EXHIBIT 10.78.2
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of October 29, 2003, to the Credit
Agreement dated as of February 25, 2002 (as heretofore modified and supplemented
and in effect on the date hereof, the "Credit Agreement"), between PANAMSAT
CORPORATION, a Delaware corporation (the "Borrower"), the several banks and
other financial institutions from time to time parties thereto (the "Existing
Lenders") and CREDIT SUISSE FIRST BOSTON, as Administrative Agent for the
Lenders (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Existing Lenders
consent (i) to the creation of a new term loan facility (the loans thereunder,
the "Tranche B1 Term Loans") under the Credit Agreement in an amount equal to
$650,000,000 to be used by the Borrower to refinance the Tranche B Term Loans
(as defined in the Credit Agreement) and all of the Tranche A Term Loans and
(ii) to certain other amendments to the Credit Agreement and, in that
connection, the Administrative Agent has been granted authority by Existing
Lenders constituting the Required Lenders, the Required Tranche A Term Loan
Lenders and the Required Tranche B Term Loan Lenders under and as defined in the
Credit Agreement to execute and deliver this Amendment on behalf of the Existing
Lenders currently party to the Credit Agreement;
WHEREAS, each bank or financial institution or other entity
(each, a "Tranche B1 Term Loan Lender" and, together with each Existing Lender,
the "Lenders") executing a Lender Addendum substantially in the form of Annex A
attached hereto (a "Lender Addendum") wishes to agree to (i) extend credit to
the Borrower under the Credit Agreement in the form of the Tranche B1 Term Loans
in an amount, as to each Tranche B1 Term Loan Lender, equal to the "Tranche B1
Term Loan Commitment" set forth opposite such Tranche B1 Term Loan Lender's name
on such Tranche B1 Term Loan Lender's Lender Addendum and (ii) thereby (to the
extent not already an Existing Lender) become a "Lender" under the Credit
Agreement;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto hereby agree as follows:
Section 1. Defined Terms. Terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
Section 2. Amendments to the Credit Agreement. Subject to the
satisfaction of the conditions set forth in Section 4 hereof, the Credit
Agreement is hereby amended as follows:
2.01. Definitions. Section 1.01 of the Credit Agreement shall
be amended by (i) deleting the definitions of "Echostar", "Echostar Combination
Transaction" and "Stock Purchase Agreement" in their entirety, (ii) adding the
following definitions (to the extent not already included in said Section 1.01)
and inserting the same in the appropriate alphabetical
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locations and (iii) amending in their entirety the following definitions (to the
extent already included in said Section 1.01) as follows:
"Amendment No. 2 Effective Date" has the meaning assigned to
such term in Section 4 of Amendment No. 2 hereto.
"Applicable Rate" means, for any day, (a) with respect to any
Tranche B1 ABR Loan, 1.5% and any Tranche B1 Eurodollar Loan, 2.5%, (b)
with respect to any Tranche B ABR Loan, 2.50% and any Tranche B
Eurodollar Loan, 3.50% and (c) with respect to any ABR Loan (including
any Swingline Loan) or Eurodollar Loan that is a Revolving Credit or
Tranche A Term Loans, or with respect to the commitment fees payable
hereunder, as the case may be, the applicable rate per annum set forth
below under the caption "ABR" or "Eurodollar" for the respective Class
of Loans, or "Commitment Fee Rate", respectively, based upon the Total
Leverage Ratio as of the most recent determination date:
COMMITMENT FEE
TOTAL LEVERAGE RATIO REVOLVING CREDIT LOANS TRANCHE A TERM LOANS RATE
----------------------------------------------------------------------------------------------
----- ABR Eurodollar ABR Eurodollar -----
----------------------------------------------------------------------------------------------
> 4.50 2.25% 3.25% 2.25% 3.25% 0.750%
< 4.50 and > 4.00 2.00% 3.00% 2.00% 3.00% 0.500%
< 4.00 and > 3.50 1.75% 2.75% 1.75% 2.75% 0.500%
< 3.50 and > 3.00 1.50% 2.50% 1.50% 2.50% 0.375%
< 3.00 1.25% 2.25% 1.25% 2.25% 0.375%
For purposes of the foregoing, (i) the Total Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's
fiscal year based upon the Borrower's consolidated financial statements
delivered pursuant to Section 5.01(a) or (b) and (ii) each change in
the Applicable Rate resulting from a change in the Total Leverage Ratio
shall be effective during the period commencing on and including the
date two Business Days after delivery to the Administrative Agent of
such consolidated financial statements indicating such change and
ending on the date immediately preceding the effective date of the next
such change; provided that the Total Leverage Ratio shall be deemed to
be in the highest range provided above (A) at any time that an Event of
Default has occurred and is continuing and (B) if the Borrower fails to
deliver the consolidated financial statements required to be delivered
by it pursuant to Section 5.01(a) or (b), during the period from the
expiration of the time for delivery thereof until such consolidated
financial statements are delivered.
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"Change in Control" means the occurrence of any one or more of
the following events:
(a) at any time that the Borrower is not a Subsidiary
of a Permitted Holder, the ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules
of the SEC thereunder as in effect on the date hereof) other
than one or more Permitted Holders of shares representing more
than 30% of the total voting power represented by the issued
and outstanding capital stock of the Borrower then entitled to
vote in the election of the Board of Directors;
(b) at any time that the Borrower is a Subsidiary of
Xxxxxx or a Holding Company, the acquisition of Control of
Xxxxxx or such Holding Company by any Person or group (within
the meaning of the Securities Exchange Act of 1934 and the
rules of the SEC thereunder as in effect on the date hereof),
other than a Permitted Holder;
(c) at any time, the occupation of a majority of the
seats (other than vacant seats) on the board of directors of
the Borrower (or, at any time the Borrower is a Subsidiary of
Xxxxxx or a Holding Company of Xxxxxx or such Holding Company)
by Persons who were neither (i) nominated by the board of
directors of the Borrower (or of Xxxxxx or such Holding
Company, as the case may be) with the affirmative vote of a
majority of the members of said board of directors at the time
of such nomination or election nor (ii) appointed by directors
so nominated or elected or appointed by Permitted Holders;
(d) any "Change of Control" (however defined in the
relevant indenture or other instrument) shall occur with
respect to the Senior 1998 Notes, the Senior 2002 Notes, or
any Permitted Senior Indebtedness or Permitted Subordinated
Indebtedness if the effect thereof is to require the Borrower
to repurchase or redeem (or make an offer to repurchase of
redeem) any such Notes or Indebtedness: or
(e) at any time after the consummation of a Holding
Company Transaction, the Holding Company shall cease to own
directly all of the issued and outstanding capital stock and
other ownership interests of the Borrower.
For purposes of clause (a) above, a Person or group shall be deemed to
own "beneficially" all shares that any such Person or group has the
right to acquire, whether such right is exercisable immediately or only
after the passage of time).
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing,
are Revolving Credit Loans, Tranche A Term Loans, Tranche B Term Loans,
Tranche B1 Term Loans or Swingline Loans and, when used in reference to
any Commitment, refers to whether such Commitment is a
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Revolving Credit Commitment, Tranche A Term Loan Commitment, Tranche B
Term Loan Commitment, or Tranche B1 Term Loan Commitment.
"Commitment" means a Revolving Credit Commitment, Tranche A
Term Loan Commitment, Tranche B Term Loan Commitment or Tranche B1 Term
Loan Commitment, or any combination thereof (as the context requires).
"EBITDA" means, for any period, the sum, for the Borrower and
its Restricted Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following (in each case
adjusted to exclude all extraordinary and unusual items, income or loss
attributable to equity in affiliates and non-cash minority interest
payments and receipts): (a) net operating income (calculated before
taxes, Interest Expense, extraordinary and unusual items and income or
loss attributable to equity in Affiliates) for such period plus (b)
depreciation and amortization (to the extent deducted in determining
net operating income) and other non-cash items deducted from net income
for such period plus (c) costs associated with the Refinancing
(including in connection with the execution and delivery of this
Agreement and the other Loan Documents) allocated to such period plus
(d) loss (or minus income) attributable to operations discontinued
during such period plus (e) the aggregate collections by the Borrower
and its Restricted Subsidiaries during such period on investments in
sales-type leases minus (f) the aggregate amount of gross profit on
sales-type leases included in net operating income for such period
minus (g) any Specified Affiliate Payments made during such period (net
of any contributions contemplated by clause (b) of the definition of
"Specified Affiliate Payments").
Notwithstanding the foregoing, if during any period for which
EBITDA is being determined the Borrower or any of its Restricted
Subsidiaries shall have consummated any acquisition or Disposition of a
business or operating unit then, for all purposes of this Agreement,
EBITDA shall be determined on a pro forma basis as if such acquisition
or Disposition had been made or consummated on the first day of such
period.
"Holding Company" means a corporation, limited liability
company or limited partnership that owns directly 100% of the issued
and outstanding shares of capital stock and other ownership interest of
each class of the Borrower, and which is formed either pursuant to
Section 6.03(f) or clause (q) of Article VII. Anything herein to the
contrary notwithstanding, Xxxxxx shall not be a "Holding Company" for
purposes of this Agreement.
"Interest Coverage Ratio" means, as at any date, the ratio of
(a) EBITDA for the period of four fiscal quarters ending on or most
recently ended prior to such date to (b) Interest Expense for such
Period.
"Interest Expense" means, for any period, the sum, for the
Borrower and its Restricted Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP), of the following:
(a) all interest in respect of Indebtedness (including the interest
component of any payments in respect of Capital Lease
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Obligations but excluding any interest not required to be paid in cash)
accrued or capitalized during such period (whether or not actually paid
during such period) plus (b) the aggregate amount of dividends paid in
cash in respect of Disqualified Stock during such period plus (c) the
net amount payable (or minus the net amount receivable) under Hedging
Agreements relating to interest during such period (whether or not
actually paid or received during such period) minus (d) interest income
for such period (but only to the extent not included in the
determination of EBITDA for such period).
Notwithstanding the foregoing, (i) if during any period for
which Interest Expense is being determined the Borrower or any of its
Restricted Subsidiaries shall have consummated any acquisition or
Disposition then, for all purposes of this Agreement, Interest Expense
shall be determined on a pro forma basis as if such acquisition or
Disposition (and any Indebtedness incurred by the Borrower or any of
its Restricted Subsidiaries in connection with such acquisition or
repaid as a result of such Disposition) had been made or consummated
(and such Indebtedness incurred or repaid) on the first day of such
period and (ii) if, as at any date (a "calculation date"), fewer than
four complete consecutive fiscal quarters have elapsed subsequent to
the Effective Date, Interest Expense shall be calculated (after giving
effect to the adjustment contemplated in the foregoing clause (i)) only
for the portion of such period commencing on the Effective Date and
ending on the calculation date and shall then be annualized by
multiplying the amount of such Interest Expense by a fraction, the
numerator of which is 365 and the denominator of which is the number of
days during the period commencing on the day immediately following the
Effective Date through and including the calculation date.
"Lenders" means the Persons listed on Schedule I, each Tranche
B1 Term Lender executing and delivering a Lender Addendum to Amendment
No. 2 hereto, and any other Person that shall have become a party
hereto pursuant to an Assignment and Acceptance, other than any such
Person that ceases to be a party hereto pursuant to an Assignment and
Acceptance. Unless the context otherwise requires, the term "Lenders"
includes the Swingline Lender.
"Permitted Holder" means each of (i) General Motors or Xxxxxx
or, at any time after the completion of the Stock Purchase
Transactions, News Corp. and (ii) any Subsidiary (including a Holding
Company) or any other Person, directly or indirectly, Controlled by any
of the foregoing.
"Principal Payment Dates" means each Quarterly Date,
commencing with March 31, 2004 through and including September 30,
2010, or if such date is not a Business Day, on the next preceding
Business Day.
"Syndicated", when used in reference to any Loan or Borrowing,
refers to whether the Class of such Loan or Borrowing is Revolving
Credit, Tranche A Term, Tranche B Term, or Tranche B1 Term, as opposed
to Swingline.
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"Term", when used in reference to any Loan or Borrowing,
refers to whether the Class of such Loan or Borrowing is Tranche A
Term, Tranche B Term or Tranche B1 Term, as opposed to Revolving Credit
or Swingline.
"Term Loan Commitments" means, collectively, the Tranche A
Term Loan Commitments, the Tranche B Term Loan Commitments and the
Tranche B1 Term Loan Commitments.
"Tranche B1 Term", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans constituting such
Borrowing, are made pursuant to Section 2.01(d).
"Tranche B1 Term Loan Commitment" means, with respect to each
Lender, the commitment, if any, of such Lender to make one or more
Tranche B1 Term Loans hereunder on the Amendment No. 2 Effective Date,
expressed as an amount representing the maximum aggregate principal
amount of the Tranche B1 Term Loans to be made by such Lender
hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 or 2.10(b) and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender's Tranche B1 Term Loan
Commitment is set forth in the Lender Addendum executed and delivered
by such Tranche B1 Term Loan Lender, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Tranche
B1 Term Loan Commitment, as applicable. The initial aggregate amount of
the Lenders' Tranche B1 Term Loan Commitments is $650,000,000.
"Tranche B1 Term Loan Lender" means a Lender with a Tranche B1
Term Loan Commitment or an outstanding Tranche B1 Term Loan.
2.02. The Commitments. Section 2.01 of the Credit Agreement
shall be amended by inserting a new paragraph (d) at the end thereof to read as
follows:
"(d) Tranche B1 Term Loans. Subject to the terms and
conditions set forth herein, each Tranche B1 Term Loan Lender agrees to
make one or more Tranche B1 Term Loans to the Borrower on the Amendment
No. 2 Effective Date in a principal amount not exceeding its Tranche B1
Term Loan Commitment. The proceeds of the Tranche B1 Term Loans shall
be applied, concurrently with the making thereof, to the prepayment of,
first, the Tranche B Term Loans and, second, any excess thereof shall
be applied to the prepayment of Tranche A Term Loans, as more
particularly provided in Section 4(h) of Amendment No. 2 hereto.
Amounts prepaid or repaid in respect of Tranche B1 Term Loans may not
be reborrowed."
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2.03. Requests for Syndicated Borrowings. Section 2.03(b)(i)
of the Credit Agreement shall be amended and restated to read in its entirety as
follows:
"(i) whether the requested Borrowing is to be a Revolving
Credit Borrowing, Tranche A Term Borrowing, Tranche B Term Borrowing or
Tranche B1 Term Borrowing;"
2.04. Termination and Reduction of Commitments. Section
2.08(a) of the Credit Agreement shall be amended and restated to read in its
entirety as follows:
"(a) Scheduled Termination. Unless previously terminated, (i)
the Term Loan Commitments of each Class shall terminate at 5:00 p.m.,
New York City time, on the Effective Date (or, in the case of the
Tranche B1 Term Loan Commitment, on the Amendment No. 2 Effective
Date), and (ii) the Revolving Credit Commitments shall terminate on the
Revolving Credit Commitment Termination Date."
2.05. Repayment of Loans; Evidence of Debt. Section 2.09(a) of
the Credit Agreement shall be amended by inserting a new clause (v) at the end
thereof to read as follows:
"(v) to the Administrative Agent for account of the Tranche B1
Term Loan Lenders the outstanding principal of the Tranche B1 Term
Loans on each Principal Payment Date falling on or nearest to each date
set forth in column (A) below, by an amount equal to the percentage of
the original aggregate principal amount of the Tranche B1 Term Loans
(after giving effect to the making thereof on the Amendment No. 2
Effective Date) set forth in column (B) below of the aggregate
principal amount of the Tranche B1 Term Loans:
(A) (B)
Principal Payment Date Percentage Reduction
---------------------- --------------------
March 31, 2004 .25%
June 30, 2004 .25%
September 30, 2004 .25%
December 31, 2004 .25%
March 31, 2005 .25%
June 30, 2005 .25%
September 30, 2005 .25%
December 31, 2005 .25%
March 31, 2006 .25%
June 30, 2006 .25%
September 30, 2006 .25%
December 31, 2006 .25%
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March 31, 2007 .25%
June 30, 2007 .25%
September 30, 2007 .25%
December 31, 2007 .25%
March 31, 2008 .25%
June 30, 2008 .25%
September 30, 2008 .25%
December 31, 2008 .25%
March 31, 2009 .25%
June 30, 2009 .25%
September 30, 2009 .25%
December 31, 2009 23.5625%
March 31, 2010 23.5625%
June 30, 2010 23.5625%
September 30, 2010 23.5625%"
2.06. Manner of Payment. Section 2.09(b) of the Credit
Agreement shall be amended and restated to read in its entirety as follows:
"(b) Manner of Payment. Prior to any repayment or prepayment
of any Borrowings of any Class hereunder, the Borrower shall select the
Borrowing or Borrowings of the applicable Class to be paid and shall
notify the Administrative Agent by telephone (confirmed by telecopy) of
such selection not later than 11:00 a.m., New York City time, three
Business Days before the scheduled date of such repayment; provided
that each repayment or prepayment of Borrowings of any Class shall be
applied to repay any outstanding ABR Borrowings of such Class before
any other Borrowings of such Class. If the Borrower fails to make a
timely selection of the Borrowing or Borrowings to be repaid or
prepaid, such payment shall be applied, first, to pay any outstanding
ABR Borrowings of the applicable Class and, second, to other Borrowings
of such Class in the order of the remaining duration of their
respective Interest Periods (the Borrowing with the shortest remaining
Interest Period to be repaid first). Each payment of a Syndicated
Borrowing shall be applied ratably to the Loans included in such
Borrowing."
2.07. Optional Prepayment. Section 2.10(a) of the Credit
Agreement shall be amended and restated to read in its entirety as follows:
"(a) Optional Prepayments. The Borrower shall have the right
at any time and from time to time to prepay any Borrowing in whole or
in part, subject to prior notice in accordance with paragraph (c) of
this Section. Prepayments of Term Loan Borrowings under this paragraph
(a) shall be applied (i) as between each Class of Term Loan Borrowings,
pro rata in accordance with the respective aggregate principal amounts
of the Loans of such Class outstanding on the date of prepayment and
(ii) as within each
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such Class of Loans, to the respective installments thereof ratably in
accordance with the respective principal amounts of such installments."
2.08. Prepayment of Loans. Section 2.10(b)(v) of the Credit
Agreement shall be amended by deleting the final paragraph thereof in its
entirety.
2.09. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. Section 2.17(c) of the Credit Agreement shall be amended and restated
to read in its entirety as follows:
"(c) Pro Rata Treatment. Except to the extent otherwise
provided herein: (i) each Syndicated Borrowing of a particular Class
shall be made from the relevant Lenders, each payment of commitment fee
under Section 2.11 in respect of Commitments of a particular Class
shall be made for account of the relevant Lenders, and each termination
or reduction of the amount of the Commitments of a particular Class
under Section 2.08 shall be applied to the respective Commitments of
such Class of the relevant Lenders, pro rata according to the amounts
of their respective Commitments of such Class; (ii) each Syndicated
Borrowing of any Class shall be allocated pro rata among the relevant
Lenders according to the amounts of their respective Commitments of
such Class (in the case of the making of Syndicated Loans) or their
respective Loans of such Class that are to be included in such
Borrowing (in the case of conversions and continuations of Loans);
(iii) each payment or prepayment of principal of Revolving Credit
Loans, Tranche A Term Loans, Tranche B Term Loans and Tranche B1 Term
Loans by the Borrower shall be made for account of the relevant Lenders
pro rata in accordance with the respective unpaid principal amounts of
the Syndicated Loans of such Class held by them; and (iv) each payment
of interest on Revolving Credit Loans, Tranche A Term Loans, Tranche B
Term Loans and Tranche B1 Term Loans by the Borrower shall be made for
account of the relevant Lenders pro rata in accordance with the amounts
of interest on such Loans then due and payable to the respective
Lenders."
2.10. No Material Adverse Change. Section 3.04(b) of the
Credit Agreement shall be amended and restated to read in its entirety as
follows:
"(b) No Material Adverse Change. Since September 30, 2001,
there has been no material adverse change in the business, assets,
operations or condition, financial or otherwise, of the Borrower and
its Restricted Subsidiaries, taken as a whole (other than general
economic conditions which have not yet affected the business, assets,
operations or condition, financial or otherwise, of the Borrower and
its Restricted Subsidiaries, taken as a whole, and other than as
disclosed in the Borrower's Form 8K, 10K and 10Q filings made prior to
the Amendment No. 2 Effective Date). It is understood and agreed that,
in determining whether a material adverse change as described above
shall have occurred, reference shall not be made to whether or not the
Borrower has achieved the financial results set forth in the
projections delivered by the Borrower to the Administrative Agent in
connection with the syndication of the Revolving Credit, Tranche A Term
Loan and Tranche B Term Loan Commitments hereunder."
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2.11. Disclosure. Section 3.11 of the Credit Agreement shall
be amended and restated to read in its entirety as follows:
"SECTION 3.11. Disclosure. As of the date hereof, the Borrower
has disclosed to the Lenders all agreements, instruments and corporate
or other restrictions to which it or any of its Restricted Subsidiaries
is subject, and all other matters (other than general economic
conditions or the effects (i) resulting from the downgrading prior to
the fourth quarter of 2001 of the credit rating for the Borrower's debt
securities or (ii) resulting from Xxxxxx' request that the Borrower
consummate the Refinancing) known to it, that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse
Effect. The written reports, financial statements, certificates and
other written information furnished by or on behalf of the Obligors to
the Lenders in connection with the negotiation of this Agreement and
the other Loan Documents or delivered hereunder or thereunder (as
modified or supplemented by other information so furnished), taken as a
whole, contain no material misstatement of fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading (it being
understood that the Borrower does not represent and warrant pursuant to
this Section that the financial statements, taken alone, satisfy the
provisions of this sentence); provided that, with respect to projected
financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed
to be reasonable at the time, it being understood that projections are
subject to significant uncertainties and contingencies, many of which
are beyond the Borrower's control, and that no assurance can be given
that such projections will be realized. For purposes of this Section
3.11 as of the date hereof, (i) the Offering Memorandum and (ii) all
information contained in SEC filings by the Borrower or any Person with
which the Borrower is consolidated on its financial statements shall be
deemed disclosed to the Lenders."
2.12. Other Information. Section 5.01(h) of the Credit
Agreement shall be amended and restated to read in its entirety as follows:
"(h) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Borrower or any of its Subsidiaries, or compliance
with the terms of this Agreement and the other Loan Documents, as the
Administrative Agent or any Lender may reasonably request, which may
include such information as any Lender may reasonably determine is
necessary or advisable to enable it either (i) to comply with the
policies and procedures adopted by it and its Affiliates to comply with
the Bank Secrecy Act, as amended, with the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (the "Patriot Act") and with applicable
regulations thereunder or (ii) to respond to requests for information
concerning the Borrower and its Subsidiaries from any governmental,
self-regulatory organization or financial institution in connection
with its anti-money laundering and anti-terrorism regulatory
requirements or its compliance procedures under the Patriot Act,
including in either case information concerning the Borrower's direct
and indirect shareholders and its use of the proceeds of the Loans
hereunder."
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2.13. Insurance.
(a) The first paragraph of Section 5.06(b)(iii) of the Credit
Agreement shall be amended and restated to read in its entirety as
follows:
"(iii) In-Orbit Risk Management. Other than with respect to
(A) Excluded Satellites, (B) any In-Orbit Spare Satellite (but only
to the extent that such In-Orbit Spare Satellite is not expected or
intended, in the good faith determination of the Board of Directors
and evidenced by a Board Resolution delivered to the Administrative
Agent, to earn revenues in excess of $15,000,000 for the immediately
succeeding twelve calendar months), and (C) any other Covered
Satellite as the Borrower shall designate, with the prior consent of
the Required Lenders, the Borrower either will obtain, maintain and
keep in full force and effect, with respect to each Covered
Satellite, In-Orbit Insurance or comply with the terms of the
Satellite Risk Management Program, with respect to each Covered
Satellite, provided that in no event, at any time, shall more than
47% of the aggregate number of transponders on all Covered
Satellites (other than Excluded Satellites) that are in orbit be
protected by In-Orbit Spare Satellites in accordance with the
Satellite Risk Management Program."
(b) Section 5.06(b)(iii)(II)(2) of the Credit Agreement shall be
amended and restated to read in its entirety as follows:
"(2) for such time as the Borrower and its Restricted
Subsidiaries shall maintain at least 10 Covered Satellites (other
than Excluded Satellites) in commercial operation in orbit, for all
such insured Covered Satellites in the aggregate, shall be in an
amount not less than 60% of the aggregate book value of all Covered
Satellites insured in accordance with Section 5.06(b)(iii) (with the
allocation of such insurance among such Covered Satellites being in
the Borrower's discretion). In the event that fewer than 10 Covered
Satellites (other than Excluded Satellites) are in commercial
operation in-orbit, the Borrower shall have 120 days to obtain
additional insurance in accordance with this Section 5.06(b)(iii)
such that each insured Covered Satellite in-orbit shall be insured
in an amount of not less than the book value for such Covered
Satellite, provided that the Borrower shall be deemed to be in
compliance with this Section 5.06(b)(iii) for such 120 day period;"
2.14. Hedging Agreements. Section 5.10 of the Credit Agreement shall
be deleted it in its entirety.
2.15. Permitted Business Acquisition. Section 6.03(d)(i) of the
Credit Agreement shall be amended and restated to read in its entirety as
follows:
"(i) the aggregate Purchase Price of any individual such acquisition
shall not exceed (x) $200,000,000 during any single fiscal year or (y)
$500,000,000 during the
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term of this Agreement, provided that without regard to and without usage
of such limits, (A) the Borrower shall be permitted to make a Permitted
Business Acquisition by Reinvestment of the Net Cash Proceeds of any
Equity Issuance or the incurrence of any Affiliate Subordinated
Indebtedness following the occurrence of such Equity Issuance or such
incurrence as contemplated by Section 2.10(b)(ii) during the period
contemplated therein and (B) the Borrower shall be permitted to make a
Permitted Business Acquisition through the issuance of shares of its
common stock (or the capital stock or other ownership interests of a
Holding Company, or any parent company of such Holding Company or any
Permitted Holder) to the respective seller(s) in such Acquisition,"
2.16. Fundamental Changes. Section 6.03(f)(ii) of the Credit
Agreement shall be amended and restated to read in its entirety as follows:
"(ii) subject to the satisfaction of the requirements set forth
below, PanAmSat may merge with any direct or indirect Wholly Owned
Subsidiary of Xxxxxx or General Motors in a transaction designed to make
the Borrower a Wholly Owned Subsidiary of Xxxxxx or General Motors,"
2.17. Investments. Section 6.05(m) of the Credit Agreement shall be
amended and restated to read in its entirety as follows:
"(m) additional Investments up to but not exceeding $100,000,000 in
the aggregate at any one time outstanding, if at the time of any such
Investment the Total Leverage Ratio is greater than or equal to 3.50 to 1,
or $200,000,000 in the aggregate at any one time outstanding, if at the
time of any such Investment the Total Leverage Ratio is less than 3.50 to
1."
2.18. Restricted Payments. Section 6.06 clauses 6.06(ii) and
6.06(iii) of the Credit Agreement shall be amended and restated to read in their
entirety as follows:
"(ii) the aggregate amount of Restricted Payments (excluding any
Restricted Payments described in clauses (A), (B) or (C) above or clauses
(a), (b), (c) or (d) below) made during any fiscal year shall not exceed
$50,000,000;
(iii) the Total Leverage Ratio as at the last day of the fiscal
quarter most recently ended prior to the date of such Restricted Payments
shall not exceed 3.50 to 1 and the Borrower shall be in compliance with
Section 6.10 (the determination of such compliance to be calculated on a
pro forma basis) as at the end of and for the period of four fiscal
quarters most recently ended prior to the date of such Restricted Payment
for which financial statements of the Borrower and its Subsidiaries are
available, under the assumption that such Restricted Payments shall have
occurred at the beginning of the applicable period; and"
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2.19. Transactions with Affiliates. Section 6.07(d)(i) of the Credit
Agreement shall be amended and restated to read in its entirety as follows:
"(i) the aggregate amount paid by the Borrower and its Restricted
Subsidiaries in respect of such reimbursement (x) during any period when
such common parent is General Motors or Xxxxxx, shall not exceed the
aggregate amount of Federal, state and local income taxes the Borrower and
its Subsidiaries would have been required to pay in the event they were a
separate affiliated group with the Borrower being the common parent for
such period and all prior periods (such taxes to be determined after
giving effect to any net operating losses which would have been available
to such separate affiliated group regardless of whether such net operating
losses were used to offset income of other members of the group of which
General Motors or Xxxxxx was the common parent) and (y) during any period
when such common parent is any other Person, shall not exceed the
aggregate amount of such taxes the Borrower and its Subsidiaries would
have been required to pay in the event they were a separate affiliated
group with the Borrower being the common parent for such period and all
prior periods after the date such other Person became such common parent
(such taxes to be determined after giving effect to any net operating
losses which would have been available to, and usable by, such separate
affiliated group regardless of whether such net operating losses were used
to offset income of other members of the group of which such other Person
was the common parent) and"
2.20. Capital Expenditures. Section 6.10(d) of the Credit Agreement
shall be amended and restated to read in its entirety as follows:
"(d) Capital Expenditures. The Borrower will not permit the
aggregate amount of Capital Expenditures by the Borrower and its
Restricted Subsidiaries to exceed the following respective amounts for the
following respective fiscal years:
Fiscal Year Ending Amount
------------------ ------
December 31, 2002 $425,000,000
December 31, 2003 $300,000,000
December 31, 2004 $300,000,000
December 31, 2005 $300,000,000
December 31, 2006 $300,000,000
December 31, 2007 $300,000,000
December 31, 2008 $300,000,000
December 31, 2009 $300,000,000
December 31, 2010 $300,000,000
If the aggregate amount of Capital Expenditures for any period set forth
in the schedule above shall be less than the amount set forth opposite
such period in the schedule above, then the shortfall shall be added to
the amount of Capital Expenditures permitted for the immediately
succeeding (but not any other) period, except that any such amount added
to such immediately succeeding period that is not expended during such
period may (but
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only so long as the same are applied to Capital Expenditures in connection
with the purchase or construction of Satellites) be applied to Capital
Expenditures in the next following period. By way of illustration,
permitted amounts not expended in 2002 may be carried forward to 2003 and,
to the extent applied to the purchase or construction of Satellites, may
be carried forward to 2004."
2.21. Successors and Assigns. Section 9.04(b)(iii) of the Credit
Agreement shall be amended and restated to read in its entirety as follows:
"(iii) except in the case of an assignment to a Lender or an
Affiliate (or Approved Fund) of a Lender or an assignment of the entire
remaining amount of the assigning Lender's Commitment(s), the amount of
the Commitment(s) 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 (in the case of the Revolving Credit Commitments) or
$1,000,000 (in the case of the Tranche A, Tranche B or Tranche B1 Term
Loan Commitments) unless each of the Borrower and the Administrative Agent
otherwise consent,"
Section 3. Representations and Warranties. Each Obligor represents
and warrants to the Lenders and the Administrative Agent that the
representations and warranties set forth in Article III of the Credit Agreement
as amended hereby are true and complete on the date hereof as if made on and as
of the date hereof (or, if any such representation or warranty is expressly
stated to have been made as of a specific date, as of such specific date) and as
if each reference in said Article III to "this Agreement" included reference to
this Amendment.
Section 4. Conditions to Effectiveness. The effectiveness of the
amendments to the Credit Agreement set forth in Section 2, and the obligation of
each Tranche B1 Term Loan Lender to make its Tranche B1 Term Loan under the
Credit Agreement as amended hereby, is subject to the satisfaction of the
following conditions precedent or, as applicable, to the receipt by the
Administrative Agent (with sufficient copies for each of the Lenders) of the
following documents, in each case (unless otherwise specified) in a manner in
form and substance satisfactory to the Administrative Agent (the date of such
satisfaction herein referred to as the "Amendment No. 2 Effective Date"):
(a) Amendment No. 2. Duly executed and delivered counterparts of
this Amendment from each Obligor and the Administrative Agent, duly
executed and delivered Lender Addenda from the Tranche B1 Term Loan
Lenders for aggregate Tranche B1 Term Loan Commitments in an amount equal
to $650,000,000 and duly executed and delivered authorizations to the
Administrative Agent from Existing Lenders constituting the Required
Lenders, the Required Tranche A Term Loan Lenders and the Required Tranche
B Term Loan Lenders to execute and deliver this Amendment No. 2.
(b) Payment of Fees. The payment by the Borrower to the
Administrative Agent for the account of the Tranche B1 Lenders of such
amendment, upfront and other fees as
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have been agreed to be paid in connection with the making of the Tranche
B1 Loans under the Credit Agreement contemplated hereby.
(c) Corporate Documents. Such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
borrowings under the Credit Agreement in respect of the Tranche B1 Term
Loans and any other legal matters relating to the Obligors (including
board of director resolutions and evidence of the incumbency of officers),
the Credit Agreement as amended by this Amendment and the Tranche B1 Term
Loans, all in form and substance satisfactory to the Administrative Agent
and its counsel.
(d) Officer's Certificate. A certificate, dated the Amendment No. 2
Effective Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming compliance with the
conditions set forth in the lettered clauses of the first sentence of
Section 4.02 of the Credit Agreement.
(e) Opinion of Counsel. An opinion, dated the Amendment No. 2
Effective Date, of Xxxxxx, Xxxx & Xxxxxxxx LLP, special New York counsel
to the Obligors, covering the matters covered by clauses 1 through and
including 6 of the opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP delivered in
connection with the Credit Agreement with respect to matters relating to
the Tranche B1 Term Loans, and in each case covering such other matters as
the Administrative Agent may reasonably request, including, without
limitation, matters related to the Security Documents (and each Obligor
hereby instructs such counsel to deliver each such opinion to the Lenders
and to the Administrative Agent).
(f) Opinion of Special New York Counsel to CSFB. An opinion, dated
the Amendment No. 2 Effective Date, of Milbank, Tweed, Xxxxxx & XxXxxx
LLP, special New York counsel to the Joint Arrangers, substantially in the
form of Exhibit I of the Credit Agreement (and CSFB hereby instructs such
counsel to deliver such opinion to the Lenders).
(g) Additional Security Documents.
(i) All necessary modifications or confirmations to the
Security Documents in effect on the Amendment No. 2 Effective Date
duly executed and delivered so as to ensure the continued
effectiveness of the security interests created thereby and the
spreading of the liens created thereby to cover the additional
obligations to be incurred by the Obligors on the Amendment No. 2
Effective Date, in each case covering such matters as shall be
requested by the Administrative Agent, provided, it being understood
that the Tranche B1 Term Loan Lenders will not benefit from the
Mortgage over the property located in Brooklyn, New York;
-16-
(ii) Evidence that such other action as shall be necessary to
perfect or record the liens contemplated by the foregoing clause (i)
under applicable law shall have been taken.
(h) Repayment of Tranche B Term Loans. The principal of and interest
on, and all other amounts owing in respect of the Tranche B Term Loans
(including, without limitation, any amounts owing under Section 2.15 of
the Credit Agreement), shall have been (or be concurrently) paid in full.
(i) Other Documents. Such other documents as the Administrative
Agent, any Lender or special New York counsel to the Administrative Agent
may reasonably request.
Section 5. Delivery of Lender Addenda. Each Tranche B1 Term Loan
Lender shall become a party to this Amendment by delivering to the
Administrative Agent a Lender Addendum duly executed by such Tranche B1 Term
Loan Lender, the Obligors and the Administrative Agent.
Section 6. Confirmation of Guarantee Agreement and Security
Documents. Each of the Subsidiary Guarantors hereby confirms that the
obligations of the Borrower in respect of the Tranche B1 Term Loans under the
Credit Agreement shall be entitled to the benefits of the guarantee set forth in
the Guarantee Agreement (and shall constitute "Guaranteed Obligations" under the
Guarantee Agreement), and each of the Obligors hereby confirms that the
obligations of the Obligors in respect of the Tranche B1 Term Loans under the
Credit Agreement as amended hereby (in the case of the Borrower), and in respect
of its guarantee under the Guarantee Agreement (in the case of the Subsidiary
Guarantor), shall be entitled to the benefits of the collateral security
provided by the Security Documents (and shall constitute "Secured Obligations"
under each Security Agreement).
Section 7. Miscellaneous. Except as herein provided, the Credit
Agreement shall remain unchanged and in full force and effect. This Amendment
may be executed in any number of counterparts, all of which taken together shall
constitute one and the same amendatory instrument and any of the parties hereto
may execute this Amendment by signing any such counterpart. This Amendment shall
be governed by, and construed in accordance with, the law of the State of New
York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
PANAMSAT CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Title: Executive Vice President and
Chief Financial Officer
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
By: /s/ Sovonna Day-Xxxxx
-----------------------------------
Title: Vice President
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
By: /s/ Xxx Xxxxx
-----------------------------------
Title: Director
Each of the Subsidiary Guarantors, by its signature below, hereby
consents to the foregoing Amendment No. 2 for purposes of the Guarantee
Agreement.
ESATEL COMMUNICATIONS, INC. NET/36, INC.
By /s/ Xxxxx X. Xxxxxxxx By /s/ Xxxxx X. Xxxxxxxx
------------------------------------ ------------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President - Title: Executive Vice President -
Corporate Development and Corporate Development and
Corporate Secretary Corporate Secretary
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PANAMSAT ASIA CARRIER PANAMSAT CAPITAL CORPORATION
SERVICES, INC.
By /s/ Xxxxxxx X. Xxxxxxx By /s/ Xxxxx X. Xxxxxxxx
------------------------------------ ------------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President and Title: Executive Vice President -
Chief Financial Officer Corporate Development,
General Counsel and
Corporate Secretary
PANAMSAT CARRIER SERVICES, INC. PANAMSAT COMMUNICATIONS
CARRIER SERVICES, INC.
By /s/ Xxxxxxx X. Xxxxxxx By /s/ Xxxxx X. Xxxxxxxx
------------------------------------ ------------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President and Title: Executive Vice President -
Chief Financial Officer Corporate Development,
General Counsel and
Corporate Secretary
PANAMSAT COMMUNICATIONS PANAMSAT COMMUNICATIONS
JAPAN, INC. SERVICES, INC.
By /s/ Xxxxxxx X. Xxxxxxx By /s/ Xxxxx X. Xxxxxxxx
------------------------------------ ------------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President and Title: Executive Vice President -
Chief Financial Officer Corporate Development,
General Counsel and
Corporate Secretary
PANAMSAT INDIA, INC. PANAMSAT INDIA MARKETING, L.L.C.
By /s/ Xxxxxxx X. Xxxxxxx By /s/ Xxxxx X. Xxxxxxxx
------------------------------------ ------------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President and Title: Manager
Chief Financial Officer
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PANAMSAT INTERNATIONAL PANAMSAT INTERNATIONAL
HOLDINGS, LLC SALES, INC.
By /s/ Xxxxxxx X. Xxxxxxx By /s/ Xxxxx X. Xxxxxxxx
------------------------------------ ------------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President and Title: Executive Vice President -
Chief Financial Officer Corporate Development,
General Counsel and
Corporate Secretary
PANAMSAT INTERNATIONAL PANAMSAT INTERNATIONAL
SYSTEMS LIMITED SYSTEMS, LLC
By /s/ Xxxxxxx X. Xxxxxxx By /s/ Xxxxx X. Xxxxxxxx
------------------------------------ ------------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President and Title: Manager
Chief Financial Officer
PANAMSAT INTERNATIONAL PANAMSAT LICENSEE CORP.
SYSTEMS MARKETING, LLC
By /s/ Xxxxx X. Xxxxxxxx By /s/ Xxxxx X. Xxxxxxxx
------------------------------------ ------------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxxxxx
Title: Manager Title: Executive Vice President -
Corporate Development,
General Counsel and
Corporate Secretary
PANAMSAT MARKETING PAS INTERNATIONAL
CORPORATION EMPLOYMENT, INC.
By /s/ Xxxxxxx X. Xxxxxxx By /s/ Xxxxx X. Xxxxxxxx
------------------------------------ ------------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President and Title: Executive Vice President -
Chief Financial Officer Corporate Development,
General Counsel and
Corporate Secretary
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PAS INTERNATIONAL LLC SERVICE AND EQUIPMENT
CORPORATION
By /s/ Xxxxx X. Xxxxxxxx By /s/ Xxxxxxx X. Xxxxxxx
------------------------------------ ------------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Manager Title: Executive Vice President and
Chief Financial Officer
SOUTHERN SATELLITE CORP. SOUTHERN SATELLITE
LICENSEE CORPORATION
By /s/ Xxxxx X. Xxxxxxxx By /s/ Xxxxxxx X. Xxxxxxx
------------------------------------ ------------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President - Title: Executive Vice President and
Corporate Development, Chief Financial Officer
General Counsel and
Corporate Secretary
USHI, LLC
By /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President -
Corporate Development,
General Counsel and
Corporate Secretary
