PARENT GUARANTEE AGREEMENT made by LORAL SPACE & COMMUNICATIONS INC. in favor of JPMORGAN CHASE BANK, N.A., as Administrative Agent Dated as of October 22, 2008
Exhibit 10.2
made by
LORAL SPACE & COMMUNICATIONS INC.
in favor of
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
in favor of
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
Dated as of October 22, 2008
TABLE OF CONTENTS
| Page | ||||
SECTION 1. DEFINED TERMS |
1 | |||
1.1 Definitions |
1 | |||
1.2 Other Definitional Provisions |
2 | |||
SECTION 2. GUARANTEE |
2 | |||
2.1 Guarantee |
2 | |||
2.2 No Subrogation |
3 | |||
2.3 Amendments, etc. with respect to the Borrower Obligations |
3 | |||
2.4 Guarantee Absolute and Unconditional |
3 | |||
2.5 Reinstatement |
4 | |||
2.6 Payments |
4 | |||
SECTION 3. REPRESENTATIONS AND WARRANTIES |
5 | |||
3.1 Due Organization |
5 | |||
3.2 Due Authorization; Enforceability |
5 | |||
3.3 No Conflicts |
5 | |||
3.4 No Litigation |
5 | |||
SECTION 4. THE ADMINISTRATIVE AGENT |
5 | |||
4.1 Administrative Agent’s Appointment as Attorney-in-Fact, etc |
5 | |||
SECTION 5. MISCELLANEOUS |
6 | |||
5.1 Amendments in Writing |
6 | |||
5.2 Notices |
6 | |||
5.3 No Waiver by Course of Conduct; Cumulative Remedies |
6 | |||
5.4 Enforcement Expenses; Indemnification |
6 | |||
5.5 Successors and Assigns |
7 | |||
5.6 Set-Off |
7 | |||
5.7 Severability |
7 | |||
5.8 Section Headings |
7 | |||
5.9 GOVERNING LAW |
7 | |||
5.10 Submission To Jurisdiction; Waivers |
7 | |||
5.11 Acknowledgements |
8 | |||
5.12 WAIVER OF JURY TRIAL |
8 | |||
5.13 Covenant |
8 | |||
PARENT GUARANTEE AGREEMENT, dated as of October 22, 2008, made by LORAL SPACE & COMMUNICATIONS
INC. (the “Guarantor”), in favor of JPMORGAN CHASE BANK, N.A., as Administrative Agent (in
such capacity, the “Administrative Agent”) for the banks and other financial institutions
or entities (the “Lenders”) from time to time parties to the Credit Agreement, dated as of
October 16, 2008 (as amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among SPACE SYSTEMS/LORAL, INC. (the “Borrower”), the Lenders and the
Administrative Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally agreed to make
extensions of credit to the Borrower upon the terms and subject to the conditions set forth
therein;
WHEREAS, the Borrower is a member of an affiliated group of companies that includes the
Guarantor;
WHEREAS, the Borrower and the Guarantor are engaged in related businesses, and the Guarantor
will derive substantial direct and indirect benefit from the making of the extensions of credit
under the Credit Agreement; and
WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective
extensions of credit to the Borrower under the Credit Agreement that the Guarantor shall have
executed and delivered this Agreement to the Administrative Agent for the ratable benefit of the
Lenders;
NOW, THEREFORE, in consideration of the premises and to induce the Administrative Agent and
the Lenders to enter into the Credit Agreement and to induce the Lenders to make their respective
extensions of credit to the Borrower thereunder, the Guarantor hereby agrees with the
Administrative Agent, for the ratable benefit of the Lenders, as follows:
SECTION 1.
DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.
(b) The following terms shall have the following meanings:
“Agreement”: this Parent Guarantee Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
“Borrower Obligations”: the collective reference to the unpaid principal of and
interest on the Loans and Reimbursement Obligations and all other monetary obligations and
liabilities of the Borrower (including, without limitation, interest accruing at the then
applicable
rate provided in the Credit Agreement after the maturity of the Loans and Reimbursement
Obligations and interest accruing at the then applicable rate provided in the Credit Agreement
after the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding) to the Administrative Agent or any Lender
(or, in the case of any Specified Swap Agreement and any Specified Cash Management Agreement, any
Affiliate of any Lender), whether direct or indirect, absolute or contingent, due or to become due,
or now existing or hereafter incurred, which may arise under, out of, or in connection with, the
Credit Agreement, this Agreement, the other Credit Documents, any Letter of Credit, any Specified
Swap Agreement, any Specified Cash Management Agreement or any other document made, delivered or
given in connection with any of the foregoing (collectively, the “Transaction Documents”), in each
case whether on account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel
to the Administrative Agent or to the Lenders that are required to be paid by the Borrower pursuant
to the terms of any of the foregoing agreements). Notwithstanding anything herein to the contrary,
“Borrower Obligations” shall not include (i) any non-monetary obligations of the Borrower or any
Loan Party or (ii) any obligations (monetary or otherwise) of the Borrower other than pursuant to
the Transaction Documents.
1.2 Other Definitional Provisions. (a) The words “hereof,” “herein”, “hereto” 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
this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
SECTION 2.
GUARANTEE
2.1 Guarantee. (a) The Guarantor hereby, unconditionally and irrevocably, guarantees
to the Administrative Agent, for the ratable benefit of the Lenders and their respective
successors, indorsees, transferees and assigns, the prompt and complete payment and performance by
the Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the
Borrower Obligations.
(b) The guarantee contained in this Section 2 shall remain in full force and effect until all
the Borrower Obligations and the obligations of the Guarantor under the guarantee contained in this
Section 2 shall have been satisfied by payment in full, no Letter of Credit shall be outstanding
that is not back stopped to the satisfaction of the Administrative Agent and the Commitments shall
be terminated, notwithstanding that from time to time during the term of the Credit Agreement the
Borrower may be free from any Borrower Obligations.
(c) No payment made by the Borrower, the Guarantor, any other guarantor or any other Person or
received or collected by the Administrative Agent or any Lender from the
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Borrower, the Guarantor, any other guarantor or any other Person by virtue of any action or
proceeding or any set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release
or otherwise affect the liability of the Guarantor hereunder which shall, notwithstanding any such
payment (other than any payment made by the Guarantor in respect of the Borrower Obligations or any
payment received or collected from the Guarantor in respect of the Borrower Obligations), remain
liable for the Borrower Obligations up to the maximum liability of the Guarantor hereunder until
the Borrower Obligations are paid in full, no Letter of Credit shall be outstanding that is not
back stopped to the satisfaction of the Administrative Agent and the Commitments are terminated.
2.2 No Subrogation. Notwithstanding any payment made by the Guarantor hereunder or
any set-off or application of funds of the Guarantor by the Administrative Agent or any Lender, the
Guarantor shall not be entitled to be subrogated to any of the rights of the Administrative Agent
or any Lender against the Borrower or any collateral security or guarantee or right of offset held
by the Administrative Agent or any Lender for the payment of the Borrower Obligations, nor shall
the Guarantor seek or be entitled to seek any contribution or reimbursement from the Borrower in
respect of payments made hereunder, until all amounts owing to the Administrative Agent and the
Lenders by the Borrower on account of the Borrower Obligations are paid in full, no Letter of
Credit shall be outstanding that is not back stopped to the satisfaction of the Administrative
Agent and the Commitments are terminated.
2.3 Amendments, etc. with respect to the Borrower Obligations. The
Guarantor shall remain obligated hereunder notwithstanding that, without any reservation of rights
against the Guarantor, and without notice to or further assent by the Guarantor, any demand for
payment of any of the Borrower Obligations made by the Administrative Agent or any Lender may be
rescinded by the Administrative Agent or such Lender and any of the Borrower Obligations continued,
and the Borrower Obligations, or the liability of any other Person upon or for any part thereof, or
any collateral security or guarantee therefor or right of offset with respect thereto, may, from
time to time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Administrative Agent or any Lender, and the
Credit Agreement and the other Credit Documents and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated, in whole or in part, as
the Administrative Agent (or the Required Lenders or all Lenders, as the case may be) may deem
advisable from time to time, and any collateral security, guarantee or right of offset at any time
held by the Administrative Agent or any Lender for the payment of the Borrower Obligations may be
sold, exchanged, waived, surrendered or released in accordance with the Credit Agreement and the
other Credit Documents. Neither the Administrative Agent nor any Lender shall have any obligation
to protect, secure, perfect or insure any Lien at any time held by it as security for the Borrower
Obligations or held by it after the date hereof as security for the guarantee contained in this
Section 2 or any property subject thereto.
2.4 Guarantee Absolute and Unconditional. The Guarantor waives any and all notice of
the creation, renewal, extension or accrual of any of the Borrower Obligations and notice of or
proof of reliance by the Administrative Agent or any Lender upon the guarantee contained in this
Section 2 or acceptance of the guarantee contained in this Section 2; the Borrower Obligations,
3
and any of them, shall conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon the guarantee contained in this Section 2;
and all dealings between the Borrower and the Guarantor, on the one hand, and the Administrative
Agent and the Lenders, on the other hand, likewise shall be conclusively presumed to have been had
or consummated in reliance upon the guarantee contained in this Section 2. The Guarantor waives
diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon
the Borrower or the Guarantor with respect to the Borrower Obligations other than such demands and
notices as are required to be provided under the Credit Agreement. The Guarantor understands and
agrees that the guarantee contained in this Section 2 shall be construed as a continuing, absolute
and unconditional guarantee of payment without regard to (a) the validity or enforceability of the
Credit Agreement or any other Credit Document, any of the Borrower Obligations or any other
collateral security therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by the Administrative Agent or any Lender, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance) which may at any time be available to
or be asserted by the Borrower or any other Person against the Administrative Agent or any Lender,
or (c) any other circumstance whatsoever (with or without notice to or knowledge of the Borrower or
the Guarantor), other than a defense of payment or performance, which constitutes, or might be
construed to constitute, an equitable or legal discharge of the Borrower for the Borrower
Obligations, or of the Guarantor under the guarantee contained in this Section 2, in bankruptcy or
in any other instance. When making any demand hereunder or otherwise pursuing its rights and
remedies hereunder against the Guarantor, the Administrative Agent or any Lender may, but shall be
under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as it
may have against the Borrower or any other Person or against any collateral security or guarantee
for the Borrower Obligations or any right of offset with respect thereto, and any failure by the
Administrative Agent or any Lender to make any such demand, to pursue such other rights or remedies
or to collect any payments from the Borrower or any other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any release of the
Borrower or any other Person or any such collateral security, guarantee or right of offset, shall
not relieve the Guarantor of any obligation or liability hereunder, and shall not impair or affect
the rights and remedies, whether express, implied or available as a matter of law, of the
Administrative Agent or any Lender against the Guarantor. For the purposes hereof “demand” shall
include the commencement and continuance of any legal proceedings.
2.5 Reinstatement. The guarantee contained in this Section 2 shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Borrower Obligations is rescinded or must otherwise be restored or returned by the
Administrative Agent or any Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or the Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower or the
Guarantor or any substantial part of its property, or otherwise, all as though such payments had
not been made.
2.6 Payments. The Guarantor hereby guarantees that payments hereunder will be paid to
the Administrative Agent without set-off or counterclaim in Dollars at the Funding Office.
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SECTION 3.
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective extensions of credit to the Borrower thereunder, the
Guarantor hereby represents and warrants to the Administrative Agent and each Lender that:
3.1 Due Organization. The Guarantor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has the corporate power and
authority, and the legal right, to make, deliver and perform this Agreement.
3.2 Due Authorization; Enforceability. The Guarantor has the corporate power and
authority, and the legal right, to make, deliver and perform this Agreement and has taken all
necessary corporate or other organizational action to authorize the execution, delivery and
performance of this Agreement. No consent or authorization of, filing with, notice to or other act
by or in respect of, any Governmental Authority or any other Person is required in connection with
the execution, delivery, performance, validity or enforceability of this Agreement except such
consents, authorizations, filings and notices which have been obtained or made prior to the date
hereof and are in full force and effect. This Agreement has been duly executed and delivered on
behalf of the Guarantor. This Agreement constitutes, a legal, valid and binding obligation of the
Guarantor enforceable against the Guarantor in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
3.3 No Conflicts. The execution, delivery and performance of this Agreement will not
violate any Requirement of Law or effective Contractual Obligation of the Guarantor or of any of
its Subsidiaries and will not result in, or require, the creation or imposition of any other Lien
on the Pledged Stock.
3.4 No Litigation. No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of the Guarantor, threatened
by or against the Guarantor or any of its Subsidiaries or against any of its or their respective
properties or revenues with respect to this Agreement or any of the transactions contemplated
hereby.
SECTION 4.
THE ADMINISTRATIVE AGENT
4.1 Administrative Agent’s Appointment as Attorney-in-Fact, etc. The
Guarantor acknowledges that the rights and responsibilities of the Administrative Agent under this
Guarantee with respect to any action taken by the Administrative Agent or the exercise or
non-exercise by the Administrative Agent of any option, right, request, judgment or other right or
5
remedy provided for herein or resulting or arising out of this Guarantee shall, as between the
Administrative Agent and the Lenders, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but, as between the
Administrative Agent and the Guarantor, the Administrative Agent shall be conclusively presumed to
be acting as Administrative Agent for the Lenders with full and valid authority so to act or
refrain from acting, and the Guarantor shall not be under any obligation, or entitlement, to make
any inquiry respecting such authority.
SECTION 5.
MISCELLANEOUS
5.1 Amendments in Writing. None of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified except in accordance with Section 10.1 of the
Credit Agreement.
5.2 Notices. All notices, requests and demands to or upon the Administrative Agent or
the Guarantor hereunder shall be effected in the manner provided for in Section 10.2 of the Credit
Agreement; provided that any such notice, request or demand to or upon the Guarantor shall be
addressed to it at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx,
with a copy to Xxx Xxxx, Esq.
5.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the Administrative
Agent nor any Lender shall by any act (except by a written instrument pursuant to Section 5.1),
delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Lender, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or
privilege hereunder shall preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. A waiver by the Administrative Agent or any Lender of any right
or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy
which the Administrative Agent or such Lender would otherwise have on any future occasion. The
rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any other rights or remedies provided by law.
5.4 Enforcement Expenses; Indemnification. (a) The Guarantor agrees to pay or
reimburse each Lender and the Administrative Agent for all its reasonable costs and expenses
incurred in collecting against the Guarantor under the guarantee contained in Section 2 or
otherwise enforcing or preserving any rights under this Agreement, including, without limitation,
the fees and disbursements of counsel (including the allocated fees and expenses of in-house
counsel to the extent such counsel performs services that would otherwise be performed by outside
counsel) to each Lender and of counsel to the Administrative Agent.
(b) The Guarantor agrees to pay, and to save the Administrative Agent and the Lenders harmless
from, any and all liabilities with respect to, or resulting from any delay in paying, any and all
stamp, excise, sales or other taxes which may be payable or determined to be payable in connection
with this Agreement.
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(c) The Guarantor agrees to pay, and to save the Administrative Agent and the Lenders harmless
from, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement to the extent the Borrower
would be required to do so pursuant to Section 10.5 of the Credit Agreement.
5.5 Successors and Assigns. This Agreement shall be binding upon the successors and
assigns of the Guarantor and shall inure to the benefit of the Administrative Agent and the Lenders
and their permitted successors and assigns; provided that the Guarantor may not assign, transfer or
delegate any of its rights or obligations under this Agreement without the prior written consent of
the Administrative Agent.
5.6 Set-Off. In addition to any rights and remedies of the Lenders provided by law,
each Lender shall have the right, without notice to the Guarantor, any such notice being expressly
waived by the Guarantor to the extent permitted by applicable law, upon any Obligations becoming
due and payable by the Guarantor (whether at the stated maturity, by acceleration or otherwise), to
apply to the payment of such Obligations, by setoff or otherwise, 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, any affiliate thereof
or any of their respective branches or agencies to or for the credit or the account of the
Guarantor. Each Lender agrees promptly to notify the Guarantor and the Administrative Agent after
any such application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such application.
5.7 Severability. Any provision of this Agreement which 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.
5.8 Section Headings. The Section headings used in this Agreement are for convenience
of reference only and are not to affect the construction hereof or be taken into consideration in
the interpretation hereof.
5.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
5.10 Submission To Jurisdiction; Waivers. The Guarantor hereby irrevocably and
unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this
Agreement, 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;
7
(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 Guarantor at its address referred to in Section 5.2 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 any special, exemplary,
punitive or consequential damages.
5.11 Acknowledgements. The Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement;
(b) neither the Administrative Agent nor any Lender has any fiduciary relationship with or
duty to the Guarantor arising out of or in connection with this Agreement, and the relationship
between the Guarantor, on the one hand, and the Administrative Agent and Lenders, 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 otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Guarantor and the Lenders.
5.12 WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
5.13 Covenant. The Guarantor hereby agrees that, so long as the Commitments remain in
effect, any Letter of Credit remains outstanding that is not back stopped to the satisfaction of
the Administrative Agent or any Loan or other amount is owing to any Lender or the Administrative
Agent hereunder, in the event of the Disposition by it or any of its Subsidiaries of any Capital
Stock owned by them of Telesat Holdings Inc. (including pursuant to an initial public offering of
the Capital Stock of Telesat Holdings Inc.) the Guarantor and its Subsidiaries shall not, without
the prior written consent of each Lender and the Administrative Agent, apply the net proceeds of
such Disposition (the “Proceeds”) to pay any dividend or other distribution to the
stockholders of the Guarantor in an amount greater than the greater
of (i) 66
2/3% of the
Proceeds and (ii) the amount by which the Proceeds exceed S200,000,000.
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IN WITNESS WHEREOF, the undersigned has caused this Guarantee Agreement to be duly executed
and delivered as of the date first above written.
| LORAL SPACE &
COMMUNICATIONS INC. |
||||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxx | |||
| Title: | Senior Vice President and Treasurer | |||
[Parent Guarantee]
