Exhibit 99.7
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$75,000,000
SECOND LIEN CREDIT AGREEMENT
Dated as of April 22, 2005,
Among
XXXXXX NETWORK SYSTEMS, LLC,
as Borrower,
THE LENDERS PARTY HERETO,
BEAR XXXXXXX CORPORATE LENDING INC.,
as Administrative Agent,
JPMORGAN CHASE BANK, N.A.,
as Syndication Agent
-----------------
X.X. XXXXXX SECURITIES INC.
and
BEAR, XXXXXXX & CO. INC.,
as Joint Lead Arrangers and Joint Bookrunners
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TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.01. Defined Terms...................................................1
SECTION 1.02. Terms Generally................................................37
SECTION 1.03. Effectuation of Transfers......................................37
ARTICLE II
The Credits
SECTION 2.01. Commitments....................................................38
SECTION 2.02. Loans and Borrowings...........................................38
SECTION 2.03. Requests for Borrowings........................................38
SECTION 2.04. [Reserved].....................................................39
SECTION 2.05. [Reserved].....................................................39
SECTION 2.06. Funding of Borrowings..........................................39
SECTION 2.07. Interest Elections.............................................39
SECTION 2.08. [Reserved].....................................................40
SECTION 2.09. Repayment of Loans; Evidence of Debt...........................40
SECTION 2.10. Repayment of Loans.............................................41
SECTION 2.11. Prepayment of Loans............................................42
SECTION 2.12. Administrative Agent Fees......................................43
SECTION 2.13. Interest.......................................................43
SECTION 2.14. Alternate Rate of Interest.....................................43
SECTION 2.15. Increased Costs................................................44
SECTION 2.16. Break Funding Payments.........................................44
SECTION 2.17. Taxes..........................................................45
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs....46
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.................47
SECTION 2.20. [Reserved].....................................................48
SECTION 2.21. Illegality.....................................................48
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers...........................................48
SECTION 3.02. Authorization..................................................49
SECTION 3.03. Enforceability.................................................49
SECTION 3.04. Governmental Approvals.........................................49
SECTION 3.05. Financial Statements...........................................50
SECTION 3.06. No Material Adverse Change or Material Adverse Effect..........50
SECTION 3.07. Title to Properties; Possession Under Leases...................51
SECTION 3.08. Subsidiaries...................................................51
SECTION 3.09. Litigation; Compliance with Laws...............................51
SECTION 3.10. Federal Reserve Regulations....................................52
SECTION 3.11. Investment Company Act: Public Utility Holding Company Act.....52
SECTION 3.12. Use of Proceeds................................................52
SECTION 3.13. Tax Returns....................................................52
SECTION 3.14. No Material Misstatements......................................53
SECTION 3.15. Employee Benefit Plans.........................................53
SECTION 3.16. Environmental Matters..........................................54
SECTION 3.17. Security Documents.............................................54
SECTION 3.18. Location of Real Property......................................55
SECTION 3.19. Solvency.......................................................55
SECTION 3.20. Labor Matters..................................................56
SECTION 3.21. Insurance......................................................56
SECTION 3.22. Representations and Warranties in Transaction Agreement........56
SECTION 3.23. Communications Licenses, etc...................................56
ARTICLE IV
Conditions of Lending
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties..........................60
SECTION 5.02. Insurance.....................................................61
SECTION 5.03. Taxes.........................................................62
SECTION 5.04. Financial Statements, Reports, etc............................63
SECTION 5.05. Litigation and Other Notices..................................65
SECTION 5.06. Compliance with Laws..........................................65
SECTION 5.07. Maintaining Records; Access to Properties and Inspections.....65
SECTION 5.08. Use of Proceeds...............................................65
SECTION 5.09. Compliance with Environmental Laws............................65
SECTION 5.10. Further Assurances; Additional Mortgages......................66
SECTION 5.11. Fiscal Year; Accounting.......................................68
SECTION 5.12. Rating........................................................68
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness..................................................68
SECTION 6.02. Liens.........................................................71
SECTION 6.03. Sale and Lease-Back Transactions..............................74
SECTION 6.04. Investments, Loans and Advances...............................74
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions.....76
SECTION 6.06. Dividends and Distributions...................................78
SECTION 6.07. Transactions with Affiliates..................................80
SECTION 6.08. Business of the Borrower and the Subsidiaries.................82
SECTION 6.09. Limitation on Modifications of Indebtedness; Modifications
of Certificate of Incorporation, By-Laws and Certain Other
Agreements; etc...............................................82
SECTION 6.10. [Reserved]....................................................83
SECTION 6.11. [Reserved]....................................................83
SECTION 6.12. First Lien Leverage Ratio.....................................84
SECTION 6.13. Debt to Adjusted EBITDA Ratio.................................84
SECTION 6.14. Swap Agreements...............................................85
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default.............................................85
SECTION 7.02. Exclusion of Immaterial Subsidiaries..........................87
SECTION 7.03. Borrower's Right to Cure......................................87
ARTICLE VIII
The Agents
SECTION 8.01. Appointment of the Administrative Agent........................88
SECTION 8.02. Delegation of Duties...........................................88
SECTION 8.03. Exculpatory Provisions.........................................88
SECTION 8.04. Reliance by Administrative Agent...............................89
SECTION 8.05. Notice of Default..............................................89
SECTION 8.06. Non-Reliance on Agents and Other Lenders.......................89
SECTION 8.07. Indemnification................................................90
SECTION 8.08. Agent in Its Individual Capacity...............................90
SECTION 8.09. Successor Administrative Agent.................................90
SECTION 8.10. Syndication Agent..............................................91
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices........................................................91
SECTION 9.02. Survival of Agreement..........................................91
SECTION 9.03. Binding Effect.................................................92
SECTION 9.04. Successors and Assigns.........................................92
SECTION 9.05. Expenses; Indemnity............................................94
SECTION 9.06. Right of Set-off...............................................95
SECTION 9.07. Applicable Law.................................................96
SECTION 9.08. Waivers; Amendment.............................................96
SECTION 9.09. Interest Rate Limitation.......................................97
SECTION 9.10. Entire Agreement...............................................98
SECTION 9.11. WAIVER OF JURY TRIAL...........................................98
SECTION 9.12. Severability...................................................98
SECTION 9.13. Counterparts...................................................98
SECTION 9.14. Headings.......................................................98
SECTION 9.15. Jurisdiction; Consent to Service of Process....................98
SECTION 9.16. Confidentiality................................................99
SECTION 9.17. Direct Website Communications..................................99
SECTION 9.18. Release of Liens and Guarantees...............................100
SECTION 9.19. USA PATRIOT ACT...............................................101
SECTION 9.20. Regulatory Matters............................................101
Exhibits and Schedules
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Administrative Questionnaire
Exhibit C Form of Borrowing Request
Exhibit D Form of Mortgage
Exhibit E Form of Second Lien Collateral Agreement
Exhibit F Form of Solvency Certificate
Exhibit G Form of Real Property Officers' Certificate
Exhibit H Form of Parent Pledge Agreement
Exhibit I Form of Intercreditor Agreement
Schedule 1.01(a) Certain U.S. Subsidiaries
Schedule 1.01(b) Mortgaged Properties
Schedule 1.01(c) Closing Date First Tier Foreign Subsidiaries
Schedule 2.01 Commitments
Schedule 3.01 Organization and Good Standing
Schedule 3.04 Governmental Approvals
Schedule 3.07(b) Possession under Leases
Schedule 3.07(c) Intellectual Property
Schedule 3.08(a) Subsidiaries
Schedule 3.08(b) Subscriptions
Schedule 3.09 Litigation
Schedule 3.13 Taxes
Schedule 3.16 Environmental Matters
Schedule 3.20 Labor Matters
Schedule 3.21 Insurance
Schedule 3.23 Communications Licenses
Schedule 4.02(e) Local U.S. and/or Foreign Counsel
Schedule 5.10(h) Post-Closing First Tier Foreign Subsidiaries
Schedule 6.01 Indebtedness
Schedule 6.02(a) Liens
Schedule 6.04 Investments
Schedule 6.05 Asset Sales
Schedule 6.07 Transactions with Affiliates
SECOND LIEN CREDIT AGREEMENT dated as of April 22, 2005
(this "Agreement"), among XXXXXX NETWORK SYSTEMS LLC, a Delaware limited
liability company (the "Borrower"), the LENDERS party hereto from time to
time, BEAR, XXXXXXX CORPORATE LENDING INC., as administrative agent (in such
capacity, the "Administrative Agent") for the Lenders, JPMORGAN CHASE BANK,
N.A., as syndication agent (in such capacity, the "Syndication Agent"), and
JPMORGAN SECURITIES INC. and BEAR, XXXXXXX & CO. INC., as joint lead arrangers
and joint book managers (in such capacity, the "Joint Lead Arrangers").
WHEREAS, Xxxxxx Network Systems, Inc., a Delaware
corporation ("HNS"), has indirectly formed the Borrower, to be jointly owned
as of the date hereof by HNS and SkyTerra Communications, Inc., a Delaware
corporation ("SkyTerra"; and together with HNS and their successors and
assigns, the "Parents") (it being understood that if, after the date hereof,
SkyTerra assigns or otherwise transfers its interests in the Borrower to any
of its Subsidiaries, "SkyTerra" shall thereafter mean such Subsidiary), for
the purpose of entering into that certain Contribution and Membership Interest
Purchase Agreement (the "Transaction Agreement") dated December 3, 2004, as
amended on January 28, 2005, with SkyTerra, The DIRECTV Group, Inc., a
Delaware corporation ("DIRECTV"), and HNS (HNS and DIRECTV collectively, the
"Sellers") as amended, supplemented or otherwise modified from time to time in
accordance with the provisions hereof, pursuant to which the Borrower will
acquire (the "Acquisition") certain businesses and assets of the Sellers
(including the Contributed SPACEWAY Assets which relate to Ka-band satellites
identified as SPACEWAY ("SPACEWAY")) (collectively, the "Acquired Business");
and
WHEREAS, the Borrower is entering into the Credit Agreement,
dated as of the date hereof (the "First Lien Credit Agreement"), with the
several banks and other financial institutions or entities parties thereto and
JPMorgan Chase Bank, N.A., as administrative agent, Bear Xxxxxxx Corporate
Lending Inc., as syndication agent, and X.X. Xxxxxx Securities Inc. and Bear,
Xxxxxxx & Co. Inc., as joint lead arrangers and bookrunners;
WHEREAS, in connection with the consummation of the
Acquisition, the Borrower has requested the Lenders to extend credit in the
form of Loans on the Closing Date, in an aggregate principal amount not in
excess of $75 million;
NOW, THEREFORE, the Lenders are willing to extend such
credit to the Borrower on the terms and subject to the conditions set forth
herein. Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR" shall mean for any day, a rate per annum equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect
on such day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean the
rate of interest per annum publicly announced from time to time by JPMorgan
Chase Bank, N.A. as its prime 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 JPMorgan Chase Bank, N.A. in connection with extensions of credit
to debtors); "Base CD Rate" shall mean the sum of (a) the product of (i) the
Three-Month Secondary CD Rate and (ii) a fraction, the numerator of which is
one and the denominator of which is one minus the CD Reserve Percentage and
(b) the CD Assessment Rate; and "Three-Month Secondary CD Rate" shall mean,
for any day, the secondary market rate for three-month certificates of deposit
reported as being in effect on such day (or, if such day shall not be a
Business Day, the next preceding Business Day) by the Board through the public
information telephone line of the Federal Reserve Bank of New York (which rate
will, under the current practices of the Board, be published in Federal
Reserve Statistical Release H.15(519) during the week following such day), or,
if such rate shall not be so reported on such day or such next preceding
Business Day, the average of the secondary market quotations for three-month
certificates of deposit of major money center banks in New York City received
at approximately 10:00 A.M., New York City time, on such day (or, if such day
shall not be a Business Day, on the next preceding Business Day) by JPMorgan
Chase Bank, N.A. from three New York City negotiable certificate of deposit
dealers of recognized standing selected by it. Any change in the ABR due to a
change in the Prime Rate, the Three-Month Secondary CD 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, the Three-Month Secondary CD
Rate or the Federal Funds Effective Rate, respectively.
"ABR Borrowing" shall mean a Borrowing comprised of ABR
Loans.
"ABR Loan" shall mean any Loan bearing interest at a rate
determined by reference to the ABR in accordance with the provisions of
Article II.
"Acceptable Exclusions" shall mean
(a) war, invasion or hostile or warlike action in time
of peace or war, including action in hindering, combating or defending against
an actual, impending or expected attack by:
(i) any government or sovereign power (de jure or de
facto),
(ii) any authority maintaining or using a military,
naval or air force,
(iii) a military, naval or air force, or
(iv) any agent of any such government, power, authority
or force;
(b) any anti-satellite device, or device employing
atomic or nuclear fission or fusion, or device employing laser or directed
energy beams;
(c) insurrection, strikes, labor disturbances, riots,
civil commotion, rebellion, revolution, civil war, usurpation, or action taken
by a government authority in hindering, combating or defending against such an
occurrence, whether there be declaration of war or not;
(d) confiscation, nationalization, seizure, restraint,
detention, appropriation, requisition for title or use by or under the order
of any government or governmental authority or agent (whether secret or
otherwise or whether civil, military or de facto) or public or local authority
or agency;
(e). nuclear reaction, nuclear radiation, or radioactive
contamination of any nature, whether such loss or damage be direct or
indirect, except for radiation naturally occurring in the space environment;
(f) electromagnetic or radio frequency interference,
except for physical damage to the Satellite directly resulting from such
interference;
(g) willful or intentional acts of the directors or
officers of the named insured, acting within the scope of their duties,
designed to cause loss or failure of the Satellite;
(h) an act of one or more individuals, whether or not
agents of a sovereign power, for political or terrorist purposes and whether
the loss, damage or failure resulting therefrom is accidental or intentional;
(i) any unlawful seizure or wrongful exercise of
control of the Satellite made by any individual or individuals acting for
political or terrorist purposes;
(j) loss of revenue, incidental damages or consequential
loss;
(k) extra expenses, other than the expenses insured
under such policy;
(l) third party liability;
(m) loss of a redundant component(s) that does not cause
a transponder failure; and
(n) such other similar exclusions or modifications to
the foregoing exclusions as may be customary for policies of such type as of
the date of issuance or renewal of such coverage.
"Acquired Assets" shall mean (a) the total purchase price
of assets acquired pursuant to a Permitted Business Acquisition during any
fiscal year determined in accordance with GAAP (the "Specified Amount"),
provided that if such Permitted Business Acquisition is not consummated during
the first quarter of a fiscal year, Acquired Assets for such fiscal year shall
be determined by multiplying the Specified Amount by (i) 0.75 if such
Permitted Business Acquisition is consummated during the second quarter of
such fiscal year, (ii) 0.50 if such Permitted Business Acquisition is
consummated during the third quarter of such fiscal year and (iii) 0.25 if
such Permitted Business Acquisition is consummated during the fourth quarter
of such fiscal year and (b) with respect to any fiscal year occurring after
such Permitted Business Acquisition, the Specified Amount.
"Acquired Assets Amount" shall have the meaning assigned to
such term in Section 6.10(a).
"Acquired Business" shall have the meaning assigned to such
term in the first recital hereto.
"Acquisition" shall have the meaning assigned to such term
in the first recital hereto.
"Added Historical Adjustment" shall mean the writeoff of
certain accounts receivable and capitalized software and the elimination of
payroll and benefits reflective of headcount reductions for purposes of
calculating Adjusted EBITDA, in an aggregate amount not to exceed $24,866,000
and as further described in the Offering Memorandum, but only to the extent
such writeoff and/or elimination occurred in the consecutive four quarter
period referred to in the definition of Debt to Adjusted EBITDA Ratio.
"Added Projected Adjustment" shall mean with respect to any
Person, without duplication and solely to the extent the calculation of
Adjusted EBITDA includes any period commencing on April 1, 2004 and ending on
the Closing Date, the sum of (a) payroll and benefits costs associated with
employees terminated (voluntarily or involuntarily) in connection with the
SPACEWAY program realignment and other restructuring initiatives as if such
employees had been terminated on April 1, 2004, plus (b) the sum of (i) an
assumed rate of cost recovery to the Borrower and its Subsidiaries equal to
$3.0 million per calendar quarter (to be calculated on a pro rata basis for
any period less than one quarter) from DIRECTV for services performed under
the SPACEWAY Services Agreement and (ii) the reduction in non-labor costs from
realignment of the SPACEWAY program, in each case as if the SPACEWAY Services
Agreement had been executed and the realignment of the SPACEWAY program had
been implemented on April 1, 2004; provided that in the event the definition
of Debt to Adjusted EBITDA Ratio requires a calculation of Adjusted EBITDA for
the consecutive four quarter period commencing January 1, 2004, the Added
Projected Adjustment shall equal $16,042,000. The calculation of the Added
Projected Adjustment shall be performed in good faith by a Financial Officer
of the Borrower in a manner consistent with the presentation of "Projected net
reduction of SPACEWAY operating costs" set forth in the Offering Memorandum
and such calculation shall be set forth in an officers' certificate signed by
a Financial Officer.
"Additional Mortgage" shall have the meaning assigned to
such term in Section 5.10(c).
"Adjusted EBITDA" shall mean, with respect to any Person for
any period, the Consolidated Net Income of such Person for such period plus,
without duplication, to the extent the same was deducted in calculating
Consolidated Net Income:
(a) Consolidated Taxes; plus
(b) Consolidated Interest Expense; plus
(c) Consolidated Non-cash Charges; plus
(d) the amount of any restructuring charges or expenses
(which, for the avoidance of doubt, shall include retention, severance,
systems establishment costs or excess pension charges); plus
(e) the amount of management, monitoring, consulting
and advisory fees and related expenses paid to the Permitted Holders (or any
accruals relating to such fees and related expenses) during such period;
provided that such amount shall not exceed in any four quarter period $1.0
million; plus
(f) Added Historical Adjustment; plus
(g) Added Projected Adjustment;
less, without duplication,
(h) non-cash items increasing Consolidated Net Income
for such period (excluding any items which represent the reversal of any
accrual of, or cash reserve for, anticipated cash charges in any prior period
and any items for which cash was received in any prior period); less
(i) Subtracted Historical Adjustment.
For purposes of determining Adjusted EBITDA for determining
compliance with Sections 6.12 and 6.13 for any period that includes any of the
fiscal quarters ended in 2004, Adjusted EBITDA shall be calculated on a
quarterly basis in good faith by management of the Borrower in a manner
consistent with the calculation in the Offering Memorandum.
"Adjusted LIBO Rate" shall mean, with respect to any
Eurocurrency Borrowing for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO
Rate in effect for such Interest Period divided by (b) one minus the Statutory
Reserves applicable to such Eurocurrency Borrowing, if any.
"Administrative Agent" shall have the meaning assigned to
such term in the introductory paragraph of this Agreement.
"Administrative Agent Fees" shall have the meaning assigned
to such term in Section 2.12.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit B.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), as used with
respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise.
"Agent Parties" shall have the meaning assigned to such term
in Section 9.17(c).
"Agents" shall mean the Administrative Agent and the
Syndication Agent.
"Agreement" shall have the meaning assigned to such term in
the introductory paragraph of this Agreement and shall include all Exhibits
and Schedules hereto.
"Alpine" shall mean Alpine Capital Corporation and any
successor.
"Apollo" shall mean Apollo Management, L.P. and its
Affiliates.
"Applicable Margin" shall mean for any day with respect to
any Loan, 5.50% per annum in the case of any Eurocurrency Loan and 4.50% per
annum in the case of any ABR Loan.
"Approved Fund" shall have the meaning assigned to such term
in Section 9.04(b).
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee, and accepted by the
Administrative Agent and the Borrower (if required by such assignment and
acceptance), in the form of Exhibit A or such other form as shall be approved
by the Administrative Agent.
"Available Cumulative Credit Amount" shall mean, on any date
of determination, an amount not less than zero in the aggregate equal to (a)
the Cumulative Credit, minus (b) 2.0 times Cumulative Interest Expense, minus
(c) any amounts thereof used to make Investments pursuant to Section
6.04(i)(ii) after the Closing Date and on or prior to such date, minus (d) the
cumulative amount of dividends paid and distributions made pursuant to Section
6.06(f)(ii), minus (e) any amounts thereof used to redeem or repay
Indebtedness pursuant to Section 6.09(b).
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States of America.
"Board of Directors" shall mean as to any Person, the board
of directors or managers, as applicable, of such Person (or, if such Person is
a partnership, the board of directors or other governing body of the general
partner of such Person) or any duly authorized committee thereof.
"Borrower" shall have the meaning assigned to such term in
the preamble hereto.
"Borrowing" shall mean a group of Loans made on a single
date and, in the case of Eurocurrency Loans, as to which a single Interest
Period is in effect.
"Borrowing Minimum" shall mean $500,000.
"Borrowing Multiple" shall mean $100,000.
"Borrowing Request" shall mean a request by a Borrower in
accordance with the terms of Section 2.03 and substantially in the form of
Exhibit C.
"Business Day" shall mean any day that is not a Saturday,
Sunday or other day on which commercial banks in New York City are authorized
or required by law to remain closed; provided that when used in connection
with a Eurocurrency Loan, the term "Business Day" shall also exclude any day
on which banks are not open for dealings in deposits in the applicable
currency in the London interbank market.
"Capital Expenditures" shall mean, for any person in respect
of any period, the aggregate of all expenditures incurred by such person
during such period that, in accordance with GAAP, are or should be included in
"additions to property, plant or equipment" or similar items reflected in the
statement of cash flows of such person, provided, however, that Capital
Expenditures for the Borrower and the Subsidiaries shall not include:
(a) expenditures to the extent they are made with funds
that would have constituted Net Proceeds under clause (a) of the definition of
the term "Net Proceeds" (but that will not constitute Net Proceeds as a result
of the first proviso to such clause (a)),
(b) expenditures of proceeds of insurance settlements,
condemnation awards and other settlements in respect of lost, destroyed,
damaged or condemned assets, equipment or other property to the extent such
expenditures are made to replace or repair such lost, destroyed, damaged or
condemned assets, equipment or other property or otherwise to acquire,
maintain, develop, construct, improve, upgrade or repair assets or properties
useful in the business of the Borrower and the Subsidiaries within 12 months
of receipt of such proceeds,
(c) interest capitalized during such period,
(d) expenditures that are accounted for as capital
expenditures of such person and that actually are paid for by a third party
(excluding the Borrower or any Subsidiary thereof) and for which neither the
Borrower nor any Subsidiary thereof has provided or is required to provide or
incur, directly or indirectly, any consideration or obligation to such third
party or any other person (whether before, during or after such period),
(e) the book value of any asset owned by such person
prior to or during such period to the extent that such book value is included
as a capital expenditure during such period as a result of such person reusing
or beginning to reuse such asset during such period without a corresponding
expenditure actually having been made in such period, provided that (i) any
expenditure necessary in order to permit such asset to be reused shall be
included as a Capital Expenditure during the period that such expenditure
actually is made and (ii) such book value shall have been included in Capital
Expenditures when such asset was originally acquired,
(f) the purchase price of equipment purchased during
such period to the extent the consideration therefor consists of any
combination of (i) used or surplus equipment traded in at the time of such
purchase and (ii) the proceeds of a concurrent sale of used or surplus
equipment, in each case, in the ordinary course of business,
(g) Investments in respect of a Permitted Business
Acquisition, or
(h) the Acquisition (including, without limitation,
such transactions contemplated by the Transaction Agreement to be consummated
after the Closing Date).
"Capital Stock" shall mean:
(a) in the case of a corporation or a company, corporate
stock or shares;
(b) in the case of an association or business entity,
any and all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;
(c) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or limited); and
(d) any other interest or participation that confers on
a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"Capitalized Lease Obligation" shall mean, at the time any
determination thereof is to be made, the amount of the liability in respect of
a capital lease that would at such time be required to be capitalized and
reflected as a liability on a balance sheet (excluding the footnotes thereto)
in accordance with GAAP.
"Cash Interest Expense" shall mean, with respect to the
Borrower and the Subsidiaries on a consolidated basis for any period,
Consolidated Interest Expense for such period, less the sum of (a) pay-in-kind
Consolidated Interest Expense or other noncash Consolidated Interest Expense
(including as a result of the effects of purchase accounting), (b) to the
extent included in Consolidated Interest Expense, the amortization of any
financing fees paid by, or on behalf of, the Borrower or any Subsidiary,
including such fees paid in connection with the Transactions, (c) the
amortization of debt discounts, if any, or fees in respect of Swap Agreements
and (d) to the extent not deducted from Consolidated Interest, cash interest
income of the Borrower and its Subsidiaries for such period; provided that
Cash Interest Expense shall exclude any one-time financing fees, including
those paid in connection with the Transactions or any amendment of this
Agreement.
"CD Assessment Rate" shall mean for any day as applied to
any ABR Loan, the annual assessment rate in effect on such day that is payable
by a member of the Bank Insurance Fund maintained by the Federal Deposit
Insurance Corporation (the "FDIC") classified as well-capitalized and within
supervisory subgroup "B" (or a comparable successor assessment risk
classification) within the meaning of 12 C.F.R. ss. 327.4 (or any successor
provision) to the FDIC (or any successor) for the FDIC's (or such successor's)
insuring time deposits at offices of such institution in the United States.
"CD Reserve Percentage" shall mean for any day as applied to
any ABR Loan, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Board, for determining the maximum reserve
requirement for a Depositary Institution (as defined in Regulation D of the
Board as in effect from time to time) in respect of new non-personal time
deposits in Dollars having a maturity of 30 days or more.
A "Change in Control" shall be deemed to occur if:
(a) at any time prior to a Qualified IPO, (i) any
combination of Permitted Holders shall fail to own beneficially (within the
meaning of Rule 13d-5 of the Exchange Act as in effect on the Closing Date),
directly or indirectly, in the aggregate Equity Interests representing at
least 51% of (x) the aggregate ordinary voting power represented by the issued
and outstanding Equity Interests of the Borrower or (y) the common economic
interest represented by the issued and outstanding Equity Interests of the
Borrower or (ii) any Person, other than a Permitted Holder, shall become the
managing member of the Borrower; or
(b) at any time after a Qualified IPO, any Person or
"group" (within the meaning of Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, as in effect on the Closing Date), other than any
combination of the Permitted Holders, shall have acquired beneficial ownership
of 25% or more on a fully diluted basis of the voting or economic interest in
the Borrower's capital stock and the Permitted Holders shall own, directly or
indirectly, less than such Person or "group" on a fully diluted basis of the
economic and voting interest in Borrower's capital stock.
"Change in Law" shall mean (a) the adoption of any law, rule
or regulation after the Closing Date, (b) any change in law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the Closing Date or (c) compliance by any Lender (or, for
purposes of Section 2.15(b), by any Lending Office of such Lender or by such
Lender's holding company, if any) with any written request, guideline or
directive (whether or not having the force of law) of any Governmental
Authority made or issued after the Closing Date.
"Charges" shall have the meaning assigned to such term in
Section 9.09.
"Closing Date" shall mean the date on which the conditions
precedent set forth in Section 4 shall have been satisfied, which date shall
be not later than June 30, 2005.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral" shall mean all the "Collateral" as defined in
any Second Lien Security Document and shall also include the Mortgaged
Properties.
"Collateral and Guarantee Requirement" shall mean the
requirement that:
(a) on the Closing Date, the Administrative Agent shall
have received (I) from the Borrower and each Subsidiary Loan Party, a
counterpart of the Second Lien Collateral Agreement duly executed and
delivered on behalf of such person, (II) from each Parent, a counterpart of
the Parent Pledge Agreement duly executed and delivered on behalf of such
person and (III) from each Loan Party listed on Schedule 1.01(c), a
counterpart of a Foreign Pledge Agreement duly executed and delivered by such
Loan Party with respect to the amount of Equity Interests of each "first tier"
Foreign Subsidiary directly owned by such Loan Party and included on Schedule
1.01(c);
(b) on the Closing Date, the Administrative Agent shall
have received (I) a pledge of all the issued and outstanding Equity Interests
of (A) the Borrower and (B) each Domestic Subsidiary owned on the Closing Date
directly by or on behalf of the Borrower or any Subsidiary Loan Party and (II)
a pledge of 65% of the outstanding Equity Interests of each "first tier"
Foreign Subsidiary directly owned by the Borrower or a Subsidiary Loan Party;
and the Administrative Agent shall have received all certificates or other
instruments (if any) representing such Equity Interests, together with stock
powers or other instruments of transfer with respect thereto endorsed in
blank;
(c) on the Closing Date, all Indebtedness of the
Borrower and each Subsidiary having, in the case of each instance of
Indebtedness, an aggregate principal amount in excess of $500,000 (other than
(i) intercompany current liabilities incurred in the ordinary course of
business in connection with the cash management operations of the Borrower and
its Subsidiaries or (ii) to the extent that a pledge of such promissory note
or instrument would violate applicable law) that is owing to any Loan Party
and evidenced by a promissory note or an instrument shall have been pledged
pursuant to the Second Lien Collateral Agreement, and the First Lien
Administrative Agent shall have received all such promissory notes or
instruments, together with note powers or other instruments of transfer with
respect thereto endorsed in blank;
(d) in the case of any person that becomes a Subsidiary
Loan Party after the Closing Date, the Administrative Agent shall have
received a supplement to the Second Lien Collateral Agreement, in the form
specified therein, duly executed and delivered on behalf of such Subsidiary
Loan Party;
(e) in the case of any person that becomes a "first
tier" Material Foreign Subsidiary directly owned by the Borrower or a
Subsidiary Loan Party after the Closing Date, the Administrative Agent shall
have received, as promptly as practicable following a request by the
Administrative Agent, a Foreign Pledge Agreement, duly executed and delivered
by the direct parent company of such Foreign Subsidiary on behalf of such
Foreign Subsidiary;
(f) after the Closing Date, all the outstanding Equity
Interests of (A) any person that becomes a Subsidiary Loan Party after the
Closing Date and (B) subject to Section 5.10(g), all the Equity Interests that
are acquired by a Loan Party after the Closing Date, shall have been pledged
pursuant to the Second Lien Collateral Agreement (provided that with respect
to any Foreign Subsidiary in no event shall more than 65% of the issued and
outstanding Equity Interests thereof be pledged to secure Second Lien Credit
Agreement Obligations of the Borrower and only if such Foreign Subsidiary is
or becomes a Material Foreign Subsidiary), and the Administrative Agent (or,
to the extent provided in the Second Lien Collateral Agreement, the First Lien
Administrative Agent) shall have received all certificates or other
instruments (if any) representing such Equity Interests, together with stock
powers or other instruments of transfer with respect thereto endorsed in
blank;
(g) except as set forth pursuant to Section 3.04 or as
otherwise contemplated by any Second Lien Security Document, all documents and
instruments, including Uniform Commercial Code financing statements, required
by law or reasonably requested by the Administrative Agent to be filed,
registered or recorded to create the Liens intended to be created by the
Second Lien Security Documents (in each case, including any supplements
thereto) and perfect such Liens to the extent required by, and with the
priority required by, the Second Lien Security Documents, shall have been
filed, registered or recorded or delivered to the Administrative Agent for
filing, registration or the recording concurrently with, or promptly
following, the execution and delivery of each such Second Lien Security
Document;
(h) on the Closing Date, the Administrative Agent shall
have received (i) counterparts of each Mortgage to be entered into with
respect to each Mortgaged Property set forth on Schedule 1.01(b) duly executed
and delivered by the record owner of such Mortgaged Property, (ii) such other
documents as the Administrative Agent may reasonably request with respect to
any such Mortgage or Mortgaged Property and (iii) a Real Property Officers'
Certificate substantially in the form of Exhibit G attached hereto with
respect to each Mortgaged Property;
(i) on the Closing Date, or as soon as is practicable
not to exceed 60 days from the Closing Date, the Administrative Agent shall
have received (i) a policy or policies or marked-up unconditional binder of
title insurance or foreign equivalent thereof, as applicable, paid for by the
Borrower, issued by a nationally recognized title insurance company insuring
the Lien of each Mortgage to be entered into on the Closing Date as a valid
second Lien on the Mortgaged Property described therein, free of any other
Liens except as permitted by Section 6.02 and Liens arising by operation of
law, together with such endorsements, coinsurance and reinsurance as the
Administrative Agent may reasonably request and (ii) a survey of any Mortgaged
Property (and all improvements thereon), or foreign equivalent thereof, as
applicable, which is (1) dated (or redated) not earlier than six months prior
to the date of delivery thereof unless there shall have occurred within six
months prior to such date of delivery any exterior construction on the site of
such Mortgaged Property, in which event such survey shall be dated (or
redated) after the completion of such construction or if such construction
shall not have been completed as of such date of delivery, not earlier than 20
days prior to such date of delivery, (2) certified by the surveyor (in a
manner reasonably acceptable to the Administrative Agent) to the
Administrative Agent and the title insurance company insuring the Mortgage,
(3) complying in all respects with the minimum detail requirements of the
American Land Title Association as such requirements are in effect on the date
of preparation of such survey and (4) sufficient for such title insurance
company to remove all standard survey exceptions from the title insurance
policy relating to such Mortgaged Property or otherwise reasonably acceptable
to the Administrative Agent; and
(j) except as disclosed on Schedule 3.04 or as
otherwise contemplated by any Second Lien Security Document, each Loan Party
shall have obtained all consents and approvals required to be obtained by it
in connection with (i) the execution and delivery of all Second Lien Security
Documents (or supplements thereto) to which it is a party and the granting by
it of the Liens thereunder and (ii) the performance of its obligations
thereunder.
"Commitment" shall mean with respect to each Lender, the
commitment of such Lender to make Loans on the Closing Date as set forth in
Section 2.01. The aggregate amount of the Commitments on the Closing Date is
$75 million.
"Communications Licenses" shall mean, collectively, all FCC
Licenses and all Foreign Licenses.
"Conduit Lender" shall mean any special purpose corporation
organized and administered by any Lender for the purpose of making Loans
otherwise required to be made by such Lender and designated by such Lender in
a written instrument; provided, that the designation by any Lender of a
Conduit Lender shall not relieve the designating Lender of any of its
obligations to fund a Loan under this Agreement if, for any reason, its
Conduit Lender fails to fund any such Loan, and the designating Lender (and
not the Conduit Lender) shall have the sole right and responsibility to
deliver all consents and waivers required or requested under this Agreement
with respect to its Conduit Lender, and provided, further, that no Conduit
Lender shall (a) be entitled to receive any greater amount pursuant to Section
2.15, 2.16, 2.17 or 9.05 than the designating Lender would have been entitled
to receive in respect of the extensions of credit made by such Conduit Lender
or (b) be deemed to have any Commitment.
"Consolidated Interest Expense" shall mean, with respect to
any Person for any period, the sum, without duplication, of:
(a) consolidated interest expense of such Person and
its Subsidiaries for such period, to the extent such expense was deducted in
computing Consolidated Net Income (including amortization of original issue
discount, the interest component of Capitalized Lease Obligations (and, to the
extent not included therein, the Indebtedness under Equipment Financing
Agreements), and net payments and receipts (if any) pursuant to interest rate
Hedging Obligations and excluding amortization of deferred financing fees,
expensing of any bridge or other financing fees and any interest under
Satellite Purchase Agreements);
(b) consolidated capitalized interest of such Person and
its Subsidiaries for such period, whether paid or accrued; and
(c) 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;
less interest income for such period;
provided, that for purposes of calculating Consolidated Interest Expense, no
effect shall be given to the discount and/or premium resulting from the
bifurcation of derivatives under Statement of Financial Accounting Standards
No. 133 and related interpretations as a result of the terms of the
Indebtedness to which such Consolidated Interest Expense relates.
"Consolidated Net Income" shall mean, with respect to any
Person for any period, the aggregate of the Net Income of such Person and its
Subsidiaries for such period, on a consolidated basis; provided, that:
(a) any net after-tax extraordinary or nonrecurring or
unusual gains or losses (less all fees and expenses relating thereto), or
income or expense or charge (including, without limitation, any severance,
relocation or other restructuring costs and transition expenses Incurred as a
direct result of the transition of the Borrower to an independent operating
company in connection with the Transactions) and fees, expenses or charges
related to any offering of equity interests of such Person, Investment,
acquisition or Indebtedness permitted to be incurred by this Agreement (in
each case, whether or not successful), including any such fees, expenses or
charges related to the Transactions, in each case, shall be excluded;
(b) any increase in amortization or depreciation or any
one-time non-cash charges resulting from purchase accounting in connection
with any acquisition that is consummated after the Closing Date shall be
excluded;
(c) the cumulative effect of a change in accounting
principles during such period shall be excluded;
(d) any net after-tax income or loss from discontinued
operations and any net after-tax gains or losses on disposal of discontinued
operations shall be excluded;
(e) any net after-tax gains or losses (less all fees
and expenses or charges relating thereto) attributable to business
dispositions or asset dispositions other than in the ordinary course of
business (as determined in good faith by senior management or the Board of
Directors of the Borrower, except that no such determination shall be required
for asset dispositions reflected as an adjustment in the calculation of
Adjusted EBITDA set forth in the Offering Memorandum) shall be excluded;
(f) any net after-tax gains or losses (less all fees
and expenses or charges relating thereto) attributable to the early
extinguishment of Indebtedness shall be excluded;
(g) the Net Income for such period of any Person that
is not a Subsidiary of such Person or that is accounted for by the equity
method of accounting, shall be included only to the extent of the amount of
dividends or distributions or other payments actually paid in cash (or to the
extent converted into cash) to the referent Person or a Subsidiary thereof in
respect of such period;
(h) solely for the purpose of determining compliance
with Sections 6.12 and 6.13, the Net Income for such period of any Subsidiary
(other than any Subsidiary Loan Party) shall be excluded to the extent that
the declaration or payment of dividends or similar distributions by such
Subsidiary of its Net Income is not at the date of determination permitted
without any prior governmental approval (which has not been obtained) or,
directly or indirectly, by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Subsidiary or its equityholders, unless such
restrictions with respect to the payment of dividends or similar distributions
have been legally waived (provided that this clause (h) shall not apply with
respect to the Net Income of Xxxxxx Escorts Communications Limited); provided
that the Consolidated Net Income of such Person shall be increased by the
amount of dividends or other distributions or other payments actually paid in
cash (or converted into cash) by any such Subsidiary to such Person or a
Subsidiary of such Person, to the extent not already included therein;
(i) any non-cash impairment charge or asset write-off
resulting from the application of Statement of Financial Accounting Standards
No. 142 and 144, and the amortization of intangibles arising pursuant to No.
141, shall be excluded;
(j) any non-cash expenses realized or resulting from
employee benefit plans or post-employment benefit plans, grants of stock
appreciation or similar rights, stock options or other rights to officers,
directors and employees of such Person or any of its Subsidiaries shall be
excluded;
(k) any one-time non-cash compensation charges shall be
excluded; and
(l) 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.
"Consolidated Non-cash Charges" shall mean, with respect to
any Person for any period, the aggregate depreciation, amortization,
impairment, non-cash compensation, non-cash rent and other non-cash expenses
of such Person and its Subsidiaries for such period on a consolidated basis
and otherwise determined in accordance with GAAP, but excluding (a) any such
charge which consists of or requires an accrual of, or cash reserve for,
anticipated cash charges for any future period and (b) the non-cash impact of
recording the change in fair value of any embedded derivatives under Statement
of Financial Accounting Standards No. 133 and related interpretations as a
result of the terms of any agreement or instrument to which such Consolidated
Non-cash Charges relate.
"Consolidated Taxes" shall mean, with respect to any Person
and its Subsidiaries on a consolidated basis for any period, provision for
taxes based on income, profits or capital, including, without limitation,
state franchise and similar taxes, and including an amount equal to the amount
of tax distributions actually made to the holders of Capital Stock of such
Person or any parent of such Person in respect of such period in accordance
with Section 6.06(g), which shall be included as though such amounts had been
paid as income taxes directly by such Person.
"Consolidated Total Indebtedness" shall mean, as at any date
of determination, an amount equal to the sum of (a) the aggregate amount of
all outstanding Indebtedness of the Borrower and the Subsidiaries (other than
letters of credit to the extent undrawn) and (b) the aggregate amount of all
outstanding Disqualified Stock of the Borrower and all Preferred Stock of
Subsidiaries issued to Persons that are not Loan Parties, with the amount of
such Disqualified Stock and Preferred Stock equal to the greater of their
respective voluntary or involuntary liquidation preferences and maximum fixed
repurchase prices, in each case determined on a consolidated basis in
accordance with GAAP.
For purposes hereof, the "maximum fixed repurchase price" of
any Disqualified Stock or Preferred Stock that does not have a fixed price
shall be calculated in accordance with the terms of such Disqualified Stock or
Preferred Stock as if such Disqualified Stock or Preferred Stock were
purchased on any date on which Consolidated Total Indebtedness shall be
required to be determined pursuant to this Agreement, and if such price is
based upon, or measured by, the Fair Market Value of such Disqualified Stock
or Preferred Stock, such Fair Market Value shall be determined reasonably and
in good faith by senior management or the Board of Directors of the Borrower.
"Contingent Obligations" shall mean, with respect to any
Person, any obligation of such Person guaranteeing any leases, dividends or
other obligations that do not constitute Indebtedness ("primary obligations")
of any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent:
(a) to purchase any such primary obligation or any
property constituting direct or indirect security therefor;
(b) to advance or supply funds:
(i) for the purchase or payment of any such primary
obligation; 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; or
(c) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such primary
obligation against loss in respect thereof.
"Control" shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
a person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Contributed SPACEWAY Assets" shall have the meaning
assigned to such term in the Transaction Agreement.
"Contribution Financing" shall mean, in connection with the
consummation of the Acquisition, (a) the purchase by SkyTerra and its
Affiliates from HNS of 50% of the class A units of the Borrower for an
aggregate amount of not less than $50.0 million in cash and 300,000 shares of
common stock of SkyTerra and (b) the equity contribution by DIRECTV or its
Affiliates to the Borrower in an aggregate amount of not less than $50.0
million.
"Cumulative Credit" shall mean, as of any date, the sum of
(without duplication):
(a) cumulative Adjusted EBITDA of the Borrower for the
period (taken as one accounting period) from and after the first day of the
fiscal quarter during which the Closing Date occurs to the end of the
Borrower's most recently ended fiscal quarter for which internal financial
statements are available (or, in the case such Adjusted EBITDA for such period
is a negative, minus the amount by which cumulative Adjusted EBITDA is less
than zero), plus
(b) 100% of the aggregate net proceeds, including cash
and the Fair Market Value (as determined in accordance with the next succeeding
sentence) of property other than cash, received by the Borrower after the
Closing Date from the issue or sale of Equity Interests of the Borrower
(excluding Disqualified Stock), plus
(c) 100% of the aggregate amount of contributions to the
capital of the Borrower received in cash and the Fair Market Value (as
determined in accordance with the next succeeding sentence) of property other
than cash after the Closing Date (other than Disqualified Stock and
contributions by a Subsidiary).
The Fair Market Value of property other than cash covered by
clauses (b) and (c) above shall be determined in good faith by the Board of
Directors or managing member of the Borrower and
(A) in the event of property with a Fair Market Value in
excess of $10.0 million, shall be set forth in a certificate of a
Financial Officer of the Borrower or
(B) in the event of property with a Fair Market Value in
excess of $25.0 million, shall be set forth in a resolution approved
by at least a majority of the Board of Directors or the managing
member of the Borrower.
"Cumulative Interest Expense" shall mean, as of any date,
the sum of the aggregate amount of Consolidated Interest Expense of the
Borrower and the Subsidiaries for the period from and after the first day of
the fiscal quarter during which the Closing Date occurs to the end of the
Borrower's most recently ended fiscal quarter for which internal financial
statements are available.
"Cure Amount" shall have the meaning assigned to such term
in Section 7.03(a).
"Cure Right" shall have the meaning assigned to such term in
Section 7.03(a).
"Current Assets" shall mean, with respect to the Borrower
and the Subsidiaries on a consolidated basis at any date of determination, all
assets (other than cash and Permitted Investments or other cash equivalents)
that would, in accordance with GAAP, be classified on a consolidated balance
sheet of the Borrower and the Subsidiaries as current assets at such date of
determination, other than amounts related to current or deferred Taxes based
on income or profits.
"Current Liabilities" shall mean, with respect to the
Borrower and the Subsidiaries on a consolidated basis at any date of
determination, all liabilities that would, in accordance with GAAP, be
classified on a consolidated balance sheet of the Borrower and the
Subsidiaries as current liabilities at such date of determination, other than
(a) the current portion of any Indebtedness, (b) accruals of Consolidated
Interest Expense (excluding Consolidated Interest Expense that is due and
unpaid), (c) accruals for current or deferred Taxes based on income or
profits, (d) accruals, if any, of transaction costs resulting from the
Transactions, and (e) accruals of any costs or expenses related to (i)
severance or termination of employees prior to the Closing Date or (ii)
bonuses, pension and other post-retirement benefit obligations, and (f)
accruals for add-backs to Adjusted EBITDA included in clauses (c), (d) and (e)
of the definition of such term.
"Debt to Adjusted EBITDA Ratio" shall mean, with respect to
the Borrower on any date, the ratio of (a) Consolidated Total Indebtedness as
of such date (the "Calculation Date") to (b) Adjusted EBITDA of the Borrower
for the four consecutive fiscal quarters immediately preceding such
Calculation Date.
For purposes of making the computation referred to above and
for other pro forma calculations required hereunder, Investments,
acquisitions, dispositions, mergers or consolidations (as determined in
accordance with GAAP) that have been made by the Borrower or any Subsidiary
during the four-quarter reference period or subsequent to such reference
period and on or prior to or simultaneously with the Calculation Date shall be
calculated on a pro forma basis assuming that all such Investments,
acquisitions, dispositions, mergers or consolidations (including the
Transactions) (and the change in any associated Consolidated Total
Indebtedness obligations and the change in Adjusted EBITDA resulting
therefrom) had occurred on the first day of the four-quarter reference period.
If since the beginning of such period any Person (that subsequently became a
Subsidiary or was merged with or into the Borrower or any Subsidiary since the
beginning of such period) shall have made any Investment, acquisition,
disposition, merger or consolidation that would have required adjustment
pursuant to this definition, then the Debt to Adjusted EBITDA Ratio shall be
calculated giving pro forma effect thereto for such period as if such
Investment, acquisition, disposition, merger or consolidation had occurred at
the beginning of the applicable four-quarter period. For purposes of this
definition, whenever pro forma effect is to be given to an Investment,
acquisition, disposition, merger or consolidation (including the Transactions)
and the amount of income or earnings relating thereto, the pro forma
calculations shall be determined in good faith by a Financial Officer of the
Borrower and shall comply with the requirements of Rule 11-02 of Regulation
S-X promulgated by the Commission, except that such pro forma calculations may
include operating expense reductions for such period resulting from the
transaction which is being given pro forma effect that have been realized or
for which substantially all the steps necessary for realization have been
taken or are reasonably expected to be taken within six months following any
such transaction, including, but not limited to, the execution or termination
of any contracts, the reduction of costs related to administrative functions
or the termination of any personnel, as applicable; provided that, in either
case, such adjustments are set forth in a certificate signed by a Financial
Officer of the Borrower and another Responsible Officer which states (i) the
amount of such adjustment or adjustments, (ii) that such adjustment or
adjustments are based on the reasonable good faith beliefs of the Responsible
Officers executing such certificate at the time of such execution and (iii)
that any related incurrence of Indebtedness is permitted pursuant to this
Agreement. If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest on such Indebtedness shall be calculated
as if the rate in effect on the Calculation Date had been the applicable rate
for the entire period (taking into account any Hedging Obligations applicable
to such Indebtedness if the related hedge has a remaining term in excess of
twelve months). Interest on a Capitalized Lease Obligation shall be deemed to
accrue at an interest rate reasonably determined by a Financial Officer of the
Borrower to be the rate of interest implicit in such Capitalized Lease
Obligation in accordance with GAAP. Interest on Indebtedness that may
optionally be determined at an interest rate based upon a factor of a prime or
similar rate, a eurocurrency interbank offered rate, or other rate, shall be
deemed to have been based upon the rate actually chosen, or, if none, then
based upon such optional rate chosen as the Borrower may designate.
"Debt Service" shall mean, with respect to the Borrower and
the Subsidiaries on a consolidated basis for any period, Cash Interest Expense
for such period plus scheduled principal amortization of Consolidated Total
Indebtedness for such period.
"Default" shall mean any event or condition that upon notice,
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.
"DIRECTV" shall have the meaning assigned to such term in
the first recital hereto.
"Disqualified Stock" shall mean, with respect to any Person,
any Capital Stock of such Person which, by its terms (or by the terms of any
security into which it is convertible or for which it is redeemable, putable
or exchangeable), or upon the happening of any event:
(a) matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise,
(b) is convertible or exchangeable for Indebtedness or
Disqualified Stock of such Person, or
(c) is redeemable at the option of the holder thereof,
in whole or in part,
in each case prior to 91 days after the Maturity Date;
provided, however, that only the portion of Capital Stock
which so matures or is mandatorily redeemable, is so convertible or
exchangeable or is so redeemable at the option of the holder thereof prior to
such date shall be deemed to be Disqualified Stock; provided, further,
however, that (x) if such Capital Stock is issued to any employee or to any
plan for the benefit of employees of the Borrower or its Subsidiaries or by
any such plan to such employees, such Capital Stock shall not constitute
Disqualified Stock solely because it may be required to be repurchased by the
Borrower in order to satisfy applicable statutory or regulatory obligations or
as a result of such employee's termination, death or disability and (y) such
Capital Stock shall not constitute Disqualified Stock if such Capital Stock
matures or is mandatorily redeemable or is redeemable at the option of the
holders thereof as a result of a change of control or asset sale; provided,
further, that any class of Capital Stock of such Person that by its terms
authorizes such Person to satisfy its obligations thereunder by delivery of
Capital Stock that is not Disqualified Stock shall not be deemed to be
Disqualified Stock.
"Dollars" or "$" shall mean lawful money of the United
States of America.
"Domestic Subsidiary" shall mean any Subsidiary that is not
a Foreign Subsidiary.
"Earth Station" shall mean any earth station of the Borrower
or any of its Subsidiaries that is the subject of a license granted by the
FCC.
"environment" shall mean ambient and indoor air, surface
water and groundwater (including potable water, navigable water and wetlands),
the land surface or subsurface strata, natural resources such as flora and
fauna, the workplace or as otherwise defined in any Environmental Law.
"Environmental Laws" shall mean all applicable laws
(including common law), rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, the
generation, management, Release or threatened Release of, or exposure to, any
Hazardous Material or to health and safety matters (to the extent relating to
the environment or Hazardous Materials).
"Equipment Financing Agreements" shall mean (a)(i) the
Master Purchase Agreement dated April 27, 1998, between the Borrower and
Alpine, (ii) the Master Equipment Lease dated April 21, 1998, between the
Borrower and Alpine and (iii) the Assignment Agreement dated April 27, 1998,
between the Borrower and Alpine, (b) the equipment financing arrangements
pursuant to the Master Performance and Counter-Indemnity between the Borrower
and certain of its Subsidiaries and Barclays Technology Finance Limited,
Barclays Technology Finance GmbH, Alpine Capital (Europe) Limited and Alpine
Capital (Europe) Limited GmbH and related agreements, (c) any and all
assignment agreements entered into by the Borrower and its Subsidiaries in the
ordinary course of business as contemplated by clauses (a)(i) through (iii)
and (b) of this definition, in each case, as the same may be refinanced,
amended, modified, restated, renewed, supplemented or replaced, and (d) any
agreements between the Borrower or any of its Subsidiaries and any third-party
relating generally to the subject matter of the agreements set forth in clause
(a), (b) or (c) of this definition; provided that any agreements specified in
clauses (c) or (d) of this definition are entered into on terms consistent
with then prevailing market conditions.
"Equity Interests" shall mean Capital Stock and all
warrants, options or other rights to acquire Capital Stock (but excluding any
debt security that is convertible into, or exchangeable for, Capital Stock).
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether
or not incorporated) that, together with the Borrower or a Subsidiary, is
treated as a single employer under 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.
"ERISA Event" shall mean (a) any Reportable Event; (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section
303(d) of ERISA of an application for a waiver of the minimum funding standard
with respect to any Plan, the failure to make by its due date a required
installment under Section 412(m) of the Code with respect to any Plan or the
failure to make any required contribution to a Multiemployer Plan; (d) the
incurrence by the Borrower, a Subsidiary or any ERISA Affiliate of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower, a Subsidiary or any ERISA Affiliate from the
PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or to appoint a trustee to administer any Plan under
Section 4042 of ERISA; (f) the incurrence by the Borrower, a Subsidiary or any
ERISA Affiliate of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Borrower, a Subsidiary or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower, a Subsidiary or any ERISA Affiliate
of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.
"Eurocurrency Borrowing" shall mean a Borrowing comprised of
Eurocurrency Loans.
"Eurocurrency Loan" shall mean any Loan bearing interest at
a rate determined by reference to the Adjusted LIBO Rate in accordance with
the provisions of Article II.
"Event of Default" shall have the meaning assigned to such
term in Section 7.01.
"Event of Loss" shall mean any event that results in the
Borrower or its Subsidiaries receiving proceeds from any insurance covering
any Satellite, or in the event that the Borrower or any of its Subsidiaries
receives proceeds from any insurance maintained for it by any Satellite
Manufacturer or any launch provider covering any of such Satellites.
"Event of Loss Proceeds" shall mean, with respect to any
proceeds from any Event of Loss, all Satellite insurance proceeds received by
the Borrower or any of the Subsidiaries in connection with such Event of Loss,
after
(1) provision for all income or other taxes measured by
or resulting from such Event of Loss,
(2) payment of all reasonable legal, accounting and other
reasonable fees and expenses related to such Event of
Loss,
(3) payment of amounts required to be applied to the
repayment of Indebtedness secured by a Lien on the Satellite that is the
subject of such Event of Loss,
(4) provision for payments to Persons who own an
interest in the Satellite (including any transponder thereon) in accordance
with the terms of the agreement(s) governing the ownership of such interest by
such Person (other than provision for payments to insurance carriers required
to be made based on projected future revenues expected to be generated from
such Satellite in the good faith determination of the Borrower as evidenced by
a certificate executed by a Financial Officer), and
(5) deduction of appropriate amounts to be provided by
the Borrower or such Subsidiary as a reserve, in accordance with GAAP, against
any liabilities associated with the Satellite that was the subject of the
Event of Loss.
"Excess Cash Flow" shall mean, with respect to the Borrower
and the Subsidiaries on a consolidated basis for any Excess Cash Flow Period,
Adjusted EBITDA of the Borrower and the Subsidiaries on a consolidated basis
for such Excess Cash Flow Period, minus, without duplication,
(a) Debt Service for such Excess Cash Flow Period,
(b) (i) the amount of any permanent voluntary
reductions during such Excess Cash Flow Period of commitments under any
revolving credit facility (including under the First Lien Credit Agreement) to
the extent that an equal amount of Indebtedness in respect thereof was
simultaneously repaid and (ii) the amount of any voluntary prepayment
permitted hereunder of term Indebtedness (other than the Loans, but including
the First Lien Term Loans) during such Excess Cash Flow Period to the extent
not financed, or intended to be financed, using the proceeds of the incurrence
of Indebtedness, so long as the amount of such prepayment is not already
reflected in Debt Service,
(c) (i) Capital Expenditures by the Borrower and the
Subsidiaries on a consolidated basis during such Excess Cash Flow Period that
are paid in cash (other than Capital Expenditures in respect of SPACEWAY and
related assets in an aggregate amount equal to $175 million) and (ii) the
aggregate consideration paid in cash during the Excess Cash Flow period in
respect of Permitted Business Acquisitions and other Investments permitted
hereunder to the extent not financed with the proceeds of Indebtedness other
than Loans or First Lien Term Loans (less any amounts received in respect
thereof as a return of capital).
(d) Capital Expenditures that the Borrower or any
Subsidiary shall, during such Excess Cash Flow Period, become obligated to
make but that are not made during such Excess Cash Flow Period, provided that
the Borrower shall deliver a certificate to the Administrative Agent not later
than 90 days after the end of such Excess Cash Flow Period, signed by a
Responsible Officer of the Borrower and certifying that such Capital
Expenditures and the delivery of the related equipment will be made in the
following Excess Cash Flow Period,
(e) Taxes paid in cash by the Borrower and its
Subsidiaries on a consolidated basis during such Excess Cash Flow Period or
that will be paid within six months after the close of such Excess Cash Flow
Period (provided that any amount so deducted that will be paid after the close
of such Excess Cash Flow Period shall not be deducted again in a subsequent
Excess Cash Flow Period) and for which reserves have been established,
including income tax expense and withholding tax expense incurred in
connection with cross-border transactions involving the Foreign Subsidiaries,
(f) an amount equal to any increase in Working Capital
of the Borrower and its Subsidiaries for such Excess Cash Flow Period,
(g) cash expenditures made in respect of Swap
Agreements during such Excess Cash Flow Period, to the extent not reflected in
the computation of Adjusted EBITDA or Cash Interest Expense,
(h) permitted dividends or distributions or repurchases
of its Equity Interests paid in cash by the Borrower during such Excess Cash
Flow Period and permitted dividends paid by the Borrower or by any Subsidiary
to any person other than the Borrower or any of the Subsidiaries during such
Excess Cash Flow Period, in each case in accordance with Section 6.06 (other
than 6.06(f)(ii)),
(i) amounts paid in cash during such Excess Cash Flow
Period on account of (x) items that were accounted for as noncash reductions
of Net Income in determining Consolidated Net Income or as noncash reductions
of Consolidated Net Income in determining Adjusted EBITDA of the Borrower and
its Subsidiaries in a prior Excess Cash Flow Period and (y) reserves or
accruals established in purchase accounting,
(j) to the extent not deducted in the computation of
Net Proceeds in respect of any asset disposition or condemnation giving rise
thereto, the amount of any mandatory prepayment of Indebtedness (other than
Indebtedness created hereunder or under any other Second Lien Loan Document),
together with any interest, premium or penalties required to be paid (and
actually paid) in connection therewith, and
(k) the amount related to items that were added to or
not deducted from Net Income in calculating Consolidated Net Income or were
added to or not deducted from Consolidated Net Income in calculating Adjusted
EBITDA to the extent such items represented a cash payment (which had not
reduced Excess Cash Flow upon the accrual thereof in a prior Excess Cash Flow
Period), or an accrual for a cash payment, by the Borrower and its
Subsidiaries or did not represent cash received by the Borrower and its
Subsidiaries, in each case on a consolidated basis during such Excess Cash
Flow Period.
plus, without duplication,
----
(a) an amount equal to any decrease in Working Capital
for such Excess Cash Flow Period,
(b) all proceeds received during such Excess Cash Flow
Period of Capitalized Lease Obligations, purchase money Indebtedness, Sale and
Lease-Back Transactions pursuant to Section 6.03 and any other Indebtedness,
in each case to the extent used to finance any Capital Expenditure (other than
Indebtedness under this Agreement or the First Lien Credit Agreement to the
extent there is no corresponding deduction to Excess Cash Flow above in
respect of the use of such borrowings),
(c) all amounts referred to in clause (c) above to the
extent funded with the proceeds of the issuance of Equity Interests of, or
capital contributions to, the Borrower after the Closing Date (to the extent
not previously used to prepay Indebtedness (other than Indebtedness under any
revolving credit facility not accompanied by a permanent reduction in
commitments under such facility), make any investment or capital expenditure
or otherwise for any purpose resulting in a deduction to Excess Cash Flow in
any prior Excess Cash Flow Period) or any amount that would have constituted
Net Proceeds under clause (a) of the definition of the term "Net Proceeds" if
not so spent, in each case to the extent there is a corresponding deduction
from Excess Cash Flow above,
(d) to the extent any permitted Capital Expenditures
referred to in clause (d) above and the delivery of the related equipment do
not occur in the following Excess Cash Flow Period of the Borrower specified
in the certificate of the Borrower provided pursuant to clause (d) above, the
amount of such Capital Expenditures that were not so made in such following
Excess Cash Flow Period,
(e) cash payments received in respect of Swap
Agreements during such Excess Cash Flow Period to the extent (i) not included
in the computation of Adjusted EBITDA or (ii) such payments do not reduce Cash
Interest Expense,
(f) any extraordinary or nonrecurring gain realized in
cash during such Excess Cash Flow Period (except to the extent such gain
consists of Net Proceeds subject to 2.11(b)),
(g) to the extent deducted in the computation of EBITDA,
cash interest income, and
(h) the amount related to items that were deducted from
or not added to Net Income in connection with calculating Consolidated Net
Income or were deducted from or not added to Consolidated Net Income in
calculating EBITDA to the extent either (x) such items represented cash
received by the Borrower or any Subsidiary or (y) such items do not represent
cash paid by the Borrower or any Subsidiary, in each case on a consolidated
basis during such Excess Cash Flow Period.
"Excess Cash Flow Period" shall mean (a) the period taken as
one accounting period from the Closing Date and ending December 31, 2005 and
(b) each fiscal year of the Borrower ended thereafter.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended and the rules and regulations of the SEC promulgated
thereunder.
"Excluded Indebtedness" shall mean all Indebtedness
permitted to be incurred under Section 6.01.
"Excluded Taxes" shall mean, with respect to the
Administrative Agent, any Lender, or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder, (a) income
or franchise taxes imposed on (or measured by) its net income by the United
States of America (or any state thereof) or the jurisdiction under the laws of
which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable Lending Office is
located, (b) any branch profits tax or any similar tax that is imposed by any
jurisdiction described in clause (a) above and (c) in the case of a Lender
making a Loan to the Borrower, any withholding tax imposed by the United
States that is in effect and would apply to amounts payable hereunder to such
Lender at the time such Lender becomes a party to such Loan to the Borrower
(or designates a new Lending Office) or is attributable to such Lender's
failure to comply with Section 2.17(e) with respect to such Loan except to the
extent that such Lender (or its assignor, if any) was entitled, at the time of
designation of a new Lending Office (or assignment), to receive additional
amounts from a Loan Party with respect to any withholding tax pursuant to
Section 2.17(a) or Section 2.17(c).
"Existing Letters of Credit" shall mean each letter of
credit previously issued for the account of the Borrower or any Subsidiary by
DIRECTV or any of its Affiliates that is outstanding on the Closing Date. The
face amount of the Existing Letters of Credit on the Closing Date is
approximately $23.8 million.
"Facility" shall mean the Commitments and the Loans made
hereunder.
"Fair Market Value" shall mean, with respect to any asset or
property, the price that could be negotiated in an arm's-length transaction
between a willing seller and a willing and able buyer, neither of whom is
under undue pressure or compulsion to complete the transaction.
"FCC" shall mean the Federal Communications Commission or
any governmental authority substituted therefor.
"FCC Licenses" shall mean all authorizations, licenses and
permits, including experimental authorizations, issued by the FCC or any
governmental authority substituted therefor to the Borrower or any of its
Subsidiaries, under which the Borrower or any of its Subsidiaries is
authorized to launch and operate any of its Satellites or to operate any of
its Earth Stations (other than authorizations, orders, licenses or permits
that are no longer in effect).
"Federal Funds Effective Rate" shall mean, for any day, the
weighted average (rounded upward, if necessary, to the next 1/100 of 1%) of
the 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 which is a Business Day, the average
(rounded upward, if necessary, to the next 1/100 of 1%) 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.
"Financial Officer" of any person shall mean the Chief
Financial Officer, principal accounting officer, Treasurer, Assistant
Treasurer or Controller of such person.
"Financial Performance Covenants" shall mean the covenants
of the Borrower set forth in Sections 6.12 and 6.13.
"First Lien Administrative Agent" shall mean JPMorgan Chase
Bank, N.A., in its capacity as administrative agent under the First Lien
Credit Agreement.
"First Lien Credit Agreement" shall mean the Credit
Agreement, dated as of April __, 2005, among the Borrower, the several agents,
banks and other financial institutions or entities from time to time parties
thereto and the First Lien Administrative Agent and any amendment, waiver,
supplement or other modification thereto.
"First Lien Debt" shall mean at any date the sum of (a) the
aggregate outstanding principal amount of Indebtedness outstanding under the
First Lien Credit Agreement (other than letters of credit to the extent
undrawn) and (b) the amount then outstanding under any Receivables Financing
(as calculated pursuant to clause (d) of the definition of Indebtedness).
"First Lien Collateral Agreement" shall mean the First Lien
Guarantee and Collateral Agreement executed and delivered by the First Lien
Administrative Agent, the Borrower and each Subsidiary Loan Party and any
amendment, waiver, supplement or other modification thereto.
"First Lien Leverage Ratio" shall mean at any date the ratio
of (a) First Lien Debt as of such date of calculation to (b) Adjusted EBITDA
of the Borrower for the four full fiscal quarters immediately preceding such
date. The provisions applicable to pro forma transaction and Indebtedness set
forth in the second paragraph of the definition of "Debt to Adjusted EBITDA
Ratio" will apply for the purposes of making the computations referred to in
this definition.
"First Lien Loan Documents" shall mean the First Lien Credit
Agreement, the First Lien Security Documents, any notes issued pursuant to the
First Lien Credit Agreement and any amendment, waiver, supplement or other
modification to any of the foregoing.
"First Lien Security Documents" shall mean the collective
reference to the First Lien Guarantee and Collateral Agreement, any first lien
mortgage delivered to the administrative agent under the First Lien Credit
Agreement as required thereunder and all other security documents hereafter
delivered to the administrative agent under the First Lien Credit Agreement
granting a Lien on any property of any Person to secure the obligations and
liabilities of any Loan Party under any First Lien Loan Document.
"First Lien Term Loans" shall mean the term loans borrowed
by the Borrower under the First Lien Credit Agreement.
"Flow Through Entity" shall mean an entity that is treated
as a partnership not taxable as a corporation, a grantor trust or a
disregarded entity for U.S. federal income tax purposes or subject to
treatment on a comparable basis for purposes of state, local or foreign tax
law.
"Foreign Lender" shall mean any Lender that is organized
under the laws of a jurisdiction other than the United States of America. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"Foreign Licenses" shall mean all authorizations, orders,
licenses, permits, approvals, consents, and rights issued to the Borrower or
any of its Subsidiaries by any foreign Governmental Authority pursuant to any
statute, rule, regulation or policy regarding the operation of channels of
radio communications and/or the provisions of communications or
telecommunications services (other than authorizations, orders, licenses or
permits that are no longer in effect).
"Foreign Pledge Agreement" shall mean a pledge agreement
with respect to the Pledged Collateral that constitutes Equity Interests of a
first-tier Foreign Subsidiary, in form and substance reasonably satisfactory
to the Administrative Agent; provided that in no event shall more than 65% of
the issued and outstanding Equity Interests of such Foreign Subsidiary be
pledged to secure Second Lien Credit Agreement Obligations of the Borrower.
"Foreign Subsidiary" shall mean a Subsidiary not organized
or existing under the laws of the United States of America or any state or
territory thereof or the District of Columbia and any direct or indirect
subsidiary of such Subsidiary.
"GAAP" shall mean generally accepted accounting principles
in effect from time to time in the United States, applied on a consistent
basis, subject to the provisions of Section 1.02; provided that any reference
to the application of GAAP to a Foreign Subsidiary (and not as a consolidated
Subsidiary of the Borrower) shall mean generally accepted accounting
principles in effect from time to time in the jurisdiction of organization of
such Foreign Subsidiary.
"Governmental Authority" shall mean any federal, state,
local or foreign court or governmental agency, authority, instrumentality or
regulatory or legislative body.
"guarantee" or "Guarantee" shall mean a guarantee (other
than by endorsement of negotiable instruments for collection in the ordinary
course of business or customary and reasonable indemnity obligations in effect
on the Closing Date or entered into in connection with an acquisition or
disposition of assets permitted under this Agreement), direct or indirect, in
any manner (including, without limitation, letters of credit and reimbursement
agreements in respect thereof), of all or any part of any Indebtedness or
other obligations, and "guarantor" and "Guarantor" shall have meanings
correlative thereto.
"Hazardous Materials" shall mean all pollutants,
contaminants, wastes, chemicals, materials, substances and constituents,
including, without limitation, explosive or radioactive substances or
petroleum or petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls or radon gas, of any nature subject to regulation or
which can give rise to liability under any Environmental Law.
"HNS" shall have the meaning assigned to such term in the
first recital hereto.
"Hedging Obligations" shall mean, with respect to any
Person, the obligations of such Person under:
(a) currency exchange or interest rate swap agreements,
cap agreements and collar agreements; and
(b) other agreements or arrangements designed to manage
exposure or protect such Person against fluctuations in currency exchange or
interest rates.
"Incur" or "incur" shall mean issue, assume, guarantee,
incur or otherwise become liable for; provided, however, that any Indebtedness
or Capital Stock of a Person existing at the time such Person becomes a
Subsidiary (whether by merger, amalgamation, consolidation, acquisition or
otherwise) shall be deemed to be Incurred by such Person at the time it
becomes a Subsidiary.
"Indebtedness" shall mean, with respect to any Person,
without duplication:
(a) the principal and premium (if any) of any
indebtedness of such Person, whether or not contingent, (i) in respect of
borrowed money, (ii) evidenced by bonds, notes, debentures or similar
instruments or letters of credit or bankers' acceptances (or, without
duplication, reimbursement agreements in respect thereof), (iii) representing
the deferred and unpaid purchase price of any property, except any such
balance that constitutes a current account payable, trade payable or similar
obligation Incurred, (iv) in respect of Capitalized Lease Obligations, or (v)
representing any Hedging Obligations, if and to the extent that any of the
foregoing indebtedness (other than letters of credit and Hedging Obligations)
would appear as a liability on a balance sheet (excluding the footnotes
thereto) of such Person prepared in accordance with GAAP;
(b) to the extent not otherwise included, any
obligation of such Person to be liable for, or to pay, as obligor, guarantor
or otherwise, the Indebtedness of another Person (other than by endorsement of
negotiable instruments for collection in the ordinary course of business);
(c) to the extent not otherwise included, Indebtedness
of another Person secured by a Lien on any asset owned by such Person (whether
or not such Indebtedness is assumed by such Person); provided, however, that
the amount of such Indebtedness will be the lesser of: (i) the Fair Market
Value of such asset at such date of determination and (ii) the amount of such
Indebtedness of such other Person; and
(d) to the extent not otherwise included, with respect
to the Borrower and its Subsidiaries, the amount then outstanding (i) (i.e.,
advanced, and received by, and available for use by, the Borrower or any of
its Subsidiaries) under any Receivables Financing (as confirmed by the agent,
trustee or other representative of the institution or group providing such
Receivables Financing) or (ii) under any Equipment Financing Agreement;
provided, however, that notwithstanding the foregoing, Indebtedness shall be
deemed not to include (1) Contingent Obligations incurred in the ordinary
course of business and not in respect of borrowed money; (2) deferred or
prepaid revenues; (3) 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; (4) obligations to make payments to one
or more insurers under satellite insurance policies in respect of premiums or
the requirement to remit to such insurer(s) a portion of the future revenue
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; (5) any obligations to make progress or incentive payments or risk
money payments under any satellite manufacturing contract or to make payments
under satellite launch contracts in respect of launch services provided
thereunder, in each case, to the extent not overdue by more than 90 days; or
(6) the financing of insurance premiums with the carrier of such insurance or
take or pay obligations contained in supply agreements, in each case entered
into in the ordinary course of business.
Notwithstanding anything in this Agreement, 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.
"Indemnified Taxes" shall mean all Taxes other than Excluded
Taxes.
"Indemnitee" shall have the meaning assigned to such term in
Section 9.05(b).
"Initial Lender" shall mean JPMorgan Chase Bank, N.A. and Bear
Xxxxxxx Corporate Lending Inc., each in their capacity as a Lender hereunder.
"In-Orbit Insurance" shall mean, with respect to any
Satellite (or, if the entire Satellite is not owned by the Borrower or any
Subsidiary, as the case may be, the portion of the Satellite it owns or for
which it has risk of loss), insurance 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
in this Agreement.
"Intercreditor Agreement" shall mean the Intercreditor
Agreement, as amended, supplemented or otherwise modified from time to time,
in the form of Exhibit I, between the Administrative Agent and the First Lien
Administrative Agent.
"Interest Election Request" shall mean a request by the
Borrower to convert or continue a Borrowing in accordance with Section 2.07.
"Interest Payment Date" shall mean, (a) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurocurrency
Borrowing with an Interest Period of more than three months' duration, each
day that would have been an Interest Payment Date had successive Interest
Periods of three months' duration been applicable to such Borrowing and, in
addition, the date of any refinancing or conversion of such Borrowing with or
to a Borrowing of a different Type and (b) with respect to any ABR Loan, the
last day of each calendar quarter.
"Interest Period" shall mean, as to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing or on the last
day of the immediately preceding Interest Period applicable to such Borrowing,
as applicable, and ending on the numerically corresponding day (or, if there
is no numerically corresponding day, on the last day) in the calendar month
that is 1, 2, 3 or 6 months thereafter (or 9 or 12 months, if at the time of
the relevant Borrowing, all Lenders make interest periods of such length
available), as the Borrower may elect, or the date any Eurocurrency Borrowing
is converted to an ABR Borrowing in accordance with Section 2.07 or repaid or
prepaid in accordance with Section 2.09, 2.10 or 2.11; provided, unless the
Administrative Agent shall otherwise agree, that with respect to periods
commencing prior to the 31st day after the Closing Date, the Borrower shall
only be permitted to request Interest Periods of seven days; provided,
however, that if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business
Day unless such next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the next preceding
Business Day. Interest shall accrue from and including the first day of an
Interest Period to but excluding the last day of such Interest Period.
"Investment" shall have the meaning assigned to such term in
Section 6.04.
"Joint Lead Arrangers" shall have the meaning assigned to
such term in the introductory paragraph of this Agreement.
"Law" shall mean any treaty, intergovernmental arrangement,
multinational, national, federal, state, provincial or local law, statute,
ordinance, rule, regulation, judgment, order, injunction, decree,
determination or arbitration award, of any Governmental Authority.
"Lender" shall mean each financial institution listed on
Schedule 2.01, as well as any person that becomes a "Lender" hereunder
pursuant to Section 9.04.
"Lender Default" shall mean (a) the refusal (which has not
been retracted) of a Lender to make available its portion of any Borrowing, or
(b) a Lender having notified in writing the Borrower and/or the Administrative
Agent that it does not intend to comply with its obligations under Section
2.06.
"Lending Office" shall mean, as to any Lender, the
applicable branch, office or Affiliate of such Lender designated by such
Lender to make Loans.
"LIBO Rate" shall mean, with respect to any Eurocurrency
Borrowing for any Interest Period, the rate per annum determined by the
Administrative Agent at approximately 11:00 a.m., London time, on the
Quotation Day for such Interest Period by reference to the British Bankers'
Association Interest Settlement Rates for deposits in the currency of such
Borrowing (as reflected on the applicable Telerate screen page), for a period
equal to such Interest Period; provided that, to the extent that an interest
rate is not ascertainable pursuant to the foregoing provisions of this
definition, the "LIBO Rate" shall be the average (rounded upward, if
necessary, to the next 1/100 of 1%) of the respective interest rates per annum
at which deposits in the currency of such Borrowing are offered for such
Interest Period to major banks in the London interbank market by JPMorgan
Chase Bank, N.A. at approximately 11:00 a.m., London time, on the Quotation
Day for such Interest Period.
"License Subsidiary" shall mean one or more Wholly Owned
Subsidiaries of the Borrower (i) that holds, was formed for the purpose of
holding or is designated to hold FCC Licenses and (ii) all of the shares of
Capital Stock and other ownership interests of which are held directly by the
Borrower or a Subsidiary Loan Party.
"Lien" shall mean, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in respect
of such asset, whether or not filed, recorded or otherwise perfected under
applicable law (including any conditional sale or other title retention
agreement, any lease in the nature thereof, any other agreement to give a
security interest and, except in connection with any Qualified Receivables
Financing, any filing of or agreement to give any financing statement under
the Uniform Commercial Code or equivalent statutes of any jurisdiction);
provided that in no event shall an operating lease or an agreement to sell be
deemed to constitute a Lien.
"Loan Installment Date" shall have the meaning assigned to
such term in Section 2.10.
"Loan Parties" shall mean the Borrower and the Subsidiary
Loan Parties.
"Loans" shall mean the term loans made by the Lenders to the
Borrower pursuant to Section 2.01.
"Local Time" shall mean New York City time.
"Margin Stock" shall have the meaning assigned to such term
in Regulation U.
"Material Adverse Effect" shall mean the existence of any
event, development or circumstance that has had or could reasonably be
expected to have a material adverse effect on (a) the Transactions, (b) the
business, property, operations or condition (financial or otherwise) of the
Borrower and its Subsidiaries, taken as a whole, or (c) the validity or
enforceability of any of the Second Lien Loan Documents or the rights and
remedies of the Administrative Agent and the Lenders thereunder.
"Material Foreign Subsidiary" shall mean a Foreign
Subsidiary that is a Material Subsidiary.
"Material Indebtedness" shall mean Indebtedness (other than
Loans) of any one or more of the Borrower or any Subsidiary in an aggregate
principal amount exceeding $25.0 million.
"Material Subsidiary" shall have the meaning assigned to
such term in Section 7.02.
"Maturity Date" shall mean April 22, 2013.
"Maximum Rate" shall have the meaning assigned to such term
in Section 9.09.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or any
successor to the rating agency business thereof.
"Mortgaged Properties" shall mean the owned real properties
of the Loan Parties set forth on Schedule 1.01(c) and each additional real
property encumbered by a Mortgage pursuant to Section 5.10.
"Mortgages" shall mean the mortgages, deeds of trust, deeds
to secure debt, assignments of leases and rents, and other security documents
delivered pursuant to Section 5.10 and clause (h) of the definition of
Collateral and Guarantee Requirement, as amended, supplemented or otherwise
modified from time to time, with respect to Mortgaged Properties, each
substantially in the form of Exhibit D, with such changes as consented to by
the Administrative Agent as evidenced by its execution of any Mortgage
containing any such change.
"Multiemployer Plan" shall mean a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which the Borrower or any Subsidiary
or any ERISA Affiliate (other than one considered an ERISA Affiliate only
pursuant to subsection (m) or (o) of Code Section 414) is making or accruing
an obligation to make contributions, or has within any of the preceding six
plan years made or accrued an obligation to make contributions.
"Net Income" shall mean, with respect to any person, the net
income (loss) of such person, determined in accordance with GAAP and before
any reduction in respect of preferred stock dividends.
"Net Proceeds" shall mean:
(a) 100% of (i) any Event of Loss Proceeds and (ii) the
cash proceeds actually received by the Borrower or any of their Subsidiaries
(including any cash payments received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise and including casualty insurance settlements and
condemnation awards, but only as and when received) from any loss, damage,
destruction or condemnation of, or any sale, transfer or other disposition
(including any sale and leaseback of assets and any mortgage or lease of real
property) to any person of any asset or assets of the Borrower or any
Subsidiary (other than pursuant to Section 6.05 (a) through (j), (l) and (m),
net of (A) attorneys' fees, accountants' fees, investment banking fees, survey
costs, title insurance premiums, and related search and recording charges,
transfer taxes, deed or mortgage recording taxes, required debt payments and
required payments of other obligations relating to the applicable asset (other
than pursuant hereto, or pursuant to any Permitted Debt Securities or any
Permitted Refinancing Indebtedness in respect thereof), other customary
expenses and brokerage, consultant and other customary fees actually incurred
in connection therewith and (B) Taxes paid or payable as a result thereof
provided that, in each case, if no Event of Default exists and Borrower shall
deliver a certificate of a Responsible Officer to the Administrative Agent
promptly following receipt of any such proceeds setting forth the Borrower's
intention to use (or enter into a binding commitment to use) any portion of
such proceeds, to acquire, maintain, develop, construct, improve, upgrade or
repair assets useful in the business of the Borrower and the Subsidiaries or
to make investments in Permitted Business Acquisitions or Investments
permitted by Section 6.04(i), in each case within 12 months of such receipt,
such portion of such proceeds shall not constitute Net Proceeds except to the
extent not so used (or entered into) within such 12-month period or not used
in accordance with the terms of such binding commitment, and provided,
further, that (x) no proceeds realized in a single transaction or series of
related transactions shall constitute Net Proceeds unless such proceeds shall
exceed $1.0 million and (y) no proceeds shall constitute Net Proceeds in any
fiscal year until the aggregate amount of all such proceeds in such fiscal
year shall exceed $4.0 million,
(b) 100% of the cash proceeds from the incurrence,
issuance or sale by the Borrower or any Subsidiary of any Indebtedness (other
than Excluded Indebtedness), net of all taxes and fees (including investment
banking fees), commissions, costs and other expenses, in each case incurred in
connection with such issuance or sale, and
(c) 50% of the cash proceeds from the issuance or sale
of any Equity Interest of the Borrower or any Subsidiary at any time after
SPACEWAY has entered commercial operation (other than Equity Interests (i) of
the Borrower issued to the then existing holders of the Equity Interests of
the Borrower, (ii) Equity Interests of any Subsidiary issued to the then
existing owners of such Subsidiary and (iii) Equity Interests issued to
finance a Permitted Business Acquisition, an Investment permitted by Section
6.04(i) or a permitted Capital Expenditure) net of all taxes and fees
(including investment banking fees), commissions, costs and other expenses, in
each case incurred in connection with such issuance or sale.
For purposes of calculating the amount of Net Proceeds,
fees, commissions and other costs and expenses payable to the Borrower or any
Affiliate thereof shall be disregarded, except for financial advisory fees
customary in type and amount paid to Affiliates of SkyTerra.
"Non-Consenting Lender" shall have the meaning assigned to
such term in Section 2.19(c).
"Note" shall have the meaning assigned to such term in
Section 2.09(e).
"Offering Memorandum" shall mean the certain preliminary
offering memorandum dated April 5, 2005 relating to the Borrower's proposed
offering of senior notes.
"Other Taxes" shall mean any and all present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, the Second Lien Loan
Documents, and any and all interest and penalties related thereto.
"Parents" shall have the meaning assigned to such term in
the first recital hereto.
"Parent Pledge Agreement" shall mean the Second Lien Parent
Pledge Agreement, as amended, supplemented or otherwise modified from time to
time, in the form of Exhibit H, to be made by the Parents in favor of the
Administrative Agent, for the ratable benefit of the Lenders.
"Participant" shall have the meaning assigned to such term
in Section 9.04(c).
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
"Perfection Certificate" shall mean a certificate in the
form of Annex I to the Second Lien Collateral Agreement or any other form
approved by the Administrative Agent.
"Permitted Business Acquisition" shall mean any acquisition
of all or substantially all the assets of, or all the Equity Interests (other
than directors' qualifying shares) in, a person or division or line of
business of a person (or any subsequent investment made in a person, division
or line of business previously acquired in a Permitted Business Acquisition)
if (a) such acquisition was not preceded by, or effected pursuant to, an
unsolicited or hostile offer by the acquirer or an Affiliate of the acquirer
and (b) immediately after giving effect thereto: (i) no Event of Default shall
have occurred and be continuing or would result therefrom; (ii) all
transactions related thereto shall be consummated in accordance with
applicable laws; and (iii) (A) the Borrower and its Subsidiaries shall be in
compliance, on a pro forma basis after giving effect to such acquisition or
formation, with the covenants contained in Sections 6.12 and 6.13 recomputed
as at the last day of the most recently ended fiscal quarter of the Borrower
and its Subsidiaries, and the Borrower shall have delivered to the
Administrative Agent a certificate of a Responsible Officer of the Borrower to
such effect, together with all relevant financial information for such
Subsidiary or assets, and (B) any acquired or newly formed Subsidiary shall
not be liable for any Indebtedness (except for Indebtedness permitted by
Section 6.01).
"Permitted Cure Security" shall mean an equity security of
the Borrower having no mandatory redemption, repurchase or similar
requirements prior to 91 days after the Maturity Date, and upon which all
dividends or distributions (if any) shall, prior to 91 days after the Maturity
Date, be payable solely in additional shares of such equity security.
"Permitted Debt Securities" shall mean unsecured senior or
senior subordinated notes issued by the Borrower (a) the terms of which do not
provide for any scheduled repayment, mandatory redemption or sinking fund
obligation prior to the date that is six months after the Maturity Date
(except that any such obligations in the nature of "bridge" notes or loans (i)
may be subject to prepayment with the proceeds of Permitted Refinancing
Indebtedness in respect thereof or the issuance of Equity Interests or asset
sales permitted to be issued or made hereunder and the proceeds of which are
permitted hereunder to be used for such purpose and (ii) may be subject to
scheduled repayment or mandatory redemption, in each case to the extent that
the Borrower has the right to cause such obligations to be exchanged for, or
redeemed with, Permitted Refinancing Indebtedness in respect thereof), (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, in
the reasonable judgment of the Administrative Agent, generally consistent with
those applicable to similar securities issued by companies with credit
characteristics similar to those of the Borrower, (c) in respect of which no
Subsidiary of the Borrower that is not an obligor under the Second Lien Loan
Documents is an obligor and (d) the proceeds of which are used to pay or
prepay Loans, to pay or prepay term loans or reduce revolving commitments
under the First Lien Credit Agreement or to finance a Permitted Business
Acquisition or any Investment permitted pursuant to Section 6.04(i); provided
that any Permitted Debt Securities used to finance a Permitted Business
Acquisition or Investment shall provide for subordination of payments in
respect of such notes to the Second Lien Credit Agreement Obligations and
guarantees thereof under the Second Lien Loan Documents in a manner reasonably
satisfactory to the Administrative Agent.
"Permitted Holders" shall mean each of DirecTV, Apollo and
SkyTerra and their Affiliates.
"Permitted Investments" shall mean:
(a) U.S. dollars, pounds sterling, euros, national
currency of any participating member state in the European Union or, in the
case of any Foreign Subsidiary, such local currencies held by it from time to
time in the ordinary course of business;
(b) securities issued or directly and fully guaranteed
or insured by the government of the United States or any country that is a
member of the European Union or any agency or instrumentality thereof, in each
case with maturities not exceeding two years from the date of acquisition;
(c) certificates of deposit, time deposits and
eurodollar time deposits with maturities of one year or less from the date of
acquisition, bankers' acceptances, in each case with maturities not exceeding
one year, and overnight bank deposits, in each case with any commercial bank
having capital and surplus in excess of $250.0 million, or the foreign
currency equivalent thereof, and whose long-term debt is rated "A" or the
equivalent thereof by Moody's or S&P (or reasonably equivalent ratings of
another internationally recognized ratings agency);
(d) repurchase obligations for underlying securities of
the types described in clauses (b) and (c) above entered into with any
financial institution meeting the qualifications specified in clause (c)
above;
(e) commercial paper issued by a corporation (other
than an Affiliate of the Borrower) rated at least "A-1" or the equivalent
thereof by Moody's or S&P (or reasonably equivalent ratings of another
internationally recognized ratings agency) and in each case maturing within
one year after the date of acquisition;
(f) readily marketable direct obligations issued by any
state of the United States of America or any political subdivision thereof
having one of the two highest rating categories obtainable from either Moody's
or S&P (or reasonably equivalent ratings of another internationally recognized
ratings agency) in each case with maturities not exceeding two years from the
date of acquisition;
(g) Indebtedness issued by Persons (other than the
Permitted Holders or any of their Affiliates) with a rating of "A" or higher
from S&P or "A-2" or higher from Moody's (or reasonably equivalent ratings of
another internationally recognized ratings agency) in each case with
maturities not exceeding two years from the date of acquisition;
(h) investment funds investing at least 95% of their
assets in securities of the types described in clauses (a) through (g) above;
"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 refinancings
thereof constituting Permitted Refinancing Indebtedness); provided that (a)
the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness (including the principal amount of commitments under
any revolving credit facility) does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness so Refinanced (including
the principal amount of commitments under any revolving credit facility) (plus
unpaid accrued interest and premium thereon and underwriting discounts, fees,
commissions and expenses), (b) the average life to maturity of such Permitted
Refinancing Indebtedness is greater than or equal to that of the Indebtedness
being Refinanced, (c) if the Indebtedness being Refinanced is subordinated in
right of payment to the Second Lien Credit Agreement Obligations, such
Permitted Refinancing Indebtedness shall be subordinated in right of payment
to such Second Lien Credit Agreement 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 obligors that are not Loan Parties, or greater guarantees or security,
than the Indebtedness being Refinanced and (e) if the Indebtedness being
Refinanced is secured by any collateral (whether equally and ratably with, or
junior to, the Secured Parties or otherwise), such Permitted Refinancing
Indebtedness may be secured by such collateral (including in respect of
working capital facilities of Foreign Subsidiaries otherwise permitted under
this Agreement only, any collateral pursuant to after-acquired property
clauses to the extent any such collateral secured the Indebtedness being
Refinanced) on terms no less favorable to the Secured Parties than those
contained in the documentation (including any intercreditor agreement)
governing the Indebtedness being Refinanced; and provided further, that with
respect to a Refinancing of Permitted Debt Securities, such Permitted
Refinancing Indebtedness shall meet the requirements of clauses (a), (b) and
(c) of the definition of "Permitted Debt Securities."
"Person" or "person" shall mean any individual, corporation,
partnership, limited liability company, Joint Venture, association,
joint-stock company, trust, unincorporated organization, government or any
agency or political subdivision thereof or any other entity.
"Plan" shall mean any employee pension benefit plan (other
than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code and in respect of which the Borrower, any Subsidiary
or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"Platform" shall have the meaning assigned to such term in
Section 9.17(b).
"Pledged Collateral" shall have the meaning assigned to such
term in the Second Lien Collateral Agreement.
"Preferred Stock" means any Equity Interest with
preferential right of payment of dividends or upon liquidation, dissolution or
winding up.
"Projections" shall mean any projections and any
forward-looking statements (including statements with respect to booked
business) of such entities furnished to the Lenders or the Administrative
Agent by or on behalf of the Borrower or any of the Subsidiaries prior to the
Closing Date.
"Presumed Tax Rate" shall mean the highest effective
marginal statutory combined U.S. federal, state and local income tax rate
prescribed for an individual residing in New York City (taking into account
(a) the deductibility of state and local income taxes for U.S. federal income
tax purposes, assuming the limitation of Section 68(a)(2) of the Code applies
and taking into account any impact of Section 68(f) of the Code, and (b) the
character (long-term or short-term capital gain, dividend income or other
ordinary income) of the applicable income).
"Purchase Money Note" shall mean a promissory note of a
Receivables Subsidiary evidencing a line of credit, which may be irrevocable,
from the Borrower or any Subsidiary of the Borrower to a Receivables
Subsidiary in connection with a Qualified Receivables Financing, which note is
intended to finance that portion of the purchase price that is not paid by
cash or a contribution of equity.
"Qualified IPO" shall mean an underwritten public offering
of the Equity Interests of the Borrower, which generates cash proceeds to the
Borrower of at least $100.0 million.
"Qualified Receivables Financing" shall mean any Receivables
Financing of a Receivables Subsidiary that meets the following conditions:
(a) senior management or the Board of Directors of the
Borrower shall have determined in good faith that such Qualified Receivables
Financing (including financing terms, covenants, termination events and other
provisions) is in the aggregate economically fair and reasonable to the
Borrower and the Receivables Subsidiary,
(b) all sales of accounts receivable and related assets
to the Receivables Subsidiary (or valid capital contributions made to the
Receivables Subsidiary) are made at Fair Market Value (as determined in good
faith by senior management or the Board of Directors of the Borrower), and
(c) the financing terms, covenants, termination events
and other provisions thereof shall be market terms (as determined in good
faith by senior management or the Board of Directors of the Borrower) and may
include Standard Securitization Undertakings.
"Quotation Day" shall mean, with respect to any Eurocurrency
Borrowing and any Interest Period, the day on which it is market practice in
the relevant interbank market for prime banks to give quotations for deposits
in the currency of such Borrowing for delivery on the first day of such
Interest Period. If such quotations would normally be given by prime banks on
more than one day, the Quotation Day will be the last of such days.
"Receivables Fees" shall mean distributions or payments made
directly or by means of discounts with respect to any participation interest
issued or sold in connection with, and other fees paid to a Person that is not
a Subsidiary in connection with any Receivables Financing.
"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 (a)
sell, convey or otherwise transfer to (i) a Receivables Subsidiary (in the
case of a transfer by the Borrower or any of its Subsidiaries), (ii) any other
Person (in the case of a transfer by a Receivables Subsidiary), or (iii) a
third party that is financing the same in a customary repurchase arrangement
in contemplation of a subsequent transfer to a Receivables Subsidiary in a
Receivables Financing or (b) 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 Hedging Obligations 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" means a Wholly Owned 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 Subsidiaries, all
proceeds thereof and all rights (contractual or other), collateral and other
assets relating thereto, and any business or activities incidental or related
to such business, and which is designated by the Board of Directors of the
Borrower (as provided below) as a Receivables Subsidiary and:
(a) no portion of the Indebtedness or any other
obligations (contingent or otherwise) of which (i) is guaranteed by the
Borrower or any other Subsidiary of the Borrower (excluding guarantees of
obligations (other than the principal of, and interest on, Indebtedness)
pursuant to Standard Securitization Undertakings), (ii) is recourse to or
obligates the Borrower or any other Subsidiary of the Borrower in any way
other than pursuant to Standard Securitization Undertakings or (iii) subjects
any property or asset of the Borrower or any other Subsidiary of the Borrower,
directly or indirectly, contingently or otherwise, to the satisfaction
thereof, other than pursuant to Standard Securitization Undertakings,
(b) with which neither the Borrower nor any other
Subsidiary of the Borrower has any material contract, agreement, arrangement
or understanding other than on terms which the Borrower reasonably believes to
be, on the whole, 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 delivery to the
Administrative Agent a certified copy of the resolution of the Board of
Directors of the Borrower giving effect to such designation and a certificate
of a Responsible Officer certifying that such designation complied with the
foregoing conditions.
"Reference Date" shall have the meaning assigned to such
term in Section 2.11(a).
"Refinance" shall have the meaning assigned to such term in
the definition of the term "Permitted Refinancing Indebtedness," and
"Refinanced" shall have a meaning correlative thereto.
"Register" shall have the meaning assigned to such term in
Section 9.04(b).
"Regulation U" shall mean Regulation U of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Regulation X" shall mean Regulation X of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Related Parties" shall mean, with respect to any specified
person, such person's Affiliates and the respective directors, officers,
employees, agents and advisors of such person and such person's Affiliates.
"Release" shall mean any spilling, leaking, seepage,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, disposing, depositing, emanating or migrating in, into,
onto or through the environment.
"Remaining Present Value" shall mean, as of any date with
respect to any lease, the present value as of such date of the scheduled
future lease payments with respect to such lease, determined with a discount
rate equal to a market rate of interest for such lease reasonably determined
at the time such lease was entered into.
"Reportable Event" shall mean any reportable event as
defined in Section 4043(c) of ERISA or the regulations issued thereunder,
other than those events as to which the 30-day notice period referred to in
Section 4043(c) of ERISA has been waived, with respect to a Plan (other than a
Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate
only pursuant to subsection (m) or (o) of Section 414 of the Code).
"Required Lenders" shall mean, at any time, Lenders having
Loans outstanding, that taken together, represent more than 50% of the sum of
all Loans outstanding at such time. The Loans of any Defaulting Lender shall
be disregarded in determining Required Lenders at any time.
"Required Percentage" shall mean, with respect to an Excess
Cash Flow Period, 75%, provided that if the Debt to Adjusted EBITDA Ratio at
the end of any Excess Cash Flow Period is (a) less than or equal to 3.00 to
1.00 but greater than 2.50 to 1.00, such percentage shall be reduced to 50%
and (b) less than or equal to 2.50 to 1.00, such percentage shall be reduced
to 25%.
"Responsible Officer" of any person shall mean any executive
officer or Financial Officer of such person and any other officer or similar
official thereof responsible for the administration of the obligations of such
person in respect of this Agreement.
"S&P" shall mean Standard & Poor's Ratings Group, Inc.
"Sale and Lease-Back Transaction" shall have the meaning
assigned to such term in Section 6.03.
"Satellite" shall mean any satellite owned by the Borrower
or any of its Subsidiaries and any satellite purchased by the Borrower or any
of its Subsidiaries 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 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 Subsidiary
that is a party to a Satellite Purchase Agreement.
"SEC" shall mean the Securities and Exchange Commission or
any successor thereto.
"Second Lien Collateral Agreement" shall mean the Second
Lien Guarantee and Collateral Agreement, as amended, supplemented or otherwise
modified from time to time, in the form of Exhibit E, among, the Borrower,
each Subsidiary Loan Party and the Administrative Agent.
"Second Lien Credit Agreement Obligations" shall mean all
amounts owing to the Administrative Agent or any Lender pursuant to the terms
of this Agreement or any other Second Lien Loan Document.
"Second Lien Loan Documents" shall mean this Agreement, the
Second Lien Security Documents, the Intercreditor Agreement and any promissory
note issued under Section 2.09(e), and solely for the purposes of paragraph
(r) of Article IV and Section 7.01(c), the Fee Letter, dated December 2, 2004,
as amended on January 27, 2005, by and among the Parents, the Administrative
Agent, JPMorgan Chase Bank, N.A. and the Joint Lead Arrangers.
"Second Lien Security Documents" shall mean the Mortgages,
the Second Lien Collateral Agreement, the Foreign Pledge Agreements, the
Parent Pledge Agreement and each of the security agreements, mortgages and
other instruments and documents executed and delivered pursuant to any of the
foregoing or pursuant to Section 5.10.
"Secured Parties" shall mean the "Secured Parties" as
defined in the Second Lien Collateral Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the SEC promulgated thereunder..
"Sellers" shall have the meaning assigned to such term in
the first recital hereto.
"SkyTerra" shall have the meaning assigned to such term in
the first recital hereto.
"SPACEWAY" shall have the meaning assigned to such term in
the first recital hereto.
"SPACEWAY Services Agreement" shall mean the SPACEWAY
Services Agreement to be executed by the Borrower and DIRECTV on the Closing
Date for the provision of technical services to each other in connection with
SPACEWAY assets, as such agreement may be amended, modified or otherwise
supplemented from time to time.
"Standard Securitization Undertakings" means
representations, warranties, covenants, indemnities and guarantees of
performance entered into by the Borrower or any Subsidiary of the Borrower
which senior management or the Board of Directors of the Borrower has
determined in good faith to be either customary in a Receivables Financing or,
when taken as a whole, to be more favorable to the Borrower than in a
customary 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.
"Statutory Reserves" shall mean, with respect to any
currency, any reserve, liquid asset or similar requirements established by any
Governmental Authority of the United States of America or of the jurisdiction
of such currency or any jurisdiction in which Loans in such currency are made
to which banks in such jurisdiction are subject for any category of deposits
or liabilities customarily used to fund loans in such currency or by reference
to which interest rates applicable to Loans in such currency are determined.
"Subsidiary" shall mean, with respect to any Person, (a) any
corporation, association or other business entity (other than a partnership,
joint venture or limited liability company) of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time of determination owned or controlled,
directly or indirectly, by such Person or one or more of the other
Subsidiaries of such Person or a combination thereof, (b) any partnership,
joint venture or limited liability company of which (i) more than 50% of the
capital accounts, distribution rights, total equity and voting interests or
general and limited partnership interests, as applicable, are owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person or a combination thereof, whether in the form of
membership, general, special or limited partnership interests or otherwise,
and (ii) such Person or any Wholly Owned Subsidiary of such Person is a
controlling general partner or otherwise controls such entity and (c) any
Person that is consolidated in the consolidated financial statements of the
specified Person in accordance with GAAP.
"Subsidiary Loan Party" shall mean (a) each Wholly Owned
Subsidiary of the Borrower that is at any time a Material Subsidiary and not
(i) a Foreign Subsidiary, (ii) a License Subsidiary, (iii) a Receivables
Subsidiary or (iv) listed on Schedule 1.01(a) and (b) each Domestic Subsidiary
of the Borrower or the Subsidiaries that guarantees the obligations under the
First Lien Credit Agreement.
"Subtracted Historical Adjustment" shall mean the gain on
sale of real estate for purposes of calculating Adjusted EBITDA, in the amount
set forth in and as further described in the Offering Memorandum, but only to
the extent the adjustment for such gain occurred in the consecutive four
quarter period referred to in the definition of Debt to Adjusted EBITDA Ratio.
"Swap Agreement" shall mean any agreement with respect to
any swap, forward, future or derivative transaction or option or similar
agreement involving, or settled by reference to, one or more rates,
currencies, commodities, equity or debt instruments or securities, or
economic, financial or pricing indices or measures of economic, financial or
pricing risk or value or any similar transaction or any combination of these
transactions, provided that no phantom stock or similar plan providing for
payments only on account of services provided by current or former directors,
officers, employees or consultants of the Borrower or any of its Subsidiaries
shall be a Swap Agreement.
"Syndication Agent" shall have the meaning assigned to such
term in the introductory paragraph of this Agreement.
"Taxes" shall mean any and all present or future taxes,
levies, imposts, duties (including stamp duties), deductions, charges
(including ad valorem charges) or withholdings imposed by any Governmental
Authority and any and all interest and penalties related thereto.
"Total Assets" shall mean, with respect to any Person, the
total consolidated assets of such Person and its Subsidiaries, as shown on the
most recent balance sheet.
"Transaction Agreement" shall have the meaning given such
term in the recitals hereto.
"Transaction Documents" shall mean the Transaction
Agreement, the First Lien Loan Documents, the Second Lien Loan Documents and,
in each case, any other document entered into in connection therewith, in each
case as amended, supplemented or modified from time to time.
"Transactions" shall mean, collectively, the transactions to
occur pursuant to the Transaction Documents, including (a) the consummation of
the Acquisition and the execution and delivery of the Transaction Agreement;
(b) the execution and delivery of the Second Lien Loan Documents and the
borrowings hereunder; (c) the Contribution Financing; (d) the borrowing of
First Lien Term Loans and the execution and delivery of the First Lien Loan
Documents; and (e) the payment of all fees and expenses to be paid on or prior
to the Closing Date and owing in connection with the foregoing.
"Type", when used in respect of any Loan or Borrowing, shall
refer to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, the term "Rate"
shall include the Adjusted LIBO Rate and the ABR.
"U.S. Bankruptcy Code" shall mean Title 11 of the United
States Code, as amended, or any similar federal or state law for the relief of
debtors.
"Wholly Owned Subsidiary" of any Person shall mean 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 and one or more Wholly Owned Subsidiaries of such Person.
"Withdrawal Liability" shall mean liability to a
Multiemployer Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title
IV of ERISA.
"Working Capital" shall mean, with respect to the Borrower
and the Subsidiaries on a consolidated basis at any date of determination,
Current Assets at such date of determination minus Current Liabilities at such
date of determination; provided that, for purposes of calculating Excess Cash
Flow, increases or decreases in Working Capital shall be calculated without
regard to any changes in Current Assets or Current Liabilities as a result of
(a) any reclassification in accordance with GAAP of assets or liabilities, as
applicable, between current and noncurrent or (b) the effects of purchase
accounting.
SECTION 1.02. Terms Generally. The definitions set forth or
referred to in Section 1.01 shall apply equally to both the singular and
plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include," "includes" and "including" shall be deemed to be followed
by the phrase "without limitation." All references herein to Articles,
Sections, Exhibits and Schedules shall be deemed references to Articles and
Sections of, and Exhibits and Schedules to, this Agreement unless the context
shall otherwise require. Except as otherwise expressly provided herein, any
reference in this Agreement to any Second Lien Loan Document shall mean such
document as amended, restated, supplemented or otherwise modified from time to
time. Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as
in effect from time to time; provided that, if the Borrower notifies the
Administrative Agent that the Borrower requests an amendment to any provision
hereof to eliminate the effect of any change occurring after the Closing Date
in GAAP or in the application thereof on the operation of such provision (or
if the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of
GAAP as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision
amended in accordance herewith.
SECTION 1.03. Effectuation of Transfers. Each of the
representations and warranties of the Borrower contained in this Agreement
(and all corresponding definitions) are made after giving effect to the
Transactions (or such portion thereof as shall have been consummated as of the
date of the applicable representation or warranty), unless the context
otherwise requires.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and
conditions set forth herein, each Lender agrees to make Loans to the Borrower
on the Closing Date in a principal amount not to exceed its Commitment;
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be
made as part of a Borrowing consisting of Loans of the same Type made by the
Lenders ratably in accordance with their respective Commitments. The failure
of any Lender to make any Loan required to be made by it shall not relieve any
other Lender of its obligations hereunder; provided that the Commitments of
the Lenders are several and no Lender shall be responsible for any other
Lender's failure to make Loans as required.
(b) Subject to Section 2.14, each Borrowing shall be
comprised entirely of ABR Loans or Eurocurrency Loans as the Borrower may
request in accordance herewith. Each Lender at its option may make any ABR
Loan or Eurocurrency Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such
option shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement and such Lender shall not be
entitled to any amounts payable under Section 2.15 or 2.17 solely in respect
of increased costs resulting from such exercise and existing at the time of
such exercise.
(c) At the commencement of each Interest Period for any
Eurocurrency Borrowing, such Borrowing shall be in an aggregate amount that is
an integral of the Borrowing Multiple and not less than the Borrowing Minimum.
There shall not at any time be more than a total of 5 Eurocurrency Borrowings
outstanding.
(d) Notwithstanding any other provision of this Agreement,
no Borrower shall be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. Requests for Borrowings. To request a
Borrowing, the Borrower shall notify the Administrative Agent of such request
by telephone (a) in the case of a Eurocurrency Borrowing, not later than 11:00
a.m., Local Time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 12:00 noon,
Local Time, one Business Day before the date of the proposed Borrowing. Each
such telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing (provided that the initial Borrowing on the
Closing Date shall be an ABR Borrowing);
(iv) in the case of a Eurocurrency Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by clause (a) of the definition of the term "Interest
Period"; and
(v) the location and number of the Borrower's account to
which funds are to be disbursed.
If no Interest Period is specified with respect to any requested Eurocurrency
Borrowing, then the Borrower shall be deemed to have selected an Interest
Period of one month's duration. Promptly following receipt of a Borrowing
Request in accordance with this Section, the Administrative Agent shall advise
each Lender of the details thereof and of the amount of such Lender's Loan to
be made as part of the requested Borrowing.
SECTION 2.04. [Reserved]
SECTION 2.05. [Reserved]
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, Local Time, to the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent will make such
Loans available to the Borrower by promptly crediting the amounts so received,
in like funds, to an account of the Borrower maintained with the
Administrative Agent in New York City.
(b) Unless the Administrative Agent shall have received
notice from a Lender prior to the proposed date of any Borrowing that such
Lender will not make available to the Administrative Agent such Lender's share
of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of
this Section and may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand (without duplication) such
corresponding amount with interest thereon, for each day from and including
the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such
Lender, the Federal Funds Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation or
(ii) in the case of the Borrower, the interest rate applicable to ABR Loans.
If such Lender pays such amount to the Administrative Agent, then such amount
shall constitute such Lender's Loan included in such Borrowing. If such
Borrower pays such amount to the Administrative Agent, then such amount shall
constitute a reduction of such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurocurrency Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. Thereafter, the Borrower may
elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurocurrency Borrowing, may elect Interest
Periods therefor, all as provided in this Section. The Borrower may elect
different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among
the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the
Borrower shall notify the Administrative Agent of such election by telephone
by the time that a Borrowing Request would be required under Section 2.03 if
such Borrower were requesting a Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of
a written Interest Election Request in a form approved by the Administrative
Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to each
resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to
such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing,
the Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by clause (a) of the
definition of the term "Interest Period."
If any such Interest Election Request requests a Eurocurrency Borrowing but
does not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender to which such
Interest Election Request relates of the details thereof and of such Lender's
portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurocurrency Borrowing prior to the end of
the Interest Period applicable thereto, then, unless such Borrowing is repaid
as provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing and the Administrative
Agent, at the written request (including a request through electronic means)
of the Required Lenders, so notifies the Borrower, then, so long as an Event
of Default is continuing (i) no outstanding Borrowing may be converted to or
continued as a Eurocurrency Borrowing and (ii) unless repaid, each
Eurocurrency Borrowing shall be converted to an ABR Borrowing at the end of
the Interest Period applicable thereto.
SECTION 2.08. [Reserved]
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each Loan
of such Lender as provided in Section 2.10.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
(c) The Administrative Agent shall maintain accounts in
which it shall record (i) the amount of each Loan made hereunder, the Type
thereof and the Interest Period (if any) 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 hereunder and (iii) any amount received by the
Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be
evidenced by a promissory note (a "Note"). In such event, the Borrower shall
prepare, execute and deliver to such Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 9.04) be
represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note,
to such payee and its registered assigns).
SECTION 2.10. Repayment of Loans. (a) Subject to the other
paragraphs of this Section, the Borrower shall repay Borrowings on each date
set forth below in the aggregate principal amount set forth opposite such date
(each such date being referred to as a "Loan Installment Date"):
Amount of
Date Borrowings to Be Repaid
------------------ -----------------------
June 30, 2007 $187,500
September 30, 2007 $187,500
December 31, 2007 $187,500
March 31, 2008 $187,500
June 30, 2008 $187,500
September 30, 2008 $187,500
December 31, 2008 $187,500
March 31, 2009 $187,500
June 30, 2009 $187,500
September 30, 2009 $187,500
December 31, 2009 $187,500
March 31, 2010 $187,500
June 30, 2010 $187,500
September 30, 2010 $187,500
December 31, 2010 $187,500
March 31, 2011 $187,500
June 30, 2011 $187,500
September 30, 2011 $187,500
December 31, 2011 $187,500
March 31, 2012 $187,500
June 30, 2012 $187,500
September 30, 2012 $187,500
December 31, 2012 $187,500
April 22, 2013 $70,687,500
(b) [Reserved]
(c) Prepayments of the Borrowings from:
(i) all Net Proceeds pursuant to Section 2.11(b) and Excess
Cash Flow pursuant to Section 2.11(c) shall be applied:
(A) first to reduce in direct order of maturity the
scheduled installments of the Loans occurring within the 12-month
period after the date of such payment; and
(B) second to reduce the remaining scheduled
installments of the Loans ratably in accordance with the principal
amount thereof.
Notwithstanding anything to the contrary in this clause (c)(i) or in
Section 2.11, no prepayment of the Loans shall be required hereunder
unless or until (1) such prepayment of the Loans is required by the
terms of Section 2.11 of the First Lien Credit Agreement or (2) all
commitments under the First Lien Credit Agreement have been
terminated, no letters or credit are outstanding thereunder and all
loans and other amounts payable thereunder have been paid in full in
cash.
(ii) any optional prepayments of the Loans pursuant to
Section 2.11(a) shall be applied to the remaining installments thereof
as directed by the Borrower.
(d) Prior to any repayment of any Borrowing, the Borrower
shall select the Borrowing or Borrowings to be prepaid or repaid and shall
notify the Administrative Agent by telephone (confirmed by telecopy) of such
selection not later than 2:00 P.M., Local Time, (i) in the case of an ABR
Borrowing, one Business Day before the scheduled date of such repayment and
(ii) in the case of a Eurocurrency Borrowing, three Business Days before the
scheduled date of such repayment. Each repayment of a Borrowing shall be
applied ratably to the Loans included in the repaid Borrowing. Repayments of
Borrowings shall be accompanied by accrued interest on the amount repaid.
SECTION 2.11. Prepayment of Loans. (a) The Borrower shall
have the right at any time and from time to time to prepay any Borrowing in
whole or in part (but subject to Section 2.16), in an aggregate principal
amount that is an integral multiple of the Borrowing Multiple and not less
than the Borrowing Minimum or, if less, the amount outstanding, subject to
prior notice in accordance with Section 2.10(d). All prepayments of Loans
occuring on or after the Reference Date shall be at par plus a premium. During
the period from the date that is the earlier of to occur of (i) the first date
on which either Initial Lender makes any assignment of Loans pursuant to
Section 9.04 and (ii) the date 60 days after the Closing Date (such earlier
date, the "Reference Date") to and including the first anniversary of the
Reference Date, the premium shall be 2% of the aggregate principal amount
prepaid. The premium shall decline to 1% during the period from but excluding
the first anniversary of the Reference Date to and including the second
anniversary of the Reference Date and after the second anniversary of the
Reference Date, shall be 0%.
(b) The Borrower shall apply all Net Proceeds promptly upon
receipt thereof to prepay Borrowings in accordance with paragraphs (c) and (d)
of Section 2.10.
(c) Subject to Section 2.10(c), not later than 90 days after
the end of each Excess Cash Flow Period beginning on or after January 1, 2008,
the Borrower shall calculate Excess Cash Flow for such Excess Cash Flow Period
and shall apply an amount equal to the excess of (i) the Required Percentage
of such Excess Cash Flow minus (ii) the prepayments during such Excess Cash
Flow Period on account of the Loans pursuant to Section 2.11(a) to prepay
Borrowings in accordance with paragraphs (c) and (d) of Section 2.10. Subject
to Section 2.10(c), not later than the date on which the Borrower is required
to deliver financial statements with respect to the end of each Excess Cash
Flow Period under Section 5.04(a), the Borrower will deliver to the
Administrative Agent a certificate signed by a Responsible Officer of the
Borrower setting forth the amount, if any, of Excess Cash Flow for such fiscal
year and the calculation thereof in reasonable detail.
SECTION 2.12. Administrative Agent Fees. The Borrower agrees
to pay to the Administrative Agent, for the account of the Administrative
Agent, the fees set forth in the Second Lien Administrative Agent Fee Letter
dated as of the date hereof, as amended, restated, supplemented or otherwise
modified from time to time, at the times specified therein (the
"Administrative Agent Fees").
SECTION 2.13. Interest. (a) The Loans comprising each ABR
Borrowing shall bear interest at the ABR plus the Applicable Margin.
(b) The Loans comprising each Eurocurrency Borrowing shall
bear interest at the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Margin.
(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fees (including the Administrative Agent Fees) or
other amount payable by the Borrower hereunder is not paid when due, whether
at stated maturity, upon acceleration or otherwise, such overdue amount shall
at the option of the Administrative Agent bear interest, after as well as
before judgment, at a rate per annum equal to (i) in the case of overdue
principal of any Loan, 2% plus the rate otherwise applicable to such Loan as
provided in the preceding paragraphs of this Section or (ii) in the case of
any other amount, 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section; provided that this paragraph (c) shall not
apply to any Event of Default that has been waived by the Lenders pursuant to
Section 9.08.
(d) Accrued interest on each Loan shall be payable in
arrears (i) on each Interest Payment Date for such Loan and the Maturity Date;
provided that (i) interest accrued pursuant to paragraph (c) of this Section
shall be payable on demand, (ii) in the event of any repayment or prepayment
of any Loan, accrued interest on the principal amount repaid or prepaid shall
be payable on the date of such repayment or prepayment and (iii) in the event
of any conversion of any Eurocurrency Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on
the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of
a year of 360 days, except that interest computed by reference to the ABR
shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable ABR,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative
Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing denominated
in any currency:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable means
do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such
Interest Period will not adequately and fairly reflect the cost to such
Lenders of making or maintaining their Loans included in such Borrowing for
such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrowers and
the Lenders by telephone or telecopy as promptly as practicable thereafter
and, until the Administrative Agent notifies the Borrowers and the Lenders
that the circumstances giving rise to such notice no longer exist, (i) any
Interest Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurocurrency Borrowing denominated in such
currency shall be ineffective and such Borrowing shall be converted to or
continued as on the last day of the Interest Period applicable thereto an ABR
Borrowing, and (ii) if any Borrowing Request requests a Eurocurrency
Borrowing, such Borrowing shall be made as an ABR Borrowing.
SECTION 2.15. Increased Costs. (a) If any Change in Law
shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurocurrency Loans made by
such Lender or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan (or of maintaining its
obligation to make any such Loan) or to reduce the amount of any sum received
or receivable by such Lender hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender , as applicable, such
additional amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered.
(b) [reserved].
(c) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or its holding company, as
applicable, as specified in paragraph (a) of this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within
10 days after receipt thereof.
(d) Promptly after any Lender has determined that it will
make a request for increased compensation pursuant to this Section 2.15, such
Lender shall notify the Borrower thereof. Failure or delay on the part of any
Lender to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's right to demand such compensation; provided that the
Borrower shall not be required to compensate a Lender pursuant to this Section
for any increased costs or reductions incurred more than 180 days prior to the
date that such Lender notifies the Borrower of the Change in Law giving rise
to such increased costs or reductions and of such Lender's intention to claim
compensation therefor; provided, further, that, if the Change in Law giving
rise to such increased costs or reductions is retroactive, then the 180-day
period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.16. Break Funding Payments. In the event of (a)
the payment of any principal of any Eurocurrency Loan other than on the last
day of an Interest Period applicable thereto (including as a result of an
Event of Default), (b) the conversion of any Eurocurrency Loan other than on
the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Eurocurrency Loan on the date
specified in any notice delivered pursuant hereto or (d) the assignment of any
Eurocurrency Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by a Borrower pursuant to Section 2.19, then,
in any such event, the Borrower shall compensate each Lender for the loss,
cost and expense attributable to such event incurred by such Lender. In the
case of a Eurocurrency Loan, such loss, cost or expense to any Lender shall be
the amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such
Loan had such event not occurred, at the Adjusted LIBO Rate that would have
been applicable to such Loan, for the period from the date of such event to
the last day of the then current Interest Period therefor (or, in the case of
a failure to borrow, convert or continue a Eurocurrency Loan, for the period
that would have been the Interest Period for such Loan), over (ii) the amount
of interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement
of such period, for deposits in dollars of a comparable amount and period from
other banks in the Eurodollar market. A certificate of any Lender setting
forth any amount or amounts that such Lender is entitled to receive pursuant
to this Section shall be delivered to such Borrower and shall be conclusive
absent manifest error. Such Borrower shall pay such Lender the amount shown as
due on any such certificate within 10 days after receipt thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or on
account of any obligation of any Loan Party hereunder shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that if a Loan Party shall be required to deduct any Indemnified
Taxes or Other Taxes from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) the
Administrative Agent or any Lender receives an amount equal to the sum it
would have received had no such deductions been made, (ii) such Loan Party
shall make such deductions and (iii) such Loan Party shall timely pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In addition, the Loan Parties shall pay any Other Taxes
to the relevant Governmental Authority in accordance with applicable law.
(c) Each Loan Party shall indemnify the Administrative Agent
each Lender, within 10 days after written demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes paid by the Administrative Agent or
such Lender on or with respect to any payment by or on account of any
obligation of such Loan Party hereunder (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other 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 such
Loan Party by a Lender, or by the Administrative Agent on its own behalf, on
behalf of another Agent or on behalf of a Lender, shall be conclusive absent
manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by a Loan Party to a Governmental Authority, such Loan
Party shall deliver to the Administrative Agent the original or a certified
copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such
payment reasonably satisfactory to the Administrative Agent.
(e) Any Lender that is entitled to an exemption from or
reduction of withholding Tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), to the extent such Lender is legally
entitled to do so, at the time or times prescribed by applicable law, such
properly completed and executed documentation prescribed by applicable law as
may reasonably be requested by the Borrower to permit such payments to be made
without such withholding tax or at a reduced rate; provided that no Lender
shall have any obligation under this paragraph (e) with respect to any
withholding Tax imposed by any jurisdiction other than the United States if in
the reasonable judgment of such Lender such compliance would subject such
Lender to any material unreimbursed cost or expense or would otherwise be
disadvantageous to such Lender in any material respect.
(f) If the Administrative Agent or a Lender receives a
refund of any Indemnified Taxes or Other Taxes as to which it has been
indemnified by a Loan Party or with respect to which such Loan Party has paid
additional amounts pursuant to this Section 2.17, it shall pay over such
refund to such Loan Party (but only to the extent of indemnity payments made,
or additional amounts paid, by such Loan Party under this Section 2.17 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender (including
any Taxes imposed with respect to such refund) as is determined by the
Administrative Agent or Lender in good faith and in its sole discretion, and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided that such Loan Party, upon
the request of the Administrative Agent or such Lender, agrees to repay as
soon as reasonably practicable the amount paid over to such Loan Party (plus
any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender in the event the
Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority. This Section shall not be construed to require the
Administrative Agent or any Lender to make available its Tax returns (or any
other information relating to its Taxes which it deems confidential) to the
Loan Parties or any other person.
SECTION 2.18. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs. (a) Unless otherwise specified, each Borrower shall make
each payment required to be made by it hereunder (whether of principal,
interest, fees or of amounts payable under Section 2.15, 2.16, or 2.17, or
otherwise) prior to 2:00 p.m., Local Time, on the date when due, in
immediately available funds, without condition or deduction for any defense,
recoupment, set-off or counterclaim. Any amounts received after such time on
any date may, in the discretion of the Administrative Agent, be deemed to have
been received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative Agent
to the applicable account designated to the Borrower by the Administrative
Agent, except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.05
shall be made directly to the persons entitled thereto. The Administrative
Agent shall distribute any such payments received by it for the account of any
other person to the appropriate recipient promptly following receipt thereof.
If any payment hereunder shall be due on a day that is not a Business Day, the
date for payment shall be extended to the next succeeding Business Day, and,
in the case of any payment accruing interest, interest thereon shall be
payable for the period of such extension. All payments hereunder shall be made
in Dollars. Any payment required to be made by the Administrative Agent
hereunder shall be deemed to have been made by the time required if the
Administrative Agent shall, at or before such time, have taken the necessary
steps to make such payment in accordance with the regulations or operating
procedures of the clearing or settlement system used by the Administrative
Agent to make such payment.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent from the Borrower to pay fully all
amounts of principal, interest and fees then due from the Borrower hereunder,
such funds shall be applied towards payment of interest and fees then due from
the Borrower hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties.
(c) If any Lender shall, by exercising any right of set-off
or counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans, resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans of other Lenders to the extent necessary so that
the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph (c) shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans, other
than to the Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph (c) shall apply). The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to the Lenders the amount
due. In such event, if the Borrower has not in fact made such payment, then
each of the Lenders severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender with interest
thereon, for each day from and including the date such amount is distributed
to it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.06(b) or 2.18(d), then the Administrative
Agent may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender's obligations under such
Sections until all such unsatisfied obligations are fully paid.
SECTION 2.19. Mitigation Obligations; Replacement of
Lenders. (a) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
then such Lender shall use reasonable efforts to designate a different Lending
Office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or Affiliates, if,
in the reasonable judgment of such Lender, such designation or assignment (i)
would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as
applicable, in the future and (ii) would not subject such Lender to any
material unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender in any material respect. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15,
or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section
2.17, or is a Defaulting Lender, then the Borrower may, at its sole expense
and effort, upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 9.04), all its interests,
rights and obligations under this Agreement to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts
such assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under Section
2.15 or payments required to be made pursuant to Section 2.17, such assignment
will result in a reduction in such compensation or payments. Nothing in this
Section 2.19 shall be deemed to prejudice any rights that the Borrower may
have against any Lender that is a Defaulting Lender.
(c) 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 9.08 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 then
exists, the Borrower shall have the right (unless such Non-Consenting Lender
grants such consent) to replace such Non-Consenting Lender by requiring such
Non-Consenting Lender to assign its Loans, and its Commitments hereunder to
one or more assignees reasonably acceptable to the Administrative Agent,
provided that: (a) all Second Lien Credit Agreement 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. In connection with any such assignment
the Borrower, Administrative Agent, such Non-Consenting Lender and the
replacement Lender shall otherwise comply with Section 9.04.
SECTION 2.20. [Reserved]
SECTION 2.21. Illegality. If any Lender reasonably
determines that any change in law has made it unlawful, or that any
Governmental Authority has asserted after the Closing Date that it is
unlawful, for any Lender or its applicable Lending Office to make or maintain
any Eurocurrency Loans, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent, any obligations of such Lender to make or
continue Eurocurrency Loans or to convert ABR Borrowings to Eurocurrency
Borrowings shall be suspended until such Lender notifies the Administrative
Agent and the Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Borrower shall
upon demand from such Lender (with a copy to the Administrative Agent), either
convert all Eurocurrency Borrowings of such Lender to ABR Borrowings, either
on the last day of the Interest Period therefor, if such Lender may lawfully
continue to maintain such Eurocurrency Borrowings to such day, or immediately,
if such Lender may not lawfully continue to maintain such Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to each of the Lenders
that:
SECTION 3.01. Organization; Powers. Except as set forth on
Schedule 3.01, the Borrower and each of its Subsidiaries (a) is a limited
liability company or corporation duly organized, validly existing and in good
standing (or, if applicable in a foreign jurisdiction, enjoys the equivalent
status under the laws of any jurisdiction of organization outside the United
States) under the laws of the jurisdiction of its organization, (b) has all
requisite power and authority to own its property and assets and to carry on
its business as now conducted, (c) is qualified to do business in each
jurisdiction where such qualification is required, except where the failure so
to qualify could not reasonably be expected to have a Material Adverse Effect,
and (d) has the power and authority to execute, deliver and perform its
obligations under each of the Second Lien Loan Documents and each other
agreement or instrument contemplated thereby to which it is or will be a party
and, in the case of the Borrower, to borrow and otherwise obtain credit
hereunder.
SECTION 3.02. Authorization. The execution, delivery and
performance by the Borrower, and each of the Subsidiary Loan Parties of each
of the Second Lien Loan Documents to which it is a party, and the borrowings
hereunder and the transactions forming a part of the Transactions (a) have
been duly authorized by all corporate, stockholder, or limited liability
company action required to be obtained by the Borrower and such Subsidiary
Loan Parties and (b) will not (i) violate (A) any provision of law, statute,
rule or regulation, or of the certificate or articles of incorporation or
other constitutive documents or by-laws of the Borrower or any such Subsidiary
Loan Parties, (B) any applicable order of any court or any rule, regulation or
order of any Governmental Authority or (C) any provision of any indenture,
certificate of designation for preferred stock, agreement or other instrument
to which the Borrower or any such Subsidiary Loan Parties is a party or by
which any of them or any of their property is or may be bound, (ii) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under, give rise to a right of or result in
any cancellation or acceleration of any right or obligation (including any
payment) or to a loss of a material benefit under any such indenture,
certificate of designation for preferred stock, agreement or other instrument,
where any such conflict, violation, breach or default referred to in clause
(i) or (ii) of this Section 3.02, could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, or (iii) result
in the creation or imposition of any Lien upon or with respect to any property
or assets now owned or hereafter acquired by the Borrower or any such
Subsidiary Loan Parties, other than the Liens created by the Second Lien Loan
Documents and Liens permitted by Section 6.02 hereof.
SECTION 3.03. Enforceability. This Agreement has been duly
executed and delivered by the Borrower and constitutes, and each other Second
Lien Loan Document when executed and delivered by each Loan Party that is
party thereto will constitute, a legal, valid and binding obligation of such
Loan Party enforceable against each such Loan Party in accordance with its
terms, subject to (i) the effects of bankruptcy, insolvency, moratorium,
reorganization, fraudulent conveyance or other similar laws affecting
creditors' rights generally, (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law), (iii) implied covenants of good faith and fair dealing and (iv) except
to the extent set forth in Foreign Pledge Agreements, any foreign laws, rules
and regulations as they relate to pledges of Equity Interests in Foreign
Subsidiaries.
SECTION 3.04. Governmental Approvals. No action, consent or
approval of, registration or filing with or any other action by any
Governmental Authority is or will be required in connection with the
Transactions, except for (a) the filing of Uniform Commercial Code financing
statements, (b) filings with the United States Patent and Trademark Office and
the United States Copyright Office and comparable offices in foreign
jurisdictions and equivalent filings in foreign jurisdictions, (c) recordation
of the Mortgages, (d) such as have been made or obtained and are in full force
and effect, (e) such consents, approvals, registrations and filings with or by
the FCC or any Governmental Authority outside of the United States as may be
required in connection with the Transaction, which have been obtained or
waived in accordance with the Transaction Agreement and with the consent of
the Administrative Agent (such consent not to be unreasonably withheld), (f)
such consents, approvals, registrations and filings with or by the FCC or any
Governmental Authority outside of the United States as may be required in
connection with the exercise of rights under the Second Lien Security
Documents, (g) such consents, approvals, registrations and filings with or by
the FCC or any Governmental Authority outside of the United States 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,
(h) 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, the Committee on Foreign Investment in the United
States pursuant to the Exon Xxxxxx amendment to the Defense Production Act and
implementing regulations, and the U.S. Department of Treasury pursuant to the
Foreign Asset Control Regulations in connection with the exercise of rights
hereunder and under the Second Lien Security Documents, (i) such approvals,
authorizations and consents as may be required by the U.S. Department of
Justice, the Federal Bureau of Investigation and the U.S. Department of
Homeland Security regarding potential national security, law enforcement and
public safety issues, (j) such registrations, filings or notices with or to
any Governmental Authority that may be required in connection with the
Transaction that are permitted to be made or given after the Closing Date,
which will be timely made or obtained or the failure to be obtained or made
which could not reasonably be expected to have a Material Adverse Effect, (k)
such actions, consents, approvals, registrations or filings the failure to be
obtained or made which could not reasonably be expected to have a Material
Adverse Effect, and (k) filings or other actions listed on Schedule 3.04.
SECTION 3.05. Financial Statements. (a) The Borrower has
heretofore furnished to the Lenders:
(i) The unaudited pro forma consolidated balance sheet and
related statements of operations and cash flows of the Borrower,
together with its consolidated Subsidiaries, as at December 31, 2004
(including the notes thereto) (the "Pro Forma Balance Sheet"), copies of
which have heretofore been furnished to each Lender (via inclusion in
the Offering Memorandum), have been prepared giving effect (as if such
events had occurred on such date) to the Transactions. The Pro Forma
Balance Sheet has been prepared in good faith based on assumptions
believed by the Borrower to have been reasonable as of the date of
delivery thereof (it being understood that such assumptions are based on
good faith estimates of certain items and that the actual amount of such
items on the Closing Date is subject to change), and presents fairly in
all material respects on a pro forma basis the estimated financial
position of the Borrower and its consolidated Subsidiaries as at the
Closing Date, assuming that the events specified in the preceding
sentence had actually occurred at such date.
(ii) The audited combined consolidated balance sheets of the
Acquired Business as at each of December 31, 2002, December 31, 2003 and
December 31, 2004, and the audited combined consolidated statements of
operations and cash flows for the fiscal year then ended, reported on by
and accompanied by a report from Deloitte & Touche, copies of which have
heretofore been furnished to each Lender, present fairly the
consolidated financial position of the Acquired Business as at such date
and the consolidated results of operations and cash flows of the
Acquired Business for such period then ended.
(b) None of the Borrower or the Acquired Business has any
material guarantees, contingent liabilities and liabilities for taxes, or any
long-term leases or unusual forward or long-term commitments, including any
interest rate or foreign currency swap or exchange transaction or other
obligation in respect of derivatives, that are not reflected in the most
recent financial statements referred to in the preceding clauses (a)(i) and
(ii). During the period from December 31, 2004 to and including the date
hereof there has been no disposition by any of the Borrower or any of its
Subsidiaries or the Acquired Business of any material part of its business or
property.
SECTION 3.06. No Material Adverse Change or Material Adverse
Effect. Since December 31, 2004, there has been no event, development or
circumstance that has had or could reasonably be expected to have a material
adverse effect on (a) the Transactions, (b) the business, property, operations
or condition (financial or otherwise) of the Borrower and its Subsidiaries,
taken as a whole, or (c) the validity or enforceability of any of the Second
Lien Loan Documents or the rights and remedies of the Administrative Agent and
the Lenders thereunder.
SECTION 3.07. Title to Properties; Possession Under Leases.
(a) Each of the Borrower and its Subsidiaries has good and valid record fee
simple title to, or valid leasehold interests in, or easements or other
limited property interests in, all its properties and assets (including all
Mortgaged Properties), except for minor defects in title that do not interfere
with its ability to conduct its business as currently conducted or to utilize
such properties and assets for their intended purposes and except where the
failure to have such title could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. All such
properties and assets are free and clear of Liens, other than Liens expressly
permitted by Section 6.02 or arising by operation of law.
(b) Each of the Borrower and its Subsidiaries has complied
with all obligations under all leases to which it is a party, except where the
failure to comply would not reasonably be considered to have Material Adverse
Effect, and all such leases are in full force and effect, except leases in
respect of which the failure to be in full force and effect could not
reasonably be expected to have a Material Adverse Effect. Except as set forth
on Schedule 3.07(b), each of the Borrower and each of its Subsidiaries enjoys
peaceful and undisturbed possession under all such leases, other than leases
in respect of which the failure to enjoy peaceful and undisturbed possession
could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
(c) Each of the Borrower and its Subsidiaries owns or
possesses, or could obtain ownership or possession of or rights under, on
terms not materially adverse to it, all patents, trademarks, service marks,
trade names, copyrights, licenses and rights with respect thereto necessary
for the present conduct of its business, without any conflict (of which the
Borrower has been notified in writing) with the rights of others, and free
from any burdensome restrictions on the present conduct of the Acquired
Business, except where such conflicts and restrictions could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect
or except as set forth on Schedule 3.07(c).
(d) As of the Closing Date, none of the Borrower and its
Subsidiaries has received any notice of any pending or contemplated condemnation
proceeding affecting any of the Mortgaged Properties or any sale or disposition
thereof in lieu of condemnation that remains unresolved as of the Closing Date.
(e) None of the Borrower and its Subsidiaries is obligated
on the Closing Date under any right of first refusal, option or other
contractual right to sell, assign or otherwise dispose of any Mortgaged
Property or any interest therein, except as permitted under Section 6.02 or
6.05.
SECTION 3.08. Subsidiaries. (a) Schedule 3.08(a) sets forth
as of the Closing Date the name and jurisdiction of incorporation, formation
or organization of each Subsidiary of the Borrower and, as to each such
Subsidiary, the percentage of each class of Equity Interests owned by the
Borrower or by any such Subsidiary.
(b) As of the Closing Date, there are no outstanding
subscriptions, options, warrants, calls, rights or other agreements or
commitments (other than stock options granted to employees or directors and
directors' qualifying shares) of any nature relating to any Equity Interests
of the Borrower or any of the Subsidiaries, except rights of employees to
purchase Equity Interests of the Borrower in connection with the Transactions
or as set forth on Schedule 3.08(b).
SECTION 3.09. Litigation; Compliance with Laws. (a) As of
the Closing Date except as set forth on Schedule 3.09, there are no actions,
suits or proceedings at law or in equity or, to the knowledge of the Borrower,
investigations by or on behalf of any Governmental Authority or in arbitration
now pending, or, to the knowledge of the Borrower, threatened in writing
against or affecting the Borrower or any of its Subsidiaries or any business,
property or rights of any such person (i) that involve any Second Lien Loan
Document or the Transactions or (ii) as to which an adverse determination is
reasonably probable and which, if adversely determined, could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect
or materially adversely affect the Transactions. On the date of any Borrowing
after the Closing Date, there are no actions, suits or proceedings at law or
in equity or, to the knowledge of the Borrower, investigations by or on behalf
of any Governmental Authority or in arbitration now pending, or, to the
knowledge of the Borrower, threatened in writing against or affecting the
Borrower or any of its Subsidiaries or any business, property or rights of any
such person as to which an adverse determination is reasonably probable and
which, if adversely determined, could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(b) None of the Borrower, its Subsidiaries and their
respective properties or assets is in violation of (nor will the continued
operation of their material properties and assets as currently conducted
violate) any law, rule or regulation (including any zoning, building,
Environmental Law, ordinance, code or approval or any building permit) or any
restriction of record or agreement affecting any Mortgaged Property, or is in
default with respect to any judgment, writ, injunction or decree of any
Governmental Authority, where such violation or default could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 3.10. Federal Reserve Regulations. (a) None of the
Borrower and the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, (i) to purchase or carry Margin Stock or to extend credit to
others for the purpose of purchasing or carrying Margin Stock or to refund
indebtedness originally incurred for such purpose, or (ii) for any purpose
that entails a violation of, or that is inconsistent with, the provisions of
the Regulations of the Board, including Regulation U or Regulation X.
SECTION 3.11. Investment Company Act: Public Utility Holding
Company Act. None of the Borrower and the Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940, as amended, or (b) a "holding company" as defined in, or subject
to regulation under, the Public Utility Holding Company Act of 1935, as
amended.
SECTION 3.12. Use of Proceeds. The Borrower will use the
proceeds of the Loans to consummate the Acquisition and the other
Transactions.
SECTION 3.13. Tax Returns. Except as set forth on Schedule
3.13:
(a) Each of the Borrower and the Subsidiaries (i) has timely
filed or caused to be timely filed all federal, state, local and non-U.S. Tax
returns required to have been filed by it that are material to such companies
taken as a whole and each such Tax return is true and correct in all material
respects and (ii) has timely paid or caused to be timely paid all Taxes shown
thereon to be due and payable by it and all other material Taxes or
assessments, except Taxes or assessments that are being contested in good
faith by appropriate proceedings in accordance with Section 5.03 and for which
the Borrower or any of the Subsidiaries (as the case may be) has set aside on
its books adequate reserves in accordance with GAAP;
(b) Each of the Borrower and the Subsidiaries has paid in
full or made adequate provision (in accordance with GAAP) for the payment of
all Taxes due with respect to all periods or portions thereof ending on or
before the Closing Date, which Taxes, if not paid or adequately provided for,
could individually or in the aggregate reasonably be expected to have a
Material Adverse Effect; and
(c) Other than as could not be, individually or in the
aggregate, reasonably expected to have a Material Adverse Effect: as of the
Closing Date, with respect to each of the Borrower and the Subsidiaries, (i)
there are no claims being asserted in writing with respect to any Taxes, (ii)
no presently effective waivers or extensions of statutes of limitation with
respect to Taxes have been given or requested and (iii) no Tax returns are
being examined by, and no written notification of intention to examine has
been received from, the Internal Revenue Service or any other Taxing
authority.
SECTION 3.14. No Material Misstatements. (a) All written
information (other than the Projections, estimates and information of a
general economic nature) (the "Information") concerning the Borrower, the
Subsidiaries, the Transactions and any other transactions contemplated hereby
included in the Offering Memorandum or otherwise prepared by or on behalf of
the foregoing or their representatives and made available to any Lenders or
the Administrative Agent in connection with the Transactions or the other
transactions contemplated hereby, when taken as a whole, were true and correct
in all material respects, as of the date such Information was furnished to the
Lenders and (except for the withdrawal of the senior notes offering and the
substitution of the Loans and the First Lien Term Loans for the senior notes
referred to in the Offering Memorandum and items related thereto) as of the
Closing Date and did not contain any untrue statement of a material fact as of
any such date or omit to state a material fact necessary in order to make the
statements contained therein not materially misleading in light of the
circumstances under which such statements were made.
(b) Any Projections and estimates and information of a
general economic nature prepared by or on behalf of the Borrower or any of its
representatives and that have been made available to any Lenders or the
Administrative Agent in connection with the Transactions or the other
transactions contemplated hereby (i) have been prepared in good faith based
upon assumptions believed by the Borrower to be reasonable as of the date
thereof, as of the date such Projections and estimates were furnished to the
Lenders and as of the Closing Date, and (ii) (except for the withdrawal of the
senior notes offering and the substitution of the Loans and the First Lien
Term Loans for the senior notes referred to in the Offering Memorandum and
items related thereto) as of the Closing Date, have not been modified in any
material respect by the Borrower.
SECTION 3.15. Employee Benefit Plans. (a) Except as could
not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect: each of the Borrower, the Subsidiaries and the ERISA
Affiliates is in compliance with the applicable provisions of ERISA and the
provisions of the Code relating to Plans and the regulations and published
interpretations thereunder and any similar applicable non-U.S. law; no
Reportable Event has occurred during the past five years as to which the
Borrower, any of its Subsidiaries or any ERISA Affiliate was required to file
a report with the PBGC, other than reports that have been filed; the present
value of all benefit liabilities under each Plan of the Borrower, its
Subsidiaries and the ERISA Affiliates (based on those assumptions used to fund
such Plan), as of the last annual valuation date applicable thereto for which
a valuation is available, does not exceed the value of the assets of such
Plan, and the present value of all benefit liabilities of all underfunded
Plans (based on those assumptions used to fund each such Plan) as of the last
annual valuation dates applicable thereto for which valuations are available,
does not exceed the value of the assets of all such underfunded Plans; no
ERISA Event has occurred or is reasonably expected to occur; and none of the
Borrower, its Subsidiaries and the ERISA Affiliates has received any written
notification that any Multiemployer Plan is in reorganization or has been
terminated within the meaning of Title IV of ERISA, or has knowledge that any
Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated.
(b) Each of the Borrower and the Subsidiaries is in
compliance (i) with all applicable provisions of law and all applicable
regulations and published interpretations thereunder with respect to any
employee pension benefit plan or other employee benefit plan governed by the
laws of a jurisdiction other than the United States and (ii) with the terms of
any such plan, except, in each case, for such noncompliance that could not
reasonably be expected to have a Material Adverse Effect.
SECTION 3.16. Environmental Matters. Except as disclosed on
Schedule 3.16 and except as to matters that could not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect (i) no
written notice, request for information, order, complaint or penalty has been
received by the Borrower or any of its Subsidiaries, and there are no
judicial, administrative or other actions, suits or proceedings pending or
threatened which allege a violation of or liability under any Environmental
Laws, in each case relating to the Borrower or any of its Subsidiaries, (ii)
each of the Borrower and its Subsidiaries has all environmental permits
necessary for its operations to comply with all applicable Environmental Laws
and is, and during the term of all applicable statutes of limitation, has
been, in compliance with the terms of such permits and with all other
applicable Environmental Laws, (iii) there has been no written environmental
audit conducted since January 1, 1990 by the Borrower or any of its
Subsidiaries of any property currently owned or leased by the Borrower or any
of its Subsidiaries which has not been made available to the Administrative
Agent prior to the date hereof, (iv) no Hazardous Material is located at any
property currently owned, operated or leased by the Borrower or any of its
Subsidiaries that would reasonably be expected to give rise to any cost,
liability or obligation of the Borrower or any of its Subsidiaries under any
Environmental Laws, and no Hazardous Material has been generated, owned or
controlled by the Borrower or any of its Subsidiaries and transported to or
released at any location in a manner that would reasonably be expected to give
rise to any claim against the Borrower or any of its Subsidiaries under any
Environmental Laws, and (v) there are no acquisition agreements entered into
after 1987 in which the Borrower or any of its Subsidiaries has expressly
assumed or undertaken responsibility for any liability or obligation of any
other Person arising under or relating to Environmental Laws, which in any
such case has not been made available to the Administrative Agent prior to the
date hereof.
SECTION 3.17. Security Documents. (a) The Second Lien
Collateral Agreement is effective to create in favor of the Administrative
Agent (for the benefit of the Secured Parties) a legal, valid and enforceable
security interest in the Collateral described therein and proceeds thereof to
the extent intended to be created thereby. In the case of the Pledged
Collateral described in the Second Lien Collateral Agreement, when
certificates or promissory notes, as applicable, representing such Pledged
Collateral are delivered to the Administrative Agent, and in the case of the
other Collateral described in the Second Lien Collateral Agreement (other than
the Intellectual Property (as defined in the Second Lien Collateral
Agreement)), when financing statements and other filings specified on Schedule
6 of the Perfection Certificate in appropriate form are filed in the offices
specified on Schedule 7 of the Perfection Certificate, the Administrative
Agent (for the benefit of the Secured Parties) shall have a fully perfected
Lien on, and security interest in, (to the extent required thereby) all right,
title and interest of the Loan Parties in such Collateral and, subject to
Section 9-315 of the New York Uniform Commercial Code, the proceeds thereof,
as security for the Second Lien Credit Agreement Obligations to the extent
perfection can be obtained by filing Uniform Commercial Code financing
statements, in each case prior and superior in right to any other person
(except (i) Liens created pursuant to the First Priority Security Documents
and (ii) in the case of Collateral other than Pledged Collateral, other Liens
expressly permitted by Section 6.02 and Liens having priority by operation of
law).
(b) When the Second Lien Collateral Agreement or a summary
thereof is properly filed in the United States Patent and Trademark Office and
the United States Copyright Office, and, with respect to Collateral in which a
security interest cannot be perfected by such filings, upon the proper filing
of the financing statements referred to in paragraph (a) above, the
Administrative Agent (for the benefit of the Secured Parties) shall have a
fully perfected Lien on, and security interest in, all right, title and
interest of the Loan Parties thereunder in the domestic Intellectual Property
(to the extent contemplated to be created thereby), in each case prior and
superior in right to any other person (it being understood that subsequent
recordings in the United States Patent and Trademark Office and the United
States Copyright Office may be necessary to perfect a lien on registered
trademarks and patents, trademark and patent applications and registered
copyrights acquired by the grantors after the Closing Date) except Liens
permitted by Section 6.02 and Liens having priority by operation of law.
(c) Each Foreign Pledge Agreement is effective to create in
favor of the Administrative Agent, for the benefit of the Secured Parties, a
legal, valid and enforceable security interest in the Collateral described
therein and proceeds thereof. In the case of the Pledged Collateral described
in a Foreign Pledge Agreement, when certificates representing such Pledged
Collateral are delivered to the Administrative Agent, the Administrative Agent
(for the benefit of the Secured Parties) shall have a fully perfected Lien on,
and security interest in, all right, title and interest of the Loan Parties in
such Collateral and the proceeds thereof, as security for the Second Lien
Credit Agreement Obligations, in each case prior and superior in right to any
other person, other than to the Administrative Agent under the First Lien
Credit Agreement for the benefit of the Lenders thereunder.
(d) The Mortgages executed and delivered on the Closing Date
are, and the Mortgages executed and delivered after the Closing Date pursuant
to Section 5.10 shall be, effective to create in favor of the Administrative
Agent (for the benefit of the Secured Parties) a legal, valid and enforceable
Lien on all of the Loan Parties' right, title and interest in and to the
Mortgaged Property thereunder and the proceeds thereof, and when such
Mortgages are filed or recorded in the proper real estate filing or recording
offices, the Administrative Agent (for the benefit of the Secured Parties)
shall have a fully perfected Lien on, and security interest in, all right,
title and interest of the Loan Parties in such Mortgaged Property and, to the
extent applicable, subject to Section 9-315 of the Uniform Commercial Code,
the proceeds thereof, in each case prior and superior in right to any other
Person, other than with respect to the rights of a Person pursuant to Liens
expressly permitted by Section 6.02 and Liens having priority by operation of
law.
(e) Notwithstanding anything herein (including, without
limitation, this Section 3.17) or in any other Second Lien Loan Document to
the contrary, other than to the extent set forth in the Foreign Pledge
Agreements, neither the Borrower nor any other Loan Party makes any
representation or warranty as to the effects of perfection or non-perfection,
the priority or the enforceability of any pledge of or security interest in
any Equity Interests of any Foreign Subsidiary, or as to the rights and
remedies of the Agents or any Lender with respect thereto, under foreign law.
SECTION 3.18. Location of Real Property. Schedule 8 to the
Perfection Certificate lists completely and correctly as of the Closing Date
all material real property owned by the Borrower and the Subsidiary Loan
Parties and the addresses thereof.
SECTION 3.19. Solvency. (a) Immediately after giving effect
to the Transactions on the Closing Date, (i) the fair value of the assets of
the Borrower (individually) and its Subsidiaries on a consolidated basis, at a
fair valuation, will exceed the debts and liabilities, direct, subordinated,
contingent or otherwise, of the Borrower (individually) and its Subsidiaries
on a consolidated basis, respectively; (ii) the present fair saleable value of
the property of the Borrower (individually) and its Subsidiaries on a
consolidated basis will be greater than the amount that will be required to
pay the probable liability of the Borrower (individually) and its Subsidiaries
on a consolidated basis, respectively, on their debts and other liabilities,
direct, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (iii) the Borrower (individually) and
its Subsidiaries on a consolidated basis will be able to pay their debts and
liabilities, direct, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (iv) the Borrower (individually)
and its Subsidiaries on a consolidated basis will not have unreasonably small
capital with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted following the
Closing Date.
(b) The Borrower does not intend to, and does not believe
that it or any of its Subsidiaries will, incur debts beyond its ability to pay
such debts as they mature, taking into account the timing and amounts of cash
to be received by it or any such subsidiary and the timing and amounts of cash
to be payable on or in respect of its Indebtedness or the Indebtedness of any
such subsidiary.
SECTION 3.20. Labor Matters. Except as, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect: (a) there are no strikes or other labor disputes pending or threatened
against the Borrower or any of its Subsidiaries; (b) the hours worked and
payments made to employees of the Borrower and its Subsidiaries have not been
in violation of the Fair Labor Standards Act or any other applicable law
dealing with such matters; (c) all payments due from the Borrower or any of
its Subsidiaries or for which any claim may be made against the Borrower or
any of its Subsidiaries, on account of wages and employee health and welfare
insurance and other benefits have been paid or accrued as a liability on the
books of the Borrower or such Subsidiary to the extent required by GAAP); and
(d) the Borrower and its Subsidiaries are in compliance with all applicable
laws, agreements, policies, plans and programs relating to employment and
employment practices. Except as set forth on Schedule 3.20, consummation of
the Transactions will not give rise to a right of termination or right of
renegotiation on the part of any union under any collective bargaining
agreement to which the Borrower or any of its Subsidiaries (or any
predecessor) is a party or by which the Borrower or any of its Subsidiaries
(or any predecessor) is bound.
SECTION 3.21. Insurance. Schedule 3.21 sets forth a true,
complete and correct description of all material insurance maintained by or on
behalf of the Borrower or the Subsidiaries as of the Closing Date. As of such
date, such insurance is in full force and effect. The Borrower believes that
the insurance maintained by or on behalf of the Borrower and the Subsidiaries
is adequate.
SECTION 3.22. Representations and Warranties in Transaction
Agreement. All representations and warranties of each Loan Party set forth in
the Transaction Agreement were true and correct in all material respects as of
the time such representations and warranties were made and shall be true and
correct in all material respects as of the Closing Date as if such
representations and warranties were made on and as of such date, unless stated
to relate to a specific earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of such
earlier date.
SECTION 3.23. Communications Licenses, etc. (a) (a) The
Borrower and its Subsidiaries have all of the Communications Licenses
necessary for the lawful conduct of the Acquired Business in substantially the
same manner as the Acquired Business is currently conducted, except where the
failure to have the same would not reasonably be expected to have a Material
Adverse Effect. Schedule 3.23 sets forth a list of all material Communications
Licenses necessary for the operation of the Acquired Business in the manner in
which it is operated as of the Closing Date. As of the Closing Date, the
Borrower or one of its Subsidiaries is the holder of the Communications
Licenses identified in Schedule 3.23.
(b) Except as would not reasonably be expected to have a
Material Adverse Effect: (i) as of the Closing Date, each Communications
License identified on Schedule 3.23 is validly issued and in full force and
effect; (ii) none of the Borrower or its Subsidiaries is a party to or has any
knowledge of any proceeding before any Governmental Authority to revoke,
suspend, cancel, refuse to renew or modify, or impose a forfeiture or other
sanction with respect to, any of the Communications Licenses identified on
Schedule 3.23; (iii) the Borrower has no reason to believe that any of the
Communications Licenses identified on Schedule 3.23 will not be renewed in the
ordinary course of business; (iv) the Borrower and its Subsidiaries are
operating the facilities authorized under the Communications Licenses set
forth in Schedule 3.23 in accordance with their terms and such operation is in
compliance with the applicable laws and regulations; and (v) no event has
occurred which, after notice or lapse of time or both, reasonably would be
expected to result in revocation, suspension, adverse modification,
non-renewal or termination of, or any order of forfeiture with respect to, any
Communications License set forth on Schedule 3.23.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans hereunder are
subject to the satisfaction of the following conditions:
(a) The Administrative Agent shall have received a Borrowing
Request as required by Section 2.03.
(b) The representations and warranties set forth in Article
III hereof shall be true and correct in all material respects on and as of the
Closing Date.
(c) At the time of and immediately after such Borrowing, no
Event of Default or Default shall have occurred and be continuing.
(d) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this Agreement
signed on behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of
this Agreement.
(e) The Administrative Agent shall have received, on behalf
of itself and the Lenders on the Closing Date, a favorable written opinion of
(i) O'Melveny & Xxxxx LLP, special counsel for the Borrower, in form and
substance reasonably satisfactory to the Administrative Agent and (ii) local
U.S. and/or foreign counsel reasonably satisfactory to the Administrative
Agent as specified on Schedule 4.02(e), in each case (A) dated the Closing
Date, (B) addressed to the Administrative Agent and the Lenders and (C) in
form and substance reasonably satisfactory to the Administrative Agent and
covering such other matters relating to the Second Lien Loan Documents and the
Transactions as the Administrative Agent shall reasonably request, and the
Borrower hereby instructs its counsel to deliver such opinions.
(f) All legal matters incident to this Agreement, the
borrowings and extensions of credit hereunder and the other Second Lien Loan
Documents shall be reasonably satisfactory to the Administrative Agent and to
the Lenders on the Closing Date.
(g) The Administrative Agent shall have received in the case
of each Loan Party each of the items referred to in clauses (i), (ii), (iii)
and (iv) below:
(i) a copy of the certificate or articles of incorporation
or limited liability agreement, including all amendments thereto, of
each Loan Party, (A) in the case of a corporation, certified as of a
recent date by the Secretary of State (or other similar official) of the
jurisdiction of its organization, and a certificate as to the good
standing (to the extent such concept or a similar concept exists under
the laws of such jurisdiction) of each such Loan Party as of a recent
date from such Secretary of State (or other similar official) or (B) in
the case of a limited liability company, certified by the Secretary or
Assistant Secretary of each such Loan Party;
(ii) a certificate of the Secretary or Assistant Secretary
or similar officer of each Loan Party dated the Closing Date and
certifying
(A) that attached thereto is a true and complete copy of
the by-laws (or limited liability company agreement or other
equivalent governing documents) of such Loan Party as in effect on
the Closing Date and at all times since a date prior to the date
of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of
resolutions duly adopted by the Board of Directors (or equivalent
governing body) of such Loan Party (or its managing general
partner or managing member) authorizing the execution, delivery
and performance of the Second Lien Loan Documents to which such
person is a party and, in the case of the Borrower, the borrowings
hereunder, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect on the
Closing Date,
(C) that the certificate or articles of incorporation or
limited liability agreement of such Loan Party have not been
amended since the date of the last amendment thereto disclosed
pursuant to clause (i) above,
(D) as to the incumbency and specimen signature of each
officer executing any Second Lien Loan Document or any other
document delivered in connection herewith on behalf of such Loan
Party and
(E) as to the absence of any pending proceeding for the
dissolution or liquidation of such Loan Party or, to the knowledge
of such person, threatening the existence of such Loan Party;
(iii) a certificate of another officer as to the incumbency
and specimen signature of the Secretary or Assistant Secretary or
similar officer executing the certificate pursuant to clause (ii) above;
and
(iv) such other documents as the Administrative Agent and
the Lenders on the Closing Date may reasonably request (including
without limitation, tax identification numbers and addresses).
(h) The elements of the Collateral and Guarantee Requirement
required to be satisfied on the Closing Date shall have been satisfied and the
Administrative Agent shall have received a completed Perfection Certificate
dated the Closing Date and signed by a Responsible Officer of the Borrower,
together with all attachments contemplated thereby, and the results of a
search of the Uniform Commercial Code (or equivalent) filings made with
respect to the Loan Parties in the jurisdictions contemplated by the
Perfection Certificate and copies of the financing statements (or similar
documents) disclosed by such search and evidence reasonably satisfactory to
the Administrative Agent that the Liens indicated by such financing statements
(or similar documents) are permitted by Section 6.02 or have been released.
(i) The elements of the Acquisition contemplated to be
consummated on the Closing Date shall have been consummated or shall be
consummated simultaneously with or immediately following the closing under
this Agreement in accordance with applicable law in all material respects and
the terms and conditions of the Acquisition as set forth in the Transaction
Documents, none of which Transaction Documents shall have been waived,
amended, supplemented or otherwise modified in any material respect without
approval of the Administrative Agent.
(j) The Administrative Agent shall have received
satisfactory evidence that the fees and expenses to be incurred through the
Closing Date in connection with the Transactions shall not exceed $35.0
million.
(k) The Contribution Financing shall have been consummated
or shall be consummated simultaneously with or immediately following the
closing under this Agreement in all material respects in accordance with the
Transaction Documents.
(l) The Borrower shall have received at least $250 million
of gross cash proceeds from term loans under the First Lien Credit Agreement.
(m) The terms and conditions of the First Lien Loan
Documents and the Intercreditor Agreement shall be reasonably satisfactory to
the Agents.
(n) The Lenders shall have received the financial statements
referred to in Section 3.05.
(o) On the Closing Date, after giving effect to the
Transactions and the other transactions contemplated hereby, the Borrower and
its Subsidiaries shall have outstanding no Indebtedness other than (i) the
Loans and other extensions of credit under this Agreement, (ii) loans under
the First Lien Credit Agreement and (iii) other Indebtedness permitted
pursuant to Section 6.01.
(p) The Lenders shall have received a solvency certificate
substantially in the form of Exhibit F and signed by, at the Borrower's
option, the Chief Financial Officer of the Borrower or an independent
valuation firm reasonably satisfactory to the Joint Lead Arrangers confirming
the solvency of the Borrower and its Subsidiaries on a consolidated basis
after giving effect to the Transactions on the Closing Date.
(q) All material governmental and third party approvals that
are conditions to closing the Transaction under the Transaction Agreement
shall have been obtained and be in full force and effect or waived in
accordance with the Transaction Agreement and with the consent of the
Administrative Agent, and all applicable waiting periods required under the
Transaction Agreement shall have expired without any action being taken or
threatened by any competent authority that would restrain, prevent or
otherwise impose materially adverse conditions on the Transaction or the
financing thereof.
(r) The Agents shall have received all fees payable thereto
or to any Lender on or prior to the Closing Date and, to the extent invoiced,
all other amounts due and payable pursuant to the Second Lien Loan Documents
on or prior to the Closing Date, including, to the extent invoiced,
reimbursement or payment of all reasonable out-of-pocket expenses (including
reasonable fees, charges and disbursements of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
and U.S. and foreign local counsel) required to be reimbursed or paid by the
Loan Parties hereunder, under any Second Lien Loan Document or under the
engagement letter, dated as of January 27, 2005, among HNS, DTV, SkyTerra and
the Joint Lead Arrangers.
(s) The Administrative Agent shall have received insurance
certificates satisfying the requirements of Section 5.02 of this Agreement.
(t) The Borrower shall have at least $100.0 million in cash
available at the Closing Date (after giving effect to the Loans and the term
loans under the First Lien Credit Agreement).
(u) The Administrative Agent shall have received a
certificate signed by a Financial Officer of the Borrower, together with
satisfactory supporting schedules, certifying that the pro forma Debt to
Adjusted EBITDA Ratio as of the Closing Date (after giving effect to the
Transactions) for the four fiscal quarters ending with the most recent fiscal
quarter ended immediately prior to the Closing Date for which financial
statements are available is not greater than 4.00 to 1.00.
Notwithstanding anything herein to the contrary, it is
understood and agreed that the documents and other items set forth on Schedule
5.10(h) shall be delivered after the Closing Date in accordance with Section
5.10.
ARTICLE V
Affirmative Covenants
The Borrower covenants and agrees with each Lender that so
long as this Agreement shall remain in effect (other than in respect of
contingent indemnification obligations) and until the commitments have been
terminated and the principal of and interest on each Loan, all Administrative
Agent Fees and all other expenses or amounts payable under any Second Lien
Loan Document shall have been paid in full, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and will cause each of its
Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do
or cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence, except as otherwise expressly permitted
under Section 6.05, and except for the liquidation or dissolution of
Subsidiaries if the assets of such Subsidiaries to the extent they exceed
estimated liabilities are acquired by the Borrower or a Wholly Owned
Subsidiary of the Borrower in such liquidation or dissolution; provided that
Subsidiaries that are Loan Parties may not be liquidated into Subsidiaries
that are not Loan Parties and Domestic Subsidiaries may not be liquidated into
Foreign Subsidiaries.
(b) Do or cause to be done all things necessary to (i)
obtain, preserve, renew, extend and keep in full force and effect the permits,
franchises, authorizations, patents, trademarks, service marks, trade names,
copyrights, licenses and rights with respect thereto necessary to the normal
conduct of its business, unless the failure to do so, in each case, would not
result in a Material Adverse Effect, (ii) comply in all material respects with
all material applicable laws, rules, regulations (including any zoning,
building, ordinance, code or approval or any building permits or any
restrictions of record or agreements affecting the Mortgaged Properties) and
judgments, writs, injunctions, decrees and orders of any Governmental
Authority, whether now in effect or hereafter enacted and (iii) at all times
maintain and preserve all material property necessary to the normal conduct of
its business and keep such property in good repair, working order and
condition and from time to time make, or cause to be made, all needful and
proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith, if
any, may be properly conducted at all times (in each case except as expressly
permitted by this Agreement).
SECTION 5.02. Insurance. (a) Keep its insurable properties
(other than Satellites, the insurance required with regard to which is
contained in paragraph (b) below) insured at all times by financially sound
and reputable insurers in such amounts as shall be customary for similar
businesses and maintain such other reasonable insurance (including, to the
extent consistent with past practices, self-insurance), of such types, to such
extent and against such risks, as is customary with companies in the same or
similar businesses and maintain such other insurance as may be required by law
or any other Second Lien Loan Document.
(b) The Borrower will, and will cause each Subsidiary 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 Subsidiary for which
the risk of loss passes to the Borrower or such Subsidiary at or before
launch, launch insurance with respect to each such Satellite covering the
launch of such Satellite and a period of time thereafter and (ii) 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), In-Orbit Insurance; provided that the insurance
coverage specified in clauses (i) and (ii) above will only be required 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 Board of Directors of the Borrower to be in the best
interests of the Borrower as evidenced by a resolution of the Board of
Directors.
(c) With respect to each insurance policy required by
Section 5.02(b), ensure that such insurance policy shall:
(i) contain no exclusions other than:
(A) Acceptable Exclusions; and
(B) such specific exclusions applicable to the
performance of the Satellite (or portion, as applicable) being
insured as are reasonably acceptable to the Board of Directors of
the Borrower in order to obtain insurance for a price that is, and
on other terms and conditions that are, commercially reasonable;
(ii) provide coverage for all risks of loss of and damage to
the Satellite; and
(iii) name the Borrower or the applicable Subsidiary as the
named insured.
(d) Cause all property and casualty insurance policies with
respect to the Mortgaged Properties to be endorsed or otherwise amended to
include a "standard" or "New York" lender's loss payable endorsement, in form
and substance reasonably satisfactory to the Administrative Agent, which
endorsement shall provide that, from and after the Closing Date, if the
insurance carrier shall have received written notice from the Administrative
Agent of the occurrence of an Event of Default, the insurance carrier shall
pay all proceeds otherwise payable to the Borrower or the Loan Parties under
such policies directly to the Administrative Agent (or, to the extent provided
in the Second Lien Collateral Agreement, to the First Lien Administrative
Agent); cause all such policies to provide that neither the Borrower, the
Administrative Agent nor any other party shall be a coinsurer thereunder and
to contain a "Replacement Cost Endorsement," without any deduction for
depreciation, and such other provisions as the Administrative Agent may
reasonably (in light of a Default or a material development in respect of the
insured Mortgaged Property) require from time to time to protect their
interests; deliver original or certified copies of all such policies or a
certificate of an insurance broker to the Administrative Agent; cause each
such policy to provide that it shall not be canceled, modified or not renewed
upon less than 30 days' prior written notice (or 10 days' prior written notice
in the case of any failure to pay any premium due thereunder) thereof by the
insurer to the Administrative Agent; deliver to the Administrative Agent,
prior to the cancellation, modification or nonrenewal of any such policy of
insurance, a copy of a renewal or replacement policy (or other evidence of
renewal of a policy previously delivered to the Administrative Agent), or
insurance certificate with respect thereto, together with evidence
satisfactory to the Administrative Agent of payment of the premium therefor.
(e) If at any time the area in which the Premises (as
defined in the Mortgages) are located is designated a "flood hazard area" in
any Flood Insurance Rate Map published by the Federal Emergency Management
Agency (or any successor agency), obtain flood insurance in such reasonable
total amount as the Administrative Agent may from time to time reasonably
require, and otherwise comply with the National Flood Insurance Program as set
forth in the Flood Disaster Protection Act of 1973, as it may be amended from
time to time.
(f) With respect to each Mortgaged Property, carry and
maintain comprehensive general liability insurance including the "broad form
CGL endorsement" and coverage on an occurrence basis against claims made for
personal injury (including bodily injury, death and property damage) and
umbrella liability insurance against any and all claims, in each case in
amounts and against such risks as are customarily maintained by companies
engaged in the same or similar industry operating in the same or similar
locations naming the Administrative Agent as an additional insured, on forms
reasonably satisfactory to the Administrative Agent; provided, however, that
it may maintain a self insurance retention for up to $1.0 million with respect
to such risks.
(g) Notify the Administrative Agent promptly whenever any
separate insurance concurrent in form or contributing in the event of loss
with that required to be maintained under this Section 5.02 is taken out by
the Borrower or any of the Subsidiaries; and promptly deliver to the
Administrative Agent a duplicate original copy of such policy or policies, or
an insurance certificate with respect thereto.
(h) In connection with the covenants set forth in this
Section 5.02, it is understood and agreed that:
(i) none of the Administrative Agent, the Lenders and their
respective agents or employees shall be liable for any loss or damage
insured by the insurance policies required to be maintained under this
Section 5.02, it being understood that (A) the Borrower and the other
Loan Parties shall look solely to their insurance companies or any other
parties other than the aforesaid parties for the recovery of such loss
or damage and (B) such insurance companies shall have no rights of
subrogation against the Administrative Agent, the Lenders or their
agents or employees. If, however, the insurance policies do not provide
waiver of subrogation rights against such parties, as required above,
then the Borrower hereby agrees, to the extent permitted by law, to
waive, and to cause each of its Subsidiaries to waive, its right of
recovery, if any, against the Administrative Agent, the Lenders and
their agents and employees; and
(ii) the designation of any form, type or amount of
insurance coverage by the Administrative Agent under this Section 5.02
shall in no event be deemed a representation, warranty or advice by the
Administrative Agent or the Lenders that such insurance is adequate for
the purposes of the business of the Borrower and its Subsidiaries or the
protection of their properties.
SECTION 5.03. Taxes. Pay and discharge promptly when due all
material Taxes, assessments and governmental charges or levies imposed upon it
or upon its income or profits or in respect of its property, before the same
shall become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise that, if unpaid, might give rise to a Lien
upon such properties or any part thereof; provided, however, that such payment
and discharge shall not be required with respect to any such Tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings, and the Borrower or the
affected Subsidiary, as applicable, shall have set aside on its books reserves
in accordance with GAAP with respect thereto.
SECTION 5.04. Financial Statements, Reports, etc. Furnish to
the Administrative Agent (which will promptly furnish such information to the
Lenders):
(a) within 90 days (or, if applicable, such shorter period
as the SEC shall specify for the filing of Annual Reports on Form 10-K if the
Borrower is required to file such an Annual Report) after the end of each
fiscal year, a consolidated balance sheet and related statements of
operations, cash flows and owners' equity showing the financial position of
the Borrower and its Subsidiaries as of the close of such fiscal year and the
consolidated results of its operations during such year and (commencing in
fiscal year 2006) setting forth in comparative form the corresponding figures
for the prior fiscal year, which consolidated balance sheet and related
statements of operations, cash flows and owners' equity shall be audited by
independent public accountants of recognized national standing and accompanied
by an opinion of such accountants (which shall not be qualified in any
material respect) to the effect that such consolidated financial statements
fairly present, in all material respects, the financial position and results
of operations of the Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP (it being understood that the delivery by the Borrower of
Annual Reports on Form 10-K of the Borrower and its consolidated Subsidiaries
shall satisfy the requirements of this Section 5.04(a) to the extent such
Annual Reports include the information specified herein);
(b) within 45 days (or, if applicable, such shorter period
as the SEC shall specify for the filing of Quarterly Reports on Form 10-Q if
the Borrower is required to file such a Quarterly Report) after the end of
each of the first three fiscal quarters of each fiscal year (commencing with
the first fiscal quarter of 2005, which may be delivered within 75 days after
the end of such fiscal quarter), a consolidated balance sheet and related
statements of operations and cash flows showing the financial position of the
Borrower and its Subsidiaries as of the close of such fiscal quarter and the
consolidated results of its operations during such fiscal quarter and the
then-elapsed portion of the fiscal year and (commencing in fiscal year 2006)
setting forth in comparative form the corresponding figures for the
corresponding periods of the prior fiscal year, all of which shall be in
reasonable detail and which consolidated balance sheet and related statements
of operations and cash flows shall be certified by a Financial Officer of the
Borrower on behalf of the Borrower as fairly presenting, in all material
respects, the financial position and results of operations of the Borrower and
its Subsidiaries on a consolidated basis in accordance with GAAP (subject to
normal year-end audit adjustments and the absence of footnotes (it being
understood that the delivery by the Borrower of Quarterly Reports on Form 10-Q
of the Borrower and its consolidated Subsidiaries shall satisfy the
requirements of this Section 5.04(b) to the extent such Quarterly Reports
include the information specified herein);
(c) (x) concurrently with any delivery of financial
statements under (a) or (b) above, a certificate of a Financial Officer of the
Borrower (i) certifying that no Event of Default or Default has occurred or,
if such an Event of Default or Default has occurred, specifying the nature and
extent thereof and any corrective action taken or proposed to be taken with
respect thereto and (ii) commencing with the fiscal period ending June 30,
2005, setting forth computations in reasonable detail satisfactory to the
Administrative Agent demonstrating compliance with the covenants contained in
Sections 6.12 and 6.13 and (y) concurrently with any delivery of financial
statements under (a) above, a certificate of the accounting firm opining on or
certifying such statements stating whether they obtained knowledge during the
course of their examination of such statements of any Default or Event of
Default (which certificate may be limited to accounting matters and disclaims
responsibility for legal interpretations);
(d) promptly after the same become publicly available,
copies of all periodic and other publicly available reports, proxy statements
and, to the extent requested by the Administrative Agent, other materials
filed by the Borrower or any of the Subsidiaries with the SEC, or after an
initial public offering, distributed to its stockholders generally, as
applicable;
(e) if, as a result of any change in accounting principles
and policies from those as in effect on the Closing Date, the consolidated
financial statements of the Borrower and its Subsidiaries delivered pursuant
to paragraphs (a) or (b) above will differ in any material respect from the
consolidated financial statements that would have been delivered pursuant to
such clauses had no such change in accounting principles and policies been
made, then, together with the first delivery of financial statements pursuant
to paragraph (a) and (b) above following such change, a schedule prepared by a
Financial Officer on behalf of the Borrower reconciling such changes to what
the financial statements would have been without such changes;
(f) within 90 days after the beginning of each fiscal year
commencing in 2006, a detailed consolidated quarterly budget for such fiscal
year and, as soon as available, significant revisions, if any, of such budget
and quarterly projections with respect to such fiscal year, including a
description of underlying assumptions with respect thereto (collectively, the
"Budget");
(g) promptly upon receipt thereof, copies of any and all
notices and other written communications from any Governmental Authority, with
respect to the Borrower or any of its Subsidiaries relating to any matter that
could reasonably be expected to result in a Material Adverse Effect.
(h) upon the reasonable request of the Administrative Agent,
deliver an updated Perfection Certificate (or, to the extent such request
relates to specified information contained in the Perfection Certificate, such
information) reflecting all changes since the date of the information most
recently received pursuant to this paragraph (h) or Section 5.10(f);
(i) promptly, unless the Borrower is prohibited by its
accountants from delivering such copy, a copy of all annual management reports
submitted to the Board of Directors (or any committee thereof) of any of the
Borrower or any Subsidiary in connection with any material interim or special
audit made by independent accountants of the books of the Borrower or any
Subsidiary;
(j) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any of the Subsidiaries, or compliance with the terms of any
Second Lien Loan Document, or such consolidating financial statements, as in
each case the Administrative Agent may reasonably request (for itself or on
behalf of any Lender); and
(k) promptly upon request by the Administrative Agent,
copies of: (i) each Schedule B (Actuarial Information) to the annual report
(Form 5500 Series) filed with the Internal Revenue Service with respect to a
Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all
notices received from a Multiemployer Plan sponsor or any governmental agency
concerning an ERISA Event; and (iv) such other documents or governmental
reports or filings relating to any Plan or Multiemployer Plan as the
Administrative Agent shall reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent written notice of the following promptly after any
Responsible Officer of the Borrower obtains actual knowledge thereof:
(a) any Event of Default or Default, specifying the nature
and extent thereof and the corrective action (if any) proposed to be taken
with respect thereto;
(b) the filing or commencement of, or any written threat or
notice of intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any Governmental
Authority or in arbitration, against the Borrower or any of the Subsidiaries
as to which an adverse determination is reasonably probable and which, if
adversely determined, could reasonably be expected to have a Material Adverse
Effect;
(c) any other development specific to the Borrower or any of
the Subsidiaries that is not a matter of general public knowledge and that has
had, or could reasonably be expected to have, a Material Adverse Effect; and
(d) the development of any ERISA Event that, together with
all other ERISA Events that have developed or occurred, could reasonably be
expected to have a Material Adverse Effect.
SECTION 5.06. Compliance with Laws . Comply with (i) all
laws, rules, regulations and orders of any Governmental Authority applicable
to it or its property (including, without limitation, all Communications
Licenses), except where the failure to do so could not reasonably be expected
to result in a Material Adverse Effect; provided that any failure as it may
relate to any Communications License or governmental approval or authorization
shall not, without considering the effect thereof, be considered or deemed to
result in a Material Adverse Effect and; provided further, that this Section
5.06 shall not apply to Environmental Laws, which are the subject of Section
5.09, or to laws related to Taxes, which are the subject of Section 5.03.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Maintain all financial records in accordance with GAAP and permit
any persons designated by the Administrative Agent or, upon the occurrence and
during the continuance of an Event of Default, any Lender to visit and inspect
the financial records and the properties of the Borrower or any of the
Subsidiaries at reasonable times, upon reasonable prior notice to the
Borrower, and as often as reasonably requested and to make extracts from and
copies of such financial records, and permit any persons designated by the
Administrative Agent or, upon the occurrence and during the continuance of an
Event of Default, any Lender upon reasonable prior notice to the Borrower to
discuss the affairs, finances and condition of the Borrower or any of the
Subsidiaries with the officers thereof and independent accountants therefor
(subject to reasonable requirements of confidentiality, including requirements
imposed by law or by contract).
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans
solely to finance the Transactions.
SECTION 5.09. Compliance with Environmental Laws. Comply
with all Environmental Laws applicable to its operations and properties; and
obtain and renew all material authorizations and permits required pursuant to
Environmental Law for its operations and properties, in each case in
accordance with Environmental Laws, except, in each case with respect to this
Section 5.09, to the extent the failure to do so could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 5.10. Further Assurances; Additional Mortgages. (a)
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 and other
documents and recordings of Liens in stock registries), that may be required
under any applicable law, or that the Administrative Agent may reasonably
request, to cause the Collateral and Guarantee Requirement to be and remain
satisfied, all at the expense of the Loan Parties and provide to the
Administrative Agent, from time to time upon reasonable request, evidence
reasonably satisfactory to the Administrative Agent as to the perfection and
priority of the Liens created or intended to be created by the Second Lien
Security Documents.
(b) If any asset (including any real property (other than
real property covered by Section 5.10(c) below) or improvements thereto or any
interest therein) that has an individual Fair Market Value in an amount
greater than $1.0 million is acquired by the Borrower or any other Loan Party
after the Closing Date or owned by an entity at the time it becomes a
Subsidiary Loan Party (in each case other than assets constituting Collateral
under a Second Lien Security Document that become subject to the Lien of such
Second Lien Security Document upon acquisition thereof and other than assets
that are subject to Equipment Financing Agreements or other secured financing
arrangements or that are not required to become subject to the Liens of the
Administrative Agent pursuant to Section 5.10(g) or the Second Lien Security
Documents), cause such asset to be subjected to a Lien securing the Second
Lien Credit Agreement Obligations and take, and cause the Subsidiary Loan
Parties to take, such actions as shall be necessary or reasonably requested by
the Administrative Agent to grant and perfect such Liens, including actions
described in paragraph (a) of this Section, all at the expense of the Loan
Parties, subject to paragraph (g) below.
(c) Upon the written request of the Administrative Agent,
grant and cause each of the Subsidiary Loan Parties to grant to the
Administrative Agent security interests and mortgages in such real property of
the Borrower or any such Subsidiary Loan Parties as are not covered by the
original Mortgages (other than assets that are subject to Equipment Financing
Agreements or other permitted secured financing arrangements), to the extent
acquired after the Closing Date and having a value at the time of acquisition
in excess of $5.0 million pursuant to documentation substantially in the form
of the Mortgages delivered to the Administrative Agent on the Closing Date or
in such other form as is reasonably satisfactory to the Administrative Agent
(each, an "Additional Mortgage") and constituting valid and enforceable
perfected Liens superior to and prior to the rights of all third persons
(other than with respect to Liens pursuant to the First Lien Loan Documents)
subject to no other Liens except as are permitted by Section 6.02 or arising
by operation of law, at the time of perfection thereof, record or file, and
cause each such Subsidiary to record or file, the Additional Mortgage or
instruments related thereto in such manner and in such places as is required
by law to establish, perfect, preserve and protect the Liens in favor of the
Administrative Agent required to be granted pursuant to the Additional
Mortgages and pay, and cause each such Subsidiary to pay, in full, all Taxes,
fees and other charges payable in connection therewith, in each case subject
to paragraph (g) below. With respect to each such Additional Mortgage, the
Borrower shall deliver to the Administrative Agent contemporaneously therewith
a title insurance policy and a survey meeting the requirements of subsection
(i) of the definition of the term "Collateral and Guarantee Requirement."
(d) If any newly formed or acquired or any existing direct
or indirect Subsidiary of the Borrower becomes a Subsidiary Loan Party, within
ten Business Days after the date such Subsidiary becomes a Subsidiary Loan
Party, notify the Administrative Agent and the Lenders thereof and, within 20
Business Days after such date or such longer period as the Administrative
Agent shall agree, cause the Collateral and Guarantee Requirement to be
satisfied with respect to such Subsidiary and with respect to any Equity
Interest in or Indebtedness of such Subsidiary owned by or on behalf of any
Loan Party.
(e) If any newly formed or acquired or any existing Foreign
Subsidiary, License Subsidiary or Receivables Subsidiary of the Borrower
becomes a "first tier" Material Foreign Subsidiary, License Subsidiary or
Receivables Subsidiary, within ten Business Days after the date such
Subsidiary becomes a Material Foreign Subsidiary, License Subsidiary or
Receivables Subsidiary, notify the Administrative Agent and the Lenders
thereof and, within 20 Business Days after such date or such longer period as
the Administrative Agent shall agree (or such later date as may be the first
practicable date because of delays caused by foreign legal requirements
despite diligent efforts), cause the Collateral and Guarantee Requirement to
be satisfied with respect to any Equity Interest in such Subsidiary owned by
or on behalf of any Loan Party.
(f) (i) Furnish to the Administrative Agent prompt written
notice of any change (A) in any Loan Party's corporate or organization name,
(B) in any Loan Party's identity or organizational structure or (C) in any
Loan Party's organizational identification number; provided that the Borrower
shall not effect or permit any such change unless all filings have been made,
or will have been made within any statutory period, under the Uniform
Commercial Code or otherwise that are required in order for the Administrative
Agent to continue at all times following such change to have a valid, legal
and perfected security interest in all the Collateral for the benefit of the
Secured Parties and (ii) promptly notify the Administrative Agent if any
material portion of the Collateral is damaged or destroyed.
(g) The Collateral and Guarantee Requirement and the other
provisions of this Section 5.10 need not be satisfied with respect to (i) any
real property held by the Borrower or any of its Subsidiaries as a lessee
under a lease, (ii) any Equity Interests acquired after the Closing Date in
accordance with this Agreement if, and to the extent that, and for so long as
(A) doing so would violate applicable law or a contractual obligation binding
on such Equity Interests and (B) such law or obligation existed at the time of
the acquisition thereof and was not created or made binding on such Equity
Interests in contemplation of or in connection with the acquisition of such
Subsidiary, (iii) any assets acquired after the Closing Date, to the extent
that, and for so long as, taking such actions would violate a contractual
obligation binding on such assets that existed at the time of the acquisition
thereof and was not created or made binding on such assets in contemplation or
in connection with the acquisition of such assets (except in the case of
assets acquired with Indebtedness permitted pursuant to Section 6.01(i) or (j)
that is secured by a Lien permitted pursuant to Section 6.02(j) or (k)) or
(iv) any asset with respect to which the Administrative Agent reasonably
determines the cost of the satisfaction of the provisions of this Section 5.10
with respect thereto exceeds the value of the security afforded thereby;
provided that, upon the reasonable request of the Administrative Agent, the
Borrower shall, and shall cause any applicable Subsidiary to, use commercially
reasonable efforts to have waived or eliminated any contractual obligation of
the types described in clauses (ii) and (iii) above.
(h) No later than 60 days after the Closing Date or such
longer time as Administrative Agent shall agree (or such later date as may be
the first practicable date because of delays caused by foreign legal
requirements despite diligent efforts), to the exent permitted by applicable
law, each Loan Party listed on Schedule 5.10(h) shall duly execute and deliver
a counterpart of a Foreign Pledge Agreement with respect to the amount of
Equity Interests of each "first tier" Foreign Subsidiary directly owned by
such Loan Party and included on Schedule 5.10(h) (or such other evidence of a
perfected pledge of such Equity Interests as Administrative Agent shall agree)
and counsel to the Borrower listed on Schedule 5.10(h) shall deliver an
opinion concurrently therewith in form and substance reasonably satisfactory
to the Administrative Agent covering such matters relating thereto as the
Administrative Agent may reasonably request.
(i) Notwithstanding anything to the contrary in this Section
5.10 or any Second Lien Security Document and so long as any First Lien Debt
or letters of credit under the First Lien Credit Agreement remain outstanding
and/or the commitments under the First Lien Credit Agreement have not been
terminated, neither the Borrower nor any Subsidiary Loan Party shall be
required to grant any Lien, mortgage or security interest or take any other
action with respect to the Collateral obtained after the Closing Date to the
extent that such action is not required under the First Lien Loan Documents.
SECTION 5.11. Fiscal Year; Accounting. Cause its fiscal year
to end on December 31.
SECTION 5.12. Rating. Use commercially reasonable efforts to
obtain a rating from both S&P and Xxxxx'x.
ARTICLE VI
Negative Covenants
The Borrower covenants and agrees with each Lender that, so
long as this Agreement shall remain in effect (except contingent
indemnification obligations) and until the Commitments have been terminated
and the principal of and interest on each Loan, all Administrative Agent Fees
and all other expenses or amounts payable under any Second Lien Loan Document
have been paid in full, unless the Required Lenders shall otherwise consent in
writing, the Borrower will not, and will not cause or permit any of the
Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit
to exist any Indebtedness; provided, however, that the Borrower and any
Subsidiary may Incur Indebtedness if the Debt to Adjusted EBITDA Ratio of the
Borrower immediately preceding the date on which such additional Indebtedness
is Incurred would be less than or equal to 4.75 to 1.00 determined on a pro
forma basis (including a pro forma application of the net proceeds therefrom),
as if the additional Indebtedness had been Incurred as the case may be, and
the application of proceeds therefrom had occurred at the beginning of such
four-quarter period; provided that the aggregate principal amount of
Indebtedness incurred by Subsidiaries that are not Loan Parties pursuant to
the foregoing shall not exceed $25.0 million at any one time outstanding.
The foregoing limitation will not apply to:
(a) Indebtedness existing on the Closing Date and set forth
on Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to
Refinance such Indebtedness (other than intercompany indebtedness Refinanced
with Indebtedness owed to a person not affiliated with the Borrower or any
subsidiary), provided that Indebtedness owing to the Borrower or any
Subsidiary existing on the Closing Date and not set forth on Schedule 6.01
shall be permitted so long as the Borrower includes such Indebtedness on a
revised Schedule 6.01 no later than 15 days after the Closing Date;
(b) Indebtedness created hereunder and under the other
Second Lien Loan Documents;
(c) Indebtedness of the Borrower and the Subsidiaries
pursuant to Swap Agreements permitted by Section 6.14;
(d) Indebtedness owed to (including obligations in respect
of letters of credit or bank guarantees or similar instruments for the benefit
of) any person providing workers' compensation, health, disability or other
employee benefits or property, casualty or liability insurance to the Borrower
or any Subsidiary, pursuant to reimbursement or indemnification obligations to
such person, provided that upon the incurrence of Indebtedness with respect to
reimbursement obligations regarding workers' compensation claims, such
obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of the Borrower to any Subsidiary and of
any Subsidiary to the Borrower or any other Subsidiary, provided that (i)
Indebtedness of any Subsidiary that is not a Subsidiary Loan Party to the Loan
Parties shall be subject to Section 6.04(a) and (ii) Indebtedness of the
Borrower to any Subsidiary and Indebtedness of any other Loan Party to any
Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the
Second Lien Credit Agreement Obligations on terms reasonably satisfactory to
the Administrative Agent;
(f) Indebtedness in respect of performance bonds, bid bonds,
appeal bonds, surety bonds and completion guarantees and similar obligations,
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;
(g) Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business or other cash
management services in the ordinary course of business, provided that (x) such
Indebtedness (other than credit or purchase cards) is extinguished within ten
Business Days of its incurrence and (y) such Indebtedness in respect of credit
or purchase cards is extinguished within 60 days from its incurrence;
(h) (i) Indebtedness of a Subsidiary acquired after the
Closing Date or a corporation merged into or consolidated with the Borrower or
any Subsidiary after the Closing Date and Indebtedness assumed in connection
with the acquisition of assets, which Indebtedness in each case, exists at the
time of such acquisition, merger or consolidation and is not created in
contemplation of such event and where such acquisition, merger or
consolidation is permitted by this Agreement and (ii) any Permitted
Refinancing Indebtedness incurred to Refinance such Indebtedness, provided
that the aggregate principal amount of such Indebtedness at the time of, and
after giving effect to, such acquisition, merger or consolidation, such
assumption or such incurrence, as applicable (together with Indebtedness
outstanding pursuant to this paragraph (h), paragraph (i) of this Section 6.01
and the Remaining Present Value of outstanding leases permitted under Section
6.03), would not exceed in the aggregate the greater of (x) $30.0 million and
(y) 4.5% of Total Assets;
(i) Capitalized Lease Obligations, mortgage financings and
purchase money Indebtedness incurred by the Borrower or any Subsidiary prior
to or within 270 days after the acquisition, lease or improvement of the
respective asset permitted under this Agreement in order to finance such
acquisition or improvement, and any Permitted Refinancing Indebtedness in
respect thereof, in an aggregate principal amount that at the time of, and
after giving effect to, the incurrence thereof (together with Indebtedness
outstanding pursuant to paragraph (h) of this Section 6.01, this paragraph (i)
and the Remaining Present Value of leases permitted under Section 6.03) would
not exceed in the aggregate the greater of (x) $30.0 million and (y) 4.5% of
Total Assets;
(j) Capitalized Lease Obligations incurred by the Borrower
or any Subsidiary in respect of (i) any Sale and Lease-Back Transaction that
is permitted under Section 6.03 and (ii) no more than three Satellites at any
time;
(k) [Reserved];
(l) Indebtedness of the Borrower pursuant to the First Lien
Credit Agreement in an aggregate principal amount that is not in excess of
$450.0 million and any Permitted Refinancing Indebtedness incurred to
Refinance such Indebtedness;
(m) Guarantees (i) by the Borrower or any Subsidiary Loan
Party of any Indebtedness of the Borrower or any Subsidiary Loan Party
expressly permitted to be incurred under this Agreement, (ii) by the Borrower
or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted
hereunder of any Subsidiary that is not a Subsidiary Loan Party to the extent
such guarantees are permitted by Section 6.04(a), (iii) by any Foreign
Subsidiary of Indebtedness of another Foreign Subsidiary, and (iv) by the
Borrower of Indebtedness of Foreign Subsidiaries incurred for working capital
purposes in the ordinary course of business on ordinary business terms so long
as such Indebtedness is permitted to be incurred under 6.01(a) or (s);
provided that guarantees by the Borrower or any Subsidiary Loan Party under
this Section 6.01(m) of any other Indebtedness of a person that is
subordinated to other Indebtedness of such person shall be expressly
subordinated to the Second Lien Credit Agreement Obligations;
(n) Indebtedness arising from agreements of the Borrower or
any Subsidiary providing for indemnification, adjustment of purchase price or
similar obligations, in each case, incurred or assumed in connection with the
disposition of any business, assets or a Subsidiary, other than guarantees of
Indebtedness incurred by any person acquiring all or any portion of such
business, assets or a Subsidiary for the purpose of financing such
acquisition;
(o) letters of credit or bank guarantees (other than letters
of credit issued pursuant to Section 2.05 of the First Lien Credit Agreement)
having an aggregate face amount not in excess of $5.0 million;
(p) Indebtedness supported by a letter of credit issued
pursuant to the First Lien Credit Agreement, in a principal amount not in
excess of the stated amount of such letter of credit;
(q) Indebtedness consisting of (i) the financing of
insurance premiums or (ii) take-or-pay obligations contained in supply
arrangements, in each case, in the ordinary course of business;
(r) unsecured Indebtedness consisting of Permitted Debt
Securities and Permitted Refinancings thereof;
(s) Indebtedness of Foreign Subsidiaries for working capital
purposes incurred in the ordinary course of business on ordinary business
terms in an aggregate amount, when aggregated with the net amount of
Investments outstanding pursuant to the first proviso in Section 6.04(a), not
to exceed $50.0 million outstanding at any time;
(t) Indebtedness under Equipment Financing Agreements;
(u) 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 Subsidiary other than a
Receivables Subsidiary; provided, however, that the aggregate principal amount
of Indebtedness Incurred under this clause (u), when aggregated with the
principal amount of all other Indebtedness then outstanding and Incurred
pursuant to this clause (u), does not exceed $50.0 million;
(v) Indebtedness with respect to Existing Letters of Credit
(but not including any refinancing, extension, renewal or replacement thereof
or any increase to the face amount thereof); and
(w) all premium (if any), interest (including post-petition
interest), fees, expenses, charges and additional or contingent interest on
obligations described in paragraphs (a) through (v) above.
SECTION 6.02. Liens. Create, incur, assume or permit to
exist any Lien on any property or assets (including stock or other securities
of any person, including any subsidiary of the Borrower) at the time owned by
it or on any income or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower and the
Subsidiaries existing on the Closing Date and set forth on Schedule 6.02(a);
provided that such Liens shall secure only those obligations that they secure
on the Closing Date (and extensions, renewals and refinancings of such
obligations permitted by Section 6.01(a)) and shall not subsequently apply to
any other property or assets of the Borrower or any Subsidiary;
(b) any Lien created under the Second Lien Loan Documents or
permitted in respect of any Mortgaged Property by the terms of the applicable
Mortgage;
(c) Liens created under the First Lien Loan Documents;
provided that such Liens secure only those obligations that they secure on the
Closing Date and any Permitted Refinancing Indebtedness incurred to refinance
the First Lien Term Loans;
(d) any Lien on any property or asset of the Borrower or any
Subsidiary securing Indebtedness or Permitted Refinancing Indebtedness
permitted by Section 6.01(h), provided that such Lien (i) does not apply to
any other property or assets of the Borrower or any of the Subsidiaries not
securing such Indebtedness at the date of the acquisition of such property or
asset (other than after acquired property subjected to a Lien securing
Indebtedness and other obligations incurred prior to such date and which
Indebtedness and other obligations are permitted hereunder that require a
pledge of after acquired property, it being understood that such requirement
shall not be permitted to apply to any property to which such requirement
would not have applied but for such acquisition), (ii) such Lien is not
created in contemplation of or in connection with such acquisition and (iii)
in the case of a Lien securing Permitted Refinancing Indebtedness, any such
Lien is permitted, subject to compliance with clause (e) of the definition of
the term "Permitted Refinancing Indebtedness";
(e) Liens for Taxes, assessments or other governmental
charges or levies not yet delinquent or that are being contested in compliance
with Section 5.03;
(f) landlord's, carriers', warehousemen's, mechanics',
materialmen's, repairmen's, construction or other like Liens arising in the
ordinary course of business and securing obligations that are not overdue by
more than 30 days or that are being contested in good faith by appropriate
proceedings and in respect of which, if applicable, the Borrower or any
Subsidiary shall have set aside on its books reserves in accordance with GAAP;
(g) (i) deposits and other Liens made in the ordinary course
of business in compliance with the Federal Employers Liability Act or any
other workers' compensation, unemployment insurance and other social security
laws or regulations and deposits securing liability to insurance carriers
under insurance or self-insurance arrangements in respect of such obligations
and (ii) deposits and other Liens securing liability for reimbursement or
indemnification obligations of (including obligations in respect of letters of
credit or bank guarantees for the benefit of) insurance carriers providing
property, casualty or liability insurance to the Borrower or any Subsidiary;
(h) deposits and other Liens to secure the performance of
bids, trade contracts (other than for Indebtedness), leases (other than
Capitalized Lease Obligations), statutory obligations, surety and appeal
bonds, performance and return of money bonds, bids, leases, government
contracts, trade contracts, and other obligations of a like nature (including
letters of credit in lieu of any such bonds or to support the issuance
thereof) incurred in the ordinary course of business, including those incurred
to secure health, safety and environmental obligations in the ordinary course
of business;
(i) zoning restrictions, survey exceptions, easements,
trackage rights, leases (other than Capitalized Lease Obligations), licenses,
special assessments, rights-of-way, restrictions on use of real property and
other similar encumbrances incurred in the ordinary course of business that,
in the aggregate, do not interfere in any material respect with the ordinary
conduct of the business of the Borrower or any Subsidiary;
(j) purchase money security interests in equipment or other
property or improvements thereto hereafter acquired (or, in the case of
improvements, constructed) by the Borrower or any Subsidiary (including the
interests of vendors and lessors under conditional sale and title retention
agreements); provided that (i) such security interests secure Indebtedness
permitted by Section 6.01(i) or 6.01(j)(ii) (including any Permitted
Refinancing Indebtedness in respect thereof), (ii) such security interests are
incurred, and the Indebtedness secured thereby is created, within 270 days
after such acquisition, (iii) the Indebtedness secured thereby does not exceed
100% of the cost of such equipment or other property or improvements at the
time of such acquisition or construction, including transaction costs incurred
by the Borrower or any Subsidiary in connection with such acquisition and (iv)
such security interests do not apply to any other property or assets of the
Borrower or any Subsidiary (other than to accessions to such equipment or
other property or improvements but not to other parts of the property to which
any such improvements are made); provided, further, that individual financings
of equipment provided by a single lender may be cross-collateralized to other
financings of equipment provided solely by such lender;
(k) Liens arising out of capitalized lease transactions
permitted under Section 6.03, so long as such Liens attach only to the
property sold and being leased in such transaction and any accessions thereto
or proceeds thereof and related property;
(l) Liens securing judgments that do not constitute an Event
of Default under Section 7.01(j), provided that such Liens, to the extent that
they secure aggregate amounts of more than $25.0 million, shall be discharged
within 60 days of the creation thereof;
(m) Liens disclosed by the title insurance policies
delivered on or subsequent to the Closing Date and pursuant to Section 5.10
and any replacement, extension or renewal of any such Lien; provided that such
replacement, extension or renewal Lien shall not cover any property other than
the property that was subject to such Lien prior to such replacement,
extension or renewal; provided, further, that the Indebtedness and other
obligations secured by such replacement, extension or renewal Lien are
permitted by this Agreement;
(n) any interest or title of a lessor under any leases or
subleases entered into by the Borrower or any Subsidiary in the ordinary
course of business (including Liens arising from Uniform Commercial Code
financing statements filed with respect thereto);
(o) Liens that are contractual rights of set-off (i)
relating to the establishment of depository relations with banks not given in
connection with the issuance of Indebtedness, (ii) relating to pooled deposit
or sweep accounts of the Borrower or any Subsidiary to permit satisfaction of
overdraft or similar obligations incurred in the ordinary course of business
of the Borrower and the Subsidiaries or (iii) relating to purchase orders and
other agreements entered into with customers of the Borrower or any Subsidiary
in the ordinary course of business;
(p) Liens arising solely by virtue of any statutory or
common law provision relating to banker's liens, rights of set-off or similar
rights;
(q) Liens securing obligations in respect of trade-related
letters of credit permitted under Section 6.01(f), (k) or (o) and covering the
goods (or the documents of title in respect of such goods) financed by such
letters of credit and the proceeds and products thereof;
(r) grants of software and licenses of intellectual property
granted in a manner consistent with past practice;
(s) 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;
(t) Liens on the assets of a Foreign Subsidiary which secure
Indebtedness of such Foreign Subsidiary that is permitted to be incurred under
Section 6.01(a) or (s);
(u) 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; provided, however, that the
aggregate principal amount of Indebtedness under all such Qualified
Receivables Financings at any time outstanding shall not exceed $50.0 million;
(v) Liens incurred pursuant to the Equipment Financing
Agreements;
(w) Liens arising out of consignment or similar arrangements
for the sale of goods entered into in the ordinary course of business;
(x) Liens securing insurance premiums financing
arrangements, provided that such Liens are limited to the applicable unearned
insurance premiums;
(y) Liens solely on any xxxx xxxxxxx money deposits made by
the Borrower or any of the Subsidiaries in connection with any letter of
intent or purchase agreement permitted hereunder;
(z) Liens on assets or property at the time the Borrower or
a Subsidiary of the Borrower acquired the assets or property, including any
acquisition by means of a merger or by means of the acquisition of equity
Interests of any Person, amalgamation or consolidation with or into the
Borrower or any Subsidiary of the Borrower; provided, however, that such Liens
are not created or Incurred in connection with, or in contemplation of, such
acquisition; provided, further, however, that the Liens may not extend to any
other assets or property owned by the Borrower or any Subsidiary of the
Borrower;
(aa) Liens in favor of the Borrower or any Subsidiary Loan
Party;
(bb) Liens securing Hedging Obligations permitted to be
Incurred under Section 6.14; and
(cc) deposits or other Liens with respect to property or
assets of the Borrower or any Subsidiary; provided that such property and
assets shall have an aggregate Fair Market Value (valued at the time of
creation of the Liens) of not more than $15.0 million at any time.
SECTION 6.03. Sale and Lease-Back Transactions. Enter into
any arrangement, directly or indirectly, with any person whereby it shall sell
or transfer any property, real or personal, used or useful in its business,
whether now owned or hereafter acquired, and thereafter rent or lease such
property or other property that it intends to use for substantially the same
purpose or purposes as the property being sold or transferred (a "Sale and
Lease-Back Transaction"), provided that a Sale and Lease-Back Transaction
shall be permitted either (i) with respect to (a) property owned by the
Borrower or any Domestic Subsidiary that is acquired after the Closing Date so
long as such Sale and Lease-Back Transaction is consummated within 180 days of
the acquisition of such property or (b) property owned by any Foreign
Subsidiary regardless of when such property was acquired or (ii) if at the
time the lease in connection therewith is entered into, and after giving
effect to the entering into of such lease, the Remaining Present Value of such
lease (together with Indebtedness outstanding pursuant to paragraphs (h) and
(i) of Section 6.01 and the Remaining Present Value of outstanding leases
previously entered into under this Section 6.03(ii)) would not exceed in the
aggregate the greater of (x) $30.0 million and (y) 4.5% of Total Assets.
SECTION 6.04. Investments, Loans and Advances. Purchase,
hold or acquire (including pursuant to any merger with a person that is not a
Wholly Owned Subsidiary immediately prior to such merger) any Equity
Interests, evidences of Indebtedness or other securities of, make or permit to
exist any loans or advances to or guarantees of the obligations of, or make or
permit to exist any investment or any other interest in (each, an
"Investment"), in any other person, except:
(a) (i) Investments by the Borrower or any Subsidiary in the
Equity Interests of the Borrower or any Subsidiary; (ii) intercompany loans
from any Borrower or any Subsidiary to the Borrower or any Subsidiary; and
(iii) guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness
otherwise expressly permitted hereunder of the Borrower or any Subsidiary;
provided that the sum of (A) Investments (valued at the time of the making
thereof and without giving effect to any write-downs or write-offs thereof)
after the Closing Date by the Loan Parties pursuant to clause (i) in
Subsidiaries that are not Subsidiary Loan Parties, plus (B) net intercompany
loans after the Closing Date to Subsidiaries that are not Subsidiary Loan
Parties pursuant to clause (ii), plus (C) guarantees of Indebtedness after the
Closing Date of Subsidiaries that are not Subsidiary Loan Parties pursuant to
clause (iii), shall not, when aggregated with the aggregate principal amount
of Indebtedness outstanding pursuant to Section 6.01(s), exceed an aggregate
net amount of $50.0 million (plus any return of capital actually received by
the respective investors in respect of investments theretofore made by them
pursuant to this paragraph (a)); and provided further that intercompany
current liabilities incurred in the ordinary course of business in connection
with the cash management operations of the Borrower and the Subsidiaries shall
not be included in calculating the limitation in this paragraph at any time;
(b) Permitted Investments and investments that were
Permitted Investments when made;
(c) Investments arising out of the receipt by the Borrower
or any Subsidiary of noncash consideration for the sale of assets permitted
under Section 6.05;
(d) (i) loans and advances to employees of the Borrower or
any Subsidiary in the ordinary course of business not to exceed $5.0 million
in the aggregate at any time outstanding (calculated without regard to
write-downs or write-offs thereof) and (ii) advances of payroll payments and
expenses to employees in the ordinary course of business;
(e) accounts receivable arising and trade credit granted in
the ordinary course of business and any securities received in satisfaction or
partial satisfaction thereof from financially troubled account debtors to the
extent reasonably necessary in order to prevent or limit loss and any
prepayments and other credits to suppliers made in the ordinary course of
business;
(f) Swap Agreements permitted pursuant to Section 6.14;
(g) Investments existing on, or committed to as of, the
Closing Date and set forth on Schedule 6.04;
(h) Investments resulting from pledges and deposits referred
to in Sections 6.02(g), (h), (l), (s), (y) and (bb);
(i) additional Investments by the Borrower or any of its
Subsidiaries having an aggregate Fair Market Value, taken together with all
other Investments made pursuant to this clause (i) that are at that time
outstanding, not to exceed the sum of (i) greater of (x) $30.0 million and (y)
3.5% of Total Assets of the Borrower at the time of such Investment, plus (ii)
the portion, if any, of the Available Cumulative Credit Amount on the date of
such election that the Borrower elects to apply pursuant to this Section
6.04(i); provided that the amount in this clause (ii) shall only be available
if (x) at the time of such Investment no Default or Event of Default shall
have occurred and be continuing and (y) immediately after giving effect to the
making of such investments on a pro forma basis the Borrower would be
permitted to Incur at least $1.00 of additional Indebtedness pursuant to the
Adjusted EBITDA Ratio test in the first paragraph of Section 6.01, plus (iii)
the net cash proceeds of any subordinated Permitted Debt Securities issued to
finance such additional Investments (with the Fair Market Value of each
Investment being measured at the time made and without giving effect to
subsequent changes in value), plus (iv) any returns of capital actually
received by the respective investor in respect of Investments theretofore made
by it pursuant to this paragraph (i));
(j) Investments constituting Permitted Business
Acquisitions;
(k) Investments consisting of the licensing or contribution
of intellectual property pursuant to joint marketing arrangements with other
Persons;
(l) intercompany loans and other Investments between
Subsidiaries that are not Subsidiary Loan Parties and guarantees permitted by
Section 6.01(m);
(m) Investments consisting of purchases and acquisitions of
inventory, supplies, materials and equipment or purchases of contract rights
or licenses or leases of intellectual property in each case in the ordinary
course of business;
(n) any Investment in a Receivables Subsidiary or any
Investment by a Receivables Subsidiary in any other Person in connection with
a Qualified Receivables Financing, including Investments of funds held in
accounts permitted or required by the arrangements governing such Qualified
Receivables Financing or any related Indebtedness; provided, however, that any
Investment in a Receivables Subsidiary is in the form of a Purchase Money
Note, contribution of additional receivables or an equity interest;
(o) the Transactions;
(p) Investments received in connection with the bankruptcy
or reorganization of, or settlement of delinquent accounts and disputes with
or judgments against, customers and suppliers, in each case in the ordinary
course of business or Investments acquired by the Borrower as a result of a
foreclosure by the Borrower or any of its Subsidiaries with respect to any
secured Investments or other transfer of title with respect to any secured
Investment in default;
(q) Investments of a Subsidiary acquired after the Closing
Date or of a corporation merged into the Borrower or merged into or
consolidated with a Subsidiary in accordance with Section 6.05 after the
Closing Date to the extent that such Investments were not made in
contemplation of or in connection with such acquisition, merger or
consolidation and were in existence on the date of such acquisition, merger or
consolidation;
(r) Investments received in exchange for Equity Interests of
the Borrower;
(s) any Investment by the Borrower or any Subsidiary of the
Borrower in a Person if as a result of such Investment such Person becomes a
Subsidiary Loan Party (but is not in connection with the acquisition of such
Person); and
(t) Guarantees by the Borrower or any Subsidiary of
operating leases (other than Capitalized Lease Obligations) or of other
obligations that do not constitute Indebtedness, in each case entered into by
any Subsidiary in the ordinary course of business.
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions. Merge into or consolidate with any other person, or permit any
other person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all
or any part of its assets (whether now owned or hereafter acquired, including,
without limitation, customer contracts), or issue, sell, transfer or otherwise
dispose of any Equity Interests of any Subsidiary, or purchase, lease or
otherwise acquire (in one transaction or a series of transactions) all or any
substantial part of the assets of any other person, except that this Section
shall not prohibit:
(a) (i) the lease, purchase or sale of inventory or excess
transponder capacity in the ordinary course of business by the Borrower or any
Subsidiary; provided that the proceeds of any such sale of excess transponder
capacity shall be included as revenue in the consolidated statement of
operations of the Borrower of such Subsidiary, (ii) the acquisition of any
other asset in the ordinary course of business by the Borrower or any
Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other
property in the ordinary course of business by the Borrower or any Subsidiary
or (iv) the sale of Permitted Investments in the ordinary course of business;
(b) if at the time thereof and immediately after giving
effect thereto no Event of Default shall have occurred and be continuing, (i)
the merger of any Subsidiary into the Borrower in a transaction in which the
Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary
into or with any Subsidiary Loan Party in a transaction in which the surviving
or resulting entity is a Subsidiary Loan Party and, in the case of each of
clauses (i) and (ii), no person other than a Borrower or Subsidiary Loan Party
receives any consideration, (iii) the merger or consolidation of any
Subsidiary that is not a Subsidiary Loan Party into or with any other
Subsidiary that is not a Subsidiary Loan Party or (iv) the liquidation or
dissolution or change in form of entity of any Subsidiary (other than the
Borrower) if 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;
(c) sales, transfers, leases or other dispositions to the
Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided
that any sales, transfers, leases or other dispositions by a Loan Party to a
Subsidiary that is not a Subsidiary Loan Party shall be made in compliance
with Section 6.07; provided, further that the aggregate gross proceeds of any
sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary
that is not a Subsidiary Loan Party in reliance upon this paragraph (c) and
the aggregate gross proceeds of any or all assets sold, transferred or leased
in reliance upon paragraph (k) below shall not exceed, in any fiscal year of
the Borrower, $75.0 million;
(d) Sale and Lease-Back Transactions permitted by Section
6.03;
(e) Investments permitted by Section 6.04, Liens permitted
by Section 6.02 and Dividends permitted by Section 6.06;
(f) any sale or other absolute transfer of accounts
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;
(g) any Event of Loss;
(h) any disposition of assets pursuant to the Equipment
Financing Agreements;
(i) any swap (i) of owned or leased satellite transponder
capacity for other satellite transponder capacity of comparable or greater
value or usefulness to the business of the Borrower and its Subsidiaries as a
whole, as determined in good faith by senior management or the Board of
Directors of the Borrower, which in the event of a swap with a Fair Market
Value in excess of (x) $10.0 million shall be evidenced by a certificate from
a Financial Officer of the Borrower and (y) $25.0 million shall be set forth
in a resolution approved in good faith by at least a majority of the Board of
Directors or managing member of the Borrower or (ii) of assets in exchange for
services or other assets in the ordinary course of business of comparable or
greater value or usefulness to the business of the Borrower and its
Subsidiaries as a whole, as determined in good faith by senior management or
the Board of Directors of the Borrower, which in the event of a swap with a
Fair Market Value in excess of (x) $10.0 million shall be evidenced by a
certificate from a Financial Officer of the Borrower and (y) $25.0 million
shall be set forth in a resolution approved in good faith by at least a
majority of the Board of Directors or managing member of the Borrower;
(j) the sale of defaulted receivables in the ordinary course
of business and not as part of an accounts receivables financing transaction;
(k) sales, transfers, leases or other dispositions of assets
(including any such transfer of excess transponder capacity not permitted
under paragraph (a) above) not otherwise permitted by this Section 6.05;
provided that the aggregate gross proceeds (including noncash proceeds) of any
or all assets sold, transferred, leased or otherwise disposed of in reliance
upon this paragraph (k) and in reliance upon the second proviso to paragraph
(c) above shall not exceed, in any fiscal year of the Borrower, $75.0 million
provided further, that the Net Proceeds thereof are applied in accordance with
Section 2.11(b);
(l) any merger or consolidation in connection with a
Permitted Business Acquisition, provided that following any such merger or
consolidation (i) involving the Borrower, the Borrower is the surviving
corporation, (ii) involving a Domestic Subsidiary, the surviving or resulting
entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary and
(iii) involving a Foreign Subsidiary, the surviving or resulting entity shall
be a Wholly Owned Subsidiary;
(m) licensing and cross-licensing arrangements involving any
technology or other intellectual property of the Borrower or any Subsidiary in
the ordinary course of business;
(n) sales, leases or other dispositions of inventory of the
Borrower and its Subsidiaries determined by the management of the Borrower to
be no longer useful or necessary in the operation of the business of the
Borrower or any of the Subsidiaries provided that the Net Proceeds thereof are
applied in accordance with Section 2.11(b); and
(o) sales of assets described on Schedule 6.05, provided
that the Net Proceeds thereof are applied in accorance with Section 2.11(b).
Notwithstanding anything to the contrary contained in
Section 6.05 above, (i) no sale, transfer or other disposition of assets shall
be permitted by this Section 6.05 (other than sales, transfers, leases or
other dispositions to Loan Parties pursuant to paragraph (c) hereof) unless
such disposition is for Fair Market Value, (ii) no sale, transfer or other
disposition of assets shall be permitted by paragraph (a), (d) or (n) of this
Section 6.05 unless such disposition is for at least 75% cash consideration
and (iii) no sale, transfer or other disposition of assets shall be permitted
by paragraph (k) of this Section 6.05 unless such disposition is for at least
75% cash consideration; provided that for purposes of clauses (ii) and (iii),
the amount of any secured Indebtedness or other Indebtedness of a Subsidiary
that is not a Loan Party (as shown on the Borrower's or such Subsidiary's most
recent balance sheet or in the notes thereto) of the Borrower or any
Subsidiary of the Borrower that is assumed by the transferee of any such
assets shall be deemed to be cash.
SECTION 6.06. Dividends and Distributions. Declare or pay,
directly or indirectly, any dividend or make any other distribution (by
reduction of capital or otherwise), whether in cash, property, securities or a
combination thereof, with respect to any of its Equity Interests (other than
dividends and distributions on Equity Interests payable solely by the issuance
of additional Equity Interests of the person paying such dividends or
distributions) or directly or indirectly redeem, purchase, retire or otherwise
acquire for value (or permit any Subsidiary to purchase or acquire) any of its
Equity Interests or set aside any amount for any such purpose (other than
through the issuance of additional Equity Interests of the person redeeming,
purchasing, retiring or acquiring such shares); provided, however, that,
without duplication:
(a) any subsidiary of the Borrower may declare and pay
dividends to, repurchase its Equity Interests from or make other distributions
to the Borrower or to any Wholly Owned Subsidiary of the Borrower (or, in the
case of non-Wholly Owned Subsidiaries, to the Borrower or any subsidiary that
is a direct or indirect parent of such subsidiary and to each other owner of
Equity Interests of such subsidiary on a pro rata basis (or more favorable
basis from the perspective of the Borrower or such subsidiary) based on their
relative ownership interests);
(b) the Borrower may declare and pay dividends or make other
distributions to the Parents in respect of (i) fees and expenses related to
any equity offering, investment or acquisition permitted hereunder (whether or
not successful) and (ii) other fees and expenses in connection with or
attributable to their ownership of the Borrower;
(c) the Borrower may purchase or redeem Equity Interests of
the Borrower (including related stock appreciation rights or similar
securities) held by then present or former directors, consultants, officers or
employees of the Borrower or any of the Subsidiaries or by any Plan upon such
person's death, disability, retirement or termination of employment or under
the terms of any such Plan or any other agreement under which such shares of
stock or related rights were issued, provided that the aggregate amount of
such purchases or redemptions under this paragraph (c) shall not exceed in any
fiscal year $7.5 million (plus the amount of net proceeds received by the
Borrower during such calendar year from sales of Equity Interests of the
Borrower to directors, consultants, officers or employees of the Borrower or
any Subsidiary in connection with permitted employee compensation and
incentive arrangements), which, if not used in any year, may be carried
forward to any subsequent calendar year so long as the aggregate amount
expended in any year pursuant to this paragraph (c) does not exceed $15.0
million;
(d) repurchases of Equity Interests deemed to occur upon
exercise of stock options or warrants if such Equity Interests represent a
portion of the exercise price of such options;
(e) the Borrower may declare and pay dividends or make other
distributions or reimbursements to DIRECTV or any of its Affiliates in an
aggregate amount equal to the cash and cash equivalents that collateralize the
Existing Letters of Credit as the Existing Letters of Credit are terminated or
replaced as contemplated by the Transaction Agreement;
(f) the Borrower may pay dividends and make distributions
to, or to repurchase or redeem shares from, its equity holders in an aggregate
amount equal to the sum of (i) $30 million, plus (ii) the portion, if any, of
the Available Cumulative Credit Amount on the date of such election that the
Borrower elects to apply pursuant to this Section 6.06(f); provided that the
amount in this clause (ii) shall only be available if (x) at the time of such
dividend or distribution no Default or Event of Default shall have occurred
and be continuing and (y) immediately after giving effect to the making of
such dividend or distribution on a pro forma basis the Borrower would be
permitted to Incur at least $1.00 of additional Indebtedness pursuant to the
Adjusted EBITDA Ratio test in the first paragraph of Section 6.01;
(g) for so long as the Borrower is a Flow Through Entity,
payment of dividends or other distributions to any member of the Borrower in
an amount, with respect to any period after the Closing Date, (i) not to
exceed the tax amount that the Borrower is required to distribute to its
members pursuant to Section 6.3.4 of the Limited Liability Agreement of the
Borrower as in effect on the Closing Date with respect to the Borrower for
such period or (ii) in the event that Section 6.3.4 of the Limited Liability
Agreement of the Borrower is no longer operable, equal to (A) the product of
the amount of aggregate net taxable income allocated by the Borrower to such
member of the Borrower for such period multiplied by the Presumed Tax Rate for
such period less (B) the amount of dividends or other distributions, if any,
received by such member from the Borrower during such period; and (b) if the
Borrower is not a Flow Through Entity, payment of dividends or other
distributions to any direct or indirect parent of the Borrower that files a
consolidated U.S. federal tax return that includes the Borrower and its
subsidiaries in an amount not to exceed the amount that the Borrower and its
Subsidiaries would have been required to pay in respect of federal, state or
local taxes, as the case may be, in respect of such year if the Borrower and
its Subsidiaries had paid such taxes directly as a stand-alone taxpayer or
stand-alone group; and
(h) any payment used to fund the Transactions and the fees
and expenses related thereto or made in connection with the consummation of
the Transactions (including payments made pursuant to or as contemplated by
the Transaction Documents, whether payable on the Closing Date or thereafter),
or owed by any parent of the Borrower, the Borrower or Subsidiaries of the
Borrower to Affiliates pursuant to the Transaction Documents, in each case to
the extent permitted by Section 6.07.
SECTION 6.07. Transactions with Affiliates. (a) Sell or
transfer any property or assets to, or purchase or acquire any property or
assets from, or otherwise engage in any other transaction with, any of its
Affiliates or any known direct or indirect holder of 10% or more of any class
of capital stock of the Borrower, unless such transaction is (i) otherwise
permitted (or required) under this Agreement or (ii) upon terms no less
favorable to the Borrower or such Subsidiary, as applicable, than would be
obtained in a comparable arm's-length transaction with a person that is not an
Affiliate; provided that this clause (ii) shall not apply to (A) the payment
the monitoring and management fees referred to in paragraph (c) below or fees
payable on the Closing Date or (B) the indemnification of directors of the
Borrower and the Subsidiaries in accordance with customary practice.
(b) The foregoing paragraph (a) shall not prohibit, to the
extent otherwise permitted under this Agreement,
(i) any issuance of securities, or other payments, awards or
grants in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, equity purchase agreements, stock options and
stock ownership plans approved by the Board of Directors or managing
member of the Borrower,
(ii) loans or advances to employees of the Borrower or any
of the Subsidiaries in accordance with Section 6.04(d),
(iii) transactions among the Borrower and the Subsidiary
Loan Parties and transactions among the Subsidiary Loan Parties
otherwise permitted by this Agreement,
(iv) the payment of reasonable and customary fees to, and
indemnity provided on behalf of officers, directors, employees or
consultants of the Borrower, any parent of the Borrower or any
Subsidiary of the Borrower,
(v) transactions pursuant to the Transaction Documents and
permitted agreements in existence on the Closing Date and set forth on
Schedule 6.07 or any amendment thereto to the extent such amendment is
not adverse to the Lenders in any material respect,
(vi) any employment agreements entered into by the Borrower
or any of the Subsidiaries in the ordinary course of business,
(vii) dividends, redemptions and repurchases permitted under
Section 6.06,
(viii) any purchase by the SkyTerra or any of its Affiliates
or DIRECTV or any of its Affiliates of Equity Interests of the Borrower
or any contribution by either Parent to, or purchase by either Parent
of, the equity capital of the Borrower or issuance of Equity Interests
by the borrower to either Parent; provided that any Equity Interests of
the Borrower purchased by either Parent shall be pledged to the
Administrative Agent on behalf of the Lenders pursuant to the Parent
Pledge Agreement,
(ix) so long as no Default or Event of Default shall have
occurred and be continuing, payments by the Borrower or any of its
Subsidiaries to the Permitted Holders made for any financial advisory,
financing, underwriting or placement services or in respect of other
investment banking activities, including, without limitation, in
connection with acquisitions or divestitures, which payments are (x)
approved by a majority of the Board of Directors of the borrower in good
faith or (y) made pursuant to any agreement, or any agreement
contemplated by such agreement, each as described under the caption
"Certain relationships and related transactions" in the Offering
Memorandum,
(x) payments or loans (or cancellation of loans) to
employees or consultants that are (i) approved by a majority of the
Board of Directors or managing member of the Borrower in good faith,
(ii) made in compliance with applicable law and (iii) otherwise
permitted under this Agreement,
(xi) transactions with Wholly Owned Subsidiaries for the
purchase or sale of goods, products, parts and services entered into in
the ordinary course of business in a manner consistent with past
practice,
(xii) any transaction in respect of which the Borrower
delivers to the Administrative Agent (for delivery to the Lenders) a
letter addressed to the Board of Directors of the Borrower from an
accounting, appraisal or investment banking firm, in each case of
nationally recognized standing that is (A) in the good faith
determination of the Borrower qualified to render such letter and (B)
reasonably satisfactory to the Administrative Agent, which letter states
that such transaction is on terms that are no less favorable to the
Borrower or such Subsidiary, as applicable, than would be obtained in a
comparable arm's-length transaction with a person that is not an
Affiliate,
(xiii) subject to paragraph (c) below, the payment of all
fees, expenses, bonuses and awards related to the Transactions
contemplated by the Transaction Agreement, including fees to the
Permitted Holders,
(xiv) transactions effected as part of or to facilitate a
Qualified Receivables Financing;
(xv) transactions between the Borrower or any of its
Subsidiaries and any Person, a director of which is also a director of
the Borrower or any direct or indirect parent company of the Borrower,
provided, however, that such director abstains from voting as a director
of the Borrower or such direct or indirect parent company, as the case
may be, on any matter involving such other Person;
(xvi) transactions with customers, clients, suppliers, or
purchasers or sellers of goods or services, in each case in the ordinary
course of business and otherwise in compliance with the terms of the
Agreement that are fair to the Borrower or the Subsidiaries;
(xvii) the issuances of securities or other payments, awards
or grants in cash, securities or otherwise pursuant to, or the funding
of, employment arrangements, stock option and stock ownership plans or
similar employee benefit plans approved by the Board of Directors or
managing member of the Borrower or of a Subsidiary of the borrower, as
appropriate, in good faith;
(xviii) transactions permitted by, and complying with, the
provisions of Section 6.05;
(xix) any agreement entered into in compliance with Section
7.10 of the Amended and Restated Limited Liability Company Agreement of
the Borrower; and
(xx) transactions with joint ventures for the purchase or
sale of goods, equipment and services entered into in the ordinary
course of business and in a manner consistent with past practice.
(c) Provided no Default or Event of Default shall have
occurred and be continuing, payment of, (i) management, consulting, monitoring
and advisory fees and expenses to the Permitted Holders in an aggregate amount
in any fiscal year not to exceed $1.0 million (plus unpaid amounts deferred
from a prior fiscal year), but not more than $3.0 million in the aggregate and
(ii) expense reimbursement, in each case made pursuant to any agreement, or
any agreement contemplated by such agreement, each as described under the
caption "Certain relationships and related transactions" in the Offering
Memorandum (including any amendments or modifications thereto that are not
adverse to the Lenders in any material respect).
SECTION 6.08. Business of the Borrower and the Subsidiaries.
Notwithstanding any other provisions hereof, engage at any time in any
business or business activity other than any business or business activity
conducted by the Borrower or any Subsidiary on the Closing Date and any
business or business activities incidental or related thereto, or any business
or activity that is reasonably similar thereto or a reasonable extension,
development or expansion thereof or ancillary thereto, including the
consummation of the Transactions.
SECTION 6.09. Limitation on Modifications of Indebtedness;
Modifications of Certificate of Incorporation, By-Laws and Certain Other
Agreements; etc. (a) Amend or modify in any manner materially adverse to the
Lenders, or grant any waiver or release under or terminate in any manner (if
such granting or termination shall be materially adverse to the Lenders), the
articles or certificate of incorporation or by-laws or limited liability
company operating agreement of the Borrower or any of the Subsidiaries or the
Transaction Agreement.
(b) (i) Make, or agree or offer to pay or make, directly or
indirectly, any payment or other distribution (whether in cash, securities or
other property) of or in respect of principal of or interest on any Permitted
Debt Securities or any Permitted Refinancing Indebtedness thereof, or any
payment or other distribution (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of any
Permitted Debt Securities (except for Refinancings permitted by Section
6.01(l) and (r)), except for payments of regularly scheduled interest, other
than payments in respect of any Permitted Debt Securities prohibited by the
subordination provisions thereof and, to the extent this Agreement is then in
effect, principal on the scheduled maturity date thereof; provided, however,
that the Borrower may at any time and from time to time repay, repurchase,
redeem, acquire, cancel or terminate all or any portion of the Permitted Debt
Securities for an aggregate amount equal to the portion, if any, of the
Available Cumulative Credit Amount on the date of such election that the
Borrower elects to apply pursuant to this Section 6.09(b) so long as (x) at
the time of such dividend or distribution no Default or Event of Default shall
have occurred and be continuing and (y) immediately after giving effect to the
making of such dividend or distribution on a pro forma basis the Borrower
would be permitted to Incur at least $1.00 of additional Indebtedness pursuant
to the Adjusted EBITDA Ratio test in the first paragraph of Section 6.01; or
(ii) Amend or modify, or permit the amendment or
modification of, any provision of any Permitted Debt Securities or any
Permitted Refinancing Indebtedness thereof, or any other material debt
instruments (including, without limitation, the Equipment Financing
Agreements or any agreement (including any document relating to any
Permitted Debt Securities or any Permitted Refinancing Indebtedness
thereof) relating thereto, other than amendments or modifications that
(1) are not in any manner materially adverse to Lenders and that do not
affect the subordination provisions thereof (if any) in a manner adverse
to the Lenders or (2) otherwise comply with the definition of "Permitted
Refinancing Indebtedness" or "Equipment Financing Agreements", as the
case may be.
(c) Permit any Subsidiary to enter into any agreement or
instrument that by its terms restricts (i) the payment of dividends or
distributions or the making of cash advances by such Subsidiary to the
Borrower or any Subsidiary that is a direct or indirect parent of such
Subsidiary or (ii) the granting of Liens by such Subsidiary pursuant to the
Second Lien Security Documents, in each case other than those arising under
any Second Lien Loan Document, except, in each case, restrictions existing by
reason of:
(A) restrictions imposed by applicable law;
(B) contractual encumbrances or restrictions in effect
on the Closing Date (including under any First Lien Loan
Documents) or any agreements related to any permitted renewal,
extension or refinancing of any Indebtedness existing on the
Closing Date that does not expand the scope of any such
encumbrance or restriction;
(C) any restriction on a Subsidiary imposed pursuant to
an agreement entered into for the sale or disposition of all or
substantially all the Equity Interests or assets of a Subsidiary
pending the closing of such sale or disposition;
(D) customary provisions in joint venture agreements and
other similar agreements applicable to joint ventures entered into
in the ordinary course of business;
(E) any restrictions imposed by any agreement relating
to secured Indebtedness permitted by this Agreement to the extent
that such restrictions apply only to the property or assets
securing such Indebtedness and restrictions pursuant to any
Equipment Financing Agreement or Qualified Receivables Financing;
(F) customary provisions contained in leases or licenses
of intellectual property and other similar agreements entered into
in the ordinary course of business;
(G) customary provisions restricting subletting or
assignment of any lease governing a leasehold interest;
(H) customary provisions restricting assignment of any
agreement entered into in the ordinary course of business;
(I) customary restrictions and conditions contained in
any agreement relating to the sale of any asset permitted under
Section 6.05 pending the consummation of such sale; or
(J) any agreement in effect at the time such subsidiary
becomes a Subsidiary, so long as such agreement was not entered
into in contemplation of such person becoming a Subsidiary.
SECTION 6.10. [Reserved]
SECTION 6.11. [Reserved]
SECTION 6.12. First Lien Leverage Ratio. Permit the First
Lien Leverage Ratio on the last day of any fiscal quarter of the Borrower set
forth below to be in excess of the ratio set forth opposite such fiscal
quarter below:
Fiscal Quarter Ending First Lien Ratio
--------------------- ----------------
June 30, 2005 3.00 to 1.00
September 30, 2005 3.00 to 1.00
December 31, 2005 3.00 to 1.00
March 31, 2006 3.00 to 1.00
June 30, 2006 3.00 to 1.00
September 30, 2006 2.75 to 1.00
December 31, 2006 2.75 to 1.00
March 31, 2007 2.75 to 1.00
June 30, 2007 2.75 to 1.00
September 30, 2007 2.75 to 1.00
December 31, 2007 2.50 to 1.00
March 31, 2008 2.00 to 1.00
June 30, 2008 2.00 to 1.00
September 30, 2008 2.00 to 1.00
December 31, 2008 2.00 to 1.00
March 31, 2009 and 1.75 to 1.00
thereafter
SECTION 6.13. Debt to Adjusted EBITDA Ratio. Permit the Debt
to Adjusted EBITDA Ratio on the last day of any fiscal quarter of the Borrower
set forth below to be in excess of the ratio set forth opposite such fiscal
quarter below:
Fiscal Quarter Ending First Lien Ratio
--------------------- ----------------
June 30, 2005 4.75 to 1.00
September 30, 2005 4.75 to 1.00
December 31, 2005 4.75 to 1.00
March 31, 2006 4.50 to 1.00
June 30, 2006 4.50 to 1.00
September 30, 2006 4.50 to 1.00
December 31, 2006 4.50 to 1.00
March 31, 2007 4.25 to 1.00
June 30, 2007 4.25 to 1.00
September 30, 2007 4.00 to 1.00
December 31, 2007 4.00 to 1.00
March 31, 2008 3.50 to 1.00
June 30, 2008 3.50 to 1.00
September 30, 2008 3.50 to 1.00
December 31, 2008 3.50 to 1.00
March 31, 2009 and 3.25 to 1.00
thereafter
SECTION 6.14. Swap Agreements. Enter into any Swap
Agreement, other than (a) Swap Agreements required by Section 5.12 of the
First Lien Credit Agreement, (b) Swap Agreements entered into in the ordinary
course of business to hedge or mitigate risks to which the Borrower or any
Subsidiary is exposed in the conduct of its business or the management of its
liabilities (including, without limitation, currency risks), and (c) Swap
Agreements entered into in order to effectively cap, collar or exchange
interest rates (from fixed to floating rates, from one floating rate to
another floating rate or otherwise) with respect to any interest-bearing
liability or investment of the Borrower or any Subsidiary.
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default. In case of the happening of
any of the following events ("Events of Default"):
(a) any representation or warranty made or deemed made by
the Borrower or any other Loan Party in any Second Lien Loan Document, or any
representation, warranty, statement or information contained in any report,
certificate, financial statement or other instrument furnished in connection
with or pursuant to any Second Lien Loan Document, shall prove to have been
false or misleading in any material respect when so made, deemed made or
furnished by the Borrower or any other Loan Party;
(b) default shall be made in the payment of any principal of
any Loan when and as the same shall become due and payable, whether at the due
date thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on
any Loan or in the payment of any Administrative Agent Fee or any other amount
(other than an amount referred to in (b) above) due under any Second Lien Loan
Document, when and as the same shall become due and payable, and such default
shall continue unremedied for a period of five Business Days;
(d) default shall be made in the due observance or
performance by the Borrower of any covenant, condition or agreement contained
in Section 5.01(a) (with respect to the Borrower), 5.05(a), 5.08 or in Article
VI;
(e) default shall be made in the due observance or
performance by the Borrower or any Subsidiary Loan Party of any covenant,
condition or agreement contained in any Second Lien Loan Document (other than
those specified in paragraphs (b), (c) and (d) above) and such default shall
continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrower;
(f) (i) any event or condition occurs that results in any
Material Indebtedness becoming due prior to its scheduled maturity or (ii) the
Borrower or any of the Subsidiaries shall fail to pay the principal of any
Material Indebtedness at the stated final maturity thereof; provided that this
clause (f) shall not apply to secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets securing
such Indebtedness if such sale or transfer is permitted hereunder and under
the documents providing for such Indebtedness;
(g) there shall have occurred a Change in Control;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent jurisdiction
seeking (i) relief in respect of the Borrower or any of the Subsidiaries, or
of a substantial part of the property or assets of the Borrower or any
Subsidiary, under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the
Borrower or any of the Subsidiaries or for a substantial part of the property
or assets of the Borrower or any of the Subsidiaries or (iii) the winding-up
or liquidation of the Borrower or any Subsidiary (except, in the case of any
Subsidiary, in a transaction permitted by Section 6.05); and such proceeding
or petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11 of
the United States Code, as now constituted or hereafter amended, or any other
federal, state or foreign bankruptcy, insolvency, receivership or similar law,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition described in
paragraph (h) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any of the Subsidiaries or for a substantial part of the
property or assets of the Borrower or any Subsidiary, (iv) file an answer
admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors or (vi)
become unable, admit in writing its inability or fail generally to pay its
debts as they become due;
(j) the failure by the Borrower or any Subsidiary to pay one
or more final judgments aggregating in excess of $25.0 million, which
judgments are not discharged or effectively waived or stayed for a period of
30 consecutive days, or any action shall be legally taken by a judgment
creditor to levy upon assets or properties of the Borrower or any Subsidiary
to enforce any such judgment;
(k) (i) a Reportable Event or Reportable Events shall have
occurred with respect to any Plan or a trustee shall be appointed by a United
States district court to administer any Plan, (ii) the PBGC shall institute
proceedings (including giving notice of intent thereof) to terminate any Plan
or Plans, (iii) the Borrower or any Subsidiary Loan Party or any ERISA
Affiliate shall have been notified by the sponsor of a Multiemployer Plan that
it has incurred or will be assessed Withdrawal Liability to such Multiemployer
Plan and such person does not have reasonable grounds for contesting such
Withdrawal Liability or is not contesting such Withdrawal Liability in a
timely and appropriate manner, (iv) the Borrower or any Subsidiary Loan Party
or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or is
being terminated, within the meaning of Title IV of ERISA or (v) the Borrower
or any Subsidiary Loan Party or any ERISA Affiliate shall engage in any
"prohibited transaction" (as defined in Section 406 of ERISA or Section 4975
of the Code) involving any Plan; and in each case in clauses (i) through (v)
above, such event or condition, together with all other such events or
conditions, if any, could reasonably be expected to have a Material Adverse
Effect; or
(l) (i) any Second Lien Loan Document shall for any reason
be asserted in writing by either Parent, the Borrower or any Subsidiary Loan
Party not to be a legal, valid and binding obligation of any party thereto,
(ii) any security interest purported to be created by any Second Lien Security
Document and to extend to assets that are not immaterial to the Borrower and
the Subsidiary Loan Parties on a consolidated basis or to Equity Interests of
the Borrower shall cease to be, or shall be asserted in writing by either
Parent, the Borrower or any other Loan Party not to be, a valid and perfected
security interest (perfected as or having the priority required by this
Agreement or the relevant Second Lien Security Document and subject to such
limitations and restrictions as are set forth herein and therein) in the
securities, assets or properties covered thereby, except to the extent that
any such loss of perfection or priority results from the limitations of
foreign laws, rules and regulations or the application thereof (other than,
subject to Section 5.10(h), as set forth in the Foreign Pledge Agreements and
as to the grant of security interest in the Pledged Collateral of Subsidiaries
listed on Schedule 5.10(h)) or from the failure of the Administrative Agent to
maintain possession of certificates actually delivered to it representing
securities pledged under the Second Lien Collateral Agreement or to file
Uniform Commercial Code continuation statements or take the actions described
on Schedule 3.04 and except to the extent that such loss is covered by a
lender's title insurance policy and the Administrative Agent shall be
reasonably satisfied with the credit of such insurer, or (iii) the guarantees
pursuant to the Second Lien Security Documents by the Subsidiary Loan Parties
of any of the Second Lien Credit Agreement Obligations shall cease to be in
full force and effect (other than in accordance with the terms thereof), or
shall be asserted in writing by the Borrower or any Subsidiary Loan Party not
to be in effect or not to be legal, valid and binding obligations;
then, and in every such event (other than an event with respect to the
Borrower described in paragraph (h) or (i) above), and at any time thereafter
during the continuance of such event, the Administrative Agent, at the request
of the Required Lenders, shall, by notice to the Borrower, take any or all of
the following actions, at the same or different times: (i) terminate forthwith
the Commitments and (ii) declare the Loans then outstanding to be forthwith
due and payable in whole or in part, whereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and any
unpaid accrued Administrative Agent Fees and all other liabilities of the
Borrower accrued hereunder and under any other Second Lien Loan Document,
shall become forthwith due and payable, without presentment, demand, protest
or any other notice of any kind, all of which are hereby expressly waived by
the Borrower, anything contained herein or in any other Second Lien Loan
Document to the contrary notwithstanding; and in any event with respect to the
Borrower described in paragraph (h) or (i) above, the Commitments shall
automatically terminate, the principal of the Loans then outstanding, together
with accrued interest thereon and any unpaid accrued Administrative Agent Fees
and all other liabilities of the Borrower accrued hereunder and under any
other Second Lien Loan Document, shall automatically become due and payable,
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived by the Borrower, anything contained herein
or in any other Second Lien Loan Document to the contrary notwithstanding.
SECTION 7.02. Exclusion of Immaterial Subsidiaries. Solely
for the purposes of determining whether an Event of Default has occurred under
clause (h), (i) or (j) of Section 7.01, any reference in any such clause to
any subsidiary shall be deemed not to include any subsidiary affected by any
event or circumstance referred to in any such clause that did not, as of the
last day of the fiscal quarter of the Borrower most recently ended, have
assets (on a consolidated basis including its Subsidiaries) with a value in
excess of 5.0% of the Total Assets or 5.0% of total revenues of the Borrower
and the Subsidiaries as of such date; provided that if it is necessary to
exclude more than one Subsidiary from clause (h), (i) or (j) of Section 7.01
pursuant to this Section 7.02 in order to avoid an Event of Default
thereunder, all excluded Subsidiaries shall be considered to be a single
consolidated Subsidiary for purposes of determining whether the condition
specified above is satisfied and the percentage of the Total Assets or total
revenues referred to above shall be 10% rather than 5% (any Subsidiary not
excluded by virtue of this Section 7.02, a "Material Subsidiary," it being
understood that the Borrower shall designate from time to time, in order not
to exceed the 10% threshold, Subsidiaries not meeting the 5% threshold as
Material Subsidiaries).
SECTION 7.03. Borrower's Right to Cure.(a) Notwithstanding
anything to the contrary contained in Section 7.01, in the event that the
Borrower fails to comply with the requirements of any Financial Performance
Covenant, until the expiration of the 10th day subsequent to the date the
certificate calculating such Financial Performance Covenant is required to be
delivered pursuant to Section 5.04(c), the Borrower shall have the right to
issue Permitted Cure Securities for cash or otherwise receive cash
contributions to the capital of the Borrower (collectively, the "Cure Right"),
and upon the receipt by the Borrower of such cash (the "Cure Amount") pursuant
to its exercise of such Cure Right such Financial Performance Covenant shall
be recalculated giving effect to the following pro forma adjustments:
(i) Adjusted EBITDA shall be increased, solely for the
purpose of determining compliance with the Financial Performance
Covenants and not for any other purpose under this Agreement, by an
amount equal to the Cure Amount; and
(ii) If, after giving effect to the foregoing
recalculations, the Borrower shall then be in compliance with the
requirements of all Financial Performance Covenants, the Borrower shall
be deemed to have satisfied the requirements of the Financial
Performance Covenants as of the relevant date of determination with the
same effect as though there had been no failure to comply therewith at
such date, and the applicable breach or default of the Financial
Performance Covenants that had occurred shall be deemed cured for this
purposes of this Agreement.
(b) Notwithstanding anything herein to the contrary, (a) in
each four-fiscal-quarter period there shall be at least one fiscal quarter in
which the Cure Right is not exercised, (b) in each eight-fiscal-quarter
period, there shall be a period of at least four consecutive fiscal quarters
during which the Cure Right is not exercised and (c) for purposes of this
Section 7.03, the Cure Amount shall be no greater than the amount required for
purposes of complying with the Financial Performance Covenants.
ARTICLE VIII
The Agents
SECTION 8.01. Appointment of the Administrative Agent. Each
Lender hereby irrevocably designates and appoints the Administrative Agent as
the agent of such Lender under this Agreement and the other Second Lien Loan
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 Second Lien Loan 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 Second Lien
Loan 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 Second Lien Loan Document or otherwise exist against
the Administrative Agent.
SECTION 8.02. Delegation of Duties. The Administrative Agent
may execute any of its duties under this Agreement and the other Second Lien
Loan 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. Any
agents appointed by the Administrative Agent pursuant to this Section 8.02
shall be entitled to all the rights and benefits of the "Administrative Agent"
under this Article VIII on the same terms and to the same extent as if it were
the "Administrative Agent" hereunder (including the First Lien Administrative
Agent, in its capacity as "Second Lien Sub-Agent" pursuant to Section 9.14 of
the Intercreditor Agreement).
SECTION 8.03. Exculpatory Provisions. Neither any Agent nor
any of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) 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 Second Lien Loan Document (except to the extent
that any of the foregoing are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from its or such person's own
gross negligence or willful misconduct) or (ii) responsible in any manner to
any of the Lenders for any recitals, statements, representations or warranties
made by any Loan Party or any officer thereof contained in this Agreement or
any other Second Lien Loan Document or in any certificate, report, statement
or other document referred to or provided for in, or received by the Agents
under or in connection with, this Agreement or any other Second Lien Loan
Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Second Lien Loan
Document or for any failure of any Loan Party a party thereto to perform its
obligations hereunder or thereunder. The Agents 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 Second Lien Loan Document, or to inspect the
properties, books or records of any Loan Party.
SECTION 8.04. Reliance by Administrative Agent. The
Administrative Agent shall be entitled to rely, and shall be fully protected
in relying, upon any instrument, 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 payee of
any Note 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
Second Lien Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders (or, if so specified by this Agreement,
all 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 Second Lien Loan
Documents in accordance with a request of the Required Lenders (or, if so
specified by this Agreement, all 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.
SECTION 8.05. 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 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 (or,
if so specified by this Agreement, all 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.
SECTION 8.06. Non-Reliance on Agents and Other Lenders. Each
Lender expressly acknowledges that neither the Agents nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no act
by any Agent hereafter taken, including any review of the affairs of a Loan
Party or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by any Agent to any Lender. Each Lender represents
to the Agents that it has, independently and without reliance upon any 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 Loan Parties and their affiliates 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
any 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 Second Lien Loan 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 Loan Parties and their affiliates. 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, operations, property, condition
(financial or otherwise), prospects or creditworthiness of any Loan Party or
any affiliate of a Loan Party that may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
SECTION 8.07. Indemnification. The Lenders agree to
indemnify each 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), in
the amount of its pro rata share (based on its Commitments hereunder (or if
such Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of its applicable outstanding Loans, 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 (whether before or after the payment of the
Loans) be imposed on, incurred by or asserted against such Agent in any way
relating to or arising out of, the Commitments, this Agreement, any of the
other Second Lien Loan 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 such 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 that are found by a final
and nonappealable decision of a court of competent jurisdiction to have
resulted from such Agent's gross negligence or willful misconduct. The
agreements in this Section shall survive the payment of the Loans and all
other amounts payable hereunder.
SECTION 8.08. Agent in Its Individual Capacity. Each Agent
and its affiliates may make loans to, accept deposits from and generally
engage in any kind of business with any Loan Party as though such Agent were
not an Agent. With respect to its Loans made or renewed by it, each Agent
shall have the same rights and powers under this Agreement and the other
Second Lien Loan Documents as any Lender and may exercise the same as though
it were not an Agent, and the terms "Lender" and "Lenders" shall include each
Agent in its individual capacity.
SECTION 8.09. Successor Administrative Agent. The
Administrative Agent may resign as Administrative Agent upon 10 days' notice
to the Lenders and the Borrower. If the Administrative Agent shall resign as
Administrative Agent under this Agreement and the other Second Lien Loan
Documents, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders, which successor agent shall (unless an Event
of Default under Sections 7.01(b), (c), (h) or (i) shall have occurred and be
continuing) be subject to approval by the Borrower (which approval shall not
be unreasonably withheld or delayed), 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. If no
successor agent has accepted appointment as Administrative Agent by the date
that is 10 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective, and the Lenders shall assume and
perform all of the duties of the Administrative Agent hereunder until such
time, if any, as the Required Lenders appoint a successor agent as provided
for above. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Section 8 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 Second Lien Loan
Documents.
SECTION 8.10. Syndication Agent. The Syndication Agent shall
not have any duties or responsibilities hereunder in its capacity as such.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. (a) Notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
(i) if to the Borrower and its Subsidiaries, to it at Xxxxxx
Network Systems, LLC, 11717 Exploration Lane, Germantown, MD, Attention:
Xxxx Xxxxxx, with a copy to (A) Apollo Management, L.P., 0 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxx, (B) Xxxxxx
Network Systems, Inc., c/o The DIRECTV Group, Inc., 0000 Xxxx Xxxxxxxx
Xxxxxxx, Xx Xxxxxxx, XX 00000, Attention: Xxxxx X. Xxxxxx, Esq. and (C)
SkyTerra Communications, Inc., 00 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxx;;
(ii) if to the Administrative Agent, to Bear Xxxxxxx
Corporate Lending, Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000,
attention: Xxxx Xxxxxxx; telephone: 000-000-0000; facsmile: 212-
272-4844; email: xxxxxxxx@xxxx.xxx; and
(b) Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communications pursuant
to procedures approved by the Administrative Agent; provided that the
foregoing shall not apply to notices pursuant to Article II unless otherwise
agreed by the Administrative Agent and the applicable Lender. Each of the
Administrative Agent and the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it; provided, further, that approval of
such procedures may be limited to particular notices or communications.
(c) All notices and other communications given to any party
hereto in accordance with the provisions of this Agreement shall be deemed to
have been given on the date of receipt if delivered by hand or overnight
courier service, sent by telecopy or (to the extent permitted by paragraph (b)
above) electronic means or on the date five Business Days after dispatch by
certified or registered mail if mailed, in each case delivered, sent or mailed
(properly addressed) to such party as provided in this Section 9.01 or in
accordance with the latest unrevoked direction from such party given in
accordance with this Section 9.01.
(d) Any party hereto may change its address or telecopy
number for notices and other communications hereunder by notice to the other
parties hereto.
SECTION 9.02. Survival of Agreement. All covenants,
agreements, representations and warranties made by the Borrower and the Loan
Parties herein, in the other Second Lien Loan Documents and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Second Lien Loan Document shall be
considered to have been relied upon by the Lenders and shall survive the
making by the Lenders of the Loans, the execution and delivery of the Second
Lien Loan Documents, regardless of any investigation made by such persons or
on their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any Administrative Agent
Fee or any other amount payable under this Agreement or any other Second Lien
Loan Document is outstanding and unpaid and so long as the Commitments have
not been terminated. Without prejudice to the survival of any other agreements
contained herein, indemnification and reimbursement obligations contained
herein (including pursuant to Sections 2.15, 2.17 and 9.05) shall survive the
payment in full of the principal and interest hereunder and the termination of
the Commitments or this Agreement.
SECTION 9.03. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower and the
Administrative Agent and when the Administrative Agent shall have received
copies hereof which, when taken together, bear the signatures of each of the
other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the Borrower, the Administrative Agent and each Lender and their
respective permitted successors and assigns.
SECTION 9.04. Successors and Assigns. (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, 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 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.
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, Participants (to the extent provided in
paragraph (c) of this Section), and, to the extent expressly contemplated
hereby, the Related Parties of each of the Agents and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph
(b)(ii) below, any Lender may assign to one or more assignees (each, an
"Assignee") 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 of:
(A) the Borrower (such consent not to be unreasonably
withheld), provided that no consent of the Borrower shall be
required for an assignment to a Lender, an affiliate of a Lender,
an Approved Fund (as defined below) or, if an Event of Default
under Sections 7.01(b), (c), (h) or (i) has occurred and is
continuing, any other person; and
(B) the Administrative Agent, provided that no consent
of the Administrative Agent shall be required for an assignment of
all or any portion of a 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 Commitments or
Loans, the amount of the Commitments 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
$1,000,000, unless each of the Borrower and the Administrative
Agent otherwise consent, provided that (1) no such consent of the
Borrower shall be required if an Event of Default under Sections
7.01(b), (c), (h) or (i) has occurred and is continuing and (2)
such amounts shall be aggregated in respect of each Lender and its
affiliates or Approved Funds, if any;
(B) 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; and
(C) the Assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative
Questionnaire.
For the purposes of this Section 9.04, "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 of its business and that is administered or managed by (a) a Lender,
(b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity
that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant
to paragraph (b)(v) below, 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 2.15, 2.16, 2.17 and 9.05). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not
comply with this Section 9.04 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.
(iv) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices 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 owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent 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 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 and any written consent to
such assignment required by paragraph (b) of this Section, the
Administrative Agent shall accept such Assignment and Acceptance and
record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower
or the Administrative Agent, sell participations to one or more banks or other
entities (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 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 pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and the
other Second Lien Loan Documents and to approve any amendment, modification or
waiver of any provision of this Agreement and the other Second Lien Loan
Documents; provided that (x) such agreement may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver that (1) requires the consent of each Lender directly
affected thereby pursuant to Section 9.04(a)(i) or clauses (i), (ii), (iii),
(iv), (v) or (vi) of the first proviso to Section 9.08(b) and (2) directly
affects such Participant and (y) no other agreement with respect to such
Participant may exist between such Lender and such Participant. Subject to
paragraph (c)(ii) of this Section, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 9.06 as
though it were a Lender, provided such Participant shall be subject to Section
2.18(c) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any
greater payment under Section 2.15, 2.16 or 2.17 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. A Participant that would be a Foreign Lender if it were
a Lender shall not be entitled to the benefits of Section 2.17 to the
extent such Participant fails to comply with Section 2.17(e) as though
it were a Lender.
(d) Any Lender may 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 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.
(e) The Borrower, upon receipt of written notice from the
relevant Lender, agrees to issue Notes to any Lender requiring Notes to
facilitate transactions of the type described in paragraph (d) above.
(f) Notwithstanding the foregoing, any Conduit Lender may
assign any or all of the Loans it may have funded hereunder to its designating
Lender without the consent of the Borrower or the Administrative Agent and
without regard to the limitations set forth in Section 9.04(b). The Borrower,
each Lender and the Administrative Agent hereby confirms that it will not
institute against a Conduit Lender or join any other person in instituting
against a Conduit Lender any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding under any state bankruptcy or similar
law, for one year and one day after the payment in full of the latest maturing
commercial paper note issued by such Conduit Lender; provided, however, that
each Lender designating any Conduit Lender hereby agrees to indemnify, save
and hold harmless each other party hereto and each Loan Party for any loss,
cost, damage or expense arising out of its inability to institute such a
proceeding against such Conduit Lender during such period of forbearance.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower agrees
to pay all reasonable documented out-of-pocket expenses (including Other
Taxes) incurred by the Administrative Agent and the Joint Lead Arrangers in
connection with the preparation of this Agreement and the other Second Lien
Loan Documents, or by the Administrative Agent and the Joint Lead Arrangers in
connection with the syndication of the Commitments or the administration of
this Agreement (including expenses incurred in connection with due diligence
and initial and ongoing Collateral examination to the extent incurred with the
reasonable prior approval of the Borrower and the reasonable fees,
disbursements and the charges for no more than one counsel in each
jurisdiction where Collateral is located) or in connection with the
administration of this Agreement and any amendments, modifications or waivers
of the provisions hereof or thereof or incurred by the Administrative Agent or
any Lender in connection with the enforcement or protection of their rights in
connection with this Agreement and the other Second Lien Loan Documents, in
connection with the Loans made hereunder, including the reasonable fees,
charges and disbursements of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the
Administrative Agent and the Joint Lead Arrangers).
(b) The Borrower agrees to indemnify the Administrative
Agent, the Joint Lead Arrangers, each Lender and each of their respective
directors, trustees, officers, employees and agents (each such person being
called an "Indemnitee") against, and to hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses,
including reasonable counsel fees, charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in any way connected with, or
as a result of (i) the execution or delivery of this Agreement or any other
Second Lien Loan Document or any agreement or instrument contemplated hereby
or thereby, the performance by the parties hereto and thereto of their
respective obligations thereunder or the consummation of the Transactions and
the other transactions contemplated hereby, (ii) the use of the proceeds of
the Loans or (iii) any claim, litigation, investigation or proceeding relating
to any of the foregoing, whether or not any Indemnitee is a party thereto,
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
result primarily from the gross negligence or willful misconduct of such
Indemnitee (treating, for this purpose only, the Administrative Agent, any
Joint Lead Arranger, any Lender and any of their respective Related Parties as
a single Indemnitee). Subject to and without limiting the generality of the
foregoing sentence, the Borrower agrees to indemnify each Indemnitee against,
and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel or consultant
fees, charges and disbursements, incurred by or asserted against any
Indemnitee arising out of, in any way connected with, or as a result of (A)
any claim related in any way to Environmental Laws and the Borrower or any of
its Subsidiaries, or (B) any actual or alleged presence, Release or threatened
Release of Hazardous Materials at, under, on or from any Property or any
property owned, leased or operated by any predecessor of the Borrower or any
of its Subsidiaries, provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee or any of its
Related Parties. The provisions of this Section 9.05 shall remain operative
and in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Second Lien Credit Agreement Obligations, the
invalidity or unenforceability of any term or provision of this Agreement or
any other Second Lien Loan Document, or any investigation made by or on behalf
of the Administrative Agent or any Lender. All amounts due under this Section
9.05 shall be payable on written demand therefor accompanied by reasonable
documentation with respect to any reimbursement, indemnification or other
amount requested.
(c) Except as expressly provided in Section 9.05(a) with
respect to Other Taxes, which shall not be duplicative with any amounts paid
pursuant to Section 2.17, this Section 9.05 shall not apply to Taxes.
SECTION 9.06. Right of Set-off . If an Event of Default
shall have occurred and be continuing, each Lender is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time
owing by such Lender to or for the credit or the account of the Borrower or
any Subsidiary against any of and all the obligations of the Borrower now or
hereafter existing under this Agreement or any other Second Lien Loan Document
held by such Lender, irrespective of whether or not such Lender shall have
made any demand under this Agreement or such other Second Lien Loan Document
and although the obligations may be unmatured. The rights of each Lender under
this Section 9.06 are in addition to other rights and remedies (including
other rights of set-off) that such Lender may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER
SECOND LIEN LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN OTHER SECOND
LIEN LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of
the Administrative Agent or any Lender in exercising any right or power
hereunder or under any Second Lien Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Administrative Agent and
the Lenders hereunder and under the other Second Lien Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. Subject to the Intercreditor Agreement, no waiver of any
provision of this Agreement or any other Second Lien Loan Document or consent
to any departure by the Borrower or any other Loan Party therefrom shall in
any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on the
Borrower or any other Loan Party in any case shall entitle such person to any
other or further notice or demand in similar or other circumstances.
(b) Subject to the Intercreditor Agreement, neither this
Agreement nor any other Second Lien Loan Document nor any provision hereof or
thereof may be waived, amended or modified except (x) in the case of this
Agreement, pursuant to an agreement or agreements in writing entered into by
the Borrower and the Required Lenders and (y) in the case of any other Second
Lien Loan Document, pursuant to an agreement or agreements in writing entered
into by each party thereto and the Administrative Agent and consented to by
the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend
the final maturity of, or decrease the rate of interest on, any Loan,
without the prior written consent of each Lender directly affected
thereby; provided, that any amendment to the financial covenant
definitions in this Agreement shall not constitute a reduction in the
rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or
decrease the fees of any Lender without the prior written consent of
such Lender (it being understood that waivers or modifications of
conditions precedent, covenants, Defaults or Events of Default or of a
mandatory reduction in the aggregate Commitments shall not constitute an
increase of the Commitments of any Lender),
(iii) extend or waive any Loan Installment Date or reduce
the amount due on any Loan Installment Date or extend any date on which
payment of interest on any Loan or any Administrative Agent Fee is due,
without the prior written consent of each Lender adversely affected
thereby,
(iv) amend or modify the provisions of Section 2.18(b) or
(c) in a manner that would by its terms alter the pro rata sharing of
payments required thereby, without the prior written consent of each
Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the
definition of the term "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend
or modify any rights hereunder or make any determination or grant any
consent hereunder, without the prior written consent of each Lender
adversely affected thereby (it being understood that, with the consent
of the Required Lenders, additional extensions of credit pursuant to
this Agreement may be included in the determination of the Required
Lenders on substantially the same basis as the Loans and Commitments are
included on the Closing Date),
(vi) release all or substantially all the Collateral or
release any of the Borrower or any Subsidiary Loan Party from its
guarantee under the Second Lien Collateral Agreement, unless, in the
case of a Subsidiary Loan Party, all or substantially all the Equity
Interests of such Subsidiary Loan Party is sold or otherwise disposed of
in a transaction permitted by this Agreement, without the prior written
consent of each Lender;
provided, further, that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent hereunder without the
prior written consent of the Administrative Agent acting as such at the
effective date of such agreement, as applicable. Each Lender shall be bound by
any waiver, amendment or modification authorized by this Section 9.08 and any
consent by any Lender pursuant to this Section 9.08 shall bind any assignee of
such Lender.
(c) Without the consent of the Syndication Agent or any
Joint Lead Arranger or Lender, the Loan Parties and the Administrative Agent
may (in their respective sole discretion, or shall, to the extent required by
any Second Lien Loan Document) enter into any amendment, modification or
waiver of any Second Lien Loan Document, or enter into any new agreement or
instrument, to effect the granting, perfection, protection, expansion or
enhancement of any security interest in any Collateral or additional property
to become Collateral for the benefit of the Secured Parties, or as required by
local law to give effect to, or protect any security interest for the benefit
of the Secured Parties, in any property or so that the security interests
therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be
amended (or amended and restated) with the written consent of the Required
Lenders, the Administrative Agent and the Borrower (a) to add one or more
additional credit facilities to this Agreement and to permit the extensions of
credit from time to time outstanding thereunder and the accrued interest and
fees in respect thereof to share ratably in the benefits of this Agreement and
the other Second Lien Loan Documents with the Loans and the accrued interest
and fees in respect thereof and (b) to include appropriately the Lenders
holding such credit facilities in any determination of the Required Lenders.
SECTION 9.09. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the applicable interest rate,
together with all fees and charges that are treated as interest under
applicable law (collectively, the "Charges"), as provided for herein or in any
other document executed in connection herewith, or otherwise contracted for,
charged, received, taken or reserved by any Lender, shall exceed the maximum
lawful rate (the "Maximum Rate") that may be contracted for, charged, taken,
received or reserved by such Lender in accordance with applicable law, the
rate of interest payable hereunder, together with all Charges payable to such
Lender, shall be limited to the Maximum Rate, provided that such excess amount
shall be paid to such Lender on subsequent payment dates to the extent not
exceeding the legal limitation.
SECTION 9.10. Entire Agreement. This Agreement, the other
Second Lien Loan Documents and the agreements regarding certain Administrative
Agent Fees referred to herein constitute the entire contract between the
parties relative to the subject matter hereof. Any previous agreement among or
representations from the parties or their Affiliates with respect to the
subject matter hereof is superseded by this Agreement and the other Second
Lien Loan Documents. Nothing in this Agreement or in the other Second Lien
Loan Documents, expressed or implied, is intended to confer upon any party
other than the parties hereto and thereto any rights, remedies, obligations or
liabilities under or by reason of this Agreement or the other Second Lien Loan
Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER
SECOND LIEN LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
AND THE OTHER SECOND LIEN LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of
the provisions contained in this Agreement or in any other Second Lien Loan
Document should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby. The
parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed
in two or more counterparts, each of which shall constitute an original but
all of which, when taken together, shall constitute but one contract, and
shall become effective as provided in Section 9.03. Delivery of an executed
counterpart to this Agreement by facsimile transmission shall be as effective
as delivery of a manually signed original.
SECTION 9.14. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and are not to affect the construction of, or to be
taken into consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process.
(a) Each of the parties hereto hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of any New York
State court or federal court of the United States of America sitting in New
York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the other Second
Lien Loan Documents, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any Lender may otherwise
have to bring any action or proceeding relating to this Agreement or the other
Second Lien Loan Documents against the Borrower or any Loan Party or their
properties in the courts of any jurisdiction.
(b) Each of the parties hereto hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this Agreement
or the other Second Lien Loan Documents in any New York State or federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
SECTION 9.16. Confidentiality. Each of the Lenders and each
of the Agents agrees that it shall maintain in confidence any information
relating to the Borrower and the other Loan Parties furnished to it by or on
behalf of the Borrower or the other Loan Parties (other than information that
(a) has become generally available to the public other than as a result of a
disclosure by such party, (b) has been independently developed by such Lender
or such Agent without violating this Section 9.16 or (c) was available to such
Lender or such Agent from a third party having, to such person's knowledge, no
obligations of confidentiality to the Borrower or any other Loan Party) and
shall not reveal the same other than to its directors, trustees, officers,
employees and advisors with a need to know or to any person that approves or
administers the Loans on behalf of such Lender (so long as each such person
shall have been instructed to keep the same confidential in accordance with
this Section 9.16), except: (A) to the extent necessary to comply with law or
any legal process or the requirements of any Governmental Authority, the
National Association of Insurance Commissioners or of any securities exchange
on which securities of the disclosing party or any Affiliate of the disclosing
party are listed or traded, (B) as part of normal reporting or review
procedures to Governmental Authorities or the National Association of
Insurance Commissioners, (C) to its parent companies, Affiliates or auditors
(so long as each such person shall have been instructed to keep the same
confidential in accordance with this Section 9.16), (D) in order to enforce
its rights under any Second Lien Loan Document in a legal proceeding, (E) to
any prospective assignee of, or prospective Participant in, any of its rights
under this Agreement (so long as such person shall have been instructed to
keep the same confidential in accordance with this Section 9.16) and (F) to
any direct or indirect contractual counterparty in Swap Agreements or such
contractual counterparty's professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees
to be bound by the provisions of this Section).
SECTION 9.17. Direct Website Communications. (a) Delivery.
(i) Each Loan Party hereby agrees that it will provide to the Administrative
Agent all information, documents and other materials that it is obligated to
furnish to the Administrative Agent pursuant to this Agreement and any other
Second Lien Loan Document, 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 this Agreement prior to the scheduled date therefor,
(C) provides notice of any Default or Event of Default under this Agreement or
(D) is required to be delivered to satisfy any condition precedent to the
effectiveness of this Agreement and/or any borrowing or other extension of
credit hereunder (all such non-excluded communications collectively, the
"Communications"), by transmitting the Communications in an electronic/soft
medium in a format acceptable to the Administrative Agent. In addition, each
Loan Party agrees to continue to provide the Communications to the
Administrative Agent in the manner specified in this Agreement or any other
Second Lien Loan Document but only to the extent requested by the
Administrative Agent. Nothing in this Section 9.17 shall prejudice the right
of the Agents, the Joint Lead Arrangers or any Lender or any Loan Party to
give any notice or other communication pursuant to this Agreement or any other
Second Lien Loan Document in any other manner specified in this Agreement or
any other Second Lien Loan Document.
(ii) The Administrative Agent agrees that receipt of the
Communications by the Administrative Agent at its e-mail address set
forth above shall constitute effective delivery of the Communications to
the Administrative Agent for purposes of the Second Lien Loan Documents.
Each Lender agrees that notice to it (as provided in the next sentence)
specifying that the Communications have been posted to the Platform (as
defined below) shall constitute effective delivery of the Communications
to such Lender for purposes of the Second Lien Loan 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. Each Loan Party 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").
(c) Platform. The Platform is provided "as is" and "as
available." The Agent Parties (as defined below) 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 any Agent Party 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 Loan Parties, 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 any Loan Party'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.
SECTION 9.18. Release of Liens and Guarantees. In the event
that any Loan Party conveys, sells, leases, assigns, transfers or otherwise
disposes of all or any portion of any of the Equity Interests or assets of the
Borrower or any Subsidiary Loan Party to a person that is not (and is not
required to become) a Loan Party in a transaction not prohibited by Section
6.05 or the First Lien Administrative Agent shall release any Liens or any
guarantee under the First Lien Loan Documents by a Subsidiary Loan Party, then
the Administrative Agent shall promptly (and the Lenders hereby authorize the
Administrative Agent to) (a) take such action and execute any such documents
as may be reasonably requested by the Borrower and at the Borrower's expense
to release, share or subordinate any Liens created by any Second Lien Loan
Document in respect of such assets or Equity Interests or terminate such
Subsidiary Loan Party's obligations under its guarantee of the Second Lien
Credit Agreement Obligations, and, (b) in the case of a disposition of the
Equity Interests of any Subsidiary Loan Party in a transaction not prohibited
by Section 6.05 and as a result of which such Subsidiary Loan Party would
cease to be a Subsidiary Loan Party, terminate such Subsidiary Loan Party's
obligations under its guarantee of the Second Lien Credit Agreement
Obligations. In addition, the Administrative Agent agrees to take such actions
as are reasonably requested by the Borrower and at the Borrower's expense to
terminate the Liens and security interests created by the Second Lien Loan
Documents when all the Second Lien Credit Agreement Obligations are paid in
full and Commitments are terminated. Any representation, warranty or covenant
contained in any Second Lien Loan Document relating to any such Equity
Interests, asset or subsidiary of the Borrower shall no longer be deemed to be
made once such Equity Interests or asset is so conveyed, sold, leased,
assigned, transferred or disposed of.
SECTION 9.19. 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 "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 Act.
SECTION 9.20. Regulatory Matters. Notwithstanding anything
to the contrary herein or in the Second Lien Security Documents, the Agents
and the Lenders hereby agree that they will not take action pursuant to the
Second Lien Security Documents with respect to any item of Collateral
associated with or related to any Communications License (i) to the extent
such action is not permitted by the FCC or other Governmental Authority or any
other applicable laws, rules or regulations; or (ii) that would constitute or
result in an assignment or a change of control of a Communications License
(including, without limitation, an assignment or transfer of control (as those
terms are defined by the Communications Act of 1934, as amended, or by the
laws of any other Governmental Authority or in the rules and regulations of
the FCC)) now held by or to be issued to the Borrower or any of its
Subsidiaries, or that otherwise would require prior notice to or approval from
the FCC or other Governmental Authority, without first providing such notice
or obtaining such prior approval. The Borrower agrees to take any action which
the Administrative Agent may reasonably request consistent with and subject to
and in accordance with applicable law in order to obtain from the FCC or any
other relevant Governmental Authority such approval as may be necessary to
enable the Lenders to exercise the full rights and benefits granted to the
Lenders pursuant to this Agreement, including the use of the Borrower's
commercially reasonable efforts to assist in obtaining the approval of the FCC
or any other relevant Governmental Authority for any action or transaction
contemplated by the Second Lien Security Documents for which such approval is
required by law and specifically, without limitation, upon request at any time
after the occurrence and during the continuance of an Event of Default, to
prepare, sign and file with the FCC or any other relevant Governmental
Authority the assignor's or transferor's and licensee's portions of any
application or applications for consent to the assignment or transfer of
control of any Communications License that may be necessary or appropriate
under the rules of the FCC or such other Governmental Authority for approval
of any sale or transfer of control of the Collateral pursuant to the exercise
of the Lenders' rights and remedies under the Second Lien Security Documents;
provided that Borrower's failure to obtain any such approval shall not
constitute a Default or Event of Default. The Borrower further consents,
subject to obtaining any necessary approvals, to the assignment or transfer of
control of any Communications License to operate to a receiver, trustee, or
similar official or to any purchaser of the Collateral pursuant to any public
or private sale, judicial sale, foreclosure, or exercise of other remedies
available to the Lenders as permitted by applicable law.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of
the day and year first written above.
XXXXXX NETWORKS SYSTEMS, LLC
By: /s/ XXXX XXXXXX
--------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President and General
Counsel
BEAR XXXXXXX CORPORATE LENDING INC.,
as Administrative Agent and as a Lender
By: /s/ XXXXXX XXXXXXXXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President
JPMORGAN CHASE BANK, N.A.,
as Syndication Agent and as a Lender
By: /s/ XXXXXX XXXXXXXX
-------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President
