EXECUTION COPY
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$2,241,010,000
CREDIT AGREEMENT
Dated as of August 20, 2004,
as Amended and Restated as of March 22, 2005,
as further Amended and Restated as of July 3, 2006
among
PANAMSAT CORPORATION
(to be renamed INTELSAT CORPORATION on the Amendment Effective Date),
as the Borrower
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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776113
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.......................................................51
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....................................56
2.7. PRO RATA BORROWINGS..............................................57
2.8. INTEREST.........................................................57
2.9. INTEREST PERIODS.................................................58
2.10. INCREASED COSTS, ILLEGALITY, ETC.................................58
2.11. COMPENSATION.....................................................60
2.12. CHANGE OF LENDING OFFICE.........................................61
2.13. NOTICE OF CERTAIN COSTS..........................................61
2.14. INCREMENTAL FACILITIES...........................................61
SECTION 3. LETTERS OF CREDIT.
3.1. LETTERS OF CREDIT................................................63
3.2. LETTER OF CREDIT REQUESTS........................................64
3.3. LETTER OF CREDIT PARTICIPATIONS..................................64
3.4. AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS.....................66
3.5. INCREASED COSTS..................................................67
3.6. SUCCESSOR LETTER OF CREDIT ISSUER................................68
SECTION 4. FEES; COMMITMENTS.
4.1. FEES.............................................................69
4.2. VOLUNTARY REDUCTION OF RENEWED REVOLVING CREDIT
COMMITMENTS......................................................69
4.3. MANDATORY TERMINATION OF COMMITMENTS.............................70
SECTION 5. PAYMENTS.
5.1. VOLUNTARY PREPAYMENTS............................................70
5.2. MANDATORY PREPAYMENTS............................................71
5.3. METHOD AND PLACE OF PAYMENT......................................74
5.4. NET PAYMENTS.....................................................75
5.5. COMPUTATIONS OF INTEREST AND FEES................................77
5.6. LIMIT ON RATE OF INTEREST........................................77
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SECTION 6. CONDITIONS PRECEDENT TO INITIAL BORROWING ON THE AMENDMENT
EFFECTIVE DATE.
6.1. CREDIT DOCUMENTS.................................................78
6.2. AMENDMENT 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
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............................................81
8.12. SUBSIDIARIES.....................................................82
8.13. PATENTS, ETC.....................................................82
8.14. ENVIRONMENTAL LAWS...............................................82
8.15. PROPERTIES.......................................................83
8.16. SOLVENCY.........................................................83
8.17. [INTENTIONALLY OMITTED]..........................................83
8.18. FCC LICENSES, ETC................................................83
8.19. SATELLITES.......................................................83
SECTION 9. AFFIRMATIVE COVENANTS.
9.1. INFORMATION COVENANTS............................................84
9.2. BOOKS, RECORDS AND INSPECTIONS...................................88
9.3. MAINTENANCE OF INSURANCE.........................................88
9.4. PAYMENT OF TAXES.................................................90
9.5. CONSOLIDATED CORPORATE FRANCHISES................................90
9.6. COMPLIANCE WITH STATUTES, REGULATIONS, ETC.......................90
9.7. ERISA............................................................90
9.8. MAINTENANCE OF PROPERTIES........................................91
9.9. TRANSACTIONS WITH AFFILIATES.....................................91
9.10. END OF FISCAL YEARS; FISCAL QUARTERS.............................92
9.11. ADDITIONAL GUARANTORS AND GRANTORS...............................92
9.12. PLEDGES OF ADDITIONAL STOCK AND EVIDENCE OF
INDEBTEDNESS.....................................................93
9.13. USE OF PROCEEDS..................................................93
9.14. CHANGES IN BUSINESS..............................................93
9.15. FURTHER ASSURANCES...............................................94
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9.16. ACCESS AND COMMAND CODES.........................................95
9.17. TTC&M PROVIDERS..................................................96
9.18. MAINTENANCE OF RATING OF FACILITIES..............................96
SECTION 10. NEGATIVE COVENANTS.
10.1. LIMITATION ON INDEBTEDNESS.......................................96
10.2. LIMITATION ON LIENS.............................................100
10.3. LIMITATION ON FUNDAMENTAL CHANGES...............................101
10.4. LIMITATION ON SALE OF ASSETS....................................103
10.5. LIMITATION ON INVESTMENTS.......................................105
10.6. LIMITATION ON DIVIDENDS.........................................107
10.7. LIMITATIONS ON DEBT PAYMENTS AND AMENDMENTS.....................109
10.8. LIMITATIONS ON SALE LEASEBACKS..................................109
10.9. NON-GUARANTOR DOMESTIC RESTRICTED SUBSIDIARIES..................110
SECTION 11. FINANCIAL COVENANT.
SECTION 12. EVENTS OF DEFAULT.
12.1. PAYMENTS........................................................110
12.2. REPRESENTATIONS, ETC............................................110
12.3. COVENANTS.......................................................111
12.4. DEFAULT UNDER OTHER AGREEMENTS..................................111
12.5. BANKRUPTCY, ETC.................................................111
12.6. ERISA...........................................................112
12.7. GUARANTEE.......................................................112
12.8. PLEDGE AGREEMENTS...............................................112
12.9. SECURITY AGREEMENTS.............................................112
12.10. MORTGAGES.......................................................113
12.11. JUDGMENTS.......................................................113
12.12. CHANGE OF CONTROL...............................................113
12.13. PERMITTED EQUITY ISSUANCE.......................................113
SECTION 13. THE ADMINISTRATIVE AGENT.
13.1. APPOINTMENT.....................................................114
13.2. DELEGATION OF DUTIES............................................114
13.3. EXCULPATORY PROVISIONS..........................................114
13.4. RELIANCE BY ADMINISTRATIVE AGENT................................115
13.5. NOTICE OF DEFAULT...............................................115
13.6. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS..........115
13.7. INDEMNIFICATION.................................................116
13.8. ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.................116
13.9. SUCCESSOR AGENT.................................................117
13.10. WITHHOLDING TAX.................................................117
SECTION 14. MISCELLANEOUS.
14.1. AMENDMENTS AND WAIVERS..........................................117
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14.2. NOTICES.........................................................119
14.3. NO WAIVER; CUMULATIVE REMEDIES..................................119
14.4. SURVIVAL OF REPRESENTATIONS AND WARRANTIES......................119
14.5. PAYMENT OF EXPENSES AND TAXES...................................120
14.6. SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND
ASSIGNMENTS.....................................................120
14.7. REPLACEMENTS OF LENDERS UNDER CERTAIN CIRCUMSTANCES.............124
14.8. ADJUSTMENTS; SET-OFF............................................125
14.9. COUNTERPARTS....................................................125
14.10. SEVERABILITY....................................................125
14.11. INTEGRATION.....................................................125
14.12. GOVERNING LAW...................................................126
14.13. SUBMISSION TO JURISDICTION; WAIVERS.............................126
14.14. ACKNOWLEDGMENTS.................................................126
14.15. WAIVERS OF JURY TRIAL...........................................127
14.16. CONFIDENTIALITY.................................................127
14.17. CITIGROUP DIRECT WEBSITE COMMUNICATIONS.........................127
14.18. USA PATRIOT ACT.................................................128
14.19. WAIVER OF PRIOR DEFAULTS........................................128
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SCHEDULES
Schedule 1.1 (a) Existing Letters of Credit
Schedule 1.1 (b) Mortgaged Properties
Schedule 1.1 (c) Commitments and Addresses of Lenders
Schedule 1.1 (d) Historical Adjustments
Schedule 1.1(e) Acquisition-Related Restructurings
Schedule 8.12 Subsidiaries
Schedule 8.18 FCC Licenses
Schedule 8.19 Satellites
Schedule 9.9 Affiliate Transactions
Schedule 10.1 Indebtedness
Schedule 10.2 Liens
Schedule 10.5 Investments
EXHIBITS(1)
Exhibit A Form of Compliance Certificate
Exhibit C Form of Guarantee
Exhibit D Form of Mortgage (Real Property)
Exhibit E Form of Perfection Certificate
Exhibit F Form of Lender Pledge Agreement
Exhibit F-1 Form of Shared Pledge Agreement
Exhibit G Form of Lender Security Agreement
Exhibit G-1 Form of Shared Security Agreement
Exhibit H Form of Letter of Credit Request
Exhibit J [Intentionally Omitted]
Exhibit K Form of Assignment and Acceptance
Exhibit L-1 Form of Promissory Note (Tranche A-3 Term Loans)
Exhibit L-2 Form of Promissory Note (Tranche B-2 Term Loans and
Incremental Tranche B Terms)
Exhibit L-3 Form of Promissory Note (Revolving Credit Loans and Swingline
Loans)
Exhibit M Form of Joinder Agreement
Exhibit N Form of Intercreditor and Collateral Trust Agreement
Exhibit O Form of Satellite Health Report
__________________
(1) Exhibits (other than Exhibits X, X, X, X-0, X-0, X-0, X and O) are not
being amended and restated.
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CREDIT AGREEMENT, dated as of August 20, 2004, as amended and
restated as of March 22, 2005 and as further amended and restated as of July 3,
2006 (as amended, restated, supplemented or otherwise modified from time to
time, this "AGREEMENT"), among PANAMSAT CORPORATION (to be renamed INTELSAT
CORPORATION on the Amendment Effective Date) (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, and XXXXXX BROTHERS INC., as Joint Lead
Arranger and Joint Bookrunner.
WHEREAS, the Borrower, the Lenders party thereto from time to time,
Citicorp USA, Inc., as administrative agent, Citigroup Global Markets Inc., as
joint lead arranger and joint bookrunner, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, as joint lead arranger, joint bookrunner and syndication agent,
and Xxxxxx Xxxxxxx Senior Funding, Inc., as joint lead arranger, joint
bookrunner and documentation agent, entered into the first amendment and
restatement of this Agreement on March 22, 2005 (the "FIRST AMENDED AND RESTATED
CREDIT AGREEMENT") and the parties hereto desire to further amend and restate
this Agreement on and subject to the terms and conditions set forth herein and
in the Amendment Agreement dated as of the date hereof (the "AMENDMENT
AGREEMENT") among the Agents, the Borrower, the Guarantors and Lenders party
thereto;
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, (a) (i) Intelsat Bermuda
has formed a wholly owned subsidiary ("MERGER SUB"), (ii) Merger Sub will merge
with and into PanAmSat Holdco, with PanAmSat Holdco as the surviving
corporation, and (b) the Borrower will issue senior notes (the "SENIOR 2006
NOTES") in a Rule 144A or other private placement (the "SENIOR 2006 NOTES
OFFERING") generating aggregate gross proceeds of up to $575,000,000;
WHEREAS, in connection with the foregoing, the Borrower has requested
the Lenders to (a) renew and extend Term Loans, in an aggregate principal amount
of $1,991,010,000, which amount is outstanding under the First Amended and
Restated Credit Agreement 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
$250,000,000 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 $150,000,000. 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;
WHEREAS, the proceeds of the Term Loans will be used to renew loans
outstanding under the First Amended and Restated Credit Agreement. Proceeds of
Revolving Credit Loans and Swingline Loans will be used by the Borrower for
general corporate purposes (including Permitted Acquisitions). Letters of Credit
have been and will be used by the Borrower for general corporate purposes; and
WHEREAS, the parties hereto intend that (a) the loans under the First
Amended and Restated Credit Agreement outstanding as of the Amendment Effective
Date shall continue to exist and shall be Loans under and as defined in this
Agreement on the terms set forth herein, (b) any letters of credit outstanding
under the First Amended and Restated Credit Agreement as of the Amendment
Effective Date shall remain outstanding and shall be Letters of Credit under and
as defined in this Agreement and (c) the Continuing Collateral and the Credit
Documents shall continue to secure, guarantee, support and otherwise benefit the
Obligations of the Borrower and the other Credit Parties under this Agreement
and the other Credit Documents.
The parties hereto hereby agree that the First Amended and Restated
Credit Agreement is amended and restated 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."
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"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 RENEWED REVOLVING CREDIT COMMITMENT" shall mean at
any time the Total Renewed Revolving Credit Commitment less the aggregate
Renewed 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, 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 and, solely for the purposes of Sections 14.5(c)
and (d), the Original Agents and the First Amended and Restated Agents.
"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.
"AMENDMENT AGREEMENT" shall have the meaning provided in the recitals
hereto.
"AMENDMENT EFFECTIVE DATE" shall have the meaning ascribed to such
term in the Amendment Agreement.
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"AMORTIZATION AMOUNT" shall have the meaning provided in Section
5.2(c).
"APPLICABLE ABR MARGIN" shall mean, at any date, (a) with respect to
each ABR Loan that is a Tranche B-2 Term Loan, (i) 1.50% PER ANNUM at any time
that clause (a)(ii) does not apply and (ii) 1.25% PER ANNUM if Level V Status is
in effect as of the Test Period last ended and (b) with respect to each ABR Loan
that is a Tranche A-3 Term Loan, Revolving Credit Loan or a Swingline Loan, the
applicable percentage PER ANNUM set forth below based upon the Status in effect
on such date:
Applicable ABR Margin for
Tranche A-3 Term Loans,
STATUS REVOLVING CREDIT AND SWINGLINE LOANS
Level I Status 1.875%
Level II Status 1.625%
Level III Status 1.375%
Level IV Status 1.125%
Notwithstanding the foregoing, the "Applicable ABR Margin" shall
mean, with respect to each ABR Loan, the percentage relating to the Status on
the Amendment Effective 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 New Transactions,
during the period from and including the Amendment Effective Date to but
excluding the first date following the Amendment Effective Date that financial
statements are required to be delivered under Section 9.1 for the first full
fiscal quarter completed after the Amendment Effective Date.
"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 amount in clause (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 5.50:1.00, 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 Amendment Effective Date (x) from the
issue or sale (other than to the Borrower or any Subsidiary of the Borrower or
to an employee stock ownership plan or trust established by the Borrower or any
Subsidiary) of equity interests of the Borrower or any parent of the Borrower 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 12.13), including equity
interests issued upon conversion of Indebtedness or upon exercise of warrants or
options and/or (y) from contributions (other than from the Borrower or any
Subsidiary of the Borrower) to the capital of the Borrower
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(other than contributions in the form of Disqualified Preferred Stock, CI
Contributions and other than Permitted Equity Issuances made pursuant to Section
12.13), 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 Amendment Effective 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
Amendment Effective 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 Amendment Effective 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 Amendment Effective 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 Amendment Effective Date
pursuant to Section 10.5(i), (ii) the aggregate amount of dividends made since
the Amendment Effective Date pursuant to Section 10.6(c) and (iii) the aggregate
amount of prepayments, repurchases and redemptions made since the Amendment
Effective Date pursuant to Section 10.7(a).
"APPLICABLE LIBOR MARGIN" shall mean, at any date, (a) with respect
to each LIBOR Loan that is a Tranche B-2 Term Loan, (i) 2.50% PER ANNUM at any
time that clause (a)(ii) does not apply and (ii) 2.25% PER ANNUM if Level V
Status is in effect as of the Test Period last ended and (b) with respect to
each LIBOR Loan that is a Tranche A-3 Term Loan, Revolving Credit Loan or a
Swingline Loan, the applicable percentage PER ANNUM set forth below based upon
the Status in effect on such date:
Applicable ABR Margin for
Tranche A-3 Term Loans,
STATUS REVOLVING CREDIT AND SWINGLINE LOANS
Level I Status 2.875%
Level II Status 2.625%
Level III Status 2.375%
Level IV Status 2.125%
Notwithstanding the foregoing, the "Applicable LIBOR Margin" shall
mean, with respect to each LIBOR Loan, the percentage relating to the Status on
the Amendment Effective Date set forth in the Closing Compliance Certificate,
and determined on a pro forma basis after
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giving effect to the New Transactions, during the period from and including the
Amendment Effective Date to but excluding the first date following the Amendment
Effective Date that financial statements are required to be delivered under
Section 9.1 for the first full fiscal quarter completed after the Amendment
Effective 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 to the Original Credit Agreement.
"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.
"AVAILABLE COMMITMENT" shall mean an amount equal to the excess, if
any, of (a) the amount of the Total Renewed 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 12.5.
"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.
"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 Amendment Effective Date (or resulting from conversions on a
given date after the Amendment Effective 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
-6-
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 described in clause (i) above and which is also a day for trading
by and between banks in U.S. dollar deposits in the New York or London interbank
Eurodollar market.
"CAPITAL 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 Amendment Effective 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
Amendment Effective Date or (c) compliance by the Lender with any guideline,
request or directive issued or made after the Amendment Effective 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 the Borrower; (b) at any time after a Qualified IPO, the
Borrower 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 the Borrower or any of its direct or indirect
parent entities; and /or (c) a Change of Control (as defined in the Senior 2004
Notes Indenture or the Senior 2006 Notes Indenture) shall have occurred (other
than any Change of Control that occurs solely as a result of the Acquisition).
-7-
"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 A-3 Term Loans, Tranche B-2 Term
Loans, Incremental Tranche B-2 Term Loans (of each Series) or Swingline Loans
and, when used in reference to any Commitment, refers to whether such Commitment
is a Renewed Revolving Credit Commitment, Incremental Revolving Credit
Commitment, Tranche A-3 Term Loan Commitment, Tranche B-2 Term Loan Commitment
or Incremental Tranche B-2 Term Loan Commitment.
"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 Original
Closing Date, and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"COLLATERAL" shall have the meaning provided in the Lender Pledge
Agreement, the Shared Pledge Agreement, the Lender Security Agreement, the
Shared Security Agreement, the Intercreditor and Collateral Trust Agreement or
any Mortgage, as applicable.
"COLLATERAL TRUSTEE" shall have the meaning provided in the Shared
Pledge Agreement and the Shared Security Agreement, as applicable.
"COMMITMENT FEE RATE" shall mean, with respect to the Available
Commitment on any day, the rate PER ANNUM set forth below opposite the Status in
effect on such day:
STATUS COMMITMENT FEE RATE
Level I Status 0.50%
Level II Status 0.50%
Level III Status 0.375%
Level IV Status 0.25%
Notwithstanding the foregoing, the "Commitment Fee Rate" shall mean
the rate relating to the Status on the Amendment Effective Date set forth in the
Closing Compliance Certificate and determined on a pro forma basis after giving
effect to the New Transactions, during the period from and including the
Amendment Effective Date to but excluding the first date following the Amendment
Effective Date that financial statements are required to be delivered under
Section 9.1 for the first full fiscal quarter completed after the Amendment
Effective Date.
"COMMITMENTS" shall mean, with respect to each Lender, such Lender's
Term Loan Commitment, Renewed Revolving Credit Commitment, Incremental Revolving
Credit Commitment or Incremental Tranche B-2 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.
-8-
"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,
(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) New 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),
-9-
(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) the Historical Adjustments,
(xv) foreign withholding taxes paid or accrued in such period,
(xvi) any amounts receivable for such period in connection with
contracts that are attributable to Globo Comunicacos e
Participacoes, Ltda involvement in arrangements with Sky
Multi-Country Partners (the "GLOBO RECEIVABLES"),
(xvii) non-cash charges related to stock compensation expenses,
(xviii) loss from the early extinguishment of Indebtedness or hedging
obligations or other derivative instruments,
(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 12.13; 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,
-10-
(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 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
-11-
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),
(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
-12-
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 otherwise 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 Bor-
-13-
rower 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 (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.
"CONTINUING COLLATERAL" shall have the meaning ascribed to such term
in the Amendment Agreement.
"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 Amendment Effective Date (other than any cash contributions
in connection with the New Transactions, that constitute Permitted Equity
Issuances used pursuant to Section 12.13 or that are included in the calculation
of the Applicable 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 (including the Original
Credit Agreement, the First Amended and Restated Credit Agreement and the
Original Amendment Agreement), the Amendment Agreement, the Security Documents,
the Intercreditor and Collat-
-14-
eral Trust Agreement, 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, the 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.
"DOMESTIC RESTRICTED SUBSIDIARY" shall mean each Restricted
Subsidiary of the Borrower that is a Domestic Subsidiary.
"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).
"ENVIRONMENTAL CLAIMS" shall mean any and all actions, suits, orders,
decrees, demands, demand letters, claims, liens, notices of noncompliance,
violation or potential respon-
-15-
sibility or investigation (other than internal reports prepared by 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 Amendment Effective Date and any subsequent provisions of ERISA
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA AFFILIATE" shall mean each person (as defined in Section 3(9)
of ERISA) that together with the Borrower or a Subsidiary would be deemed to be
a "single employer" within the meaning of Section 414(b) or (c) of the Code or,
solely for purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.
"EVENT OF DEFAULT" shall have the meaning provided in Section 12.
"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.
-16-
"EXCLUDED SATELLITES" shall mean (a) the Satellites of the Borrower
and its Restricted Subsidiaries commonly referred to as "PAS-4," "PAS-5,"
"PAS-7," "PAS-1R," "PAS-6B," "SBS-6," "Galaxy IIIR," "Galaxy IVR," "Galaxy 10R"
and "Galaxy 11 and (b) any other 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, with respect to the Administrative Agent
or any Lender, (a) (i) net income taxes and franchise taxes (imposed in lieu of
net income taxes) and capital taxes imposed on the Administrative Agent or any
Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a
result of any current of former connection between the Administrative Agent or
such Lender and the jurisdiction of the Governmental Authority imposing such tax
or any political subdivision or taxing authority thereof or therein (other than
any such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or having been a party to or having enforced this Agreement) and (b) in
the case of a Non-U.S. Lender, (i) any U.S. federal withholding tax that is
imposed on amounts payable to such Non-U.S. Lender under the law in effect at
the time such Non-U.S. Lender becomes a party to this Agreement (or, in the case
of a Non-U.S. Participant, on the date such Non-U.S. 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 (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
Non-U.S. Lender as a result of a Change in Law occurring after the time such
Non-U.S. 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 Non-U.S. Lender's failure to comply with Section 5.4(d).
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"EXISTING LETTERS OF CREDIT" shall mean all Letters of Credit
outstanding under the First Amended and Restated Credit Agreement on the
Amendment Effective Date.
"EXISTING PARENT INDEBTEDNESS" shall mean (i) $400,000,000 of 5.25%
Senior Notes due 2008, $600,000,000 of 7.625% Senior Notes due 2012 and
$700,000,000 of 6.50% Senior Notes due 2013, in each case of Intelsat, Ltd.,
(ii) the 10.375% Senior Discount Notes due 2014 of PanAmSat Holdco outstanding
on the Amendment Effective Date (after giving effect to the contemporaneous
tender therefor), (iii) the Intelsat Bermuda Intercompany Loans, (iv) the New
Intelsat Bermuda Notes, (v) the Intelsat Bermuda Bridge Loan, (vi) any
Indebtedness which may redeem the Senior 2004 Notes to the extent that the
holders thereof require such redemption within 90 days after the Amendment
Effective Date pursuant to Section 1017 of the Senior 2004 Notes Indenture;
PROVIDED that interest in respect of the Indebtedness referred to in the
foregoing subsections (i) through (vi) 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 Amendment Effective Date (or
such later date as such Existing Parent Indebtedness is initially issued or
incurred), and (vii) 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 (other than with respect to the Intelsat
Bermuda Intercompany Loan) 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 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.
"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.
-18-
"FINAL DATE" shall mean the date on which the Renewed 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.
"FIRST AMENDED AND RESTATED AGENTS" shall mean Citicorp USA, INC., as
Administrative Agent, Citigroup Global Markets Inc., as Joint Lead Arranger and
Joint Bookrunner, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as Joint
Lead Arranger, Joint Bookrunner and Syndication Agent, and Xxxxxx Xxxxxxx Senior
Funding, Inc., as Joint Lead Arranger, Joint Bookrunner and Documentation Agent,
each acting in such capacity in connect with the First Amended and Restated
Credit Agreement.
"FIRST AMENDED AND RESTATED CREDIT AGREEMENT" shall have the meaning
provided in the recitals hereto.
"FOREIGN ASSET SALE" shall have the meaning provided in Section
5.2(g).
"FOREIGN CURRENCIES" shall mean Euro and Sterling.
"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 DISPOSITION" shall mean the sale by the Borrower of (or the
merger of) G2 Satellite Solutions Corporation, a wholly-owned subsidiary of the
Borrower, to (or into) a wholly-owned subsidiary of Intelsat Bermuda other than
the Borrower 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 the Borrower.
"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 Amendment Effective 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 Amendment Effective 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.
"GLOBAL SERVICE EMPLOYEE TRANSFER" shall mean the transfer of certain
employees of Intelsat Global Service Corporation, and the liabilities
corresponding thereto, to the Borrower.
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"GLOBO RECEIVABLES" shall have the meaning given such term in the
definition of Consolidated EBITDA.
"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 the Guarantee, made by each Guarantor in favor
of the Administrative Agent for the benefit of the Secured Parties,
substantially in the form of EXHIBIT C to the Original Credit Agreement.
"GUARANTEE AND COLLATERAL EXCEPTION AMOUNT" shall mean, at any time:
(a) $250,000,000 MINUS (b) the sum of (i) the aggregate amount of Indebtedness
incurred or assumed prior to such time and after the Amendment Effective 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 Amendment Effective 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.
"GUARANTORS" shall mean the Subsidiary Guarantors.
"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
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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 ADJUSTMENTS" shall mean, with respect to the Borrower and
its Restricted Subsidiaries, without duplication, the items set forth on
SCHEDULE 1.1(D) to the extent incurred prior to the Original Closing Date.
"HISTORICAL FINANCIAL STATEMENTS" shall mean, as of the Amendment
Effective 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.
"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.
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"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.
"INCREMENTAL REVOLVING LOANS" shall have the meaning provided in
Section 2.14.
"INCREMENTAL TRANCHE B-2 TERM LOAN COMMITMENTS" shall have the
meaning provided in Section 2.14.
"INCREMENTAL TRANCHE B-2 TERM LOAN LENDER" shall have the meaning
provided in Section 2.14.
"INCREMENTAL TRANCHE B-2 TERM LOAN MATURITY DATE" shall mean the date
on which an Incremental Tranche B-2 Term Loan matures.
"INCREMENTAL TRANCHE B-2 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
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(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 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.
"INDIA TAX OBLIGATIONS" shall mean tax claims of the government of
India related to withholding taxes assessed on revenues beginning with the India
tax year ended March 31, 1996 in an aggregate amount not to exceed $125,000,000.
"INTELSAT" shall mean Intelsat Holdings Limited.
"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 Amendment
Effective Date in conjunction with the Acquisition.
"INTELSAT BERMUDA INTERCOMPANY LOANS" shall mean one or more loans by
Intelsat Bermuda to PanAmSat Holdco and/or its Subsidiaries to fund the payment
of a portion of the purchase price of the Acquisition and/or to fund the
purchase price of the 10.375% Senior Discount Notes due 2014 of PanAmSat Holdco.
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"INTERCOMPANY SERVICES AGREEMENT" shall mean the Master Services
Agreement, of even date herewith, among Intelsat Bermuda, Borrower and various
of their Affiliates as in effect on the Amendment Effective Date.
"INTERCREDITOR AND COLLATERAL TRUST AGREEMENT" shall mean the
intercreditor and collateral trust agreement substantially in the form of
EXHIBIT N to the Original Credit Agreement.
"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 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 to the Original Credit Agreement.
"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.
"L/C MATURITY DATE" shall mean the date that is five 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.
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"LENDER DEFAULT" shall mean (a) the failure (which has not been
cured) of a Lender to make available its portion of any Borrowing or to fund its
portion of any unreimbursed payment under Section 3.3 or (b) a Lender having
notified the Administrative Agent and/or the Borrower that it does not intend to
comply with the obligations under Section 2.1(a), 2.1(b), 2.1(d) or 3.3.
"LENDER PLEDGE AGREEMENT" shall mean the Lender Pledge Agreement,
entered into by the Borrower, the other pledgors party thereto and the
Administrative Agent for the benefit of the Lenders, substantially in the form
of EXHIBIT F to the Original Credit Agreement.
"LENDER SECURITY AGREEMENT" shall mean the Lender Security Agreement
entered into by the Borrower, the other grantors party thereto and the
Administrative Agent for the benefit of the Lenders, substantially in the form
of EXHIBIT G to the Original Credit Agreement.
"LETTER OF CREDIT" shall have the meaning provided in Section 3.1(a).
"LETTER OF CREDIT COMMITMENT" shall mean $150,000,000, 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).
"LETTER OF CREDIT ISSUER" shall mean Credit Suisse, 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.
"LETTER OF CREDIT REQUEST" shall have the meaning provided in Section
3.2(a).
"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.
"LEVEL I STATUS" shall mean, on any date, the Consolidated Total Debt
to Consolidated EBITDA Ratio is greater than or equal to 6.00 to 1.00 as of such
date.
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"LEVEL II STATUS" shall mean, on any date, the circumstance that
Level I Status does not exist and the Consolidated Total Debt to Consolidated
EBITDA Ratio is greater than or equal to 5.50 to 1.00 as of such date.
"LEVEL III STATUS" shall mean, on any date, the circumstance that
neither Level I Status nor Level II Status exists and the Consolidated Total
Debt to Consolidated EBITDA Ratio (x) with respect to the Applicable ABR Margin
and Applicable LIBOR Margin, is greater than or equal to 5.00 to 1.00 as of such
date and (y) with respect to the Commitment Fee Rate, is greater than or equal
to 4.50 to 1.00 as of such date.
"LEVEL IV STATUS" shall mean, on any date, the circumstance that the
Consolidated Total Debt to Consolidated EBITDA Ratio is less than (x) with
respect to the Applicable ABR Margin and Applicable LIBOR Margin, 5.00 to 1.00
as of such date and (y) with respect to the Commitment Fee Rate, 4.50 to 1.00 as
of such date.
"LEVEL V STATUS" shall mean, on any date, the circumstance that the
Consolidated Total Debt to Consolidated EBITDA Ratio is less than 4.50 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.
"LIBOR TERM LOAN" shall mean any Term Loan bearing interest at a rate
determined by reference to the LIBOR Rate.
-26-
"LICENSE SUBSIDIARY" shall mean PanAmSat Licensee Corp., a Delaware
corporation, 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-2 Term Loan made by
any Lender hereunder.
"MANAGEMENT INVESTORS" shall mean directors and/or members of senior
management of Intelsat and any Subsidiaries of Intelsat, 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 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
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 New 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 First Amended and Restated
Credit Agreement immediately prior to the Amendment Effective Date, (3) each
Domestic 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 Section 9.1 Financials have been delivered were equal to or
greater than 5% of the consolidated total assets of the Borrower and the
Domestic Restricted Subsidiaries at such date or (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 Domestic Restricted Subsidiaries for such
period, in each case determined in accordance with GAAP and (4) any Subsidiary
that guarantees the Senior Notes.
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"MATURITY DATE" shall mean the Tranche A-3 Term Loan Maturity Date,
the Tranche B-2 Term Loan Maturity Date or the Revolving Credit Maturity Date.
"MEASUREMENT PERIOD" shall mean the period from July 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 Collateral Trustee for the
benefit of the Secured Parties in respect of that Mortgaged Property,
substantially in the form of EXHIBIT D to the Original Credit Agreement.
"MORTGAGED PROPERTY" shall mean, initially, each parcel of real
estate and the improvements thereto owned by a Credit Party and identified on
SCHEDULE 1.1(b) to the Original Credit Agreement, and includes each other 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 Authorized 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,
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(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
Amendment Effective Date.
"NEW INTELSAT BERMUDA NOTES" shall mean the senior notes of Intelsat
Bermuda issued in conjunction with the Acquisition.
"NEW TRANSACTION EXPENSES" shall mean any fees or expenses incurred
or paid by the Borrower or any of its Subsidiaries in connection with the
Acquisition, the Post-Closing Transactions, the Senior 2006 Notes Offering, this
Agreement and the other Credit Documents and the transactions contemplated
hereby and thereby.
"NEW TRANSACTIONS" shall mean, collectively, the transactions
contemplated by this Agreement, the Senior 2006 Notes Offering, the Post-Closing
Transactions, the Acquisition
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and the transactions related thereto, including the tender for the 10 3/8%
Discount Notes of PanAmSat Holdco and the change of control offer in connection
with the Senior 2004 Notes.
"NON-CONSENTING LENDER" shall have the meaning provided in Section
14.7(b).
"NON-DEFAULTING LENDER" shall mean and include each Lender other than
a Defaulting Lender.
"NON-U.S. LENDER" shall mean any Lender that is not, for United
States federal income tax purposes, (a) a citizen or resident of the United
States, (b) a corporation or partnership or entity treated as a corporation or
partnership created or organized in or under the laws of the United States, or
any political subdivision thereof, (c) an estate whose income is subject to U.S.
federal income taxation regardless of its source or (d) a trust if a court
within the United States is able to exercise primary supervision over the
administration of such trust and one or more United States persons have the
authority to control all substantial decisions of such trust or a trust that has
a valid election in effect under applicable U.S. Treasury regulations to be
treated as a United States person.
"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 have the meaning assigned to such term in the
Security Documents.
"ORIGINAL AGENTS" shall mean Citicorp USA, Inc., as administrative
agent, Citigroup Global Markets Inc., as joint lead arranger and joint
bookrunner, Credit Suisse, acting through its Cayman Islands Branch, as joint
lead arranger, joint bookrunner and syndication agent, and Bear, Xxxxxxx &
Co. Inc., Xxxxxx Brothers Inc. and Bank of America, N.A., as co-documentation
agents, each acting in such capacity in connection with the Original Credit
Agreement.
"ORIGINAL AMENDMENT AGREEMENT" shall mean the Amendment Agreement
dated as of March 22, 2005 among the Borrower and the First Amended and Restated
Agents.
"ORIGINAL CLOSING DATE" shall mean August 20, 2004.
"ORIGINAL CREDIT AGREEMENT" shall mean the credit agreement
originally entered into among the Borrower, the Lenders party thereto from time
to time (the "ORIGINAL LENDERS") and the Original Agents, dated as of August 20,
2004.
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"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 HOLDCO" shall have the meaning provided in the recitals
hereto.
"PARTICIPANT" shall have the meaning provided in Section 14.6(c)(i).
"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 to the Original Credit Agreement 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 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 Renewed 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 Senior 2006 Notes occurs (as in
effect on the Amendment Effective 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 2004 Notes or, to the extent that there are no Senior 2004
out-
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standing, the Senior 2006 Notes 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 the Borrower (other than Disqualified Preferred Stock) 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;
(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);
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(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 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 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
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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
(k) 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 been due on or after the date that
is 91 days following the Tranche B-2 Term Loan Maturity Date were instead due on
such date 91 days following the Tranche B-2 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 Amendment
Effective Date, PROVIDED
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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 Lender Pledge Agreement and the
Shared Pledge Agreement.
"POST-CLOSING TRANSACTIONS" shall mean the G2 Disposition and the
Global Service Employee Transfer.
"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 New 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).
"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
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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).
"QUALIFIED IPO" shall mean an underwritten public offering of the
Voting Stock of Intelsat Bermuda or any other direct or indirect parent of the
Borrower (i) after giving effect to which, at least 17.5% of the outstanding
Voting Stock of Intelsat Bermuda or such parent is publicly traded or (ii)
resulting in gross proceeds in respect of the Voting Stock of Intelsat Bermuda
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-2 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-2 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-2 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, termi-
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nation 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 Person
(in the case of a transfer by a Receivables Subsidiary), or may grant a security
interest in, any accounts receivable (whether now existing or arising in the
future) of the Borrower or any of its Subsidiaries, and any assets related
thereto including, without limitation, all collateral securing such accounts
receivable, all contracts and all guarantees or other obligations in respect of
such accounts receivable, proceeds of such accounts receivable and other assets
which are customarily 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 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:
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(a) no portion of the Indebtedness or any other obligations
(contingent or otherwise) of which (i) is guaranteed by the Borrower or
any other Subsidiary of the Borrower (excluding guarantees of obligations
(other than the principal of, and interest on, Indebtedness) pursuant to
Standard Securitization Undertakings), (ii) is recourse to or obligates
the Borrower or any other Subsidiary of the Borrower in any way other than
pursuant to Standard Securitization Undertakings or (iii) subjects any
property or asset of the Borrower or any other Subsidiary of the Borrower,
directly or indirectly, contingently or otherwise, to the satisfaction
thereof, other than pursuant to Standard Securitization Undertakings,
(b) with which neither the Borrower nor any other Subsidiary of the
Borrower has any material contract, agreement, arrangement or
understanding other than on terms which the Borrower reasonably believes
to be no less favorable to the Borrower or such Subsidiary than those that
might be obtained at the time from Persons that are not Affiliates of the
Borrower, and
(c) to which neither the Borrower nor any other Subsidiary of the
Borrower has any obligation to maintain or preserve such entity's
financial condition or cause such entity to achieve certain levels of
operating results.
Any such designation by the board of directors of the Borrower shall
be evidenced to the Administrative Agent by providing the Administrative Agent
with a certified copy of the resolution of the board of directors of the
Borrower giving effect to such designation and certificate of an Authorized
Officer certifying that such designation complied with the foregoing conditions.
"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.
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"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.
"RENEWED REVOLVING CREDIT COMMITMENT" shall mean, (a) in the case of
each Lender that is a Lender immediately prior to the Amendment Effective Date,
the amount set forth opposite such Lender's name on Schedule 1 to the Amendment
Agreement as such Lender's "Renewed 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 Amendment Effective Date, the amount specified
as such Lender's "Renewed Revolving Credit Commitment" either on Schedule 1 to
the Amendment Agreement or in the Assignment and Acceptance pursuant to which
such Lender assumed a portion of the Total Renewed 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 Renewed Revolving
Credit Commitment as of the Amendment Effective Date is $250,000,000.
"RENEWED REVOLVING CREDIT COMMITMENT PERCENTAGE" shall mean, at any
time, for each Lender, the percentage obtained by dividing (a) such Lender's
Renewed Revolving Credit Commitment by (b) the aggregate amount of the Renewed
Revolving Credit Commitments, PROVIDED that at any time when the Total Renewed
Revolving Credit Commitment shall have been terminated, each Lender's Renewed
Revolving Credit Commitment Percentage shall be its Renewed Revolving Credit
Commitment Percentage as in effect immediately prior to such termination.
"REPAYMENT AMOUNT" shall mean the Tranche A-3 Repayment Amount and
the Tranche B-2 Repayment Amount, as applicable.
"REPAYMENT DATE" shall mean a Tranche A-3 Repayment Date or a Tranche
B-2 Repayment Date, as applicable.
"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
Renewed 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 Renewed Revolving Credit Commitment
and the 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 A-3 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 A-3
Term Loan Commitments at such date
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and (b) the outstanding principal amount of the Tranche A-3 Term Loans
(excluding Tranche A-3 Term Loans held by Defaulting Lenders) in the aggregate
at such date.
"REQUIRED TRANCHE B-2 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-2
Term Loan Commitments at such date and (b) the outstanding principal amount of
the Tranche B-2 Term Loans (excluding Tranche B-2 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
Renewed Revolving Credit Commitment at such date or (b) if the Total Renewed
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 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 Renewed 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 Amendment Effective 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
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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.
"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.
"SECURITY AGREEMENTS" shall mean the Lender Security Agreement and
the Shared Security Agreement.
"SECURITY DOCUMENTS" shall mean, collectively, (a) the Guarantee, (b)
the Pledge Agreements, (c) the Security Agreements, (d) the Mortgages, (e) the
Intercreditor and Collateral Trust Agreement and (f) 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 1998 NOTES" shall mean each of the Borrower's 6?% Notes due
2008 in an aggregate outstanding principal amount of $150,000,000 as of the
Original Closing Date, and
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6 7/8% Debentures due 2028 in an aggregate outstanding principal amount of
$125,000,000 as of the Original Closing Date.
"SENIOR 1998 NOTES INDENTURE" shall mean that certain indenture dated
as of January 16, 1998 made by and among the Borrower, as issuer, and JPMorgan
Chase Bank (formerly known as The Chase Manhattan Bank), as trustee, pursuant to
which the Senior 1998 Notes are issued.
"SENIOR NOTE INDENTURES" shall mean the Senior 2004 Notes Indenture
and the Senior 2006 Notes Indenture.
"SENIOR NOTES" shall mean the Senior 2004 Notes or the Senior 2006
Notes.
"SENIOR 2004 NOTES" shall mean the Borrower's 9% Senior Notes Due
2014.
"SENIOR 2004 NOTES INDENTURE" shall mean the Indenture dated as of
the Original Closing Date among the Borrower, the guarantors party thereto and
The Bank of New York, as trustee, pursuant to which the Senior 2004 Notes are
issued.
"SENIOR 2006 NOTES" shall mean the Senior 2006 Notes defined in the
Recitals hereof.
"SENIOR 2006 NOTES INDENTURE" shall mean the Indenture dated as of
the Amendment Effective Date among the Borrower, the guarantors party thereto
and The Bank of New York, as trustee, pursuant to which the Senior 2006 Notes
are issued.
"SENIOR 2006 NOTES OFFERING" shall have the meaning provided in the
recitals to this Agreement.
"SERIES" shall have the meaning as provided in Section 2.14.
"SHARED PLEDGE AGREEMENT" shall mean the Shared Pledge Agreement
entered into by the Borrower, the other pledgors party thereto and the
Collateral Trustee for the benefit of the Lenders, substantially in the form of
EXHIBIT F-1 to the Original Credit Agreement.
"SHARED SECURITY AGREEMENT" shall mean the Security Agreement entered
into by the Borrower, the other grantors party thereto and the Collateral
Trustee for the benefit of the Lenders, substantially in the form of EXHIBIT G-1
to the Original Credit Agreement.
"SOLD ENTITY OR BUSINESS" shall have the meaning provided in the
definition of the term "Consolidated EBITDA."
"SOLVENT" shall mean, with respect to the Borrower, that as of any
date of determination, both (i) (a) the sum of the Borrower's debt (including
contingent liabilities) does not exceed the present fair saleable value of the
Borrower's present assets; (b) the Borrower's capital is not unreasonably small
in relation to its business as contemplated on the Original Closing Date; and
(c) the Borrower has not incurred and does not intend to incur, or believe that
it will incur, debts including current obligations beyond its ability to pay
such debts as they become due
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(whether at maturity or otherwise); and (ii) such Person 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).
"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
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, Inc.,
(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" of any Letter of Credit shall mean 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, Level II Status, Level III Status, Level IV Status or Level V
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
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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.
"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 with C-band or Ku-band transponders and the operation of
TT&C Stations used to control such Satellites and, from and after the launch of
any Satellites other than those that have C-band or Ku-band transponders, the
FCC Licenses for the launch and operation of such Satellites and for the
operation of TT&C Stations used to control such Satellites.
"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.
"SUBSIDIARY GUARANTORS" shall mean (a) each Domestic Subsidiary
(other than an Unrestricted Subsidiary) under the First Amended and Restated
Credit Agreement as of the Amendment Effective Date and (b) each Domestic
Subsidiary that becomes a party to the Guarantee after the Amendment Effective
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).
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"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 A-3 Term Loan Commitment and Tranche B-2 Term Loan Commitment.
"TERM LOANS" shall mean the Tranche A-3 Term Loans and the Tranche
B-2 Term Loans, collectively.
"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 Renewed Revolving Credit Commitment.
"TOTAL CREDIT EXPOSURE" shall mean, at any date, the sum of (a) the
Total Renewed Revolving Credit Commitment at such date, (b) the Total Term Loan
Commitment at such date and (c) the outstanding principal amount of all Term
Loans at such date.
"TOTAL RENEWED REVOLVING CREDIT COMMITMENT" shall mean the sum of the
Renewed Revolving Credit Commitments of all the Lenders.
"TOTAL TERM LOAN COMMITMENT" shall mean the sum of the Tranche A-3
Term Loan Commitments, the Tranche B-2 Commitments and Incremental Tranche B-2
Term Loan Commitments, if applicable, of all the Lenders.
"TRANCHE A-3 REPAYMENT AMOUNT" shall have the meaning provided in
Section 2.5(b).
"TRANCHE A-3 REPAYMENT DATE" shall have the meaning provided in
Section 2.5(b).
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"TRANCHE A-3 TERM LOAN" shall have the meaning provided in Section
2.1.
"TRANCHE A-3 TERM LOAN COMMITMENT" shall mean, (a) in the case of
each Lender that is a Lender immediately prior to the Amendment Effective Date,
the amount of Tranche A-3 Term Loans that such Lender has been deemed to have
exchanged its prior term loans into on the Amendment Effective Date as set forth
in the Amendment Agreement 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 date
hereof, the amount specified as such Lender's "Additional Tranche A-3 Term Loan
Commitment" on Schedule 1 to the Amendment Agreement or as such Lender's
"Tranche A-3 Term Loan Commitment" in the Assignment and Acceptance pursuant to
which such Lender assumed a portion of the Tranche A-3 Term Loan 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 A-3 Term Loan
Commitments as of the Amendment Effective Date is $355,910,000.
"TRANCHE A-3 TERM LOAN LENDER" shall mean a Lender with a Tranche A-3
Term Loan Commitment or an outstanding Tranche A-3 Term Loan.
"TRANCHE A-3 TERM LOAN MATURITY DATE" shall mean the date which is
six years after the Amendment Effective Date or, if such date is not a Business
Day, the first Business Day thereafter.
"TRANCHE B-2 REPAYMENT AMOUNT" shall have the meaning provided in
Section 2.5(c).
"TRANCHE B-2 REPAYMENT DATE" shall have the meaning provided in
Section 2.5(c).
"TRANCHE B-2 TERM LOAN" shall have the meaning provided in Section
2.1.
"TRANCHE B-2 TERM LOAN COMMITMENT" shall mean, (a) in the case of
each Lender that is a Lender immediately prior to the Amendment Effective Date,
the amount of Tranche B-2 Term Loans that such Lender has been deemed to have
exchanged its prior term loans into on the Amendment Effective Date as set forth
in the Amendment Agreement 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 Amendment
Effective Date, the amount specified as such Lender's "Additional Tranche B-2
Term Loan Commitment" on Schedule 1 to the Amendment Agreement or as such
Lender's "Tranche B-2 Term Loan Commitment" in the Assignment and Acceptance
pursuant to which such Lender assumed a portion of the Tranche B-2 Term Loan
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-2 Commitments as of the Amendment Effective Date is $1,635,100,000.
"TRANCHE B-2 TERM LOAN LENDER" shall mean a Lender with a Tranche B-2
Term Loan Commitment or an outstanding Tranche X-0 Xxxx Xxxx.
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"XXXXXXX X-0 TERM LOAN MATURITY DATE" shall mean the date which is
ninety calendar months after the Amendment Effective Date or, if such date is
not a Business Day, the first Business Day thereafter.
"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.
"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 Original 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 Original 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
(other than an Unrestricted Subsidiary that is a Foreign Subsidiary) shall have
entered into a tax sharing agreement containing terms that, in the reason-
-47-
able judgment of the Administrative Agent, provide for an appropriate allocation
of tax liabilities and benefits.
"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(h).
"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) each Lender having a Tranche A-3 Term Loan Commitment severally
agrees to make a loan or loans (each a "TRANCHE A-3 TERM LOAN") on the
Amendment Effective Date to the Borrower in Dollars, which Tranche A-3 Term
Loans shall not exceed for any such Lender the Tranche A-3 Term Loan
Commitment of such Lender and in the aggregate shall not exceed
$355,910,000 (it being understood that Tranche A-1 Term Loan Lenders and
Tranche A-2 Lenders under the First Amended and Restated Credit Agreement
that execute and deliver the Amendment Agreement are converting their
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Xxxxxxx X-0 Term Loans and Tranche A-2 Term Loans under the First Amended
and Restated Credit Agreement into Tranche A-3 Term Loans hereunder); and
(ii) each Lender having a Tranche B-2 Commitment severally agrees to
make a loan or loans (each a "TRANCHE B-2 TERM LOAN") on the Amendment
Effective Date to the Borrower in Dollars, which Tranche B-2 Term Loans
shall not exceed for any such Lender the Tranche B-2 Term Loan Commitment
of such Lender and in the aggregate shall not exceed $1,635,100,000 (it
being understood that Tranche B-1 Term Loan Lenders under the First Amended
and Restated Agreement that execute and deliver the Amendment Agreement are
converting their Tranche B-1 Loans under the First Amended and Restated
Credit Agreement into Tranche B-2 Term Loans hereunder).
Such Term Loans (i) shall be made on the Amendment Effective 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 A-3 Term Loan Commitment or Tranche B-2 Term Loan Commitment, as
applicable, of such Lender and (v) shall not exceed in the aggregate the total
of all Tranche A-3 Term Loan Commitments or Tranche B-2 Term Loan Commitments,
as applicable. On the Tranche A-3 Term Loan Maturity Date, all then unpaid
Tranche A-3 Term Loans shall be repaid in full. On the Tranche B-2 Term Loan
Maturity Date, all then unpaid Tranche B-2 Term Loans shall be repaid in full.
(b) (i) Subject to and upon the terms and conditions herein set
forth, each Lender having a Renewed 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 Amendment Effective 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 Renewed 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 Renewed Revolving Credit
Commitment then in effect (it being understood that Revolving Credit Lenders
under the First Amended and Restated Credit Agreement that execute and deliver
the Amendment Agreement are converting their revolving credit commitments and
revolving credit loans under the First Amended and Restated Credit Agreement
into Renewed Revolving Credit Commitments and Revolving Credit Loans hereunder).
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(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 Amendment Effective 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, 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 Renewed
Revolving Credit Commitment then in effect and (v) may be repaid and reborrowed
in accordance with the provisions hereof. 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 Renewed 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 Renewed
Revolving Credit Commitment PRO RATA based on each Lender's Renewed 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 Renewed 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 com-
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mencement of a proceeding under the Bankruptcy Code in respect of the Borrower),
each Lender with a Renewed 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 Renewed 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)). More than one Borrowing may be
incurred on any date, PROVIDED that at no time shall there be outstanding more
than 20 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 Amendment
Effective 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. 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
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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. 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 of
Borrowing (which shall be a Business Day). 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
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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 Administrative Agent shall
also be entitled to recover from such Lender or the Borrower interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Administrative Agent to the Borrower to the
date such corresponding amount is recovered by the Administrative Agent, at a
rate PER ANNUM equal to (i) if paid by such Lender, the Federal Funds Effective
Rate or (ii) if paid by the Borrower, the then-applicable rate of interest or
fees, calculated in accordance with Section 2.8, for the respective Loans.
(c) Nothing in this Section 2.4 shall be deemed to relieve any Lender
from its obligation to fulfill its commitments hereunder or to prejudice any
rights that the Borrower may have against any Lender as a result of any default
by such Lender hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to fulfill its commitments
hereunder).
2.5. REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) The Borrower shall repay to the Administrative Agent, for the
benefit of the Lenders, (i) on the Tranche A-3 Term Loan Maturity Date, the
then-unpaid Tranche A-3 Term Loans, in Dollars, and (ii) on the Tranche B-2 Term
Loan Maturity Date, the then-unpaid Tranche B-2 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) The Borrower shall repay to the Administrative Agent, in Dollars,
for the benefit of the Lenders of Tranche A-3 Term Loans, on each date set forth
below (each, a "TRANCHE A-3 REPAYMENT DATE"), the principal amount of the
Tranche A-3 Term Loans equal to (x) the outstanding principal amount of Tranche
A-3 Term Loans immediately after closing on the Amendment Effective Date
multiplied by (y) the percentage set forth below opposite such Tranche A-3
Repayment Date (each, a "TRANCHE A-3 REPAYMENT AMOUNT"):
Number of Months Tranche A-3
FROM AMENDMENT EFFECTIVE DATE REPAYMENT AMOUNT
6 2.5%
9 2.5%
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Number of Months Tranche A-3
FROM AMENDMENT EFFECTIVE DATE REPAYMENT AMOUNT
12 2.5%
15 2.5%
18 2.5%
21 2.5%
24 2.5%
27 5.0%
30 5.0%
33 5.0%
36 5.0%
39 5.0%
42 5.0%
45 5.0%
48 5.0%
51 5.0%
54 5.0%
57 5.0%
60 5.0%
63 5.625%
66 5.625%
69 5.625%
Tranche A-3 Term Loan Maturity Date 5.625%
(c) The Borrower shall repay to the Administrative Agent, in Dollars,
for the benefit of the Lenders of Tranche B-2 Term Loans, on each date set forth
below (each a "TRANCHE B-2 REPAYMENT DATE"), the principal amount of the Tranche
B-2 Term Loans equal to (x) the outstanding principal amount of Tranche B-2 Term
Loans immediately after closing on the Amendment Effective Date multiplied by
(y) the percentage set forth below opposite such Tranche B-2 Repayment Date
(each a "TRANCHE B-2 REPAYMENT AMOUNT"):
Number of Months Tranche B-2
FROM AMENDMENT EFFECTIVE 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-2
FROM AMENDMENT EFFECTIVE 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%
84 0.25%
87 0.25%
Tranche B-2 Term Loan Maturity Date 93.00%
; PROVIDED, in the event any Incremental Tranche B-2 Term Loans are made, such
Incremental Tranche B-2 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-2 Term Loans of the
applicable Series of Incremental Tranche B-2 Term Loans times (ii) the ratio
(expressed as a percentage) of (y) the amount of all other Tranche B-2 Term
Loans being repaid on such Repayment Date to (z) the total aggregate principal
amount of all other Tranche B-2 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.
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(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 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
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Loans into a Borrowing of ABR Loans, effective as of the expiration date of such
current Interest Period.
2.7. PRO RATA BORROWINGS. Each Borrowing of (i) Tranche A-3 Term
Loans and (ii) Tranche B-2 Term Loans under this Agreement shall be granted by
the Lenders PRO RATA on the basis of their then-applicable Tranche A-3 Term Loan
and Tranche B-2 Term Loan Commitments, respectively. Each Borrowing of Revolving
Credit Loans under this Agreement shall be granted by the Lenders PRO RATA on
the basis of their then-applicable Renewed Revolving Credit Commitments. Each
Borrowing of Incremental Tranche B-2 Term Loans under this Agreement shall be
granted by the Lenders PRO RATA on the basis of their then-applicable
Incremental Tranche B-2 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.
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(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.
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 deter-
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mined (which determination shall, absent clearly demonstrable error, be final
and conclusive and binding upon all parties hereto):
(i) on any date for determining the LIBOR Rate for any Interest
Period that (x) deposits in the principal amounts of the Loans comprising
such LIBOR Borrowing are not generally available in the relevant market or
(y) by reason of any changes arising on or after the Amendment Effective
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 Amendment Effective 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 Amendment Effective 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
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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.
(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 Amendment Effective 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 Original 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 Amendment Effective 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 Sec-
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tion 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
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-2 Term Loan commitments (the "INCREMENTAL TRANCHE B-2 TERM
LOAN COMMITMENTS") and/or (y) Incremental Revolving Credit Commitments (the
"INCREMENTAL REVOLVING CREDIT COMMITMENT" and, together with the Incremental
Tranche B-2 Term Loan Commitments, the "INCREMENTAL LOAN COMMITMENTS"), by an
aggregate amount not in excess of $600,000,000 in the aggregate and not less
than $75,000,000 individually (or such lesser amount which shall be approved by
the Administrative Agent or such lesser amount that shall constitute the
difference between $600,000,000 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 In-
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cremental 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 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-2 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 Renewed 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-2 Term
Loans made on an Increased Amount Date shall be designated, a separate series (a
"SERIES") of Incremental Tranche B-2 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 Renewed 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 Renewed
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 Renewed Revolving Credit
Commitments after giving effect to the addition of such Incremental Revolving
Credit Commitments to the Renewed Revolving Credit Commitments, (b) each
Incremental Revolving Credit Commitment shall be deemed for all purposes a
Renewed 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-2
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-2 Term Loan Commitment (each,
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an "INCREMENTAL TRANCHE B-2 LOAN LENDER") of any Series shall make a Loan to the
Borrower (an "INCREMENTAL TRANCHE B-2 TERM LOAN") in an amount equal to its
Incremental Tranche B-2 Term Loan Commitment of such Series, and (ii) each
Incremental Tranche B-2 Term Loan Lender of any Series shall become a Lender
hereunder with respect to the Incremental Tranche B-2 Term Loan Commitment of
such Series and the Incremental Tranche B-2 Term Loans of such Series made
pursuant thereto.
The terms and provisions of the Incremental Tranche B-2 Term Loans
and Incremental Tranche B-2 Term Loan Commitments of any Series shall be, except
as otherwise set forth herein or in the Joinder Agreement, identical to the
Tranche B-2 Term Loans; PROVIDED, HOWEVER, that (i) the applicable Incremental
Tranche B-2 Term Loan Maturity Date of each Series shall be no shorter than the
final maturity of the Revolving Credit Loans and the Tranche B-2 Term Loans and
(ii) the rate of interest applicable to the Incremental Tranche B-2 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
Renewed 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 Amendment Effective 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 or (ii) 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 Renewed 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; (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
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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 (vii) 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. 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 Renewed 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 the Existing Letters of Credit
shall be deemed Letters of Credit for all purposes under this Agreement, without
any further action by the Borrower.
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 to the Original Credit Agreement (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 Renewed 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 Renewed
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 pertaining 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).
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(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 Renewed Revolving Credit Commitment Percentage of such
unreimbursed payment in Dollars 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 Renewed
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 Renewed 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 Renewed 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 Renewed 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
Renewed 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 Renewed 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 account 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 Renewed Revolving
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Credit Commitment Percentage of such reimbursement obligation, in Dollars 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 Renewed
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 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 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 disburse-
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ment, 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 Renewed
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 Renewed
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 Amendment Effective 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
Amendment Effective 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 Letters 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
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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 Amendment Effective 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 Renewed 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 Renewed Revolving Credit
Commitment (in each case PRO RATA according to the respective Renewed Revolving
Credit Commitments of all such Lenders), a commitment fee for each day from and
including the Amendment Effective 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 Renewed 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
Renewed 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 RENEWED 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)
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shall have the right, without premium or penalty, on any day, permanently to
terminate or reduce the Renewed Revolving Credit Commitments in whole or in
part, PROVIDED that (a) any such reduction shall apply proportionately and
permanently to reduce the Renewed 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 Renewed Revolving Credit Commitment.
4.3. MANDATORY TERMINATION OF COMMITMENTS.
(a) (i) The Tranche A-3 Term Loan Commitments shall terminate at 5:00
p.m. (New York City time) on the Amendment Effective Date.
(ii) The Tranche B-2 Term Loan Commitments shall terminate at 5:00
p.m. (New York City time) on the Amendment Effective Date.
(b) The Total Renewed 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-2 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-2 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
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such prepayment and shall promptly be transmitted by the Administrative Agent to
each of the 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
(a) applied to Term Loans in such manner as the Borrower may determine and (b)
applied to reduce Tranche A-3 Repayment Amounts or Tranche B-2 Repayment
Amounts, as the case may be, 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 Renewed 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 Renewed 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 Invest-
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ments satisfactory to the Administrative Agent, until the proceeds are applied
to the secured obligations).
(c) APPLICATION OF REPAYMENT AMOUNTS. Each prepayment of Term Loans
required by Section 5.2(a)(i) shall be initially allocated PRO RATA among the
Tranche A-3 Term Loans and the Tranche B-2 Term Loans and shall be applied to
reduce the applicable 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 A-3 Term Loan Lender and Tranche B-2 Term Loan
Lender.
(d) APPLICATION TO TERM LOANS. With respect to each prepayment of
Tranche A-3 Term Loans and Tranche B-2 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 elected by the Borrower pursuant to Section
5.2(a) or 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.
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(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 Interest
Period therefor in the required amount. Such deposit shall be held by the
Administrative Agent in a corporate time deposit account established on terms
reasonably satisfactory to the Administrative Agent, earning interest at the
then-customary rate for accounts of such type. Such deposit shall constitute
cash collateral for the Obligations, PROVIDED that the Borrower may at any time
direct that such deposit be applied to make the applicable payment required
pursuant to this Section 5.2.
(g) FOREIGN ASSET SALES. Notwithstanding any other provisions of this
Section 5.2, (i) to the extent that any of or all the Net Cash Proceeds of any
asset sale by a Restricted Foreign Subsidiary giving rise to an Asset Sale
Prepayment Event (a "FOREIGN ASSET SALE") are prohibited or delayed by
applicable local law (or, in the case of a Restricted Foreign Subsidiary that is
an Acquired Entity or Business that is subject to a binding agreement preventing
such repatriation and in effect prior to (and not entered into in contemplation
of ) the acquisition thereof) from being repatriated to the United States, the
portion of such Net Cash Proceeds so affected will not be required to be applied
to repay Term Loans at the times provided in this Section 5.2 but may be
retained by the applicable Restricted Foreign Subsidiary so long, but only so
long, as the applicable local law (or such agreement) will not permit
repatriation to the United States (the Borrower hereby agreeing to cause the
applicable Restricted Foreign Subsidiary to promptly take all actions required
by the applicable local law (or agreement) to permit such repatriation), and
once such repatriation of any of such affected Net Cash Proceeds is permitted
under the applicable local law (or such agreement), such repatriation will be
immediately effected and such repatriated Net Cash Proceeds will be promptly
(and in any event not later than two Business Days after such repatriation)
applied (net of additional taxes payable or reserved against as a result
thereof) to the repayment of the Term Loans pursuant to this Section 5.2 and
(ii) to the extent that the Borrower has determined in good faith that
repatriation of any of or all the Net Cash Proceeds of any Foreign Asset Sale
would have an adverse tax cost consequence with respect to such Net Cash
Proceeds that is material in relation to the amount of such Net Cash Proceeds,
the Net Cash Proceeds so affected may be retained by the applicable Restricted
Foreign Subsidiary, PROVIDED that, in the case of this clause (ii), on or before
the date on which any Net Cash Proceeds so retained would otherwise have been
required to be applied to reinvestments or prepayments pursuant to Section
5.2(a), (x) the Borrower applies an amount equal to such Net Cash Proceeds to
such reinvestments or prepayments as if such Net Cash Proceeds had been received
by the Borrower rather than such Restricted Foreign Subsidiary, less the amount
of additional taxes that would have been payable or reserved against if such Net
Cash Proceeds had been repatriated (or, if less, the Net Cash Proceeds that
would be calculated if received by such Foreign Subsidiary) or (y) such Net Cash
Proceeds are applied to the repayment of Indebtedness of a Restricted Foreign
Subsidiary.
(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 op-
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tion 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(h) 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, 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).
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 Let-
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ter 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 without deduction or withholding for or on account of, any
Indemnified Taxes; PROVIDED that if the 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
ex-
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penses 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) Each Non-U.S. Lender shall to the extent it is legally entitled
to do so:
(i) deliver to the Borrower and the Administrative Agent two copies
of either (x) in the case of a Non-U.S. Lender claiming exemption from U.S.
federal withholding tax under Section 871(h) or 881(c) of the Code with
respect to payments of "portfolio interest," United States Internal Revenue
Service Form W-8BEN (together with a certificate representing that such
Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code,
is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B)
of the Code) of the Borrower and is not a controlled foreign corporation
related to the Borrower (within the meaning of Section 864(d)(4) of the
Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each
case properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or reduced rate of, U.S. Federal withholding tax
on payments by the Borrower under this Agreement; and
(ii) deliver to the Borrower and the Administrative Agent two further
copies of any such form or certification (or any applicable successor form)
on or before the date that any such form or certification expires or
becomes obsolete and after the occurrence of any event requiring a change
in the most recent form previously delivered by it to the Borrower;
unless in any such case any Change in Law has occurred prior to the date on
which any such delivery would otherwise be required that renders any such form
inapplicable or would prevent such Lender from duly completing and delivering
any such form with respect to it and such Lender so advises the Borrower and the
Administrative Agent. Each Person that shall become a Participant pursuant to
Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness
of the related transfer, be required to provide all the forms and statements
required pursuant to this Section 5.4(d), PROVIDED that in the case of a
Participant such Participant shall furnish all such required forms and
statements to the Lender from which the related participation shall have been
purchased.
(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
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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 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
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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 AMENDMENT
EFFECTIVE DATE.
The Borrowings on the Amendment Effective Date under this Agreement
are subject to the satisfaction of the following conditions precedent, except as
otherwise agreed between the Borrower and the Administrative Agent.
6.1. CREDIT DOCUMENTS. The Administrative Agent, or Collateral
Trustee (as applicable), shall have received this Agreement, executed and
delivered by a duly authorized officer of the Borrower and the Administrative
Agent.
6.2. AMENDMENT AGREEMENT. All conditions precedent in Section 4 of
the Amendment Agreement shall have been satisfied.
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 Amendment Effective Date and on any date thereafter (excluding
Mandatory Borrowings) and the obligation of the Letter of Credit Issuer to issue
Letters of Credit on the Amendment Effective Date and on 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, with respect
to the Amendment Effective 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 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).
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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,
the Borrower makes 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. 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 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 (x) the Senior 1998 Notes Indenture
and (y) the Credit Documents) pursuant to, the terms of any material indenture
(including the Senior Note Indentures), loan agreement, lease agreement,
mortgage, deed of trust, agreement or other material instrument to which the
Borrower or any of the Restricted Subsidiaries is a party or by which it or any
of its property or assets is bound or (c) violate any provision of the
certificate of incorporation, by-laws or other constitutional documents of the
Borrower or any of the Restricted Subsidiaries.
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8.4. LITIGATION. There are no actions, suits or proceedings
(including Environmental Claims) pending or, to the knowledge of the Borrower,
threatened with respect to the Borrower or any of its Subsidiaries that could
reasonably be expected to result in a Material Adverse Effect or a Material
Adverse Change.
8.5. MARGIN REGULATIONS. Neither the making of any Loan hereunder nor
the use of the proceeds thereof will violate the provisions of Regulation T, U
or X of the Board.
8.6. GOVERNMENTAL APPROVALS. The execution, delivery and performance
of the 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) 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, (iv) 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, (v) 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 (vi) such
licenses, approvals, authorizations or consents the failure to obtain or make
could not reasonably be expected to have a Material Adverse Effect.
8.7. INVESTMENT COMPANY ACT. The Borrower is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
8.8. TRUE AND COMPLETE DISCLOSURE.
(a) None of the factual information and data (taken as a whole)
heretofore or contemporaneously furnished by the Borrower, any of the
Subsidiaries or any of their respective authorized representatives in writing to
the Administrative Agent and/or any Lender in connection with the Amendment
Agreement (including (i) the Confidential Information Memorandum and (ii) all
information contained in the Credit Documents currently in effect) for purposes
of or in connection with this Agreement or any transaction contemplated herein
contained any untrue statement or omitted to state any material fact necessary
to make such information and data (taken as a whole) not misleading at such time
in light of the circumstances under which such information or data was furnished
(subject, in the case of quarterly or interim financial statements, to normal
year-end audit adjustments), it being understood and agreed that for purposes of
this Section 8.8(a), such factual information and data shall not include
projections and pro forma financial information.
(b) The projections and pro forma financial information contained in
the information and data referred to in paragraph (a) above were based on good
faith estimates and assumptions believed by such Persons to be reasonable at the
time made, it being recognized by the Lenders that such projections as to future
events are not to be viewed as facts and that actual re-
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sults 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 New Transactions as
if they had occurred prior thereto).
8.10. TAX RETURNS AND PAYMENTS.
(a) The Borrower and each of the Subsidiaries has filed all federal
income tax returns and all other material tax returns, domestic and foreign,
required to be filed by it and has paid all material Taxes payable by it that
have become due, other than those (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.
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
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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 Amendment Effective Date. To
the knowledge of the Borrower, after due inquiry, each Material Subsidiary as of
the Amendment Effective Date has been so designated on SCHEDULE 8.12 to this
Agreement.
8.13. PATENTS, ETC. The Borrower and each of the Restricted
Subsidiaries have obtained all patents, trademarks, servicemarks, trade names,
copyrights, licenses and other rights, free from burdensome restrictions, that
are necessary for the operation of their respective businesses as currently
conducted and as proposed to be conducted, except where the failure to obtain
any such rights could not reasonably be expected to have a Material Adverse
Effect.
8.14. ENVIRONMENTAL LAWS.
(a) Except as could not reasonably be expected to have a Material
Adverse Effect: (i) the Borrower and each of the Subsidiaries and all Real
Estate are in compliance with all Environmental Laws; (ii) neither the Borrower,
nor any of the Subsidiaries is subject to any Environmental Claim or any other
liability under any Environmental Law; (iii) the Borrower and its Subsidiaries
are not conducting any investigation, removal, remedial or other corrective
action pursuant to any Environmental Law at any location; and (iv) no
underground storage tank or re-
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lated piping, or any impoundment or other disposal area containing Hazardous
Materials is located at, on or under any Real Estate currently owned or leased
by the Borrower or any of its Subsidiaries.
(b) Neither the Borrower, nor 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) 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 Original Closing Date and the Amendment
Effective Date (after giving effect to the Transactions), immediately following
the making of each Loan and after giving effect to the application of the
proceeds of such Loans, the Borrower on a consolidated basis with its
Subsidiaries was, and will be, Solvent.
8.17. [INTENTIONALLY OMITTED].
8.18. FCC LICENSES, ETC. As of the Amendment Effective 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 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
Amendment Effective Date, the FCC Licenses and 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 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 Amendment Effective Date, SCHEDULE 8.19
hereto accurately and completely lists each of the Satellites owned by the
Borrower and its Restricted Subsidiaries on the Amendment Effective 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.
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SECTION 9. AFFIRMATIVE COVENANTS.
The Borrower hereby covenants and agrees that on the Amendment
Effective 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. 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 either of the Senior 2004 Notes or the
Senior 2006 Notes, on or before the date that is 120 days after the end of
each such fiscal year), the consolidated balance sheet of the Borrower and
the Restricted 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 or as to the status of 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 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. Notwithstanding the foregoing, in the event any
direct or indirect parent company of the Borrower guarantees the
Obligations on terms reasonably satisfactory to the Administrative Agent
and the Borrower, the obligations in this paragraph shall be satisfied with
respect to financial information of the Borrower and its Restricted
Subsidiaries by furnishing financial information relating to such parent,
PROVIDED that the same is accompanied by consolidating information
that explains in reasonable detail the differences between the information
relating to such parent, on the one hand, and the information relating to
the Borrower and the Restricted Subsidiaries on a standalone basis, on the
other hand.
(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 either of the
Senior Notes with respect to each of the first three quarterly accounting
periods in each fiscal year of 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), the consolidated balance
sheet of (i) the Borrower and the Restricted Subsidiaries and (ii) the
Borrower and its Subsidiaries, in each case as at the end of such
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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, subject to changes resulting from audit
and normal year-end audit adjustments. Notwithstanding the foregoing, in
the event any direct or indirect parent company of the Borrower guarantees
the Obligations on terms reasonably satisfactory to the Administrative
Agent and the Borrower, the obligations in this paragraph shall be
satisfied with respect to financial information of the Borrower and its
Restricted Subsidiaries by furnishing financial information relating to
such parent, PROVIDED that the same is accompanied by consolidating
information that explains in reasonable detail the differences between the
information relating to such parent, on the one hand, and the information
relating to the Borrower and the Restricted Subsidiaries on a standalone
basis, on the other hand.
(c) BUDGETS. Within 60 days after the commencement of each fiscal
year of the Borrower, budgets of the Borrower in reasonable detail for such
fiscal year as customarily prepared by management of 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 12.13; 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, Foreign 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 Amendment Effective 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
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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
certificate 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 legal officer of the Borrower 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 Amendment Effective
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 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. 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 Effect:
(i) Any pending or threatened Environmental Claim against 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 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
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"REAL ESTATE" shall mean land, buildings and improvements owned or leased
by 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, 10-Q or 8-K) or registration statements
with, and reports to, the SEC or any analogous Government Authority in any
relevant jurisdiction by 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 the Borrower or any
of the Subsidiaries shall send to the holders of any publicly issued debt
of 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 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
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 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 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. The Borrower will, and 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 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 the Borrower and
any such Subsidiary and discuss the affairs, finances and accounts 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 the Borrower.
9.3. MAINTENANCE OF INSURANCE.
(a) The Borrower will, and will cause each of its Restricted
Subsidiaries to, obtain, maintain and keep in full force and effect at all times
(i) with respect to each Satellite procured by the Borrower or any of its
Restricted Subsidiaries for which the risk of loss passes to the Borrower or
such Restricted Subsidiary at or before launch, and for which launch insurance
or commitments with respect thereto are not in place as of the Amendment
Effective 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, neither the Borrower nor any of its Subsidiaries
shall be required to maintain In-Orbit Insurance in excess of 33% of the
aggregate net book value of all in-orbit Satellites (and portions it owns or for
which it has risk of loss) insured (it being understood that any Satellite (or
portion, as applicable) protected by In-Orbit Contingency Protection shall be
deemed to be in-
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sured 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 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 Collateral
Trustee 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 Collateral Trustee's reasonable
satisfaction for the benefit of the Collateral Trustee (including, without
limitation, by naming the Collateral Trustee 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 Collateral Trustee, 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 Collateral Trustee,
be deposited with the Collateral Trustee 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
Collateral Trustee 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 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.
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9.4. PAYMENT OF TAXES The Borrower will pay and discharge, and 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
neither the Borrower, nor 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
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 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
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a Plan; that a
Plan having an Unfunded Current Liability has been or is to be terminated,
reorganized, partitioned or declared insolvent under Title IV of ER-
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ISA (including the giving of written notice thereof); that a Plan has an
Unfunded Current Liability that has or will result in a lien under ERISA or the
Code; that proceedings will be or have been instituted to terminate a Plan
having an Unfunded Current Liability (including the giving of written notice
thereof); that a proceeding has been instituted against the Borrower, a
Subsidiary or an ERISA Affiliate pursuant to Section 515 of ERISA to collect a
delinquent contribution to a Plan; that the PBGC has notified the Borrower, any
Subsidiary or any ERISA Affiliate of its intention to appoint a trustee to
administer any Plan; that the Borrower, any Subsidiary or any ERISA Affiliate
has failed to make a required installment or other payment pursuant to Section
412 of the Code with respect to a Plan; or that the Borrower, any Subsidiary or
any ERISA Affiliate has incurred or will incur (or has been notified in writing
that it will incur) any liability (including any contingent or secondary
liability) to or on account of a Plan pursuant to Section 409, 502(i), 502(l),
515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of
the Code.
9.8. MAINTENANCE OF PROPERTIES. The Borrower will, and will cause
each of its Restricted Subsidiaries to, keep and maintain all property material
to the conduct of its business in good working order and condition, ordinary
wear and tear excepted, which shall include, in the case of Satellites (other
than Satellites yet to be launched), the provision of tracking, telemetry,
control and monitoring of Satellites in their designated orbital positions in
accordance with prudent and diligent standards in the commercial satellite
industry, except to the extent that the failure to do so could reasonably be
expected to have a Material Adverse Effect.
9.9. 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 and otherwise
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 New Transactions and transactions to effect the same, including
the payment of fees and expenses related thereto, (f) customary fees paid to and
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
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employees in the ordinary course of business, (i) the issuance of equity
interests in the Borrower 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 Amendment Effective 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 the Borrower
or any parent of the Borrower, PROVIDED that such director(s) abstain(s) from
voting as a director of the Borrower or such parent, as the case may be, on any
matter involving such Person.
9.10. END OF FISCAL YEARS; FISCAL QUARTERS. The Borrower will, for
financial reporting purposes, cause (a) each of its, and each of its
Subsidiaries', fiscal years to end on December 31 of each year and (b) each of
its, and each of its 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 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 Domestic Subsidiary that is a Material Subsidiary (other than any
Unrestricted Subsidiary, Receivables Subsidiary or any Domestic Subsidiary owned
by a Foreign Subsidiary) formed or otherwise purchased or acquired after the
Amendment Effective Date (including pursuant to a Permitted Acquisition) and
(ii) each Subsidiary (other than any Unrestricted Subsidiary) that is not a
Domestic Subsidiary on the Amendment Effective Date or is not a Material
Subsidiary on the Amendment Effective Date but subsequently becomes a Domestic
Subsidiary (other than any Unrestricted Subsidiary) that is a Material
Subsidiary, in each case to execute a supplement to each of the Guarantee and
the Security Agreements, substantially in the form of Annex B or Annex 1, as
applicable, to the respective agreement in order to become a Guarantor under the
Guarantee and a grantor under the Security Agreements (it being understood that
any such property constituting "Principal Property" under the Senior 1998 Notes
Indenture shall be subjected to Liens under the applicable Security Documents in
favor or the Collateral Trustee, and all other property shall be subject to
Liens under the applicable Security Documents in favor of the Administrative
Agent).
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9.12. PLEDGES OF ADDITIONAL STOCK AND EVIDENCE OF INDEBTEDNESS.
(a) Except as set forth in Section 10.1(A)(j) or (A)(k), the Borrower
will pledge, and, if applicable, will cause each Subsidiary Guarantor to pledge,
to the Administrative Agent or the Collateral Trustee, as applicable, for the
benefit of the Secured Parties, (i) all the capital stock of each Domestic
Subsidiary (other than any Unrestricted Subsidiary or any Domestic Subsidiary
owned by a Foreign Subsidiary), 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 each Foreign
Subsidiary (other than an Unrestricted Subsidiary or any capital stock
representing in excess of 65% of the issued and outstanding capital stock in any
Foreign Subsidiary) held by the Borrower or a Subsidiary Guarantor, in each
case, formed or otherwise purchased or acquired after the Amendment Effective
Date, in each case pursuant to a supplement to the Pledge Agreements 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 (other than any Unrestricted Subsidiary or any Domestic
Subsidiary wholly-owned by a Foreign Subsidiary) in connection with any
disposition of assets pursuant to Section 10.4(b), in each case pursuant to a
supplement to the Pledge Agreements, substantially in the form of Annex A
thereto and (iii) any global promissory notes executed after the Original
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 Pledge Agreements, substantially in
the form of Annex A thereto (it being understood that any such capital stock or
evidence of Indebtedness described in clause (i), (ii) or (iii) above issued by
a "Restricted Subsidiary" (as described in the Senior 1998 Notes Indenture)
shall be subjected to Liens under the applicable Security Documents in favor of
the Collateral Trustee, and all other capital stock or evidence of Indebtedness
shall be subject to Liens under the applicable Security Documents in favor of
the Administrative Agent).
(b) The Borrower agrees that all Indebtedness in excess of $1,000,000
of 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.
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 Amendment Effective 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
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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 Amendment
Effective 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) 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 the Borrower and
the Restricted Subsidiaries (it being understood that any such property
constituting "Principal Property" under the Senior 1998 Notes Indenture shall be
subjected to Liens under the applicable Security Documents in favor of the
Collateral Trustee, and all other property shall be subject to Liens under the
applicable Security Documents in favor of the Administrative Agent).
(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
Amendment Effective 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
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 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)
substantially in the form of EXHIBIT I-4 to the Original Credit Agreement (it
being understood that any such property
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constituting "Principal Property" under the Senior 1998 Notes Indenture shall be
subjected to Liens under the applicable Security Documents in favor of the
Collateral Trustee, and all other property shall be subject to Liens under the
applicable Security Documents in favor of 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.
9.16. ACCESS AND COMMAND CODES.
(a) The Borrower will, and will cause each of its 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 Collateral Trustee to:
(i) deliver expeditiously to the Collateral Trustee, 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
(iii) deliver to the Collateral Trustee 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
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(c) At any time upon an acceleration pursuant to Section 12, and upon
notification thereof by the Administrative Agent, to promptly deliver to the
Collateral Trustee, 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 thereafter until the last Maturity
Date under this Agreement.
SECTION 10. NEGATIVE COVENANTS.
The Borrower hereby covenants and agrees that on the Amendment
Effective 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 other 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;
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(d) except as provided in clauses (j) and (k) below, subject to
compliance with Section 10.5(g), Guarantee Obligations (A) 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 a Restricted
Foreign Subsidiary or another 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 unsecured (and subordinated in the case of Permitted
Additional Notes that are subordinated) or (B) in respect of any India Tax
Obligations;
(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 Amendment Effective 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 Amendment Effective Date (other
than the Senior 1998 Notes) and listed on SCHEDULE 10.1;
(h) Indebtedness in respect of Hedge Agreements;
(i) Indebtedness in respect of the Senior 2006 Notes in an aggregate
principal amount not to exceed $575,000,000 (or such lesser aggregate
principal amount as may be incurred on the Amendment Effective Date);
(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 Amendment Effective 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 or the
Collateral Trustee, as applicable, to the extent required under Section
9.12 and (B) such Person executes a supplement to each of the Guarantee,
the Security Agreements and the Pledge Agreements (or alternative guarantee
and security arrange-
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ments in relation to the Obligations reasonably acceptable to the
Administrative Agent or the Collateral Trustee, as applicable) 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)(i)(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 "ACQUIRED 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 or the Collateral Trustee, as
applicable, to the extent required under Section 9.12 and (B) such acquired
Person executes a supplement to the Guarantee, the Security Agreements and
the Pledge Agreements (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 Renewed 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 6.75 to 1.0;
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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) Indebtedness under the Senior 1998 Notes;
(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 obligations in connection with acquisitions or
sales of assets and/or businesses effected in accordance with the
requirements of this Agreement;
(r) liabilities assumed or otherwise incurred under the Global
Service Employee Transfer;
(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 New 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 Renewed Revolving Credit Commitment has been terminated) for the
Test Period most recently com-
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pleted, (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;
(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), (p), (u),
(v) and (x) of this Section 10.1(A).
(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. 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;
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(d) Liens existing on the Amendment Effective Date and listed on
SCHEDULE 10.2;
(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);
(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;
and
(i) Liens under the Senior 1998 Notes, so long as the Senior 1998
Notes are required to be secured by equal and ratable Liens; PROVIDED that
such Liens are subject to the Intercreditor and Collateral Trust Agreement;
(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; and
(k) Liens on assets of Foreign Subsidiaries securing Indebtedness
incurred by such Foreign Subsidiaries pursuant to Section 10.1(A)(n).
10.3. LIMITATION ON FUNDAMENTAL CHANGES. Except as expressly
permitted by Section 10.4 or 10.5, 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:
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(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 the United States, any state thereof, the
District of Columbia or any territory thereof (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 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 Renewed 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 a supplement to
the Security Agreements or the Pledge Agreements, as applicable, 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 supplement to the Guarantee Agreement, the
Pledge Agreements and the Security Agreements and any applicable Mortgage
in form and sub-
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stance reasonably satisfactory to the Administrative Agent or Collateral
Trustee, as applicable, 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
Renewed 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;
(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; and
(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 or (iii) sell, transfer or otherwise
dispose of capital stock or other ownership interest of such License
Subsidiary only to a Credit Party.
10.4. LIMITATION ON SALE OF ASSETS. 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:
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(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 Amendment Effective 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, 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 Renewed 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 Amendment
Effective 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;
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(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) the Borrower and its Restricted Subsidiaries may sell or transfer
Globo Receivables pursuant to the Purchase Agreement dated as of August 20,
2004 between DirecTV and the Borrower;
(h) the Borrower and its Subsidiaries may engage in any disposition
of assets contemplated by the Intercompany Services Agreement, or otherwise
in connection with integration efforts related to the Acquisition;
(i) the Borrower may consummate the New 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) $25,000,000 shall be
evidenced by an certificate of an Authorized Officer, and (2) $50,000,000
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 operating 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
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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 Amendment
Effective 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 Amendment
Effective Date;
(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 Guarantor or the Borrower and (ii) in
Restricted Subsidiaries that are not Guarantors, in the case of this clause
(g)(ii), in an aggregate amount not to exceed $125,000,000 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;
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(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);
(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) Investments in Persons that are primarily engaged in a business
or activity conducted by the Borrower or any of its Restricted Subsidiaries
as of the Amendment Effective Date, or that is reasonably similar thereto,
a reasonable extension thereof or is complementary, incidental or ancillary
thereto, in an amount up to $275,000,000 at any one time outstanding
(t) other Investments in an amount up to $150,000,000 at any one time
outstanding;
(u) 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";
(v) Investments subject to and permitted under Section 10.3; and
(w) Investments constituting Guarantee Obligations permitted under
Section 10.1(A)(e).
10.6. LIMITATION ON DIVIDENDS. 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 considera-
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tion, 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 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 parent of the Borrower) solely to pay administrative and
similar reasonable expenses related to ownership of the Borrower, (e) the
Borrower may declare and pay dividends and/or make distributions to Intelsat
Bermuda that represent the net proceeds from the issuance of the Senior 2006
Notes and approximately $65,000,000 million of available cash that are required
to consummate the Acquisition, (f) the Borrower may declare and pay dividends
and/or make distributions to Intelsat Bermuda (or any other entity that may be a
parent of the Borrower) 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
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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 12.13 or a contribution for purposes of the
definition of "Applicable Amount" and (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; PROVIDED, FURTHER, that the aggregate amount of
interest payments with respect to the New Intelsat Bermuda Notes and the
Intelsat Bermuda Intercompany Loans permitted to be paid pursuant to this clause
(j) shall not exceed the cash interest payable with respect to the New Intelsat
Bermuda Notes.
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 Renewed
Revolving Credit Commitment has been terminated), the Borrower or any Restricted
Subsidiary may defease any Subordinated Indebtedness within one year from final
maturity.
(b) 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.
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10.9. NON-GUARANTOR DOMESTIC RESTRICTED SUBSIDIARIES. The Borrower
will not permit, at any time, (i) the total assets of all Domestic Restricted
Subsidiaries of the Borrower 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
Domestic Restricted Subsidiaries at such date or (ii) gross revenues of all
Domestic Restricted Subsidiaries of the Borrower which are not Subsidiary
Guarantors for such Test Period to equal or exceed 10% of the consolidated gross
revenues of the Borrower and its Domestic Restricted Subsidiaries for such
period, in each case determined in accordance with GAAP.
SECTION 11. FINANCIAL COVENANT.
As long as any Renewed 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 to Consolidated
EBITDA Ratio for the Test Period ending on such day of less than or equal to
4.25 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; or
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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 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; or
12.4. DEFAULT UNDER OTHER AGREEMENTS. (a) 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 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. 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
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 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 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
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the property of the Borrower or any Specified Subsidiary; or 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 the Borrower or any Specified Subsidiary; or
there is commenced against the Borrower or any Specified Subsidiary any such
proceeding or action that remains undismissed for a period of 60 days; or 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 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 the Borrower or any Specified Subsidiary makes a
general assignment for the benefit of creditors; or any corporate action is
taken by 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. The Pledge 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 the Collateral Trustee, as applicable, or any Lender) or
any pledgor thereunder or any Credit Party shall deny or disaffirm in writing
any pledgor's obligations under the Pledge Agreements; or
12.9. SECURITY AGREEMENTS. The 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 Collateral Trustee, as applicable, or any Lender) or any
grantor thereunder or any Credit Party shall deny or disaffirm in writing any
grantor's obligations under the Security Agreements; or
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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
the Borrower and the Restricted 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;
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 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 Renewed 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.
12.13. 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, Borrower may
engage in a Permitted Equity Issuance to the Sponsors, Intelsat Bermuda or any
Affiliate of Intelsat Bermuda other than the Borrower and its Subsidiaries and
apply the amount of the Net Cash Proceeds thereof to increase Consolidated
EBITDA with respect to such appli-
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cable quarter; provided that such Net Cash Proceeds (i) are actually received by
the Borrower (including through capital contribution of such Net Cash Proceeds
by Intelsat Bermuda 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 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 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 Agree-
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ment or any other Credit Document or for any failure of 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.
13.4. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including counsel to the Borrower), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent may deem and
treat the Lender specified in the Register with respect to any amount owing
hereunder as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Credit
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense that may
be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Credit Documents in
accordance with a request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
13.5. NOTICE OF DEFAULT. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders, PROVIDED that unless and until the
Administrative Agent shall have received such 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
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Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrower, 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 it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Credit Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrower, 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 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 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.
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13.9. SUCCESSOR AGENT. The Administrative Agent may resign as
Administrative Agent upon 20 days' prior written notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Credit Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall be approved by the Borrower (which approval shall not be
unreasonably withheld) so long as no Default or Event of Default is continuing,
whereupon such successor agent shall succeed to the rights, powers and duties of
the Administrative Agent, and the term "Administrative Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Section 12 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Credit Documents.
13.10. WITHHOLDING TAX. To the extent required by any applicable law,
the Administrative Agent may withhold from any interest payment to any Lender an
amount equivalent to any applicable withholding tax. If the Internal Revenue
Service or any authority of the United States or other jurisdiction 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.
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),
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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 any provision of this Section 14.1 or reduce the percentages specified in
the definitions of the terms "Required Lenders," "Required Tranche A-3 Term Loan
Lenders," "Required Tranche B-2 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 12 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 Renewed
Revolving Credit Commitment to a Term Loan Commitment, or change any Term Loan
Commitment to a Renewed 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 Tranche A-3 Repayment Amount, extend any scheduled Tranche A-3 Repayment
Date or decrease the amount or allocation of any mandatory prepayment to be
received by any Lender holding any Tranche A-3 Term Loans, in each case without
the written consent of the Required Tranche A-3 Term Loan Lenders, or (x)
decrease any Tranche B-2 Repayment Amount, extend any scheduled Tranche B-2
Repayment Date or decrease the amount or allocation of any mandatory prepayment
to be received by any Lender holding any Tranche B-2 Term Loans, in each case
without the written consent of the Required Tranche B-2 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) 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.
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14.2. NOTICES. Except as set forth in Section 14.17, all notices,
requests and demands to or upon the respective parties hereto to be effective
shall be in writing (including by facsimile or electronic mail), and, unless
otherwise expressly provided herein, shall be deemed to have been duly given or
made when delivered, or three days after being deposited in the mail, postage
prepaid, or, in the case of telecopy or electronic mail notice, when received,
addressed as follows in the case of the Borrower and the Administrative Agent,
and as set forth on SCHEDULE 1.1(C) to the Original Credit Agreement in the case
of the other parties hereto, or to such other address as may be hereafter
notified by the respective parties hereto:
The Borrower: PanAmSat Corporation
00 Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Fax: 000-000-0000
The Administrative Agent: Citicorp USA, Inc.
0 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxx
Fax: (000) 000-0000
Email: xxxxxxxxx.x.xxxx@xxxxxxxxx.xxx
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.
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14.5. PAYMENT OF EXPENSES AND TAXES. The Borrower agrees (a) to pay
or reimburse the Agents for all their reasonable out-of-pocket costs and
expenses incurred in connection with the development, preparation and execution
of, and any amendment, supplement or modification to, this Agreement and the
other Credit Documents and any other documents prepared in connection herewith
or therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including the reasonable fees, disbursements
and other charges of counsel to the Agents, (b) to pay or reimburse each Lender
and Agent for all its reasonable and documented costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Credit Documents and any such other documents, including
the reasonable fees, disbursements and other charges of counsel to each Lender
and of counsel to the Agents, (c) to pay, indemnify, and hold harmless each
Lender and Agent from, any and all recording and filing fees and (d) to pay,
indemnify, and hold harmless each Lender and Agent and their respective
directors, officers, employees, trustees, investment advisors and agents from
and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever, including reasonable and documented fees,
disbursements and other charges of counsel, with respect to the execution,
delivery, enforcement, performance and administration of this Agreement, the
other Credit Documents and any such other documents, including, without
limitation, any of the foregoing relating to the violation of, noncompliance
with or liability under, any Environmental Law or to any actual or alleged
presence, release or threatened release of Hazardous Materials involving or
attributable to the operations of the Borrower, any of its Subsidiaries or any
of the Real Estate (all the foregoing in this clause (d), collectively, the
"INDEMNIFIED LIABILITIES"), PROVIDED that the Borrower shall have no obligation
hereunder to the Administrative Agent or any Lender nor any of their respective
directors, officers, employees and agents with respect to indemnified
liabilities to the extent attributable to (i) the gross negligence or willful
misconduct of the party to be indemnified as determined in a final and
non-appealable judgment by a court of competent jurisdiction or (ii) disputes
among the Administrative Agent, the Lenders and/or their transferees. The
agreements in this Section 14.5 shall survive repayment of the Loans and all
other amounts payable hereunder.
14.6. SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby (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.
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(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 Renewed 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 giving 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 A-3 Term
Loan Commitment, Tranche B-2 Term Loan Commitment, Tranche A-3 Term Loan or
Tranche B-2 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;
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(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500, PROVIDED that only one such fee
shall be payable in the event of simultaneous assignments to or from two or
more Approved Funds; and
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an administrative questionnaire in a form approved by
the Administrative Agent (the "ADMINISTRATIVE QUESTIONNAIRE").
For the purpose of this Section 14.6(b), the term "APPROVED FUND"
means any Person (other than a natural person) that is engaged in making,
purchasing, holding or investing in bank loans and similar extensions of credit
in the ordinary course and that is administered, advised or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers, advises or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(v) of this Section 14.6, from and after the effective date
specified in each Assignment and Acceptance, the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.10, 2.11, 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
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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 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 X-0, X-0 xx X-0, as the case may be, evidencing the Tranche A-3
Term Loans, Tranche B-2 Term Loans and Increased Tranche B-2 Term Loans, and
Revolving Credit Loans and Swingline Loans, respectively, owing to such Lender.
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(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 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.
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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 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 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.
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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; WAIVERS. The Borrower hereby
irrevocably and unconditionally:
(a) 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;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in Section 14.2 or at such other address
of which the Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section 14.13 any special, exemplary, punitive or consequential
damages.
14.14. ACKNOWLEDGMENTS. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in connection
with this Agreement or any of the other Credit Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and the
Borrower, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrower and the Lenders.
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14.15. WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING 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 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 the Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "PATRIOT ACT"), it is required to
obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender to identify the Borrower in accordance with the
Patriot Act.
14.19. WAIVER OF PRIOR DEFAULTS. All Defaults and Events of Default
under the First Amended and Restated Credit Agreement arising from (i) the
Acquisition and the transactions contemplated thereby, and (ii) the Post-Closing
Transactions, on the Amendment Effective Date are waived in full; PROVIDED that
this Section 14.19 shall not constitute a waiver of any Default or Event of
Default under this Agreement nor does it constitute a waiver of the Lender's
rights in the case of any such Default or Event of Default under this Agreement.
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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.
PANAMSAT CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
CITICORP USA, INC.,
as Administrative Agent
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
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CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arranger
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
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DEUTSCHE BANK SECURITIES INC.,
as Joint Lead Arranger
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
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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
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CREDIT SUISSE SECURITIES (USA) LLC,
as Joint Lead Arranger
By: /s/ J. Xxxxx Xxxx
-------------------------------------
Name: J. Xxxxx Xxxx
Title: Managing Director
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XXXXXX BROTHERS INC.,
as Joint Lead Arranger
By: /s/ Xxxxxxx Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Managing Director
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