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EXHIBIT 10.16.4
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FOURTH AMENDMENT
FOURTH AMENDMENT, dated as of November 10, 1999 (this
"Amendment"), to and of the Amended and Restated Credit and Participation
Agreement, dated as of November 14, 1997 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among LORAL SPACECOM
CORPORATION (the "Borrower"), SPACE SYSTEMS/LORAL, INC. ("SS/L"), the Banks from
time to time parties thereto (the "Banks"), ISTITUTO BANCARIO SAN PAOLO DI
TORINO S.P.A. ("San Paolo"), individually and as selling bank (in such capacity,
the "Selling Bank"), BANK OF AMERICA, N.A. ("Bank of America"), as
administrative agent (in such capacity, the "Administrative Agent") and as
issuing bank, THE CHASE MANHATTAN BANK, as syndication agent and NATIONSBANK OF
TEXAS, N.A., as documentation agent.
W I T N E S S E T H :
WHEREAS, the Credit Agreement provides for the issuance of
Additional Letters of Credit from time to time during the period ending November
14, 1999 (the "Additional Letters of Credit Termination Date") on terms and
conditions set forth in the Credit Agreement; and
WHEREAS, the Borrower has requested that the Credit Agreement be
amended to extend the Additional Letters of Credit Termination Date on the terms
set forth herein; and
WHEREAS, the Additional Letters of Credit Banks and the Required
Banks are willing to agree to such amendment upon terms and subject to the
conditions set forth below; and
WHEREAS, the Borrower has requested that the Credit Agreement be
amended to extend the Export Maturity Date on the terms set forth herein; and
WHEREAS, the Selling Bank and the Required Banks are willing to
agree to such amendment upon terms and subject to conditions set forth below;
NOW, THEREFORE, in consideration of the premises and mutual
agreements contained herein and for other valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
Section 1. Defined Terms. Unless otherwise defined herein, terms
defined in the Credit Agreement are used herein (including the recitals hereto)
as therein defined.
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Section 2. Amendment of Subsection 1.1(Definitions). Subsection
1.1 of the Credit Agreement is hereby amended as follows:
(a) by adding the following new defined terms in proper
alphabetical order:
"'Additional Letters of Credit Commitment Period': the
period from and including the Closing Date to but not including the
Additional Letters of Credit Termination Date or such earlier date on
which the Additional Letters of Credit Commitments shall terminate as
provided herein."
"'Additional Letters of Credit Termination Date':
December 31, 2000, or such earlier date as the Additional Letters of
Credit Commitments shall terminate as provided herein."
(b) by deleting the defined term "Export Maturity Date" and
substituting in lieu thereof the following new defined term in proper
alphabetical order:
"'Export Maturity Date': December 31, 1999."
Section 3. Amendment of Subsection 2.1(d) (Commitments) .
Subsection 2.1(d) of the Credit Agreement is hereby amended by deleting the
phrase "period ending November 14, 1999" from the third line thereof and
substituting in lieu thereof the phrase "Additional Letters of Credit Commitment
Period".
Section 4. Amendment of Subsection 4.1(b) (Issuance of
Syndicated Letters of Credit) . Subsection 4.1(b) of the Credit Agreement is
hereby amended by deleting such subsection 4.1(b) in its entirety and
substituting in lieu thereof the following:
"(b) Each Standby L/C, Performance Letter of Credit and
Commercial L/C issued hereunder shall, among other things, (i) be in
such form requested by the Borrower from the Issuing Bank as shall be
acceptable to the Issuing Bank in its sole discretion and (ii) have an
expiry date occurring not later than the fifth Business Day preceding
the Revolving Credit Termination Date or the Additional Letters of
Credit Termination Date, in the case of Additional Letters of Credit"
Section 5. Amendment of Subsection 4.5(a) (Syndicated Letter of
Credit Fees). Subsection 4.5(a) of the Credit Agreement is hereby amended by
deleting "50%" in clause (i)(y) thereof and substituting in lieu thereof "75%".
Section 6. Assignment and Acceptance. Effective immediately upon
the execution of this Amendment by the Borrower, SS/L and the Required Banks
(prior to giving effect to this Amendment), each Additional Letters of Credit
Bank (prior to giving effect to this Amendment) hereby irrevocably sells and
assigns to the Persons listed on Schedule I hereto without recourse to such
Additional Letters of Credit Banks, and each such Person hereby
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irrevocably purchases and assumes from such Additional Letters of Credit Banks
without recourse to such Additional Letters of Credit Banks, the Additional
Letters of Credit Commitments such that, after giving effect thereto, the
Additional Letters of Credit Commitments of the Banks shall be as set forth on
such Schedule I. The provisions of Sections 6, 7, 8 and 9 of Exhibit B to the
Credit Agreement are hereby incorporated herein matatis mutandis with respect to
the assignment provided for in this Section 6.
Section 7. Conditions Precedent. This Amendment (other than
Section 2(b) and Section 5 hereof) shall become effective as of the date (the
"Amendment Effective Date") that the Administrative Agent shall have received
counterparts of this Amendment, duly executed by the Borrower, SS/L, the
Additional Letters of Credit Banks (after giving effect to Section 6) and the
Required Banks. Section 2(b) of this Amendment shall become effective as of the
date that the Administrative Agent shall have received counterparts of this
Amendment, duly executed by the Borrower, SS/L, the Selling Bank and the
Required Banks. Section 5 of this Amendment shall become effective as of the
date that the Administrative Agent shall have received counterparts of this
Amendment, duly executed by the Borrower, SS/L and the Required Banks.
Section 8. Legal Obligation. The Borrower represents and
warrants to each Bank that the Credit Agreement and this Amendment constitute
legal, valid and binding obligations of the Borrower, enforceable against it in
accordance with their respective terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyances, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
Section 9. Continuing Effect. Except for the amendments
expressly provided herein, the Credit Agreement shall continue to be, and shall
remain, in full force and effect in accordance with its terms. The amendments
provided herein shall be limited precisely as drafted and shall not be construed
to be an amendment or waiver of any other provision of the Credit Agreement
other than as specifically provided herein.
Section 10. Expenses. The Borrower agrees to pay or reimburse
the Administrative Agent for all of its 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 Amendment and any
other documents prepared in connection herewith, and the consummation of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent.
SECTION 11. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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Section 12. Counterparts. This Amendment may be executed in any
number of counterparts, each of which when executed and delivered, shall be
deemed an original, and all such counterparts, taken together, shall constitute
but one and the same instrument.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the date first above written.
As to Amendment (other than Section
2(b) and Section 5):
LORAL SPACECOM CORPORATION
By:/s/Xxxxxxxx X. Xxxxx
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Title: Senior Vice President
SPACE SYSTEMS/LORAL, INC.
By:/s/Xxxxxxxx X. Xxxxx
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Title: Senior Vice President
As to Section 2(b) of Amendment:
LORAL SPACECOM CORPORATION
By:/s/Xxxxxxxx X. Xxxxx
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Title: Senior Vice President
SPACE SYSTEMS/LORAL, INC.
By:/s/Xxxxxxxx X. Xxxxx
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Title: Senior Vice President
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As to Section 5 of Amendment:
LORAL SPACECOM CORPORATION
By:/s/Xxxxxxxx X. Xxxxx
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Title: Senior Vice President
SPACE SYSTEMS/LORAL, INC.
By:/s/Xxxxxxxx X. Xxxxx
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Title: Senior Vice President
As to Amendment (other than Section
2(b) and Section 5):
BANK OF AMERICA, N.A.,
as Administrative Agent, Issuing Bank
and a Bank
By:/s/Xxxxx X. Xxxxxxxxx
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Title: Managing Director
As to Section 2(b) of Amendment:
BANK OF AMERICA, N.A.,
as Administrative Agent, Issuing
Bank and a Bank
By:/s/Xxxxx X. Xxxxxxxxx
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Title: Managing Director
As to Section 5 of Amendment:
BANK OF AMERICA N.A.,
as Administrative Agent, Issuing
Bank and a Bank
By:/s/Xxxxx X. Xxxxxxxxx
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Title: Managing Director
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As to Amendment (other than Section
2(b) and Section 5):
SAN PAOLO IMI S.p.A.,
as Selling Bank and in its
individual capacity
By:
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Title:
By:
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Title:
As to Section 2(b) of Amendment:
SAN PAOLO IMI S.p.A.,
as Selling Bank and in its
individual capacity
By:/s/Xxxx Xxxxxx
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Title:Vice President
By:/s/Carlo Tersico
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Title: DGM
As to Section 5 of Amendment:
SAN PAOLO IMI S.p.A.,
as Selling Bank and in its
individual capacity
By:/s/Xxxx Xxxxxx
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Title:Vice President
By:/s/Carlo Tersico
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Title: DGM
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As to Amendment (other than Section
2(b) and Section 5):
THE CHASE MANHATTAN BANK
By:/s/The Chase Manhattan Bank
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Title:
As to Section 2(b) of Amendment:
THE CHASE MANHATTAN BANK
By:/s/The Chase Manhattan Bank
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Title:
As to Section 5 of Amendment:
THE CHASE MANHATTAN BANK
By:/s/The Chase Manhattan Bank
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Title:
As to Amendment (other than Section
2(b) ans Section 5):
THE BANK OF NEW YORK
By:/s/The Bank of New York
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Title:
As to Section 2(b) of Amendment:
THE BANK OF NEW YORK
By:/s/The Bank of New York
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Title:
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As to Section 5 of Amendment:
THE BANK OF NEW YORK
By:/s/The Bank of New York
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Title:
As to Amendment (other than Section
2(b) and Section 5):
BARCLAYS BANK PLC
By:/s/L. Xxxxx Xxxxxx
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Title: Director
As to Section 2(b) of Amendment:
BARCLAYS BANK PLC
By:/s/L. Xxxxx Xxxxxx
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Title: Director
As to Section 5 of Amendment:
BARCLAYS BANK PLC
By:/s/L. Xxxxx Xxxxxx
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Title: Director
As to Amendment (other than Section
2(b) and Section 5):
CREDIT LYONNAIS, NEW YORK BRANCH
By:/s/Xxxx X. Judge
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Title: Vice President
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As to Section 2(b) of Amendment:
CREDIT LYONNAIS, NEW YORK BRANCH
By:/s/L. Xxxxx Xxxxxx
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Title: Vice President
As to Section 5 of Amendment:
CREDIT LYONNAIS, NEW YORK BRANCH
By:/s/L. Xxxxx Xxxxxx
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Title: Vice President
As to Amendment (other than Section
2(b) and Section 5):
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By:/s/Xxxxxxxx Xxxxxx Xxxxxxx
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Title: Vice President
By:/s/Xxxx Xxxxxxxx
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Title: Vice President
As to Section 2(b) of Amendment:
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DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By:/s/Xxxxxxxx Xxxxxx Xxxxxxx
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Title: Vice President
By:/s/Xxxx Xxxxxxxx
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Title: Vice President
As to Section 5 of Amendment:
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By:/s/Xxxxxxxx Xxxxxx Xxxxxxx
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Title: Vice President
By:/s/Xxxx Xxxxxxxx
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Title: Vice President
As to Amendment (other than Section
2(b) and Section 5):
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:/s/Takuya Honjo
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Title: Senior Vice President
As to Section 2(b) of Amendment:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:/s/Takuya Honjo
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Title: Senior Vice President
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As to Section 5 of Amendment:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:/s/Takuya Honjo
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Title: Senior Vice President
As to Amendment (other than Section
2(b) and Section 5):
MELLON BANK N.A.
By:
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Title:
As to Section 2(b) of Amendment:
MELLON BANK N.A.
By:
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Title:
As to Section 5 of Amendment:
MELLON BANK N.A.
By:
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Title:
As to Amendment (other than Section
2(b) and Section 5):
THE SANWA BANK, LIMITED,
NEW YORK BRANCH
By:
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Title:
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As to Section 2(b) of Amendment:
THE SANWA BANK, LIMITED,
NEW YORK BRANCH
By:/s/Xxxxxxx X. Small
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Title:
As to Section 5 of Amendment:
THE SANWA BANK, LIMITED,
NEW YORK BRANCH
By:/s/Xxxxxxx X. Small
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Title: Vice President
As to Amendment (other than Section
2(b) and Section 5):
SOCIETE GENERALE
By:/s/Xxxx X. Xxxxxx
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Title:Director
As to Section 2(b) of Amendment:
SOCIETE GENERALE
By:/s/Xxxx X. Xxxxxx
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Title:Director
As to Section 5 of Amendment:
SOCIETE GENERALE
By:/s/Xxxx X. Xxxxxx
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Title:Director
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As to Amendment (other than Section
2(b) and Section 5):
THE SUMITOMO BANK LIMITED
By:
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Title:
As to Section 2(b) of Amendment:
THE SUMITOMO BANK LIMITED
By:
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Title:
As to Section 5 of Amendment:
THE SUMITOMO BANK LIMITED
By:
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Title:
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As to Amendment (other than Section
2(b) and Section 5):
BANK OF MONTREAL
By:
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Title:
As to Section 2(b) of Amendment:
BANK OF MONTREAL
By:
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Title:
As to Section 5 of Amendment:
BANK OF MONTREAL
By:
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As to Amendment (other than Section 2
(b) and Section 5):
THE BANK OF NOVA SCOTIA
By:/s/J. Xxxx Xxxxxxx
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Title: Authorized Signatory
As to Section 2(b) of Amendment:
THE BANK OF NOVA SCOTIA
By:/s/J. Xxxx Xxxxxxx
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Title: Authorized Signatory
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As to Section 5 of Amendment:
THE BANK OF NOVA SCOTIA
By:/s/J. Xxxx Xxxxxxx
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Title: Authorized Signatory
As to Amendment (other than Section
2(b) and Section 5):
BANQUE NATIONALE DE PARIS
By:/s/Sophie Revillard Xxxxxxx
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Title: Vice President
By:/s/Xxxx Xxxxxx
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Title: Assistant Vice President
As to Section 2(b) of Amendment:
BANQUE NATIONALE DE PARIS
By:/s/Sophie Revillard Xxxxxxx
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Title: Vice President
By:/s/Xxxx Xxxxxx
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Title: Assistant Vice President
As to Section 5 of Amendment:
BANQUE NATIONALE DE PARIS
By:/s/Sophie Revillard Xxxxxxx
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Title: Vice President
By:/s/Xxxx Xxxxxx
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Title: Assistant Vice President
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As to Amendment (other than Section
2(b) and Section 5):
PARIBAS
By:
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Title: Vice President
By:
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Title:
As to Section 2(b) of Amendment:
PARIBAS
By:
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Title:
By:
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Title:
As to Section 5 of Amendment:
PARIBAS
By:
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Title:
By:
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Title:
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As to Amendment (other than Section
2(b) and Section 5):
BAYERISCHE LANDESBANK GIROZENTRALE
CAYMAN ISLANDS BRANCH
By:/s/Xxxxxxxx Xxxxxxxx
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Title: Senior Vice President
By:/s/Xxxxxxxx Xxxxxxxx
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Title: Vice President
As to Section 2(b) of Amendment:
BAYERISCHE LANDESBANK GIROZENTRALE
CAYMAN ISLANDS BRANCH
By:/s/Xxxxxxxx Xxxxxxxx
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Title: Senior Vice President
By:/s/Xxxxxxxx Xxxxxxxx
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Title: Vice President
As to Section 5 of Amendment:
BAYERISCHE LANDESBANK GIROZENTRALE
CAYMAN ISLANDS BRANCH
By:/s/Xxxxxxxx Xxxxxxxx
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Title: Senior Vice President
By:/s/Xxxxxxxx Xxxxxxxx
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Title: Vice President
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As to Amendment (other than Section
2(b) and Section 5):
CIBC INC.
By:/s/Xxxxxx Xxxx
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Title: Executive Director
CIBC Work Markets Corp. As Agent
As to Section 2(b) of Amendment:
CIBC INC.
By:/s/Xxxxxx Xxxx
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Title: Executive Director
CIBC Work Markets Corp. As Agent
As to Section 5 of Amendment:
CIBC INC.
By:/s/Xxxxxx Xxxx
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Title: Executive Director
CIBC Work Markets Corp. As Agent
As to Amendment (other than Section
2(b) and Section 5):
CITICORP USA, INC.
By:/s/Xxxxxx X. Xxxxxx
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Title: Managing Director
As to Section 2(b) of Amendment:
CITICORP USA, INC.
By:/s/Xxxxxx X. Xxxxxx
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Title: Managing Director
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As to Section 5 of Amendment:
CITICORP USA, INC.
By:/s/Xxxxxx X. Xxxxxx
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Title: Managing Director
As to Amendment (other than Section
2(b) and Section 5):
FUJI BANK, LIMITED
By:/s/Fuji Bank, Limited
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Title:
As to Section 2(b) of Amendment:
FUJI BANK, LIMITED
By:/s/Fuji Bank, Limited
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Title:
As to Section 5 of Amendment:
FUJI BANK, LIMITED
By:/s/Fuji Bank, Limited
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Title:
As to Amendment (other than Section
2(b) and Section 5):
GENERAL ELECTRIC CAPITAL CORPORATION
By:/s/Xxxx Xxxxxxx
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Title: Duly Authorized Signatory
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As to Section 2(b) of Amendment:
GENERAL ELECTRIC CAPITAL CORPORATION
By:/s/Xxxx Xxxxxxx
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Title: Duly Authorized Signatory
As to Section 5 of Amendment:
GENERAL ELECTRIC CAPITAL CORPORATION
By:/s/Xxxx Xxxxxxx
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Title: Duly Authorized Signatory
As to Amendment (other than Section
2(b) and Section 5):
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:/s/Xxxxx X. Xxxxx
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Title: Senior Vice President
As to Section 2(b) of Amendment:
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:/s/Xxxxx X. Xxxxx
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Title: Senior Vice President
As to Section 5 of Amendment:
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:/s/Xxxxx X. Xxxxx
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Title:
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As to Amendment (other than Section
2(b) and Section 5):
NATIONAL CITY BANK
By:/s/Xxxxxx X. Xxxxxxx
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Title: Vice President
As to Section 2(b) of Amendment:
NATIONAL CITY BANK
By:/s/Xxxxxx X. Xxxxxxx
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Title: Vice President
As to Section 5 of Amendment:
NATIONAL CITY BANK
By:/s/Xxxxxx X. Xxxxxxx
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Title: Vice President
As to Amendment (other than Section
2(b) and Section 5):
PNC BANK, NATIONAL ASSOCIATION
By:/s/Xxxxxxx X. Xxxxxxxx
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Title:Vice President
As to Section 2(b) of Amendment:
PNC BANK, NATIONAL ASSOCIATION
By:/s/Xxxxxxx X. Xxxxxxxx
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Title:Vice President
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As to Section 5 of Amendment:
PNC BANK, NATIONAL ASSOCIATION
By:/s/Xxxxxxx X. Xxxxxxxx
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Title:Vice President
As to Amendment (other than Section
2(b) and Section 5):
THE TOKAI BANK, LIMITED
NEW YORK BRANCH
By:
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Title:
As to Section 2(b) of Amendment:
THE TOKAI BANK, LIMITED
NEW YORK BRANCH
By:/s/Xxxxxxxx Xxxxxxxx
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Title: Assistant General Manager
As to Section 5 of Amendment:
THE TOKAI BANK, LIMITED
NEW YORK BRANCH
By:
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Title:
As to Amendment (other than Section
2(b) and Section 5):
THE TOYO TRUST & BANKING CO., LTD.
By:
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Title:
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As to Section 2(b) of Amendment:
THE TOYO TRUST & BANKING CO., LTD.
By:/s/Xxxxx Xxxxxxxx
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Title: Asistant General Manager
International Department
As to Section 5 of Amendment:
THE TOYO TRUST & BANKING CO., LTD.
By:/s/Xxxxx Xxxxxxxx
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Title: Asistant General Manager
International Department
As to Amendment (other than Section
2(b) and Section 5):
UNICREDITO ITALIANO
By:/s/Unicredito Italiano
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Title:
By:/s/Unicredito Italiano
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Title:
As to Section 2(b) of Amendment:
UNICREDITO ITALIANO
By:/s/Unicredito Italiano
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Title:
By:/s/Unicredito Italiano
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Title:
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As to Section 5 of Amendment:
UNICREDITO ITALIANO
By:/s/Unicredito Italiano
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Title:
By:/s/Unicredito Italiano
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Title:
As to Amendment (other than Section
2(b) and Section 5):
BANKERS TRUST COMPANY
By:/s/Bankers Trust Company
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Title:
As to Section 2(b) of Amendment:
BANKERS TRUST COMPANY
By:/s/Bankers Trust Company
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Title:
As to Section 5 of Amendment:
BANKERS TRUST COMPANY
By:/s/Bankers Trust Company
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Title:
