post-Closing Transactions.
"TRANSFEREE" shall have the meaning provided in Section 14.6(e).
"TT&C STATION" shall mean an earth station operated by the Borrower or
any of its Restricted Subsidiaries for the purpose of providing tracking,
telemetry, control and monitoring of any Satellite.
"TYPE" shall mean, (a) as to any Term Loan, its nature as an ABR Loan
or a LIBOR Term Loan and (b) as to any Revolving Credit Loan, its nature as an
ABR Loan or a LIBOR Revolving Credit Loan.
"U.K. PLEDGE AGREEMENT" shall mean, collectively, the share charges,
dated as of the date hereof, entered into by the grantors party thereto and the
Administrative Agent for the benefit of the Secured Parties, substantially in
the form of EXHIBIT F-3 hereto, and any future share charges required pursuant
to Section 9.12(a), in each case as the same may be amended, supplemented or
otherwise modified from time to time.
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"U.K. SECURITY AGREEMENT" shall mean, collectively, the debentures,
dated as of the date hereof, entered into by the grantors party thereto and the
Administrative Agent for the benefit of the Secured Parties, substantially in
the form of EXHIBIT G-3 hereto, and any future debentures required pursuant to
Section 9.11, in each case as the same may be amended, supplemented or otherwise
modified from time to time.
"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.
"UNPAID DRAWING" shall have the meaning provided in Section 3.4(a).
"UNRESTRICTED SUBSIDIARY" shall mean (a) any Subsidiary of the
Borrower that is formed or acquired after the Closing Date, PROVIDED that at
such time (or promptly thereafter) the Borrower designates such Subsidiary an
Unrestricted Subsidiary in a written notice to the Administrative Agent, (b) any
Restricted Subsidiary subsequently re-designated as an Unrestricted Subsidiary
by the Borrower in a written notice to the Administrative Agent, PROVIDED that
in the case of (a) and (b), (x) such designation or re-designation shall be
deemed to be an Investment on the date of such designation or re-designation in
an Unrestricted Subsidiary in an amount equal to the sum of (i) the Borrower's
direct or indirect equity ownership percentage of the net worth of such
designated or re-designated Restricted Subsidiary immediately prior to such
designation or re-designation (such net worth to be calculated without regard to
any guarantee provided by such designated or re-designated Restricted
Subsidiary) and (ii) the aggregate principal amount of any Indebtedness owed by
such designated or re-designated Restricted Subsidiary to the Borrower or any
other Restricted Subsidiary immediately prior to such designation or
re-designation, all calculated, except as set forth in the parenthetical to
clause (i), on a consolidated basis in accordance with GAAP and (y) no Default
or Event of Default would result from such designation or re-designation and (c)
each Subsidiary of an Unrestricted Subsidiary; PROVIDED, HOWEVER, that at the
time of any written designation or re-designation by the Borrower to the
Administrative Agent that any Unrestricted Subsidiary shall no longer constitute
an Unrestricted Subsidiary, such Unrestricted Subsidiary shall cease to be an
Unrestricted Subsidiary to the extent no Default or Event of Default would
result from such designation or re-designation. On or promptly after the date of
its formation, acquisition, designation or re-designation, as applicable, each
Unrestricted Subsidiary shall have entered into a tax sharing agreement
containing terms that, in the reasonable judgment of the Administrative Agent,
provide for an appropriate allocation of tax liabilities and benefits.
"U.S. PLEDGE AGREEMENT" means the Pledge Agreement, dated as of the
date hereof, entered into by the pledgors party thereto and the Administrative
Agent for the benefit of the Secured Parties, substantially in the form of
Exhibit F-4 hereto, as the same may be amended, supplemented or otherwise
modified from time to time.
"U.S. SECURITY AGREEMENT" means the Security Agreement, dated as of
the date hereof, entered into by the grantors party thereto and the
Administrative Agent for the benefit of
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the Secured Parties, substantially in the form of Exhibit G-4 hereto, as the
same may be amended, supplemented or otherwise modified from time to time.
"VOTING STOCK" shall mean, with respect to any Person, shares of such
Person's capital stock having the right to vote for the election of directors of
such Person under ordinary circumstances.
"WAIVABLE MANDATORY REPAYMENT" shall have the meaning provided in
Section 5.2(i).
"WHOLLY OWNED SUBSIDIARY" of any Person means 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.
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.
1.2. EXCHANGE RATES. For purposes of determining compliance under
Sections 10.4, 10.5, 10.6 and 11 with respect to any amount in a Foreign
Currency, such amount shall be deemed to equal the Dollar Equivalent thereof
based on the average Exchange Rate for a Foreign Currency for the most recent
twelve-month period immediately prior to the date of determination determined in
a manner consistent with that used in calculating Consolidated EBITDA for the
related period. For purposes of determining compliance with Sections 10.1 and
10.2, with respect to any amount of Indebtedness in a Foreign Currency,
compliance will be determined at the time of incurrence thereof using the Dollar
Equivalent thereof at the Exchange Rate in effect at the time of such
incurrence.
SECTION 2. AMOUNT AND TERMS OF CREDIT.
2.1. COMMITMENTS.
(a) Subject to and upon the terms and conditions herein set forth,
(i) [INTENTIONALLY OMITTED]
(ii) each Lender having a Tranche B Commitment severally agrees to
make a loan or loans (each a "TRANCHE B TERM LOAN") on the Closing Date to
the Borrower in Dollars, which Tranche B Term Loans shall not exceed for
any such Lender the Tranche B Term Loan Commitment of such Lender and in
the aggregate shall not exceed $344,750,000.
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Such Term Loans (i) shall be made on the Closing Date, (ii) may at the
option of the Borrower be incurred and maintained as, and/or converted into, ABR
Loans or LIBOR Term Loans, PROVIDED that all such Term Loans made by each of the
Lenders pursuant to the same Borrowing shall, unless otherwise specifically
provided herein, consist entirely of Term Loans of the same Type, (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
Tranche B Term Loan Commitment of such Lender and (v) shall not exceed in the
aggregate the total of all Tranche B Term Loan Commitments. On the Tranche B
Term Loan Maturity Date, all then unpaid Tranche B Term Loans shall be repaid in
full.
(b) (i) Subject to and upon the terms and conditions herein set forth,
each Lender having a Revolving Credit Commitment severally agrees to make a loan
or loans denominated in Dollars (each a "REVOLVING CREDIT LOAN" and,
collectively, the "REVOLVING CREDIT LOANS") to the Borrower which Revolving
Credit Loans (A) shall be made at any time and from time to time on and after
the Closing Date and prior to the Revolving Credit Maturity Date, (B) may, at
the option of the Borrower be incurred and maintained as, and/or converted into,
ABR Loans or LIBOR Revolving Credit Loans, PROVIDED that all Revolving Credit
Loans made by each of the Lenders pursuant to the same Borrowing shall, unless
otherwise specifically provided herein, consist entirely of Revolving Credit
Loans of the same Type, (C) may be repaid and reborrowed in accordance with the
provisions hereof, (D) shall not, for any such Lender at any time, after giving
effect thereto and to the application of the proceeds thereof, result in such
Lender's Revolving Credit Exposure at such time exceeding such Lender's
Revolving Credit Commitment at such time and (E) shall not, after giving effect
thereto and to the application of the proceeds thereof, result at any time in
the aggregate amount of the Lenders' Revolving Credit Exposures at such time
exceeding the Total Revolving Credit Commitment then in effect; PROVIDED that no
Revolving Credit Loans shall be made to Borrower on any day if, after giving
effect thereto and any issuances of Letters of Credit and other borrowings of
Revolving Loans and Swingline Loans on such day, the Intelsat Ltd. Notes
Condition is not satisfied.
(ii) Each Lender may at its option make any LIBOR Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan,
PROVIDED that (A) any exercise of such option shall not affect the obligation of
the Borrower to repay such Loan and (B) in exercising such option, such Lender
shall use its reasonable efforts to minimize any increased costs to the Borrower
resulting therefrom (which obligation of the Lender shall not require it to
take, or refrain from taking, actions that it determines would result in
increased costs for which it will not be compensated hereunder or that it
determines would be otherwise disadvantageous to it and in the event of such
request for costs for which compensation is provided under this Agreement, the
provisions of Section 3.5 shall apply). On the Revolving Credit Maturity Date,
all Revolving Credit Loans shall be repaid in full.
(c) Subject to and upon the terms and conditions herein set forth, the
Swingline Lender in its individual capacity agrees, at any time and from time to
time on and after the Closing Date and prior to the Swingline Maturity Date, to
make a loan or loans (each a "SWINGLINE LOAN" and, collectively, the "SWINGLINE
LOANS") to the Borrower in Dollars, which Swingline Loans (i) shall be ABR
Loans, (ii) shall have the benefit of the provisions of Section 2.1(d), (iii)
shall not exceed at any time outstanding the Swingline Commitment, (iv) shall
not,
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after giving effect thereto and to the application of the proceeds thereof,
result at any time in the aggregate amount of the Lenders' Revolving Credit
Exposures at such time exceeding the Total Revolving Credit Commitment then in
effect and (v) may be repaid and reborrowed in accordance with the provisions
hereof; PROVIDED that no Swingline Loans shall be made to the Borrower on any
day if, after giving effect thereto and any issuances of Letters of Credit and
other borrowings of Revolving Loans and Swingline Loans on such day, the
Intelsat Ltd. Notes Condition is not satisfied. On the Swingline Maturity Date,
each outstanding Swingline Loan shall be repaid in full. The Swingline Lender
shall not make any Swingline Loan after receiving a written notice from the
Borrower or any Lender stating that a Default or Event of Default exists and is
continuing until such time as the Swingline Lender shall have received written
notice of (i) rescission of all such notices from the party or parties
originally delivering such notice or (ii) the waiver of such Default or Event of
Default in accordance with the provisions of Section 14.1.
(d) On any Business Day, the Swingline Lender may, in its sole
discretion, give notice to the Lenders with a Revolving Credit Commitment that
all then-outstanding Swingline Loans shall be funded with a Borrowing of
Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR
Loans (each such Borrowing, a "MANDATORY BORROWING") shall be made on the
immediately succeeding Business Day by all Lenders with a Revolving Credit
Commitment PRO RATA based on each Lender's Revolving Credit Commitment
Percentage, and the proceeds thereof shall be applied directly to the Swingline
Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each
Lender with a Revolving Credit Commitment hereby irrevocably agrees to make such
Revolving Credit Loans upon one Business Day's notice pursuant to each Mandatory
Borrowing in the amount and in the manner specified in the preceding sentence
and on the date specified to it in writing by the Swingline Lender
notwithstanding (i) that the amount of the Mandatory Borrowing may not comply
with the minimum amount for each Borrowing specified in Section 2.2, (ii)
whether any conditions specified in Section 7 are then satisfied, (iii) whether
a Default or an Event of Default has occurred and is continuing, (iv) the date
of such Mandatory Borrowing or (v) any reduction in the Total Commitment after
any such Swingline Loans were made. In the event that, in the sole judgment of
the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on
the date otherwise required above (including as a result of the commencement of
a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender
with a Revolving Credit Commitment hereby agrees that it shall forthwith
purchase from the Swingline Lender (without recourse or warranty) such
participation of the outstanding Swingline Loans as shall be necessary to cause
the Lenders to share in such Swingline Loans ratably based upon their respective
Revolving Credit Commitment Percentages, PROVIDED that all principal and
interest payable on such Swingline Loans shall be for the account of the
Swingline Lender until the date the respective participation is purchased and,
to the extent attributable to the purchased participation, shall be payable to
the Lender purchasing same from and after such date of purchase.
2.2. MINIMUM AMOUNT OF EACH BORROWING; MAXIMUM NUMBER OF BORROWINGS.
The aggregate principal amount of each Borrowing of Term Loans or Revolving
Credit Loans shall be in a multiple of $1,000,000 and Swingline Loans shall be
in a multiple of $10,000 and, in each case, shall not be less than the Minimum
Borrowing Amount with respect thereto (except that Mandatory Borrowings shall be
made in the amounts required by Section 2.1(d)).
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More than one Borrowing may be incurred on any date, PROVIDED that at no time
shall there be outstanding more than twelve (12) Borrowings of LIBOR Loans under
this Agreement.
2.3. NOTICE OF BORROWING.
(a) The Borrower shall give the Administrative Agent at the
Administrative Agent's Office (i) prior to 12:00 Noon (New York City time) at
least three Business Days' prior written notice (or telephonic notice promptly
confirmed in writing) of the Borrowing of Term Loans if all or any of such Term
Loans are to be initially LIBOR Loans, and (ii) prior written notice (or
telephonic notice promptly confirmed in writing) prior to 10:00 a.m. (New York
City time) on the date of the Borrowing of Term Loans if all such Term Loans are
to be ABR Loans. Such notice (together with each notice of a Borrowing of
Revolving Credit Loans pursuant to Section 2.3(b) and each notice of a Borrowing
of Swingline Loans pursuant to Section 2.3(c), a "NOTICE OF BORROWING") shall be
irrevocable and shall specify (i) the aggregate principal amount of the Term
Loans to be made, (ii) the date of the Borrowing (which shall be the Closing
Date) and (iii) whether the Term Loans shall consist of ABR Loans and/or LIBOR
Term Loans and, if the Term Loans are to include LIBOR Term Loans, the Interest
Period to be initially applicable thereto. In any such Notice of Borrowing
relating to a Borrowing of Incremental Tranche B Term Loans, Borrower shall also
certify that the Intelsat Ltd. Notes Condition has been satisfied. The
Administrative Agent shall promptly give each Lender written notice (or
telephonic notice promptly confirmed in writing) of the proposed Borrowing of
Term Loans, of such Lender's proportionate share thereof and of the other
matters covered by the related Notice of Borrowing.
(b) Whenever the Borrower desires to incur Revolving Credit Loans
(other than Mandatory Borrowings or borrowings to repay Unpaid Drawings), it
shall give the Administrative Agent at the Administrative Agent's Office, (i)
prior to 12:00 Noon (New York City Time) at least three Business Days' prior
written notice (or telephonic notice promptly confirmed in writing) of each
Borrowing of LIBOR Revolving Credit Loans, and (ii) prior to 12:00 Noon (New
York City time) at least one Business Day's prior written notice (or telephonic
notice promptly confirmed in writing) of each Borrowing of ABR Loans. Each such
Notice of Borrowing, except as otherwise expressly provided in Section 2.10,
shall be irrevocable and shall specify (i) the aggregate principal amount of the
Revolving Credit Loans to be made pursuant to such Borrowing, (ii) the date of
Borrowing (which shall be a Business Day) and (iii) whether the respective
Borrowing shall consist of ABR Loans or LIBOR Revolving Credit Loans and, if
LIBOR Revolving Credit Loans, the Interest Period to be initially applicable
thereto. In each such Notice of Borrowing, Borrower shall also certify that the
Intelsat Ltd. Notes Condition has been satisfied. The Administrative Agent shall
promptly give each Lender written notice (or telephonic notice promptly
confirmed in writing) of each proposed Borrowing of Revolving Credit Loans, of
such Lender's proportionate share thereof and of the other matters covered by
the related Notice of Borrowing.
(c) Whenever the Borrower desires to incur Swingline Loans hereunder,
it shall give the Administrative Agent written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing of Swingline Loans prior to
2:30 p.m. (New York City time) on the date of such Borrowing. Each such notice
shall be irrevocable and shall specify (i) the aggregate principal amount of the
Swingline Loans to be made pursuant to such Borrowing and (ii) the date
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of Borrowing (which shall be a Business Day). In each such Notice of Borrowing,
Borrower shall also certify that the Intelsat Ltd. Notes Condition has been
satisfied. The Administrative Agent shall promptly give the Swingline Lender
written notice (or telephonic notice promptly confirmed in writing) of each
proposed Borrowing of Swingline Loans and of the other matters covered by the
related Notice of Borrowing.
(d) Mandatory Borrowings shall be made upon the notice specified in
Section 2.1(d), with the Borrower irrevocably agreeing, by its incurrence of any
Swingline Loan, to the making of Mandatory Borrowings as set forth in such
Section.
(e) Borrowings to reimburse Unpaid Drawings shall be made upon the
notice specified in Section 3.4(a).
(f) 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) No later than 12:00 Noon (New York City time) on the date
specified in each Notice of Borrowing (including Mandatory Borrowings), each
Lender will make available its PRO RATA portion, if any, of each Borrowing
requested to be made on such date in the manner provided below, provided that
all Swingline Loans shall be made available in the full amount thereof by the
Swingline Lender no later than 3:00 p.m. (New York City time) on the date
requested.
(b) Each Lender shall make available all amounts it is to fund to the
Borrower under any Borrowing for its applicable Commitments, and in immediately
available funds to the Administrative Agent at the Administrative Agent's Office
and the Administrative Agent will (except in the case of Mandatory Borrowings
and Borrowings to repay Unpaid Drawings) 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 date of any such
Borrowing that such Lender does not intend to make available to the
Administrative Agent its portion of the Borrowing or Borrowings 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 of Borrowing, 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 Administra-
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tive 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).
2.5. REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) The Borrower shall repay to the Administrative Agent, for the
benefit of the Lenders, on the Tranche B Term Loan Maturity Date, the
then-unpaid Tranche B Term Loans, in Dollars. The Borrower shall repay to the
Administrative Agent in Dollars, for the benefit of the applicable Lenders, on
the Revolving Credit Maturity Date, the then-unpaid Revolving Credit Loans made
to the Borrower. The Borrower shall repay to the Administrative Agent in
Dollars, for the account of the Swingline Lender, on the Swingline Maturity
Date, the then-unpaid Swingline Loans.
(b) [INTENTIONALLY OMITTED]
(c) The Borrower shall repay to the Administrative Agent, in Dollars,
for the benefit of the Lenders of Tranche B Term Loans, on each date set forth
below (each a "REPAYMENT DATE"), the principal amount of the Tranche B Term
Loans equal to (x) the outstanding principal amount of Tranche B Term Loans
immediately after closing on the Closing Date multiplied by (y) the percentage
set forth below opposite such Repayment Date (each a "REPAYMENT AMOUNT"):
NUMBER OF MONTHS TRANCHE B
FROM CLOSING DATE REPAYMENT AMOUNT
----------------- ----------------
6 0.25%
9 0.25%
12 0.25%
15 0.25%
18 0.25%
21 0.25%
24 0.25%
27 0.25%
30 0.25%
33 0.25%
36 0.25%
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NUMBER OF MONTHS TRANCHE B
FROM CLOSING DATE REPAYMENT AMOUNT
----------------- ----------------
39 0.25%
42 0.25%
45 0.25%
48 0.25%
51 0.25%
54 0.25%
57 0.25%
60 0.25%
63 0.25%
66 0.25%
69 0.25%
72 0.25%
75 0.25%
78 0.25%
81 0.25%
Tranche B Term Loan Maturity Date 93.50%
; PROVIDED, in the event any Incremental Tranche B Term Loans are made, such
Incremental Tranche B Term Loans shall be repaid on each Repayment Date
occurring on or after the applicable Increased Amount Date in an amount equal to
(i) the aggregate principal amount of Incremental Tranche B Term Loans of the
applicable Series of Incremental Tranche B Term Loans times (ii) the ratio
(expressed as a percentage) of (y) the amount of all other Tranche B Term Loans
being repaid on such Repayment Date to (z) the total aggregate principal amount
of all other Tranche B Term Loans outstanding on such Increased Amount Date.
(d) 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.
(e) 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, whether such Loan is a Term Loan, a Revolving Credit Loan or a
Swingline Loan, the Type of each Loan made 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 or the Swingline Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower and each Lender's share thereof.
(f) 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
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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. CONVERSIONS AND CONTINUATIONS.
(a) The Borrower shall have the option on any Business Day to convert
all or a portion equal to at least the Minimum Borrowing Amount of the
outstanding principal amount of Term Loans or Revolving Credit Loans made to the
Borrower (as applicable) of one Type into a Borrowing or Borrowings of another
Type and the Borrower shall have the option on any Business Day to continue the
outstanding principal amount of any LIBOR Term Loans or LIBOR Revolving Credit
Loans as LIBOR Term Loans or LIBOR Revolving Credit Loans, as the case may be,
for an additional Interest Period, PROVIDED that (i) no partial conversion of
LIBOR Term Loans or LIBOR Revolving Credit Loans shall reduce the outstanding
principal amount of LIBOR Term Loans or LIBOR Revolving Credit Loans made
pursuant to a single Borrowing to less than the Minimum Borrowing Amount, (ii)
ABR Loans may not be converted into LIBOR Term Loans or LIBOR Revolving Credit
Loans if a Default or Event of Default is in existence on the date of the
conversion and the Administrative Agent has or the Required Lenders have
determined in its or their sole discretion not to permit such conversion, (iii)
LIBOR Loans may not be continued as LIBOR Loans for an additional Interest
Period if a Default or Event of Default is in existence on the date of the
proposed continuation and the Administrative Agent has or the Required Lenders
have determined in its or their sole discretion not to permit such continuation
and (iv) Borrowings resulting from conversions pursuant to this Section 2.6
shall be limited in number as provided in Section 2.2. Each such conversion or
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' (or one Business Day's notice in the case of
a conversion into ABR Loans) prior written notice (or telephonic notice promptly
confirmed in writing) (each, a "NOTICE OF CONVERSION OR CONTINUATION")
specifying the Term Loans or Revolving Credit Loans to be so converted or
continued, the Type of Term Loans or Revolving Credit Loans to be converted or
continued into and, if such Term Loans or Revolving Credit Loans are to be
converted into or continued as LIBOR Loans, the Interest Period to be initially
applicable thereto. The Administrative Agent shall give each Lender notice as
promptly as practicable of any such proposed conversion or continuation
affecting any of its Term Loans or Revolving Credit Loans.
(b) If any Default or Event of Default is in existence at the time of
any proposed continuation of any LIBOR Loans and the Administrative Agent has or
the Required Lenders have determined in its or their sole discretion not to
permit such continuation, such LIBOR Loans shall be automatically converted on
the last day of the current Interest Period into ABR Loans. If upon the
expiration of any Interest Period in respect of LIBOR Loans, the Borrower has
failed to elect a new Interest Period to be applicable thereto as provided in
paragraph (a) above, the Borrower shall be deemed to have elected to continue
such Borrowing of LIBOR Loans into a Borrowing of ABR Loans, effective as of the
expiration date of such current Interest Period.
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2.7. PRO RATA BORROWINGS. Each Borrowing of Tranche B Term Loans under
this Agreement shall be granted by the Lenders PRO RATA on the basis of their
then-applicable Tranche B Term Loan Commitments. Each Borrowing of Revolving
Credit Loans under this Agreement shall be granted by the Lenders PRO RATA on
the basis of their then-applicable Revolving Credit Commitments. Each Borrowing
of Incremental Tranche B Term Loans under this Agreement shall be granted by the
Lenders PRO RATA on the basis of their then-applicable Incremental Tranche B
Term Loan Commitments. It is understood that no Lender shall be responsible for
any default by any other Lender in its obligation 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 ABR Loan shall bear interest
from the date of the Borrowing thereof until maturity (whether by acceleration
or otherwise) at a rate PER ANNUM that shall at all times be the Applicable ABR
Margin plus the ABR in effect from time to time.
(b) The unpaid principal amount of each LIBOR 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 be the
Applicable LIBOR Margin in effect from time to time plus the relevant LIBOR
Rate.
(c) 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).
(d) Interest on each Loan shall accrue from and including the date of
any Borrowing to but excluding the date of any repayment thereof and shall be
payable (i) in respect of each ABR Loan, quarterly in arrears on the last day of
each March, June, September and December, (ii) in respect of each LIBOR Loan, on
the last day of each Interest Period applicable thereto and, in the case of an
Interest Period in excess of three months, on each date occurring at three-month
intervals after the first day of such Interest Period, (iii) in respect of each
Loan (except, other than in the case of prepayments, any ABR Loan), on any
prepayment (on the amount prepaid), at maturity (whether by acceleration or
otherwise) and, after such maturity, on demand.
(e) All computations of interest hereunder shall be made in accordance
with Section 5.5.
(f) 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.
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2.9. INTEREST PERIODS. At the time the Borrower gives a Notice of
Borrowing or Notice of Conversion or Continuation in respect of the making of,
or conversion into or continuation as, a Borrowing of LIBOR Loans (in the case
of the initial Interest Period applicable thereto) or prior to 10:00 a.m. (New
York City time) on the third Business Day prior to the expiration of an Interest
Period applicable to a Borrowing of LIBOR Loans, the Borrower shall have the
right to elect by giving the Administrative Agent written notice (or telephonic
notice promptly confirmed in writing) the Interest Period applicable to such
Borrowing, which Interest Period shall, at the option of the Borrower be a one,
two, three, six or (in the case of Revolving Credit Loans, if available to all
the Lenders making such loans as determined by such Lenders in good faith based
on prevailing market conditions) a nine or twelve month period, PROVIDED that
the initial Interest Period may be for a period less than one month if agreed
upon by the Borrower and the Agents.
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 (including the date of any
conversion from a Borrowing of ABR Loans or) and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the day
on which the next preceding Interest Period expires;
(b) if any Interest Period relating to a Borrowing of LIBOR Revolving
Credit Loans begins on the last Business Day of a calendar month or begins
on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such Interest Period
shall end on the last Business Day of the calendar month at the end of such
Interest Period;
(c) 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; and
(d) 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
applicable Maturity Date of such Loan.
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
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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
(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 Term Loans and LIBOR Revolving Credit 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), and any Notice of Borrowing or Notice of Conversion given by the
Borrower with respect to LIBOR Term Loans or LIBOR Revolving Credit Loans that
have not yet been incurred shall be deemed rescinded by the Borrower (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.
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(b) At any time that any LIBOR Loan is affected by the circumstances
described in Section 2.10(a)(ii) or (iii), the Borrower may (and in the case of
a LIBOR Loan affected pursuant to Section 2.10(a)(iii) shall) either (x) if the
affected LIBOR Loan is then being made pursuant to a Borrowing, cancel said
Borrowing by giving the Administrative Agent telephonic notice (confirmed
promptly in writing) thereof on the same date that the Borrower was notified by
a Lender pursuant to Section 2.10(a)(ii) or (iii) or (y) if the affected LIBOR
Loan is then outstanding, upon at least three Business Days' notice to the
Administrative Agent, require the affected Lender to convert each such LIBOR
Revolving Credit Loan and LIBOR Term Loan into an ABR Loan, PROVIDED that if
more than one Lender is affected at any time, then all affected Lenders must be
treated in the same manner pursuant to this Section 2.10(b).
(c) 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 compensation 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(c), 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(c) upon receipt of such notice.
(d) It is understood that to the extent duplicative of Section 5.4,
this Section 2.10 shall not apply to Taxes.
2.11. COMPENSATION. If (a) any payment of principal of any LIBOR 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 LIBOR Loan as a result of a payment or
conversion pursuant to Section 2.5, 2.6, 2.10, 5.1, 5.2 or 14.7, as a result of
acceleration of the maturity of the Loans pursuant to Section 11 or for any
other reason, (b) any Borrowing of LIBOR Loans is not made as a result of a
withdrawn Notice of Borrowing, (c) any ABR Loan is not converted into a LIBOR
Loan as a result of a withdrawn Notice of Conversion or Continuation, (d) any
LIBOR Loan is not continued as an LIBOR Loan, as the case may be, as a result of
a withdrawn Notice of Conversion or Continuation or (e) any prepayment of
principal of any LIBOR Loan is not made as a result of a
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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 convert,
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), 3.5 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, 3.5 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, 3.5 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 under Section 2.10, 2.11, 3.5 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.
2.14. INCREMENTAL FACILITIES. The Borrower may by written notice to
the Administrative Agent elect to request the establishment of one or more (x)
Incremental Tranche B Term Loan commitments (the "INCREMENTAL TRANCHE B TERM
LOAN COMMITMENTS") and/or (y) Incremental Revolving Credit Commitments (the
"INCREMENTAL REVOLVING CREDIT COMMITMENT" and, together with the Incremental
Tranche B Term Loan Commitments, the "INCREMENTAL LOAN COMMITMENTS"), by an
aggregate amount not in excess of $200,000,000 in the aggregate and not less
than $25,000,000 individually (or such lesser amount which shall be approved by
the Administrative Agent or such lesser amount that shall constitute the
difference between $200,000,000 and all such Incremental Loan Commitments
obtained prior to such date), and integral multiples of $5,000,000 in excess of
that amount. Each such notice shall specify the date (each, an "INCREASED AMOUNT
DATE") on which the Borrower proposes that the Incremental Loan Commitments
shall be effective, which shall be a date not less than 10 Business Days after
the date on which such notice is delivered to the Administrative Agent; PROVIDED
that the Borrower shall first offer the Lenders, on a PRO RATA basis, the
opportunity to provide all of the Incremental Loan Commitments prior to offering
any other Person that is an eligible assignee pursuant to Section 14.6(b);
PROVIDED, FURTHER, that any Lender offered or approached to provide all or a
portion of the Incremental Loan Commitments may elect or decline, in its sole
discretion, to provide an Incremental Loan Commitment. Such Incremental Loan
Commitments shall become effective, as of such Increased Amount Date; PROVIDED
that (1) no Default or Event of Default shall
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exist on such Increased Amount Date before or after giving effect to such
Incremental Loan Commitments, as applicable; (2) both before and after giving
effect to the making of any Series of Incremental Tranche B Term Loans or
Incremental Revolving Loans, each of the conditions set forth in Section 7 shall
be satisfied; (3) the Borrower and its Subsidiaries shall be in pro forma
(giving effect to the application of proceeds of any incremental loans)
compliance with the covenant set forth in Section 11 (without giving effect to
any waiver pursuant to clause (a) thereto or any application of clause (b)
thereto and regardless of whether or not the Revolving Credit Commitment has
been terminated) as of the last day of the most recently ended fiscal quarter
after giving effect to such Incremental Loan Commitments and any Investment to
be consummated in connection therewith; (4) the Incremental Loan Commitments
shall be effected pursuant to one or more Joinder Agreements executed and
delivered by the Borrower and the Administrative Agent, and each of which shall
be recorded in the Register and shall be subject to the requirements set forth
in Section 5.4(d); (5) the Borrower shall make any payments required pursuant to
Section 2.11 in connection with the Incremental Loan Commitments, as applicable;
and (6) the Borrower shall deliver or cause to be delivered any legal opinions
or other documents reasonably requested by the Administrative Agent in
connection with any such transaction. Any Incremental Tranche B Term Loans made
on an Increased Amount Date shall be designated, a separate series (a "SERIES")
of Incremental Tranche B Term Loans for all purposes of this Agreement.
On any Increased Amount Date on which Incremental Revolving Loan
Commitments are effected, subject to the satisfaction of the foregoing terms and
conditions, (a) each of the Lenders with Revolving Credit Commitments shall
assign to each Lender with an Incremental Revolving Credit Commitment (each, an
"INCREMENTAL REVOLVING LOAN LENDER") and each of the Incremental Revolving Loan
Lenders shall purchase from each of the Lenders with Revolving Credit
Commitments, at the principal amount thereof (together with accrued interest),
such interests in the Revolving Credit Loans outstanding on such Increased
Amount Date as shall be necessary in order that, after giving effect to all such
assignments and purchases, such Revolving Credit Loans will be held by existing
Lenders with Revolving Credit Loans and Incremental Revolving Loan Lenders
ratably in accordance with their Revolving Credit Commitments after giving
effect to the addition of such Incremental Revolving Credit Commitments to the
Revolving Credit Commitments, (b) each Incremental Revolving Credit Commitment
shall be deemed for all purposes a Revolving Credit Commitment and each Loan
made thereunder (an "INCREMENTAL REVOLVING LOAN") shall be deemed, for all
purposes, a Revolving Credit Loan and (c) each Incremental Revolving Loan Lender
shall become a Lender with respect to the Incremental Revolving Loan Commitment
and all matters relating thereto.
On any Increased Amount Date on which any Incremental Tranche B Term
Loan Commitments of any Series are effective, subject to the satisfaction of the
foregoing terms and conditions, (i) each Lender with an Incremental Tranche B
Term Loan Commitment (each, an "INCREMENTAL TRANCHE B LOAN LENDER") of any
Series shall make a Loan to the Borrower (an "INCREMENTAL TRANCHE B TERM LOAN")
in an amount equal to its Incremental Tranche B Term Loan Commitment of such
Series, and (ii) each Incremental Tranche B Term Loan Lender of any Series shall
become a Lender hereunder with respect to the Incremental Tranche B Term Loan
Commitment of such Series and the Incremental Tranche B Term Loans of such
Series made pursuant thereto.
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The terms and provisions of the Incremental Tranche B Term Loans and
Incremental Tranche B Term Loan Commitments of any Series shall be, except as
otherwise set forth herein or in the Joinder Agreement, identical to the Tranche
B Term Loans; provided, HOWEVER, that (i) the applicable Incremental Tranche B
Term Loan Maturity Date of each Series shall be no shorter than the final
maturity of the Revolving Credit Loans and the Tranche B Term Loans and (ii) the
rate of interest applicable to the Incremental Tranche B Term Loans of each
Series shall be determined by the Borrower and the applicable new Lenders and
shall be set forth in each applicable Joinder Agreement. The terms and
provisions of the Incremental Revolving Loans and Incremental Revolving Credit
Commitments shall be identical to the Revolving Credit Loans and the Revolving
Credit Commitments.
Each Joinder Agreement may, without the consent of any other Lenders,
effect such amendments to this Agreement and the other Credit Documents as may
be necessary or appropriate, in the opinion of the Administrative Agent, to
effect the provision of this Section 2.14.
SECTION 3. LETTERS OF CREDIT.
3.1. LETTERS OF CREDIT.
(a) Subject to and upon the terms and conditions herein set forth, at
any time and from time to time after the Closing Date and prior to the L/C
Maturity Date, the Borrower, may request that the Letter of Credit Issuer issue
for the account of the Borrower (i) a standby letter of credit or letters of
credit in Dollars, (ii) a sight trade letter of credit or letters of credit in
Dollars or (iii) for the account of the Borrower and for the benefit of any
creditor of the Borrower or its Subsidiaries located outside the United States,
a bank guarantee or bank guarantees (collectively, the "LETTERS OF CREDIT" and
each, a "LETTER OF CREDIT"), in each case in such form as may be approved by the
Letter of Credit Issuer in its reasonable discretion.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued the Stated Amount of which, when added to the Letters of Credit
Outstanding at such time, would exceed the Letter of Credit Commitment then in
effect; (ii) no Letter of Credit shall be issued the Stated Amount of which
would cause the aggregate amount of the Lender's Revolving Credit Exposures at
such time to exceed the Revolving Credit Commitment then in effect; (iii) each
Letter of Credit shall have an expiration date occurring no later than one year
after the date of issuance thereof, unless otherwise agreed upon by the
Administrative Agent and the Letter of Credit Issuer, PROVIDED that in no event
shall such expiration date occur later than the L/C Maturity Date; (iv) each
Letter of Credit shall be denominated in Dollars or Euros, PROVIDED that the
aggregate Stated Amount of all Letters of Credit denominated in Euros shall not
exceed $30,000,000; (v) no Letter of Credit shall be issued if it would be
illegal under any applicable law for the beneficiary of the Letter of Credit to
have a Letter of Credit issued in its favor; (vi) no Letter of Credit shall be
issued by a Letter of Credit Issuer after it has received a written notice from
the Borrower or any Lender stating that a Default or Event of Default has
occurred and is continuing until such time as the Letter of Credit Issuer shall
have received a written notice of (x) rescission of such notice from the party
or parties originally delivering such notice or (y) the waiver of such Default
or Event of Default in accordance with the provisions of Section 14.1; and (vii)
no Letter of Credit shall be issued unless after giving effect thereto and to
all other issuances of Letters of Credit and borrowings of Revolving Loans and
Swingline Loans on such
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date, the Intelsat Ltd. Notes Condition is satisfied. Notwithstanding anything
herein to the contrary, the issuance of Letters of Credit for the account of the
Borrower shall be deemed a utilization of the Revolving Credit Commitments
allocated to the Borrower.
(c) Upon at least one Business Day's prior written notice (or
telephonic notice promptly confirmed in writing) to the Administrative Agent and
the Letter of Credit Issuer (which notice the Administrative Agent shall
promptly transmit to each of the applicable Lenders), the Borrower shall have
the right, on any day, permanently to terminate or reduce the Letter of Credit
Commitment in whole or in part, PROVIDED that, after giving effect to such
termination or reduction, the Letters of Credit Outstanding shall not exceed the
Letter of Credit Commitment.
(d) The parties hereto agree that, subject to the satisfaction of the
conditions precedent set forth in Section 6, the Existing Letters of Credit
shall be deemed Letters of Credit for all purposes under this Agreement, without
any further action by the Borrower.
(e) Notwithstanding anything to the contrary in this SECTION 3.1, a
Letter of Credit Issuer shall be under no obligation to issue any Letter of
Credit if any Lender with a Revolving Credit Commitment is a Defaulting Lender
at such time, unless such Letter of Credit Issuer has entered into arrangement
reasonably satisfactory to it and the Borrower to eliminate such Letter of
Credit Issuer's risk with respect to the participation in Letters of Credit by
such Defaulting Lender (which may include, without limitation, cash
collateralizing such Defaulting Lender's Revolving Credit Commitment Percentage
of the Letter of Credit Outstandings).
3.2. LETTER OF CREDIT REQUESTS.
(a) Whenever the Borrower desires that a Letter of Credit be issued
for its account, it shall give the Administrative Agent and the Letter of Credit
Issuer at least five (or such lesser number as may be agreed upon by the
Administrative Agent and the Letter of Credit Issuer) Business Days' written
notice thereof. Each notice shall be executed by the Borrower and shall be in
the form of EXHIBIT H hereto (each a "LETTER OF CREDIT REQUEST"). The
Administrative Agent shall promptly transmit copies of each Letter of Credit
Request to each Lender.
(b) The making of each Letter of Credit Request shall be deemed to be
a representation and warranty by the Borrower that the Letter of Credit may be
issued in accordance with, and will not violate the requirements of, Section
3.1(b).
3.3. LETTER OF CREDIT PARTICIPATIONS.
(a) Immediately upon the issuance by the Letter of Credit Issuer of
any Letter of Credit, the Letter of Credit Issuer shall be deemed to have sold
and transferred to each other Lender that has a Revolving Credit Commitment
(each such other Lender, in its capacity under this Section 3.3, an "L/C
PARTICIPANT"), and each such L/C Participant shall be deemed irrevocably and
unconditionally to have purchased and received from the Letter of Credit Issuer,
without recourse or warranty, an undivided interest and participation (each an
"L/C PARTICIPATION"), to the extent of such L/C Participant's Revolving Credit
Commitment Percentage in such Letter of Credit, each substitute letter of
credit, each drawing made thereunder and the obligations of the Borrower under
this Agreement with respect thereto, and any security therefor or guaranty
per-
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taining thereto (although Letter of Credit Fees will be paid directly to the
Administrative Agent for the ratable account of the L/C Participants as provided
in Section 4.1(b) and the L/C Participants shall have no right to receive any
portion of any Fronting Fees).
(b) In determining whether to pay under any Letter of Credit, the
relevant Letter of Credit Issuer shall have no obligation relative to the L/C
Participants other than to confirm that any documents required to be delivered
under such Letter of Credit have been delivered and that they appear to comply
on their face with the requirements of such Letter of Credit. Any action taken
or omitted to be taken by the relevant Letter of Credit Issuer under or in
connection with any Letter of Credit issued by it, if taken or omitted in the
absence of gross negligence or willful misconduct, shall not create for the
Letter of Credit Issuer any resulting liability.
(c) In the event that the Letter of Credit Issuer makes any payment
under any Letter of Credit issued by it and the Borrower shall not have repaid
such amount in full to the respective Letter of Credit Issuer pursuant to
Section 3.4(a), the Letter of Credit Issuer shall promptly notify the
Administrative Agent and each applicable L/C Participant of such failure, and
each such L/C Participant shall promptly and unconditionally pay to the
Administrative Agent for the account of the Letter of Credit Issuer, the amount
of such L/C Participant's Revolving Credit Commitment Percentage of such
unreimbursed payment in Dollars or Euros, as the case may be, and in immediately
available funds; PROVIDED, HOWEVER, that no L/C Participant shall be obligated
to pay to the Administrative Agent for the account of the respective Letter of
Credit Issuer its Revolving Credit Commitment Percentage of such unreimbursed
amount arising from any wrongful payment made by the Letter of Credit Issuer
under a Letter of Credit as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of the Letter of Credit Issuer. If
the Letter of Credit Issuer so notifies, prior to 11:00 a.m. (New York City
time) on any Business Day, any L/C Participant required to fund a payment under
a Letter of Credit, such L/C Participant shall make available to the
Administrative Agent for the account of the Letter of Credit Issuer such L/C
Participant's Revolving Credit Commitment Percentage of the amount of such
payment on such Business Day in immediately available funds. If and to the
extent such L/C Participant shall not have so made its Revolving Credit
Commitment Percentage of the amount of such payment available to the
Administrative Agent for the account of the Letter of Credit Issuer, such L/C
Participant agrees to pay to the Administrative Agent for the account of the
Letter of Credit Issuer, forthwith on demand, such amount, together with
interest thereon for each day from such date until the date such amount is paid
to the Administrative Agent for the account of the Letter of Credit Issuer at
the Federal Funds Effective Rate. The failure of any L/C Participant to make
available to the Administrative Agent for the account of the Letter of Credit
Issuer its Revolving Credit Commitment Percentage of any payment under any
Letter of Credit shall not relieve any other L/C Participant of its obligation
hereunder to make available to the Administrative Agent for the account of the
Letter of Credit Issuer its Revolving Credit Commitment Percentage of any
payment under such Letter of Credit on the date required, as specified above,
but no L/C Participant shall be responsible for the failure of any other L/C
Participant to make available to the Administrative Agent such other L/C
Participant's Revolving Credit Commitment Percentage of any such payment.
(d) Whenever the Letter of Credit Issuer receives a payment in respect
of an unpaid reimbursement obligation as to which the Administrative Agent has
received for the ac-
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count of the Letter of Credit Issuer any payments from the L/C Participants
pursuant to paragraph (c) above, the Letter of Credit Issuer shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay to each L/C
Participant that has paid its Revolving Credit Commitment Percentage of such
reimbursement obligation, in Dollars or Euros, as the case may be, and in
immediately available funds, an amount equal to such L/C Participant's share
(based upon the proportionate aggregate amount originally funded by such L/C
Participant to the aggregate amount funded by all L/C Participants) of the
principal amount of such reimbursement obligation and interest thereon accruing
after the purchase of the respective L/C Participations.
(e) The obligations of the L/C Participants to make payments to the
Administrative Agent for the account of a Letter of Credit Issuer with respect
to Letters of Credit shall be irrevocable and not subject to counterclaim,
set-off or other defense or any other qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including under any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of
the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right that
the Borrower may have at any time against a beneficiary named in a Letter
of Credit, any transferee of any Letter of Credit (or any Person for whom
any such transferee may be acting), the Administrative Agent, the Letter of
Credit Issuer, any Lender or other Person, whether in connection with this
Agreement, any Letter of Credit, the transactions contemplated herein or
any unrelated transactions (including any underlying transaction between
the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default;
PROVIDED, HOWEVER, that no L/C Participant shall be obligated to pay to the
Administrative Agent for the account of the Letter of Credit Issuer its
Revolving Credit Commitment Percentage of any unreimbursed amount arising from
any wrongful payment made by the Letter of Credit Issuer under a Letter of
Credit as a result of acts or omissions constituting willful misconduct or gross
negligence on the part of the Letter of Credit Issuer.
3.4. AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS.
(a) The Borrower hereby agrees to reimburse the relevant Letter of
Credit Issuer, by making payment in Dollars or Euros, as the case may be, to the
Administrative Agent (in the case of reimbursement made by the Borrower) in
immediately available funds for any payment or disbursement made by the Letter
of Credit Issuer under any Letter of Credit (each such
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amount so paid until reimbursed, an "UNPAID DRAWING") immediately after, and in
any event on the date of, such payment, with interest on the amount so paid or
disbursed by the Letter of Credit Issuer, to the extent not reimbursed prior to
5:00 p.m. (New York City time) on the date of such payment or disbursement, from
and including the date paid or disbursed to but excluding the date the Letter of
Credit Issuer is reimbursed therefor at a rate PER ANNUM that shall at all times
be the Applicable ABR Margin plus the ABR Rate as in effect from time to time,
PROVIDED that, notwithstanding anything contained in this Agreement to the
contrary, (i) unless the Borrower shall have notified the Administrative Agent
and the relevant Letter of Credit Issuer prior to 10:00 a.m. (New York City
time) on the date of such drawing that the Borrower intends to reimburse the
relevant Letter of Credit Issuer for the amount of such drawing with funds other
than the proceeds of Loans, the Borrower shall be deemed to have given a Notice
of Borrowing requesting that, with respect to Letters of Credit, that the
Lenders with Revolving Credit Commitments make Revolving Credit Loans (which
shall be ABR Loans) and (ii) the Administrative Agent shall promptly notify each
relevant L/C Participant of such drawing and the amount of its Revolving Credit
Loan to be made in respect thereof, and each L/C Participant shall be
irrevocably obligated to make a Revolving Credit Loan to the Borrower in the
manner deemed to have been requested in the amount of its Revolving Credit
Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York
City time) on such Business Day by making the amount of such Revolving Credit
Loan available to the Administrative Agent. Such Revolving Credit Loans shall be
made without regard to the Minimum Borrowing Amount. The Administrative Agent
shall use the proceeds of such Revolving Credit Loans solely for purpose of
reimbursing the Letter of Credit Issuer for the related Unpaid Drawing.
(b) The obligations of the Borrower under this Section 3.4 to
reimburse the Letter of Credit Issuer with respect to Unpaid Drawings
(including, in each case, interest thereon) shall be absolute and unconditional
under any and all circumstances and irrespective of any set-off, counterclaim or
defense to payment that the Borrower or any other Person may have or have had
against the Letter of Credit Issuer, the Administrative Agent or any Lender
(including in its capacity as an L/C Participant), including any defense based
upon the failure of any drawing under a Letter of Credit (each a "DRAWING") to
conform to the terms of the Letter of Credit or any non-application or
misapplication by the beneficiary of the proceeds of such Drawing, PROVIDED that
the Borrower shall not be obligated to reimburse the Letter of Credit Issuer for
any wrongful payment made by the Letter of Credit Issuer under the Letter of
Credit issued by it as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of the Letter of Credit Issuer.
3.5. INCREASED COSTS. If, after the Closing Date, the adoption of any
applicable law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or actual compliance by the Letter of Credit Issuer or any L/C
Participant with any request or directive made or adopted after the Closing Date
(whether or not having the force of law), by any such authority, central bank or
comparable agency shall either (a) impose, modify or make applicable any
reserve, deposit, capital adequacy or similar requirement against letters of
credit issued by the Letter of Credit Issuer, or any L/C Participant's L/C
Participation therein, or (b) impose on the Letter of Credit Issuer or any L/C
Participant any other conditions affecting its obligations under this Agreement
in respect of Let-
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ters of Credit or L/C Participations therein or any Letter of Credit or such L/C
Participant's L/C Participation therein, and the result of any of the foregoing
is to increase the cost to the Letter of Credit Issuer or such L/C Participant
of issuing, maintaining or participating in any Letter of Credit, or to reduce
the amount of any sum received or receivable by the Letter of Credit Issuer or
such L/C Participant hereunder (other than any such increase or reduction
attributable to taxes) in respect of Letters of Credit or L/C Participations
therein, then, promptly after receipt of written demand to the Borrower by the
Letter of Credit Issuer or such L/C Participant, as the case may be (a copy of
which notice shall be sent by the Letter of Credit Issuer or such L/C
Participant to the Administrative Agent (with respect to Letter of Credit issued
on account of the Borrower)), the Borrower shall pay to the Letter of Credit
Issuer or such L/C Participant such additional amount or amounts as will
compensate the Letter of Credit Issuer or such L/C Participant for such
increased cost or reduction, it being understood and agreed, however, that the
Letter of Credit Issuer or a L/C Participant shall not be entitled to such
compensation as a result of such Person'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. A certificate submitted to the Borrower by the
relevant Letter of Credit Issuer or a L/C Participant, as the case may be (a
copy of which certificate shall be sent by the Letter of Credit Issuer or such
L/C Participant to the Administrative Agent (with respect to Letters of Credit
issued on account of the Borrower)), setting forth in reasonable detail the
basis for the determination of such additional amount or amounts necessary to
compensate the Letter of Credit Issuer or such L/C Participant as aforesaid
shall be conclusive and binding on the Borrower absent clearly demonstrable
error.
3.6. SUCCESSOR LETTER OF CREDIT ISSUER. A Letter of Credit Issuer may
resign as Letter of Credit Issuer upon 60 days' prior written notice to the
Administrative Agent, the Lenders and the Borrower. If the Letter of Credit
Issuer shall resign as Letter of Credit Issuer under this Agreement, then the
Borrower shall appoint from among the Lenders with Revolving Credit Commitments
a successor issuer of Letters of Credit, whereupon such successor issuer shall
succeed to the rights, powers and duties of the Letter of Credit Issuer, and the
term "Letter of Credit Issuer" shall mean such successor issuer effective upon
such appointment. At the time such resignation shall become effective, the
Borrower shall pay to the resigning Letter of Credit Issuer all accrued and
unpaid fees pursuant to Sections 4.1(c) and (e). The acceptance of any
appointment as the Letter of Credit Issuer hereunder by a successor Lender shall
be evidenced by an agreement entered into by such successor, in a form
satisfactory to the Borrower and the Administrative Agent and, from and after
the effective date of such agreement, such successor Lender shall have all the
rights and obligations of the previous Letter of Credit Issuer under this
Agreement and the other Credit Documents. At the time such resignation shall
become effective, the Borrower shall pay to the resigning Letter of Credit
Issuer all accrued and unpaid fees pursuant to Sections 4.1(d) and (e). After
the resignation of the Letter of Credit Issuer hereunder, the resigning Letter
of Credit Issuer shall remain a party hereto and shall continue to have all the
rights and obligations of a Letter of Credit Issuer under this Agreement and the
other Credit Documents with respect to Letters of Credit issued by it prior to
such resignation, but shall not be required to issue additional Letters of
Credit. After any retiring Letter of Credit Issuer's resignation as Letter of
Credit Issuer, the provisions of this Agreement relating to the Letter of Credit
Issuer shall inure to its benefit as to any actions taken or omitted to be taken
by it (a) while it was Letter of Credit Issuer under this Agreement or (b) at
any time with respect to Letters of Credit issued by such Letter of Credit
Issuer.
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SECTION 4. FEES; COMMITMENTS.
4.1. FEES.
(a) (i) The Borrower agrees to pay to the Administrative Agent in
Dollars, for the account of each Lender having a Revolving Credit Commitment (in
each case PRO RATA according to the respective Revolving Credit Commitments of
all such Lenders), a commitment fee for each day from and including the Closing
Date to but excluding the Final Date. Such commitment fee shall be payable in
arrears (x) on the last day of each March, June, September and December (for the
three-month period (or portion thereof) ended on such day for which no payment
has been received) and (y) on the Final Date (for the period ended on such date
for which no payment has been received pursuant to clause (x) above), and shall
be computed for each day during such period at a rate PER ANNUM equal to the
Commitment Fee Rate in effect on such day on the Available Commitments in effect
on such day.
(ii) Notwithstanding the foregoing, the Borrower shall not be
obligated to pay any amounts to any Defaulting Lender pursuant to this Section
4.1.
(b) The Borrower agrees to pay to the Administrative Agent in Dollars
for the account of the Lenders PRO RATA on the basis of their respective Letter
of Credit Exposure, a fee in respect of each Letter of Credit (the "LETTER OF
CREDIT FEE"), for the period from and including the date of issuance of such
Letter of Credit to but excluding the termination date of such Letter of Credit
computed at the PER ANNUM rate for each day equal to the Applicable LIBOR Margin
for Revolving Credit Loans minus 0.125% PER ANNUM on the average daily Stated
Amount of such Letter of Credit. Such Letter of Credit Fees shall be due and
payable quarterly in arrears on the last day of each March, June, September and
December and on the date upon which the Total Revolving Credit Commitment
terminates and the Letters of Credit Outstanding shall have been reduced to
zero.
(c) The Borrower agrees to pay to the Administrative Agent in Dollars
for the account of the Letter of Credit Issuer a fee in respect of each Letter
of Credit issued by it (the "FRONTING FEE"), for the period from and including
the date of issuance of such Letter of Credit to but excluding the termination
date of such Letter of Credit, computed at the rate for each day equal to 0.125%
PER ANNUM on the average daily Stated Amount of such Letter of Credit. Such
Fronting Fees shall be due and payable quarterly in arrears on the last day of
each March, June, September and December and on the date upon which the Total
Revolving Credit Commitment terminates and the Letters of Credit Outstanding
shall have been reduced to zero.
(d) The Borrower agrees to pay directly to the Letter of Credit Issuer
in Dollars upon each issuance of, drawing under, and/or amendment of, a Letter
of Credit issued by it such amount as the Letter of Credit Issuer and the
Borrower shall have agreed upon for issuances of, drawings under or amendments
of, letters of credit issued by it.
4.2. VOLUNTARY REDUCTION OF REVOLVING CREDIT COMMITMENTS. Upon at
least one Business Day's prior written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent at the Administrative Agent's
Office (which notice the Administrative Agent shall promptly transmit to each of
the Lenders), the Borrower (on behalf of itself) shall
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have the right, without premium or penalty, on any day, permanently to terminate
or reduce the Revolving Credit Commitments in whole or in part, PROVIDED that
(a) any such reduction shall apply proportionately and permanently to reduce the
Revolving Credit Commitment of each of the Lenders, (b) any partial reduction
pursuant to this Section 4.2 shall be in the amount of at least $5,000,000 and
(c) after giving effect to such termination or reduction and to any prepayments
of the Loans made on the date thereof in accordance with this Agreement, the
aggregate amount of the Lenders' Revolving Credit Exposures shall not exceed the
Total Revolving Credit Commitment.
4.3. MANDATORY TERMINATION OF COMMITMENTS.
(a) (i) [INTENTIONALLY OMITTED]
(ii) The Tranche B Term Loan Commitments shall terminate at 5:00 p.m.
(New York City time) on the Closing Date.
(b) The Total Revolving Credit Commitment shall terminate at 5:00 p.m.
(New York City time) on the Revolving Credit Maturity Date.
(c) The Swingline Commitment shall terminate at 5:00 p.m. (New York
City time) on the Swingline Maturity Date.
(d) The Incremental Tranche B Term Loan Commitment for any Series
shall terminate at 5:00 p.m. (New York City time) on the Increased Amount Date
for such Series.
(e) If any prepayment of Term Loans would otherwise be required
pursuant to Section 5.2(a) but cannot be made because there are no Term Loans
outstanding, or because the amount of the required prepayment exceeds the
outstanding amount of Term Loans, then, on the date that such prepayment is
required, an aggregate amount equal to the amount of the required prepayment, or
the excess of such amount over the outstanding amount of Tranche B Term Loans,
as the case may be, shall be applied by the Borrower, first, to repay the
outstanding principal amount of Swingline Loans, second, after all Swingline
Loans have been paid in full, Revolving Credit Loans (without a reduction of the
Revolving Credit Commitment) and third, after all Revolving Credit Loans have
been paid in full, to cash collateralize Letters of Credit.
SECTION 5. PAYMENTS.
5.1. VOLUNTARY PREPAYMENTS. The Borrower shall have the right to
prepay Term Loans, Revolving Credit Loans and Swingline Loans, in each case,
without premium or penalty, in whole or in part from time to time on the
following terms and conditions: (a) the Borrower shall give the Administrative
Agent and at the Administrative Agent's Office written notice (or telephonic
notice promptly confirmed in writing) of its intent to make such prepayment, the
amount of such prepayment and (in the case of LIBOR Loans) the specific
Borrowing(s) pursuant to which made, which notice shall be given by the Borrower
no later than (i) in the case of Term Loans or Revolving Credit Loans, 10:00
a.m. (New York City time) one Business Day prior to, or (ii) in the case of
Swingline Loans, 10:00 a.m. (New York City time) on, the date of such prepayment
and shall promptly be transmitted by the Administrative Agent to each of the
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Lenders or the Swingline Lender, as the case may be; (b) each partial prepayment
of any Borrowing of Term Loans or Revolving Credit Loans shall be in a multiple
of $100,000 and in an aggregate principal amount of at least $1,000,000 and each
partial prepayment of Swingline Loans shall be in a multiple of $10,000 and in
an aggregate principal amount of at least $100,000, PROVIDED that no partial
prepayment of LIBOR Term Loans or LIBOR Revolving Credit Loans made pursuant to
a single Borrowing shall reduce the outstanding LIBOR Term Loans or LIBOR
Revolving Credit Loans made pursuant to such Borrowing to an amount less than
the Minimum Borrowing Amount for LIBOR Term Loans or LIBOR Revolving Credit
Loans and (c) any prepayment of LIBOR Term Loans or LIBOR Revolving Credit 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. Each prepayment in respect of any
tranche of Term Loans pursuant to this Section 5.1 shall be applied to reduce
Repayment Amounts in such order as the Borrower may determine. At the Borrower's
election in connection with any prepayment pursuant to this Section 5.1, such
prepayment shall not be applied to any Term Loan or Revolving Credit Loan of a
Defaulting Lender.
5.2. MANDATORY PREPAYMENTS.
(a) TERM LOAN PREPAYMENTS. (i) On each occasion that a Prepayment
Event occurs, the Borrower shall, within one Business Day after the occurrence
of a Debt Incurrence Prepayment Event and within five Business Days after the
occurrence of any other Prepayment Event, prepay, in accordance with paragraph
(c) below, the principal amount of Term Loans in an amount equal to 100% of the
Net Cash Proceeds from such Prepayment Event.
(ii) [INTENTIONALLY OMITTED].
(iii) [INTENTIONALLY OMITTED].
(iv) [INTENTIONALLY OMITTED].
(b) REPAYMENT OF REVOLVING CREDIT LOANS. If on any date the aggregate
amount of the Lenders' Revolving Credit Exposures (all the foregoing,
collectively, the "AGGREGATE REVOLVING CREDIT OUTSTANDINGS") exceeds 100% of the
Total Revolving Credit Commitment as then in effect, the Borrower shall
forthwith repay on such date the principal amount of Swingline Loans and, after
all Swingline Loans have been paid in full, Revolving Credit Loans in an amount
equal to such excess. If, after giving effect to the prepayment of all
outstanding Swingline Loans and Revolving Credit Loans, the Aggregate Revolving
Credit Outstandings exceed the Total Revolving Credit Commitment then in effect,
the Borrower shall pay to the Administrative Agent an amount in cash equal to
such excess and the Administrative Agent shall hold such payment for the benefit
of the Lenders as security for the obligations of the Borrower hereunder
(including obligations in respect of Letters of Credit Outstanding) pursuant to
a cash collateral agreement to be entered into in form and substance
satisfactory to the Administrative Agent (which shall permit certain Investments
in Permitted Investments satisfactory to the Administrative Agent, until the
proceeds are applied to the secured obligations).
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(c) APPLICATION OF REPAYMENT AMOUNTS. Each prepayment of Term Loans
required by Section 5.2(a)(i) shall be applied to reduce the Repayment Amounts
in such order as the Borrower may determine up to an amount equal to the
aggregate amount of the applicable Repayment Amounts required to be made by the
Borrower pursuant to Section 2.5(b) and (c) during the two year period
immediately following the date of the prepayment (such amount being, the
"AMORTIZATION AMOUNT"), PROVIDED that to the extent that the amount of the
prepayment exceeds the Amortization Amount, such excess shall be applied ratably
to reduce the then remaining Repayment Amounts under such Credit Facility. With
respect to each such prepayment, the Borrower will, not later than the date
specified in Section 5.2(a) for making such prepayment, give the Administrative
Agent telephonic notice (promptly confirmed in writing) requesting that the
Administrative Agent provide notice of such prepayment to each Tranche B Term
Loan Lender.
(d) APPLICATION TO TERM LOANS. With respect to each prepayment of
Tranche B Term Loans required by Section 5.2(a), the Borrower may designate the
Types of Loans that are to be prepaid and the specific Borrowing(s) pursuant to
which made, PROVIDED that LIBOR Term Loans made pursuant to a single Borrowing
shall reduce the outstanding Term Loans made pursuant to such Borrowing to an
amount less than the Minimum Borrowing Amount for LIBOR Loans such Borrowing
shall immediately be converted into ABR Loans. In the absence of a designation
by the Borrower as described in the preceding sentence, the Administrative Agent
shall, subject to the above, make such designation in its reasonable discretion
with a view, but no obligation, to minimize breakage costs owing under Section
2.11.
(e) APPLICATION TO REVOLVING CREDIT LOANS. With respect to each
prepayment of Revolving Credit Loans required by Section 5.2(b), the Borrower
may designate (i) the Types of Loans that are to be prepaid and the specific
Borrowing(s) pursuant to which made and (ii) the Revolving Credit Loans to be
prepaid, PROVIDED that (w) LIBOR Revolving Credit Loans may be designated for
prepayment pursuant to this Section 5.2 only on the last day of an Interest
Period applicable thereto unless all LIBOR Loans with Interest Periods ending on
such date of required prepayment and all ABR Loans have been paid in full; (x)
if any prepayment by the Borrower of LIBOR Revolving Credit Loans made pursuant
to a single Borrowing shall reduce the outstanding Revolving Credit Loans made
pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount
for LIBOR Revolving Credit Loans, such Borrowing shall immediately be converted
into ABR Loans; (y) each prepayment of any Loans made pursuant to a Borrowing
shall be applied PRO RATA among such Loans; and (z) notwithstanding the
provisions of the preceding clause (y), no prepayment made pursuant to Section
5.2(a) or Section 5.2(b) of Revolving Credit Loans shall be applied to the
Revolving Credit Loans of any Defaulting Lender. In the absence of a designation
by the Borrower as described in the preceding sentence, the Administrative Agent
shall, subject to the above, make such designation in its reasonable discretion
with a view, but no obligation, to minimize breakage costs owing under Section
2.11.
(f) LIBOR INTEREST PERIODS. In lieu of making any payment pursuant to
this Section 5.2 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 Inter-
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est 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 5.2.
(g) [INTENTIONALLY OMITTED].
(h) Notwithstanding anything to the contrary contained in this Section
5.2 or elsewhere in this Agreement (including, without limitation, in Section
14.1), the Borrower shall have the option, in its sole discretion, to give the
Lenders with outstanding Term Loans the option to waive their PRO RATA share of
a mandatory repayment of Term Loans which is to be made pursuant to Section 5.2
(each such repayment, a "WAIVABLE MANDATORY REPAYMENT") upon the terms and
provisions set forth in this Section 5.2(i) except for Debt Incurrence
Prepayment Events for Indebtedness permitted to be incurred under Section
10.1(A)(o) or 10.1(A)(w). If the Borrower elects to exercise the option referred
to in the immediately preceding sentence, the Borrower shall give to the
Administrative Agent written notice of its intention to give the Lenders the
right to waive a Waivable Mandatory Repayment (including in such notice, the
aggregate amount of such proposed repayment) at least five Business Days prior
to the date of the proposed repayment, which notice the Administrative Agent
shall promptly forward to all Lenders with outstanding Term Loans (indicating in
such notice the amount of such repayment to be applied to each such Lender's
outstanding Term Loans). The Borrower's offer to permit the Lenders with
outstanding Term Loans to waive any such Waivable Mandatory Repayment may apply
to all or part of such repayment, PROVIDED that any offer to waive part of such
repayment must be made ratably to the Lenders with outstanding Term Loans on the
basis of their outstanding Term Loans. In the event that any such Lender with
outstanding Term Loans desires to waive its PRO RATA share of such Lender's
right to receive any such Waivable Mandatory Repayment in whole or in part, such
Lender shall so advise the Administrative Agent no later than 4:00 P.M. (New
York time) on the date which is two Business Days after the date of such notice
from the Administrative Agent (and the Administrative Agent shall promptly
thereafter notify the Borrower thereof), which notice shall also include the
amount such Lender desires to receive in respect of such repayment. If any
Lender with outstanding Term Loans does not reply to the Administrative Agent
within such two Business Day period, such Lender will be deemed not to have
waived any part of such repayment. If any Lender with outstanding Term Loans
does not specify an amount it wishes to receive, such Lender will be deemed to
have accepted 100% of its share of such repayment. In the event that any such
Lender waives all or part of its share of any such Waivable Mandatory Repayment,
the Borrower shall retain 100% of the amount so waived by such Lender.
Notwithstanding anything to the contrary contained above, if one or more Lenders
with outstanding Term Loans waives its right to receive all or any part of any
Waivable Mandatory Repayment, but less than all the Lenders with outstanding
Term Loans waive in full their right to receive 100% of the total payment
otherwise required with respect to the Term Loans, then the amount actually
applied to the repayment of Term Loans of Lenders which have waived all or any
part of their right to receive 100% of such repayment, shall be applied to each
then outstanding Borrowing of Term Loans on a PRO RATA basis (so that each
Lender with outstanding Term Loans shall, after giving effect to the application
of the respective repayment,
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maintain the same percentage (as determined for such Lender, but not the same
percentage that the other Lenders with outstanding Term Loans hold and not the
same percentage held by such Lender prior to repayment) of each Borrowing of
Term Loans which remains outstanding after giving effect to such application).
Notwithstanding anything to the contrary, Lenders shall not have the right to
waive mandatory repayments under Section 5.2(a) except as set forth in this
Section 5.2(h).
(i) If on any date on which Dollar Equivalents are determined pursuant
to Section 14.19(c), the Letter of Credit Outstandings with respect to Letters
of Credit denominated in Euros exceed $30,000,000, the Borrower shall, if such
excess is greater than or equal to $500,000, pay to the Administrative Agent at
the Payment Office on such date an amount of cash and/or Cash Equivalents equal
to the amount by which such Letter of Credit Outstandings exceed $30,000,000,
such cash and/or Cash Equivalents (i) to be held as security for all obligations
of the Borrower to the Lenders hereunder in a cash collateral account to be
established by the Administrative Agent on terms reasonably satisfactory to the
Administrative Agent and (ii) to be released to the Borrower from and after any
date on which Dollar Equivalents are determined pursuant to Section 14.19(c) and
on which the Letter of Credit Outstandings with respect to Letters of Credit
denominated in Euros are no longer in excess of $30,000,000.
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, the Letter of Credit Issuer or
the Swingline Lender, as the case may be, 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
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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 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 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.
(a) Interest on LIBOR Loans and, except as provided in the next
succeeding sentence, ABR Loans shall be calculated on the basis of a 360-day
year for the actual days elapsed. Interest on ABR Loans in respect of which the
rate of interest is calculated on the basis of the Prime Rate and interest on
overdue interest shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed.
(b) Fees and Letters of Credit Outstanding shall be calculated on the
basis of a 365- (or 366-, as the case may be) 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
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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.
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 obligation of each Lender and, if applicable, each Letter of Credit
Issuer to fund the Loans and issue the Letters of Credit requested to be made or
issued by it on the Closing Date shall be subject to the prior or concurrent
satisfaction of each of the conditions precedent set forth in this Section 6.
6.1. CONSUMMATION OF THE ACQUISITION. All conditions precedent to the
Acquisition shall be satisfied in accordance with the Acquisition Agreement and
the Acquisition shall, subject to Section 16 hereof, occur substantially
contemporaneously with the effectiveness of this Agreement and the initial
funding of the Loans hereunder, and no material provision or condition of the
Acquisition 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.
6.2. EXECUTED COUNTERPARTS OF THIS AGREEMENT. The Administrative Agent
shall have received this Agreement, duly executed by (A) each lender with a
Revolving Credit Commitment, (B) each Tranche B-1 Term Loan Lender and (C) each
of the other parties hereto.
6.3. EXECUTED COUNTERPART OF SUBSIDIARY GUARANTEE. The Administrative
Agent shall have received an executed counterpart of the Subsidiary Guarantee
from each of the parties thereto
6.4. CORPORATE AND OTHER PROCEEDINGS. The Administrative Agent shall
have received from each Credit Party a certificate, executed by an officer of
such Credit Party 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 such Credit Party (or a duly authorized committee
thereof) authorizing (A) the execution, delivery and performance of this
Agreement and the Security Documents to which such Credit Party is party (and
any other agreements relating thereto) and (B) in the case of the Borrower, 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 such Credit Party's jurisdiction of
organization) of such Credit
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Party; 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
such Credit Party from the secretary of state (or comparable body) of the
jurisdiction in which such Credit Party is organized, dated as of a recent date.
6.5. 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 I-1, (ii) a legal opinion from
Xxxxxxxx Xxxxxx & Finger, Delaware counsel to the Borrower, substantially in the
form of Exhibit I-2, (iii) a legal opinion from Xxxxxxx Xxxxxxxx Xxxxxx, Bermuda
counsel to the Borrower, substantially in the form of Exhibit I-3, (iv) a legal
opinion from White & Case LLP, special U.K. counsel to the Administrative Agent,
substantially in the form of Exhibit I-4, (v) a legal opinion from White & Case
LLP, special German counsel to the Administrative Agent, substantially in the
form of Exhibit I-5, (vi) a legal opinion from Xxxxx Xxxx & Fielding LLP, U.S.
regulatory counsel to the Borrower, substantially in the form of Exhibit I-6 and
(vii) such other opinions of counsel to the Borrower as may be reasonably
requested by the Administrative Agent or its counsel.
6.6. BORROWING REQUEST. The Borrower shall have provided the
Administrative Agent with a Notice of Borrowing two Business Days prior to the
Closing Date with respect to the borrowing of Revolving Credit Loans (if any)
and Tranche B Term Loans on the Closing Date.
6.7. 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 EXHIBITS L-1 and L-2 evidencing its
Tranche B Term Loans and Revolving Credit Loans, as applicable.
6.8. FEES. The Lenders shall have received the 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.
6.9. COLLATERAL. The Administrative Agent shall have received:
(a) the duly executed Bermuda Pledge Agreement;
(b) the duly executed German Pledge Agreement;
(c) the duly executed U.K. Pledge Agreement;
(d) the duly executed U.S. Pledge Agreement;
(e) the duly executed Bermuda Security Agreement;
(f) the duly executed U.K. Security Agreement;
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(g) the duly executed U.S. Security Agreement;
(h) all certificates, agreements or instruments representing or
evidencing the Collateral accompanied by instruments of transfer and stock
powers undated and endorsed in blank, and all other certificates,
agreements or instruments required to perfect the Administrative Agent's
security interest in the Collateral;
(i) all other certificates, agreements, or instruments necessary to
perfect the Administrative Agent's security interest in the Collateral; and
(j) UCC financing statements in appropriate form for filing under the
UCC, filings with the United States Patent and Trademark Office and United
States Copyright Office and such other documents under applicable
Requirements of Law in each jurisdiction as may be necessary or appropriate
or, in the opinion of the Administrative Agent, desirable to perfect the
Liens created, or purported to be created, by the Security Documents.
6.10. PERFECTION CERTIFICATE. The Administrative Agent shall have
received a completed Perfection Certificate substantially in the form of Exhibit
E, together with all attachments contemplated thereby.
6.11. INTERCOMPANY SUBORDINATION AGREEMENT. The Administrative Agent
shall have received a duly executed Intercompany Subordination Agreement
substantially in the form of EXHIBIT N.
SECTION 7. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS.
The agreement of each Lender to make any Loan requested to be made by
it on the Closing Date and any date thereafter (excluding Mandatory Borrowings)
and the obligation of the Letter of Credit Issuer to issue Letters of Credit on
the Closing Date and any date thereafter is subject to the satisfaction of the
following conditions precedent:
7.1. NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time of each
Credit Event 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 any Credit Party contained herein (other than, in the case of
Credit Events on the Closing Date only, those contained in Sections 8.4, 8.8,
8.9, 8.10, 8.11, 8.12, 8.13, 8.14, 8.15, 8.16, 8.18 and 8.19) or in the other
Credit Documents shall be true and correct in all material respects with the
same effect as though such representations and warranties had been made on and
as of the date of such Credit Event (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).
7.2. NOTICE OF BORROWING; LETTER OF CREDIT REQUEST.
(a) Prior to the making of each Term Loan, each Revolving Credit Loan
(other than any Revolving Credit Loan made pursuant to Section 3.4(a)) and each
Swingline
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Loan, the Administrative Agent shall have received a Notice of Borrowing
(whether in writing or by telephone) meeting the requirements of Section 2.3.
(b) Prior to the issuance of each Letter of Credit, the Administrative
Agent and the Letter of Credit Issuer shall have received a Letter of Credit
Request meeting the requirements of Section 3.2(a).
7.3. INTELSAT LTD. NOTES CONDITION. At the time of each Credit Event
(other than the making of Term Loans on the Closing Date), the Intelsat Ltd.
Notes Condition shall have been satisfied.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by each Credit Party to each of the Lenders that all
the applicable conditions specified above exist as of that time.
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,
Holdings and the Borrower make the following representations and warranties to,
and agreements with, the Lenders, all of which shall survive the execution and
delivery of this Agreement and the making of the Loans and the issuance of the
Letters of Credit:
8.1. CORPORATE STATUS. Each of Holdings, the Borrower and each
Material Subsidiary (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. Each Credit Party 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
which it is a party. Each Credit Party 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 such
Credit Party 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
any Credit Party 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
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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 Holdings, 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 Holdings, 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 Holdings or 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 Acquisition 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) filings and recordings in respect
of the Liens created pursuant to the Security Documents, (iii) filings with the
United States Patent and Trademark Office and the United States Copyright Office
and comparable offices in foreign jurisdictions and equivalent filings in
foreign jurisdictions, (iv) such FCC consents, approvals, registrations, and
filings as may be required in connection with the exercise of rights under the
Security Documents following an Event of Default, (v) 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, (vi) 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 (vii) 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. Neither Holdings nor the Borrower is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
8.8. TRUE AND COMPLETE DISCLOSURE.
(a) None of the factual information and data (taken as a whole)
heretofore or contemporaneously furnished by Holdings, the Borrower, any of the
Subsidiaries or any of their respective authorized representatives in writing to
the Administrative Agent and/or any Lender in connection with this Agreement
(including (i) the Confidential Information Memorandum and (ii) all information
contained in the Credit Documents currently in effect) for purposes of or in
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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. (a) The unaudited
historical consolidated financial information of the Borrower as set forth in
the Confidential Information Memorandum, and (b) the Historical Financial
Statements, in each case present or will, when provided, present 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). The
financial statements referred to in clause (b) of this Section 8.9 have been
prepared in accordance with GAAP consistently applied except to the extent
provided in the notes to said financial statements. 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) Holdings, 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 (a) not yet delinquent or (b)
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 Regulation Section
1.6011-4, except as could not reasonably be likely to, individually or in the
aggregate, have a Material Adverse Effect.
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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 Confidential Information 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. SCHEDULE 8.12 to this Agreement lists each
Subsidiary of the Borrower (and the direct and indirect ownership interest of
the Borrower therein), in each case existing on the Closing Date. To the
knowledge of the Borrower, after due inquiry, each Material Subsidiary as of the
Closing Date has been so designated on SCHEDULE 8.12 to this Agreement. All of
the outstanding capital stock of the Borrower is owned by Holdings.
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8.13. PATENTS, ETC. Holdings, the Borrower and each of the Restricted
Subsidiaries have obtained all patents, trademarks, servicemarks, trade names,
copyrights, licenses and other rights, 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) Holdings, the Borrower and each of the Subsidiaries and all
Real Estate are in compliance with all Environmental Laws; (ii) none of
Holdings, the Borrower, or any of the Subsidiaries is subject to any
Environmental Claim or any other liability under any Environmental Law; (iii)
Holdings, 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 Holdings, the Borrower or any of its Subsidiaries.
(b) None of Holdings, 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. (a) Holdings, 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 and (b) no Mortgage encumbers improved Real Estate that
is located in an area that has been identified by the Secretary of Housing and
Urban Development as an area having special flood hazards within the meaning of
the National Flood Insurance Act of 1968 unless flood insurance available under
such Act has been obtained in accordance with Section 9.3.
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, each of Holdings and
the Borrower, in each case on a consolidated basis with their respective
Subsidiaries, will be Solvent.
8.17. [INTENTIONALLY OMITTED].
8.18. FCC LICENSES, ETC. As of the Closing Date, SCHEDULE 8.18 hereto
accurately and completely lists for each Satellite (a) all space station
licenses for the launch and operation of Satellites with C-band or Ku-band
transponders issued by the FCC to Holdings, the Borrower or any Restricted
Subsidiary and (b) all licenses and all other approvals, orders or
authorizations issued or granted by any Governmental Authority outside of the
United States of America to launch and operate any such Satellite. As of the
Closing Date, the FCC Licenses and
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the other licenses, approvals or authorizations listed on SCHEDULE 8.18 hereto
with respect to any Satellite include all material authorizations, licenses and
permits issued by the FCC or any other Governmental Authority that are required
or necessary to launch or operate such Satellite, as applicable. Except as could
not reasonably be expected to have a Material Adverse Effect, each of the
Subject Licenses is held in the name of a License Subsidiary and is validly
issued and in full force and effect, and Holdings, the Borrower and its
Restricted Subsidiaries have fulfilled and performed in all respects all of
their obligations with respect thereto and have full power and authority to
operate thereunder.
8.19. SATELLITES. As of the Closing Date, SCHEDULE 8.19 hereto
accurately and completely lists each of the Satellites owned by the Holdings,
Borrower and its Restricted Subsidiaries on the Closing Date, and sets forth for
each such Satellite that is in orbit, the orbital slot and number and frequency
band of the transponders on such Satellite.
SECTION 9. AFFIRMATIVE COVENANTS.
Holdings and the Borrower hereby covenant and agree that on the
Closing Date and thereafter, until the Commitments, the Swingline Commitment and
each Letter of Credit have terminated and the Loans and Unpaid Drawings,
together with interest, Fees and all other Obligations incurred hereunder, are
paid in full:
9.1. INFORMATION COVENANTS. Holdings and the Borrower will furnish to
each Lender and the Administrative Agent:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available and in any event
on or before the date on which such financial statements are required to be
filed with the SEC or delivered to the holders of the Senior Notes (or, if
such financial statements are not required to be filed with the SEC or
delivered to the holders of the Senior Notes, on or before the date that is
120 days after the end of each such fiscal year), (A) the consolidated
balance sheets of the Borrower and the Subsidiaries and Holdings and its
Subsidiaries as at the end of such fiscal year, and the related
consolidated statement of operations and cash flows for such fiscal year,
setting forth comparative consolidated figures for the preceding fiscal
year, and certified by independent certified public accountants of
recognized national standing whose opinion shall not be qualified as to the
scope of audit (except with respect to Intelsat General Corporation) or as
to the status of Holdings (if applicable), the Borrower or any of the
Material Subsidiaries (or group of Subsidiaries that together would
constitute a Material Subsidiary) as a going concern, together in any event
with a certificate of such accounting firm stating that in the course of
its regular audit of the business of Holdings (if applicable), the Borrower
and the Material Subsidiaries, which audit was conducted in accordance with
generally accepted auditing standards, such accounting firm has obtained no
knowledge of any Default or Event of Default relating to Section 11 that
has occurred and is continuing or, if in the opinion of such accounting
firm such a Default or Event of Default has occurred and is continuing, a
statement as to the nature thereof, and (B) if the Borrower had any
Unrestricted Subsidiaries during any period covered by the financial
information set forth in clause (A), a reasonably detailed break-out of
such financial information showing amounts attributable to the Restricted
Subsidiaries as a whole and the Unrestricted Subsidiaries as a whole. The
filing
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by Intelsat, Ltd., Holdings or any other direct or indirect parent entity
of the Borrower of its Form 20-F or Form 10-K (or any successor or
comparable forms) with the SEC as at the end of and for any fiscal year,
reported on as aforesaid, shall be deemed to satisfy the obligations under
the reporting portion of this paragraph with respect to such year so long
as such filing includes (i) a consolidating footnote setting forth the
consolidated balance sheets of (x) the Borrower and the Subsidiaries and
(y) Holdings, Borrower and the Subsidiaries as at the end of such fiscal
year, and the related consolidated statement of operations and cash flows
for such fiscal year, (ii) a "Management's Discussion and Analysis of
Financial Condition and Results of Operations" (in the case of a Form 10-K)
or an "Operating and Financial Review and Prospects" discussion (in the
case of a Form 20-F) that includes a reasonably detailed analysis of the
operating results and financial condition (considered separately from the
other Subsidiaries of Intelsat, Ltd., where material) of Holdings and its
Subsidiaries, and (iii) if the Borrower had any Unrestricted Subsidiaries
during any period covered by the financial information set forth in clauses
(i) and (ii), a reasonably detailed break-out of such financial information
showing amounts attributable to the Restricted Subsidiaries as a whole and
the Unrestricted Subsidiaries as a whole.
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in any
event on or before the date on which such financial statements are required
to be filed with the SEC or delivered to the holders of the Senior Notes
with respect to each of the first three quarterly accounting periods in
each fiscal year of Holdings and the Borrower (or, if such financial
statements are not required to be filed with the SEC or delivered to the
holders of the Senior Notes, on or before the date that is 60 days after
the end of each such quarterly accounting period), (A) the consolidated
balance sheet of (i) the Borrower and the Restricted Subsidiaries, (ii) the
Borrower and its Subsidiaries and (iii) Holdings and its Subsidiaries, in
each case as at the end of such quarterly period and the related
consolidated statement of operations for such quarterly accounting period
and for the elapsed portion of the fiscal year ended with the last day of
such quarterly period, and the related consolidated statement of cash flows
for the elapsed portion of the fiscal year ended with the last day of such
quarterly period, and setting forth comparative consolidated figures for
the related periods in the prior fiscal year or, in the case of such
consolidated balance sheet, for the last day of the prior fiscal year, all
of which shall be certified by an Authorized Officer of the Borrower or
Holdings, as applicable, subject to changes resulting from audit and normal
year-end audit adjustments, and (B) if the Borrower had any Unrestricted
Subsidiaries during any period covered by the financial information set
forth in clause (A), a reasonably detailed break-out of such financial
information showing amounts attributable to the Restricted Subsidiaries as
a whole and the Unrestricted Subsidiaries as a whole. The furnishing by
Intelsat, Ltd., Holdings or any other direct or indirect parent entity of
the Borrower of its Form 6-K (or any successor or comparable forms)
relating to its quarterly financial statements or the filing of a Form 10-Q
(or any successor or comparable forms) with the SEC as at the end of and
for any fiscal quarter, certified as aforesaid, shall be deemed to satisfy
the reporting obligations under this paragraph with respect to such quarter
so long as such filing includes (i) a consolidating footnote setting forth
the consolidated balance sheets of (x) the Borrower and the Restricted
Subsidiaries and (y) Holdings, Borrower and the Restricted Subsidiaries as
at the end of
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such fiscal year, and the related consolidated statement of operations and
cash flows for such fiscal year, and (ii) a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" (in the case of
a Form 10-Q) or, in the case of a Form 6-K, an "Operating and Financial
Review and Prospects" discussion complying with the requirements of Form
20-F (adjusted to reflect quarterly rather than annual reporting,
consistent with the differences in the form requirements of Form 10-K and
Form 10-Q) that includes a reasonably detailed analysis of the operating
results and financial condition (considered separately from the other
Subsidiaries of Intelsat, Ltd., where material) of Holdings and its
Subsidiaries, and (iii) if the Borrower had any Unrestricted Subsidiaries
during any period covered by the financial information set forth in clauses
(i) and (ii), a reasonably detailed break-out of such financial information
showing amounts attributable to the Restricted Subsidiaries as a whole and
the Unrestricted Subsidiaries as a whole.
(c) BUDGETS. Within 60 days after the commencement of each fiscal
year of Holdings and the Borrower, budgets of Holdings and the Borrower in
reasonable detail for such fiscal year as customarily prepared by
management of Holdings and the Borrower for their internal use consistent
in scope with the financial statements PROVIDED pursuant to Section 9.1(a),
setting forth the principal assumptions upon which such budgets are based.
(d) OFFICER'S CERTIFICATES. At the time of the delivery of the
financial statements provided for in Sections 9.1(a) and (b), a certificate
of an Authorized Officer of the Borrower to the effect that no Default or
Event of Default exists or, if any Default or Event of Default does exist,
specifying the nature and extent thereof, which certificate shall set forth
(i) the calculations required to establish whether the Borrower and the
Subsidiaries were in compliance with the provisions of Section 11 as at the
end of such fiscal year or period, as the case may be and, if such
certificate demonstrates an Event of Default of the covenant under Section
11 which has not been cured previously, any of the Permitted Holders may
deliver, together with such certificate, notice of their intent to cure (a
"NOTICE OF INTENT TO CURE") such Event of Default pursuant to Section 11(b)
or 12.14; PROVIDED that unless and until such Event of Default shall have
been cured or waived, the delivery of a Notice of Intent to Cure shall in
no way affect or alter the occurrence, existence or continuation of any
such Event of Default or the rights, benefits, powers and remedies of the
Administrative Agent and the Lenders under any Loan Document, (ii) a
specification of any change in the identity of the Restricted Subsidiaries,
Material Subsidiaries and Unrestricted Subsidiaries as at the end of such
fiscal year or period, as the case may be, from the Restricted Subsidiaries
and Unrestricted Subsidiaries, respectively, provided to the Lenders on the
Closing Date or the most recent fiscal year or period, as the case may be,
(iii) the then applicable Status and the calculations required to calculate
the Consolidated Total Debt to Consolidated EBITDA Ratio as of the last day
of the applicable Test Period and (iv) the amount of any Pro Forma
Adjustment not previously set forth in a Pro Forma Adjustment Certificate
or any change in the amount of a Pro Forma Adjustment set forth in any Pro
Forma Adjustment Certificate previously provided and, in either case, in
reasonable detail, the calculations and basis therefor. At the time of the
delivery of the financial statements provided for in Section 9.1(a), (i) a
certifi-
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cate of an Authorized Officer of the Borrower setting forth in reasonable
detail the Applicable Amount and the CI Contributions, if any, in each case
as at the end of the fiscal year to which such financial statements relate
and (ii) a certificate of an Authorized Officer and the chief financial or
legal officer (separate from the foregoing Authorized Officer) of the
Borrower or Intelsat, Ltd. setting forth the information required pursuant
to Section 1(a) of the Perfection Certificate or confirming that there has
been no change in such information since the Closing Date or the date of
the most recent certificate delivered pursuant to this subsection (d)(ii),
as the case may be.
(e) NOTICE OF DEFAULT OR LITIGATION. Promptly after an Authorized
Officer of the Borrower or any of the Subsidiaries obtains actual knowledge
thereof, notice of (i) the occurrence of any event that constitutes a
Default or Event of Default, which notice shall specify the nature thereof,
the period of existence thereof and what action the Borrower proposes to
take with respect thereto, (ii) any litigation or governmental proceeding
pending against Holdings, the Borrower or any of the Subsidiaries that
could reasonably be expected to result in a Material Adverse Effect or a
Material Adverse Change, and (iii) any actual or constructive total or
material partial loss event with respect to any Satellite.
(f) ENVIRONMENTAL MATTERS. Holdings and the Borrower will promptly
advise the Lenders in writing after obtaining actual knowledge of any one
or more of the following environmental matters, unless such environmental
matters would not, individually or when aggregated with all other such
matters, be reasonably expected to result in a Material Adverse Change:
(i) Any pending or threatened Environmental Claim against
Holdings, the Borrower or any of the Subsidiaries or any Real Estate;
(ii) Any condition or occurrence on any Real Estate that (x)
could reasonably be expected to result in noncompliance by the
Borrower or any of the Subsidiaries with any applicable Environmental
Law or (y) could reasonably be anticipated to form the basis of an
Environmental Claim against Holdings, the Borrower or any of the
Subsidiaries or any Real Estate;
(iii) Any condition or occurrence on any Real Estate that could
reasonably be anticipated to cause such Real Estate to be subject to
any restrictions on the ownership, occupancy, use or transferability
of such Real Estate under any Environmental Law; and
(iv) The conduct of any investigation, or any removal, remedial
or other corrective action in response to the actual or alleged
presence, release or threatened release of any Hazardous Material on,
at, under or from any Real Estate.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial action
and the response thereto. The term "REAL ESTATE" shall mean land, buildings
and improvements owned or leased by Holdings,
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the Borrower or any of the Subsidiaries, but excluding all operating
fixtures and equipment, whether or not incorporated into improvements.
(g) OTHER INFORMATION. Promptly upon filing thereof, copies of any
filings (including on Form 10-K, 20-F, 10-Q, 6-K or 8-K) or registration
statements with, and reports to, the SEC or any analogous Government
Authority in any relevant jurisdiction by Holdings, the Borrower or any of
the Subsidiaries (other than amendments to any registration statement (to
the extent such registration statement, in the form it becomes effective,
is delivered to the Lenders), exhibits to any registration statement and,
if applicable, any registration statements on Form S-8) and copies of all
financial statements, proxy statements, notices and reports that Holdings,
the Borrower or any of the Subsidiaries shall send to the holders of any
publicly issued debt of Holdings, the Borrower and/or any of the
Subsidiaries (including any Senior Notes (whether publicly issued or not))
in their capacity as such holders (in each case to the extent not
theretofore delivered to the Lenders pursuant to this Agreement) and, with
reasonable promptness, such other information (financial or otherwise) as
the Administrative Agent on its own behalf or on behalf of the Required
Lenders may reasonably request in writing from time to time; PROVIDED that
Holdings and the Borrower shall not be required to furnish any such reports
and other materials to the Administrative Agent or any Lender to the extent
the same is publicly available on the website of Intelsat, Ltd., Holdings
or the Borrower or through the XXXXX system.
(h) PRO FORMA ADJUSTMENT CERTIFICATE. Not later than the consummation
of the acquisition of any Acquired Entity or Business by the Borrower or
any Restricted Subsidiary for which there shall be a Pro Forma Adjustment
or not later than any date on which financial statements are delivered with
respect to any four-quarter period in which a Pro Forma Adjustment is made
as a result of the consummation of the acquisition of any Acquired Entity
or Business by the Borrower or any Restricted Subsidiary for which there
shall be a Pro Forma Adjustment, a certificate of an Authorized Officer of
the Borrower setting forth the amount of such Pro Forma Adjustment and, in
reasonable detail, the calculations and basis therefor.
(i) FCC REPORTS. Promptly upon their becoming available, copies of
any and all periodic or special reports filed by Holdings, the Borrower or
any of its Restricted Subsidiaries with the FCC or with any other Federal,
state or local governmental authority, if such reports indicate any
material adverse change in the business, operations, affairs or condition
of the Borrower or any of its Restricted Subsidiaries, and copies of any
and all notices and other communications from the FCC or from any other
Federal, state or local governmental authority with respect to Holdings,
the Borrower, any of its Subsidiaries or any Satellite relating to any
matter that could reasonably be expected to result in a Material Adverse
Effect.
(j) SATELLITE HEALTH REPORT. No less than annually with respect to
each In-Orbit Satellite that has a net book value exceeding $50,000,000,
and upon the occurrence of an Event of Default at any time upon the
reasonable request of the Administrative Agent, (i) with respect to any one
or more In-Orbit Satellites operated by the Borrower or
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any of its Subsidiaries, a Satellite Health Report and (ii) with respect to
any In-Orbit Satellite that is operated by any Person other than the
Borrower or any of its Subsidiaries, any satellite health reports received
by the Borrower from such Person, it being understood that to the extent
that any such Satellite Health Report or other satellite health report
contains any forward looking statements, estimates or projections, such
statements, estimates or projections are subject to significant
uncertainties and contingencies, many of which are beyond the Borrower's or
any of its Subsidiaries' control, and no assurance can be given that such
forward looking statements, estimates or projections will be realized, and
PROVIDED that nothing in this clause (j) shall require the Borrower to
deliver any information to the Administrative Agent or any Lender to the
extent delivery of such information is restricted by applicable law or
regulation.
9.2. BOOKS, RECORDS AND INSPECTIONS. Holdings and the Borrower will,
and the Borrower will cause each of the Subsidiaries to, permit officers and
designated representatives of the Administrative Agent or the Required Lenders
to visit and inspect any of the properties or assets Holdings, the Borrower and
any such Subsidiary in whomsoever's possession to the extent that it is within
such party's control to permit such inspection, and to examine the books and
records of Holdings, the Borrower and any such Subsidiary and discuss the
affairs, finances and accounts of Holdings, the Borrower and of any such
Subsidiary with, and be advised as to the same by, its and their officers and
independent accountants, all at such reasonable times and intervals and to such
reasonable extent as the Administrative Agent or the Required Lenders may
desire; PROVIDED that so long as no Default or Event of Default is then in
existence, the Borrower and any Credit Party shall have the right to participate
in any discussions of the Agents or the Lenders with any independent accountants
of Holdings or the Borrower.
9.3. MAINTENANCE OF INSURANCE.
(a) The Borrower will, and the Borrower 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
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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, 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.
(b) The Borrower will, and the Borrower will cause each of its
Restricted Subsidiaries to, use its reasonable best efforts to at all times keep
the respective property of the Borrower and its Restricted Subsidiaries (except
(x) real or personal property leased or financed through third parties in
accordance with this Agreement and (y) satellites) insured in favor of the
Administrative Agent for the benefit of the Secured Parties, and all policies or
certificates with respect to such insurance (and any general liability, umbrella
liability coverage and workers' compensation insurance (to the extent permitted
by law) maintained by, or on behalf of, the Borrower or any Restricted
Subsidiary of the Borrower) (i) shall be endorsed to the Administrative Agent's
reasonable satisfaction for the benefit of the Administrative Agent (including,
without limitation, by naming the Administrative Agent as certificate holder,
mortgagee and loss payee with respect to real property, certificate holder and
loss payee with respect to personal property, additional insured with respect to
general liability and umbrella liability coverage and (to the extent permitted
by law) certificate holder with respect to workers' compensation insurance),
(ii) shall state that such insurance policies shall not be cancelled or
materially changed without at least 30 days' prior written notice thereof by the
respective insurer to the Administrative Agent, PROVIDED that with respect to
any launch insurance or In-Orbit Insurance, such notice is available, and if
available, on such terms as may be available, and (iii) shall, upon the request
of the Administrative Agent, be deposited with the Administrative Agent for the
benefit of the Secured Parties.
(c) If the Borrower or any of its Restricted Subsidiaries shall fail
to maintain all insurance in accordance with this Section 9.03, or if the
Borrower or any of its Restricted Subsidiaries shall fail to so name the
Administrative Agent for the benefit of the Secured Parties as an additional
insured, mortgagee or loss payee, as the case may be, or so deposit all
certificates with respect thereto, the Administrative Agent shall have the right
(but shall be under no obligation), upon reasonable prior notice to the Borrower
of its intention to do so, to procure
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such insurance on such terms and against such risks as are required hereby, and
the Borrower agrees to reimburse the Administrative Agent for any premium paid
therefor.
9.4. PAYMENT OF TAXES The Borrower will pay and discharge, and the
Borrower will cause each of the 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 the Restricted Subsidiaries, PROVIDED that
none of the Borrower or any of the 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 10.3, 10.4 or 10.5.
9.6. COMPLIANCE WITH STATUTES, REGULATIONS, ETC. The Borrower will,
and the Borrower 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, proposed 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 (includ-
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ing 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 the Borrower
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. TRANSACTIONS WITH AFFILIATES. The Borrower will conduct, and
cause each of the Restricted Subsidiaries to conduct, all transactions with any
of its Affiliates (other than the Borrower or its Restricted Subsidiaries)
involving aggregate consideration in excess of $10,000,000 on terms that are
substantially as favorable to the Borrower or such Restricted Subsidiary as it
would obtain in a comparable arm's-length transaction with a Person that is not
an Affiliate, PROVIDED that the foregoing restrictions shall not apply to (a)
the payment, on a quarterly basis, of management and consulting fees to the
Sponsors in an aggregate amount not to exceed in any fiscal year of the Borrower
the greater of (x) $6,250,000 and (y) 1.25% of Consolidated EBITDA of the
Borrower and its Restricted Subsidiaries for the immediately preceding fiscal
year, (b) upon the consummation of a Qualified IPO, as consideration for the
termination of existing management, consulting or financial or similar services
agreements between the Borrower and the Sponsors, one-time payments to the
Sponsors in an amount no greater than that calculated in accordance with the
Monitoring Fee Agreement among the Sponsors and the Borrower (or any parent of
the Borrower), as such agreement is in effect on the date hereof or as modified,
amended or supplemented in any manner not materially adverse to the Lenders, (c)
the payment of customary investment banking fees paid to the Sponsors for
services rendered to the Borrower and the Restricted Subsidiaries in connection
with divestitures, acquisitions, financings and other transactions, (d)
transactions conducted in accordance with the Intercompany Services Agreement as
in effect on the date hereof or as modified, amended or supplemented in any
manner not materially adverse to the Lenders, (e) the Transactions and
transactions to effect the same, including the payment of fees and expenses
related thereto, (f) customary fees paid to and
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customary indemnities provided to members of the board of directors of the
Borrower, its parent entities and the Subsidiaries, (g) transactions permitted
by Section 10.1, 10.3, 10.5 or 10.6, (h) employment and other compensation
arrangements with respect to the procurement of services of officers,
consultants and employees in the ordinary course of business, (i) the issuance
of equity interests in Holdings to any Permitted Holder or to any director,
officer, employee or consultant of the Borrower or any parent or Subsidiary of
the Borrower, (j) the entering into of any tax sharing agreement or arrangement
relating to payments, whether directly or by dividend, by the Borrower or a
Restricted Subsidiary to any parent of the Borrower if such parent 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), (k)
agreements in effect on the Closing Date and listed on SCHEDULE 9.9 and
amendments thereto not materially disadvantageous to the Lenders, (l) any
transaction effected as part of a Qualified Receivables Financing and (m)
transactions between the Borrower or any of its Restricted Subsidiaries and any
Person a director or directors of which is (are) also a director of Holdings or
any parent of Holdings, PROVIDED that such director(s) abstain(s) from voting as
a director of Holdings or such parent, as the case may be, on any matter
involving such Person.
9.10. END OF FISCAL YEARS; FISCAL QUARTERS. Holdings and the Borrower
will, for financial reporting purposes, cause (a) each of their, and each of
their respective Subsidiaries', fiscal years to end on December 31 of each year
and (b) each of their, and each of their respective Subsidiaries', fiscal
quarters to end on dates consistent with such fiscal year-end and the Borrower's
past practice; PROVIDED, HOWEVER, that the Borrower may, upon written notice to
the Administrative Agent, change the financial reporting convention specified
above to any other financial reporting convention reasonably acceptable to the
Administrative Agent, in which case Holdings, the Borrower and the
Administrative Agent will, and are hereby authorized by the Lenders to, make any
adjustments to this Agreement that are necessary in order to reflect such change
in financial reporting.
9.11. ADDITIONAL GUARANTORS AND GRANTORS. Except as set forth in
Section 10.1(A)(j) or (A)(k), the Borrower will cause (i) each direct or
indirect Material Subsidiary (other than any Unrestricted Subsidiary or a
Receivables Subsidiary) formed or otherwise purchased or acquired after the
Closing Date (including pursuant to a Permitted Acquisition), (ii) each
Subsidiary (other than any Unrestricted Subsidiary) that is not a Material
Subsidiary on the Closing Date but subsequently becomes a Material Subsidiary
and (iii) each inactive Subsidiary listed on Schedule 1.1(d) hereto (unless such
Subsidiary is designated an Unrestricted Subsidiary in accordance with terms of
this Agreement) which acquires any material assets or is otherwise no longer
deemed inactive, in each case to execute a supplement to the Guarantee in the
form of Annex B thereto and a Supplemental Security Agreement; PROVIDED,
HOWEVER, that no Foreign Subsidiary shall be required to take such actions if,
and to the extent that, based upon written advice of local counsel reasonably
satisfactory to the Administrative Agent, the Borrower and/or such Foreign
Subsidiary concludes that the taking of such actions would violate the laws of
the
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jurisdiction in which such Foreign Subsidiary is organized; PROVIDED FURTHER,
that if steps (for example, limiting the amount guaranteed) can be taken so that
such violation would not exist, then, if requested by the Administrative Agent,
the respective Foreign Subsidiary shall enter into a modified Guarantee and/or
modified Security Documents that provide, to the maximum extent permissible
under applicable law, as many of the benefits as possible as are provided
pursuant to the Guarantee and the Security Documents executed and delivered on
the Closing Date.
9.12. PLEDGES OF ADDITIONAL STOCK AND EVIDENCE OF INDEBTEDNESS.
(a) Except as set forth in Section 10.1(A)(j) or (A)(k), Holdings will
pledge as a first priority Lien the capital stock of the Borrower and the
Borrower will pledge, and, if applicable, will cause each Material Subsidiary to
pledge, to the Administrative Agent for the benefit of the Secured Parties, (i)
all the capital stock of each Subsidiary (other than any Unrestricted
Subsidiary) and Minority Investments other than, up to an aggregate Fair Market
Value of $30,000,000, Minority Investments with a Fair Market Value of less than
$15,000,000 (unless such pledge is prohibited by an applicable joint venture,
shareholder or similar agreement) and held by the Borrower or a Subsidiary
Guarantor, in each case, formed or otherwise purchased or acquired after the
Closing Date, in each case pursuant to a supplement to the applicable Pledge
Agreement (or, if necessary, a new pledge agreement) in form and substance
reasonably satisfactory to the Administrative Agent, (ii) all evidences of
Indebtedness in excess of $1,000,000 received by the Borrower or any Subsidiary
Guarantor in connection with any disposition of assets pursuant to Section
10.4(b), in each case pursuant to a supplement to the applicable Pledge
Agreement (or, if necessary, a new pledge agreement) in form and substance
reasonably satisfactory to the Administrative Agent, and (iii) any global
promissory notes executed after the Closing Date evidencing Indebtedness of the
Borrower, each Subsidiary and each Minority Investment that is owing to the
Borrower or any Subsidiary Guarantor, in each case pursuant to a supplement to
the applicable Pledge Agreement (or, if necessary, a new pledge agreement) in
form and substance reasonably satisfactory to the Administrative Agent.
(b) Holdings and the Borrower agrees that all Indebtedness in excess
of $20,000,000 of Holdings, the Borrower and each Subsidiary that is owing to
any Credit Party to the Pledge Agreement shall be evidenced by one or more
global promissory notes.
(c) At all times on and after the Closing Date, Holdings and the
Borrower will cause each obligor and obligee of any loan or advance (including,
without limitation, pursuant to guarantees thereof or security thereof) which
are (x) made to the Borrower by Holdings or any of the Borrower's Subsidiaries
or (y) made to any Credit Party by a Subsidiary of the Borrower that is not a
Credit Party prior to the extension or incurrence of such loan or advance, to
execute and deliver to the Administrative Agent an intercompany subordination
agreement substantially in the form of Exhibit I (as modified, amended or
supplemented from time to time, the "INTERCOMPANY SUBORDINATION AGREEMENT") or,
to the extent the Intercompany Subordination Agreement has previously come into
effect, a joinder agreement in respect of the Intercompany Subordination
Agreement and, in connection therewith, promptly execute and deliver all further
instruments, and take all further action, that the Administrative Agent may
reasonably require; PROVIDED that no such Intercompany Subordination Agreement
is required to be entered into in re-
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spect of intercompany loans and advances in the aggregate not exceeding
$20,000,000, and with such further exceptions as the Administrative Agent may
agree.
9.13. USE OF PROCEEDS. The Borrower will use the Letters of Credit and
the proceeds of all Loans for the purposes set forth in the introductory
statement to this Agreement.
9.14. CHANGES IN BUSINESS.
(a) The Borrower and the Subsidiaries, taken as a whole, will not
fundamentally and substantively alter the character of their business, taken as
a whole, from the business conducted or proposed to be conducted by the Borrower
and the Subsidiaries, taken as a whole, on the Closing Date and other business
activities that are complementary, ancillary incidental or related to,
reasonably similar to or a reasonable extension, development or expansion of any
of the foregoing (a "PERMITTED BUSINESS").
(b) No License Subsidiary will engage in any line or lines of business
activity other than to hold FCC Licenses issued to it and to enter into
arrangements with the Borrower or other Restricted Subsidiaries (other than
other License Subsidiaries) to manage and operate such FCC Licenses under its
direction and control, in each case to the maximum extent permitted by
applicable law. The Borrower will cause all Subject Licenses at all times to be
held in the name of a License Subsidiary (which shall be the sole legal and
beneficial owner thereof). Any license issued after the Closing Date by the FCC
that constitutes a Subject License shall be held in the name of a License
Subsidiary (which shall be the sole legal and beneficial owner thereof).
9.15. FURTHER ASSURANCES.
(a) Holdings and the Borrower will, and will cause each other Credit
Party to, execute any and all further documents, financing statements,
agreements and instruments, and take all such further actions (including the
filing and recording of financing statements, fixture filings, mortgages, deeds
of trust and other documents), which may be required under any applicable law,
or which the Administrative Agent or the Required Lenders may reasonably
request, in order to grant, preserve, protect and perfect the validity and
priority of the security interests created or intended to be created by the
Security Agreements, the Pledge Agreements or any Mortgage, all at the expense
of Holdings, the Borrower and the Restricted Subsidiaries.
(b) If any assets (including any real estate or improvements thereto
or any interest therein) with a book value or fair market value in excess of
$15,000,000 are acquired by the Borrower or any other Credit Party after the
Closing Date (other than assets constituting Collateral under the Security
Agreements that become subject to the Lien of the Security Agreement upon
acquisition thereof) that are of the nature secured by the Security Agreements
or any Mortgage, as the case may be, the Borrower will notify the Administrative
Agent and the Lenders thereof, and, if requested by the Administrative Agent or
the Required Lenders, the Borrower will cause such assets to be subjected to a
Lien securing the applicable Obligations and will take, and cause the other
Credit Parties to take, such actions as shall be necessary or reasonably
requested by the Administrative Agent to grant and perfect such Liens (unless,
with respect to any such asset, same is subject to one or more agreements or
Liens permitted hereunder which agreements or Lien(s) prohibit the granting of a
security interest thereon as contemplated by this
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clause (b), in which case the actions otherwise required by this Section 9.15(b)
with respect to such asset shall not be required to be taken until such
prohibitions cease to be applicable) consistent with the applicable requirements
of the Security Documents, including actions described in paragraph (a) of this
Section 9.15, all at the expense of the Credit Parties. Any Mortgage delivered
to the Administrative Agent in accordance with the preceding sentence or
pursuant to Section 9.15(c) shall be accompanied by (x) a policy or policies of
title insurance issued by a nationally recognized title insurance company
insuring the Lien of each Mortgage as a valid first Lien on the Mortgaged
Property described therein, free of any other Liens except as expressly
permitted by Section 10.2, together with such endorsements, coinsurance and
reinsurance as the Administrative Agent may reasonably request and (y) an
opinion of local counsel to the Borrower (or in the event a Subsidiary of the
Borrower is the mortgagor, to such Subsidiary) in form and substance
satisfactory to the Administrative Agent. Any provision contained herein or in
the Security Documents to the contrary notwithstanding, the Collateral shall not
include at any time any FCC License to the extent (but only to the extent) that
at such time the Administrative Agent may not validly possess a security
interest therein pursuant to the Communications Act of 1934, as amended, and the
regulations promulgated thereunder, as in effect at such time, but the
Collateral shall include, to the maximum extent permitted by law, all rights
incident or appurtenant to the FCC Licenses and the right to receive all
proceeds derived from or in connection with the sale, assignment or transfer of
the FCC Licenses.
(c) The Borrower shall use, and shall cause its Subsidiaries to use,
their commercially reasonable best efforts to deliver to the Administrative
Agent for the benefit of the Secured Parties as promptly as practicable
following the Closing Date a fully executed Mortgage, which Mortgage shall
encumber such Real Property designated on Schedule 9.15(c), together with the
accompanying deliveries as set forth in Section 9.15(b).
9.16. ACCESS AND COMMAND CODES.
(a) The Borrower will, and will cause each of the Restricted
Subsidiaries, at the request of the Administrative Agent to use commercially
reasonable efforts to obtain promptly from each provider (other than the
Borrower) of tracking, telemetry, control and monitoring services for any
Satellite, consents and agreements with the Administrative Agent to:
(i) deliver expeditiously to the Administrative Agent, upon
notification by the Administrative Agent that an acceleration pursuant to
Section 12 has occurred, subject to having obtained any consent or approval
of, or registration or filing with, any Governmental Authority for such
delivery, all access codes, command codes and command encryption necessary
to establish access to and perform tracking, telemetry, control and
monitoring of any such Satellite, including activation and control of any
spacecraft subsystems and payload components and the transponders thereon;
(ii) take commercially reasonable steps necessary, upon notification
by the Administrative Agent that an acceleration pursuant to Section 12 has
occurred, to obtain any consent or approval of, or registration or filing
with, any Governmental Authority required to effect any transfer of
operational control over any such Satellite and related technical data
(including any license approving the export or re-export of such Satellite
to any Person or Persons as designated by the Administrative Agent); and
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(iii) deliver to the Administrative Agent written evidence of the
issuance of any such consent, approval, registration or filing once such
consent, approval, registration or filing has been obtained;
(b) If, after having used its commercially reasonable efforts to
obtain the consents and agreements referred to in clause (i) above, any such
consents or agreements shall not have been so obtained, instruct each such
provider of tracking, telemetry, control and monitoring services (and each
Satellite Manufacturer in respect of Satellites that have yet to be launched, to
the extent that the Borrower or a Restricted Subsidiary does not have in its
possession all items referred to in clause (iii) below) to cooperate in
providing the access codes, command codes and command encryption referred to in
said clause (i), in each case subject to having obtained any consent or approval
of, or registration or filing with, any Governmental Authority for such
delivery; and
(c) At any time upon an acceleration pursuant to Section 12, and upon
notification thereof by the Administrative Agent, to promptly deliver to the
Administrative Agent, subject to having obtained any requisite consent or
approval of, or registration or filing with, any Governmental Authority for such
delivery, all access codes, command codes and command encryption necessary, in
the sole judgment of the Administrative Agent, to establish access to and
perform tracking, telemetry, control and monitoring of any Satellite, including
activation and control of any spacecraft subsystems and payload components and
the transponders thereon and any changes to or modifications of such codes and
encryption.
9.17. TTC&M PROVIDERS. The Borrower will, and will use its
commercially reasonable efforts to cause each provider (other than the Borrower)
of tracking, telemetry, control and monitoring services for any Satellite to
agree to, not change any access codes, command codes or command encryption
necessary to establish access to and perform tracking, telemetry, control and
monitoring of each Satellite at any time that an Event of Default exists and
such provider of tracking, telemetry, control and monitoring services, as the
case may be, has been notified by the Borrower or the Administrative Agent
thereof, without promptly furnishing to the Administrative Agent the new access
codes, command codes and command encryption necessary to establish access to and
perform tracking, telemetry, control and monitoring of such Satellite, once such
access codes, command codes and command encryption have been delivered to the
Administrative Agent pursuant to this Section 9.17.
9.18. MAINTENANCE OF RATING OF FACILITIES. The Borrower will cause a
senior secured credit rating with respect to the Credit Facilities from each of
S&P and Xxxxx'x to be available at all times hereafter until the last Maturity
Date under this Agreement.
9.19. INTELSAT GENERAL CORPORATION. The Borrower will use its
commercially reasonable efforts (as may be permitted under that certain proxy
agreement (the "PROXY AGREEMENT") among Intelsat General Corporation and the
other parties thereto), and will use its commercially reasonable efforts (as may
be permitted under the Proxy Agreement) to cause each of its Subsidiaries (other
than Intelsat General Corporation), not to allow or permit, directly or
indirectly, Intelsat General Corporation to take, or fail to take, any action
that would violate the covenants and terms of this Agreement or cause any
representation or warranty contained in this Agreement to be untrue.
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9.20. POST-CLOSING COVENANTS.
(a) Within 10 Business Days after the Closing Date (or such later date
as the Administrative Agent may agree) in its sole discretion, Borrower shall
deliver to the Administrative Agent a copy of, or a certificate as to coverage
under, the insurance policies required by Section 9.3 and the applicable
provisions of the Security Documents, each of which shall (i) have the
endorsements set forth in Section 9.3(b)(i), (ii) contain the statements set
forth in Section 9.3(b)(ii), and (iii) be in form and substance reasonably
satisfactory to the Administrative Agent.
(b) Within 10 Business Days after the Closing Date, each of Holdings,
the Borrower and each other Credit Party that is a Foreign Subsidiary shall have
designated and appointed, by separate written instrument, CT Corporation System,
000 Xxxxxx Xxxxxx, Xxx Xxxx, X.X. 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 other Credit Documents that
may be instituted in any federal or state court in the State of New York.
SECTION 10. NEGATIVE COVENANTS.
Each of Holdings and the Borrower hereby covenants and agrees that on
the Closing Date and thereafter, until the Commitments, the Swingline Commitment
and each Letter of Credit have terminated and the Loans and Unpaid Drawings,
together with interest, Fees and all other Obligations incurred hereunder, are
paid in full:
10.1. LIMITATION ON INDEBTEDNESS.
(A) The Borrower will not, and will not permit any of the Restricted
Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness,
except:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of (i) the Borrower to any Subsidiary of the Borrower
and (ii) subject to compliance with Section 10.5(g), any Subsidiary to the
Borrower or any Restricted Subsidiary of the Borrower;
(c) Indebtedness in respect of any banker's acceptances, bank
guarantees, letter of credit, warehouse receipt or similar facilities
entered into in the ordinary course of business;
(d) except as provided in clauses (j) and (k) below, subject to
compliance with Section 10.5(g), Guarantee Obligations incurred by (i)
Restricted Subsidiaries in respect of Indebtedness of the Borrower or other
Restricted Subsidiaries that is permitted to be incurred under this
Agreement and (ii) the Borrower in respect of Indebtedness of the
Restricted Subsidiaries that is permitted to be incurred under this
Agreement, PROVIDED that there shall be no Guarantee (A) by any Restricted
Subsidiary that is not a Guarantor of any Indebtedness of the Borrower and
(B) in respect of the Senior Notes or Permitted Additional Notes, unless
such Guarantee is made by a Guarantor and such Guarantee is
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unsecured (and subordinated in the case of Permitted Additional Notes that
are subordinated);
(e) Guarantee Obligations incurred in the ordinary course of business
in respect of obligations of suppliers, customers, franchisees, lessors and
licensees;
(f) (i) Indebtedness (including Indebtedness arising under Capital
Leases) incurred within 270 days of the acquisition (by purchase, lease or
otherwise), construction or improvement of fixed or capital assets
(including real property) to finance the acquisition (by purchase, lease or
otherwise), construction or improvement of such fixed or capital assets or
otherwise incurred in respect of capital expenditures, (ii) Indebtedness
arising under Capital Leases entered into in connection with Permitted Sale
Leasebacks and (iii) Indebtedness arising under Capital Leases, other than
Capital Leases in effect on the Closing Date and Capital Leases entered
into pursuant to subclauses (i) and (ii) above, PROVIDED, that the
aggregate amount of Indebtedness incurred pursuant to this subclause (iii)
shall not exceed $75,000,000 at any time outstanding;
(g) Indebtedness outstanding on the Closing Date and listed on
SCHEDULE 10.1 hereto;
(h) Indebtedness in respect of Hedge Agreements;
(i) Guarantee Obligations of the Borrower and the Guarantors in
respect of the Intelsat Bermuda Guaranteed Fixed Rate Notes;
(j) Indebtedness of a Person or Indebtedness attaching to assets of a
Person that, in either case, becomes a Restricted Subsidiary or
Indebtedness attaching to assets that are acquired by the Borrower or any
Restricted Subsidiary, in each case after the Closing Date as the result of
a Permitted Acquisition, PROVIDED that (w) such Indebtedness existed at the
time such Person became a Restricted Subsidiary or at the time such assets
were acquired and, in each case, was not created in anticipation thereof,
(x) such Indebtedness is not guaranteed in any respect by the Borrower or
any Restricted Subsidiary (other than by any such person that so becomes a
Restricted Subsidiary) and (y)(A) the capital stock of such Person is
pledged to the Administrative Agent to the extent required under Section
9.12 and (B) such Person executes a supplement to each of the Guarantee,
the applicable Security Agreement and the applicable Pledge Agreement (or
alternative guarantee and security arrangements in relation to the
Obligations reasonably acceptable to the Administrative Agent) to the
extent required under Section 9.11 or 9.12, as applicable, PROVIDED that
the requirements of this subclause (y) shall not apply to an aggregate
amount at any time outstanding of up to (and including) the Guarantee and
Collateral Exception Amount at such time of the aggregate of (1) such
Indebtedness and (2) all Indebtedness as to which the proviso to clause
(k)(y) below then applies;
(k) Indebtedness of the Borrower or any Restricted Subsidiary
(including any Permitted Additional Notes) incurred to finance a Permitted
Acquisition, PROVIDED that (x) except in the case of Permitted Additional
Notes, such Indebtedness is not guaranteed in any respect by any Restricted
Subsidiary (other than any Person acquired (the "AC-
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QUIRED PERSON") as a result of such Permitted Acquisition or the Restricted
Subsidiary so incurring such Indebtedness) or, in the case of Indebtedness
of any Restricted Subsidiary, subject to compliance with Section 10.5(g),
by the Borrower and (y)(A) the Borrower pledges the capital stock of such
acquired Person to the Administrative Agent to the extent required under
Section 9.12 and (B) such acquired Person executes a supplement to the
Guarantee, the applicable Security Agreement and the applicable Pledge
Agreement (or alternative guarantee and security arrangements in relation
to the Obligations reasonably acceptable to the Administrative Agent) to
the extent required under Section 9.11 or 9.12, as applicable, PROVIDED
that the requirements of this subclause (y) shall not apply to an aggregate
amount at any time outstanding of up to (and including) the amount of the
Guarantee and Collateral Exception Amount at such time of the aggregate of
(1) such Indebtedness and (2) all Indebtedness as to which the proviso to
clause (j)(y) above then applies;
(l) Indebtedness in respect of performance bonds, bid bonds, appeal
bonds, customs bonds, surety bonds and completion guarantees and similar
obligations not in connection with money borrowed, in each case provided in
the ordinary course of business, including those incurred to secure health,
safety and environmental obligations in the ordinary course of business;
(m) Indebtedness incurred in connection with any Permitted Sale
Leaseback (PROVIDED that the Net Cash Proceeds thereof are promptly applied
to the extent required by Section 5.2);
(n) Indebtedness not otherwise permitted under this Section 10.1;
PROVIDED, HOWEVER, that (i) both immediately prior to and after giving
effect thereto, no Default or Event of Default shall exist or result
therefrom, (ii) the Borrower and its Restricted Subsidiaries shall, on a
pro forma basis after giving effect to the incurrence or issuance and
application of the proceeds of such Indebtedness, be in compliance with
Section 11 (without giving effect to any waiver pursuant to clause (a)
thereto or any application of clause (b) thereto and regardless of whether
or not the Revolving Credit Commitment has been terminated) and (iii) as of
the date any such Indebtedness is incurred, on a pro forma basis after
giving effect to the incurrence and application of the proceeds of such
Indebtedness, the Consolidated Total Debt to Consolidated EBITDA Ratio for
the Test Period immediately preceding such date shall be less than or equal
to 4.75 to 1.0; PROVIDED, FURTHER, that no more than $200,000,000 in
aggregate principal amount of Indebtedness of one or more Restricted
Subsidiaries that are not Guarantors incurred pursuant to this clause (n)
shall be outstanding at any one time;
(o) Indebtedness in respect of Permitted Additional Notes to the
extent that the Net Cash Proceeds therefrom are, immediately after the
receipt thereof, applied to the prepayment of Term Loans in accordance with
Section 5.2;
(p) the Lockheed Note;
(q) Indebtedness of the Borrower or any of its Subsidiaries which may
be deemed to exist in connection with agreements providing for
indemnification and similar
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obligations in connection with acquisitions or sales of assets and/or
businesses effected in accordance with the requirements of this Agreement;
(r) [INTENTIONALLY OMITTED];
(s) Guarantee Obligations (i) of the Borrower in favor of its
Subsidiaries to permit foreign currency transactions or fund transfers in
an aggregate amount not to exceed $10,000,000 at any time outstanding, (ii)
of the Borrower or any of its Subsidiaries as a guarantor of the lessee
under any lease pursuant to which the Borrower or any of its Subsidiaries
is the lessee, other than any capital lease pursuant to which a Subsidiary
that is not a Subsidiary Guarantor is the lessee, so long as such lease is
otherwise permitted hereunder, (iii) of the Borrower or any of its
Subsidiaries as a guarantor of any Capitalized Lease Obligation to which a
Joint Venture is a party or any contract entered into by such Joint Venture
in the ordinary course of business; PROVIDED that the maximum liability of
the Borrower or any of its Subsidiaries in respect of any obligations as
described in this clause (iii) is permitted as an Investment pursuant to
the requirements of Section 10.5, and (iv) of the Borrower or any of its
Subsidiaries which may be deemed to exist pursuant to the Transactions or
acquisition agreements entered into in connection with Permitted
Acquisitions (including any obligation to pay the purchase price therefor
and any indemnification, purchase price adjustment and similar obligations
to the extent otherwise permitted hereunder);
(t) obligations of the Borrower or any 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, in each case to the extent constituting Indebtedness;
(u) Contribution Indebtedness, so long as (i) no Default or Event of
Default shall exist at the time of or immediately after giving effect to
the incurrence thereof, (ii) calculations are made by the Borrower
demonstrating pro forma compliance (giving effect to the application of
proceeds of such Contribution Indebtedness) with the covenant contained in
Section 11 (without giving effect to any waiver pursuant to clause (a)
thereto or any application of clause (b) thereto and regardless of whether
or not the Revolving Credit Commitment has been terminated) for the Test
Period most recently completed, (iii) the Borrower shall furnish to the
Administrative Agent a certificate from an Authorized Officer certifying to
the best of his or her knowledge as to compliance with the requirements of
this Section 10.1(A)(u) and containing the calculations required by the
preceding clause (ii), and (iv) the aggregate amount of such Indebtedness
in excess of the CI Contributions made in determining the amount of such
Indebtedness pursuant to the determination of Contribution Indebtedness is
subordinated in right of payment to the Obligations pursuant to
subordination provisions in form and substance satisfactory to the
Administrative Agent;
(v) Indebtedness of Subsidiaries that are not Subsidiary Guarantors
for working capital purposes, so long as the Indebtedness under this clause
(v) does not exceed $50,000,000 in the aggregate at any time outstanding;
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(w) 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 of its Subsidiaries
other than a Receivables Subsidiary in an amount not to exceed $300,000,000
at any time outstanding;
(x) letters of credit and bank guarantees denominated in currencies
other than Dollars and Euros, so long as the aggregate U.S. Dollar
equivalent of all such letters of credit and bank guarantees does not
exceed $10,000,000 at any time; and
(y) Permitted Refinancing Indebtedness in respect of any Indebtedness
permitted under clauses (f), (g), (i), (j), (k), (m), (n), (o), (u), (v)
and (x) of this Section 10.1(A).
Notwithstanding the foregoing or anything to the contrary contained elsewhere in
this Agreement, none of Holdings, the Borrower or any of its Subsidiaries may
incur any Indebtedness if, after giving effect thereto, the Intelsat Ltd. Notes
Condition would not be satisfied.
(B) The Borrower will not issue any preferred stock or other preferred
equity interests other than Qualified PIK Securities; PROVIDED that the Borrower
or any Restricted Subsidiary may issue Disqualified Preferred Stock to the
extent that the same shall be treated as, and shall be restricted to the same
extent as, Indebtedness for borrowed money for all purposes under this Agreement
and is otherwise permitted to be issued hereunder.
10.2. LIMITATION ON LIENS. Holdings will not create, incur, assume or
suffer to exist any Lien upon any capital stock of the Borrower, other than
Liens arising under the Security Documents and Permitted Liens. The Borrower
will not, and will not permit any of the Restricted Subsidiaries to, create,
incur, assume or suffer to exist any Lien upon any property or assets of any
kind (real or personal, tangible or intangible) of the Borrower or any
Restricted Subsidiary, whether now owned or hereafter acquired, except:
(a) Liens arising under the Credit Documents;
(b) Permitted Liens;
(c) Liens securing Indebtedness permitted pursuant to Section
10.1(A)(f), PROVIDED that such Liens attach at all times only to the assets
so financed and/or other assets subject to Indebtedness incurred pursuant
to Section 10.1(A)(f) owing to the same Person as such Indebtedness so
secured;
(d) Liens existing on the Closing Date and listed on SCHEDULE 10.2
hereto;
(e) the replacement, extension or renewal of any Lien permitted by
clauses (a) through (d) above and clause (f) of this Section 10.2 upon or
in the same assets theretofore subject to such Lien or the replacement,
extension or renewal of the Indebtedness secured thereby (in each case,
without increase in the amount or change in any direct or contingent
obligor except to the extent otherwise permitted hereunder);
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(f) Liens existing on the assets of any Person that becomes a
Restricted Subsidiary, or existing on assets acquired, pursuant to a
Permitted Acquisition to the extent the Liens on such assets secure
Indebtedness permitted by Section 10.1(A)(j), PROVIDED that such Liens
attach at all times only to the same assets that such Liens attached to,
and secure only the same Indebtedness that such Liens secured, immediately
prior to such Permitted Acquisition;
(g) (i) Liens placed upon the capital stock of any Restricted
Subsidiary acquired pursuant to a Permitted Acquisition to secure
Indebtedness of the Borrower or any other Restricted Subsidiary in an
aggregate amount at any time outstanding not to exceed the Guarantee and
Collateral Exception Amount incurred pursuant to Section 10.1(A)(k) in
connection with such Permitted Acquisition and (ii) Liens placed upon the
assets of such Restricted Subsidiary to secure a guarantee by such
Restricted Subsidiary of any such Indebtedness of the Borrower or any other
Restricted Subsidiary in an aggregate amount at any time outstanding not to
exceed the Guarantee and Collateral Exception Amount;
(h) additional Liens so long as the aggregate principal amount of the
obligations so secured does not exceed $75,000,000 at any time outstanding;
(i) [INTENTIONALLY OMITTED]; and
(j) 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.
10.3. LIMITATION ON FUNDAMENTAL CHANGES. Except as expressly permitted
by Section 10.4 or 10.5, Holdings (other than in the case of a Holdings Dropdown
Transaction or a Holdings-Borrower Merger) and the Borrower will not, and will
not permit any of the Restricted Subsidiaries to, enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all its business units, assets or
other properties, except that:
(a) any Subsidiary (other than a License Subsidiary) of the Borrower
or any other Person may be merged or consolidated with or into the
Borrower, PROVIDED that (i) the Borrower shall be the continuing or
surviving corporation or the Person formed by or surviving any such merger
or consolidation (if other than the Borrower) shall be an entity organized
or existing under the laws of Bermuda or any other jurisdiction approved by
the Administrative Agent and the Required Lenders (the Borrower or such
Person, as the case may be, being herein referred to as the "SUCCESSOR
BORROWER"), (ii) the Successor Borrower (if other than the Borrower) shall
expressly assume all the obligations of the Borrower under this Agreement
and the other Credit Documents pursuant to a supplement hereto or thereto
in form reasonably satisfactory to the Administrative Agent, (iii) no
Default or Event of Default would result from the consummation of such
merger or consolidation, (iv) the Successor Borrower shall be in
compliance, on a pro forma basis after giving effect to such merger or
consolidation, with the covenant set forth in Sec-
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tion 11 (without giving effect to any waiver pursuant to clause (a) thereof
or any application of clause (b) thereof and regardless of whether or not
the Revolving Credit Commitment has been terminated), as such covenants are
recomputed as at the last day of the most recently ended Test Period under
such Section as if such merger or consolidation had occurred on the first
day of such Test Period, (v) each Guarantor, unless it is the other party
to such merger or consolidation, shall have by a supplement to the
Guarantee confirmed that its Guarantee shall apply to the Successor
Borrower's obligations under this Agreement, (vi) each Subsidiary grantor
and each Subsidiary pledgor, unless it is the other party to such merger or
consolidation, shall have by Supplemental Security Agreements and
supplements to the applicable Pledge Agreements confirmed that its
obligations thereunder shall apply to the Successor Borrower's obligations
under this Agreement, (vii) each mortgagor of a Mortgaged Property, unless
it is the other party to such merger or consolidation, shall have by an
amendment to or restatement of the applicable Mortgage confirmed that its
obligations thereunder shall apply to the Successor Borrower's obligations
under this Agreement, and (viii) the Borrower shall have delivered to the
Administrative Agent an officer's certificate and an opinion of counsel,
each stating that such merger or consolidation and such supplement to this
Agreement or any Security Document comply with this Agreement; PROVIDED,
FURTHER, that if the foregoing are satisfied, the Successor Borrower (if
other than the Borrower) will succeed to, and be substituted for, the
Borrower under this Agreement;
(b) any Subsidiary of the Borrower (other than a License Subsidiary)
or any other Person may be merged, amalgamated or consolidated with or into
any one or more Subsidiaries of the Borrower, PROVIDED that (i) in the case
of any merger, amalgamation or consolidation involving one or more
Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the
continuing or surviving corporation or (B) the Borrower shall take all
steps necessary to cause the Person formed by or surviving any such merger,
amalgamation or consolidation (if other than a Restricted Subsidiary) to
become a Restricted Subsidiary, (ii) in the case of any merger,
amalgamation or consolidation involving one or more Guarantors, a Guarantor
shall be the continuing or surviving corporation or the Person formed by or
surviving any such merger, amalgamation or consolidation (if other than a
Guarantor) shall execute a Supplemental Security Agreement, a supplement to
the Guarantee Agreement and supplements to the applicable Pledge Agreements
and any applicable Mortgage in form and substance reasonably satisfactory
to the Administrative Agent in order to become a Guarantor and pledgor,
mortgagor and grantor of Collateral for the benefit of the Secured Parties,
(iii) no Default or Event of Default would result from the consummation of
such merger, amalgamation or consolidation, (iv) the Borrower shall be in
compliance, on a pro forma basis after giving effect to such merger,
amalgamation or consolidation, with the covenant set forth in Section 11
(without giving effect to any waiver pursuant to clause (a) thereof or any
application of clause (b) thereof and regardless of whether or not the
Revolving Credit Commitment has been terminated), as such covenant is
recomputed as at the last day of the most recently ended Test Period under
such Section as if such merger or consolidation had occurred on the first
day of such Test Period, and (v) the Borrower shall have delivered to the
Administrative Agent an officers' certificate stating that such merger,
amalgamation or consolidation and such supplements to any Security Document
comply with this Agreement;
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(c) any Restricted Subsidiary (other than a License Subsidiary) that
is not a Guarantor may sell, lease, transfer or otherwise dispose of any or
all of its assets (upon voluntary liquidation or otherwise) to the
Borrower, a Guarantor or any other Restricted Subsidiary of the Borrower;
(d) any Guarantor may sell, lease, transfer or otherwise dispose of
any or all of its assets (upon voluntary liquidation or otherwise) to the
Borrower or any other Guarantor;
(e) any Restricted Subsidiary (other than a License Subsidiary) may
liquidate or dissolve if (x) the Borrower determines in good faith that
such liquidation or dissolution is in the best interests of the Borrower
and is not materially disadvantageous to the Lenders and (y) to the extent
such Restricted Subsidiary is a Credit Party, any assets or business not
otherwise disposed of or transferred in accordance with Section 10.4 or
10.5, or, in the case of any such business, discontinued, shall be
transferred to, or otherwise owned or conducted by, another Credit Party
after giving effect to such liquidation or dissolution;
(f) any License Subsidiary may (i) be merged or consolidated with any
other License Subsidiary, (ii) sell, lease, transfer or otherwise dispose
of any or all of its property (upon voluntary liquidation or otherwise)
only to another License Subsidiary, (iii) sell, transfer or otherwise
dispose of capital stock or other ownership interest of such License
Subsidiary only to a Credit Party; and
(g) the Borrower and any Subsidiary may complete the G2 Acquisition.
10.4. LIMITATION ON SALE OF ASSETS. Holdings will not convey, sell,
lease, assign, transfer or otherwise dispose of any of the capital stock of the
Borrower, other than (i) the pledge of such capital stock pursuant to the
Security Documents, (ii) pursuant to an enforcement by the Administrative Agent
under the Security Documents or (iii) pursuant to a Holdings Dropdown
Transaction or a Holdings-Borrower Merger. The Borrower will not, and will not
permit any of the Restricted Subsidiaries to, (i) convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including receivables and leasehold interests), whether now owned or hereafter
acquired (other than any such sale, transfer, assignment or other disposition
resulting from any casualty or condemnation, of any assets of the Borrower or
the Restricted Subsidiaries) or (ii) sell to any Person (other than the Borrower
or a Guarantor) any shares owned by it of any Restricted Subsidiary's capital
stock, except that:
(a) the Borrower and the Restricted Subsidiaries may sell, transfer or
otherwise dispose of (i) cash and other Permitted Investments and (ii) used
or surplus equipment, vehicles, inventory and other assets in the ordinary
course of business;
(b) the Borrower and the Restricted Subsidiaries may sell, transfer or
otherwise dispose of other assets (other than accounts receivable) for fair
value, PROVIDED that (i) the total non-cash consideration received since
the Closing Date in respect of sales, transfers and dispositions for which
less than 50% of such consideration consisted of cash shall not exceed
$350,000,000 (it being agreed that, with respect to any one or more sale,
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transfer or disposition in which such $350,000,000 limitation is exceeded,
at least 50% of the portion of the consideration in excess of the then
available portion of such $350,000,000 shall consist of cash), (ii) any
non-cash proceeds received are pledged to the Administrative Agent to the
extent required under Section 9.12, (iii) with respect to any such sale,
transfer or disposition (or series of related sales, transfers or
dispositions), the Borrower shall be in compliance, on a pro forma basis
after giving effect to such sale, transfer or disposition, with the
covenant set forth in Section 11 (without giving effect to any waiver
pursuant to clause (a) thereof or any application of clause (b) thereof and
regardless of whether or not the Revolving Credit Commitment has been
terminated), as such covenants are recomputed as at the last day of the
most recently ended Test Period under such Sections as if such sale,
transfer or disposition had occurred on the first day of such Test Period,
(iv) to the extent applicable, the Net Cash Proceeds thereof to the
Borrower and its Restricted Subsidiaries are promptly applied to the
prepayment and/or commitment reductions as provided for in Section 5.2 and
(v) after giving effect to any such sale, transfer or disposition, no
Default or Event of Default shall have occurred and be continuing;
(c) the Borrower and the Restricted Subsidiaries may make sales of
assets to the Borrower or to any Restricted Subsidiary, PROVIDED that with
respect to any such sales to Restricted Subsidiaries that are not
Guarantors (i) such sale, transfer or disposition shall be for fair value,
(ii) the total non-cash consideration received since the Closing Date in
respect of such sales, transfers and dispositions for which less than 50%
of such consideration consisted of cash shall not exceed $350,000,000 (it
being agreed that, with respect to any one or more sale, transfer or
disposition in which such $350,000,000 limitation is exceeded, at least 50%
of the portion of the consideration in excess of the then available portion
of such $350,000,000 shall consist of cash) and (iii) any non-cash proceeds
received are pledged to the Administrative Agent to the extent required
under Section 9.12;
(d) the Borrower or any Restricted Subsidiary may effect any
transaction permitted by Section 10.3;
(e) in addition to selling or transferring accounts receivable
pursuant to the other provisions hereof, the Borrower and the Restricted
Subsidiaries may sell or discount without recourse accounts receivable
arising in the ordinary course of business in connection with the
compromise or collection thereof;
(f) the Borrower and its Restricted Subsidiaries may lease, or
sub-lease, any real property or personal property in the ordinary course of
business;
(g) [INTENTIONALLY OMITTED]
(h) the Borrower and its Subsidiaries may engage in any disposition of
assets contemplated by the Intercompany Services Agreement (as modified,
amended or supplemented in any manner not materially adverse to the
Lenders), or otherwise in connection with integration efforts related to
the Acquisition;
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(i) the Borrower may consummate the Transactions;
(j) the Borrower and its Restricted Subsidiaries may exchange
operating assets for other operating assets (including a combination of
assets and cash and cash equivalents) related to a Permitted Business of
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 operating
assets with a Fair Market Value in excess of (1) $20,000,000 shall be
evidenced by an certificate of an Authorized Officer, and (2) $40,000,000
shall be set forth in a resolution approved in good faith by at least a
majority of the board of directors of the Borrower; PROVIDED that the
aggregate amount of assets exchanged pursuant to this Section 10.5(j)
(determined based on the Fair Market Value thereof) shall not exceed
$300,000,000;
(k) the Borrower and the Restricted Subsidiaries may make sales or
transfers 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; and
(l) a transfer of assets 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.
10.5. LIMITATION ON INVESTMENTS. The Borrower will not, and will not
permit any of the Restricted Subsidiaries to, make any advance, loan, extensions
of credit or capital contribution to, or purchase any stock, bonds, notes,
debentures or other securities of or any assets of, or make any other Investment
in, any Person, except:
(a) extensions of trade credit and asset purchases in the ordinary
course of business;
(b) Permitted Investments;
(c) (i) loans and advances to officers, directors and employees of the
Borrower or any of its Subsidiaries in an aggregate principal amount at any
time outstanding under this clause (c) not exceeding $25,000,000, and (ii)
obligations of one or more officers or other employees of Intelsat Bermuda
or its Subsidiaries in connection with such officers' or employees'
acquisition of shares of any direct or indirect parent entity of the
Borrower, so long as no cash is actually advanced by the Borrower or any of
its Subsidiaries to such officers or employees in connection with the
acquisition of any such obligations;
(d) Investments existing or contractually committed on the Closing
Date and listed on SCHEDULE 10.5 to this Agreement and any extensions,
renewals or reinvestments thereof, so long as the aggregate amount of all
Investments pursuant to this clause (d) is not increased at any time above
the amount of such Investments existing on the Closing Date;
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(e) Investments received in connection with the bankruptcy or
reorganization of suppliers or customers and in settlement of delinquent
obligations of, and other disputes with, customers arising in the ordinary
course of business;
(f) Investments to the extent that payment for such Investments is
made solely with capital stock of the Borrower;
(g) Investments in (i) any Subsidiary Guarantor or the Borrower and
(ii) Restricted Subsidiaries that are not Guarantors, in the case of this
clause (g)(ii), in an aggregate amount not to exceed (x) in the case of
Intelsat General Corporation, $150,000,000 at any one time outstanding and
(y) in the case of all other Restricted Subsidiaries that are not
Guarantors, $50,000,000 in the aggregate at any one time outstanding;
(h) Investments constituting Permitted Acquisitions and Investments
held by any Person that becomes a Subsidiary as a result of any such
Permitted Acquisition to the extent such Investments were not made in
contemplation of such Permitted Acquisition and were in existence on the
date of such Permitted Acquisition;
(i) other Investments, in each case, as valued at the Fair Market
Value of such Investment at the time each such Investment is made, in an
amount that, at the time such Investment is made, would not exceed the
Applicable Amount at such time;
(j) Investments constituting non-cash proceeds of sales, transfers and
other dispositions of assets to the extent permitted by Section 10.4(b) or
(c);
(k) Investments made to repurchase or retire common stock of the
Borrower owned by any employee stock ownership plan or key employee stock
ownership plan of the Borrower;
(l) Investments permitted under Section 10.6;
(m) purchases of receivables pursuant to a Receivables Repurchase
Obligation in connection with a Qualified Receivables Financing and the
payment or distribution of Receivables Fees;
(n) Investments constituting advances in the form of a prepayment of
expenses, so long as such expenses were incurred in the ordinary course of
business and are being paid in accordance with customary trade terms of the
Borrower or such Subsidiary;
(o) to the extent constituting Investments, any payments under any
contracts to construct, launch, operate or insure Satellites which
contracts are entered into in the ordinary course of business;
(p) loans and advances for purposes for which a dividend is otherwise
permitted pursuant to Section 10.6, including, without limitation dividends
of the type contemplated in Section 10.6(j);
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(q) Investments in Subsidiaries or Joint Ventures formed for the
purpose of selling or leasing transponder capacity to third-party customers
in the ordinary course of business which investments are in the form of
transfers to such Persons for fair market value transponders or transponder
capacity sold or to be sold or leased or to be leased by such Persons;
PROVIDED that all such Investments in such Persons do not exceed 10% of the
aggregate transponder capacity for all in-orbit transponders then owned by
the Borrower and its Restricted Subsidiaries;
(r) any Investment in a Receivables Subsidiary or any Investment by a
Receivables Subsidiary in any other Person in connection with a Qualified
Receivables Financing; PROVIDED that any Investment in a Receivables
Subsidiary is in the form of an Intercompany Note, contribution of accounts
receivable or an equity interest;
(s) other Investments in an amount of up to $250,000,000 at any one
time outstanding;
(t) any Investment in Existing Parent Indebtedness from the proceeds
of the Specified Sale Leaseback that do not constitute Net Cash Proceeds in
accordance with the definition of "PREPAYMENT EVENT";
(u) Investments subject to and permitted under Section 10.3; and
(v) Investments constituting Guarantee Obligations permitted under
Section 10.1(A)(e).
10.6. LIMITATION ON DIVIDENDS(a) . The Borrower will not declare or
pay any dividends (other than dividends payable solely in its capital stock) or
return any capital to its stockholders or make any other distribution, payment
or delivery of property or cash to its stockholders as such, or redeem, retire,
purchase or otherwise acquire, directly or indirectly, for consideration, any
shares of any class of its capital stock or the capital stock of any direct or
indirect parent now or hereafter outstanding (or any options or warrants or
stock appreciation rights issued with respect to any of its capital stock), or
set aside any funds for any of the foregoing purposes, or permit any of the
Restricted Subsidiaries to purchase or otherwise acquire for consideration
(other than in connection with an Investment permitted by Section 10.5) any
shares of any class of the capital stock of the Borrower, now or hereafter
outstanding (or any options or warrants or stock appreciation rights issued with
respect to any of its capital stock) (all of the foregoing "DIVIDENDS"),
PROVIDED that, so long as no Default or Event of Default exists or would exist
after giving effect thereto (except with respect to clause (f) below), (a) the
Borrower may redeem in whole or in part or pay dividends upon any of its capital
stock for another class of capital stock or rights to acquire its capital stock
or with proceeds from substantially concurrent equity contributions or issuances
of new shares of its capital stock, PROVIDED that (X) such contributions or
issuances shall not increase the Applicable Amount and (Y) such other class of
capital stock contains terms and provisions at least as advantageous to the
Lenders in all respects material to their interests as those contained in the
capital stock redeemed thereby, (b) the Borrower may repurchase shares of its
capital stock (or any options or warrants or stock appreciation rights issued
with respect to any of its capital stock) held by officers, directors and
employees of the Borrower and its Subsidiaries and may make dividends the
proceeds of which are to be used by any direct
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or indirect parent of the Borrower to repurchase shares of the capital stock of
any such parent held by officers, directors and employees of the Borrower and
its Subsidiaries or of any such parent, in either case so long as such
repurchase is pursuant to, and in accordance with the terms of, management
and/or employee stock plans, stock subscription agreements or shareholder
agreements, (c) the Borrower may declare and pay dividends on its capital stock,
PROVIDED that the amount of any such dividends pursuant to this clause (c) shall
not exceed an amount equal to the Applicable Amount at such time, (d) the
Borrower may declare and pay dividends and/or make distributions to Intelsat
Bermuda (or any other entity that may be a direct or indirect parent of the
Borrower) solely to pay administrative and similar reasonable expenses related
to ownership of the Borrower, (e) the Borrower may pay dividends from available
cash in the amount of up to $150,000,000 for the purposes of consummating the
Acquisition (including payment of related expenses), (f) the Borrower may
declare and pay dividends and/or make distributions to Holdings (or any other
entity that may be a parent of Holdings) for the purpose of paying fees to the
Sponsors of the types contemplated in Sections 9.9(a) (PROVIDED that such fees
contemplated in Section 9.9(a) are paid quarterly when due), (b) and (c);
PROVIDED that no such dividend or distribution contemplated by this clause
10.6(f) may be paid to the extent that the Borrower has paid a like amount for a
substantially similar service to the Sponsors directly, as contemplated in
Section 9.9, (g) the Borrower may declare and pay dividends at the times and in
the amounts required for any parent of the Borrower to pay regularly scheduled
interest 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; PROVIDED that the amount of cash dividends paid pursuant to
this clause (g) to enable any such parent to make any such payments and
redemptions shall not exceed the amount necessary to make such payments and
redemptions at such time, (h) for any taxable year, the Borrower may declare and
pay dividends or other distributions to any parent of the Borrower if such
parent 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), (i) the Borrower may declare and pay dividends to any parent entity
(which may dividend or on-loan such money to any of its parent entities) to the
extent that amounts equal to such dividends are immediately contributed to the
capital of, or paid as interest and/or principal on debt to, the Borrower or any
Restricted Subsidiary; PROVIDED that such subsequent contribution shall not
constitute contributions of Disqualified Preferred Stock, a CI Contribution, a
Permitted Equity Issuance pursuant to Section 12.14 or a contribution for
purposes of the definition of "Applicable Amount", (j) the Borrower may declare
and pay dividends at the times and in the amounts necessary to enable any parent
of the Borrower to (i) make regularly scheduled interest payments on the
Existing Parent Indebtedness and (ii) repay at final maturity the principal of
5.25% Senior Notes of Intelsat, Ltd.; PROVIDED that the amount of cash dividends
paid pursuant to this clause (j) to enable any such parent to make any such
payments and redemptions shall not exceed the amount necessary to make such
payments and redemptions at such time, and (k) the Borrower may pay dividends
the proceeds of which are used substantially simultaneously to pay interest or
the principal amount of debt obligations owed to (x) any Credit Party and (y) to
any Subsidiary
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that is not a Credit Party, PROVIDED that in the case of this
clause (y) such dividends do not exceed $75,000,000 in the aggregate in any
fiscal year.
10.7. LIMITATIONS ON DEBT PAYMENTS AND AMENDMENTS.
(a) The Borrower will not, and will not permit any Restricted
Subsidiary to, prepay, repurchase or redeem or otherwise defease any
Subordinated Indebtedness; PROVIDED, HOWEVER, that so long as no Default or
Event of Default has occurred and is continuing, the Borrower or any Restricted
Subsidiary may prepay, repurchase or redeem Subordinated Indebtedness (x) for an
aggregate price not in excess of the Applicable Amount at the time of such
prepayment, repurchase or redemption, or (y) with the proceeds of Subordinated
Indebtedness that (1) is permitted by Section 10.1 (other than Section
10.1(A)(o)) and (2) has terms material to the interests of the Lenders not
materially less advantageous to the Lenders than those of such Subordinated
Indebtedness being refinanced; PROVIDED, FURTHER, that so long as no Default or
Event of Default has occurred and is continuing and the Borrower shall be in
compliance, on a pro forma basis, with the covenant set forth in Section 11
(without giving effect to any waiver pursuant to clause (a) thereto or any
application of clause (b) thereto and regardless of whether or not the Revolving
Credit Commitment has been terminated), the Borrower or any Restricted
Subsidiary may defease any Subordinated Indebtedness within one year from final
maturity.
(b) Holdings and the Borrower will not waive, amend, modify, terminate
or release any Subordinated Indebtedness to the extent that any such waiver,
amendment, modification, termination or release would be adverse to the Lenders
in any material respect.
10.8. LIMITATIONS ON SALE LEASEBACKS. The Borrower will not, and will
not permit any of the Restricted Subsidiaries to, enter into or effect any Sale
Leasebacks, other than Permitted Sale Leasebacks.
10.9. NON-MATERIAL SUBSIDIARIES. The Borrower will not permit, at any
time, (i) the total assets of all Restricted Subsidiaries of the Borrower (other
than Intelsat General Corporation and its Subsidiaries) which are not Subsidiary
Guarantors at the last day of the Test Period ending on the last day of the most
recent fiscal period for which financial statements have been delivered pursuant
to Section 9.1(a) or (b) to equal or exceed 10% of the consolidated total assets
of the Borrower and its Restricted Subsidiaries at such date or (ii) gross
revenues of all Restricted Subsidiaries of the Borrower (other than Intelsat
General Corporation and its Subsidiaries) which are not Subsidiary Guarantors
for such Test Period to equal or exceed 10% of the consolidated gross revenues
of the Borrower and its Restricted Subsidiaries for such period, in each case
determined in accordance with GAAP.
10.10. PRIVATE ACT. No Credit Party will become subject to a Private
Act.
SECTION 11. FINANCIAL COVENANT.
As long as any Revolving Credit Commitment remains outstanding,
commencing with the Fiscal Quarter ending on or around September 30, 2006, the
Borrower and its Restricted Subsidiaries shall maintain on the last day of each
Fiscal Quarter, a Consolidated Secured Debt
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to Consolidated EBITDA Ratio for the Test Period ending on such day of less than
or equal to 1.5 to 1.0, unless:
(a) the Requisite Revolving Credit Lenders otherwise consent in
writing; or
(b) solely for the purpose of this Section 11, on the last day of the
applicable Test Period (or, if applicable, on the expiration of the tenth
(10th) day after the certificate of an Authorized Officer is required to be
delivered pursuant to Section 9.01(d) demonstrating an Event of Default of
this Section 11) there are no Revolving Credit Loans or Swingline Loans
outstanding and all outstanding Letters of Credit have been cash
collateralized in an amount equal to 101% of the aggregate amount available
to be drawn under such Letters of Credit on terms and conditions reasonably
satisfactory to the Letter of Credit Issuer.
SECTION 12. EVENTS OF DEFAULT.
Upon the occurrence of any of the following specified events (each an
"EVENT OF DEFAULT"):
12.1. PAYMENTS. The Borrower shall (a) default in the payment when due
of any principal of the Loans or (b) default, and such default shall continue
for five or more days, in the payment when due of any interest or stamping fees
on the Loans or any Fees or any Unpaid Drawings or of any other amounts owing
hereunder or under any other Credit Document; or
12.2. REPRESENTATIONS, ETC. Any representation, warranty or statement
made or deemed made by any Credit Party herein or in any Security Document or
any certificate delivered or required to be delivered pursuant hereto or thereto
shall prove to be untrue in any material respect on the date as of which made or
deemed made; PROVIDED, HOWEVER, that to the extent any such representation,
warranty or statement is untrue solely as a result of an action or inaction by
Intelsat General Corporation or any of its Subsidiaries, and the Borrower has
otherwise complied with the terms and conditions of Section 9.19 hereof, no
Default or Event of Default shall occur; or
12.3. COVENANTS. Any Credit Party shall
(a) default in the due performance or observance by it of any term,
covenant or agreement contained in Section 11 as such Section 11 may be
waived, amended or otherwise modified from time to time by the Requisite
Revolving Credit Lenders pursuant to Section 14.1;
(b) default in the due performance or observance by it of any term,
covenant or agreement contained in Section 9.1(e) or Section 10; or
(c) default in the due performance or observance by it of any term,
covenant or agreement (other than those referred to in Section 12.1 or 12.2
or clauses (a) and (b) of this Section 12.3) contained in this Agreement,
any Security Document or the Ancillary Fee Letter dated May 18, 2006
between the Borrower and the Agents and such default
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shall continue unremedied for a period of at least 30 days after receipt of
written notice by the Borrower from the Administrative Agent or the
Required Lenders; PROVIDED, HOWEVER, that to the extent such failure
relates solely to an action or inaction by Intelsat General Corporation or
any of its Subsidiaries, and the Borrower has otherwise complied with the
terms and conditions of Section 9.19 hereof, no Default or Event of Default
shall occur; or
12.4. DEFAULT UNDER OTHER AGREEMENTS. (a) Holdings, the Borrower or
any of the Restricted Subsidiaries shall (i) default in any payment with respect
to any Indebtedness (other than the Obligations) in excess of $50,000,000 in the
aggregate, for Holdings, the Borrower and such Restricted Subsidiaries, beyond
the period of grace, if any, provided in the instrument or agreement under which
such Indebtedness was created or (ii) default in the observance or performance
of any agreement or condition relating to any such Indebtedness or contained in
any instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist (other than, with respect to
Indebtedness consisting of any Hedge Agreements, termination events or
equivalent events pursuant to the terms of such Hedge Agreements), the effect of
which default or other event or condition is to cause, or to permit the holder
or holders of such Indebtedness (or a trustee or agent on behalf of such holder
or holders) to cause, any such Indebtedness to become due prior to its stated
maturity; or (b) without limiting the provisions of clause (a) above, any such
Indebtedness shall be declared to be due and payable, or required to be prepaid
other than by a regularly scheduled required prepayment or as a mandatory
prepayment (and, with respect to Indebtedness consisting of any Hedge
Agreements, other than due to a termination event or equivalent event pursuant
to the terms of such Hedge Agreements), prior to the stated maturity thereof; or
12.5. BANKRUPTCY, ETC. Holdings, the Borrower or any Specified
Subsidiary shall commence a voluntary case, proceeding or action concerning
itself under (a) Title 11 of the United States Code entitled "Bankruptcy," or
(b) in the case of Holdings, Borrower or any Foreign Subsidiary that is a
Specified Subsidiary, any domestic or foreign law relating to bankruptcy,
insolvency reorganization or relief of debtors legislation of its jurisdiction
of incorporation, in each case as now or hereafter in effect, or any successor
thereto (collectively, the "BANKRUPTCY CODE"); or an involuntary case,
proceeding or action is commenced against Holdings, the Borrower or any
Specified Subsidiary and the petition is not controverted within 10 days after
commencement of the case, proceeding or action; or an involuntary case,
proceeding or action is commenced against the Holdings, the Borrower or any
Specified Subsidiary and the petition is not dismissed within 60 days after
commencement of the case, proceeding or action; or a custodian (as defined in
the Bankruptcy Code) receiver, receiver manager, trustee or similar person is
appointed for, or takes charge of, all or substantially all of the property of
Holdings, the Borrower or any Specified Subsidiary; or Holdings, the Borrower or
any Specified Subsidiary commences any other proceeding or action under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to Holdings, the Borrower or any Specified
Subsidiary; or there is commenced against Holdings, the Borrower or any
Specified Subsidiary any such proceeding or action that remains undismissed for
a period of 60 days; or Holdings, the Borrower or any Specified Subsidiary is
adjudicated insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding or action is entered; or Holdings, the
Borrower or any Specified Subsidiary suffers any appointment of any custodian
receiver, receiver manager, trustee or the like for it or any substantial part
of its property to continue undischarged or unstayed for a period of 60 days; or
Holdings, the Borrower or
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any Specified Subsidiary makes a general assignment for the benefit of
creditors; or any corporate action is taken by Holdings, the Borrower or any
Specified Subsidiary for the purpose of effecting any of the foregoing; or
12.6. ERISA. (a) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof or a waiver of such standard
or extension of any amortization period is sought or granted under Section 412
of the Code; any Plan is or shall have been terminated or is the subject of
termination proceedings under ERISA (including the giving of written notice
thereof); an event shall have occurred or a condition shall exist in either case
entitling the PBGC to terminate any Plan or to appoint a trustee to administer
any Plan (including the giving of written notice thereof); any Plan shall have
an accumulated funding deficiency (whether or not waived); the Borrower or any
Subsidiary or any ERISA Affiliate has incurred or is likely to incur a liability
to or on account of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063,
4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code (including
the giving of written notice thereof); (b) there could result from any event or
events set forth in clause (a) of this Section 12.6 the imposition of a lien,
the granting of a security interest, or a liability, or the reasonable
likelihood of incurring a lien, security interest or liability; and (c) such
lien, security interest or liability will or would be reasonably likely to have
a Material Adverse Effect; or
12.7. GUARANTEE. The Guarantees or any material provision thereof
shall cease to be in full force or effect or any Guarantor thereunder or any
Credit Party shall deny or disaffirm in writing any Guarantor's obligations
under the Guarantee; or
12.8. PLEDGE AGREEMENTS. Any Pledge Agreement or any material
provision thereof shall cease to be in full force or effect (other than pursuant
to the terms hereof or thereof or as a result of acts or omissions of the
Administrative Agent or any Lender) or any pledgor thereunder or any Credit
Party shall deny or disaffirm in writing any pledgor's obligations under any
Pledge Agreement; or
12.9. SECURITY AGREEMENTS. Any Security Agreements or any material
provision thereof shall cease to be in full force or effect (other than pursuant
to the terms hereof or thereof or as a result of acts or omissions of the
Administrative Agent or any Lender) or any grantor thereunder or any Credit
Party shall deny or disaffirm in writing any grantor's obligations under any
Security Agreement; or
12.10. MORTGAGES. Any Mortgage or any material provision of any
Mortgage relating to any material portion of the Collateral shall cease to be in
full force or effect (other than pursuant to the terms hereof or thereof or as a
result of acts or omissions of the Collateral Trustee or any Lender) or any
mortgagor thereunder or any Credit Party shall deny or disaffirm in writing any
mortgagor's obligations under any Mortgage; or
12.11. JUDGMENTS. One or more judgments or decrees shall be entered
against the Borrower or any of the Restricted Subsidiaries involving a liability
of $50,000,000 or more in the aggregate for all such judgments and decrees for
Holdings, the Borrower and the Restricted
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Subsidiaries (to the extent not paid or fully covered by insurance provided by a
carrier not disputing coverage) and any such judgments or decrees shall not have
been satisfied, vacated, discharged or stayed or bonded pending appeal within 60
days from the entry thereof; or
12.12. CHANGE OF CONTROL. A Change of Control shall occur; or
12.13. CONDITION SUBSEQUENT. The condition subsequent set forth in
Section 16 is not satisfied on the Closing Date;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Lenders, by written notice to the Borrower, take any or
all of the following actions, without prejudice to the rights of the
Administrative Agent or any Lender to enforce its claims against the Borrower,
except as otherwise specifically provided for in this Agreement (PROVIDED that,
if an Event of Default specified in Section 12.5 shall occur with respect to
Holdings, the Borrower or any Specified Subsidiary, the result that would occur
upon the giving of written notice by the Administrative Agent as specified in
clauses (i), (ii) and (iv) below shall occur automatically without the giving of
any such notice): (i) declare the Total Revolving Credit Commitment terminated,
whereupon the Commitments and Swingline Commitment, if any, of each Lender or
the Swingline Lender, as the case may be, shall forthwith terminate immediately
and any Fees theretofore accrued shall forthwith become due and payable without
any other notice of any kind; (ii) declare the principal of and any accrued
interest and fees in respect of all Loans and all Obligations owing hereunder
and thereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower; (iii) terminate any Letter of Credit that may
be terminated in accordance with its terms; and/or (iv) direct the Borrower to
pay (and the Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default specified in Section 12.5 with respect to the
Borrower or any Specified Subsidiary, it will pay) to the Administrative Agent
at the Administrative Agent's Office such additional amounts of cash, to be held
as security for the Borrower's respective reimbursement obligations for Drawings
that may subsequently occur thereunder, equal to the aggregate Stated Amount of
all Letters of Credit issued and then outstanding.
12.14. PERMITTED EQUITY ISSUANCE. Notwithstanding anything to the
contrary contained in this Section 12, in the event of any Event of Default
under the covenant set forth in Section 11 and until the expiration of the tenth
(10th) day after the date on which financial statements are required to be
delivered with respect to the applicable fiscal quarter hereunder, Holdings may
engage in a Permitted Equity Issuance to the Sponsors, Intelsat Bermuda or any
Affiliate of Intelsat Bermuda other than Holdings and its Subsidiaries and apply
the amount of the Net Cash Proceeds thereof to increase Consolidated EBITDA with
respect to such applicable quarter; PROVIDED that such Net Cash Proceeds (i) are
actually received by Holdings and contributed as common equity to the Borrower
(including through capital contribution of such Net Cash Proceeds by Intelsat
Bermuda to Holdings and by Holdings to the Borrower) no later than ten (10) days
after the date on which financial statements are required to be delivered with
respect to such fiscal quarter hereunder, (ii) are not otherwise utilized to
increase the Applicable Amount or as the basis for incurring Contribution
Indebtedness and (iii) do not exceed the aggregate amount
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necessary to cure such Event of Default under Section 11, as applicable, for any
applicable period. The parties hereby acknowledge that the foregoing may not be
relied on for purposes of calculating any financial ratios other than as
applicable to Section 11 and shall not result in any adjustment to any amounts
other than the amount of the Consolidated EBITDA referred to in the immediately
preceding sentence. In each period of four consecutive fiscal quarters, there
shall be at least two (2) fiscal quarters in which no cure set forth above is
made.
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. 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 Holdings, the
Borrower, any Guarantor, any other Credit Party 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 Holdings, the Borrower, any Guarantor or any other Credit
Party 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.
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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 and/or Holdings), 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 directions, 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, any Guarantor or any other Credit Party, 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
Holdings, the Borrower, any Guarantor and any other Credit Party 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
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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 Holdings, the Borrower, any Guarantor and any
other Credit Party. 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
Holdings, the Borrower, any Guarantor or any other Credit Party 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 Total Credit Exposure in
effect on the date on which indemnification is sought (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with their respective
portions of the Total Credit Exposure 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. 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 Holdings, the Borrower, any
Guarantor, and any other Credit Party 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,
where-
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upon 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. SPECIAL APPOINTMENT OF ADMINISTRATIVE AGENT FOR GERMAN PLEDGE
AGREEMENT.
(a) (i) Each Lender that is or will become party to this Agreement
hereby appoints the Administrative Agent as trustee (TREUHAENDER) and
administrator for the purpose of holding in trust (TREUHAND),
administering, enforcing and releasing the German Security for the benefit
of the Secured Parties, (ii) the Administrative Agent accepts its
appointment as a trustee and administrator of the German Security on the
terms and subject to the conditions set out in this Agreement and (iii) the
Lenders, the Administrative Agent and all other parties to this Agreement
agree that, in relation to the German Security, no Lender shall exercise
any independent power to enforce any German Security or take any other
action in relation to the enforcement of the German Security, or make or
receive any declarations in relation thereto.
(b) The Administrative Agent shall hold and administer any German
Security which is security assigned, transferred or pledged under German
law to it as a trustee for the benefit of the Secured Parties.
(c) Each Lender hereby instructs the Administrative Agent (with the
right of subdelegation) to enter into any documents evidencing German
Security and to make and accept all declarations and take all actions as it
considers necessary or useful in connection with any German Security on
behalf of the Secured Parties. The Administrative Agent shall further be
entitled to rescind, release, amend and/or execute new and different
documents securing the German Security in accordance with Section 14.1.
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(d) The Secured Parties and the Administrative Agent agree that all
rights and claims constituted by the abstract acknowledgement of
indebtedness pursuant to Section 14.20 and all proceeds held by the
Administrative Agent pursuant to or in connection with such abstract
acknowledgement of indebtedness are held by the Administrative Agent with
effect from the date of such abstract acknowledgement of indebtedness in
trust for the Secured Parties and will be administered in accordance with
Section 5.4 of the U.S Security Agreement. The Secured Parties and the
Administrative Agent agree further that Intelsat Global's obligations under
such abstract acknowledgement of indebtedness shall not increase the total
amount of the Intelsat Global Secured Obligations and shall not result in
any additional liability of Intelsat Global or otherwise prejudice the
rights of Intelsat Global. Accordingly, payment of the obligations under
such abstract acknowledgement of indebtedness shall, to the same extent,
discharge the corresponding Obligations and vice versa.
13.12. U.K. SECURITY DOCUMENTS. Section 1 of the Trustee Act 2000
shall not apply to the duties of the Administrative Agent in relation to the
trusts constituted by the U.K. Pledge Agreement and the U.K. Security Agreement.
Where there are any inconsistencies between the Trustee Xxx 0000 or the Trustee
Xxx 0000 and the provisions of this Agreement and those of the U.K. Pledge
Agreement and the U.K. Security Agreement, the provisions of this Agreement and
those of the U.K. Pledge Agreement and the U.K. Security Agreement shall, to the
extent permitted by law, prevail, and in the case of any inconsistency with the
Trustee Xxx 0000, the provisions of this Agreement and those of the U.K. Pledge
Agreement and the U.K. Security Agreement shall constitute a restriction or
exclusion for the purposes of that Act.
SECTION 14. MISCELLANEOUS.
14.1. AMENDMENTS AND WAIVERS. Neither this Agreement nor any other
Credit Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 14.1. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (a) enter into with the relevant
Credit Party or Credit Parties written amendments, supplements or modifications
hereto and to the other Credit Documents for the purpose of adding any
provisions to this Agreement or the other Credit Documents or changing in any
manner the rights of the Lenders or of the Credit Parties hereunder or
thereunder or (b) waive, on such terms and conditions as the Required Lenders or
the Administrative Agent, as the case may be, may specify in such instrument,
any of the requirements of this Agreement or the other Credit Documents or any
Default or Event of Default and its consequences; PROVIDED, HOWEVER, that no
such waiver and no such amendment, supplement or modification shall directly (i)
forgive or reduce any portion of any Loan or extend the final scheduled maturity
date of any Loan or reduce the stated rate, or forgive any portion, or extend
the date for the payment, of any interest or fee payable hereunder (other than
as a result of waiving the applicability of any post-default increase in
interest rates), or extend the final expiration date of any Lender's Commitment
or extend the final expiration date of any Letter of Credit beyond the L/C
Maturity Date, or increase the aggregate amount of the Commitments of any
Lender, or amend or modify any provisions of Section 5.3(a) (with respect to the
ratable allocation of any payments only) and 14.8(a), in each case without the
written consent of each Lender directly and adversely affected thereby, or (ii)
amend, modify or waive
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any provision of this Section 14.1 or reduce the percentages specified in the
definitions of the terms "Required Lenders," "Required Tranche B Term Loan
Lenders," "Requisite Revolving Credit Lenders" or consent to the assignment or
transfer by the Borrower of its rights and obligations under any Credit Document
to which it is a party (except as permitted pursuant to Section 10.3), in each
case without the written consent of each Lender directly and adversely affected
thereby, or (iii) amend, modify or waive any provision of Section 13 without the
written consent of the then-current Administrative Agent, or (iv) amend, modify
or waive any provision of Section 3 without the written consent of the Letter of
Credit Issuer, or (v) amend, modify or waive any provisions hereof relating to
Swingline Loans without the written consent of the Swingline Lender, or (vi)
change any Revolving Credit Commitment to a Tranche B Term Loan Commitment, or
change any Tranche B Term Loan Commitment to a Revolving Credit Commitment, in
each case without the prior written consent of each Lender directly and
adversely affected thereby, or (vii) release all or substantially all of the
Guarantors under the Guarantee (except as expressly permitted by the Guarantee)
or release all or substantially all of the Collateral under the Pledge
Agreements, the Security Agreements and the Mortgages, in each case without the
prior written consent of each Lender, or (viii) amend Section 2.9 so as to
permit Interest Period intervals greater than six months without regard to
availability to Lenders, without the written consent of each Lender directly and
adversely affected thereby, or (ix) decrease any Repayment Amount, extend any
scheduled Repayment Date or decrease the amount or allocation of any mandatory
prepayment to be received by any Lender holding any Tranche B Term Loans, in
each case without the written consent of the Required Tranche B Term Loan
Lenders; PROVIDED, FURTHER, that (A) no amendment, modification, waiver of or
consent with respect to any of the terms and provisions (and related
definitions) of Section 11 shall be effective without the written consent of the
Requisite Revolving Credit Lenders and (B) only the Requisite Revolving Credit
Lenders (or the Administrative Agent with the prior written consent thereof), on
the one hand, and the Borrower, on the other hand, may amend, supplement or
otherwise modify or waive any of the terms and provisions (and related
definitions) of Section 11. Any such waiver and any such amendment, supplement
or modification shall apply equally to each of the affected Lenders and shall be
binding upon the Borrower, such Lenders, the Administrative Agent and all future
holders of the affected Loans. In the case of any waiver, the Borrower, the
Lenders and the Administrative Agent shall be restored to their former positions
and rights hereunder and under the other Credit Documents, and any Default or
Event of Default waived shall be deemed to be cured and not continuing, it being
understood that no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any right consequent thereon.
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,
or to such other address as may be hereafter notified by the respective parties
hereto:
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The Borrower: Intelsat Subsidiary Holding
Company, Ltd.
Canon's Court
00 Xxxxxxxx Xxxxxx
Xxxxxxxx
Xxxxxxx XX 00
Attn: Xxxxxx Xxxxxxx
fax: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxx
fax: (000) 000-0000
Holdings: Intelsat Intermediate Holding
Company, Ltd.
Canon's Court
00 Xxxxxxxx Xxxxxx
Xxxxxxxx
Xxxxxxx XX 00
Attn: Xxxxxx Xxxxxxx
fax: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxx
fax: (000) 000-0000
The Administrative Citicorp USA, Inc.
Agent: 0 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxx
Fax: (000) 000-0000
Email:
xxxxxxxxx.x.xxxx@xxxxxxxxx.xxx
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with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx LLP
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
E-mail: xxxxxxxxx@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, 2.9, 4.2 and 5.1 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.
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 Holdings, the Borrower, any
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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 (including any Affiliate of the Letter of Credit Issuer that
issues any Letter of Credit), 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 (including any
Affiliate of the Letter of Credit Issuer that issues any Letter of Credit),
Participants (to the extent provided in paragraph (c) of this Section 14.6) and,
to the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Letter of Credit Issuer and the Lenders) 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 it) with the prior written
consent (such consent not be unreasonably withheld or delayed; it being
understood that, without limitation, the Borrower shall have the right to
withhold its consent to any assignment if, in order for such assignment to
comply with applicable law, the Borrower would be required to obtain the consent
of, or make any filing or registration with, any Governmental Authority) of:
(A) the Borrower (which consent shall not be unreasonably withheld or
delayed), PROVIDED that no consent of the Borrower shall be required for an
assignment to a Lender, an Affiliate of a Lender (unless increased costs
would result therefrom except if an Event of Default under Section 12.1 or
Section 12.5 has occurred and is continuing), an Approved Fund or, if an
Event of Default under Section 12.1 or Section 12.5 has occurred and is
continuing, any other assignee; and
(B) the Administrative Agent (which consent shall not be unreasonably
withheld or delayed), and, in the case of Revolving Credit Commitments or
Revolving Credit Loans only, the Swingline Lender and the applicable Letter
of Credit Issuer, PROVIDED that no consent of the Administrative Agent, the
Swingline Lender or the Letter of Credit Issuer, as applicable, shall be
required for an assignment of (1) any Commitment to an assignee that is a
Lender with a Commitment of the same Class immediately prior to giv-
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ing effect to such assignment or (2) any Term Loan to a Lender, an
Affiliate of a Lender or an Approved Fund.
(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 or an assignment of the entire remaining amount
of the assigning Lender's Commitment or Loans of any Class, the amount of
the Commitment or 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 $5,000,000 (or, in the case of a Tranche B Term Loan
Commitment or Tranche B Term Loan, $1,000,000), and increments of
$1,000,000 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 or
Section 12.5 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, PROVIDED that this clause shall not be construed to
prohibit the assignment of a proportionate part of all the assigning
Lender's rights and obligations in respect of one Class of Commitments or
Loans;
(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
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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, 3.5, 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
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 and any payment made by the Letter of Credit Issuer under
any Letter of Credit owing to, each Lender pursuant to the terms hereof from
time to time (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, the Letter of Credit
Issuer 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, the Letter of Credit Issuer 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, the
Administrative Agent, the Letter of Credit Issuer or the Swingline Lender, 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, the Letter of Credit Issuer 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
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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.
(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 L-1 or L-2, as the case may be, evidencing the Tranche B Term
Loans and Increased Tranche B Term Loans, and Revolving Credit Loans and
Swingline Loans, respectively, owing to such Lender.
(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.
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, 3.5 or
5.4, (b) is affected in the manner described in Section 2.10(a)(iii) and as a
result thereof 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 any disputed amounts), pursuant to Section 2.10, 2.11, 2.12,
3.5 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
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Agent, (v) the replaced Lender shall be obligated to make such replacement in
accordance with the provisions 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 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 an Event of Default
relating to the proposed amendment, waiver, discharge or termination at issue
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 Section 12.5, 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
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demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by 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 Holdings, 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 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) Each of Holdings and 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;
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(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 Holdings
and/or the Borrower at their respective addresses set forth in Section 14.2
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, each of Holdings
and the Borrower acknowledges that it has (or shall, within 10 Business Days
after the Closing Date) by separate written instrument, designated and appointed
CT Corporation System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, X.X. 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) Each of Holdings and 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. Each of Holdings and 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 Holdings or 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
Holdings 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 Holdings and the Borrower and the
Lenders.
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14.15. WAIVERS OF JURY TRIAL. HOLDINGS, THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING 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. CITIGROUP DIRECT WEBSITE COMMUNICATIONS.
(a) DELIVERY. (i) The Borrower may, at its option, provide to the
Administrative Agent any information, documents and other materials that it is
obligated to furnish to the Administrative Agent pursuant to the Credit
Documents, including, without limitation, all notices, requests, financial
statements, financial and other reports, certificates and other information
materials, but excluding any such communication that (A) relates to a request
for a new, or a conversion of an existing, borrowing or other extension of
credit (including any election of an interest rate or interest period relating
thereto), (B) relates to the payment of any principal or other amount due under
the Credit Agreement prior to the scheduled date therefor, (C) provides notice
of any default or event of default under the Credit Agreement or (D) is required
to be delivered to satisfy any condition precedent to the effectiveness of the
Credit Agreement and/or any borrowing or other extension of credit thereunder
(all such non-excluded communications being referred to herein collectively as
"COMMUNICATIONS"), by transmitting the Communications in an electronic/soft
medium in a format reasonably acceptable to the Administrative Agent to
XXXXXXXXXXXXXXX@XXXXXXXXX.XXX. Nothing in this Section 14.17 shall prejudice the
right of the Borrower, the Administrative Agent or any Lender to give any notice
or other communication pursuant to any Credit Document in any other manner
specified in such Credit Document.
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(ii) The Administrative Agent agrees that the receipt of the
Communications by the Agent at its e-mail address set forth above shall
constitute effective delivery of the Communications to the Agent for purposes of
the Credit Documents. Each Lender agrees that notice to it (as provided in the
next sentence) specifying that the Communications have been posted to the
Platform shall constitute effective delivery of the Communications to such
Lender for purposes of the Credit Documents. Each Lender agrees (A) to notify
the Administrative Agent in writing (including by electronic communication) from
time to time of such Lender's e-mail address to which the foregoing notice may
be sent by electronic transmission and (B) that the foregoing notice may be sent
to such e-mail address.
(b) POSTING. The Borrower further agrees that the Administrative Agent
may make the Communications available to the Lenders by posting the
Communications on Intralinks or a substantially similar electronic transmission
system (the "PLATFORM"), so long as the access to such Platform is limited (i)
to the Agents and the Lenders and (ii) remains subject the confidentiality
requirements set forth in Section 14.16.
(c) The Platform is provided "as is" and "as available." The Agent
Parties do not warrant the accuracy or completeness of the Communications, or
the adequacy of the platform and expressly disclaim liability for errors or
omissions in the Communications. No warranty of any kind, express, implied or
statutory, including, without limitation, any warranty of merchantability,
fitness for a particular purpose, non-infringement of third party rights or
freedom from viruses or other code defects, is made by the Agent Parties in
connection with the Communications or the platform. In no event shall the
Administrative Agent or any of its affiliates or any of their respective
officers, directors, employees, agents, advisors or representatives
(collectively, "AGENT PARTIES") have any liability to the Borrower, any Lender
or any other person or entity for damages of any kind, including, without
limitation, direct or indirect, special, incidental or consequential damages,
losses or expenses (whether in tort, contract or otherwise) arising out of the
Borrower's or the Administrative Agent's transmission of Communications through
the internet, except to the extent the liability of any Agent Party is found in
a final non-appealable judgment by a court of competent jurisdiction to have
resulted primarily from such Agent Party's gross negligence or willful
misconduct.
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 Holdings and
the Borrower, which information includes the name and address of Holdings and
the Borrower and other information that will allow such Lender to identify
Holdings and 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.
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(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
adjudged 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.
14.20. ABSTRACT ACKNOWLEDGMENT OF INDEBTEDNESS AND JOINT CREDITORSHIP.
(a) Notwithstanding any other provision of this Agreement, Intelsat
Global hereby irrevocably and unconditionally agrees and covenants with the
Administrative Agent by way of an abstract acknowledgement of indebtedness that
it owes to the Administrative Agent as creditor in its own right and not as a
representative of the Secured Parties, sums equal to, and in the currency of,
each and every obligation of Intelsat Global under this Agreement and the other
Credit Documents (the "INTELSAT GLOBAL SECURED OBLIGATIONS"), as and when that
amount falls due for payment. The Administrative Agent shall be the joint
creditor (together with the Secured Parties) of all obligations of Intelsat
Global towards each of the Secured Parties in respect of the Intelsat Global
Secured Obligations.
(b) Intelsat Global undertakes to pay to the Administrative Agent upon
first written demand after the amount payable by Intelsat Global to each of the
Secured Parties with respect to the Intelsat Global Secured Obligations has
become due and payable.
(c) The Administrative Agent has the independent right to demand and
receive full or partial payment of the amounts payable by Intelsat Global under
this Section 14.20, irrespective of any discharge of Intelsat Global's
obligation to pay those amounts to the other Secured Parties resulting from
failure by them to take appropriate steps, in insolvency proceedings affecting
Intelsat Global, to preserve their entitlement to be paid those amounts.
(d) Any amount due and payable by Intelsat Global to the
Administrative Agent under this Section 14.20 shall be decreased to the extent
that the Secured Parties have re-
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ceived (and are able to retain) payment in full of the corresponding amount in
respect of the Intelsat Global Secured Obligations and any amount due and
payable by Intelsat Global to the Secured Parties under those provisions shall
be decreased to the extent that the Administrative Agent has received (and is
able to retain) payment in full of the corresponding amount under this Section
14.20, PROVIDED that Intelsat Global may not consider its obligations towards a
Secured Party to be so discharged by virtue of any set-off, counterclaim or
similar defence that it may invoke vis-a-vis the Administrative Agent.
(e) The rights of the Secured Parties (other than the Administrative
Agent) to receive payment of amounts payable by Intelsat Global in respect of
the Intelsat Global Secured Obligations are several and are separate and
independent from, and without prejudice to, the rights of the Administrative
Agent to receive payment under this Section 14.20.
14.21. CERTAIN COLLATERAL AND GUARANTEE MATTERS.
(a) The Lenders hereby authorize the Administrative Agent, at its
option and in its discretion, to release any Lien granted to or held by the
Administrative Agent upon any Collateral (i) upon termination of the Commitments
and payment and satisfaction of all of the Obligations at any time arising under
or in respect of this Agreement or the Credit Documents or the transactions
contemplated hereby or thereby (other than those arising from indemnities for
which no claim has been made), (ii) constituting property being sold or disposed
of (to Persons other than the Borrower and the Guarantors) upon the sale thereof
in compliance with, or as otherwise permitted in connection with a transaction
permitted under, this Agreement or (iii) if approved, authorized or ratified in
writing by the Required Lenders (or all Lenders, if such release is required to
be approved by all of the Lenders hereunder). Upon request by the Administrative
Agent at any time, the Lenders will confirm in writing the Administrative
Agent's authority to release particular types or items of Collateral pursuant to
this Section 14.21.
(b) Upon any sale and transfer of Collateral which is expressly
permitted pursuant to the terms of this Agreement, or consented to in writing by
the Required Lenders, or all of the Lenders, as applicable, and upon at least
five Business Days' (or such shorter period as is reasonably acceptable to the
Administrative Agent) prior written request by the Borrower, the Administrative
Agent shall (and is hereby irrevocably authorized by the Lenders to) execute
such documents as may be necessary to evidence the release of the Liens granted
to the Administrative Agent for the benefit of the Secured Parties herein or
pursuant hereto upon the Collateral that was sold or transferred, provided that
(i) the Administrative Agent shall not be required to execute any such document
on terms which, in the Administrative Agent's reasonable opinion, would expose
the Administrative Agent to liability or create any obligation or entail any
consequence other than the release of such Liens without recourse,
representation or warranty and (ii) such release shall not in any manner
discharge, affect or impair the Obligations or any Liens upon (or obligations of
Holdings or any of its Subsidiaries in respect of) all interests retained by
Holdings or any of its Subsidiaries, including, without limitation, the proceeds
of the sale, all of which shall continue to constitute part of the Collateral.
In the event of any foreclosure or similar enforcement action with respect to
any of the Collateral, the Administrative Agent shall be authorized to deduct
all of the costs and expenses reasonably incurred by the Administrative Agent
from the proceeds of any such sale, transfer or foreclosure.
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SECTION 15. HOLDINGS GUARANTEE.
15.1. THE HOLDINGS GUARANTEE. In order to induce the Agents and the
Lenders to enter into this Agreement and to extend credit hereunder, to induce
Lenders or any of their respective Affiliates to enter into the Hedge
Agreements, and in recognition of the direct benefits to be received by Holdings
from the proceeds of the Loans, the issuance of the Letters of Credit, and the
entering into of Hedge Agreements, Holdings hereby agrees with the Secured
Parties as follows: Holdings hereby unconditionally and irrevocably guarantees
as primary obligor and not merely as surety the full and prompt payment when
due, whether upon maturity, acceleration or otherwise, of any and all of the
Obligations of the Borrower to the Secured Parties. If any or all of the
Obligations of the Borrower to the Secured Parties becomes due and payable
hereunder, Holdings irrevocably and unconditionally promises to pay such
indebtedness to the Secured Parties, or order, on demand, together with any and
all expenses which may be incurred by the Secured Parties in collecting any of
the Obligations. This Holdings Guarantee is a guaranty of payment and not of
collection. If claim is ever made upon any Secured Party for repayment or
recovery of any amount or amounts received in payment or on account of any of
the Obligations and any of the aforesaid payees repays all or part of said
amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of its property
or (ii) any settlement or compromise of any such claim effected in good faith by
such payee with any such claimant (including the Borrower), then and in such
event Holdings agrees that any such judgment, decree, order, settlement or
compromise shall be binding upon it, notwithstanding any revocation of this
Holdings Guarantee or other instrument evidencing any liability of the Borrower,
and Holdings shall be and remain liable to the aforesaid payees hereunder for
the amount so repaid or recovered to the same extent as if such amount had never
originally been received by any such payee.
15.2. BANKRUPTCY. Additionally, Holdings unconditionally and
irrevocably guarantees the payment of any and all of the Obligations of the
Borrower to the Secured Parties whether or not due or payable by the Borrower
upon the occurrence of an Event of Default under Section 12.5, and
unconditionally promises to pay such indebtedness to the Secured Parties, or
order, on demand, in lawful money of the United States.
15.3. NATURE OF LIABILITY.
(a) The liability of Holdings hereunder is exclusive and independent
of any security for or other guaranty of the Obligations of the Borrower whether
executed by any other guarantor or by any other party, and the liability of
Holdings hereunder shall not be affected or impaired by (i) any direction as to
application of payment by the Borrower or by any other party, or (ii) any other
continuing or other guaranty, undertaking or maximum liability of a guarantor or
of any other party as to the Obligations of the Borrower, or (iii) any payment
on or in reduction of any such other guaranty or undertaking, or (iv) any
dissolution, termination or increase, decrease or change in personnel by the
Borrower, or (v) any payment made to any Secured Party on the Obligations which
any such Secured Party repays to the Borrower pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and Holdings waives any right to the deferral or modification of its
obligations hereunder by reason
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of any such proceeding, or (vi) the lack of validity or enforceability of any
Credit Document or any instrument relating thereto.
(b) The liability of Holdings shall not be affected nor shall this
Holdings Guarantee be discharged or reduced by reason of:
(i) the incapacity or any change in the name, style or constitution of
the Borrower or any other person liable;
(ii) the Administrative Agent granting any time, indulgence or
concession to, or compounding with, discharging, releasing or varying the
liability of, the Borrower or any other person liable or renewing,
determining, varying or increasing any accommodation, facility or
transaction or otherwise dealing with the same in any manner whatsoever or
concurring in, accepting or varying any compromise, arrangement or
settlement or omitting to claim or enforce payment from the Borrower or any
other person liable;
(iii) any novation of any Credit Document (including, without
limitation, any novation arising on the amalgamation of companies); or
(iv) any act or omission which would not have discharged or affected
the liability of Holdings had it been a principal debtor instead of a
guarantor or by anything done or omitted which but for this provision might
operate to exonerate or discharge Holdings.
15.4. INDEPENDENT OBLIGATIONS. The obligations of Holdings hereunder
are independent of the obligations of any other guarantor, any other party or
the Borrower, and a separate action or actions may be brought and prosecuted
against Holdings whether or not action is brought against any other guarantor,
any other party or the Borrower and whether or not any other guarantor, any
other party or the Borrower be joined in any such action or actions. Holdings
waives, to the full extent permitted by law, the benefit of any statute of
limitations affecting its liability hereunder or the enforcement thereof. Any
payment by the Borrower or other circumstance which operates to toll any statute
of limitations as to the Borrower shall operate to toll the statute of
limitations as to Holdings.
15.5. AUTHORIZATION. Holdings authorizes the Secured Parties without
notice or demand (except as shall be required by applicable statute and cannot
be waived), and without affecting or impairing its liability hereunder, from
time to time to:
(a) change the manner, place or terms of payment of, and/or change or
extend the time of payment of, renew, increase, accelerate or alter, any of
the Obligations (including any increase or decrease in the rate of interest
thereon), any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the Holdings Guarantee herein made shall
apply to the Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Obligations and
sell, exchange, release, surrender, realize upon or otherwise deal with in
any manner and in any order any property by whomsoever at any time pledged
or mortgaged to secure, or how-
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soever securing, the Obligations or any liabilities (including any of those
hereunder) incurred directly or indirectly in respect thereof or hereof,
and/or any offset there against;
(c) exercise or refrain from exercising any rights against the
Borrower, any other Credit Party or others or otherwise act or refrain from
acting;
(d) release or substitute any one or more endorsers, guarantors, the
Borrower or other obligors;
(e) settle or compromise any of the Obligations, any security therefor
or any liability (including any of those hereunder) incurred directly or
indirectly in respect thereof or hereof, and may subordinate the payment of
all or any part thereof to the payment of any liability (whether due or
not) of the Borrower to its creditors other than the Secured Parties;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrower to the Secured Parties regardless
of what liability or liabilities of Holdings or the Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission or default
under, this Agreement or any of the instruments or agreements referred to
herein, or otherwise amend, modify or supplement this Agreement or any of
such other instruments or agreements;
(h) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of
Holdings from its liabilities under this Holdings Guarantee;
(i) release any collateral security for the Obligations; and/or
(j) change its corporate structure.
15.6. RELIANCE. It is not necessary for any Secured Party to inquire
into the capacity or powers of the Borrower or the officers, directors, partners
or agents acting or purporting to act on their behalf, and any Obligations made
or created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
15.7. SUBORDINATION. Any of the indebtedness of the Borrower now or
hereafter owing to Holdings is hereby subordinated to the Obligations of the
Borrower owing to the Secured Parties; and if the Administrative Agent so
requests at a time when an Event of Default exists, all such indebtedness of the
Borrower to Holdings shall be collected, enforced and received by Holdings for
the benefit of the Secured Parties and be paid over to the Administrative Agent
on behalf of the Secured Parties on account of the Obligations of the Borrower
to the Secured Parties, but without affecting or impairing in any manner the
liability of Holdings under the other provisions of this Holdings Guarantee.
Prior to the transfer by Holdings of any note or negotiable instrument
evidencing any of the indebtedness of the Borrower to Holdings, Holdings shall
xxxx such note or negotiable instrument with a legend that the same is subject
to this sub-
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ordination. Without limiting the generality of the foregoing, Holdings hereby
agrees with the Secured Parties that it will not exercise any right of
subrogation which it may at any time otherwise have as a result of this Holdings
Guarantee (whether contractual, under Section 509 of the Bankruptcy Code or
otherwise) until all Obligations have been irrevocably paid in full in cash.
15.8. WAIVERS.
(a) Holdings waives any right (except as shall be required by
applicable statute and cannot be waived) to require any Secured Party to (i)
proceed against the Borrower, any other guarantor or any other party, (ii)
proceed against or exhaust any security held from the Borrower, any other
guarantor or any other party or (iii) pursue any other remedy in any Secured
Party's power whatsoever. Holdings waives any defense based on or arising out of
any defense of the Borrower, any other guarantor or any other party, other than
payment in full of the Obligations, based on or arising out of the disability of
the Borrower, any other guarantor or any other party, or the validity, legality
or unenforceability of the Obligations or any part thereof from any cause, or
the cessation from any cause of the liability of the Borrower other than payment
in full of the Obligations. The Secured Parties may, at their election,
foreclose on any security held by any Agent, the Collateral Agent or any other
Secured Party by one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable (to the extent such sale is
permitted by applicable law), or exercise any other right or remedy the Secured
Parties may have against the Borrower or any other party, or any security,
without affecting or impairing in any way the liability of Holdings hereunder
except to the extent the Obligations have been paid. Holdings waives any defense
arising out of any such election by the Secured Parties, even though such
election operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of Holdings against the Borrower or any
other party or any security.
(b) Holdings waives all presentments, demands for performance,
protests and notices, including, without limitation, notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Holdings
Guarantee, and notices of the existence, creation or incurring of new or
additional Obligations. Holdings assumes all responsibility for being and
keeping itself informed of the Borrower's financial condition and assets, and of
all other circumstances bearing upon the risk of nonpayment of the Obligations
and the nature, scope and extent of the risks which Holdings assumes and incurs
hereunder, and agrees that neither the Agents nor any Lender shall have any duty
to advise Holdings of information known to them regarding such circumstances or
risks.
(c) Holdings warrants and agrees that each of the waivers set forth
above is made with full knowledge of its significance and consequences and that
if any of such waivers are determined to be contrary to any applicable law or
public policy, such waivers shall be effective only to the maximum extent
permitted by law.
15.9. MAXIMUM LIABILITY. It is the desire and intent of Holdings and
the Secured Parties that this Holdings Guarantee shall be enforced against
Holdings to the fullest extent permissible under the laws and public policies
applied in each jurisdiction in which enforcement is sought. If, however, and to
the extent that, the obligations of Holdings under this Holdings Guarantee shall
be adjudicated to be invalid or unenforceable for any reason (including, without
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limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers), then the amount of the Obligations of
Holdings shall be deemed to be reduced and Holdings shall pay the maximum amount
of the Obligations which would be permissible under applicable law.
15.10. HOLDINGS GUARANTEE RELEASE. Upon the consummation of any
Holdings Dropdown Transaction or Holdings-Borrower Merger, the parties hereto
agree that Predecessor Holdings or Pre-Merger Holdings (as applicable) shall be
released from the Holdings Guarantee and from all other covenants and
obligations of Holdings under this agreement and the Administrative Agent shall,
at Borrower's expense, take all actions reasonably requested by Borrower or
Predecessor Holdings to evidence such release; PROVIDED that Successor Holdings
or Replacement Holdings (as applicable) shall guarantee the Obligations and
shall otherwise assume and succeed to the obligations of Holdings hereunder, all
in a manner reasonably satisfactory to the Administrative Agent.
SECTION 16. CONDITION SUBSEQUENT. It shall be a condition subsequent
to the effectiveness of this Agreement that Holdings pledge all of the capital
stock of the Borrower to the Administrative Agent for the benefit of the Secured
Parties and that the Acquisition occur, in each case on the Closing Date,
pursuant to the Bermuda Pledge Agreement and the Acquisition Agreement,
respectively.
It is hereby acknowledged that, upon the instant of effectiveness of
this Agreement, Holdings does not own the capital stock of the Borrower and the
Acquisition will not have occurred, but Holdings shall become the owner of such
capital stock and the Acquisition shall occur contemporaneously with the
effectiveness hereof. Notwithstanding anything to the contrary contained in this
Agreement or any other Credit Document, so long as Holdings so becomes the owner
of the capital stock of the Borrower and fulfills the condition subsequent set
forth in this Section 16 and the Acquisition so occurs, the failure of Holdings
to own the capital stock of Borrower (and to pledge such capital stock) and the
pendancy of the Acquisition upon the instant of effectiveness shall not
constitute a Default or an Event of Default, a breach of any representation or
warranty or a failure to satisfy any condition precedent under this Agreement or
any other Credit Document.
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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 SUBSIDIARY HOLDING
COMPANY, LTD.
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
INTELSAT INTERMEDIATE HOLDING
COMPANY, LTD.
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
CITICORP USA, INC.,
as Administrative Agent
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arranger
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
DEUTSCHE BANK SECURITIES INC.,
as Joint Lead Arranger
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
DEUTSCHE BANK TRUST COMPANY
AMERICAS,
as an Issuing Bank
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Title: Director
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: Director
CREDIT SUISSE, CAYMAN ISLANDS
BRANCH,
as Syndication Agent
By: /s/ Xxxx X'Xxxx
--------------------------------
Name: Xxxx X'Xxxx
Title: Director
By: /s/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: Associate
CREDIT SUISSE SECURITIES (USA) LLC,
as Joint Lead Arranger
By: /s/ J. Xxxxx Xxxx
--------------------------------
Name: J. Xxxxx Xxxx
Title: Managing Director
XXXXXX BROTHERS INC.,
as Joint Lead Arranger
By: /s/ Antony Maniscalsa
--------------------------------
Name: Antony Maniscalsa
Title: Managing Director
ANNEX I
COMMITMENTS
REVOLVING CREDIT TRANCHE B TERM LOAN
LENDER COMMITMENT COMMITMENT
-------------------------- ---------------- -------------------
Citicorp USA, Inc. ....... $300,000,000.00 $344,750,000.00
