Exhibit 10.78
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CREDIT AGREEMENT
dated as of
February 25, 2002
between
PANAMSAT CORPORATION,
The LENDERS Party Hereto
and
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
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$1,250,000,000
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CREDIT SUISSE FIRST BOSTON,
as Sole Bookrunner and Sole Lead Arranger,
CREDIT SUISSE FIRST BOSTON
and
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.,
as Joint Arrangers
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.,
as Syndication Agent
and
SOCIETE GENERALE, NEW YORK BRANCH,
as Documentation Agent
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms...................................................1
SECTION 1.02. Classification of Loans and Borrowings.........................34
SECTION 1.03. Terms Generally................................................34
SECTION 1.04. Accounting Terms; GAAP.........................................34
SECTION 1.05. Treatment of Certain Taxes.....................................35
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments................................................35
SECTION 2.02. Loans and Borrowings...........................................36
SECTION 2.03. Requests for Syndicated Borrowings.............................36
SECTION 2.04. Swingline Loans................................................37
SECTION 2.05. Letters of Credit..............................................39
SECTION 2.06. Funding of Borrowings..........................................43
SECTION 2.07. Interest Elections.............................................43
SECTION 2.08. Termination and Reduction of the Commitments...................45
SECTION 2.09. Repayment of Loans; Evidence of Debt...........................45
SECTION 2.10. Prepayment of Loans............................................48
SECTION 2.11. Fees...........................................................54
SECTION 2.12. Interest.......................................................55
SECTION 2.13. Alternate Rate of Interest.....................................56
SECTION 2.14. Increased Costs................................................56
SECTION 2.15. Break Funding Payments.........................................57
SECTION 2.16. Taxes..........................................................58
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs....59
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.................61
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers...........................................62
SECTION 3.02. Authorization; Enforceability..................................62
SECTION 3.03. Governmental Approvals; No Conflicts...........................63
SECTION 3.04. Financial Condition; No Material Adverse Change................63
SECTION 3.05. Properties.....................................................64
SECTION 3.06. Litigation and Environmental Matters...........................64
(i)
SECTION 3.07. Compliance with Laws and Agreements............................65
SECTION 3.08. Investment and Holding Company Status..........................65
SECTION 3.09. Taxes..........................................................65
SECTION 3.10. ERISA..........................................................65
SECTION 3.11. Disclosure.....................................................65
SECTION 3.12. Use of Credit..................................................66
SECTION 3.13. Material Agreements and Liens..................................66
SECTION 3.14. Capitalization.................................................66
SECTION 3.15. Subsidiaries and Investments...................................67
SECTION 3.16. Real Property..................................................67
SECTION 3.17. FCC Licenses, Etc..............................................68
SECTION 3.18. Satellites.....................................................68
SECTION 3.19. Solvency.......................................................68
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date.................................................69
SECTION 4.02. Each Credit Event..............................................72
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Financial Statements and Other Information.....................73
SECTION 5.02. Notices of Material Events.....................................75
SECTION 5.03. Existence; Conduct of Business.................................76
SECTION 5.04. Payment of Obligations.........................................76
SECTION 5.05. Maintenance of Properties......................................76
SECTION 5.06. Insurance......................................................76
SECTION 5.07. Books and Records; Inspection Rights...........................83
SECTION 5.08. Compliance.....................................................83
SECTION 5.09. Use of Proceeds and Letters of Credit..........................83
SECTION 5.10. Hedging Agreements.............................................83
SECTION 5.11. Certain Obligations Respecting Subsidiaries;
Further Assurances.............................................83
SECTION 5.12. Access and Command Codes.......................................86
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Indebtedness...................................................88
SECTION 6.02. Liens..........................................................91
SECTION 6.03. Fundamental Changes............................................92
SECTION 6.04. Lines of Business..............................................96
SECTION 6.05. Investments....................................................96
SECTION 6.06. Restricted Payments............................................98
SECTION 6.07. Transactions with Affiliates..................................100
SECTION 6.08. Restrictive Agreements........................................101
(ii)
SECTION 6.09. Sale and Lease-Back Transactions..............................102
SECTION 6.10. Certain Financial Covenants...................................103
SECTION 6.11. Payment of Other Indebtedness.................................105
SECTION 6.12. Modifications of Certain Documents............................106
SECTION 6.13. Designations of Unrestricted Subsidiaries, Etc................106
ARTICLE VII
EVENTS OF DEFAULT............................107
ARTICLE VIII
THE ADMINISTRATIVE AGENT.........................111
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices.......................................................113
SECTION 9.02. Waivers; Amendments...........................................114
SECTION 9.03. Expenses; Indemnity; Damage Waiver............................116
SECTION 9.04. Successors and Assigns........................................118
SECTION 9.05. Survival......................................................121
SECTION 9.06. Counterparts; Integration; Effectiveness......................121
SECTION 9.07. Severability..................................................122
SECTION 9.08. Right of Setoff...............................................122
SECTION 9.09. Governing Law; Jurisdiction; Etc..............................122
SECTION 9.10. WAIVER OF JURY TRIAL..........................................123
SECTION 9.11. Headings......................................................123
SECTION 9.12. Treatment of Certain Information; Confidentiality.............123
SECTION 9.13. Limitation on Liability.......................................124
(iii)
SCHEDULE I - Commitments
SCHEDULE II - Material Agreements and Liens
SCHEDULE III - Restrictive Agreements
SCHEDULE IV - Litigation
SCHEDULE V - Environmental Matters
SCHEDULE VI - Subsidiaries and Investments
SCHEDULE VII - FCC Licenses
SCHEDULE VIII - Real Property
SCHEDULE IX - Satellite Risk Management Program
SCHEDULE X - Outstanding Equity Rights
SCHEDULE XI - Satellites
SCHEDULE XII - Affiliate Agreements
SCHEDULE XIII - Covenant of Quiet Enjoyment
EXHIBIT A-1 - Form of Assignment and Acceptance
EXHIBIT A-2 - Form of Promissory Note
EXHIBIT A-3 - Form of Borrowing Request
EXHIBIT B - Form of Intercreditor and Collateral Trust Agreement
EXHIBIT C - Form of Lender Security Agreement
EXHIBIT D - Form of Shared Security Agreement
EXHIBIT E - Form of Guarantee Agreement
EXHIBIT F - Form of Guarantee Assumption Agreement
EXHIBIT G - Form of Opinion of Counsel to the Obligors
EXHIBIT H - Form of Opinion of Special Communications Counsel
EXHIBIT I - Form of Opinion of Special New York Counsel to the
Joint Arrangers
EXHIBIT J - Form of Tax Certificate
EXHIBIT K-1 - Form of Terms of Affiliate Subordinated Indebtedness
EXHIBIT K-2 - Form of Terms of Permitted Subordinated Indebtedness
(iv)
CREDIT AGREEMENT dated as of February 25, 2002, between PANAMSAT
CORPORATION, the LENDERS party hereto, and CREDIT SUISSE FIRST BOSTON, as
Administrative Agent.
The Borrower (as hereinafter defined) has requested that the Lenders
(as so defined) extend credit to it (by means of loans and letters of credit),
under the guarantee of the Subsidiary Guarantors (as so defined), in an
aggregate principal or face amount not exceeding $1,250,000,000 to provide funds
to refinance a portion of the outstanding indebtedness of the Borrower payable
to ▇▇▇▇▇▇ Electronics Corporation ("▇▇▇▇▇▇") in the aggregate principal amount
of $1,725,000,000, to pay accrued and unpaid interest in respect of such
indebtedness, for the general corporate purposes of the Borrower and its
subsidiaries and to pay a portion of the fees and expenses related thereto. The
Lenders are prepared to extend such credit upon the terms and conditions hereof,
and, accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans constituting such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Acceptable Exclusions" means, in the case of any insurance procured
in accordance with Section 5.06(b), (i) war, hostile or warlike action in time
of peace or war, including action in hindering, combating or defending against
an actual, impending or expected attack, (ii) any anti-satellite device or
device employing atomic or nuclear fission or fusion or device employing laser
or directed energy beams, (iii) insurrection, strikes, riots, civil commotion,
rebellion, revolution, civil war, usurpation or action taken by a government or
governmental authority, (iv) confiscation by order of any government,
governmental authority or agent, (v) nuclear reaction, nuclear radiation or
radioactive contamination, (vi) electromagnetic or radio frequency interference,
except for physical damage to a Satellite, (vii) willful or intentional acts of
the insured or its contractors intended to cause loss or failure of a Satellite,
(viii) third party liability, (ix) loss of market, loss of revenue and extra
expenses, except as contemplated in the insuring agreement, incidental damages
and consequential damages, (x) actions (including any unlawful seizure or
wrongful exercise of control of a satellite or launch vehicle) taken by one or
more persons, 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, and (xi) such other similar exclusions as may be
customary for policies of such type as of the date of issuance or renewal of
such coverage.
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"Adjusted LIBO Rate" means, for the Interest Period for any
Eurodollar Borrowing, an interest rate per annum equal to (a) the LIBO Rate for
such Interest Period multiplied by (b) the Statutory Reserve Rate for such
Interest Period.
"Administrative Agent" means CSFB, in its capacity as administrative
agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
Notwithstanding the foregoing, no individual shall be an Affiliate solely by
reason of his or her being a director, officer or employee of the Borrower or
any of its Affiliates.
"Affiliate Debt Incurrence" means the incurrence by the Borrower of
any Affiliate Subordinated Indebtedness.
"Affiliate Subordinated Indebtedness" means unsecured Indebtedness
issued by the Borrower (and for which the Borrower is directly and primarily
liable) and that satisfies the following criteria:
(a) such Indebtedness is subordinated to the obligations of the
Borrower to pay principal of and interest on the Loans and LC
Disbursements hereunder upon the terms set forth in Exhibit K-1, or upon
such other terms as shall be satisfactory to the Administrative Agent;
(b) such Indebtedness shall be an obligation of the Borrower only
and none of the Restricted Subsidiaries of the Borrower shall be directly
or indirectly liable in respect thereof;
(c) the terms of such Indebtedness shall not provide for payment of
any portion of the principal thereof prior to the date 12 months after the
final maturity of the Loans hereunder;
(d) such Indebtedness shall not contain any financial or other
covenants, events of default or mandatory prepayment provisions and shall
provide that all interest in respect thereof is to be capitalized (by
adding the amount of such interest to the principal of such Indebtedness);
and
(e) such Indebtedness shall be held only by a Person that is an
Affiliate of the Borrower (other than a Subsidiary of the Borrower) and
shall provide that such Indebtedness may not be transferred by such
Affiliate (except to another Affiliate of the Borrower, other than to a
Subsidiary of the Borrower) without the consent of the Required Lenders
hereunder.
Credit Agreement
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"All Risks Insurance" means, with respect to any Satellite,
insurance for risks of loss of and damage to such Satellite and the related
Associated Equipment, including all components thereof, at all times during the
manufacture, testing, storage, payload processing and transport of such
Satellite and such Associated Equipment, if any, up to the time of Launch, in
the case of such Satellite, and until delivery to the applicable Satellite
Purchaser, in the case of such Associated Equipment.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate for such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, as the case may be.
"Applicable Percentage" means (a) with respect to any Revolving
Credit Lender for purposes of Sections 2.04 or 2.05 or in respect of any
indemnity claim under Section 9.03(c) arising out of an action or omission of
the Swingline Lender or the Issuing Lender under this Agreement, the percentage
of the total Revolving Credit Commitments represented by such Revolving Credit
Lender's Revolving Credit Commitment, and (b) with respect to any Lender in
respect of any indemnity claim under Section 9.03(c) arising out of an action or
omission of the Administrative Agent under this Agreement, the percentage of the
total Commitments or Loans of all Classes hereunder represented by the aggregate
amount of such Lender's Commitments or Loans of all Classes hereunder. If the
Revolving Credit Commitments have terminated or expired, the Applicable
Percentages shall be determined based upon the Revolving Credit Commitments most
recently in effect, giving effect to any assignments.
"Applicable Rate" means, for any day, (a) with respect to any
Tranche B ABR Loan, 2.50% and any Tranche B Eurodollar Loan, 3.50% and (b) with
respect to any ABR Loan (including any Swingline Loan) or Eurodollar Loan that
are Revolving Credit or Tranche A Term Loans, or with respect to the commitment
fees payable hereunder, as the case may be, the applicable rate per annum set
forth below under the caption "ABR" or "Eurodollar" for the respective Class of
Loans, or "Commitment Fee Rate", respectively, based upon the Total Leverage
Ratio as of the most recent determination date; provided that until June 30,
2002 the "Applicable Rate" shall be the rates specified below for a Total
Leverage Ratio of < 4.50 and >= 4.00:
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Total Leverage Revolving Credit Tranche A Term Commitment
Ratio Loans Loans Fee Rate
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----- ABR Eurodollar ABR Eurodollar -----
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>= 4.50 2.25% 3.25% 2.25% 3.25% 0.750%
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< 4.50 and >= 4.00 2.00% 3.00% 2.00% 3.00% 0.500%
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< 4.00 and >= 3.50 1.75% 2.75% 1.75% 2.75% 0.500%
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< 3.50 and >= 3.00 1.50% 2.50% 1.50% 2.50% 0.375%
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< 3.00 1.25% 2.25% 1.25% 2.25% 0.375%
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Credit Agreement
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For purposes of the foregoing, (i) the Total Leverage Ratio shall be determined
as of the end of each fiscal quarter of the Borrower's fiscal year based upon
the Borrower's consolidated financial statements delivered pursuant to Section
5.01(a) or (b) and (ii) each change in the Applicable Rate resulting from a
change in the Total Leverage Ratio shall be effective during the period
commencing on and including the date two Business Days after delivery to the
Administrative Agent of such consolidated financial statements indicating such
change and ending on the date immediately preceding the effective date of the
next such change; provided that the Total Leverage Ratio shall be deemed to be
in the highest range provided above (A) at any time that an Event of Default has
occurred and is continuing and (B) if the Borrower fails to deliver the
consolidated financial statements required to be delivered by it pursuant to
Section 5.01(a) or (b), during the period from the expiration of the time for
delivery thereof until such consolidated financial statements are delivered.
"Approved Fund" means, with respect to any Lender that is a fund
that invests in commercial loans, any other fund that invests in commercial
loans and is managed or advised by the same investment advisor as such Lender or
by an Affiliate of such investment advisor.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A-1 or any other form approved by the Administrative
Agent.
"Associated Equipment" means, with respect to any Satellite, the
equipment to be delivered by the Satellite Manufacturer with respect thereto
pursuant to the terms of the applicable Satellite Purchase Agreement.
"Attributable Debt" means, on any date, in respect of any lease of
the Borrower or any Restricted Subsidiary entered into as a part of a sale and
leaseback transaction described in Section 6.09, (i) if such lease is a Capital
Lease Obligation, the capitalized amount thereof that would appear on a
consolidated balance sheet of the Borrower and its Restricted Subsidiaries
prepared as of such date in accordance with GAAP, and (ii) if such lease is not
a Capital Lease Obligation, the capitalized amount of the remaining lease
payments under such lease that would appear on a consolidated balance sheet of
the Borrower and its Restricted Subsidiaries prepared
Credit Agreement
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as of such date in accordance with GAAP as if such lease were accounted for as a
Capital Lease Obligation.
"Board of Directors" means the board of directors of the Borrower or
any duly authorized committee thereof.
"Board Resolution" means with respect to the Borrower, a duly
adopted resolution of the Board of Directors.
"Borrower" means, initially, PanAmSat and, to the extent that
PanAmSat is not the surviving entity in the transaction described in Section
6.03(f) or PanAmSat shall have transferred substantially all of its assets to a
Restricted Subsidiary in such a transaction (but subject in any event to the
satisfaction of the requirements of said Section), the New Borrower referred to
in said Section.
"Borrowing" means (a) all Syndicated ABR Loans of the same Class
made, converted or continued on the same date, (b) all Eurodollar Loans of the
same Class that have the same Interest Period or (c) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a Syndicated
Borrowing in accordance with Section 2.03 and in substantially the form of
Exhibit A-3.
"Business Day" means any day (a) 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 and (b) if such day relates to a borrowing of, a payment
or prepayment of principal of or interest on, a continuation or conversion of or
into, or the Interest Period for, a Eurodollar Borrowing, or to a notice by the
Borrower with respect to any such borrowing, payment, prepayment, continuation,
conversion, or Interest Period, that is also a day on which dealings in Dollar
deposits are carried out in the London interbank market.
"Capital Expenditures" means, for any period, additions to property,
plant and equipment and other capital expenditures of the Borrower and its
Restricted Subsidiaries that are (or would be) set forth in a consolidated
statement of cash flows of the Borrower and its Restricted Subsidiaries for such
period prepared in accordance with GAAP.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Casualty Event" means, with respect to any property of any Person,
any loss of or damage to, or any condemnation or other taking by a Governmental
Authority of, such property for which such Person or any of its Restricted
Subsidiaries receives insurance proceeds, or proceeds of a condemnation award or
other compensation.
Credit Agreement
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"Change in Control" means the occurrence of any one or more of the
following events:
(a) at any time that the Borrower is not a Subsidiary of a Permitted
Holder, the ownership, directly or indirectly, beneficially or of record,
by any Person or group (within the meaning of the Securities Exchange Act
of 1934 and the rules of the SEC thereunder as in effect on the date
hereof) other than one or more Permitted Holders of shares representing
more than 30% of the total voting power represented by the issued and
outstanding capital stock of the Borrower then entitled to vote in the
election of the Board of Directors;
(b) at any time that the Borrower is a Subsidiary of ▇▇▇▇▇▇,
EchoStar or a Holding Company, the acquisition of Control of ▇▇▇▇▇▇,
EchoStar or such Holding Company by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the SEC
thereunder as in effect on the date hereof), other than a Permitted
Holder;
(c) at any time, the occupation of a majority of the seats (other
than vacant seats) on the board of directors of the Borrower (or, at any
time the Borrower is a Subsidiary of ▇▇▇▇▇▇, EchoStar or a Holding
Company, of ▇▇▇▇▇▇, EchoStar or such Holding Company) by Persons who were
neither (i) nominated by the board of directors of the Borrower (or of
▇▇▇▇▇▇, EchoStar or such Holding Company, as the case may be) with the
affirmative vote of a majority of the members of said board of directors
at the time of such nomination or election nor (ii) appointed by directors
so nominated or elected or appointed by Permitted Holders;
(d) any "Change of Control" (however defined in the relevant
indenture or other instrument) shall occur with respect to the Senior 1998
Notes, the Senior 2002 Notes, or any Permitted Senior Indebtedness or
Permitted Subordinated Indebtedness if the effect thereof is to require
the Borrower to repurchase or redeem (or make an offer to repurchase of
redeem) any such Notes or Indebtedness: or
(e) at any time after the consummation of a Holding Company
Transaction, the Holding Company shall cease to own directly all of the
issued and outstanding capital stock and other ownership interests of the
Company.
For purposes of clause (a) above, a Person or group shall be deemed to own
"beneficially" all shares that any such Person or group has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time).
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
the Issuing Lender (or, for purposes of Section 2.14(b), by any lending office
of such Lender or by such Lender's or the Issuing Lender's holding company, if
Credit Agreement
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any) with any request, guideline or directive (whether or not having the force
of law) of any Governmental Authority made or issued after the date of this
Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans constituting such Borrowing, are Revolving
Credit Loans, Tranche A Term Loans, Tranche B Term Loans or Swingline Loans and,
when used in reference to any Commitment, refers to whether such Commitment is a
Revolving Credit Commitment, Tranche A Term Loan Commitment or Tranche B Term
Loan Commitment.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral Trustee" means The Bank of New York, a New York banking
corporation, in its capacity as Collateral Trustee under the Intercreditor and
Collateral Trust Agreement, and its successors or assigns.
"Commitment" means a Revolving Credit Commitment, Tranche A Term
Loan Commitment or Tranche B Term Loan Commitment, or any combination thereof
(as the context requires).
"Control" means 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 ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto; provided that,
for purposes of Section 6.07, beneficial ownership of at least 10% of the voting
securities of a Person, either directly or indirectly, will be deemed to be
control.
"Covered Satellite" means any Satellite that is owned by the
Borrower or any of its Restricted Subsidiaries or for which the Borrower or any
of its Restricted Subsidiaries otherwise retains the risk of loss.
"Credit Party" means, collectively, the Obligors and, following the
consummation of a Holding Company Transaction, the Holding Company.
"CSFB" means Credit Suisse First Boston.
"Debt Service" means, for any period, the sum, for the Borrower and
its Restricted Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all regularly
scheduled payments or regularly scheduled prepayments of principal of
Indebtedness (including the principal component of any regularly scheduled
payments in respect of Capital Lease Obligations) made during such period plus
(b) all Interest Expense for such period. For the avoidance of doubt, (i)
prepayments under Section 2.10 and (ii) payments of principal of Indebtedness to
▇▇▇▇▇▇ pursuant to the Refinancing, and payments of principal in respect of the
Satellite commonly referred to as "Galaxy IIIR" shall be excluded in the
determination of Debt Service.
Credit Agreement
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"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Designated Acquired Assets" means assets acquired pursuant to a
Permitted Business Acquisition (or comprising a business unit or division
acquired pursuant to a Permitted Business Acquisition) that are identified in
writing to the Administrative Agent prior to the date of consummation of such
Permitted Business Acquisition as being intended for sale promptly after such
consummation.
"Disclosed Matters" means the actions, suits and proceedings
disclosed in Schedule IV and the environmental matters disclosed in Schedule V.
"Disposition" means any sale, assignment, transfer or other
disposition of any property (whether now owned or hereafter acquired) by the
Borrower or any of its Restricted Subsidiaries to any other Person, excluding,
however, any lease (including any sales-type lease covering transponders)
entered into in the ordinary course of business and on ordinary business terms
reasonably consistent with prior practice of the Borrower and its Restricted
Subsidiaries.
"Disposition Investment" means, with respect to any Disposition (or
any transaction contemplated by Section 6.03(b)(iii)), any promissory notes or
other evidences of indebtedness or other investments received by the Borrower or
any of its Restricted Subsidiaries in connection with such Disposition or
transaction (including, in the case of any such transaction contemplated by
Section 6.03(b)(iii), a lease).
"Disqualified Stock" means any capital stock or other ownership
interest that, by its terms (or by the terms of any security into which it is
convertible, or for which it is exchangeable, in each case at the option of the
holder thereof), or upon the happening of any event, (a) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder thereof, in whole or in part, on or prior
to the date that is six months after the final maturity of the Loans hereunder,
(b) is secured by any assets of the Borrower or any Restricted Subsidiary or is
Guaranteed by any Restricted Subsidiary or (c) is exchangeable or convertible at
the option of the holder into Indebtedness of the Borrower or any Restricted
Subsidiary.
Notwithstanding the preceding sentence, any capital stock or other
ownership interest that would constitute Disqualified Stock solely because the
holders thereof have the right to require the respective issuer thereof to
repurchase such capital stock or other ownership interest upon the occurrence of
a change of control or an asset sale shall not constitute Disqualified Stock if
the terms of such capital stock or other ownership interest provide that such
issuer may not repurchase or redeem any such capital stock or other ownership
interest pursuant to such provisions unless such repurchase or redemption
complies with the provisions of Section 6.06.
"Dollars" or "$" refers to lawful money of the United States of
America.
Credit Agreement
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"Domestic Subsidiary" means any Restricted Subsidiary that is not a
Foreign Subsidiary.
"EBITDA" means, for any period, the sum, for the Borrower and its
Restricted Subsidiaries (determined on a consolidated basis without duplication
in accordance with GAAP), of the following (in each case adjusted to exclude all
extraordinary and unusual items, income or loss attributable to equity in
affiliates and non-cash minority interest payments and receipts): (a) net
operating income (calculated before taxes, Interest Expense, extraordinary and
unusual items and income or loss attributable to equity in Affiliates) for such
period plus (b) depreciation and amortization (to the extent deducted in
determining net operating income) and other non-cash items deducted from net
income for such period plus (c) during any period ending on or before the date
twelve months after the EchoStar Combination Transaction, costs related to the
EchoStar Combination Transaction that are allocated to the Borrower up to but
not exceeding $40,000,000 in the aggregate during any such period plus (d) costs
associated with the Refinancing (including in connection with the execution and
delivery of this Agreement and the other Loan Documents) allocated to such
period plus (e) costs allocated during such period to the Borrower and its
Restricted Subsidiaries by reason of a tax deconsolidation upon the EchoStar
Combination Transaction plus (f) loss (or minus income) attributable to
operations discontinued during such period plus (g) the aggregate collections by
the Borrower and its Restricted Subsidiaries during such period on investments
in sales-type leases minus (h) the aggregate amount of gross profit on
sales-type leases included in net operating income for such period minus (i) any
Specified Affiliate Payments made during such period (net of any contributions
contemplated by clause (b) of the definition of "Specified Affiliate Payments").
Notwithstanding the foregoing, if during any period for which EBITDA
is being determined the Borrower or any of its Restricted Subsidiaries shall
have consummated any acquisition or Disposition of a business or operating unit
then, for all purposes of this Agreement, EBITDA shall be determined on a pro
forma basis as if such acquisition or Disposition had been made or consummated
on the first day of such period.
"EchoStar" means EchoStar Communications Corporation, a Nevada
corporation, and its successors and assigns.
"EchoStar Combination Transaction" means (a) the merger of EchoStar
with ▇▇▇▇▇▇ pursuant to the Agreement and Plan of Merger dated as of October 28,
2001, or (b) the purchase by EchoStar from the Sellers pursuant to the Stock
Purchase Agreement of 120,812,175 shares of common stock, par value $0.01 per
share, issued by the Borrower, plus any additional shares of common stock issued
by the Borrower and acquired by the Sellers or any of their respective
Subsidiaries after October 28, 2001.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all laws, 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,
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preservation or reclamation of natural resources, the management, release or
threatened release of any Hazardous Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities, and including any Lien filed
against any property covered by the Mortgages in favor of any Governmental
Authority), of the Borrower or any Subsidiary directly or indirectly resulting
from or based upon (a) violation of any Environmental Law, (b) the generation,
use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"Equity Issuance" means (a) any issuance or sale by the Borrower or
any of its Restricted Subsidiaries after the Effective Date, of (i) any of its
capital stock or other ownership interests, (ii) any warrants or options
exercisable in respect of its capital stock or other ownership interests, other
than any warrants or options issued to (x) consultants pursuant to consulting
arrangements between such consultants and the Borrower or a Restricted
Subsidiary, or (y) directors, officers or employees of the Borrower or any of
its Restricted Subsidiaries pursuant to employee benefit plans established in
the ordinary course of business and any capital stock of the Borrower issued
upon the exercise of such warrants or options or (iii) any other security or
instrument representing an equity interest (or the right to obtain any equity
interest) in the Borrower or any of its Restricted Subsidiaries or (b) the
receipt by the Borrower or any of its Restricted Subsidiaries after the
Effective Date of any capital contribution (whether or not evidenced by any
equity security issued by the recipient of such contribution); provided that
Equity Issuance shall not include (x) any such issuance or sale by any
Restricted Subsidiary to the Borrower or any Wholly Owned Restricted Subsidiary
or (y) any capital contribution by the Borrower or any Wholly Owned Restricted
Subsidiary to any Restricted Subsidiary.
"Equity Rights" means, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including any shareholders' or voting trust agreements) for the
issuance, sale, registration or voting of, or securities convertible into, any
additional shares of capital stock of any class, or partnership or other
ownership interests of any type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, 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, excluding, however, General Motors and its Subsidiaries
(other than ▇▇▇▇▇▇ and its Subsidiaries).
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which
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the 30-day notice period is waived); (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; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA
with respect to the termination of any Plan; (e) the receipt by the Borrower or
any ERISA Affiliate from the PBGC or a plan administrator of any notice relating
to an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower 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.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are
bearing interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
VII.
"Exchange Act" means the Securities Exchange Act of 1934 and the
rules of the SEC thereunder as in effect on the date hereof.
"Excluded Property" means (a) shares of stock or other equity
interests of the Borrower or any of its Restricted Subsidiaries in any Joint
Venture or Unrestricted Subsidiary, but only to the extent that a pledge of such
shares of stock pursuant to the Security Documents is prohibited by such
Person's organizational documents, or by an agreement or other instrument to
which such Person is a party, and the existence of such prohibition has been
demonstrated to the satisfaction of the Administrative Agent (it being
understood that, based upon organizational and other documents in effect on the
date hereof, such prohibition has been demonstrated to the satisfaction of the
Administrative Agent in the case of the equity interests in Horizon Satellite
LLC, WP COM S. de ▇.▇. de C.V. and Controladora Satelital de Mexico, S. de ▇.▇.
de C.V.), (b) property expressly excluded from the scope of "Collateral"
pursuant to Section 3.02 of the Lender Security Agreement or Section 3.02 of the
Shared Security Agreement, (c) all real property, other than any real property
on which any tracking, telemetry, control or monitoring facility of the Borrower
or any of its Restricted Subsidiaries is situated and (d) property as to which
the Borrower has demonstrated to the satisfaction of the Administrative Agent,
that the expense, tax or regulatory consequences or difficulty of subjecting
such property to the Lien of the Security Documents would not, in light of the
benefits that would accrue to the Lenders, justify such property being so
subject to such Lien. The Administrative Agent hereby agrees to advise the
Collateral Trustee of any property that is to be Excluded Property pursuant to
clause (a) or (d) above, promptly after the determination thereof.
Notwithstanding the foregoing, although the Lender Security
Agreement provides that FCC Licenses are excluded from the "Collateral"
thereunder to the extent that the
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Administrative Agent may not validly possess a security interest therein
pursuant to the Communications Act of 1934, as amended, and the regulations
promulgated thereunder, for purposes of this Agreement it is intended that FCC
Licenses be deemed to be included in such "Collateral" and, accordingly, FCC
Licenses are not Excluded Property hereunder.
"Excluded Satellites" means (a) the Satellites of the Borrower and
its Restricted Subsidiaries commonly referred to as "PAS-4", "▇▇▇-▇", "▇▇▇-▇",
"▇▇▇-▇", "▇▇▇▇▇▇ IIIR" and "Galaxy VIIIi" and (b) any other Satellite that (i)
is not expected or intended, in the good faith determination of the Board of
Directors and evidenced by a Board Resolution delivered to the Administrative
Agent, to earn future revenues from the operation of such Satellite in excess of
$10,000,000 in any fiscal year, and (ii) has suffered loss or damage such that
(1) the procurement of In-Orbit Insurance therefor in the amount and on the
terms required by Section 5.06(b)(iii) would not be available for a price that
is, and on other terms and conditions that are, commercially reasonable or (2)
such In-Orbit Insurance would be subject to exclusions or limitations of
coverage that would make the terms of the insurance commercially unreasonable,
in either case, as determined in good faith by the Board of Directors and
evidenced by a Board Resolution delivered to the Administrative Agent.
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender, the Issuing Lender, the Swingline 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 by the jurisdiction under the laws of
which such recipient is organized, or in which its principal office is located
or in which it is doing business, other than by reason of this Agreement and the
activities of such Lender incidental to its rights and obligations thereunder,
or, in the case of any Lender, in which its applicable lending office is
located, or in each case by any political subdivision of any such jurisdiction,
(b) any branch profits taxes imposed by the United States of America or any
similar tax imposed by any other jurisdiction in which the Borrower is located
and (c) in the case of a Foreign Lender (other than an assignee pursuant to a
request by the Borrower under Section 2.18(b)), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement or is attributable to such Foreign
Lender's failure or inability (other than as a result of a Change in Law) to
comply with Section 2.16(e) to establish the same withholding rate as at the
time it became a party to this Agreement, except to the extent that such Foreign
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.16(a).
"FCC" means the Federal Communications Commission or any
governmental authority substituted therefor.
"FCC Licenses" means all authorizations, orders, licenses and
permits issued by the FCC to the Borrower or any of its Restricted Subsidiaries,
under which the Borrower or any of its Restricted Subsidiaries is authorized to
launch and operate any of its Satellites or to operate any of its transmit only,
receive only or transmit and receive earth stations.
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"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, 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 that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System of the United States of America.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Fixed Charges Ratio" means, as at any date, the ratio of (a) EBITDA
for the period of four consecutive fiscal quarters ending on or most recently
ended prior to such date to (b) the sum of (i) Debt Service for such period plus
(ii) the aggregate amount of Federal, state and local income taxes paid by the
Borrower and its Restricted Subsidiaries in respect of such period.
"Foreign Lender" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is located. 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 Subsidiary" means any Subsidiary of the Borrower that is
not organized under the laws of any jurisdiction within the United States of
America.
"GAAP" means generally accepted accounting principles in the United
States of America.
"General Motors" means General Motors Corporation, a Delaware
corporation, and its successors and assigns.
"Governmental Authority" means the government of the United States
of America, or of any other nation, or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of)
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such Indebtedness or other obligation or to purchase (or to advance or supply
funds for the purchase of) any security for the payment thereof, (b) to purchase
or lease property, securities or services for the purpose of assuring the owner
of such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"Guarantee Agreement" means a Guarantee Agreement substantially in
the form of Exhibit E between the Borrower, the Subsidiary Guarantors and the
Administrative Agent.
"Guarantee Assumption Agreement" means a Guarantee Assumption
Agreement substantially in the form of Exhibit F.
"Hazardous Materials" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Holding Company" means a corporation, limited liability company or
limited partnership that owns directly 100% of the issued and outstanding shares
of capital stock and other ownership interest of each class of the Borrower, and
which is formed either pursuant to Section 6.03(f) or clause (q) of Article VII.
Anything herein to the contrary notwithstanding, neither EchoStar nor ▇▇▇▇▇▇
shall be a "Holding Company" for purposes of this Agreement.
"Holding Company Pledge Agreement" means a pledge agreement in form
consistent with the Shared Security Agreement pursuant to which a Holding
Company shall (a) Guarantee in a manner consistent with the provisions of
Section 2 of the Guarantee Agreement all of the obligations of the Borrower
hereunder and shall pledge to the Administrative Agent all of the capital stock
and other ownership interests in the Borrower held by it as collateral security
for the "Secured Obligations" under and as defined in the Lender Security
Agreement (it being understood that the obligations of such Holding Company in
respect of such Guarantee shall be limited in recourse to the capital stock and
other ownership interests in the Borrower so pledged), (b) make representations
and warranties consistent with those set forth in Section 3.01, 3.02, 3.03, 3.07
and 3.08 (but with respect to itself and such pledge agreement) and (c) agree as
to itself and its property to submit to the jurisdiction of courts and waive
jury trial in a manner consistent with Sections 9.09 and 9.10.
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"Holding Company Transaction" means any transaction described in
Section 6.03(f) or clause (q) of Article VII pursuant to which the Borrower
becomes a Wholly Owned Subsidiary of a Holding Company.
"▇▇▇▇▇▇" has the meaning assigned to such term in the preamble to
this Agreement, and its successors and assigns.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid, (d)
all obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (e) all obligations of
such Person in respect of the deferred purchase price of property or services,
(f) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person
of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances,
provided that the foregoing clauses (c), (d) and (e) shall exclude trade
accounts payable incurred in the ordinary course of business.
The Indebtedness of any Person shall include (x) the Indebtedness of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent that the terms of such Indebtedness provide that such Person is not
liable therefor and (y) in the case of Indebtedness issued at a discount, the
accreted value thereof and shall exclude (i) obligations under Satellite
Purchase Agreements, Launch Services Agreements, and satellite insurance not
overdue by more than 90 days, (ii) deferred or prepaid revenues, (iii) purchase
price holdbacks in respect of a portion of the purchase price of an asset to
satisfy warranty or other unperformed obligations of the respective seller, and
(iv) obligations under Hedging Agreements.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"In-Orbit Insurance" means, with respect to any Satellite, insurance
for risks of loss of and damage to such Satellite attaching upon the expiration
of the Launch Insurance therefor and renewing, during the commercial in-orbit
service of such Satellite, at least thirty (30) days before the expiration of
the immediately preceding corresponding In-Orbit Insurance policy, subject to
the terms and conditions set forth herein.
"In-Orbit Spare Satellite" means a Satellite that meets the
qualifying requirements for in-orbit spare satellites set out in Schedule IX.
Credit Agreement
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"Intercreditor and Collateral Trust Agreement" means an
Intercreditor and Collateral Trust Agreement substantially in the form of
Exhibit B between the Borrower, the Subsidiary Guarantors, the Administrative
Agent and the Collateral Trustee.
"Interest Coverage Ratio" means, as at any date, the ratio of (a)
EBITDA for the period of four fiscal quarters ending on or most recently ended
prior to such date to (b) Interest Expense for such Period.
Notwithstanding the foregoing, (i) if during any period for which
Interest Expense is being determined the Borrower or any of its Restricted
Subsidiaries shall have consummated any acquisition or Disposition then, for all
purposes of this Agreement, Interest Expense shall be determined on a pro forma
basis as if such acquisition or Disposition (and any Indebtedness incurred by
the Borrower or any of its Restricted Subsidiaries in connection with such
acquisition or repaid as a result of such Disposition) had been made or
consummated (and such Indebtedness incurred or repaid) on the first day of such
period and (ii) if, as at any date (a "calculation date"), fewer than four
complete consecutive fiscal quarters have elapsed subsequent to the Effective
Date, Interest Expense shall be calculated (after giving effect to the
adjustment contemplated in the foregoing clause (i)) only for the portion of
such period commencing on the Effective Date and ending on the calculation date
and shall then be annualized by multiplying the amount of such Interest Expense
by a fraction, the numerator of which is 365 and the denominator of which is the
number of days during the period commencing on the day immediately following the
Effective Date through and including the calculation date.
"Interest Election Request" means a request by the Borrower to
convert or continue a Syndicated Borrowing in accordance with Section 2.07.
"Interest Expense" means, for any period, the sum, for the Borrower
and its Restricted Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all interest in
respect of Indebtedness (including the interest component of any payments in
respect of Capital Lease Obligations but excluding any interest not required to
be paid in cash) accrued or capitalized during such period (whether or not
actually paid during such period) plus (b) the aggregate amount of dividends
paid in cash in respect of Disqualified Stock during such period plus (c) the
net amount payable (or minus the net amount receivable) under Hedging Agreements
relating to interest during such period (whether or not actually paid or
received during such period) minus (d) interest income for such period (but only
to the extent not included in the determination of EBITDA for such period).
"Interest Payment Date" means (a) with respect to any Syndicated ABR
Loan or any Swingline Loan, each Quarterly Date and (b) with respect to any
Eurodollar Loan, the last day of each Interest Period therefor and, in the case
of any Interest Period of more than three months' duration, each day prior to
the last day of such Interest Period that occurs at three-month intervals after
the first day of such Interest Period.
"Interest Period" means, for any Eurodollar Loan or Borrowing, the
period commencing on the date of such Loan or Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the
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Borrower may elect and as specified in the applicable Borrowing Request or
Interest Election Request; provided that (i) 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, and (ii) any Interest Period that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Loan initially shall be the
date on which such Loan is made and thereafter shall be the effective date of
the most recent conversion or continuation of such Loan, and the date of a
Syndicated Borrowing comprising Loans that have been converted or continued
shall be the effective date of the most recent conversion or continuation of
such Loans.
"Investment" means, for any Person: (a) the acquisition (whether for
cash, property, services or securities or otherwise) of capital stock, bonds,
notes, debentures, partnership or other ownership interests or other securities
of any other Person or any agreement to make any such acquisition (including any
"short sale" or any sale of any securities at a time when such securities are
not owned by the Person entering into such sale); (b) the making of any deposit
with, or advance, loan or other extension of credit to, any other Person
(including the purchase of property from another Person subject to an
understanding or agreement, contingent or otherwise, to resell such property to
such Person), but excluding any such advance, loan or extension of credit having
a term not exceeding 180 days arising in the ordinary course of business and
excluding also any investment in sales-type leases entered into in the ordinary
course of business; (c) the entering into of any Guarantee of, or other
contingent obligation with respect to, Indebtedness or other liability of any
other Person and (without duplication) any amount committed to be advanced, lent
or extended to such Person; or (d) the entering into of any Hedging Agreement.
"Issuing Lender" means CSFB, in its capacity as the issuer of
Letters of Credit hereunder, and its successors in such capacity as provided in
Section 2.05(j).
"Joint Arrangers" means, collectively, CSFB and Deutsche Banc Alex.
▇▇▇▇▇ Inc.
"Joint Ventures" means any Person in which the Borrower or a
Restricted Subsidiary maintains an equity investment (including those formed for
the purpose of selling or leasing transponders or transponder capacity to third
party customers in the ordinary course of business of the Borrower and its
Restricted Subsidiaries), but which is not a Subsidiary of the Borrower.
"Launch" means, with respect to any Satellite, the point in time
before lift-off of such Satellite at which risk of loss of such Satellite passes
to the applicable Satellite Purchaser under the terms of the applicable
Satellite Purchase Agreement, unless risk of loss thereunder is to pass to such
Satellite Purchaser after lift-off, in which case "Launch" shall mean the
intentional ignition of the first stage engines of the launch vehicle that has
been integrated with such Satellite.
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"Launch Insurance" means, with respect to any Satellite, insurance
for risks of loss of and damage to such Satellite attaching not later than the
time of Launch and continuing until the successful or unsuccessful attempt to
achieve physical separation of such Satellite from the launch vehicle that had
been integrated with such Satellite except that with respect to any Satellite
that is intended for use as an In-Orbit Spare Satellite such insurance shall
continue until the completion of initial in-orbit testing, subject to the terms
and conditions set forth herein.
"Launch Services Agreement" means, with respect to any Satellite,
the agreement between the applicable Satellite Purchaser and the applicable
Launch Services Provider relating to the launch of such Satellite.
"Launch Services Provider" means, with respect to any Satellite, the
provider of launch services for such Satellite pursuant to the terms of the
Launch Services Agreement related thereto.
"LC Disbursement" means a payment made by the Issuing Lender
pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time. The LC Exposure of any Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"Lender Collateral Account" has the meaning assigned to such term in
Section 4.01 of the Lender Security Agreement.
"Lender Security Agreement" means a Security Agreement substantially
in the form of Exhibit C between the Borrower, the Subsidiary Guarantors and the
Administrative Agent.
"Lenders" means the Persons listed on Schedule I and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"Letter of Credit" means any letter of credit issued pursuant to
this Agreement.
"Letter of Credit Documents" means, with respect to any Letter of
Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations,
each as the same may be modified and supplemented and in effect from time to
time.
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"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate per annum determined by the Administrative Agent at
approximately 11:00 a.m., London time, on the date which is two Business Days
prior to the beginning of such Interest Period by reference to the British
Bankers' Association Interest Settlement Rates for deposits in Dollars (as set
forth by any service selected by the Administrative Agent which has been
nominated by the British Bankers' Association as an authorized information
vendor for the purpose of displaying such rates) 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, "LIBO
Rate" shall be the interest rate per annum determined by the Administrative
Agent to be the average of the rates per annum at which deposits in Dollars are
offered for such Interest Period to prime banks in the London interbank market
in London, England by the Administrative Agent at approximately 11:00 a.m.,
London time, on the date which is two Business Days prior to the beginning of
such Interest Period. Each determination by the Administrative Agent pursuant to
this definition shall be conclusive absent manifest error.
"License Subsidiary" means PanAmSat Licensee Corp., a Delaware
corporation, and any other Wholly Owned Subsidiary formed for the purpose of
holding Subject Licenses to be used by the Borrower or any of its Restricted
Subsidiaries in the operation of their business and all of the shares of capital
stock and other ownership interests of which are held by an Obligor.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset and (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset.
"Loan Documents" means, collectively, this Agreement, the Letter of
Credit Documents and the Security Documents.
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Agreement.
"Margin Stock" means "margin stock" within the meaning of
Regulations T, U and X of the Federal Reserve Board.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations or condition, financial or otherwise, of the
Borrower and its Restricted Subsidiaries taken as a whole, (b) the ability of
any Credit Party to perform any of its obligations under this Agreement or any
of the other Loan Documents to which it is a party or (c) the rights of or
benefits available to the Lenders under this Agreement or any of the other Loan
Documents.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of the Borrower and its Restricted Subsidiaries in an
aggregate principal amount exceeding
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$20,000,000. For purposes of determining Material Indebtedness, the "principal
amount" of the obligations of any Person in respect of any Hedging Agreement at
any time shall be the maximum aggregate amount (giving effect to any netting
agreements) that such Person would be required to pay if such Hedging Agreement
were terminated at such time.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgages" means, collectively, the mortgages, deeds of trust and
deeds to secure debt made by the Obligors in favor of the Collateral Trustee or
the Administrative Agent, as applicable (or in favor of a trustee for the
benefit of the Collateral Trustee or the Administrative Agent, as applicable)
and covering those properties and leasehold interests identified in Schedule
VIII that are to be subject to the Lien of a Mortgage.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" means:
(a) in the case of any Prepayment Disposition, the aggregate amount
of all cash payments received by the Borrower and its Restricted
Subsidiaries directly or indirectly in connection with such Prepayment
Disposition; provided that (i) Net Cash Proceeds shall be net of (x) the
amount of all reasonable legal, title, accounting, investment banking and
recording tax expenses, commissions and other fees and expenses paid or
payable by the Borrower and its Restricted Subsidiaries in connection with
such Prepayment Disposition and (y) any foreign or U.S. Federal, state and
local income or other taxes reasonably estimated to be payable by the
Borrower and its Restricted Subsidiaries as a result of such Prepayment
Disposition, (ii) Net Cash Proceeds shall be net of any repayments (and
any reasonable expenses in connection therewith) by the Borrower or any of
its Restricted Subsidiaries of Indebtedness to the extent that (x) such
Indebtedness is secured by a Lien (other than a Lien junior to the Liens
created pursuant to the Security Documents) on the property that is the
subject of such Prepayment Disposition, and (y) the transferee of (or
holder of a Lien on) such property requires that such Indebtedness be
repaid as a condition to the purchase of such property and (iii) Net Cash
Proceeds shall be net of all reserves required to be established and in
fact established and maintained by the Borrower and its Restricted
Subsidiaries to fund contingent liabilities reasonably estimated to be
payable, in each case during the year that such Prepayment Disposition
occurred or the next succeeding year (or, if a dispute shall arise,
promptly following resolution of such dispute), provided that at the time
and to the extent such amounts are released from such reserve, such
amounts shall constitute Net Cash Proceeds;
(b) in the case of a Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation received
by the Borrower and its Restricted Subsidiaries in respect of such
Casualty Event net of (i) reasonable expenses incurred by the Borrower and
its Restricted Subsidiaries in connection therewith and (ii) contractually
required repayments of Indebtedness to the extent secured
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by a Lien on such property (other than a Lien junior to the Liens created
pursuant to the Security Documents) and any income and transfer taxes
payable by the Borrower or any of its Restricted Subsidiaries in respect
of such Casualty Event, provided that proceeds of liability insurance,
rent insurance or business interruption insurance shall not give rise to
"Net Cash Proceeds" for purposes of this definition; and
(c) in the case of any Equity Issuance, any Affiliate Debt
Incurrence or Permitted Debt Incurrence, the aggregate amount of all cash
received by the Borrower and its Restricted Subsidiaries in respect of
such Equity Issuance, Affiliate Debt Incurrence or Permitted Debt
Incurrence net of reasonable expenses incurred by the Borrower and its
Restricted Subsidiaries in connection therewith including, legal,
accounting, investment banking, and underwriting expenses, commissions and
other fees and expenses paid or payable by the Borrower and its Restricted
Subsidiaries in connection with any such Equity Issuance, Affiliate Debt
Incurrence or Permitted Debt Incurrence.
"Non-Shared Property" means all property or assets other than Shared
Property.
"Obligors" means the Borrower and each Subsidiary Guarantor.
"Offering Memorandum" means the Final Confidential Offering Circular
prepared by the Borrower with respect to its proposed offering of senior
unsecured notes in an aggregate principal amount of $800,000,000.
"Other Taxes" means 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 under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"PanAmSat" means PanAmSat Corporation, a Delaware corporation.
"PAS 10" means the Satellite commonly referred to as "PAS 10".
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Permitted Business" has the meaning assigned to such term in
Section 6.04.
"Permitted Business Acquisition" has the meaning assigned to such
term in Section 6.03(d).
"Permitted Debt Incurrence" means the incurrence by the Borrower or
any of its Restricted Subsidiaries after the Effective Date of (a) any
Indebtedness of the kind described in Section 6.01(e) and (b) any Indebtedness
not permitted to be incurred by Section 6.01 that shall have been consented to
by the Required Lenders.
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"Permitted Discount Purchases" means the purchase by the Borrower or
any of its Restricted Subsidiaries in the open market of the Senior 1998 Notes
or Senior 2002 Notes at a discount equal to at least 10% of face value, so long
as immediately upon such purchase such Notes are irrevocably extinguished.
"Permitted Dispositions" means any Disposition by the Borrower or
any of its Restricted Subsidiaries to any other Person:
(a) in the ordinary course of business and on ordinary business
terms reasonably consistent with prior practice of the Borrower or such
Restricted Subsidiary, provided that no more than 50 transponders may be
sold pursuant to this clause (a) during the term of this Agreement;
(b) not in the ordinary course of business in an aggregate amount
not exceeding $30,000,000 in any single fiscal year of the Borrower;
(c) of obsolete or worn-out property, tools or equipment, or
property, tools or equipment no longer used or useful in the business of
the Borrower or any of its Restricted Subsidiaries, excluding, however,
Satellites or transponders;
(d) of Excluded Satellites;
(e) of one Satellite, not constituting an Excluded Satellite;
(f) of rights to construct or launch Satellites, so long as the
aggregate net profit after the date hereof of all such Dispositions shall
not exceed $12,500,000 (it being understood that the termination of a
contract, and receipt by the Borrower or its Restricted Subsidiaries of
cash or other consideration previously paid, shall not be deemed to be a
Disposition for purposes of this definition);
(g) of Permitted Investments;
(h) of property that is the subject of a condemnation or other
taking by a Governmental Authority;
(i) of investments in Unrestricted Subsidiaries or Joint Ventures to
the extent such investments are outstanding on the date hereof or
permitted under the terms of this Agreement at the time made; or
(j) of Designated Acquired Assets; provided that any such Designated
Acquired Assets are sold, transferred or otherwise disposed of within 365
days after the consummation of the Permitted Business Acquisition pursuant
to which such Designated Acquired Assets were acquired.
Credit Agreement
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"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', landlord's,
materialmen's, repairmen's and other like Liens imposed by law or by
contract, arising in the ordinary course of business and securing
obligations that are not overdue by more than 30 days or are being
contested in good faith and in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary
course of business;
(e) liens securing judgments that do not constitute an Event of
Default under clause (k) of Article VII;
(f) easements, rights-of-way, zoning restrictions covenants,
reservations, encroachments, variations and other similar restrictions or
encumbrances (whether or not recorded) on real property imposed by law or
arising in the ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the affected
property or materially interfere with the ordinary conduct of business of
the Borrower or any Restricted Subsidiary; and
(g) other Liens incidental to the conduct of the business or the
ownership of the assets of the Borrower or any Subsidiary that (i) do not
in the aggregate materially detract from the value of the assets subject
thereto or materially impair the use thereof in the operation of such
business and (ii) do not secure obligations aggregating in excess of
$4,000,000,
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Holder" means each of (i) General Motors or ▇▇▇▇▇▇, (ii)
EchoStar, (iii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, his spouse, children and other lineal
descendants and any trust the sole beneficiaries of which are one or more of
such individuals and (iv) any Subsidiary (including a Holding Company) or any
other Person, directly or indirectly, Controlled by any of the foregoing.
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"Permitted Investments" means:
(i) Dollars;
(ii) securities issued or directly and fully guaranteed or insured
by the United States government or any agency or instrumentality thereof
having maturities of not more than one year from the date of acquisition;
(iii) certificates of deposit and eurodollar time deposits with
maturities of one year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding one year or less from the date
of acquisition and overnight bank deposits, in each case with any
commercial bank or trust company having capital and surplus in excess of
$500,000,000;
(iv) repurchase obligations with a term of not more than thirty days
for underlying securities of the types described in clauses (ii) and (iii)
above entered into with any financial institution meeting the
qualifications specified in clause (iii) above;
(v) commercial paper maturing no more than one year from the date of
creation thereof and at the time of acquisition, having a rating of at
least P-1 from Moody's or a rating of at least A-1 from S&P;
(vi) readily marketable direct obligations issued by any state of
the United States of America or any political subdivision thereof having a
rating of at least "A" from either Moody's or S&P;
(vii) money market mutual or similar funds having assets in excess
of $250,000,000, substantially all the assets of which are comprised of
assets specified in clauses (i) through (vi) above; and
(viii) to the extent determined by the Borrower in good faith to be
necessary for local currency working capital requirements of a Restricted
Subsidiary that is a Foreign Subsidiary, other cash equivalents, provided
(x) such Investment is made by such Foreign Subsidiary and (y) the
aggregate amount of such Investments permitted by this clause (viii) for
all Restricted Subsidiaries that are Foreign Subsidiaries shall not exceed
$10,000,000.
"Permitted Senior Indebtedness" means unsecured Indebtedness (other
than Affiliate Subordinated Indebtedness) issued by the Borrower (and for which
the Borrower is directly and primarily liable) and that satisfies the following
criteria:
(a) such Indebtedness, if Guaranteed by Subsidiaries, shall be
Guaranteed only by Subsidiary Guarantors;
Credit Agreement
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(b) the terms of such Indebtedness shall not provide for payment of
any portion of the principal thereof prior to the date six months after
the final maturity of the Loans hereunder; and
(c) financial and other covenants, events of default and mandatory
prepayments applicable to such Indebtedness shall be on terms that are at
the time customary in the market for senior unsecured debt being incurred
by borrowers, and in transactions, comparable to the Borrower and the
proposed debt issuance, provided that such terms are no less favorable to
the Lenders than those under the Senior 2002 Notes.
"Permitted Subordinated Indebtedness" means unsecured Indebtedness
issued by the Borrower (and for which the Borrower is directly and primarily
liable) and that satisfies the following criteria:
(a) such Indebtedness is subordinated to the obligations of the
Borrower to pay principal of and interest on the Loans and LC
Disbursements hereunder upon the terms set forth in Exhibit K-2, or upon
such other terms as shall be satisfactory to the Administrative Agent;
(b) such Indebtedness, if Guaranteed by Subsidiaries, shall be
Guaranteed only by Subsidiary Guarantors and then only if such Guarantee
is subordinated to the obligations of such Subsidiary Guarantor under the
Guarantee Agreement and the Security Documents upon terms and conditions
equivalent to those required pursuant to clause (a) above;
(c) the terms of such Indebtedness shall not provide for payment of
any portion of the principal thereof prior to the date six months after
the final maturity of the Loans hereunder; and
(d) financial and other covenants, events of default and mandatory
prepayments applicable to such Indebtedness shall be on terms that are at
the time customary in the market for subordinated debt being incurred by
borrowers, and in transactions, comparable to the Borrower and the
proposed debt issuance, provided that such terms are no less favorable to
the Lenders than those under the Senior 2002 Notes.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means 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 or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is an "employer" as defined in Section 3(5) of ERISA (or, if
such plan were terminated, would under Section 4069 of ERISA be deemed to be a
"contributing sponsor").
"Prepayment Disposition" means any Disposition other than (a) any
Disposition in which the aggregate cash consideration received by the Borrower
and its Restricted
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Subsidiaries is less than $2,000,000, (b) any Disposition of the type referred
to in clauses (a) (except to the extent relating to Satellites or transponders),
(c), (f), (g), (h) and (j) of the definition of "Permitted Dispositions" in this
Section, (c) any Disposition of the type referred to in Sections 6.03(a), (b) or
(c) and (d) any Disposition arising out of the sale and leaseback of PAS 10 as
contemplated by Section 6.09 (except that, to the extent that the Net Cash
Proceeds of such Disposition shall not have been Reinvested, or applied to the
repayment of the Senior 1998 Notes due 2003, by the maturity date of such Senior
1998 Notes (with a Financial Officer having delivered a certificate to such
effect to the Administrative Agent), such Disposition of PAS 10 shall be deemed
to be a Prepayment Disposition for purposes of this Agreement occurring on such
maturity date (and the Net Cash Proceeds of which are deemed received on such
maturity date). The term "Prepayment Disposition" also includes (i) any release
of any proceeds of a Prepayment Disposition from reserves maintained by the
Borrower or any of its Restricted Subsidiaries as contemplated by clause (iii)
of paragraph (a) of the definition of "Net Cash Proceeds" in this Section and
(ii) any realization of cash in respect of any Disposition Investment arising in
connection with any Prepayment Disposition.
"Prepayment Percentage" means (a) in the case of the Net Cash
Proceeds received at any time from a Disposition of, or Casualty Event that
occurs with respect to, any Shared Property, and that are to be applied on any
date to the prepayment of the obligations hereunder pursuant to Section 2.10(b),
the portion (expressed as a percentage) of the Secured Obligations under and as
defined in the Intercreditor and Collateral Trust Agreement held by the Lenders
that, under clause second of Section 4.01 of the Intercreditor and Collateral
Trust Agreement are, in the event of a payment on such date, payable to the
Lenders hereunder in respect of the obligations held by them hereunder and (b)
in the case of Non-Shared Property at any time, 100%.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by CSFB as its prime rate in effect at its principal office in
New York City; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.
"Principal Payment Dates" means each Quarterly Date, commencing with
March 31, 2004 through and including December 31, 2008.
"Purchase Price" shall mean, without duplication, with respect to
any acquisition, an amount equal to the sum of the aggregate consideration,
whether cash, property or securities (including, without limitation, any
Indebtedness incurred pursuant to Section 6.01(k) or 6.01(q)), paid or delivered
by the Borrower and its Restricted Subsidiary in connection with such
acquisition, including the aggregate amount of liabilities of the acquired
business (net of current assets of the acquired business) that would be
reflected on a balance sheet (if such were to be prepared) of the Borrower and
its Restricted Subsidiaries after giving effect to such acquisition.
"Quarterly Dates" means the last Business Day of March, June,
September and December in each year, the first of which shall be the first such
day after the date hereof.
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"Refinancing" means the payment in full by the Borrower of the
principal of, and (except to the extent otherwise indicated on Schedule II),
accrued and unpaid interest on, the Indebtedness of the Borrower under the Loan
Agreement dated as of May 15, 1997 between ▇▇▇▇▇▇ and the Borrower in an
aggregate principal amount of $1,725,000,000.
"Register" has the meaning assigned to such term in Section 9.04.
"Reinvest" means, with respect to any Net Cash Proceeds, the
application of such Net Cash Proceeds to (a) the repair, improvement,
replacement or purchase of any tangible personal or real property of the
Borrower or any of its Subsidiaries (or any intellectual property, including
software, necessary in order to use or benefit from such property), or the
purchase, construction, manufacture or improvement (including the manufacture or
purchase of a Satellite) of any such property (including any such intellectual
property), or the installation of equipment on such property or software to be
used in connection with such property, (b) the purchase of licenses, permits or
other authorizations to use a geostationary orbital position or (c) the making
of a Permitted Business Acquisition.
"Related Parties" means, 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.
"Required Lenders" means, at any time, subject to the last paragraph
of Section 9.02(b), Lenders having Revolving Credit Exposures, outstanding Term
Loans and unused Commitments representing more than 50% (or, for purposes of any
action of the Required Lenders under Section 5.06 and Schedule IX or any waiver,
amendment or modification of Section 6.06, or of any defined terms as used
therein, 60%) of the sum of the total Revolving Credit Exposures, outstanding
Term Loans and unused Commitments at such time. The "Required Lenders" of a
particular Class of Loans means Lenders having Revolving Credit Exposures,
outstanding Term Loans and unused Commitments of such Class representing more
than 50% (or, for purposes of Section 5.06, 6.06 or Schedule IX, 60%) of the
total Revolving Credit Exposures, outstanding Term Loans and unused Commitments
of such Class at such time.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any shares of
any class of capital stock or other ownership interests of the Borrower or any
of its Restricted Subsidiaries, or any payment (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 (i) any such shares of capital stock or other ownership interests of the
Borrower or (ii) any option, warrant or other right to acquire any such shares
of capital stock or other ownership interests of the Borrower. For the avoidance
of doubt, any distribution and any payment on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of any equity
interests in the Borrower that is made in connection with a merger or
consolidation permitted hereunder, or to which the Required Lenders shall have
consented, will not constitute a Restricted Payment to the extent that no cash,
property or securities of the Borrower or any Restricted Subsidiary are used to
make such distribution or payment and provided that neither
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the Borrower nor any Restricted Subsidiary shall be or become directly or
indirectly obligated to reimburse, repay, refund or return such cash, property
or securities or to make any other payment in respect thereof to any Person.
"Restricted Subsidiary" means any Wholly Owned Subsidiary other than
an Unrestricted Subsidiary, provided that in any event each License Subsidiary
shall be a Restricted Subsidiary.
"Revolving Credit", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are made
pursuant to Section 2.01(a).
"Revolving Credit Availability Period" means the period from and
including the Effective Date to but excluding the earlier of the Revolving
Credit Commitment Termination Date and the date of termination of the Revolving
Credit Commitments.
"Revolving Credit Commitment" means, with respect to each Lender,
the commitment, if any, of such Lender to make Revolving Credit Loans and to
acquire participations in Letters of Credit and Swingline Loans hereunder,
expressed as an amount representing the maximum aggregate amount of such
Lender's Revolving Credit Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.08 or 2.10(b) and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Revolving Credit
Commitment is set forth on Schedule I, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Revolving Credit
Commitment, as applicable. The initial aggregate amount of the Lenders'
Revolving Credit Commitments is $250,000,000.
"Revolving Credit Commitment Termination Date" means the Quarterly
Date falling on or nearest to December 31, 2007.
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Credit Loans and its LC Exposure and Swingline Exposure at such time.
"Revolving Credit Lender" means a Lender with a Revolving Credit
Commitment or, if the Revolving Credit Commitments have terminated or expired, a
Lender with Revolving Credit Exposure.
"S&P" means Standard & Poor's Ratings Group.
"Satellite" means any satellite owned by, or leased to, the Borrower
or any of its Restricted Subsidiaries and any satellite purchased pursuant to
the terms of a Satellite Purchase Agreement, whether such satellite is in the
process of manufacture, has been delivered for launch or is in orbit (whether or
not in operational service).
Credit Agreement
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"Satellite Risk Management Program" means the in-orbit insurance
program of the Borrower described in Schedule IX.
"Satellite Manufacturer" means, with respect to any Satellite, the
prime contractor and manufacturer of such Satellite.
"Satellite Purchase Agreement" means, 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" means the Borrower or Restricted Subsidiary
that is a party to a Satellite Purchase Agreement or Launch Services Agreement,
as the case may be.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of said
Commission.
"Security Agreements" means, collectively, the Lender Security
Agreement and the Shared Security Agreement.
"Security Documents" means, collectively, the Intercreditor and
Collateral Trust Agreement, the Guarantee Agreement, each Guarantee Assumption
Agreement, the Lender Security Agreement, the Shared Security Agreement, the
Mortgages, the Holding Company Pledge Agreement and all Uniform Commercial Code
financing statements required by any of the foregoing to be filed with respect
to the Liens in personal property and fixtures created pursuant to the
foregoing.
"Sellers" means, collectively, ▇▇▇▇▇▇, ▇▇▇▇▇▇ Communications Galaxy,
Inc., a California corporation, ▇▇▇▇▇▇ Communications Satellite Services, Inc.,
a California corporation, and ▇▇▇▇▇▇ Communications, Inc., a California
corporation.
"Senior 1998 Notes Indenture" means that certain indenture dated as
of January 16, 1998 made by and among the Borrower, as issuer, and JPMorgan
Chase Bank (formerly known as The Chase Manhattan Bank), as trustee, pursuant to
which the Senior 1998 Notes are issued.
"Senior 1998 Notes" means each of the Borrower's 6% Notes due 2003,
6-1/8% Notes due 2005, 6-3/8% Notes due 2008, and 6-7/8% Debentures due 2028 in
an aggregate outstanding principal amount of $750,000,000 as of the date hereof.
"Senior 2002 Notes Indenture" means that certain indenture pursuant
to which the Senior 2002 Notes are issued.
"Senior 2002 Notes" means senior unsecured notes to be issued by the
Borrower as described in the Offering Memorandum.
Credit Agreement
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"Senior Leverage Ratio" means, as at any date, the ratio of (a) all
Indebtedness of the Borrower and its Restricted Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP) on such date,
excluding any Indebtedness that is not entitled to the benefits of a Lien upon
property of the Borrower or any of its Restricted Subsidiaries, to (b) EBITDA
for the period of four consecutive fiscal quarters ending on or most recently
ended prior to such date.
"Shared Property" has the meaning assigned to such term in the
Intercreditor and Collateral Trust Agreement.
"Shared Security Agreement" means a Security Agreement substantially
in the form of Exhibit D between the Borrower, the Subsidiary Guarantors and the
Collateral Trustee.
"Special Purpose Foreign Subsidiary" means a Foreign Subsidiary that
(a) is a Restricted Subsidiary, (b) has no significant assets other than (i) one
or more transponders transferred by the Borrower or its Restricted Subsidiaries
to such Foreign Subsidiary, (ii) uplink and customer service center(s), and
(iii) sales office equipment and contracts relating to such Foreign Subsidiary's
sale office or to the sale or lease of transponder capacity, (c) has no
Indebtedness, other than Indebtedness to the Obligors hereunder, (d) conducts no
business other than the ownership of such transponders and the sale or lease of
transponder capacity or services to third party customers, (e) 100% of the
shares of capital stock or other ownership interests of which are pledged to the
Collateral Trustee under the Shared Security Agreement and (f) has been
designated as a "Special Purpose Foreign Subsidiary" for purposes of this
Agreement in a notice by the Borrower delivered to the Administrative Agent and
the Collateral Trustee (which notice shall include a certification of a
Financial Officer to the effect that the foregoing conditions of this definition
have been satisfied with respect to such Foreign Subsidiary).
"Specified Affiliate Payments" means, collectively, dividends, other
distributions or other amounts paid by the Borrower to a Holding Company (a) in
amounts up to but not exceeding $3,000,000 during any single fiscal year (or the
ratable portion of $3,000,000 in the case of any partial fiscal year following
the date upon which a Holding Company arises) equal to amounts required for such
Holding Company to pay franchise taxes and other expenses required to maintain
its corporate existence and provide for other operating costs, provided that, in
the event the Holding Company shall have any significant assets or operations
other than through its ownership of the Borrower, the Borrower shall only be
required to pay such taxes, expenses and operating costs to the extent fairly
allocated to the Borrower in a manner determined in good faith by the Board of
Directors, or (b) to pay, or reimburse the Holding Company for, the costs, fees
and expenses incident to a private placement or public offering of any of the
equity interests of the Holding Company, so long as the net proceeds of such
placement or offering (if it is completed) are contributed to the Borrower as
additional equity capital.
"Statutory Reserve Rate" means, for the Interest Period for any
Eurodollar Borrowing, a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the
arithmetic mean, taken over each day in such Interest Period, of the aggregate
of the maximum reserve percentages (including any marginal, special, emergency
or supplemental reserves) expressed as a decimal established by
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the Federal Reserve Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as "Eurocurrency liabilities" in
Regulation D of the Federal Reserve Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D. Eurodollar Loans shall be
deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D or
any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Stock Purchase Agreement" means the Stock Purchase Agreement dated
as of October 28, 2001 among EchoStar and the Sellers.
"Subject Licenses" means all FCC Licenses for the launch and
operation of Satellites with C-band or Ku-band transponders and the operation of
TT&C Stations used to control such Satellites and, from and after the launch of
any Satellites other than those that have C-band or Ku-band transponders, the
FCC Licenses for the launch and operation of such Satellites and for the
operation of TT&C Stations used to control such Satellites.
"Subordinated Indebtedness" means, collectively, Affiliate
Subordinated Indebtedness and Permitted Subordinated Indebtedness.
"Subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent. Unless otherwise
specified, "Subsidiary" means a direct or indirect Subsidiary of the Borrower.
"Subsidiary Guarantor" means (a) initially, each of the Subsidiaries
of the Borrower identified on Schedule VI as an entity that is to become a
"Subsidiary Guarantor" on the Effective Date and (b) thereafter, each Subsidiary
that becomes a "Subsidiary Guarantor" under the Guarantee Agreement, and an
"Obligor" under the Security Agreements and the Intercreditor and Collateral
Trust Agreement, pursuant to a Guarantee Assumption Agreement as contemplated by
Section 5.11(a).
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time.
"Swingline Lender" means CSFB, in its capacity as lender of
Swingline Loans hereunder.
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"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Syndicated", when used in reference to any Loan or Borrowing,
refers to whether the Class of such Loan or Borrowing is Revolving Credit,
Tranche A Term or Tranche B Term, as opposed to Swingline.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term", when used in reference to any Loan or Borrowing, refers to
whether the Class of such Loan or Borrowing is Tranche A Term or Tranche B Term,
as opposed to Revolving Credit or Swingline.
"Term Loan Commitments" means, collectively, the Tranche A Term Loan
Commitments and the Tranche B Term Loan Commitments.
"Third Party Launch Liability Insurance" means insurance for legal
liability for property loss or damage and bodily injury caused by any Satellite
or the launch vehicle used to launch such Satellite and procured by the Launch
Services Provider with respect to such Satellite in accordance with the terms of
the related Launch Services Agreement.
"Total Leverage Ratio" means, as at any date, the ratio of (a) the
sum of (i) all Indebtedness of the Borrower and its Restricted Subsidiaries
(determined on a consolidated basis without duplication in accordance with GAAP)
on such date and (ii) all outstanding Disqualified Stock as of such date to (b)
EBITDA for the period of four consecutive fiscal quarters ending on or most
recently ended prior to such date. For purposes of the foregoing clause (a), the
term "Indebtedness" shall not include (i) Affiliate Subordinated Indebtedness,
(ii) contingent obligations of the Borrower or any Restricted Subsidiary as an
account party in respect of any letter of credit or letter of guarantee unless
such letter of credit or letter of guaranty supports an obligation that
constitutes Indebtedness or (iii) any obligations under a Hedging Agreement
permitted under this Agreement. For purposes hereof, the amount of any
Disqualified Stock as of any date shall be equal to the greater of its voluntary
or involuntary liquidation preference and the maximum fixed repurchase price
thereof, in each case determined in accordance with GAAP.
"Tranche A Term", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are made
pursuant to Section 2.01(b).
"Tranche A Term Loan Commitment" means, with respect to each Lender,
the commitment, if any, of such Lender to make one or more Tranche A Term Loans
hereunder on the Effective Date, expressed as an amount representing the maximum
aggregate principal amount of the Tranche A Term Loans to be made by such Lender
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.08 or 2.10(b) and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender's Tranche A Term Loan
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Commitment is set forth on Schedule I, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Tranche A Term Loan
Commitment, as applicable. The initial aggregate amount of the Lenders' Tranche
A Term Loan Commitments is $300,000,000.
"Tranche A Term Loan Lender" means a Lender with a Tranche A Term
Loan Commitment or an outstanding Tranche A Term Loan.
"Tranche B Term", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are made
pursuant to Section 2.01(c).
"Tranche B Term Loan Commitment" means, with respect to each Lender,
the commitment, if any, of such Lender to make one or more Tranche B Term Loans
hereunder on the Effective Date, expressed as an amount representing the maximum
aggregate principal amount of the Tranche B Term Loans to be made by such Lender
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.08 or 2.10(b) and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender's Tranche B Term Loan Commitment is set forth on Schedule I, or
in the Assignment and Acceptance pursuant to which such Lender shall have
assumed its Tranche B Term Loan Commitment, as applicable. The initial aggregate
amount of the Lenders' Tranche B Term Loan Commitments is $700,000,000.
"Tranche B Term Loan Lender" means a Lender with a Tranche B Term
Loan Commitment or an outstanding Tranche B Term Loan.
"Transactions" means the execution, delivery and performance by each
Credit Party of this Agreement and the other Loan Documents to which such Credit
Party is intended to be a party, the borrowing of Loans, the use of the proceeds
thereof (including the Refinancing) and the issuance of Letters of Credit
hereunder.
"TT&C Station" means an earth station operated by the Borrower or
any of its Restricted Subsidiaries for the purpose of providing tracking,
telemetry, control and monitoring of any Satellite.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans constituting such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"Unrestricted Subsidiaries" means, collectively, (a) each entity
designated as an "Unrestricted Subsidiary" in Part C of Schedule VI hereto, (b)
any entity from time to time hereafter designated as an "Unrestricted
Subsidiary" in accordance with the requirements of Section 6.13 and (c) any
Subsidiary of an Unrestricted Subsidiary.
"Wholly Owned Subsidiary" means, with respect to any Person, any
corporation, partnership or other entity of which all of the equity securities
or other ownership interests (other than directors' or similar qualifying
shares, and other than shares required to be held by third
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parties under applicable law, so long as the percentage of such shares held by
third parties shall not exceed .01% of the total outstanding shares of such
corporation, partnership or other entity) are directly or indirectly owned or
controlled by such Person or one or more Wholly Owned Subsidiaries of such
Person or by such Person and one or more Wholly Owned Subsidiaries of such
Person. Unless otherwise specified, "Wholly Owned Subsidiary" means a direct or
indirect Wholly Owned Subsidiary of the Borrower, and "Wholly Owned Restricted
Subsidiary" means a Wholly Owned Subsidiary that is also a Restricted
Subsidiary..
"Withdrawal Liability" means 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.
SECTION 1.02. Classification of Loans and Borrowings. For purposes
of this Agreement, Loans may be classified and referred to by Class (e.g., a
"Syndicated Loan"), by Type (e.g., an "ABR Loan") or by Class and Type (e.g., a
"Syndicated ABR Loan"). Borrowings also may be classified and referred to by
Class (e.g., a "Syndicated Borrowing"), by Type (e.g., an "ABR Borrowing") or by
Class and Type (e.g., a "Syndicated ABR Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to 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". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. 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 date hereof 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
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have been withdrawn or such provision amended in accordance herewith. To enable
the ready and consistent determination of compliance with the covenants set
forth in Article VI, the Borrower will not change the last day of its fiscal
year from December 31, or the last days of the first three fiscal quarters in
each of its fiscal years from March 31, June 30 and September 30, respectively.
SECTION 1.05. Treatment of Certain Taxes. To the extent that the
Borrower and its Restricted Subsidiaries are part of an affiliated group headed
by a "common parent" (within the meaning of Section 1504 of the Code) with
respect to the filing of consolidated Federal, and (in certain circumstances)
state and local, income tax returns, then, so long as the Borrower and its
Restricted Subsidiaries shall be included in consolidated Federal, state and
local income tax returns filed by such common parent, whenever making
determinations under this Agreement of the amount of such taxes payable during
any period (or the amount of refunds in respect of such taxes receivable during
any period) by the Borrower and its Restricted Subsidiaries, the amount of such
taxes payable or receivable shall be deemed to be equal to the amounts payable
or receivable, as the case may be, in accordance with the requirements of
Section 6.07.
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments.
(a) Revolving Credit Loans. Subject to the terms and conditions set
forth herein, each Revolving Credit Lender agrees to make Revolving Credit Loans
to the Borrower from time to time during the Revolving Credit Availability
Period in an aggregate principal amount that will not result in (i) such
Lender's Revolving Credit Exposure exceeding such Lender's Revolving Credit
Commitment or (ii) the total Revolving Credit Exposures exceeding the total
Revolving Credit Commitments. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Revolving Credit Loans.
(b) Tranche A Term Loans. Subject to the terms and conditions set
forth herein, each Tranche A Term Loan Lender agrees to make one or more Tranche
A Term Loans to the Borrower on the Effective Date in a principal amount not
exceeding its Tranche A Term Loan Commitment. Amounts prepaid or repaid in
respect of Tranche A Term Loans may not be reborrowed.
(c) Tranche B Term Loans. Subject to the terms and conditions set
forth herein, each Tranche B Term Loan Lender agrees to make one or more Tranche
B Term Loans to the Borrower on the Effective Date in a principal amount not
exceeding its Tranche B Term Loan Commitment. Amounts prepaid or repaid in
respect of Tranche B Term Loans may not be reborrowed.
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SECTION 2.02. Loans and Borrowings.
(a) Obligations of Lenders. Each Syndicated Loan shall be made as
part of a Borrowing consisting of Loans of the same Class and Type made by the
Lenders ratably in accordance with their respective Commitments of the
applicable Class. 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) Type of Loans. Subject to Section 2.13, each Syndicated
Borrowing shall be constituted entirely of ABR Loans or of Eurodollar Loans as
the Borrower may request in accordance herewith. Each Swingline Loan shall be an
ABR Loan. Each Lender at its option may make any Eurodollar 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.
(c) Minimum Amounts; Limitation on Number of Borrowings. Each
Eurodollar Borrowing shall be in an aggregate amount of $10,000,000 or a larger
multiple of $1,000,000. Each Syndicated ABR Borrowing shall be in an aggregate
amount equal to $10,000,000 or a larger multiple of $1,000,000; provided that a
Syndicated ABR Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Commitments of the applicable Class or (in
the case of a Revolving Credit ABR Borrowing) that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.05(f). Each
Swingline Loan shall be in an amount equal to $1,000,000 or a larger multiple of
$500,000. Borrowings of more than one Class and Type may be outstanding at the
same time; provided that there shall not at any time be more than a total of
twelve Eurodollar Borrowings outstanding.
(d) Limitations on Interest Periods. Notwithstanding any other
provision of this Agreement, the Borrower shall not be entitled to request (or
to elect to convert to or continue as a Eurodollar Borrowing): (i) any Revolving
Credit Borrowing if the Interest Period requested therefor would end after the
Revolving Credit Commitment Termination Date; (ii) any Term Borrowing of any
Class if the Interest Period requested therefor would end after the applicable
maturity date for the Term Loans of such Class; or (iii) any Term Borrowing of
either Class if the Interest Period requested therefor would commence before and
end after any Principal Payment Date for such Class unless, after giving effect
thereto, the aggregate principal amount of the Term Loans of such Class having
Interest Periods that end after such Principal Payment Date shall be equal to or
less than the aggregate principal amount of the Term Loans of such Class
permitted to be outstanding after giving effect to the payments of principal
required to be made on such Principal Payment Date.
SECTION 2.03. Requests for Syndicated Borrowings.
(a) Notice by the Borrower. To request a Syndicated Borrowing, the
Borrower shall notify the Administrative Agent of such request by telephone (i)
in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of the proposed Borrowing or (ii) in
the case of a Syndicated ABR Borrowing, not later than
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11:00 a.m., New York City time, one Business Day before the date of the proposed
Borrowing; provided that any such notice of a Revolving Credit ABR Borrowing to
finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(f) may be given not later than 10:00 a.m., New York City time, on 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 and signed by the Borrower.
(b) Content of Borrowing Requests. Each telephonic and written
Borrowing Request shall specify the following information in compliance with
Section 2.02:
(i) whether the requested Borrowing is to be a Revolving Credit
Borrowing, Tranche A Term Borrowing or Tranche B Term Borrowing;
(ii) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the Interest Period
therefor, which shall be a period contemplated by the definition of the
term "Interest Period" and permitted under Section 2.02(d); and
(vi) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
(c) Notice by the Administrative Agent to the Lenders. 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.
(d) Failure to Elect. If no election as to the Type of a Syndicated
Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing.
If no Interest Period is specified with respect to any requested Eurodollar
Borrowing, then the Borrower shall be deemed to have selected an Interest Period
of one month's duration.
SECTION 2.04. Swingline Loans.
(a) Agreement to Make Swingline Loans. Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrower at the Borrower's request from time to time during the Revolving
Credit Availability Period, in an aggregate principal amount at any time
outstanding that will not result in (i) the aggregate principal amount of
outstanding Swingline Loans exceeding $20,000,000 or (ii) the total Revolving
Credit Exposures exceeding the total Revolving Credit Commitments; provided that
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the Swingline Lender shall not be required to make a Swingline Loan to refinance
an outstanding Swingline Loan. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Swingline Loans.
(b) Notice of Swingline Loans by the Borrower. To request a
Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 12:00 noon, New
York City time, on the day of a proposed Swingline Loan. Each such notice shall
be irrevocable and shall specify the requested date (which shall be a Business
Day) and amount of the requested Swingline Loan. The Administrative Agent will
promptly advise the Swingline Lender of any such notice received from the
Borrower. The Swingline Lender shall remit the proceeds of each Swingline Loan
to or upon the order of the Borrower (or, in the case of a Swingline Loan made
to finance the reimbursement of an LC Disbursement as provided in Section
2.05(f), by remittance to the Issuing Lender) by 3:00 p.m., New York City time,
on the requested date of such Swingline Loan.
(c) Participations by Lenders in Swingline Loans. The Swingline
Lender may by written notice given to the Administrative Agent not later than
10:00 a.m., New York City time, on any Business Day require the Lenders to
acquire participations on such Business Day in all or a portion of the Swingline
Loans outstanding. Such notice to the Administrative Agent shall specify the
aggregate amount of Swingline Loans in which Lenders will participate. Promptly
upon receipt of such notice, the Administrative Agent will give notice thereof
to each Lender, specifying in such notice such Lender's Applicable Percentage of
such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above in this paragraph, to pay to
the Administrative Agent, for account of the Swingline Lender, such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges
and agrees that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as
provided in Section 2.06 with respect to Loans made by such Lender (and Section
2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Lenders. The Administrative Agent shall
notify the Borrower of any participations in any Swingline Loan acquired
pursuant to this paragraph, and thereafter payments in respect of such Swingline
Loan shall be made to the Administrative Agent and not to the Swingline Lender.
Any amounts received by the Swingline Lender from the Borrower (or other party
on behalf of the Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower of any default in the payment thereof. Notwithstanding the
foregoing, a Lender shall not have any obligation to acquire a participation in
a Swingline Loan pursuant to this paragraph if a Default
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shall have occurred and be continuing at the time such Swingline Loan was made
and such Lender shall have notified the Swingline Lender in writing, at least
one Business Day prior to the time such Swingline Loan was made, that such
Default has occurred and that such Lender will not acquire participations in
Swingline Loans made while such Default is continuing.
SECTION 2.05. Letters of Credit.
(a) General. Subject to the terms and conditions set forth herein,
in addition to the Loans provided for in Section 2.01, the Borrower may request
the Issuing Lender to issue, at any time and from time to time during the
Revolving Credit Availability Period, Letters of Credit for its own account in
such form as is acceptable to the Issuing Lender in its reasonable
determination. Letters of Credit issued hereunder shall constitute utilization
of the Revolving Credit Commitments.
(b) Notice of Issuance, Amendment, Renewal or Extension. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or
transmit by electronic communication, if arrangements for doing so have been
approved by the Issuing Lender) to the Issuing Lender and the Administrative
Agent (reasonably in advance of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall be
a Business Day), the date on which such Letter of Credit is to expire (which
shall comply with paragraph (d) of this Section), the amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. If requested by the Issuing Lender, the Borrower also shall submit a
letter of credit application on the Issuing Lender's standard form in connection
with any request for a Letter of Credit. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, the Issuing Lender relating
to any Letter of Credit, the terms and conditions of this Agreement shall
control.
(c) Limitations on Amounts. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the aggregate LC Exposure of the Issuing Lender (determined for
these purposes without giving effect to the participations therein of the
Revolving Credit Lenders pursuant to paragraph (e) of this Section) shall not
exceed $30,000,000 and (ii) the total Revolving Credit Exposures shall not
exceed the total Revolving Credit Commitments.
(d) Expiration Date. Each Letter of Credit shall expire at or prior
to the close of business on the earlier of (i) the date twelve months after the
date of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, twelve months after the then-current expiration date of such
Letter of Credit, so long as such renewal or extension occurs
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within three months of such then-current expiration date) and (ii) the date that
is five Business Days prior to the Revolving Credit Commitment Termination Date.
(e) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) by the Issuing
Lender, and without any further action on the part of the Issuing Lender or the
Lenders, the Issuing Lender hereby grants to each Lender, and each Lender hereby
acquires from the Issuing Lender, a participation in such Letter of Credit equal
to such Lender's Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments.
In consideration and in furtherance of the foregoing, each Lender
hereby absolutely and unconditionally agrees to pay to the Administrative Agent,
for account of the Issuing Lender, such Lender's Applicable Percentage of each
LC Disbursement made by the Issuing Lender promptly upon the request of the
Issuing Lender at any time from the time of such LC Disbursement until such LC
Disbursement is reimbursed by the Borrower or at any time after any
reimbursement payment is required to be refunded to the Borrower for any reason.
Such payment shall be made without any offset, abatement, withholding or
reduction whatsoever. Each such payment shall be made in the same manner as
provided in Section 2.06 with respect to Loans made by such Lender (and Section
2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
and the Administrative Agent shall promptly pay to the Issuing Lender the
amounts so received by it from the Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to the next
following paragraph, the Administrative Agent shall distribute such payment to
the Issuing Lender or, to the extent that the Lenders have made payments
pursuant to this paragraph to reimburse the Issuing Lender, then to such Lenders
and the Issuing Lender as their interests may appear. Any payment made by a
Lender pursuant to this paragraph to reimburse the Issuing Lender for any LC
Disbursement shall not constitute a Loan and shall not relieve the Borrower of
its obligation to reimburse such LC Disbursement.
(f) Reimbursement. If the Issuing Lender shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse the
Issuing Lender in respect of such LC Disbursement by paying to the Issuing
Lender an amount equal to such LC Disbursement not later than 12:00 noon, New
York City time, on (i) the Business Day that the Borrower receives notice of
such LC Disbursement, if such notice is received prior to 10:00 a.m., New York
City time, or (ii) the Business Day immediately following the day that the
Borrower receives such notice, if such notice is not received prior to such
time, provided that, if such LC Disbursement is not less than $1,000,000, the
Borrower may, subject to the conditions to borrowing set forth herein, request
in accordance with Section 2.03 or 2.04 that such payment be financed with a
Revolving Credit ABR Borrowing or a Swingline Loan in an equivalent amount and,
to the extent so financed, the Borrower's obligation to make such payment shall
be discharged and replaced by the resulting Revolving Credit ABR Borrowing or
Swingline Loan.
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If the Borrower fails to make such payment when due, the
Administrative Agent shall notify each Revolving Credit Lender of the applicable
LC Disbursement, the payment then due from the Borrower in respect thereof and
such Lender's Applicable Percentage thereof.
(g) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (f) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit, or any term or provision therein, (ii) any draft or other document
presented under a Letter of Credit proving to be forged, fraudulent or invalid
in any respect or any statement therein being untrue or inaccurate in any
respect, (iii) payment by the Issuing Lender under a Letter of Credit against
presentation of a draft or other document that does not comply strictly with the
terms of such Letter of Credit, and (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of the
Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing
Lender, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit by the Issuing Lender or any payment or failure to make any
payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the Issuing Lender;
provided that the foregoing shall not be construed to excuse the Issuing Lender
from liability to the Borrower to the extent of any direct damages (as opposed
to consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by the Issuing Lender's gross negligence or willful misconduct
when determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that:
(i) the Issuing Lender may accept documents that appear on their
face to be in substantial compliance with the terms of a Letter of Credit
without responsibility for further investigation, and may make payment
upon presentation of documents that appear on their face to be in
substantial compliance with the terms of such Letter of Credit;
(ii) the Issuing Lender shall have the right, in its sole
discretion, to decline to accept such documents and to make such payment
if such documents are not in strict compliance with the terms of such
Letter of Credit; and
(iii) this sentence shall establish the standard of care to be
exercised by the Issuing Lender when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof
(and the parties hereto hereby waive, to
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the extent permitted by applicable law, any standard of care inconsistent
with the foregoing).
(h) Disbursement Procedures. The Issuing Lender shall, within a
reasonable time following its receipt thereof, examine all documents purporting
to represent a demand for payment under a Letter of Credit. The Issuing Lender
shall promptly after such examination notify the Administrative Agent and the
Borrower by telephone (confirmed by telecopy) of such demand for payment and
whether the Issuing Lender has made or will make an LC Disbursement thereunder;
provided that any failure to give or delay in giving such notice shall not
relieve the Borrower of its obligation to reimburse the Issuing Lender and the
Lenders with respect to any such LC Disbursement.
(i) Interim Interest. If the Issuing Lender shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to Syndicated ABR Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (f) of this Section, then Section 2.12(c) shall apply.
Interest accrued pursuant to this paragraph shall be for account of the Issuing
Lender, except that interest accrued on and after the date of payment by any
Lender pursuant to paragraph (f) of this Section to reimburse the Issuing Lender
shall be for account of such Lender to the extent of such payment.
(j) Replacement of the Issuing Lender. The Issuing Lender may be
replaced at any time by written agreement among the Borrower, the Administrative
Agent, the replaced Issuing Lender and the successor Issuing Lender. The
Administrative Agent shall notify the Lenders of any such replacement of the
Issuing Lender. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for account of the replaced Issuing
Lender pursuant to Section 2.11(b). From and after the effective date of any
such replacement, (i) the successor Issuing Lender shall have all the rights and
obligations of the replaced Issuing Lender under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Lender" shall be deemed to refer to such successor or to any previous
Issuing Lender, or to such successor and all previous Issuing Lenders, as the
context shall require. After the replacement of an Issuing Lender hereunder, the
replaced Issuing Lender shall remain a party hereto and shall continue to have
all the rights and obligations of an Issuing Lender under this Agreement with
respect to Letters of Credit issued by it prior to such replacement, but shall
not be required to issue additional Letters of Credit.
(k) Cash Collateralization. If either (i) an Event of Default shall
occur and be continuing and the Borrower receives notice from the Administrative
Agent or the Required Lenders (or, if the maturity of the Loans has been
accelerated, Lenders with LC Exposure representing more than 50% of the total LC
Exposure) demanding the deposit of cash collateral pursuant to this paragraph,
or (ii) the Borrower shall be required to provide cover for LC Exposure pursuant
to Section 2.10(b), the Borrower shall immediately deposit into the Lender
Collateral Account an amount in cash equal to, in the case of an Event of
Default, the LC Exposure as of such date plus any accrued and unpaid interest
thereon and, in the case of
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cover pursuant to Section 2.10(b), the amount so required under Section 2.10(b);
provided that the obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any
Event of Default with respect to the Borrower described in clause (h) or (i) of
Article VII. Such deposit shall be held by the Administrative Agent in the
Lender Collateral Account as collateral in the first instance for the LC
Exposure under this Agreement and thereafter for the payment of the "Secured
Obligations" under and as defined in the Lender Security Agreement, and for
these purposes the Borrower hereby confirms its grant pursuant to the Lender
Security Agreement of a security interest in the Lender Collateral Account to
the Administrative Agent for the benefit of the Administrative Agent, the
Lenders, the Issuing Lender and the Swingline Lender in the Lender Collateral
Account and in any financial assets (as defined in the Uniform Commercial Code)
or other property held therein.
SECTION 2.06. Funding of Borrowings.
(a) Funding by Lenders. 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, New York City time, to the account of the
Administrative Agent most recently designated by it for such purpose by notice
to the Lenders; provided that Swingline Loans shall be made as provided in
Section 2.04. The Administrative Agent will promptly remit the proceeds of such
Loans to or upon the order of the Borrower, in like funds; provided that
Revolving Credit ABR Borrowings made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(f) shall be remitted by the
Administrative Agent to the Issuing Lender.
(b) Presumption by the Administrative Agent. 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
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 Effective Rate 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.
SECTION 2.07. Interest Elections.
(a) Elections by the Borrower for Syndicated Borrowings. The Loans
constituting each Syndicated Borrowing initially shall be of the Type specified
in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing,
shall have the Interest Period specified in such Borrowing Request. Thereafter,
the Borrower may elect to convert such
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Borrowing to a Borrowing of a different Type or to continue such Borrowing as a
Borrowing of the same Type and, in the case of a Eurodollar Borrowing, may elect
the Interest Period 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 constituting such Borrowing, and the Loans
constituting each such portion shall be considered a separate Borrowing. This
Section shall not apply to Swingline Borrowings, which may not be converted or
continued.
(b) Notice of Elections. 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 the Borrower were requesting a Syndicated 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) Content of Interest Election Requests. 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) of this paragraph 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
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period therefor after giving effect to such election, which shall
be a period contemplated by the definition of the term "Interest Period"
and permitted under Section 2.02(d).
(d) Notice by the Administrative Agent to the Lenders. Promptly
following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender's portion of
each resulting Borrowing.
(e) Failure to Elect; Events of Default. If the Borrower either (i)
fails to deliver an Interest Election Request for a Eurodollar Borrowing prior
to the end of the Interest Period therefor or (ii) delivers an Interest Election
Request for a Eurodollar Borrowing but such Interest Election Request fails to
specify an Interest Period, the Borrower shall be deemed to have selected an
Interest Period of one month's duration. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at
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the request of the Required Lenders, so notifies the Borrower, then, so long as
an Event of Default is continuing (i) no outstanding Syndicated Borrowing may be
converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each
Eurodollar Borrowing shall be converted to a Syndicated ABR Borrowing at the end
of the Interest Period therefor.
SECTION 2.08. Termination and Reduction of the Commitments.
(a) Scheduled Termination. Unless previously terminated, (i) the
Term Loan Commitments of each Class shall terminate at 5:00 p.m., New York City
time, on the Effective Date, and (ii) the Revolving Credit Commitments shall
terminate on the Revolving Credit Commitment Termination Date.
(b) Voluntary Termination or Reduction. The Borrower may at any time
terminate, or from time to time reduce, the Commitments of any Class; provided
that (i) each reduction of the Commitments of any Class pursuant to this Section
shall be in an amount that is $5,000,000 or a larger multiple of $1,000,000 and
(ii) the Borrower shall not terminate or reduce the Revolving Credit Commitments
if, after giving effect to any concurrent prepayment of the Revolving Credit
Loans in accordance with Section 2.10, the total Revolving Credit Exposures
would exceed the total Revolving Credit Commitments.
(c) Notice of Voluntary Termination or Reduction. The Borrower shall
notify the Administrative Agent of any election to terminate or reduce the
Commitments of any Class under paragraph (b) of this Section at least three
Business Days prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly following
receipt of any notice, the Administrative Agent shall advise the Lenders of the
contents thereof. Each notice delivered by the Borrower pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Revolving
Credit Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied.
(d) Effect of Termination or Reduction. Any termination or reduction
of the Commitments of any Class shall be permanent. Each reduction of the
Commitments of any Class shall be made ratably among the Lenders in accordance
with their respective Commitments of such Class.
SECTION 2.09. Repayment of Loans; Evidence of Debt.
(a) Repayment. The Borrower hereby unconditionally promises to pay
the Loans as follows:
(i) to the Administrative Agent for account of the Revolving Credit
Lenders the outstanding principal amount of the Revolving Credit Loans on
the Revolving Credit Commitment Termination Date,
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(ii) to the Administrative Agent for account of the Tranche A
Term Loan Lenders the outstanding principal of the Tranche A Term
Loans on each Principal Payment Date falling on or nearest to each
date set forth in column (A) below, by an amount equal to the
percentage of the original aggregate principal amount of the Tranche
A Term Loans (after giving effect to the making thereof on the
Effective Date) set forth in column (B) below of the aggregate
principal amount of the Tranche A Term Loans:
(A) (B)
Principal Payment Date Percentage Reduction
---------------------- --------------------
March 31, 2004 5.00%
June 30, 2004 5.00%
September 30, 2004 5.00%
December 31, 2004 5.00%
March 31, 2005 6.25%
June 30, 2005 6.25%
September 30, 2005 6.25%
December 31, 2005 6.25%
March 31, 2006 6.25%
June 30, 2006 6.25%
September 30, 2006 6.25%
December 31, 2006 6.25%
March 31, 2007 7.50%
June 30, 2007 7.50%
September 30, 2007 7.50%
December 31, 2007 7.50%
(iii) to the Administrative Agent for account of the Tranche B Term
Loan Lenders the outstanding principal of the Tranche B Term Loans on each
Principal Payment Date falling on or nearest to each date set forth in
column (A) below, by an amount equal to the percentage of the original
aggregate principal amount of the Tranche B Term Loans (after giving
effect to the making thereof on the Effective Date) set forth in column
(B) below of the aggregate principal amount of the Tranche B Term Loans:
(A) (B)
Principal Payment Date Percentage Reduction
---------------------- --------------------
March 31, 2004 .25%
June 30, 2004 .25%
September 30, 2004 .25%
December 31, 2004 .25%
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March 31, 2005 .25%
June 30, 2005 .25%
September 30, 2005 .25%
December 31, 2005 .25%
March 31, 2006 .25%
June 30, 2006 .25%
September 30, 2006 .25%
December 31, 2006 .25%
March 31, 2007 .25%
June 30, 2007 .25%
September 30, 2007 .25%
December 31, 2007 .25%
March 31, 2008 24.00%
June 30, 2008 24.00%
September 30, 2008 24.00%
December 31, 2008 24.00%
(iv) to the Swingline Lender the then unpaid principal amount of
each Swingline Loan on the Revolving Credit Commitment Termination Date.
(b) Manner of Payment. Prior to any repayment or prepayment of any
Borrowings of any Class hereunder, the Borrower shall select the Borrowing or
Borrowings of the applicable Class to be paid and shall notify the
Administrative Agent by telephone (confirmed by telecopy) of such selection not
later than 11:00 a.m., New York City time, three Business Days before the
scheduled date of such repayment; provided that each repayment or prepayment of
Borrowings of any Class shall be applied to repay any outstanding ABR Borrowings
of such Class before any other Borrowings of such Class. If the Borrower fails
to make a timely selection of the Borrowing or Borrowings to be repaid or
prepaid, such payment shall be applied, first, to pay any outstanding ABR
Borrowings of the applicable Class and, second, to other Borrowings of such
Class in the order of the remaining duration of their respective Interest
Periods (the Borrowing with the shortest remaining Interest Period to be repaid
first), provided that if a prepayment is being made in respect of Tranche B
Borrowings upon the occasion of a mandatory prepayment thereof under
circumstances where a Tranche B Lender shall have exercised its right to decline
such prepayment pursuant to the last paragraph of Section 2.10(b)(v), such
prepayment shall be applied in the manner specified therein. Each payment of a
Syndicated Borrowing shall be applied ratably to the Loans included in such
Borrowing.
(c) Maintenance of Records by Lenders. Each Lender shall maintain in
accordance with its usual practice records 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.
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(d) Maintenance of Records by the Administrative Agent. The
Administrative Agent shall maintain records in which it shall record (i) the
amount of each Loan made hereunder, the Class and Type thereof and each Interest
Period therefor, (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)
the amount of any sum received by the Administrative Agent hereunder for account
of the Lenders and each Lender's share thereof.
(e) Effect of Entries. The entries made in the records maintained
pursuant to paragraph (d) or (e) 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 records
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.
(f) Promissory Notes. Any Lender may request that Loans of any Class
made by it be evidenced by a promissory note. In such event, the Borrower shall
prepare, execute and deliver to such Lender a promissory note payable to such
Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and substantially in the form of Exhibit A-2. 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 payee named therein (or, if
such promissory note is a registered note, to such payee and its registered
assigns).
SECTION 2.10. Prepayment of Loans.
(a) Optional Prepayments. The Borrower shall have the right at any
time and from time to time to prepay any Borrowing in whole or in part, subject
to prior notice in accordance with paragraph (c) of this Section. Prepayments of
Term Loan Borrowings under this paragraph (a) shall be applied (i) as between
each Class of Term Loan Borrowings, pro rata in accordance with the respective
aggregate principal amounts of the Loans of such Class outstanding on the date
of prepayment and (ii) as within each such Class of Loans, to the respective
installments thereof ratably in accordance with the respective principal amounts
of such installments.
(b) Mandatory Prepayments. The Borrower will prepay the Loans
(and/or provide cover for LC Exposure as specified in Section 2.05(k)), and/or
the Commitments shall be subject to automatic reduction, as follows:
(i) Casualty Events. Upon the date 60 days following the receipt by
the Borrower or any Restricted Subsidiary of the proceeds of insurance,
condemnation award or other compensation in respect of a Casualty Event
affecting any property (including any Satellite) of the Borrower or any of
its Restricted Subsidiaries that gives rise to Net Cash Proceeds exceeding
$5,000,000 (other than Net Cash Proceeds relating to the Satellite
commonly referred to as "PAS 7"), the Borrower shall prepay the Loans
(and/or provide cover for LC Exposure as specified in Section 2.05(k)),
and/or the Commitments shall be subject to automatic reduction, in an
aggregate amount, if any, equal to the Prepayment Percentage of the Net
Cash Proceeds of such Casualty Event not theretofore applied to
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the repair, replacement or restoration of such property, such prepayment
and/or reduction to be effected in each case in the manner and to the
extent specified in clause (v) of this paragraph.
Notwithstanding the foregoing, with respect to the Net Cash Proceeds
of a Casualty Event (including any Casualty Event affecting a Satellite)
that gives rise to a prepayment pursuant to the first paragraph of this
clause (i), the Borrower shall not be required to prepay Loans and/or
reduce Commitments as otherwise provided herein to the extent that within
360 days of the receipt of the Net Cash Proceeds of the respective
Casualty Event the Borrower shall Reinvest or commit pursuant to a binding
agreement (subject only to customary conditions) to Reinvest such Net Cash
Proceeds and shall so notify the Administrative Agent thereof, provided
that such Net Cash Proceeds pending such Reinvestment are held by the
Collateral Trustee in the Shared Collateral Account (if such Net Cash
Proceeds arise out of a Casualty Event affecting Shared Property) or by
the Administrative Agent in the Lender Collateral Account (if such Net
Cash Proceeds arise out of a Casualty Event affecting Non-Shared Property)
(or, alternatively, in the case of Net Cash Proceeds arising out of a
Casualty Event affecting Non-Shared Property, applied to the prepayment of
Revolving Credit Loans) and amounts held in such Account shall be subject
to release by the Collateral Trustee or, as applicable, the Administrative
Agent (which the Administrative Agent hereby agrees to do or to direct the
Collateral Trustee to do) so long as at the time of any such requested
release either (A) no Default or Event of Default shall have occurred and
be continuing or (B) the Required Lenders shall have consented thereto,
and such Net Cash Proceeds are required by the Borrower or a Restricted
Subsidiary to make progress or other payments in respect of such
Reinvestment (and the Borrower shall have so certified to the Collateral
Trustee or the Administrative Agent, as applicable). In the event that Net
Cash Proceeds from more than one Casualty Event affecting Shared Property
or Non-Shared Property, as applicable, are received, such Net Cash
Proceeds shall be deemed to be committed to any Reinvestment in the same
order in which the Net Cash Proceeds of such Casualty Events affecting
Shared Property and Non-Shared Property, as applicable, are received; the
Prepayment Percentage of any such Net Cash Proceeds not so applied or
committed to such Reinvestment within 360 days shall be forthwith applied
to the prepayment of Loans and reduction of Commitments as provided above
and, in that connection, the Administrative Agent agrees to release from
the Lender Collateral Account (and to direct the Collateral Trustee to
release from the Shared Collateral Account) any such Net Cash Proceeds
that are to be so applied.
(ii) Equity Issuances and Affiliate Debt Incurrences. Within five
Business Days after any Equity Issuance or Affiliate Debt Incurrence (or a
related series of Equity Issuances or Affiliate Debt Incurrences) that
give rise to Net Cash Proceeds of $5,000,000 or more, the Borrower shall
prepay the Loans (and/or provide cover for LC Exposure as specified in
Section 2.05(k)), and/or the Commitments shall be subject to automatic
reduction, in an aggregate amount equal to 25% of the Net Cash Proceeds
thereof (provided that if at the time of such prepayment the Total
Leverage Ratio shall be greater than 3.50 to 1, then such percentage shall
be increased to such greater percentage, but not greater than 50%, as
shall be necessary to reduce the Total Leverage Ratio, after
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giving effect to such prepayment, to 3.50 to 1, or to such ratio as is as
near as possible to 3.50 to 1), such prepayment and/or reduction to be
effected in each case in the manner and to the extent specified in clause
(v) of this paragraph, provided that, notwithstanding the foregoing, the
first $50,000,000 of Net Cash Proceeds from all Equity Issuances and
Affiliate Debt Incurrences shall not be subject to prepayment under this
clause (ii). For purposes hereof, the Total Leverage at the time of any
Equity Issuance or Affiliate Debt Incurrence, shall be determined after
giving pro forma effect to any Permitted Business Acquisition that is
being consummated contemporaneously with such Equity Issuance or Affiliate
Debt Incurrence.
Notwithstanding the foregoing, the Borrower shall not be required to
make a prepayment under this clause (ii) to the extent that
(A) the Borrower advises the Administrative Agent at the time
of the relevant Equity Issuance or Affiliate Debt Incurrence that it
intends to Reinvest such Net Cash Proceeds, or to use such Net Cash
Proceeds to make Restricted Payments permitted under Section
6.06(e),
(B) such Net Cash Proceeds are held by the Administrative
Agent in the Lender Collateral Account (or, alternatively, applied
to the prepayment of Revolving Credit Loans) until so Reinvested or
used, and
(C) such Net Cash Proceeds are in fact Reinvested or committed
pursuant to a binding agreement (subject only to customary
conditions) to be so Reinvested (and the Borrower shall have so
notified the Administrative Agent thereof), or so used, within 360
days of receipt (it being understood that, in the event Net Cash
Proceeds from more than one Equity Issuance or Affiliate Debt
Incurrence are received by the Borrower or have been applied to the
prepayment of Revolving Credit Loans, such Net Cash Proceeds shall
be deemed to be utilized in the same order in which such Equity
Issuances and Affiliate Debt Incurrences occurred and, accordingly,
any such Net Cash Proceeds held that are not Reinvested or used, or
committed to be so Reinvested, within 360 days shall be forthwith
applied to the prepayment of Loans as provided above),
(iii) Sale of Assets. Without limiting the obligation of the
Borrower to obtain the consent of the Required Lenders pursuant to Section
6.03 to any Prepayment Disposition not otherwise permitted hereunder, in
the event that the Net Cash Proceeds of any Prepayment Disposition
(herein, the "Current Prepayment Disposition"), and of all prior
Prepayment Dispositions as to which a prepayment has not yet been made
under this paragraph, shall exceed $10,000,000 then, not later than five
Business Days prior to the occurrence of the Current Prepayment
Disposition, the Borrower will deliver to the Lenders a statement,
certified by a Financial Officer of the Borrower, in form and detail
reasonably satisfactory to the Administrative Agent, of the estimated
amount of the Net Cash Proceeds of the Current Prepayment Disposition and
of all such prior Prepayment Dispositions and will prepay the Loans
(and/or provide cover for LC Exposure as specified in Section 2.05(k)),
and/or the Commitments shall be subject to automatic
Credit Agreement
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reduction, in an aggregate amount equal to the Prepayment Percentage of
the Net Cash Proceeds of the Current Prepayment Disposition and the
applicable Prepayment Percentage of the Net Cash Proceeds of each such
prior Prepayment Disposition, such prepayment and/or reduction to be
effected in each case in the manner and to the extent specified in clause
(v) of this paragraph, provided that, notwithstanding the foregoing, the
Borrower shall not be required to make a prepayment under this clause
(iii) to the extent that
(A) the Borrower advises the Administrative Agent at the time
of the relevant Prepayment Disposition that it intends to Reinvest
such Net Cash Proceeds,
(B) such Net Cash Proceeds (if arising out of a Prepayment
Disposition of Shared Property) are held by the Collateral Trustee
in the Shared Collateral Account or (if arising out of a Prepayment
Disposition of Non-Shared Property) are held by the Administrative
Agent in the Lender Collateral Account (or, alternatively, in the
case of Net Cash Proceeds arising out of a Prepayment Disposition of
Non-Shared Property, applied to the prepayment of Revolving Credit
Loans) until so Reinvested and, in that connection, the
Administrative Agent agrees to release from the Lender Collateral
Account (and to direct the Collateral Trustee to release from the
Shared Collateral Account) any such Net Cash Proceeds that are to be
so Reinvested as described in the next following subclause (C) so
long as at the time of any such requested release either (x) no
Default or Event of Default shall have occurred and be continuing or
(y) the Required Lenders shall have consented thereto, and such Net
Cash Proceeds are required by the Borrower or a Restricted
Subsidiary to make progress or other payments in respect of such
Reinvestment (and the Borrower shall have so certified to the
Collateral Trustee or the Administrative Agent, as applicable), and
(C) such Net Cash Proceeds are in fact Reinvested or committed
pursuant to a binding agreement (subject only to customary
conditions) to be so Reinvested (and the Borrower shall have so
notified the Administrative Agent thereof) within 360 days of
receipt (it being understood that, in the event Net Cash Proceeds
from more than one Prepayment Disposition affecting Shared Property
or Non-Shared Property, as applicable, are received or have been
applied to the prepayment of Revolving Credit Loans, such Net Cash
Proceeds shall be deemed to be utilized in the same order in which
such Prepayment Dispositions affecting Shared Property and
Non-Shared Property, as applicable, occurred; the Prepayment
Percentage of any such Net Cash Proceeds not so applied or committed
to such Reinvestment within 360 days shall be forthwith applied to
the prepayment of Loans as provided above) and, in that connection,
the Administrative Agent agrees to release from the Lender
Collateral Account (and to direct the Collateral Trustee to release
from the Shared Collateral Account) any such Net Cash Proceeds that
are to be so applied.
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(iv) Permitted Debt Incurrence. Within five Business Days of any
Permitted Debt Incurrence, the Borrower shall prepay the Loans (and/or
provide cover for LC Exposure as specified in Section 2.05(k)), and/or the
Commitments shall be subject to automatic reduction, in an aggregate
amount equal to 100% of the Net Cash Proceeds thereof, provided that if
such Permitted Debt Incurrence arises out of the issuance of Permitted
Subordinated Indebtedness at a time when the Total Leverage Ratio is less
than 3.50 to 1, only 50% of such Net Cash Proceeds are required to be
applied to such prepayment and/or reduction of Commitments as provided
herein, such prepayment and/or reduction to be effected in each case in
the manner and to the extent specified in clause (v) of this paragraph.
For purposes hereof, the Total Leverage at the time of any Permitted Debt
Incurrence, shall be determined after giving pro forma effect to any
Permitted Business Acquisition that is being consummated contemporaneously
with such Permitted Debt Incurrence.
(v) Application. Prepayments and/or reductions of Commitments
pursuant to this paragraph shall be applied as follows:
first, to the Term Loans applied (x) as between each Class of
Term Loan Borrowings, pro rata in accordance with the respective
aggregate principal amounts of the Loans of such Class outstanding
on the date of prepayment and (y) as within each such Class of
Loans, to the respective installments thereof ratably in accordance
with the respective principal amounts of such installments, and
second, after the payment in full of the Term Loans and the
termination of the Term Loan Commitments, to reduce the aggregate
amount of the Revolving Credit Commitments (and to the extent that,
after giving effect to such reduction, the total Revolving Credit
Exposures would exceed the Revolving Credit Commitments, the
Borrower shall, first, prepay Swingline Loans, second, prepay
Revolving Credit Loans and third, provide cover for LC Exposure as
specified in Section 2.05(k) in an aggregate amount equal to such
excess).
Notwithstanding the foregoing, to the extent that at the time of any
prepayment described in this paragraph (b) there are any Tranche A Term
Loans outstanding, any Tranche B Term Loan Lender may, by notice to the
Borrower and the Administrative Agent delivered not later than two
Business Days prior to the date of such prepayment, decline all (but not
less than all) of the prepayment to which it would otherwise be entitled,
provided that the portion of such prepayment so declined by any such
Tranche B Term Loan Lender shall be applied to the prepayment of the
Tranche A Term Loans.
(vi) Effect of Certain Other Indebtedness. Anything in this
Agreement to the contrary notwithstanding, to the extent that the
provisions of any agreement pursuant to which any Permitted Senior
Indebtedness or Permitted Subordinated Indebtedness shall be issued shall
require a prepayment from the Net Cash Proceeds of any Casualty Event or
Prepayment Disposition in circumstances where this Agreement either does
not require such prepayment or grants a longer period in which to Reinvest
the Net Cash Proceeds of such Casualty Event or Prepayment Disposition,
the provisions of clause (i) and (iv)
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above shall be deemed to have been automatically amended to require a
prepayment of the Loans hereunder in an amount equal to such Net Cash
Proceeds prior to the date that any such prepayment of such Permitted
Senior Indebtedness or Permitted Subordinated Indebtedness shall be
required under such agreements.
(c) Notices, Etc. The Borrower shall notify the Administrative Agent
(and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days (five Business Days in the case of any mandatory
prepayment) before the date of prepayment, (ii) in the case of prepayment of a
Syndicated ABR Borrowing, not later than 11:00 a.m., New York City time, one
Business Day (five Business Days in the case of any mandatory prepayment) before
the date of prepayment or (iii) in the case of prepayment of a Swingline Loan,
not later than 12:00 noon, New York City time, on the date of prepayment. Each
such notice shall be irrevocable and shall specify the prepayment date, the
principal amount of each Borrowing or portion thereof to be prepaid, whether
such prepayment is voluntary or mandatory and, in the case of a mandatory
prepayment, a reasonably detailed calculation of the amount of such prepayment;
provided that
(i) if a notice of prepayment is given in connection with a
conditional notice of termination of the Revolving Credit Commitments as
contemplated by Section 2.08, then such notice of prepayment may be
revoked if such notice of termination is revoked in accordance with
Section 2.08,
(ii) if such prepayment arises in connection with an anticipated
mandatory prepayment to be made upon a Prepayment Disposition, such notice
of prepayment may be revoked in the event such Prepayment Disposition does
not occur on the anticipated date therefor and
(iii) if such prepayment is in an aggregate amount of $25,000,000 or
more and the Borrower indicates that such prepayment is conditioned upon
receipt of funds from another source, such notice of prepayment may be
revoked in the event such other funds are in fact not made available,
provided that the Borrower shall pay any amount required to be paid by it
under Section 2.15 as a result of the revocation of such notice of
prepayment.
Promptly following receipt of any such notice relating to a Syndicated
Borrowing, the Administrative Agent shall advise the relevant Lenders of the
contents thereof. Each partial prepayment of any Borrowing shall be in an amount
that would be permitted in the case of a Borrowing of the same Type as provided
in Section 2.02, except as necessary to apply fully the required amount of a
mandatory prepayment. Each prepayment of a Syndicated Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.12 and shall
be made in the manner specified in Section 2.09(b).
Credit Agreement
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SECTION 2.11. Fees.
(a) Commitment Fee. The Borrower agrees to pay to the Administrative
Agent for account of each Lender a commitment fee, which shall accrue at the
Applicable Rate on the average daily unused amount of the Revolving Credit
Commitment of such Lender during the period from and including the date hereof
to but excluding the earlier of the date such Revolving Credit Commitment
terminates and the Revolving Credit Commitment Termination Date. The Borrower
agrees to pay to the Administrative Agent for account of each Lender a
commitment fee, which shall accrue at the Applicable Rate on the average daily
unused amount of the Term Loan Commitments of such Lender for the period from
and including the date hereof to but not including the earlier of the date such
Term Loan Commitments terminate and the Effective Date. Accrued commitment fees
shall be payable on each Quarterly Date and on the earlier of the date the
relevant Commitments terminate and the Revolving Credit Commitment Termination
Date (in the case of the Revolving Credit Commitments) or the Effective Date (in
the case of the Term Loan Commitments), commencing on the first such date to
occur after the date hereof. All commitment fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). For purposes of computing
commitment fees with respect to the Revolving Credit Commitments, the Revolving
Credit Commitment of a Lender shall be deemed to be used to the extent of the
outstanding Revolving Credit Loans and LC Exposure of such Lender (and the
Swingline Exposure of such Lender shall be disregarded for such purpose).
(b) Letter of Credit Fees. The Borrower agrees to pay (i) to the
Administrative Agent for account of each Revolving Credit Lender a participation
fee with respect to its participations in Letters of Credit, which shall accrue
at a rate per annum equal to the Applicable Rate applicable to interest on
Revolving Credit Eurodollar Loans on the average daily amount of such Lender's
LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date on which such Lender's Revolving Credit
Commitment terminates and the date on which such Lender ceases to have any LC
Exposure, and (ii) to the Issuing Lender a fronting fee, which shall accrue at a
the rate or rates per annum separately agreed upon between the Borrower and the
Issuing Lender on the average daily amount of the LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Effective Date to but excluding the later of the date of
termination of the Revolving Credit Commitments and the date on which there
ceases to be any LC Exposure, as well as the Issuing Lender's standard fees with
respect to the issuance, amendment, renewal or extension of any Letter of Credit
or processing of drawings thereunder. Participation fees and fronting fees
accrued through and excluding each Quarterly Date shall be payable on such
Quarterly Date, commencing on the first such date to occur after the Effective
Date; provided that all such fees shall be payable on the date on which the
Revolving Credit Commitments terminate and any such fees accruing after the date
on which the Revolving Credit Commitments terminate shall be payable on demand.
Any other fees payable to the Issuing Lender pursuant to this paragraph shall be
payable within 10 days after demand. All participation fees and fronting fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).
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(c) Administrative Agent Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Borrower and the Administrative
Agent.
(d) Payment of Fees. All fees payable hereunder shall be paid on the
dates due, in immediately available funds, to the Administrative Agent (or to
the Issuing Lender, in the case of fees payable to it) for distribution, in the
case of facility fees and participation fees, to the Lenders entitled thereto.
Fees paid shall not be refundable under any circumstances.
SECTION 2.12. Interest.
(a) ABR Loans. The Loans constituting each ABR Borrowing (including
each Swingline Loan) shall bear interest at a rate per annum equal to the
Alternate Base Rate plus the Applicable Rate.
(b) Eurodollar Loans. The Loans constituting each Eurodollar
Borrowing shall bear interest at a rate per annum equal to the Adjusted LIBO
Rate for the Interest Period for such Borrowing plus the Applicable Rate.
(c) Default Interest. Notwithstanding the foregoing, (i) during any
period that an Event of Default has occurred and is continuing (unless the same,
whether before or after the occurrence of such Event of Default, shall be waived
by the Required Lenders), the Loans shall bear interest, after as well as before
judgment, at a rate per annum equal to 2% plus the rate otherwise applicable to
such Loan as provided above and (ii) if any fee or other amount (other than
principal) payable by the Borrower hereunder is not paid when due, such overdue
amount shall bear interest, after as well as before judgment, at a rate per
annum equal to 2% plus the rate applicable to ABR Loans as provided in paragraph
(a) of this Section.
(d) Payment of Interest. Accrued interest on each Loan shall be
payable in arrears on each Interest Payment Date for such Loan and, in the case
of Revolving Credit Loans, upon termination of the Revolving Credit Commitments;
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 (other than a prepayment of a Revolving Credit ABR Loan prior to the
Revolving Credit Commitment Termination Date), 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 Eurodollar Borrowing
prior to the end of the Interest Period therefor, accrued interest on such
Borrowing shall be payable on the effective date of such conversion.
(e) Computation. All interest hereunder shall be computed on the
basis of a year of 360 days, except that interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the Prime
Rate 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 Alternate
Base Rate or Adjusted LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.
Credit Agreement
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SECTION 2.13. Alternate Rate of Interest. If prior to the
commencement of the Interest Period for any Eurodollar Borrowing:
(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 for such Interest
Period; or
(b) if such Borrowing is of a particular Class of Loans, the
Administrative Agent is advised by the Required Lenders of such Class that
the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders of making or maintaining their
respective Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower 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 Syndicated Borrowing to, or
the continuation of any Syndicated Borrowing as, a Eurodollar Borrowing shall be
ineffective and such Syndicated Borrowing (unless prepaid) shall be continued
as, or converted to, a Syndicated ABR Borrowing and (ii) if any Borrowing
Request requests a Eurodollar Borrowing, such Borrowing shall be made as a
Syndicated ABR Borrowing.
SECTION 2.14. Increased Costs.
(a) Increased Costs Generally. 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 account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or the Issuing Lender; or
(ii) impose on any Lender or the Issuing Lender or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lenders of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Lender of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received or receivable by such Lender or the
Issuing Lender hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or the Issuing Lender, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing
Lender, as the case may be, for such additional costs incurred or reduction
suffered.
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(b) Capital Requirements. If any Lender or the Issuing Lender
determines that any Change in Law regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender's or the Issuing
Lender's capital or on the capital of such Lender's or the Issuing Lender's
holding company, if any, as a consequence of this Agreement or the Loans made
by, or participations in Letters of Credit held by, such Lender, or the Letters
of Credit issued by the Issuing Lender, to a level below that which such Lender
or the Issuing Lender or such Lender's or the Issuing Lender's holding company
could have achieved but for such Change in Law (taking into consideration such
Lender's or the Issuing Lender's policies and the policies of such Lender's or
the Issuing Lender's holding company with respect to capital adequacy), then
from time to time the Borrower will pay to such Lender or the Issuing Lender, as
the case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Lender or such Lender's or the Issuing Lender's holding
company for any such reduction suffered.
(c) Certificates from Lenders. A certificate of a Lender or the
Issuing Lender setting forth the amount or amounts necessary to compensate such
Lender or the Issuing Lender or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender or the Issuing Lender, as the case may be, the amount shown as due
on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or
the Issuing Lender to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or the Issuing Lender's right to demand
such compensation; provided that the Borrower shall not be required to
compensate a Lender or the Issuing Lender pursuant to this Section for any
increased costs or reductions incurred more than six months prior to the date
that such Lender or the Issuing Lender, as the case may be, notifies the
Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender's or the Issuing 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 six-month period referred
to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.15. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period therefor (including as a result of an Event of Default), (b) the
conversion of any Eurodollar Loan other than on the last day of an Interest
Period therefor, (c) the failure to borrow, convert, continue or prepay any
Syndicated Loan on the date specified in any notice delivered pursuant hereto
(regardless of whether such notice is permitted to be revocable under Section
2.10(c) and is revoked in accordance therewith), or (d) the assignment as a
result of a request by the Borrower pursuant to Section 2.18(b) of any
Eurodollar Loan other than on the last day of an Interest Period therefor, then,
in any such event, the Borrower shall compensate each Lender for the loss (other
than the portion thereof attributable to Applicable Margin), cost and expense
attributable to such event. In the case of a Eurodollar Loan, the loss to any
Lender attributable to any such event shall be deemed to include an amount
determined by such Lender to be equal to the excess, if any, of (i) the amount
of interest that such Lender would pay for a deposit equal to the principal
amount of such Loan for the period from the date of such payment, conversion,
failure
Credit Agreement
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or assignment to the last day of the then current Interest Period for such Loan
(or, in the case of a failure to borrow, convert or continue, the duration of
the Interest Period that would have resulted from such borrowing, conversion or
continuation) if the interest rate payable on such deposit were equal to the
Adjusted LIBO Rate for such Interest Period, over (ii) the amount of interest
that such Lender would earn on such principal amount for such period if such
Lender were to invest such principal amount for such period at the interest rate
that would be bid by such Lender (or an affiliate of such Lender) for Dollar
deposits from other banks in the eurodollar market at the commencement of such
period. 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 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.
SECTION 2.16. Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of
any obligation of the Borrower hereunder or under any other Loan Document shall
be made free and clear of and without deduction for any Indemnified Taxes or
Other Taxes; provided that if the Borrower 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, Lender or Issuing Lender (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. In addition, the
Borrower shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall indemnify
the Administrative Agent, each Lender and the Issuing Lender, within 10 days
after written demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or the Issuing Lender, as the case may be, and
any penalties, interest and 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 the
Borrower by a Lender or the Issuing Lender, or by the Administrative Agent on
its own behalf or on behalf of a Lender or the Issuing Lender, shall be
conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment
of Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower 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.
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(e) Foreign Lenders. Any Foreign Lender, to the extent entitled to
do so under applicable law, shall furnish to the Borrower on the Effective Date
(or on the date (a "Foreign Lender Date") on which such Foreign Lender first
becomes a Lender), (a) in the case of a Foreign Lender that is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Code, (i) a certificate
substantially in the form of Exhibit J, (ii) two executed copies of IRS Form
W-8, certifying to such Lender's legal entitlement at the Closing Date (or such
Foreign Lender Date) to an exemption from U.S. withholding tax under the
provisions of Section 881(c) of the Code with respect to all payments to be made
under the Loan Documents, and (iii) upon reasonable request of the Borrower,
such other forms as may be reasonably required in order to establish the legal
entitlement of such Foreign Lender to an exemption from withholding with respect
to payments under the Loan Documents, and (b) in the case of a Foreign Lender
that is a "bank" within the meaning of Section 881(c)(3)(A) of the Code,
certification to the effect that such Foreign Lender is entitled to receive all
amounts payable under the Loan Documents without deduction or withholding (or at
a reduced rate of deduction or withholding) on account of Taxes imposed by the
United States (i) pursuant to the terms of an applicable tax treaty in effect
with the United States of America (in which case such certification shall be
made by delivering two duly executed copies of IRS Form W-8BEN), or (ii) under
Code Section 1441(c) (in which case such certification shall be made by
delivering two duly executed copies of IRS Form W-8 ECI) (such forms under
clauses (a) and (b) of this sentence being the "Prescribed Forms"). If requested
by the Borrower from time to time after the Effective Date (upon the
obsolescence of any previously delivered form or otherwise), a Foreign Lender
shall, to the extent entitled thereto under applicable law, provide to the
Borrower new Prescribed Forms, in each case duly executed and completed by such
Foreign Lender.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.
(a) Payments by the Borrower. The Borrower shall make each payment
required to be made by it hereunder (whether of principal, interest, fees or
reimbursement of LC Disbursements, or under Section 2.14, 2.15 or 2.16, or
otherwise) or under any other Loan Document (except to the extent otherwise
provided therein) prior to 12:00 noon, New York City time, on the date when due,
in immediately available funds, without 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 at its offices at Eleven ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ / Agency Group, except
as otherwise expressly provided in the relevant Loan Document and except
payments to be made directly to the Issuing Lender or the Swingline Lender as
expressly provided herein and payments pursuant to Sections 2.14, 2.15, 2.16 and
9.03, which shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for
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 or
under any other Loan Document (except to the extent otherwise provided therein)
shall be made in Dollars.
Credit Agreement
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(b) Application of Insufficient Payments. If at any time
insufficient funds are received by and available to the Administrative Agent to
pay fully all amounts of principal, unreimbursed LC Disbursements, interest and
fees then due hereunder, such funds shall be applied (i) first, to pay interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, to pay principal and unreimbursed LC Disbursements then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise provided
herein: (i) each Syndicated Borrowing of a particular Class shall be made from
the relevant Lenders, each payment of commitment fee under Section 2.11 in
respect of Commitments of a particular Class shall be made for account of the
relevant Lenders, and each termination or reduction of the amount of the
Commitments of a particular Class under Section 2.08 shall be applied to the
respective Commitments of such Class of the relevant Lenders, pro rata according
to the amounts of their respective Commitments of such Class; (ii) each
Syndicated Borrowing of any Class shall be allocated pro rata among the relevant
Lenders according to the amounts of their respective Commitments of such Class
(in the case of the making of Syndicated Loans) or their respective Loans of
such Class that are to be included in such Borrowing (in the case of conversions
and continuations of Loans); (iii) each payment or prepayment of principal of
Revolving Credit Loans, Tranche A Term Loans and Tranche B Term Loans by the
Borrower shall be made for account of the relevant Lenders pro rata in
accordance with the respective unpaid principal amounts of the Syndicated Loans
of such Class held by them; and (iv) each payment of interest on Revolving
Credit Loans, Tranche A Term Loans and Tranche B Term Loans by the Borrower
shall be made for account of the relevant Lenders pro rata in accordance with
the amounts of interest on such Loans then due and payable to the respective
Lenders.
(d) Sharing of Payments by Lenders. If any Lender shall, by
exercising any right of set-off or counterclaim or otherwise (including through
the sale of an assignment or participation in the Term Loans or Revolving Credit
Exposure to the Borrower, any Permitted Holder or any Affiliate or Subsidiary of
the Borrower or any Permitted Holder and including through realization by a Term
Lender of the proceeds of foreclosure on real property subject to the Mortgage
to cover property in the State of New York), obtain payment in respect of any
principal of or interest on any of its Syndicated Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Syndicated Loans and
participations in LC Disbursements and Swingline Loans and accrued interest
thereon then due 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 Syndicated Loans and participations in LC Disbursements
and Swingline 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
Syndicated Loans and participations in LC Disbursements and Swingline 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
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of this paragraph 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 or participations in LC
Disbursements to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this paragraph
shall apply). The Borrower (and each Obligor pursuant to Section 3.09 of the
Guarantee Agreement) 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 such
Obligor rights of set-off and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of such Obligor in the amount of
such participation
(e) Presumptions of Payment. 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 account of the Lenders or the Issuing Lender
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 or
the Issuing Lender, as the case may be, the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders or the
Issuing Lender, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or the Issuing 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 Federal Funds Effective Rate.
(f) Certain Deductions by the Administrative Agent. If any Lender
shall fail to make any payment required to be made by it pursuant to Section
2.04(c), 2.05(e), 2.06(b) or 2.17(e), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for account of such Lender to
satisfy such Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender
requests compensation under Section 2.14, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for account of
any Lender pursuant to Section 2.16, 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 judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.14 or 2.16, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation
under Section 2.14, or if the Borrower is required to pay any additional amount
to any Lender or any
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Governmental Authority for account of any Lender pursuant to Section 2.16, or if
any Lender defaults in its obligation to fund Loans hereunder, 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 (and,
if a Revolving Credit Commitment is being assigned, the Issuing Lender and the
Swingline Lender), 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 and participations in LC Disbursements and Swingline
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 2.14 or payments required to be made pursuant to
Section 2.16, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that on the date
hereof and on the date of any Borrowing, on the date of any issuance, amendment,
renewal or extension of any Letter of Credit, and at such other times as the
Borrower shall agree in writing:
SECTION 3.01. Organization; Powers. Each of the Borrower and its
Restricted Subsidiaries is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, has all requisite power
and authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Transactions are
within each Obligor's corporate powers and have been duly authorized by all
necessary corporate and, if required, by all necessary shareholder action. This
Agreement has been duly executed and delivered by the Borrower and constitutes,
and each of the other Loan Documents to which it is a party when executed and
delivered by each Obligor will constitute, a legal, valid and binding obligation
of such Obligor, enforceable against each Obligor in accordance with its terms,
except as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general applicability
affecting the enforcement of creditors' rights and (b) the application of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
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SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except for (i) such as have
been obtained or made and are in full force and effect, (ii) filings and
recordings in respect of the Liens created pursuant to the Security Documents,
(iii) such FCC consents, approvals, registrations, and filings as may be
required in connection with the exercise of rights under the Security Documents
following an Event of Default, (iv) such FCC consents, approvals, registrations,
and filings as may be required in the ordinary course of business of the
Borrower and its Subsidiaries in connection with the use of proceeds of the
Loans hereunder, and (v) such licenses, approvals, authorizations and consents
as may be required by the U.S. Department of State pursuant to the International
Traffic in Arms Regulations and the U.S. Department of Commerce pursuant to the
Export Administration Regulations in connection with the exercise of rights
hereunder and under the Security Documents following an Event of Default, (b)
will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of the Borrower or any of its Restricted
Subsidiaries or any order of any Governmental Authority, (c) will not violate or
result in a default under any indenture or any material agreement or other
material instrument binding upon the Borrower or any of its Restricted
Subsidiaries or assets, or give rise to a right thereunder to require any
payment to be made by any such Person under any such material agreement or
instrument (it being understood that, in the case of agreements included in the
collateral security under the Security Documents that require the consent or
approval of a third party thereto to an assignment of such agreement or the
property subject thereto, or otherwise impose conditions on such assignment,
that such consent or approval will need to be obtained or such conditions
satisfied prior to or upon any such assignment upon an exercise by the
Administrative Agent or the Collateral Trustee, as applicable, of its rights and
remedies under such Security Documents), and (d) except for the Liens created
pursuant to the Security Documents, will not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Restricted
Subsidiaries.
SECTION 3.04. Financial Condition; No Material Adverse Change.
(a) Financial Condition. The Borrower has heretofore furnished to
the Lenders the consolidated balance sheet and statements of income,
stockholders' equity and cash flows of the Borrower and its Subsidiaries (and,
separately stated, of the Borrower and its Restricted Subsidiaries) (i) as of
and for the fiscal year ended December 31, 2000, reported on by Deloitte &
Touche, independent public accountants, and (ii) as of and for the fiscal
quarter and the portion of the fiscal year ended September 30, 2001, certified
by the chief financial officer of the Borrower. Such financial statements
present fairly, in all material respects, the financial position and results of
operations and cash flows of the Borrower and its Subsidiaries as of such dates
and for such periods in accordance with GAAP, subject to year-end audit
adjustments and the absence of footnotes in the case of the statements referred
to in clause (ii) of the first sentence of this paragraph.
(b) No Material Adverse Change. Since September 30, 2001, there has
been no material adverse change in the business, assets, operations or
condition, financial or otherwise, of the Borrower and its Restricted
Subsidiaries, taken as a whole (other than general economic conditions which
have not yet affected the business, assets, operations or condition, financial
or
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otherwise, of the Borrower and its Restricted Subsidiaries, taken as a whole,
and other than any such change or condition (i) resulting from the EchoStar
Combination Transaction (as the same is contemplated under the respective
agreements referred to in the definition of such term in Section 1.01) and any
impact on the Borrower from the tax deconsolidation expected to result
therefrom, (ii) resulting from the downgrading prior to the fourth quarter of
2001 of the credit rating for the Borrower's debt securities or (iii) resulting
from ▇▇▇▇▇▇' request that the Borrower consummate the Refinancing).
SECTION 3.05. Properties.
(a) Property Generally. Each of the Borrower and its Restricted
Subsidiaries has good title to, or a valid leasehold interest in, all its real
and personal property material to its business, subject only to Liens permitted
by Section 6.02 and 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 for their intended purposes.
(b) Intellectual Property. Each of the Borrower and its Restricted
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, patents and other intellectual property material to its business,
and the use thereof by the Borrower and its Restricted Subsidiaries does not
infringe upon the rights of any other Person, except for any such infringements
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters.
(a) Actions, Suits and Proceedings. Other than the Disclosed
Matters, there are no actions, suits or proceedings by or before any arbitrator
or Governmental Authority now pending against or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect (other
than the Disclosed Matters) or (ii) that involve this Agreement or the
Transactions.
(b) Environmental Matters. Except for the Disclosed Matters and
except with respect to any other matters that, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect, neither
the Borrower nor any of its Restricted Subsidiaries (i) has failed to comply
with any Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required under any Environmental Law, (ii) has become
subject to any Environmental Liability, (iii) has received notice of any claim
with respect to any Environmental Liability or (iv) knows of any basis for any
Environmental Liability.
(c) Disclosed Matters. Since the date of this Agreement, there has
been no change in the status of the Disclosed Matters that, individually or in
the aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
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SECTION 3.07. Compliance with Laws and Agreements. Each of the
Borrower and its Restricted Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority applicable to it or its
property and all indentures, agreements and other instruments binding upon it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither the
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. On the date hereof, the Borrower and its
Domestic Restricted Subsidiaries are members of an affiliated group of
corporations filing consolidated returns for Federal income tax purposes, of
which General Motors is the "common parent" (within the meaning of Section 1502
of the Code) of such group. As of the date hereof, the only tax sharing, tax
allocation or similar arrangement in effect providing for the manner in which
tax payments owing by the Borrower and its Subsidiaries (whether in respect of
Federal or State income or other taxes) are allocated among the members of such
group is an arrangement between the Borrower and ▇▇▇▇▇▇ consistent with the
terms of Section 6.07(d)(i). Each of the Borrower and its Subsidiaries has
timely filed or caused to be filed (either directly or indirectly through a
common parent) all Tax returns and reports required to have been filed and has
paid or caused to be paid all Taxes required to have been paid by it, except (a)
Taxes that are being contested in good faith by appropriate proceedings and for
which such Person has in the reasonable opinion of the Borrower set aside on its
books adequate reserves or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87), individually and in the
aggregate, did not, as of the date of the most recent financial statements
reflecting such amounts, exceed the fair market value of the assets of such Plan
or Plans by an amount which could reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.11. Disclosure. As of the date hereof, the Borrower has
disclosed to the Lenders all agreements, instruments and corporate or other
restrictions to which it or any of its Restricted Subsidiaries is subject, and
all other matters (other than general economic conditions or the effects (i)
resulting from the EchoStar Combination Transaction (as the same is contemplated
under the respective agreements referred to in the definition of such term in
Section 1.01) and any impact on the Borrower from the tax deconsolidation
expected to result therefrom, (ii) resulting from the downgrading prior to the
fourth quarter of 2001 of the credit rating for the Borrower's debt securities
or (iii) resulting from ▇▇▇▇▇▇' request that the Borrower consummate the
Refinancing) known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. The written
reports, financial
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statements, certificates and other written information furnished by or on behalf
of the Obligors to the Lenders in connection with the negotiation of this
Agreement and the other Loan Documents or delivered hereunder or thereunder (as
modified or supplemented by other information so furnished), taken as a whole,
contain no material misstatement of fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (it being understood that the
Borrower does not represent and warrant pursuant to this Section that the
financial statements, taken alone, satisfy the provisions of this sentence);
provided that, with respect to projected financial information, the Borrower
represents only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time, it being understood that
projections are subject to significant uncertainties and contingencies, many of
which are beyond the Borrower's control, and that no assurance can be given that
such projections will be realized. For purposes of this Section 3.11 as of the
date hereof, (i) the Offering Memorandum and (ii) all information contained in
SEC filings by the Borrower or any Person with which the Borrower is
consolidated on its financial statements shall be deemed disclosed to the
Lenders.
SECTION 3.12. Use of Credit. Neither the Borrower nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of
any extension of credit hereunder will be used to buy or carry any Margin Stock.
SECTION 3.13. Material Agreements and Liens.
(a) Material Agreements. Part A of Schedule II is a complete and
correct list as of the date hereof of each credit agreement, loan agreement,
indenture, purchase agreement, guarantee, letter of credit or other arrangement
providing for or otherwise relating to any Indebtedness or any extension of
credit (or commitment for any extension of credit) to, or guarantee by, the
Borrower or any of its Restricted Subsidiaries outstanding on the date hereof
the aggregate principal or face amount of which equals or exceeds (or may equal
or exceed) $5,000,000, and the aggregate principal or face amount outstanding or
that may become outstanding as of the date hereof under each such arrangement is
correctly described in Part A of Schedule II.
(b) Liens. Part B of Schedule II is a complete and correct list of
each Lien securing Indebtedness of any Person outstanding on the date hereof the
aggregate principal or face amount of which equals or exceeds (or may equal or
exceed) $5,000,000 and covering any property of the Borrower or any of its
Restricted Subsidiaries, and the aggregate Indebtedness secured (or that may be
secured) as of the date hereof by each such Lien and the property covered by
each such Lien is correctly described in Part B of Schedule II.
SECTION 3.14. Capitalization. The authorized capital stock of the
Borrower consists, on the date hereof, of an aggregate of 400,000,000 shares of
common stock, par value $0.01 per share, of which 149,675,117 shares are duly
and validly issued and outstanding, each of which shares is fully paid and
nonassessable. As of the date hereof 80.6% of such issued and outstanding shares
of common stock are owned beneficially and of record by the Sellers, each of
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which is a direct or an indirect, wholly-owned subsidiary of General Motors. As
of the date hereof, (x) except as set forth on Schedule X, there are no
outstanding Equity Rights with respect to the Borrower and (y) there are no
outstanding obligations of the Borrower or any of its Restricted Subsidiaries to
repurchase, redeem, or otherwise acquire any shares of capital stock of the
Borrower nor are there any outstanding obligations of the Borrower or any of its
Restricted Subsidiaries to make payments to any Person, such as "phantom stock"
payments, where the amount thereof is calculated with reference to the fair
market value or equity value of the Borrower or any of its Restricted
Subsidiaries.
SECTION 3.15. Subsidiaries and Investments.
(a) Subsidiaries. Set forth in Part A of Schedule VI is a complete
and correct list of all of the Subsidiaries of the Borrower as of the date
hereof, together with, for each such Subsidiary, (i) the jurisdiction of
organization of such Subsidiary, (ii) each Person holding ownership interests in
such Subsidiary and the nature of the ownership interests held by each such
Person and the percentage of ownership of such Subsidiary represented by such
ownership interests, (iii) whether such Subsidiary is a Restricted Subsidiary or
an Unrestricted Subsidiary hereunder and (iv) whether such Subsidiary is a
"Restricted Subsidiary" under the Senior 1998 Notes Indenture. Except as
disclosed in Part A of Schedule VI, as of the date hereof (x) each of the
Borrower and its Subsidiaries owns, free and clear of Liens (other than Liens
created pursuant to the Security Documents), and has the unencumbered right to
vote, all outstanding ownership interests in each Person shown to be held by it
in Part A of Schedule VI, (y) all of the issued and outstanding capital stock or
other ownership interests of each such Person organized as a domestic
corporation is validly issued, fully paid and nonassessable and (z) there are no
outstanding Equity Rights with respect to such Person.
(b) Investments. Set forth in Part B of Schedule VI is a complete
and correct list of all Investments (other than Investments disclosed in Part A
of Schedule VI and other than Investments of the types referred to in clauses
(b), (c), (d), (e), (f), (g), (h), (i) and (k) of Section 6.05) held by the
Borrower or any of its Restricted Subsidiaries in any Person on the date hereof
and, for each such Investment, (x) the identity of the Person or Persons holding
such Investment and (y) the nature of such Investment. Except as disclosed in
Part B of Schedule VI, as of the date hereof each of the Borrower and its
Restricted Subsidiaries owns, free and clear of all Liens (other than Liens
created pursuant to the Security Documents and other than Permitted
Encumbrances), all such Investments.
(c) Restrictions on Subsidiaries. None of the Restricted
Subsidiaries of the Borrower is, on the date hereof, subject to any indenture,
agreement, instrument or other arrangement of the type described in Section 6.08
(except as otherwise permitted thereunder).
SECTION 3.16. Real Property. Set forth on Schedule VIII is a list,
as of the date hereof, of all of the real property interests held by the
Borrower and its Restricted Subsidiaries, indicating in each case whether the
respective property is owned or leased, the identity of the owner or lessee, the
location of the respective property, whether it constitutes "Principal Property"
as defined in the Senior 1998 Notes Indenture, whether any tracking, telemetry,
control and monitoring or teleport facility of the Borrower or any of its
Restricted Subsidiaries is
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situated on such property and whether the properties are to be subject to the
Lien of a Mortgage on the Effective Date. As of the date hereof, no Mortgage
will encumber the portion of any real property on which improvements are located
if (i) all or any part of such portion has been identified by the Director of
the Federal Emergency Management Agency as a special flood hazard zone described
in 12 C.F.R. ss. 22.2 and (ii) such portion is in an area in which flood
insurance has been made available under the National Flood Insurance Act of
1968, without flood insurance covering the improvements located on such portion
of real property being maintained in at least the amount required under the
National Flood Insurance Reform Act of 1994.
SECTION 3.17. FCC Licenses, Etc. As of the date hereof, Schedule VII
accurately and completely lists for each Satellite (a) all space station
licenses for the launch and operation of Satellites with C-band or Ku-band
transponders issued by the FCC to the Borrower or any Restricted Subsidiary and
(b) all licenses and all other approvals, orders or authorizations issued or
granted by any Governmental Authority outside of the United States of America to
launch and operate any such Satellite. As of the date hereof, the FCC Licenses
and the other licenses, approvals or authorizations listed on Schedule VII with
respect to any Satellite include all material authorizations, licenses and
permits issued by the FCC or any other Governmental Authority that are required
or necessary to launch or operate such Satellite, as applicable. Except as
otherwise permitted by Section 6.04, each of the Subject Licenses is held in the
name of a License Subsidiary and is validly issued and in full force and effect,
and the Borrower and its Restricted Subsidiaries have fulfilled and performed in
all material respects all of their obligations with respect thereto and have
full power and authority to operate thereunder.
SECTION 3.18. Satellites. Schedule XI accurately and completely list
as of the date hereof each of the Satellites owned by the Borrower and its
Restricted Subsidiaries on the date hereof, and setting forth for each such
Satellite that is in orbit, the orbital slot and number and frequency band of
the transponders on such Satellite.
SECTION 3.19. Solvency. Each Obligor is, and after giving effect to
the incurrence of all Indebtedness and obligations being incurred in connection
herewith will be and will continue to be Solvent. For purposes hereof,
"Solvent", when used with respect to any Person, means that, as of any date of
determination, (a) the amount of the "present fair saleable value" of the assets
of such Person will, as of such date, exceed the amount of all "liabilities of
such Person, contingent or otherwise", as of such date, as such quoted terms are
determined in accordance with applicable federal and state laws governing
determinations of the insolvency of debtors, (b) the present fair saleable value
of the assets of such Person will, as of such date, be greater than the amount
that will be required to pay the liability of such Person on its debts as such
debts become absolute and matured, (c) such Person will not have, as of such
date, an unreasonably small amount of capital with which to conduct its
business, and (d) such Person will be able to pay its debts as they mature. For
purposes of this definition, (i) "debt" means liability on a "claim", and (ii)
"claim" means any (x) right to payment, whether or not such a right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such
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right to an equitable remedy is reduced to judgment, fixed, contingent, matured
or unmatured, disputed, undisputed, secured or unsecured.
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date. The obligations of the Lenders to make
Loans and of the Issuing Lender to issue Letters of Credit hereunder shall not
become effective until the date on which the Administrative Agent shall have
received each of the following documents, each of which shall be satisfactory to
the Administrative Agent (and to the extent specified below, to the Required
Lenders or to each Lender) in form and substance (or such condition shall have
been waived in accordance with Section 9.02):
(a) Executed Counterparts. 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 to this
Agreement) that such party has signed a counterpart of this Agreement.
(b) Opinions of Counsel to the Obligors. Favorable written opinions
(addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of (i) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the
Obligors, substantially in the form of Exhibit G, (ii) Finn, Dixon &
▇▇▇▇▇▇▇, LLP, Connecticut counsel for the Borrower (which opinion shall
cover matters relating to the law of Connecticut not covered in the
opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇), and (iii) Goldberg, Godles, Wiener &
▇▇▇▇▇▇, special communications counsel for the Borrower, substantially in
the form of Exhibit H, and in each case covering such other matters
relating to the Borrower, this Agreement or the Transactions as the
Required Lenders shall reasonably request (and the Borrower hereby
instructs such counsel to deliver such opinions to the Lenders and the
Administrative Agent).
(c) Opinions of Local Counsel. Opinions, dated the Effective Date,
of local counsel in the respective states in which the properties covered
by the Mortgages are located, in such form as shall be reasonably
satisfactory to the Administrative Agent, and in each case covering such
matters as the Administrative Agent may reasonably request (and the
Borrower hereby instructs such counsel to deliver such opinions to the
Lenders and the Administrative Agent).
(d) Opinion of Special New York Counsel to CSFB. An opinion, dated
the Effective Date, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New
York counsel to the Joint Arrangers, substantially in the form of Exhibit
I (and CSFB hereby instructs such counsel to deliver such opinion to the
Lenders).
(e) Corporate Documents. Such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and
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good standing of each Obligor, the authorization of the Transactions and
any other legal matters relating to the Obligors, this Agreement or the
Transactions, all in form and substance satisfactory to the Administrative
Agent and its counsel.
(f) Officer's Certificate. A certificate, dated the Effective Date
and signed by the President, a Vice President or a Financial Officer of
the Borrower, confirming compliance with the conditions set forth in the
lettered clauses of the first sentence of Section 4.02.
(g) Guarantee Agreement. The Guarantee Agreement, duly executed and
delivered by the respective Persons contemplated to be party thereto.
(h) Security Agreements; Intercreditor and Collateral Trust
Agreement. The Lender Security Agreement, the Shared Security Agreement
and the Intercreditor and Collateral Trust Agreement, in each case duly
executed and delivered by the respective parties thereto, together with
evidence that the certificates and instruments identified under the name
of the respective Obligors in Annex 3 to the Shared Security Agreement
shall have been delivered to the Collateral Trustee, in each case
accompanied by undated stock powers or endorsements executed in blank
(provided that the Obligors need not deliver certificates evidencing any
equity interest in a Foreign Subsidiary if (i) such certificates cannot on
the Effective Date be located, so long as the Borrower agrees with the
Administrative Agent to cause such certificates accompanied by undated
stock powers or endorsements executed in blank to be delivered within 30
days of the Effective Date, or such longer period, but not in any event
longer than 90 days, as shall be satisfactory to the Administrative Agent
or (ii) such equity interests are uncertificated or, under applicable law,
may not be held in New York). In addition, the Borrower and each
Subsidiary Guarantor shall have taken such other action (including
executing and delivering control agreements pursuant to Section 4.01 of
each of the Lender Security Agreement and the Shared Security Agreement)
as the Administrative Agent shall have reasonably requested in order to
perfect the Liens created pursuant to each Security Agreement to the
extent required thereunder and to preserve the validity thereof.
(i) Mortgages and Title Reports. The following documents, each of
which shall be duly executed on behalf of the respective Obligor party
thereto (and, where appropriate, acknowledged) by Persons reasonably
satisfactory to the Administrative Agent:
(i) the Mortgages, duly executed and delivered by the
respective Obligors that own or lease the properties identified in
Schedule VIII that are to be subject to the Lien of a Mortgage, in
each case in recordable form (in such number of copies as the
Administrative Agent shall have requested) and, to the extent
necessary with respect to any leasehold property to be subjected to
a Mortgage, consents of the respective landlords with respect to
such property;
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(ii) reports from one or more title companies with respect to
each of the real property interests to be covered by the Mortgages
satisfactory to the Administrative Agent; and
(iii) to the extent available to the Borrower, as-built
surveys of recent date of each of the facilities to be covered by
the Mortgages.
In addition, the Borrower shall have paid to the respective title
companies (x) all expenses of such title companies in connection with the
issuance of such reports and (y) an amount equal to the recording and
stamp taxes payable in connection with recording the Mortgages in the
appropriate county land office(s).
(j) Insurance. Certificates of insurance evidencing the existence of
all insurance required to be maintained by the Borrower pursuant to
Section 5.06 and, if applicable, the designation of the Administrative
Agent and the Collateral Trustee, as applicable, as an additional insured
and loss payee as its interest may appear thereunder, or solely as the
additional insured, as the case may be, thereunder, such certificates to
be in such form and contain such information as is specified in Section
5.06 (provided that if such endorsement as additional insured cannot be
delivered by the Effective Date, the Administrative Agent may consent to
such endorsement being delivered at such later date as it deems
appropriate in the circumstances). In addition, the Borrower shall have
delivered (i) a certificate of a Financial Officer of the Borrower setting
forth the insurance obtained by it in accordance with the requirements of
Section 5.06 and stating that such insurance is in full force and effect
and that all premiums then due and payable thereon have been paid and (ii)
a written report, dated reasonably near the date the Loans are being made,
of ▇▇▇▇▇ USA, Inc., or any other firm of independent insurance brokers of
nationally recognized standing, as to Launch Insurance and In-Orbit
Insurance and stating that such Insurance is in compliance with the
provisions of Section 5.06.
(k) Senior 2002 Notes. Evidence that the Borrower shall have
received gross cash proceeds in an amount at least equal to $800,000,000
from the issuance of senior unsecured notes containing terms (including
maturity, covenants, events of default and mandatory prepayment
provisions) consistent with the Description of Notes set forth in the
Offering Memorandum.
(l) Repayment of Existing Indebtedness. Evidence that the
Refinancing shall have been consummated. In addition, the Administrative
Agent shall have received evidence (x) of the termination of the
commitments under the existing $500,000,000 Credit Agreement dated as of
February 20, 1998 among the Borrower, the lenders party thereto and
Citicorp USA, Inc., as administrative agent for said lenders, and the
payment of all amounts owing thereunder, and (y) that the principal of and
interest on, and all other amounts owing in respect of, the Indebtedness
(including any contingent or other amounts payable in respect of letters
of credit) indicated on Schedule II that is to be repaid on the Effective
Date shall have been (or shall be simultaneously) paid in full, that any
commitments to extend credit under the agreements or instruments relating
to such Indebtedness shall have been canceled or terminated and that all
Guarantees in respect of,
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and all Liens securing, any such Indebtedness shall have been released (or
arrangements for such release satisfactory to the Administrative Agent
shall have been made).
(m) Satellite Manufacturer Consent Agreements. To the extent
requested by the Administrative Agent, certified copies of a notice from
the Borrower to any Satellite Manufacturer of the security interest
created in the relevant Satellite Purchase Agreement for the benefit of
the Administrative Agent and the Collateral Trustee, as applicable,
together with such Satellite Manufacturer's signed acknowledgment of the
receipt thereof.
(n) Other Documents. Such other documents as the Administrative
Agent or any Lender or special New York counsel to CSFB may reasonably
request.
The obligation of each Lender to make its initial extension of
credit hereunder is also subject to the payment by the Borrower of such fees as
the Borrower shall have agreed to pay to any Lender or the Administrative Agent
in connection herewith, including the reasonable fees and expenses of Milbank,
Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New York counsel to the Joint Arrangers, in
connection with the negotiation, preparation, execution and delivery of this
Agreement and the other Loan Documents and the extensions of credit hereunder
(to the extent that statements in reasonable detail for such fees and expenses
have been delivered to the Borrower at least one Business Day prior to the
Effective Date).
The Administrative Agent shall notify the Borrower and the Lenders
of the Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
of the Issuing Lender to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) on or prior to 3:00 p.m., New York City time, on March
29, 2002 (and, in the event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to
make any Loan, and of the Issuing Lender to issue, amend, renew or extend any
Letter of Credit, is additionally subject to the satisfaction of the following
conditions:
(a) the representations and warranties of the Borrower set forth in
this Agreement, and of each Obligor in each of the other Loan Documents to
which it is a party, shall be true and correct on and as of the date of
such Loan or the date of issuance, amendment, renewal or extension of such
Letter of Credit, as applicable (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, as
of such specific date); and
(b) at the time of and immediately after giving effect to such Loan
or the issuance, amendment, renewal or extension of such Letter of Credit,
as applicable, no Default shall have occurred and be continuing.
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Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in the preceding
sentence.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The
Borrower will furnish to the Administrative Agent (which shall promptly upon
receipt thereof provide a copy thereof to each Lender):
(a) within 120 days after the end of each fiscal year of the
Borrower (or on such earlier date as such financial information shall be
filed with the SEC), the audited consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows of the
Borrower and its Subsidiaries (and, separately stated, unaudited
statements of the Borrower and its Restricted Subsidiaries) as of the end
of and for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by Deloitte & Touche
or other independent public accountants of recognized national standing
(without a "going concern" or like qualification or exception and without
any qualification or exception as to the scope of such audit) to the
effect that such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of the
Borrower and its Subsidiaries (or, as the case may be, the Borrower and
its Restricted Subsidiaries) on a consolidated basis in accordance with
GAAP consistently applied;
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower (or on such earlier date as
such financial information shall be filed with the SEC), the consolidated
balance sheet and related statements of operations, stockholders' equity
and cash flows of the Borrower and its Subsidiaries (and, separately
stated, unaudited statements of the Borrower and its Restricted
Subsidiaries) as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, setting forth in each case in
comparative form the figures for (or, in the case of the balance sheet, as
of the end of) the corresponding period or periods of the previous fiscal
year, all certified by a Financial Officer of the Borrower as presenting
fairly in all material respects the financial condition and results of
operations of the Borrower and its Subsidiaries (or, as the case may be,
the Borrower and its Restricted Subsidiaries) on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes;
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(c) concurrently with any delivery of financial statements under
clause (a) or (b) of this Section, a certificate of a Financial Officer of
the Borrower (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Sections
6.01, 6.06, and 6.10, and (iii) stating whether any change in GAAP or in
the application thereof has occurred since the date of the audited
financial statements referred to in Section 3.04 and, if any such change
has occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under
clause (a) of this Section, (i) a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the extent
required by accounting rules or guidelines, or internal policies of such
accounting firm) and (ii) a budget for the fiscal year during which such
statements are delivered setting forth anticipated operating results and
capital expenditures on a quarter-by-quarter basis during such fiscal
year, in form and detail satisfactory to the Administrative Agent;
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Borrower or any of its Restricted Subsidiaries with the SEC, or with
any national securities exchange, or, at any time while any of the
outstanding securities of the Borrower are registered with the SEC,
distributed by the Borrower to the holders of such securities generally;
(f) promptly upon their becoming available, copies of any and all
periodic or special reports filed by the Borrower or any of its Restricted
Subsidiaries with the FCC or with any other Federal, state or local
governmental authority, if such reports indicate any material adverse
change in the business, operations, affairs or condition of the Borrower
or any of its Restricted Subsidiaries or if copies thereof are requested
by any Lender or the Administrative Agent, and copies of any and all
notices and other communications from the FCC or from any other Federal,
state or local governmental authority with respect to the Borrower, any of
its Subsidiaries or any Satellite relating to any matter that could
reasonably be expected to result in a Material Adverse Effect or a Default
or Event of Default under clause (o) of Article VII;
(g) no less than annually, and at any time upon the reasonable
request of the Administrative Agent, a satellite health report prepared by
the Borrower and certified by a Financial Officer setting forth the
operational status of each Satellite (other than Satellites yet to be
launched) based on reasonable assumptions of the Borrower made in good
faith and including such information as the projected solar array life
based on the total satellite power requirements, projected battery life
based on total satellite power requirements, projected satellite life,
information concerning whether any transponder spares or preemptible
transponders on such Satellite have been employed and such other
information pertinent to the operation of such Satellite and the
transponders thereon as the Administrative Agent may reasonably request,
it being understood that to the extent
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that any such satellite health report contains any forward looking
statements, estimates or projections, such statements, estimates or
projections are subject to significant uncertainties and contingencies,
many of which are beyond the Borrower's control, and no assurance can be
given that such forward looking statements, estimates, projections will be
realized, provided that nothing in this clause (g) shall require the
Borrower to deliver any information to any Lender to the extent delivery
of such information is restricted by applicable law; and
(h) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any of its Subsidiaries, or compliance with the terms of this
Agreement and the other Loan Documents, as the Administrative Agent or any
Lender may reasonably request.
SECTION 5.02. Notices of Material Events. The Borrower will furnish
to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting
the Borrower or any of its Affiliates that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in a Material Adverse Effect;
(d) the assertion of any environmental matter by any Person against,
or with respect to the activities of, the Borrower or any of its
Subsidiaries and any alleged violation of or non-compliance with any
Environmental Laws or any permits, licenses or authorizations, other than
any environmental matter or alleged violation that, if adversely
determined, would not (either individually or in the aggregate) have a
Material Adverse Effect;
(e) any actual or constructive total or partial loss event with
respect to any Satellite; and
(f) any other development (other than general economic conditions)
that results in, or could reasonably be expected to result in, a Material
Adverse Effect and a reasonably detailed description of any agreement,
instrument and corporate or other restriction to which it or any of its
Restricted Subsidiaries shall become subject after the date hereof that,
individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or
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development requiring such notice and any action taken or proposed to be taken
with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower will, and
will cause each of its Restricted Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of the business of Borrower and its Restricted Subsidiaries taken
as a whole; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution, or any Disposition or other
transaction, permitted under Section 6.03 or require the preservation, renewal
or maintenance of any FCC License for a Satellite that is yet to be launched.
SECTION 5.04. Payment of Obligations. The Borrower will, and will
cause each of its Restricted Subsidiaries to, pay its obligations, including tax
liabilities, that, if not paid, could reasonably be expected to result in a
Material Adverse Effect before the same shall become delinquent or in default,
except where (a) the validity or amount thereof is being contested in good faith
by appropriate proceedings, (b) the Borrower or such Restricted Subsidiary has
set aside on its books adequate reserves with respect thereto in accordance with
GAAP and (c) the failure to make payment pending such contest could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties. The Borrower will, and will
cause each of its Restricted Subsidiaries to, keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, which shall include, in the case of Satellites
(other than Satellites yet to be launched), the provision of tracking,
telemetry, control and monitoring of Satellites in their designated orbital
positions in accordance with prudent and diligent standards in the commercial
satellite industry.
SECTION 5.06. Insurance.
(a) Generally. Subject to Section 5.06(b) with respect to
Satellites, the Borrower will, and will cause each of its Restricted
Subsidiaries to, maintain, either directly or, with respect to property other
than Satellites, through the general property and casualty insurance program of
▇▇▇▇▇▇ but only during such time as the Borrower remains a Subsidiary of ▇▇▇▇▇▇,
with financially sound and reputable insurance companies, insurance in such
amounts and against such risks as are customarily maintained by companies
engaged in the same or similar businesses in the same or similar locations,
including the following specific insurance coverage:
(i) All Risk Property Insurance. The Borrower shall maintain all
risk property insurance covering against physical loss or damage to its
property (other than Satellites), including fire and extended coverage,
collapse due to covered perils, flood, earth movement and comprehensive
boiler and machinery coverage (including electrical malfunction and
mechanical breakdown).
(ii) Comprehensive General Liability Insurance. The Borrower shall
maintain comprehensive general liability insurance with a limit of not
less than $1,000,000
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(including any self-insured retention). Such coverage shall include
premises/operations, explosion, collapse, underground hazards, sudden and
accidental pollution solely from hostile fire, contractual liability,
independent contractors, products/completed operations, property damage
and personal injury liability coverages.
(iii) Workers' Compensation/Employer's Liability. The Borrower shall
maintain workers' compensation insurance in accordance with statutory
provisions covering accidental injury, illness or death of an employee of
the Borrower while at work or in the scope of his employment with the
Borrower and employer's liability in an amount not less than $1,000,000.
(iv) Automobile Liability. The Borrower shall maintain Automobile
Liability insurance covering owned, non-owned, leased, hired or borrowed
vehicles against bodily injury or property damage. Such coverage shall
have a limit of not less than $1,000,000.
(v) Excess/Umbrella Liability. The Borrower shall maintain excess or
umbrella liability insurance in an amount not less than $50,000,000
providing coverage limits excess of the insurance limits required under
sections (a)(ii), (a)(iii) (employer's liability only) and (a)(iv). Such
insurance shall follow the form of the primary insurances and drop down in
case of exhaustion of underlying limits and/or aggregates.
Without limiting the foregoing, the Borrower will in any event maintain (with
respect to itself and each of its Restricted Subsidiaries) insurance against
risk of loss or damage covering all of the tangible real and personal property
and improvements of the Borrower and each of its Restricted Subsidiaries (other
than Satellites, as to which the provisions of Section 5.06(b) shall be
applicable) against such risks and in such amounts and subject to such
deductibles as shall be reasonable and customary and sufficient (except in the
case of earthquake insurance) to avoid the insured named therein from becoming a
co-insurer of any loss under such policy but in any event (except for earthquake
insurance) in an amount in the case of fixed assets and equipment (other than
vehicles), at least equal to 100% of the actual replacement cost of such assets,
subject to deductibles as aforesaid, and, in the case of vehicles, at least
equal to the actual cash value of said vehicles, and provided further that flood
insurance is required to be maintained only covering the improvements located on
the portion, if any, of any real property which portion (i) is located in an
area that has been identified by the Director of the Federal Emergency
Management Agency as a special flood hazard zone described in 12 C.F.R. ss. 22.2
and (ii) is in an area in which flood insurance has been made available under
the National Flood Insurance Act of 1968, and then only in the minimum amount
required under the National Flood Insurance Reform Act of 1994.
Each policy (other than any workers' compensation/employer's
liability insurance) referred to in this Section shall name the Administrative
Agent or Collateral Trustee (as appropriate for the Security Agreement covering
the respective property being insured), as additional insured and loss payee (to
the extent covering risk of loss of or damage to tangible property) and solely
as an additional insured as its interests may appear (to the extent covering any
liability), but without any liability to pay premiums with respect to any policy
of insurance (provided that in the case of any such endorsement as additional
insured to be delivered by the
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Effective Date, the Administrative Agent may consent to such endorsement being
delivered at such later date as it deems appropriate in the circumstances) and
shall provide a waiver by the insurers of all rights of subrogation against the
Administrative Agent or Collateral Trustee (as appropriate). Each casualty
policy referred to in this clause (a) shall (i) except as regards
excess/umbrella liability insurance, and to the extent customary with respect to
other policies, provide that it will not be canceled or reduced, amended or
allowed to lapse without renewal, except after not less than 30 days' prior
notice to the Administrative Agent, (ii) to the extent customary provide that
the interests of the Administrative Agent and the Lenders shall not be
invalidated by any act or negligence of the Borrower, any Restricted Subsidiary
or any Person having an interest in any property covered by the Mortgages nor by
occupancy or use of any such property for purposes more hazardous than permitted
by such policy nor by any foreclosure or other proceedings relating to such
property, (iii) waive any right of setoff or counterclaim and any other right of
deduction, whether by attachment or otherwise, and (iv) be primary without right
of contribution of any other insurance carried by or on behalf of the
Administrative Agent or Collateral Trustee (as applicable) with respect to its
interests as such in this transaction. The Borrower will advise the
Administrative Agent promptly of any policy cancellation, reduction or
amendment.
On the Effective Date, and at each policy renewal, but not less than
annually, the Borrower shall provide to the Administrative Agent certification
from each insurer, or by an authorized representative of each insurer, with
respect to each policy referred to in this clause (a). Such certification shall
identify the underwriters, the type of insurance, the limits, deductibles and
term thereof and shall specifically list the special provisions delineated for
such insurance required by this Section 5.06(a). Concurrently with the
furnishing of all certificates referred to in the preceding sentence, the
Borrower shall furnish the Administrative Agent with an opinion from an
independent insurance broker stating that all premiums then due have been paid
and that, in the opinion of such broker, the insurance then maintained by the
Borrower is in accordance with this Section 5.06(a).
(b) Covered Satellites. The Borrower will, and will cause each of
its Restricted Subsidiaries to, maintain insurance with respect to Satellites as
follows:
(i) All Risks Insurance. The Borrower will procure or will cause
each Satellite Manufacturer to procure at its own expense and maintain in
full force and effect, at all times prior to the Launch of any satellite
purchased by the Borrower or any of its Restricted Subsidiaries pursuant
to the terms of a Satellite Purchase Agreement, All Risks Insurance with
such terms as are reasonably commercially available and customary in the
industry with respect to such satellite, it being understood that if a
Satellite Manufacturer procures All Risks Insurance for satellites in
accordance with the requirements of the applicable Satellite Purchase
Agreement, the Borrower's obligations under this clause (i) with respect
to such satellites shall be satisfied. In no event shall the Borrower be
required to, or be required to cause any Satellite Manufacturer to,
procure or maintain All Risks Insurance to insure risks that may be
required to be insured by, or that covers the same risks or the same
period of coverage as, Launch Insurance.
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(ii) Launch Insurance. The Borrower will, or will cause the relevant
Satellite Manufacturer to, obtain, maintain and keep in full force and
effect with respect to each Covered Satellite that is to be launched,
Launch Insurance (it being understood that if a Satellite Manufacturer
procures Launch Insurance for Covered Satellites in accordance with the
terms of this clause (ii), the Borrower's obligations under this clause
(ii) with respect to such Covered Satellites shall be satisfied), to be
procured not later than 60 days before the then-scheduled launch of such
Covered Satellite (or 30 days in the case of the Satellite commonly
referred to as "Galaxy IIIC"), which insurance shall attach not later than
at Launch and continue in full force and effect until no sooner than the
completion of initial in-orbit testing, provided that if the Board of
Directors determines in good faith as evidenced by a Board Resolution
delivered to the Administrative Agent not to procure Launch Insurance for
a specified Covered Satellite and the Required Lenders approve in writing
of such election, the provisions of this Section 5.06(b)(ii) shall not
apply to such Covered Satellite. The Launch Insurance for each Covered
Satellite:
(A) shall provide coverage for all of the risks of loss of and
damage to such Covered Satellite (other than any risks borne by the
relevant Launch Services Provider pursuant to any launch risk
guarantee in accordance with the terms of the applicable Launch
Services Agreement or by the relevant Satellite Manufacturer in
accordance with the terms of the applicable Satellite Purchase
Agreement), including for partial loss, constructive total loss and
total loss, subject to (x) Acceptable Exclusions, (y) such other
exclusions or limitations of coverage applicable to all satellites
of the same model or relating to systemic anomalies as are then
customary in the satellite insurance market and as are reasonably
acceptable to the Administrative Agent, and (z) such specific
exclusions applicable to the performance of such Covered Satellite
as are reasonably accepted by the Board of Directors in order to
obtain Launch Insurance for such Covered Satellite for a price that
is, and on other terms and conditions that are, commercially
reasonable;
(B) shall be in an amount not less than the aggregate of the
purchase price of such Covered Satellite, the purchase price of
launch services therefor (other than for risks borne by the relevant
Launch Services Provider pursuant to any launch risk guarantee in
accordance with the terms of the applicable Launch Services
Agreement or by the relevant Satellite Manufacturer in accordance
with the terms of the applicable Satellite Purchase Agreement) and
the premium payable for such insurance, and subject to any then
customary deductible but in no event in an amount exceeding 15% of
operational capacity of such Covered Satellite, unless otherwise
agreed by the Administrative Agent;
(C) shall name the applicable Satellite Purchaser as the named
insured and the Collateral Trustee as additional insured and loss
payee as its interests may appear (except that, in the case of
Covered Satellites that are financed with Indebtedness permitted by
Section 6.01(i), such Launch Insurance shall name the respective
holder of such Indebtedness, together with the Collateral Trustee,
as loss payees as their interests may appear), provided that in the
case of any such
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endorsement as additional insured to be delivered by the Effective
Date, the Administrative Agent may consent to such endorsement being
delivered at such later date as it deems appropriate in the
circumstances;
(D) shall provide that it will not be canceled or reduced,
amended or allowed to lapse without renewal, except after not less
than 30 days' prior notice to the Administrative Agent or not less
than 15 days' prior notice to the Administrative Agent if 30 days is
not then commercially available at a reasonable cost; and
(E) shall, in the case of a Satellite a portion of which is
owned by the Borrower or any of its Restricted Subsidiaries and the
balance of which is owned by any Person that is not an Affiliate of
either the Borrower or any of its Restricted Subsidiaries (other
than by reason of the Borrower or any Restricted Subsidiary holding
an equity interest in such Person), only be required with respect to
that portion of such Satellite that is owned by the Borrower or any
of its Restricted Subsidiaries or for which the Borrower or any of
its Restricted Subsidiaries otherwise retains the risk of loss.
(iii) In-Orbit Risk Management. Other than with respect to (A)
Excluded Satellites, (B) any In-Orbit Spare Satellite (but only to the
extent that such In-Orbit Spare Satellite is not expected or intended, in
the good faith determination of the Board of Directors and evidenced by a
Board Resolution delivered to the Administrative Agent, to earn revenues
in excess of $10,000,000 for the immediately succeeding twelve calendar
months), and (C) any other Covered Satellite as the Borrower shall
designate, with the prior consent of the Required Lenders, the Borrower
either will obtain, maintain and keep in full force and effect, with
respect to each Covered Satellite, In-Orbit Insurance or comply with the
terms of the Satellite Risk Management Program, with respect to each
Covered Satellite, provided that in no event, at any time, shall more than
47% of the aggregate number of transponders on all Covered Satellites
(other than Excluded Satellites) that are in orbit be protected by
In-Orbit Spare Satellites in accordance with the Satellite Risk Management
Program.
(I) Attachment of In-Orbit Insurance. Any In-Orbit Insurance
procured with respect to a Covered Satellite shall attach (A) upon
the expiration of the Launch Insurance or any In-Orbit Insurance
then in effect, as the case may be, (B) as may be required under the
terms of the Satellite Risk Management Program, or (C) upon the
withdrawal of such Covered Satellite from the Satellite Risk
Management Program, and in each such case shall continue in full
force and effect until the Commitments shall have been terminated
and all amounts owing hereunder shall have been paid in full or
until such Covered Satellite is placed back into the Satellite Risk
Management Program in accordance with its terms.
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(II) Terms of In-Orbit Insurance. Any In-Orbit Insurance
procured with respect to a Covered Satellite:
(1) shall provide coverage for all of the risks of loss
of and damage to such Covered Satellite (other than the risks
borne by the relevant Launch Services Provider pursuant to any
launch risk guarantee in accordance with the terms of the
applicable Launch Services Agreement or by the relevant
Satellite Manufacturer pursuant to the terms of the applicable
Satellite Purchase Agreement), including for partial loss,
constructive total loss and total loss, subject to (x)
Acceptable Exclusions, (y) such other exclusions or
limitations of coverage applicable to all satellites of the
same model or relating to systemic anomalies as are then
customary in the satellite insurance market and as are
reasonably acceptable to the Administrative Agent, and (z)
such specific exclusions applicable to the performance of such
Covered Satellite as are reasonably accepted by the Board of
Directors in order to obtain In-Orbit Insurance for such
Covered Satellite for a price that is, and on other terms and
conditions that are, commercially reasonable;
(2) for such time as the Borrower and its Restricted
Subsidiaries shall maintain at least 12 Covered Satellites
(other than Excluded Satellites) in commercial operation in
orbit, for all such insured Covered Satellites in the
aggregate, shall be in an amount not less than 80% of the
aggregate book value of all Covered Satellites insured in
accordance with Section 5.06(b)(iii) (with the allocation of
such insurance among such Covered Satellites being in the
Borrower's discretion). In the event that fewer than 12
Covered Satellites (other than Excluded Satellites) are in
commercial operation in-orbit, the Borrower shall have 120
days to obtain additional insurance in accordance with this
Section 5.06(b)(iii) such that each insured Covered Satellite
in-orbit shall be insured in an amount of not less than the
book value for such Covered Satellite, provided that the
Borrower shall be deemed to be in compliance with this Section
5.06(b)(iii) for such 120 day period;
(3) shall name the applicable Satellite Purchaser as the
named insured and the Collateral Trustee as additional insured
and loss payee as its interests may appear (except that, in
the case of Covered Satellites that are financed with
Indebtedness permitted by Section 6.01(i), such In-Orbit
Insurance shall name the respective holder of such
Indebtedness, together with the Collateral Trustee, as loss
payees as their interests may appear), provided that in the
case of any such endorsement as additional insured to be
delivered by the Effective Date, the Administrative Agent may
consent to such endorsement being delivered at such later date
as it deems appropriate in the circumstances;
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(4) shall provide that it will not be canceled or
reduced, amended or allowed to lapse without renewal, except
after not less than 30 days' prior notice to the
Administrative Agent or not less than 15 days' prior notice to
the Administrative Agent if 30 days is not then commercially
available at a reasonable cost; and
(5) shall, in the case of a Satellite a portion of which
is owned by the Borrower or any of its Restricted Subsidiaries
and the balance of which is owned by any Person that is not an
Affiliate of either the Borrower or any of its Restricted
Subsidiaries (other than by reason of the Borrower or any
Restricted Subsidiary holding an equity interest in such
Person), only be required with respect to that portion of the
Satellite that is owned by the Borrower or any of its
Restricted Subsidiaries or for which the Borrower or any of
its Restricted Subsidiaries otherwise retains the risk of
loss.
(iv) Third Party Launch Liability Insurance. The Borrower will cause
each Launch Services Provider to procure and maintain Third Party Launch
Liability Insurance in full force and effect for the period required under
the relevant Launch Services Agreement and to name the Collateral Trustee
and the Lenders as additional insureds thereunder.
(v) Delivery of Insurance Policies. Not later than 120 days before
the then-scheduled launch of any Covered Satellite (or 30 days in the case
of the Satellite commonly referred to as "Galaxy IIIC") and, with respect
to In-Orbit Insurance procured, not later than 60 days before the
expiration of the relevant Launch Insurance, the Borrower shall deliver to
the Administrative Agent a preliminary copy of the Launch Insurance policy
and the In-Orbit Insurance policy, as the case may be, with respect
thereto, and not later than the date on which such insurance is required
to be procured as provided in clause (ii) or clause (iii) above, as the
case may be, shall deliver to the Administrative Agent the final copy of
such policy together with certificates of insurance with respect thereto,
confirming (A) that such insurance is in full force and effect as of such
date, (B) the names and percentages of the relevant insurance companies,
(C) the amount and expiration dates of such policy, (D) that all premiums
and other amounts due for such insurance have been paid in full, (E) that,
in the relevant broker's opinion, such policy is in compliance with this
Section, and (F) that the Collateral Trustee (and, in the case of Third
Party Launch Liability Insurance policies, the Lenders) is named as
additional insured and the Collateral Trustee is named as loss payee
thereunder as its interests may appear, except as otherwise permitted
hereby.
(c) Procurement of Insurance by Administrative Agent. Without
limiting the obligations of the Borrower under this Section, in the event the
Borrower or any Restricted Subsidiary shall fail to maintain in full force and
effect insurance as required by this Section, then the Administrative Agent may,
but shall have no obligation to, upon reasonable prior notice to the Borrower of
its intention to do so, procure insurance covering the interests of the Lenders
and the Administrative Agent in such amounts and against such risks as are
required hereby, and
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the Borrower shall reimburse the Administrative Agent in respect of any premiums
paid by the Administrative Agent in respect thereof.
SECTION 5.07. Books and Records; Inspection Rights. The Borrower
will, and will cause each of its Restricted Subsidiaries to, keep proper books
of record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities. The
Borrower will, and will cause each of its Restricted Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested.
SECTION 5.08. Compliance. The Borrower will, and will cause each of
its Subsidiaries to, comply with all laws, rules, regulations and orders of any
Governmental Authority applicable to it or its property (including all FCC
Licenses and all other governmental approvals or authorizations required to
launch and operate the Satellites and the TT&C Stations related thereto) and to
transmit signals to and receive transmissions from the Satellites, and to
maintain all such FCC Licenses and other governmental approvals or
authorizations in full force and effect, in each case except where the failure
to do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, it being understood that any failure as it
may relate to any FCC License for a Satellite that is yet to be launched shall
not, in itself, be considered or deemed to result in a Material Adverse Effect.
SECTION 5.09. Use of Proceeds and Letters of Credit. The proceeds of
the Loans will be used only for, in the case of the Term Facilities, the
Refinancing and, in the case of the Revolving Facility, for the general
corporate purposes of the Obligors, including to pay a portion of the fees and
expenses associated with the Transactions. No part of the proceeds of any Loan
will be used, whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Federal Reserve Board, including
Regulations U and X. Letters of Credit will be issued only to support
obligations incurred in the ordinary course of business by the Borrower and its
Subsidiaries.
SECTION 5.10. Hedging Agreements. The Borrower will within 360 days
of the Effective Date enter into, and thereafter maintain in full force and
effect, one or more Hedging Agreements with one or more of the Lenders (and/or
with a bank or other financial institution having capital, surplus and undivided
profits of at least $500,000,000), that effectively enables the Borrower (in a
manner reasonably satisfactory to the Administrative Agent) to protect itself
against three-month London interbank offered rates exceeding 5% per annum as to
a notional principal amount at least equal to 10% of the aggregate principal
amount of the Term Loans for a period of at least three years measured from the
Effective Date.
SECTION 5.11. Certain Obligations Respecting Subsidiaries; Further
Assurances.
(a) Subsidiary Guarantors. The Borrower will take such action, and
will cause each of its Subsidiaries to take such action, from time to time as
shall be necessary to ensure that
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all Restricted Subsidiaries of the Borrower (other than any thereof that are not
Wholly Owned Subsidiaries) are "Subsidiary Guarantors" under the Guarantee
Agreement and "Obligors" under each Security Agreement and the Intercreditor and
Collateral Trust Agreement, provided that, subject to Section 5.11(c), (x) in no
event shall more than 65% of the total outstanding voting stock of any
Restricted Subsidiary that is a Foreign Subsidiary be required to be pledged
under either Security Agreement, (y) no Restricted Subsidiary that is a Foreign
Subsidiary (except a Foreign Subsidiary whose sole asset consists of equity
interests in Domestic Subsidiaries) shall be required to become a "Subsidiary
Guarantor" under the Guarantee Agreement or an "Obligor" under either Security
Agreement, the Intercreditor and Collateral Trust Agreement or any Mortgage and
(z) any Lien arising in connection with any Restricted Subsidiary becoming an
"Obligor" under either Security Agreement or any Mortgage need not include
Excluded Property of such Restricted Subsidiary.
Without limiting the generality of the foregoing (but subject to
clauses (x), (y) and (z) of the foregoing paragraph), in the event that the
Borrower or any of its Subsidiaries shall form, acquire or designate any new
Subsidiary that shall constitute a Restricted Subsidiary hereunder, the Borrower
and its Subsidiaries will cause such new Restricted Subsidiary to
(i) become a "Subsidiary Guarantor" under the Guarantee Agreement,
and an "Obligor" under each Security Agreement and the Intercreditor and
Collateral Trust Agreement, pursuant to a Guarantee Assumption Agreement,
(ii) take such action (including delivering such shares of stock to
the Collateral Trustee, and executing and delivering to the Administrative
Agent mortgages or deeds of trust covering the real property and fixtures
owned or leased by such Restricted Subsidiary) as shall be reasonably
requested by the Administrative Agent to create and perfect to the maximum
extent permitted under applicable law valid and enforceable first priority
Liens on substantially all of the property (other than Excluded Property)
of such new Restricted Subsidiary as collateral security for the
obligations of such new Restricted Subsidiary hereunder, it being
understood that any such property constituting "Principal Property" under
the Senior 1998 Notes Indenture shall be subjected to Liens under Security
Documents in favor of the Collateral Trustee, and all other property shall
be subject to Liens under Security Documents in favor of the
Administrative Agent and
(iii) deliver such proof of corporate action, incumbency of
officers, opinions of counsel and other documents as is consistent with
those delivered by each Obligor pursuant to Section 4.01 on the Effective
Date or as the Administrative Agent shall have requested.
(b) Ownership of Subsidiaries. Except as set forth in Schedule VI,
the Borrower will, and will cause each of its Subsidiaries to, take such action
from time to time as shall be necessary to ensure that the Borrower and each of
its Restricted Subsidiaries is a Wholly Owned Subsidiary. In the event that any
additional shares of stock shall be issued by any Restricted Subsidiary, or any
Subsidiary shall be designated a Restricted Subsidiary, the Borrower agrees
(subject to clauses (x), (y) and (z) of the first paragraph of Section 5.11(a))
forthwith to deliver to the Collateral Trustee pursuant to the Shared Security
Agreement the certificates evidencing such
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shares of stock, accompanied by undated stock powers executed in blank and to
take such other action as the Administrative Agent shall request to perfect the
security interest created therein pursuant to the Security Agreements, provided
that the Obligors need not deliver certificates evidencing any equity interest
in a Foreign Subsidiary if such equity interests are uncertificated or, under
applicable law, may not be held in New York.
(c) Certain Receivables Collection Activities. Anything in this
Section to the contrary notwithstanding (including clauses (x), (y) and (z) of
the first paragraph of Section 5.11(a)), in the event that at any time after the
date hereof any of the Foreign Subsidiaries shall undertake receivables
collection activities on behalf of any other of the Restricted Subsidiaries in
lieu of such collection activities being conducted on the date hereof by
Domestic Subsidiaries, then the Borrower will cause such Subsidiary to take the
actions described in Section 5.11(a), and shall cause all of the voting capital
stock or other voting ownership interests of such Subsidiary to be pledged to
the Collateral Trustee, as if such Foreign Subsidiary were a Domestic
Subsidiary.
(d) Further Assurances. The Borrower will, and will cause each of
its Restricted Subsidiaries to, take such action from time to time as shall
reasonably be requested by the Administrative Agent to effectuate the purposes
and objectives of this Agreement.
Without limiting the generality of the foregoing but subject to
Section 5.11(a), the Borrower will, and will cause each other Obligor to, take
such action from time to time (including filing, executing and delivering such
assignments, security agreements and other instruments) as shall be reasonably
requested by the Administrative Agent to create, in favor of the Administrative
Agent or the Collateral Trustee, as applicable, to the extent required under the
respective Security Documents and to the maximum extent permitted under
applicable law, perfected Liens in substantially all of the property (other than
Excluded Property) of such Obligor as collateral security for its obligations
hereunder and, if applicable, under the 1998 Senior Notes; provided that any
such Lien shall be subject to the relevant requirements of the Security
Documents. In the event that the Borrower or any of its Restricted Subsidiaries
shall at any time hold any licenses and other approvals or authorizations from
any Governmental Authority (other than the FCC) and such licenses or other
approvals or authorizations shall be of the type referred to in Subject Licenses
(as if they were issued by the FCC), then the Borrower will, and will cause its
Restricted Subsidiaries, to take such action in accordance with and to the
maximum extent permissible under the local law of the jurisdiction of the
Governmental Authority that issued such licenses or other approvals or
authorizations as shall be reasonably requested by the Administrative Agent to
create in favor of the Administrative Agent or the Collateral Trustee, as
applicable, perfected Liens in such licenses or other approvals or
authorizations as security for the obligations of the Obligors hereunder and, if
applicable, under the 1998 Senior Notes. It is understood that the Liens to be
created upon any property of any Obligor constituting "Principal Property" under
the Senior 1998 Notes Indenture shall be created under Security Documents in
favor of the Collateral Trustee, and the security interests and Liens on all
other property shall be created under Security Documents in favor of the
Administrative Agent.
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If any Obligor shall acquire any real property interest (other than
Excluded Property), including improvements, after the Effective Date, then the
Borrower will cause such Obligor to execute and deliver in favor of the
Collateral Trustee a mortgage, deed of trust or deed to secure debt (as
appropriate for the jurisdiction in which such real property is situated)
pursuant to which such Obligor will create a Lien upon such real property
interest (and improvements) in favor of the Collateral Trustee, as collateral
security for the obligations of such Obligor under this Agreement or the
Guarantee Agreement and, if applicable, under the 1998 Senior Notes, and will
deliver such opinions of counsel and landlords' consents as the Administrative
Agent shall reasonably request in connection therewith.
Any provision contained herein or in the Security Documents to the
contrary notwithstanding, the Collateral shall not include at any time any FCC
License to the extent (but only to the extent) that at such time the
Administrative Agent may not validly possess a security interest therein
pursuant to the Communications Act of 1934, as amended, and the regulations
promulgated thereunder, as in effect at such time, but the Collateral shall
include, to the maximum extent permitted by law, all rights incident or
appurtenant to the FCC Licenses and the right to receive all proceeds derived
from or in connection with the sale, assignment or transfer of the FCC Licenses.
SECTION 5.12. Access and Command Codes.
(a) Delivery to Collateral Trustee. The Borrower will, and will
cause each of its Restricted Subsidiaries, at the request of the Administrative
Agent:
(i) to use commercially reasonable efforts to obtain promptly from
each provider (other than the Borrower) of tracking, telemetry, control
and monitoring services for any Satellite, consents and agreements with
the Collateral Trustee to:
(A) deliver expeditiously to the Collateral Trustee, upon
notification by the Administrative Agent that an acceleration
pursuant to Article VII has occurred, subject to having obtained any
consent or approval of, or registration or filing with, any
Governmental Authority for such delivery, all access codes, command
codes and command encryption necessary to establish access to and
perform tracking, telemetry, control and monitoring of any such
Satellite, including activation and control of any spacecraft
subsystems and payload components and the transponders thereon;
(B) take commercially reasonable steps necessary, upon
notification by the Administrative Agent that an acceleration
pursuant to Article VII has occurred, to obtain any consent or
approval of, or registration or filing with, any Governmental
Authority required to effect any transfer of operational control
over any such Satellite and related technical data (including any
license approving the export or re-export of such Satellite to any
Person or Persons as designated by the Administrative Agent); and
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(C) deliver to the Collateral Trustee written evidence of the
issuance of any such consent, approval, registration or filing once
such consent, approval, registration or filing has been obtained;
(ii) if, after having used its commercially reasonable efforts to
obtain the consents and agreements referred to in clause (i) above, any
such consents or agreements shall not have been so obtained, instruct each
such provider of tracking, telemetry, control and monitoring services (and
each Satellite Manufacturer in respect of Satellites that have yet to be
launched, to the extent that the Borrower or a Restricted Subsidiary does
not have in its possession all items referred to in clause (iii) below) to
cooperate in providing the access codes, command codes and command
encryption referred to in said clause (i), in each case subject to having
obtained any consent or approval of, or registration or filing with, any
Governmental Authority for such delivery; and
(iii) at any time upon an acceleration pursuant to Article VII, and
upon notification thereof by the Administrative Agent, to promptly deliver
to the Collateral Trustee, subject to having obtained any requisite
consent or approval of, or registration or filing with, any Governmental
Authority for such delivery, all access codes, command codes and command
encryption necessary, in the sole judgment of the Administrative Agent, to
establish access to and perform tracking, telemetry, control and
monitoring of any Satellite, including activation and control of any
spacecraft subsystems and payload components and the transponders thereon
and any changes to or modifications of such codes and encryption.
(b) TTC&M Providers. The Borrower will, and will use its
commercially reasonable efforts to cause each provider (other than the Borrower)
of tracking, telemetry, control and monitoring services for any Satellite to
agree to, not change any access codes, command codes or command encryption
necessary to establish access to and perform tracking, telemetry, control and
monitoring of each Satellite at any time that an Event of Default exists and
such provider of tracking, telemetry, control and monitoring services, as the
case may be, has been notified by the Borrower or the Administrative Agent
thereof, without promptly furnishing to the Administrative Agent the new access
codes, command codes and command encryption necessary to establish access to and
perform tracking, telemetry, control and monitoring of such Satellite, once such
access codes, command codes and command encryption have been delivered to the
Administrative Agent pursuant to this Section.
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ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable hereunder have been paid in
full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees with
the Lenders that:
SECTION 6.01. Indebtedness. The Borrower will not, nor will it
permit any of its Restricted Subsidiaries to, create, incur, assume or permit to
exist any Indebtedness or any Attributable Debt, or issue any Disqualified
Stock, except:
(a) Indebtedness created hereunder or under the other Loan
Documents;
(b) Indebtedness (other than the Senior 1998 Notes and the Senior
2002 Notes) existing on the date hereof and set forth in Part A of
Schedule II, or, to the extent not listed on Schedule II pursuant to
Section 3.13, in an aggregate amount not exceeding $10,000,000 (excluding,
however, following the making of the initial Loans hereunder, the
Indebtedness to be repaid with the proceeds of such Loans, as indicated on
Schedule II) and extensions, renewals, replacements and refinancings of
any such Indebtedness that do not increase the outstanding principal
amount thereof;
(c) Indebtedness under the Senior 1998 Notes, together with any
extensions, renewals, replacements and refinancings thereof (so long as
the same do not increase, other than for amounts attributable to premium
and expenses, the principal amount or shorten the maturity thereof and so
long as the same are otherwise effected on terms that are permitted by the
definition of "Permitted Senior Indebtedness" under Section 1.01, it being
understood that any replacement or refinancing thereof shall in any event
be unsecured), provided that in connection with any such extension,
renewal, replacement or refinancing that shall require any modifications
to the Security Documents, such modifications shall be in form and
substance satisfactory to the Administrative Agent;
(d) Indebtedness under the Senior 2002 Notes in an aggregate
principal amount not to exceed $800,000,000 at any one time outstanding,
together with any extensions, renewals, replacements and refinancings
thereof (so long as the same do not increase, other than for amounts
attributable to premium and expenses, the principal amount or shorten the
maturity thereof and so long as the same are otherwise effected on terms
that are permitted by the definition of "Permitted Senior Indebtedness"
under Section 1.01);
(e) Permitted Senior Indebtedness and Permitted Subordinated
Indebtedness in an aggregate principal amount up to but not exceeding (x)
in the case of Permitted Senior Indebtedness, $150,000,000 at any one time
outstanding, and (y) in the case of all such Indebtedness, together with
any Indebtedness permitted by Section 6.01(q), $200,000,000 at any one
time outstanding, provided that, after giving effect to the incurrence of
such Indebtedness, (i) the Borrower shall be in compliance with Section
6.10 (the
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determination of such compliance to be calculated on a pro forma basis) as
at the end of and for the period of four fiscal quarters most recently
ended prior to the date of such incurrence for which financial statements
of the Borrower and its Subsidiaries are available, under the assumption
that such incurrence shall have occurred at the beginning of the
applicable period, and under the assumption that interest for such period
had been equal to the rate of interest on such Indebtedness and shall have
delivered to the Administrative Agent a certificate of a Financial Officer
showing calculations in reasonable detail to demonstrate compliance with
this clause (e), (ii) no Default or Event of Default shall have occurred
and be continuing, and the Borrower shall have delivered to the
Administrative Agent a certificate of a Financial Officer to such effect
and (iii) the Borrower shall have delivered to the Administrative Agent
calculations, in form and detail satisfactory to the Administrative Agent,
demonstrating that the Borrower in good faith believes that it will be in
compliance with the provisions of Section 6.10 through the final maturity
of the Loans hereunder;
(f) Affiliate Subordinated Indebtedness and Disqualified Stock in an
aggregate principal amount (excluding capitalized interest or shares
issued in lieu of cash dividends) up to but not exceeding $50,000,000 at
any one time outstanding, provided that the terms of such Disqualified
Stock shall provide for all dividends thereon to be payable through the
issuance of additional shares of such Disqualified Stock (and not in cash)
and shall provide for the same not to mature or be mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or be redeemable at
the option of the holder thereof, in whole or in part, on or prior to the
date that is six months after the final maturity of the Loans hereunder
and, provided, further, after giving effect to the incurrence of such
Affiliate Subordinated Indebtedness or issuance of such Disqualified
Stock, as the case may be, (i) the Borrower shall be in compliance with
Section 6.10 (the determination of such compliance to be calculated on a
pro forma basis) as at the end of and for the period of four fiscal
quarters most recently ended prior to the date of such incurrence for
which financial statements of the Borrower and its Subsidiaries are
available, under the assumption that such incurrence or issuance shall
have occurred at the beginning of the applicable period and shall have
delivered to the Administrative Agent a certificate of a Financial Officer
showing calculations in reasonable detail to demonstrate compliance with
this clause (f), (ii) no Default or Event of Default shall have occurred
and be continuing, and the Borrower shall have delivered to the
Administrative Agent a certificate of a Financial Officer to such effect
and (iii) the Borrower shall have delivered to the Administrative Agent
calculations, in form and detail satisfactory to the Administrative Agent,
demonstrating that the Borrower in good faith believes that it will be in
compliance with the provisions of Section 6.10 through the final maturity
of the Loans hereunder;
(g) unsecured Indebtedness of the Borrower to any Restricted
Subsidiary and of any Restricted Subsidiary to the Borrower or any other
Restricted Subsidiary, provided that any such Indebtedness of any Obligor
to a Restricted Subsidiary that is not an Obligor shall be subordinated in
right of payment, pursuant to an agreement in form and substance
satisfactory to the Administrative Agent, to the payment and performance
of such Obligor's obligations under the Loan Documents;
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(h) Guarantees by the Borrower of Indebtedness of any Restricted
Subsidiary and by any Subsidiary Guarantor of Indebtedness of the Borrower
or any other Restricted Subsidiary;
(i) Indebtedness of the Borrower or any Restricted Subsidiary
incurred to finance the acquisition, construction or improvement of any
fixed or capital assets, including Capital Lease Obligations, any
Indebtedness assumed in connection with the acquisition of any such assets
or secured by a Lien on any such assets prior to the acquisition thereof
and any Attributable Debt arising in connection with a transaction
permitted under Section 6.09, and extensions, renewals, replacements and
refinancings of any such Indebtedness or Attributable Debt that do not
increase, other than for amounts attributable to premium and expenses, the
outstanding principal amount thereof; provided that (i) such Indebtedness
or Attributable Debt is incurred prior to or within 90 days (within 270
days in the case of a Satellite) after such acquisition or the completion
of such construction or improvement (provided that not more than three
Satellites may be financed with Indebtedness permitted under this
subclause (i)) and (ii) the aggregate principal amount of Indebtedness and
Attributable Debt permitted by this clause (i) (x) arising out of the sale
and leaseback of PAS 10 as contemplated by Section 6.09 shall not exceed
100% of the book value of PAS 10 at any time outstanding and (y) arising
out of all other transactions permitted by this clause (i) (other than
such sale and leaseback of PAS 10) shall not exceed $275,000,000 at any
one time outstanding;
(j) Indebtedness of any Person that becomes a Restricted Subsidiary
after the date hereof and extensions, renewals, replacements and
refinancings of any such Indebtedness that do not increase, other than for
amounts attributable to premium and expenses, the outstanding principal
amount thereof; provided that (i) such Indebtedness exists at the time
such Person becomes a Subsidiary and is not created in contemplation of or
in connection with such Person becoming a Subsidiary and (ii) the
aggregate principal amount of Indebtedness permitted by this clause (j)
shall not exceed $50,000,000 at any time outstanding;
(k) Indebtedness of the Borrower incurred in connection with a
Permitted Business Acquisition, provided that the aggregate principal
amount thereof incurred in connection with all Permitted Business
Acquisitions after the date hereof shall not exceed $30,000,000;
(l) commitments and guarantees of Indebtedness of Joint Ventures and
Unrestricted Subsidiaries to the extent such commitments and guarantees
constitute Investments permitted under Section 6.05(l);
(m) Indebtedness of the Borrower or any Restricted Subsidiary as an
account party in respect of trade letters of credit;
(n) Indebtedness of the Borrower or any of the Restricted
Subsidiaries in respect of performance bonds, workers' compensation
claims, surety or appeal bonds;
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(o) Indebtedness of Foreign Subsidiaries incurred for working
capital purposes in an amount not to exceed $10,000,000 at any one time
outstanding;
(p) Indebtedness of the Borrower or any Restricted Subsidiary in
respect of letters of credit in an aggregate face amount not exceeding
$10,000,000 at any time outstanding; and
(q) other unsecured Indebtedness in an aggregate principal amount
not exceeding (x) $50,000,000 at any time outstanding and (y) together
with any Indebtedness permitted by Section 6.01(e), $200,000,000 at any
time outstanding; provided that the aggregate principal amount of
Indebtedness of Subsidiaries of the Borrower that are not Subsidiary
Guarantors permitted by this clause (q) shall not exceed $25,000,000 at
any time outstanding.
SECTION 6.02. Liens. The Borrower will not, nor will it permit any
of its Restricted Subsidiaries to, create, incur, assume or permit to exist any
Lien on any property or asset now owned or hereafter acquired by it, or assign
or sell any income or revenues (including accounts receivable) or rights in
respect of any thereof, except:
(a) Liens created pursuant to the Security Documents;
(b) any Lien on any property or asset of the Borrower or any of its
Restricted Subsidiaries existing on the date hereof and set forth in Part
B of Schedule II, or, to the extent not listed on Schedule II pursuant to
Section 3.13, in an aggregate amount not exceeding $10,000,000 (excluding,
however, following the making of the initial Loans hereunder, Liens
securing Indebtedness to be repaid with the proceeds of such Loans, as
indicated on Schedule II); provided that (i) no such Lien shall extend to
any other property or asset of the Borrower or any of its Restricted
Subsidiaries and (ii) any such Lien shall secure only those obligations
which it secures on the date hereof and extensions, renewals, replacements
and refinancings thereof that do not increase the outstanding principal
amount thereof;
(c) Permitted Encumbrances;
(d) any Lien existing on any property or asset (or any proceeds
thereof) prior to the acquisition thereof by the Borrower or any
Restricted Subsidiary or existing on any property or asset (or any
proceeds thereof) of any Person that becomes a Restricted Subsidiary after
the date hereof prior to the time such Person becomes a Restricted
Subsidiary; provided that (i) such Lien is not created in contemplation of
or in connection with such acquisition or such Person becoming a
Restricted Subsidiary, as the case may be, (ii) such Lien shall not apply
to any other property or assets of the Borrower or any Restricted
Subsidiary and (iii) such Lien shall secure only those obligations which
it secures on the date of such acquisition or the date such Person becomes
a Restricted Subsidiary, as the case may be and extensions, renewals,
replacements and refinancings
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thereof that do not increase, other than for amounts attributable to
premiums and expenses, the outstanding principal amount thereof; and
(e) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Restricted Subsidiary and proceeds
thereof; provided that (i) such security interests secure Indebtedness or
Attributable Debt permitted by clause (i) of Section 6.01 and extensions,
renewals, replacements and refinancings thereof that do not increase,
other than for amounts attributable to premiums and expenses, the
outstanding principal amount thereof, (ii) such security interests and the
Indebtedness or Attributable Debt secured thereby (except any such
extensions, renewals, replacements and refinancings thereof) are incurred
prior to or within 90 days after such acquisition or the completion of
such construction or improvement (within 270 days in the case of a
Satellite), (iii) the Indebtedness secured thereby does not exceed the
cost of acquiring, constructing or improving such fixed or capital assets
(together with, in the case of any such extensions, renewals, replacements
and refinancings, amounts attributable to premiums and expenses) and (iv)
such security interests shall not apply to any other property or assets of
the Borrower or any Restricted Subsidiary;
(f) Liens on property of Foreign Subsidiaries securing Indebtedness
permitted under Section 6.01(o); and
(g) Liens on equity interests in Joint Ventures or Investments in
Unrestricted Subsidiaries securing obligations of such Joint Venture or
Unrestricted Subsidiary (as the case may be).
SECTION 6.03. Fundamental Changes. The Borrower will not, nor will
it permit any of its Restricted Subsidiaries to, enter into any transaction of
merger or consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution). The Borrower will not, nor
will it permit any of its Restricted Subsidiaries to, acquire any business or
property from, or capital stock or other ownership interest of, or be a party to
any acquisition of, any Person except for purchases of Satellites, transponders
and other equipment and property to be sold or used in the ordinary course of
business and Capital Expenditures permitted under Section 6.10(d). The Borrower
will not, nor will it permit any of its Restricted Subsidiaries to, convey,
sell, lease, transfer or otherwise dispose of any part of its business or
property, whether now owned or hereafter acquired (including receivables and
leasehold interests).
Notwithstanding the foregoing provisions of this Section:
(a) any Restricted Subsidiary (other than a License Subsidiary) may
be merged or consolidated with or into the Borrower or any other
Restricted Subsidiary; provided that (i) if any such transaction shall be
between a Restricted Subsidiary and a Wholly Owned Restricted Subsidiary,
a Wholly Owned Restricted Subsidiary shall be the continuing or surviving
entity, (ii) if any such transaction shall be between a Subsidiary
Guarantor and a Subsidiary that is not a Subsidiary Guarantor, a
Subsidiary Guarantor shall be the
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continuing or surviving entity and (iii) any License Subsidiary may be
merged or consolidated with any other License Subsidiary;
(b) the Borrower or any Restricted Subsidiary (other than a License
Subsidiary) may sell, lease, transfer or otherwise dispose of any or all
of its property (upon voluntary liquidation or otherwise) to the Borrower
or any Wholly Owned Restricted Subsidiary, provided that (i) except as
otherwise specified in the following subclause (iii), any such transfer by
the Borrower or a Subsidiary Guarantor shall be made to the Borrower or a
Subsidiary Guarantor, (ii) any License Subsidiary may sell, lease,
transfer or otherwise dispose of any or all of its property (upon
voluntary liquidation or otherwise) only to another License Subsidiary and
(iii) any such transaction with a Special Purpose Foreign Subsidiary shall
consist solely of the sale, lease, transfer or other disposition of
transponders by the Borrower and its Restricted Subsidiaries for use by
such Special Purpose Foreign Subsidiary in the ordinary course of its
business (provided that the aggregate number of transponders transferred
to all Special Purpose Foreign Subsidiaries pursuant to this subclause
(iii) shall not exceed 75 at any time);
(c) the capital stock or other ownership interest of any Restricted
Subsidiary may be sold, transferred or otherwise disposed of to the
Borrower or any Wholly Owned Restricted Subsidiary, provided that the
capital stock or other ownership interest of a License Subsidiary may only
be sold, transferred or otherwise disposed of to an Obligor;
(d) the Borrower or any Wholly Owned Restricted Subsidiary may
acquire any business, and the related assets, of any other Person whether
by way of purchase of assets or stock, by merger or consolidation or
otherwise (any such acquisition being herein called a "Permitted Business
Acquisition"), so long as:
(i) the aggregate Purchase Price of any individual such
acquisition shall not exceed (x) $100,000,000 during any single
fiscal year or (y) $500,000,000 during the term of this Agreement,
provided that without regard to or usage of such limits, (A) the
Borrower shall be permitted to make a Permitted Business Acquisition
by Reinvestment of the Net Cash Proceeds of any Equity Issuance or
the incurrence of any Affiliate Subordinated Indebtedness following
the occurrence of such Equity Issuance or such incurrence as
contemplated by Section 2.10(b)(ii) during the period contemplated
therein and (B) the Borrower shall be permitted to make a Permitted
Business Acquisition through the issuance of shares of its common
stock (or the capital stock or other ownership interests of a
Holding Company, or any parent company of such Holding Company or
any Permitted Holder) to the respective seller(s) in such
Acquisition,
(ii) such acquisition (if by purchase of assets, merger or
consolidation) shall be effected in such manner so that the acquired
business, and the related assets, are owned either by the Borrower
or a Wholly Owned Restricted Subsidiary and, if effected by merger
or consolidation involving the Borrower, the Borrower shall be the
continuing or surviving entity and, if effected by merger or
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consolidation involving a Wholly Owned Restricted Subsidiary, a
Wholly Owned Restricted Subsidiary shall be the continuing or
surviving entity;
(iii) such acquisition (if by purchase of stock) shall be
effected in such manner so that the acquired entity becomes a Wholly
Owned Restricted Subsidiary;
(iv) after giving effect to such acquisition the Borrower
shall be in compliance with Section 6.10 (the determination of such
compliance to be calculated on a pro forma basis, as at the end of
and for the period of four fiscal quarters most recently ended prior
to the date of such acquisition for which financial statements of
the Borrower and its Subsidiaries are available, under the
assumption that such acquisition shall have occurred, and any
Indebtedness in connection therewith shall have been incurred, at
the beginning of the applicable period, and under the assumption
that interest for such period had been equal to the actual interest
rate in effect for such Indebtedness on the date of such
acquisition) and, in the event that the Purchase Price in respect of
such acquisition shall exceed $50,000,000, the Borrower shall have
delivered to the Administrative Agent a certificate of a Financial
Officer showing calculations in reasonable detail to demonstrate
compliance with this subclause (iv); and
(v) immediately prior to such acquisition and after giving
effect thereto, no Default shall have occurred and be continuing;
(e) the Borrower and its Subsidiaries may effect Permitted
Dispositions, provided that not less than 75% of the aggregate
consideration received pursuant to any Permitted Disposition (other than a
Disposition described in clause (c) or (d) of the definition of "Permitted
Disposition" in Section 1.01) shall consist of cash and the balance of
such consideration may consist of Disposition Investments (except that,
notwithstanding the foregoing, (i) the Borrower and its Subsidiaries may
effect Permitted Dispositions for an aggregate consideration up to but not
exceeding $30,000,000 during the term of this Agreement without regard to
such 75% requirement and (ii) the Borrower and its Subsidiaries may effect
the Disposition of a Satellite described in clause (e) of such definition
of "Permitted Disposition" through the transfer of a Satellite in exchange
for a replacement Satellite, or in exchange for a combination of cash and
a replacement Satellite);
(f) PanAmSat may at any time enter into a transaction intended to
make the Borrower hereunder a Wholly Owned Subsidiary of a Holding Company
pursuant to one of the following transactions:
(i) subject to the satisfaction of the requirements set forth
below, PanAmSat may consolidate or merge with or into, or transfer
all or substantially all of its assets to, a Wholly Owned Restricted
Subsidiary organized under the law of a State of the United States
of America so long as all or substantially all of the assets of
PanAmSat immediately prior to such transaction (other than the
capital
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stock or other ownership interests of such Restricted Subsidiary)
are owned by such Restricted Subsidiary immediately after the
consummation of such transaction or
(ii) subject to the satisfaction of the requirements set forth
below, PanAmSat may merge with (A) any direct or indirect Wholly
Owned Subsidiary of EchoStar or ▇▇▇▇▇▇ organized under the law of a
State of the United States of America pursuant to Section 3.1 of the
Stock Purchase Agreement or (B) any direct or indirect Wholly Owned
Subsidiary of ▇▇▇▇▇▇ or General Motors in a transaction designed to
make the Borrower a Wholly Owned Subsidiary of ▇▇▇▇▇▇ or General
Motors,
in each case so long as (A) immediately prior to such transaction and
after giving effect thereto (including the substitution of the New
Borrower for PanAmSat as contemplated below), no Default shall have
occurred and be continuing, (B) unless, in the case of a merger or
consolidation pursuant to clause (i) or (ii) above, the surviving entity
in any such transaction is PanAmSat itself, the surviving entity in any
such merger or consolidation, or the Restricted Subsidiary to which
PanAmSat shall have transferred substantially all of its assets (such
surviving entity or Restricted Subsidiary, as applicable, being herein
called the "New Borrower"), shall have assumed the obligations of PanAmSat
hereunder and under the other Loan Documents pursuant to an instrument in
form and substance satisfactory to the Administrative Agent and shall have
executed and delivered to the Administrative Agent and the Collateral
Trustee such proof of corporate or other action, incumbency of officers,
opinions of counsel and other documents as is consistent with those
delivered by PanAmSat pursuant to Section 4.01 on the Effective Date or as
the Administrative Agent shall have reasonably requested, and shall have
taken such action as the Administrative Agent shall have reasonably
requested to continue and perfect the Liens granted by PanAmSat pursuant
to the Security Documents in accordance with the requirements of Section
5.11, (C) the New Borrower, or (if such surviving entity is PanAmSat)
PanAmSat, shall be a Wholly Owned Subsidiary of a Holding Company and
shall, immediately prior to such transaction, not have any assets or
liabilities (other than de minimis assets associated with the formation or
such Subsidiary), (D) such Holding Company shall have executed and
delivered to the Administrative Agent a Holding Company Pledge Agreement
and (E) such Holding Company shall have executed and delivered to the
Administrative Agent such proof of corporate or other action, incumbency
of officers, opinions of counsel and other documents as is consistent with
those delivered by PanAmSat pursuant to Section 4.01 on the Effective Date
or as the Administrative Agent shall have requested, and shall have taken
such action as the Administrative Agent shall have reasonably requested to
perfect the Lien of the Holding Company Pledge Agreement in the capital
stock or other ownership interests of the Borrower owned by the Holding
Company.
Upon the consummation of such transaction, and satisfaction of the
requirements of clauses (A) through (E) of the immediately preceding
paragraph, the New Borrower (except in the event of a merger or
consolidation pursuant to clause (i) or (ii) above in which PanAmSat
itself is the surviving entity) shall succeed to all of the rights and
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obligations of PanAmSat hereunder and under the other Loan Documents, and
PanAmSat shall be released from all of its obligations hereunder and under
the other Loan Documents (other than, in the event that PanAmSat becomes
the Holding Company, the obligations of PanAmSat under the Holding Company
Pledge Agreement), and the Administrative Agent shall, and shall direct
the Collateral Trustee to, execute and deliver such instruments (at
expense of the Borrower), as the Borrower shall reasonably request to
evidence such release;
(g) the Borrower and its Restricted Subsidiaries may make
Investments permitted under Sections 6.05(a), (d), (e), (g)(v), (k), (l)
and (m); and
(h) the Borrower and its Restricted Subsidiaries may enter into
leases (including any sales-type lease covering transponders) in the
ordinary course of business and on ordinary business terms reasonably
consistent with prior practice of the Borrower and its Restricted
Subsidiaries.
SECTION 6.04. Lines of Business. The Borrower will not, nor will it
permit any of its Restricted Subsidiaries to, engage to any material extent in
any business other than the business of providing communications services
primarily through the use of satellites and related ground infrastructure,
together with businesses related thereto (collectively, the "Permitted
Businesses"). No License Subsidiary will engage in any line or lines of business
activity other than to hold FCC Licenses issued to it and to enter into
arrangements with the Borrower or other Restricted Subsidiaries (other than
other License Subsidiaries) to manage and operate such FCC Licenses under its
direction and control, in each case to the maximum extent permitted by
applicable law. The Borrower will cause all Subject Licenses at all times to be
held in the name of a License Subsidiary, provided that with respect to any
Subject Licenses that are not held by the License Subsidiary as of the date
hereof the Borrower will, and will cause each Subsidiary that holds such Subject
Licenses to, within 30 days after the Effective Date, make application to the
FCC for consent to the assignment or reissuance of such FCC Licenses to a
License Subsidiary and will thereafter actively pursue such application and,
upon such consent being granted, will promptly transfer such Subject Licenses to
such License Subsidiary. Any license issued after the date hereof by the FCC
that constitutes a Subject License shall be held in the name of a License
Subsidiary.
SECTION 6.05. Investments. The Borrower will not, nor will it permit
any of its Restricted Subsidiaries to, make or permit to remain outstanding any
Investments except:
(a) Investments outstanding or committed to on the date hereof and
identified in Part B of Schedule VI and extensions, renewals and
replacements of any such Investment that do not increase the aggregate
amount thereof, provided that any such Investments made after the date
hereof pursuant to such commitments do not exceed $75,000,000 at any one
time outstanding;
(b) operating deposit and other accounts with banks and other
financial institutions;
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(c) Permitted Investments and Permitted Business Acquisitions;
(d) Investments by the Borrower and its Restricted Subsidiaries in
the Borrower and its Restricted Subsidiaries, provided that the aggregate
amount of such Investments by the Borrower and its Domestic Subsidiaries
in Foreign Subsidiaries shall not exceed $30,000,000 in the aggregate at
any one time outstanding;
(e) Investments by the Borrower and its Domestic Subsidiaries in
Special Purpose Foreign Subsidiaries, provided that the aggregate amount
of such Investments by the Borrower and its Domestic Subsidiaries in
Special Purpose Foreign Subsidiaries, together with the aggregate amount
of Investments permitted under clause (l) below, shall not exceed
$20,000,000 in the aggregate at any one time outstanding;
(f) Hedging Agreements entered into in the ordinary course of the
Borrower's financial planning and not for speculative purposes;
(g) Investments consisting of (i) prepaid expenses, (ii) negotiable
instruments held for collection, (iii) lease, utility, workers'
compensation, performance and other similar deposits, (iv) insurance claim
receivables and (v) stock, obligations and securities received in
satisfaction of judgments, foreclosure of liens or settlement of debts
(whether pursuant to a plan of reorganization or similar arrangement or
otherwise);
(h) Investments in respect of loans and advances to officers,
directors and employees of the Borrower and its Restricted Subsidiaries
for their personal benefit (or, after the consummation of a Holding
Company Transaction, loans to the Holding Company the proceeds of which
are used to make loans and advances to officers, directors and employees
of the Holding Company) in the ordinary course of business up to but not
exceeding $3,000,000 in the aggregate at any one time outstanding;
(i) to the extent constituting Investments, any payments under any
contracts to construct, launch, operate or insure Satellites which
contracts are entered into the ordinary course of business;
(j) any Disposition Investment arising in connection with a
Disposition permitted under Section 6.03 or any transaction permitted by
Section 6.03(b)(iii);
(k) Investments made by the Borrower and its Restricted Subsidiaries
(i) prior to a Holding Company Transaction, in exchange for the issuance
by the Borrower of shares of its capital stock or other ownership
interests (other than Disqualified Stock) and (ii) following the
consummation of a Holding Company Transaction, in exchange for shares of
capital stock or other ownership interests of the Holding Company, or any
parent company of such Holding Company or any Permitted Holder, that have
been contributed by the Holding Company to the Borrower as additional
equity capital, in the case of each of the foregoing subclauses (i) and
(ii), to the extent not constituting a Permitted Business Acquisition; and
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(l) Investments in Joint Ventures or Unrestricted Subsidiaries
formed for the purpose of selling or leasing transponder capacity,
provided that the aggregate amount of such Investments, together with the
aggregate amount of Investments permitted under clause (e) above, shall
not exceed $20,000,000 in the aggregate at any one time outstanding;
(m) additional Investments up to but not exceeding $50,000,000 in
the aggregate at any one time outstanding, if at the time of any such
Investment the Total Leverage Ratio is greater than or equal to 3.50 to 1,
or $100,000,000 in the aggregate at any one time outstanding, if at the
time of any such Investment the Total Leverage Ratio is less than 3.50 to
1.
For purposes of clauses (d), (e), (h), (l) and (m) of this Section, the
aggregate amount of an Investment outstanding at any one time shall be deemed to
be equal to (A) the aggregate amount of cash, together with the aggregate fair
market value of property, loaned, advanced, contributed, transferred or
otherwise invested that gives rise to such Investment minus (B) the aggregate
amount of dividends, distributions or other payments received in cash in respect
of such Investment; the amount of an Investment shall not in any event be
reduced by reason of any write-off of such Investment nor increased by any
increase in the amount of earnings retained in the Person in which such
Investment is made that have not been dividended, distributed or otherwise paid
out.
SECTION 6.06. Restricted Payments. The Borrower will not, nor will
it permit any of its Restricted Subsidiaries to, declare or make, or agree to
pay or make, directly or indirectly, any Restricted Payment, except that (A) the
Borrower may declare and pay dividends with respect to its capital stock payable
solely in additional shares of its common stock, (B) the Borrower may make
Restricted Payments pursuant to and in accordance with any stock option plans or
other benefit plans for directors, officers, consultants or employees of the
Borrower and its Restricted Subsidiaries (or, following the consummation of a
Holding Company Transaction, of the Holding Company) established in the ordinary
course of business (including, to the extent established for the benefit of
directors, officers, consultants or employees of the Borrower and its Restricted
Subsidiaries and, as applicable, the Holding Company in the ordinary course of
business, any defined contribution plan, stock incentive plan, non-employee
directors plan, stock option agreement, management equity subscription
agreement, stock ownership plan, put agreement, stockholder agreement, stock
option plan or other benefit plan for directors, officers, consultants or
employees of the Borrower and its Restricted Subsidiaries and, as applicable,
the Holding Company, and including the redemption or purchase of equity
interests of the Borrower or, as applicable, the Holding Company held by former
directors, officers, consultants or employees of the Borrower or any Restricted
Subsidiary or, as applicable, the Holding Company following termination of
employment) and (C) the Borrower may make dividend payments in respect of
Disqualified Stock through the issuance of additional shares of such
Disqualified Stock (but not in cash); provided that the Borrower may declare and
make Restricted Payments in cash, subject to the satisfaction of each of the
following conditions on the date of such Restricted Payment and after giving
effect thereto:
(i) no Default shall have occurred and be continuing;
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(ii) the aggregate amount of Restricted Payments (excluding any
Restricted Payments described in clauses (A), (B) or (C) above or clauses
(a), (b), (c) or (d) below) made during any fiscal year shall not exceed
$30,000,000;
(iii) the Total Leverage Ratio as at the last day of the fiscal
quarter most recently ended prior to the date of such Restricted Payments
shall not exceed 3.00 to 1 and the Borrower shall be in compliance with
Section 6.10 (the determination of such compliance to be calculated on a
pro forma basis) as at the end of and for the period of four fiscal
quarters most recently ended prior to the date of such Restricted Payment
for which financial statements of the Borrower and its Subsidiaries are
available, under the assumption that such Restricted Payments shall have
occurred at the beginning of the applicable period; and
(iv) the Borrower shall have delivered to each Lender, at least 15
Business Days (but not more than 30 Business Days) prior to the date of
the proposed Restricted Payment, a certificate of a Financial Officer of
the Borrower setting forth computations in reasonable detail demonstrating
satisfaction of the foregoing conditions as at the date of such
certificate.
Notwithstanding the foregoing, nothing herein shall be deemed to
prohibit any of the following:
(a) the payment of dividends by any Restricted Subsidiary to the
Borrower or to any other Restricted Subsidiary;
(b) the repurchase of equity interests of the Borrower or any
Restricted Subsidiary (and, after the consummation of a Holding Company
Transaction, of the Holding Company) from directors, officers, consultants
and employees for consideration consisting of the cancellation or
forgiveness of Indebtedness (or the proceeds of the repayment of such
Indebtedness) of such director, officers, consultants or employees owing
to the Borrower or any Restricted Subsidiary that was incurred as
consideration for the purchase of equity interests of the Borrower or any
Restricted Subsidiary and is outstanding as of the Effective Date;
(c) any payments permitted to be made under 6.07(d);
(d) Specified Affiliate Payments; and
(e) payments or distributions to dissenting stockholders under
applicable law or in connection with a consolidation or merger permitted
under Section 6.03(f), made either (i) from the proceeds of an Equity
Issuance made after the date hereof or (ii) through the issuance of shares
of capital stock (other than Disqualified Stock) of the Borrower or the
Holding Company (if applicable) to such dissenting shareholders.
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SECTION 6.07. Transactions with Affiliates. The Borrower will not,
nor will it permit any of its Restricted Subsidiaries to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with or for the benefit of, any of its Affiliates, except:
(a) transactions that are fair and reasonable to the Borrower or
such Restricted Subsidiary and that are on terms and conditions not less
favorable to the Borrower or such Restricted Subsidiary than could be
obtained on an arm's-length basis from unrelated third parties;
(b) transactions between the Borrower and one or more Restricted
Subsidiaries, or between a Restricted Subsidiary and one or more other
Restricted Subsidiaries;
(c) any Restricted Payment permitted by Section 6.06 and any
Investments permitted by Sections 6.05(h), (k), (l) and (m);
(d) during any period that the Borrower and its Restricted
Subsidiaries are part of an affiliated group headed by a "common parent"
(within the meaning of Section 1504 of the Code), the Borrower may
reimburse such parent (or reimburse ▇▇▇▇▇▇, during any period when ▇▇▇▇▇▇
is a member of the affiliated group of which General Motors is such
"common parent") for Federal, state and local income taxes attributable to
the Borrower and its Subsidiaries, so long as
(i) the aggregate amount paid by the Borrower and its
Restricted Subsidiaries in respect of such reimbursement (x) during
any period when such common parent is General Motors or ▇▇▇▇▇▇ (or a
holding company formed to own ▇▇▇▇▇▇ upon the EchoStar Combination
Transaction), shall not exceed the aggregate amount of Federal,
state and local income taxes the Borrower and its Subsidiaries would
have been required to pay in the event they were a separate
affiliated group with the Borrower being the common parent for such
period and all prior periods (such taxes to be determined after
giving effect to any net operating losses which would have been
available to such separate affiliated group regardless of whether
such net operating losses were used to offset income of other
members of the group of which General Motors or ▇▇▇▇▇▇ was the
common parent) and (y) during any period when such common parent is
any other Person, shall not exceed the aggregate amount of such
taxes the Borrower and its Subsidiaries would have been required to
pay in the event they were a separate affiliated group with the
Borrower being the common parent for such period and all prior
periods after the date such other Person became such common parent
(such taxes to be determined after giving effect to any net
operating losses which would have been available to, and usable by,
such separate affiliated group regardless of whether such net
operating losses were used to offset income of other members of the
group of which such other Person was the common parent) and
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(ii) such Person (if other than General Motors or ▇▇▇▇▇▇)
shall have agreed, pursuant to an agreement in form and substance
reasonably satisfactory to the Administrative Agent, to pay to the
Borrower any amounts that the Borrower and its Subsidiaries would
have been entitled to receive in respect of refunds for any prior
periods as if the Borrower and its Subsidiaries had been a separate
affiliated group with the Borrower being the common parent for such
prior periods (such payments to be determined taking into account
any net operating losses which would have been available to, and
usable by, such separate affiliated group);
(e) loans and advances to officers, directors, consultants and
employees permitted by Section 6.05(h);
(f) any agreement or arrangement in effect on the date hereof and
described in Schedule XII (including any tax sharing agreement or
arrangement), and any amendment thereto or any transaction contemplated
thereby (including pursuant to any amendment thereto) and any replacement
agreement or arrangement or any transaction pursuant thereto, so long as
any such amendment or replacement agreement or arrangement is no less
favorable to the Lenders than the original agreement or arrangement as in
effect on the date hereof; and
(g) the issuance of equity interests of the Borrower (other than
Disqualified Stock).
SECTION 6.08. Restrictive Agreements. The Borrower will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly,
enter into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of the
Borrower or any Restricted Subsidiary to create, incur or permit to exist any
Lien upon any of its property or assets, (b) the ability of the Borrower or any
Restricted Subsidiary to transfer any of its properties or assets to the
Borrower or any other Restricted Subsidiary or (c) the ability of any Restricted
Subsidiary to pay dividends or other distributions with respect to any shares of
its capital stock or other ownership interests or to make or repay loans or
advances to the Borrower or any other Restricted Subsidiary or to Guarantee
Indebtedness of the Borrower or any other Restricted Subsidiary; provided that:
(i) the foregoing shall not apply to (u) restrictions applicable to
Foreign Subsidiaries arising under agreements applicable to Indebtedness
permitted under Section 6.01(o), (v) restrictions existing at the time a
Person becomes a Restricted Subsidiary and arising in connection with
Indebtedness permitted under Section 6.01(j), so long as such restrictions
are not created in contemplation of or in connection with such Person
becoming a Restricted Subsidiary, (w) restrictions and conditions imposed
by law or by this Agreement or any other Loan Document, (x) restrictions
and conditions existing on the date hereof in the agreements and
instruments identified on Schedule III (and any restrictions or conditions
in any extension, renewal, replacement and refinancing of any such
agreement or instrument (or any Indebtedness referenced in clause (v)
above) after the date hereof, other than any such agreement or instrument
that is stated on Schedule III
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to expire or be cancelled on or about the Closing Date, so long as the
terms and conditions of any such restrictions or conditions contained in
such agreement or instrument (or Indebtedness) as so extended, renewed or
refinanced are no less favorable to the Lenders than those in the
agreements and instruments identified on Schedule III or those under the
Senior 2002 Notes), (y) customary restrictions and conditions contained in
agreements relating to the sale of equity interests in a Restricted
Subsidiary or the assets of a Restricted Subsidiary, as the case may be,
pending such sale, provided that such restrictions and conditions apply
only to the Restricted Subsidiary that is to be sold and such sale is
permitted hereunder and (z) restrictions and conditions contained in any
Permitted Senior Indebtedness or Permitted Subordinated Indebtedness so
long as the terms and conditions of any such restrictions or conditions
contained in such Indebtedness are no less favorable to the Lenders than
those under the Senior 2002 Notes;
(ii) the foregoing shall not apply to (w) any cash deposit held by a
customer in the ordinary course of business that is otherwise permitted
under this Agreement, (x) restrictions with respect to any property or
asset that is the subject of an option or an agreement to transfer which
option or agreement is otherwise permitted under this Agreement, (y)
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such Indebtedness
and (z) customary provisions in leases, licenses and other contracts
restricting the assignment, subletting or transfer thereof or of the
property subject to any such lease, license or other contract (provided
that no such lease, license or other contract entered into after the date
hereof shall restrict the granting of any Lien securing the Secured
Obligations, in each case as defined in the Intercreditor and Collateral
Trust Agreement and the Lender Security Agreement, except that transponder
leases and leases of Excluded Satellites may contain a covenant of quiet
enjoyment in substantially the form of Schedule XIII or in such other form
as shall be satisfactory to the Administrative Agent);
(iii) clause (a) shall not apply to any restriction or condition
arising in connection with Indebtedness permitted under Section 6.01, so
long as (x) such restriction or condition expressly permits any Lien
securing the Secured Obligations (in each case as defined in the
Intercreditor and Collateral Trust Agreement and the Lender Security
Agreement) on any property or assets of the Borrower or any of its
Restricted Subsidiaries (including without limitation any property or
assets not subject to Liens on the Closing Date) and (y) the terms of any
such restrictions or conditions are no less favorable to the Lenders than
those under the Senior 2002 Notes; and
(iv) clause (a) and (b) of the foregoing shall not apply to
restrictions on cash or other deposits or net worth imposed by leases,
credit agreements or other agreements entered into in the ordinary course
of business.
SECTION 6.09. Sale and Lease-Back Transactions. The Borrower will
not, and will not permit any of its Restricted Subsidiaries to, 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
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property or other property which it intends to use for substantially the same
purpose or purposes as the property being sold or transferred, provided that,
notwithstanding the foregoing, so long as the aggregate amount of Indebtedness
or Attributable Debt arising in connection therewith is permitted under Section
6.01(i), the Borrower and its Restricted Subsidiaries may enter into any such
arrangement with respect to one or more Satellites, transponders, TT&C Stations,
other real property, tools, equipment and office equipment so long as (A)
immediately prior to such transaction and after giving effect thereto, no
Default shall have occurred and be continuing and (B) after giving effect to
such transaction, the Borrower shall be in compliance with Section 6.10 (the
determination of such compliance to be calculated on a pro forma basis) as at
the end of and for the period of four fiscal quarters most recently ended prior
to the date of such transaction for which financial statements of the Borrower
and its Subsidiaries are available, under the assumption that such transaction
shall have occurred at the beginning of the applicable period, and under the
assumption that interest for such period had been equal to the rate of interest
on such Indebtedness or Attributable Debt.
SECTION 6.10. Certain Financial Covenants.
(a) Leverage Ratios. The Borrower will not permit the Total Leverage
Ratio or Senior Leverage Ratio to exceed the following respective ratios at any
time during the following respective periods:
Total Senior
Period Leverage Ratio Leverage Ratio
------ -------------- --------------
From and including the date hereof
to and including December 31, 2002 5.75 to 1 4.25 to 1
From and including January 1, 2003
to and including September 30, 2003 5.25 to 1 3.75 to 1
From and including October 1, 2003
to and including December 31, 2003 5.00 to 1 3.75 to 1
From and including January 1, 2004
to and including June 30, 2004 4.75 to 1 3.00 to 1
From and including July 1, 2004
to and including December 31, 2004 4.50 to 1 3.00 to 1
From and including January 1, 2005
to and including June 30, 2005 4.00 to 1 2.50 to 1
From and including July 1, 2005
to and including December 31, 2005 3.50 to 1 2.50 to 1
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From and including January 1, 2006
to and including December 31, 2006 3.25 to 1 2.50 to 1
From and including January 1, 2007
and thereafter 3.00 to 1 2.50 to 1
(b) Interest Coverage Ratio. The Borrower will not permit the
Interest Coverage Ratio to be less than the following respective ratios at any
time during the following respective periods:
Period Minimum Ratio
------ -------------
From and including the date hereof
to and including March 30, 2003 2.25 to 1
From and including March 31, 2003
to and including March 30, 2004 2.50 to 1
From and including March 31, 2004
to and including March 30, 2005 2.75 to 1
From and including March 31, 2005
and thereafter 3.00 to 1
(c) Fixed Charges Ratio. The Borrower will not permit the Fixed
Charges Ratio to be less than the following respective ratios at any time during
the following respective periods:
Period Minimum Ratio
------ -------------
From and including the date hereof
to and including March 30, 2003 1.50 to 1
From and including March 31, 2003
to and including March 30, 2004 1.10 to 1
From and including March 31, 2004
to and including March 30, 2005 1.50 to 1
From and including March 31, 2005
to and including March 30, 2006 1.00 to 1
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From and including March 31, 2006
to and including March 30, 2008 1.50 to 1
From and including March 31, 2008
and thereafter 1.00 to 1
(d) Capital Expenditures. The Borrower will not permit the aggregate
amount of Capital Expenditures by the Borrower and its Restricted Subsidiaries
to exceed the following respective amounts for the following respective fiscal
years:
Fiscal Year Ending Amount
------------------ ------
December 31, 2002 $425,000,000
December 31, 2003 $300,000,000
December 31, 2004 $300,000,000
December 31, 2005 $300,000,000
December 31, 2006 $300,000,000
December 31, 2007 $300,000,000
December 31, 2008 $300,000,000
If the aggregate amount of Capital Expenditures for any period set forth in the
schedule above shall be less than the amount set forth opposite such period in
the schedule above, then the shortfall shall be added to the amount of Capital
Expenditures permitted for the immediately succeeding (but not any other)
period, except that any such amount added to such immediately succeeding period
that is not expended during such period may (but only so long as the same are
applied to Capital Expenditures in connection with the purchase or construction
of Satellites) be applied to Capital Expenditures in the next following period.
By way of illustration, permitted amounts not expended in 2002 may be carried
forward to 2003 and, to the extent applied to the purchase or construction of
Satellites, may be carried forward to 2004.
SECTION 6.11. Payment of Other Indebtedness. The Borrower will not,
nor will it permit any of its Restricted Subsidiaries to, purchase, redeem,
retire or otherwise acquire for value, or set apart any money for a sinking,
defeasance or other analogous fund for the purchase, redemption, retirement or
other acquisition of, or make any voluntary payment or prepayment of the
principal of or interest on, or any other amount owing in respect of, the Senior
1998 Notes, the Senior 2002 Notes, any Permitted Senior Debt or any Subordinated
Indebtedness, except for (i) regularly scheduled payments, prepayments or
redemptions of principal and interest in respect thereof required pursuant to
the instruments evidencing the Senior 1998 Notes, the Senior 2002 Notes, such
Permitted Senior Debt or such Permitted Subordinated Indebtedness, (ii)
Permitted Discount Purchases, so long as the aggregate consideration paid by the
Borrower and its Restricted Subsidiaries during the term of this Agreement in
respect thereof shall not exceed $100,000,000 and (iii) payments of principal of
the Senior 1998 Notes from the portion of the Net Cash Proceeds of a Casualty
Event or Disposition in respect of Shared Property not applied to the prepayment
of obligations hereunder, all as more particularly described in the third from
the last sentence in the last paragraph of Section 4.01 of the Intercreditor and
Collateral Trust Agreement.
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SECTION 6.12. Modifications of Certain Documents. The Borrower will
not consent to any modification, supplement or waiver of any of the provisions
of the Senior 1998 Notes Indenture, the Senior 1998 Notes, the Senior 2002 Notes
Indenture, the Senior 2002 Notes, or any agreement, instrument or other document
evidencing or relating to Permitted Senior Indebtedness or any Subordinated
Indebtedness, without in each case the prior consent of the Administrative Agent
(with the approval of the Required Lenders). The Borrower will not, and will not
permit any Restricted Subsidiary to, issue any Disqualified Stock except as
permitted by Section 6.01(f).
SECTION 6.13. Designations of Unrestricted Subsidiaries, Etc. The
Borrower will not designate any Subsidiary as an "Unrestricted Subsidiary"
unless:
(a) such Subsidiary has no Indebtedness other than Indebtedness (i)
as to which neither the Borrower nor any Restricted Subsidiary (A)
provides credit support of any kind (including any undertaking, agreement
or instrument that would constitute Indebtedness) or (B) is directly or
indirectly liable as a guarantor or otherwise (except as a result of the
capital stock or other ownership interests of such Subsidiary being
pledged as security for Indebtedness of such Subsidiary if recourse of
such pledge is limited to such stock), except in the case of (A) and (B)
to the extent otherwise permissible under Section 6.05(l)), and (ii) no
default with respect to which (including any rights that the holders
thereof may have to take enforcement action against an Unrestricted
Subsidiary) would permit (upon notice, lapse of time or both) any holder
of any Material Indebtedness of the Borrower or any Restricted Subsidiary
to declare a default on such Material Indebtedness or cause the payment
thereof to be accelerated or payable prior to its stated maturity;
(b) except to the extent otherwise permitted under Section 6.01(l),
such Subsidiary is a Person with respect to which neither the Borrower nor
any Restricted Subsidiary has any direct or indirect obligation to
maintain or preserve such Person's financial condition or to cause such
Person to achieve any specified levels of operating results;
(c) such Subsidiary has not Guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Borrower or
any Restricted Subsidiary (except as a result of the equity interests in
such Subsidiary being pledged as security for Indebtedness of such
Subsidiary if recourse of such pledge is limited to such stock);
(d) such Subsidiary is not a "Restricted Subsidiary" under the
Senior 1998 Notes Indenture and is an "Unrestricted Subsidiary under the
Senior 2002 Notes Indenture and the respective indentures for Permitted
Senior Indebtedness and Permitted Subordinated Indebtedness;
(e) such Subsidiary and the Borrower shall be parties to an
agreement pursuant to which such Subsidiary shall have agreed to reimburse
the Borrower for any Federal, state
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and local income taxes attributable to such Subsidiary in a manner
consistent with the Borrower's obligations to any "common parent" referred
to in Section 6.07(d); and
(f) at the time thereof and after giving effect thereto, no Default
or Event of Default shall have occurred or be continuing.
Any designation of a Restricted Subsidiary as an Unrestricted
Subsidiary pursuant to this Section shall constitute an Investment in such
Unrestricted Subsidiary in an amount equal to the aggregate amount of the
Investments by the Borrower and its Restricted Subsidiaries in such Unrestricted
Subsidiary at the time of such designation.
Any designation of a Subsidiary of the Borrower as an Unrestricted
Subsidiary shall be evidenced to the Administrative Agent by filing with the
Administrative Agent a certified copy of a resolution of the Board of Directors
giving effect to such designation and a certificate of a senior financial
officer of the Borrower certifying that such designation complied with the
preceding conditions and is permitted by this Section. If, at any time, any
Unrestricted Subsidiary would fail to meet the preceding conditions (other than
clause (d)), it shall immediately cease to be an Unrestricted Subsidiary for the
purposes hereof and any Indebtedness of such Subsidiary shall be deemed to be
incurred by a Restricted Subsidiary as of such date and, if such Indebtedness is
not permitted to be incurred as of such date under Section 6.01, the Borrower
shall be in default of such covenant.
The Board of Directors may at any time designate an Unrestricted
Subsidiary to be a Restricted Subsidiary, provided that such designation shall
be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any
outstanding Indebtedness of such Unrestricted Subsidiary and such designation
shall only be permitted if after giving effect to such deemed incurrence of
Indebtedness, the Borrower shall be in compliance with Section 6.10 calculated
on a pro forma basis (as if such designation had occurred at the beginning of
the relevant periods).
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement or under any other Loan
Document, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of three or more Business
Days;
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(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any of its Restricted Subsidiaries, or the
Holding Company, in or in connection with this Agreement or any other Loan
Document or any amendment or modification hereof or thereof, or in any
report, certificate, financial statement or other document furnished
pursuant to or in connection with this Agreement or any other Loan
Document or any amendment or modification hereof or thereof, shall prove
to have been incorrect in any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02(a), 5.03 (with respect to
the Borrower's existence), 5.09 or 5.11, or in Article VI (other than
Sections 6.04 and 6.13);
(e) any Credit Party shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article) or any other Loan
Document and such failure shall continue unremedied for a period of 30 or
more days after notice thereof from the Administrative Agent (given at the
request of any Lender) to the Borrower;
(f) the Borrower or any of its Restricted Subsidiaries shall fail to
make any payment (whether of principal or interest and regardless of
amount) in respect of any Material Indebtedness, when and as the same
shall become due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that this clause (g)
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;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Borrower or any of its Restricted Subsidiaries,
or the Holding Company, or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or other similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for the Borrower or any of its Restricted
Subsidiaries, or the Holding Company, or for a substantial part of its
assets, and, in any such case, such proceeding or petition shall continue
undismissed for a period of 60 or more days or an order or decree
approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any of its Restricted Subsidiaries, or the
Holding Company, shall (i) voluntarily commence any proceeding or file any
petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency,
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receivership or other similar law now or hereafter in effect, (ii) consent
to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or petition described in clause (h) of this
Article, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the
Borrower or any of its Restricted Subsidiaries, or the Holding Company, or
for a substantial part of its assets, (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) take any action for the purpose of effecting any of the foregoing;
(j) the Borrower or any of its Restricted Subsidiaries, or the
Holding Company, shall become unable, admit in writing its inability or
fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $20,000,000 shall be rendered against the Borrower or
any of its Restricted Subsidiaries or any combination thereof and the same
shall remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to attach or levy upon any assets of the
Borrower or any of its Restricted Subsidiaries to enforce any such
judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that
have occurred, could reasonably be expected to result in a Material
Adverse Effect;
(m) a reasonable basis shall exist for the assertion against the
Borrower or any of its Subsidiaries, or any predecessor in interest of the
Borrower or any of its Subsidiaries, of (or there shall have been asserted
against the Borrower or any of its Subsidiaries) any claims or
liabilities, whether accrued, absolute or contingent, based on or arising
from the generation, storage, transport, handling or disposal of Hazardous
Materials by the Borrower or any of its Subsidiaries or predecessors that,
in the judgment of the Required Lenders, are reasonably likely to be
determined adversely to the Borrower or any of its Subsidiaries, and the
amount thereof (either individually or in the aggregate) is reasonably
likely to have a Material Adverse Effect (insofar as such amount is
payable by the Borrower or any of its Subsidiaries but after deducting any
portion thereof that is reasonably expected to be paid by other
creditworthy Persons jointly and severally liable therefor);
(n) a Change in Control shall occur;
(o) any material FCC Licenses, or any other material authorizations,
orders, licenses or permits issued by any other Governmental Authority,
shall be revoked or canceled or expire by its terms and not be renewed, or
shall be modified, and such revocation, cancellation, expiration,
non-renewal, or modification shall be materially adverse to the Borrower
and its Restricted Subsidiaries taken as a whole, provided that no
revocation, cancellation or expiration of any one or more FCC Licenses for
the launch and operation of Satellites other than Satellites with C-band
or Ku-band transponders
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shall, by themselves, be deemed materially adverse to the Borrower and its
Restricted Subsidiaries for purposes hereof;
(p) the Liens created by the Security Documents shall at any time
not constitute a valid and perfected Lien on any material portion of the
collateral intended to be covered thereby (to the extent perfection by
filing, registration, recordation or possession is required herein or
therein) in favor of the Administrative Agent, free and clear of all other
Liens (other than Liens permitted under Section 6.02 or under the
respective Security Documents), or, except for expiration in accordance
with its terms, any of the Security Documents shall for whatever reason be
terminated or cease to be in full force and effect, or the enforceability
thereof shall be contested by any Credit Party; or
(q) in the event that the Borrower shall at any time after the date
hereof become a Wholly Owned Subsidiary of another Person (other than
pursuant to a transaction described in Section 6.03(f) that itself gives
rise to a Holding Company), such Person shall have failed, within 30 days
thereafter, (i) to create a Holding Company to own directly all of the
issued and outstanding capital stock and other ownership interests of the
Borrower, (ii) to cause such Holding Company to execute and deliver to the
Administrative Agent a Holding Company Pledge Agreement together with such
proof of corporate or other action, incumbency of officers, opinions of
counsel and other documents as is consistent with those delivered by
PanAmSat pursuant to Section 4.01 on the Effective Date or as the
Administrative Agent shall have requested, or (iii) to take such action as
the Administrative Agent shall have reasonably requested to perfect the
Lien of the Holding Company Pledge Agreement in the capital stock or other
ownership interests of the Borrower owned by the Holding Company;
then, and in every such event (other than an event with respect to any Obligor
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Obligors accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by each Obligor; and in case of any
event with respect to any Obligor described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Obligors accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by each Obligor.
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ARTICLE VIII
THE ADMINISTRATIVE AGENT
Each of the Lenders, the Issuing Lender and the Swingline Lender
hereby irrevocably appoints the Administrative Agent as its agent hereunder and
under the other Loan Documents and authorizes the Administrative Agent to take
such actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto.
The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
Person and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or
by the other Loan Documents that the Administrative Agent is required to
exercise in writing by the Required Lenders, and (c) except as expressly set
forth herein and in the other Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders or in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have knowledge of
any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein,
(iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Article IV or
elsewhere herein or therein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the
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proper Person. The Administrative Agent also may rely upon any statement made to
it orally or by telephone and believed by it to be made by the proper Person,
and shall not incur any liability for relying thereon. The Administrative Agent
may consult with legal counsel (who may be counsel for a Credit Party),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
The Borrower by its execution and delivery of this Agreement hereby consents to
the foregoing.
The Administrative Agent may resign at any time by notifying the
Lenders, the Issuing Lender, the Swingline Lender and the Borrower. Upon any
such resignation, the Required Lenders shall have the right, in consultation
with the Borrower, to appoint a successor. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent's resignation shall
nonetheless become effective and (1) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and (2) the Required
Lenders shall perform the duties of the Administrative Agent (and all payments
and communications provided to be made by, to or through the Administrative
Agent shall instead be made by or to each Lender directly) until such time as
the Required Lenders appoint a successor agent as provided for above in this
paragraph. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder (if not already discharged therefrom
as provided above in this paragraph). The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.
After the Administrative Agent's resignation hereunder, the provisions of this
Article and Section 9.03 shall continue in effect for its benefit in respect of
any actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in
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taking or not taking action under or based upon this Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or
thereunder.
Anything herein to the contrary notwithstanding, none of the parties
indicated on the cover page hereof as a Bookrunner, Lead Arranger, Joint
Arranger, Syndication Agent or Documentation Agent, shall have any duties or
responsibilities under this Agreement, except in their capacity, if any, as the
Administrative Agent or a Lender hereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all 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:
(a) if to the Borrower or any Subsidiary Guarantor, to it at ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (Tel:
▇▇▇-▇▇▇-▇▇▇▇; Fax: ▇▇▇-▇▇▇-▇▇▇▇), with a courtesy copy to ▇▇▇▇▇▇, at ▇▇▇
▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇.▇. ▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇
▇▇▇▇▇▇ (Tel: ▇▇▇-▇▇▇-▇▇▇▇);
(b) if to the Administrative Agent, to Credit Suisse First Boston,
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /
Agency Group (Tel: ▇▇▇-▇▇▇-▇▇▇▇; Fax: ▇▇▇-▇▇▇-▇▇▇▇);
(c) if to the Issuing Lender, to it at Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ / Trade Services (Tel:
▇▇▇-▇▇▇-▇▇▇▇; Fax: ▇▇▇-▇▇▇-▇▇▇▇));
(d) if to the Swingline Lender, to it at Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ / Agency Group (Tel:
▇▇▇-▇▇▇-▇▇▇▇; Fax: ▇▇▇-▇▇▇-▇▇▇▇); and
(e) if to a Lender, to it at its address (or telecopy number) set
forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto (or, in the case
of any such change by a Lender, by notice to the Borrower and the Administrative
Agent). 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.
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SECTION 9.02. Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No failure or delay by
the Administrative Agent, the Issuing Lender, the Swingline Lender or any Lender
in exercising any right or power hereunder 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, the Issuing
Lender, the Swingline Lender and the Lenders hereunder are cumulative and are
not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender, the Issuing
Lender or the Swingline Lender may have had notice or knowledge of such Default
at the time.
(b) Amendments. Neither this Agreement nor any provision hereof may
be waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrower and the Required Lenders or by the Borrower
and the Administrative Agent with the consent of the Required Lenders; provided
that no such agreement shall
(i) increase any Commitment of any Lender without the written
consent of such Lender,
(ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount
of any Loan or LC Disbursement, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender affected thereby,
(iv) change Section 2.17(d) without the consent of each Lender
affected thereby, or
(v) change any of the provisions of this Section or the percentage
in 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 written consent of each Lender,
and provided further that (x) no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, the Issuing Lender or
the Swingline Lender
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hereunder without the prior written consent of the Administrative Agent, the
Issuing Lender or the Swingline Lender, as the case may be, and (y) that any
modification or supplement of the Guarantee Agreement shall require the consent
of each Subsidiary Guarantor.
Anything in this Agreement to the contrary notwithstanding, (A) no
waiver or modification of any provision of this Agreement that has the effect
(either immediately or at some later time) of enabling the Borrower to satisfy a
condition precedent to the making of a Loan of any Class shall be effective
against the Lenders of such Class for purposes of the Commitments of such Class
unless the Required Lenders of such Class shall have concurred with such waiver
or modification, and no waiver or modification of any provision of this
Agreement or any other Loan Document that could reasonably be expected to
adversely affect the Lenders of any Class in a manner that does not affect all
Classes equally shall be effective against the Lenders of such Class unless the
Required Lenders of such Class shall have concurred with such waiver or
modification and (B) neither the assumption by a New Borrower pursuant to
Section 6.03(f), nor the release of PanAmSat contemplated by said Section, shall
require the consent of any Lender, such assumption and release requiring only
the actions and determinations of the Administrative Agent provided for in said
Section. In addition, anything in this Agreement to the contrary notwithstanding
(including Section 2.17(c)), in the event that the Borrower determines prior to
June 30, 2002 that the aggregate amount of credit available under this
Agreement, when taken together with the proceeds of the Senior 2002 Notes,
results in liquidity in excess of what in its judgment is reasonably required
for the business and operations of the Borrower and its Subsidiaries, the
Borrower shall be permitted to enter into arrangements with one or more Lenders
pursuant to which it would purchase and assume Loans and Revolving Credit
Commitments from such Lenders and then simultaneously cancel such Commitments
and Loans, provided that the Borrower shall not be permitted to purchase, assume
and cancel more than an aggregate $75,000,000 of Commitments and Loans pursuant
to this sentence.
(c) Certain Amendments of Security Documents. Except as otherwise
provided in Section 9.02(b) with respect to this Agreement, the Administrative
Agent may, with the prior consent of the Required Lenders (but not otherwise),
consent to any modification, supplement or waiver under any of the Loan
Documents, provided that, without the prior consent of each Lender, the
Administrative Agent shall not (except as provided herein or in the Security
Documents) release (or authorize the Collateral Trustee to release) all or
substantially all of the collateral or otherwise terminate (or authorize the
Collateral Trustee to terminate) all or substantially all of the Liens under the
Security Documents, agree (or authorize the Collateral Trustee to agree) to
additional obligations being secured by all or substantially all of such
collateral security (unless the Lien for such additional obligations shall be
junior to the Lien in favor of the other obligations secured by such Security
Document, in which event the Administrative Agent may consent (and may authorize
the Collateral Trustee to consent) to such junior Lien provided that it obtains
the consent of the Required Lenders thereto), alter (or authorize the Collateral
Trustee to alter) the relative priorities of the obligations entitled to the
benefits of the Liens created under the Security Documents with respect to all
or substantially all of such collateral or release (or authorize the Collateral
Trustee to release) all or substantially all of the Subsidiary Guarantors under
the Security Documents from their guarantee obligations thereunder, except that
no such consent shall be required, and the Administrative Agent is hereby
authorized (and shall be required), to promptly (i) release (and to instruct the
Collateral Trustee
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to release) any Lien covering property that is the subject of either a
disposition of property permitted hereunder or a disposition to which the
Required Lenders have consented or, in the case of any disposition of all of the
capital stock or other ownership interests of any Restricted Subsidiary, or in
case any Restricted Subsidiary is designated as an Unrestricted Subsidiary in
accordance with the provisions of Section 6.13, release all Liens on the
property of and any Guarantee provided by such Restricted Subsidiary, (ii)
release or subordinate any Lien covering property on which, pursuant to Section
6.02, the Borrower and its Restricted Subsidiaries are permitted to grant Liens
in favor of third parties, (iii) add property to the Lien of the Security
Documents or enter into additional Security Documents as contemplated by Section
5.11 and (iv) in the event a Subsidiary becomes or ceases to be a "Restricted
Subsidiary" under and as defined in the 1998 Senior Notes Indenture, add
indebtedness or equity interests of such Subsidiary to, or release any such
indebtedness or equity interests from, the Lien of the Shared Security Agreement
(and release or add such indebtedness and equity interests from or to the Lien
of the Lender Security Agreement), as the case may be.
Notwithstanding the foregoing, in the event that it shall be a
condition to the Administrative Agent or Collateral Trustee obtaining a Lien
upon the rights of any Obligor under an agreement or other instrument to which
such Obligor is a party with a third party relating to the lease, license or
other use of property owned by such Obligor that the Administrative Agent or
Collateral Trustee agree that the rights of such third party in respect of such
property shall not be affected or impaired by such Lien (or that the
Administrative Agent or Collateral Trustee subordinate such Lien in respect of
property to the rights of such third party), each of the Lenders hereby
authorizes and directs the Administrative Agent to enter into (and to direct the
Collateral Trustee to enter into) such agreement (or such subordination) in such
form as the Administrative Agent shall deem appropriate in the circumstances, it
being understood that in the case of a transponder lease or a lease of an
Excluded Satellite, such agreement may be in the form of a consent of the
Administrative Agent to a covenant of quiet enjoyment in substantially the form
of Schedule XIII or in such other form as shall be satisfactory to the
Administrative Agent.
SECTION 9.03. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of this Agreement and the other Loan
Documents or any amendments, modifications or waivers of the provisions hereof
or thereof (whether or not the transactions contemplated hereby or thereby shall
be consummated), (ii) all out-of-pocket expenses incurred by the Issuing Lender
in connection with the issuance, amendment, renewal or extension of any Letter
of Credit or any demand for payment thereunder, (iii) all out-of-pocket expenses
incurred by the Administrative Agent, the Issuing Lender or any Lender,
including the fees, charges and disbursements of any counsel for the
Administrative Agent, the Issuing Lender or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement and
the other Loan Documents, including its rights under this Section, or in
connection with the Loans made or Letters of Credit issued hereunder, including
in connection with any workout, restructuring or negotiations in respect thereof
and (iv) all costs, expenses, taxes, assessments and other charges incurred in
connection with any
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filing, registration, recording or perfection of any security interest
contemplated by any Security Document or any other document referred to therein.
(b) Indemnification by the Borrower. The Borrower shall indemnify
the Administrative Agent, the Issuing Lender and each Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the
use of the proceeds therefrom (including any refusal by the Issuing Lender to
honor a demand for payment under a Letter of Credit if the documents presented
in connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of
its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, (iv) the launch or operation of any
Satellite, or (v) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory and regardless of whether 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
have resulted from the gross negligence or willful misconduct of such
Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrower fails
to pay any amount required to be paid by it to the Administrative Agent, the
Issuing Lender or the Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent, the
Issuing Lender or the Swingline Lender, as the case may be, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, the Issuing Lender or the Swingline Lender in
its capacity as such.
(d) Waiver of Consequential Damages, Etc. To the extent permitted by
applicable law, the Borrower shall not assert, and the Borrower hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement
or any agreement or instrument contemplated hereby, the Transactions, any Loan
or Letter of Credit or the use of the proceeds thereof.
(e) Payments. All amounts due under this Section shall be payable
promptly after written demand therefor.
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SECTION 9.04. Successors and Assigns.
(a) Assignments Generally. 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 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). 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 and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Issuing Lender and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) Assignments by Lenders. Any Lender may assign to one or more
assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitments and the Loans at the time owing
to it); provided that
(i) except in the case of an assignment to a Lender or an Affiliate
(or Approved Fund) of a Lender, each of the Borrower and the
Administrative Agent must give their prior written consent to such
assignment (which consent shall not be unreasonably withheld),
(ii) in the case of an assignment of all or a portion of a Revolving
Credit Commitment or any Lender's obligations in respect of its LC
Exposure or Swingline Exposure, the Issuing Lender and the Swingline
Lender must give their prior written consent to such assignment,
(iii) except in the case of an assignment to a Lender or an
Affiliate (or Approved Fund) of a Lender or an assignment of the entire
remaining amount of the assigning Lender's Commitment(s), the amount of
the Commitment(s) of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to
such assignment is delivered to the Administrative Agent) shall not be
less than $5,000,000 (in the case of the Revolving Credit Commitments) or
$1,000,000 (in the case of the Tranche A or Tranche B Term Loan
Commitments) unless each of the Borrower and the Administrative Agent
otherwise consent,
(iv) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement,
(v) the assignee, if it shall be a Foreign Lender, shall deliver to
the Borrower any documentation required to be delivered by it pursuant to
Section 2.16(e), duly completed and executed by the assignee,
(vi) 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
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(vii) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire;
provided further that any consent of the Borrower otherwise required under this
paragraph shall not be required if an Event of Default has occurred and is
continuing. Upon acceptance and recording pursuant to paragraph (d) of this
Section, 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 2.14,
2.15, 2.16 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph 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 (e) of
this Section.
Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose vehicle (an "SPV")
of such Granting Lender, identified as such in writing from time to time by the
Granting Lender to the Administrative Agent and the Borrower, the option to
provide to the Borrower all or any part of any Loan that such Granting Lender
would otherwise be obligated to make to the Borrower pursuant to Section 2.01,
provided that (i) nothing herein shall constitute a commitment by any SPV to
make any Loan, (ii) if an SPV elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof and (iii) the Borrower
may bring any proceeding against either the Granting Lender or the SPV in order
to enforce any rights of the Borrower under any of the Loan Documents. The
making of a Loan by an SPV hereunder shall utilize the relevant Commitment of
the Granting Lender to the same extent, and as if, such Loan were made by the
Granting Lender. Each party hereto hereby agrees that no SPV shall be liable for
any payment under this Agreement for which a Lender would otherwise be liable,
for so long as, and to the extent, the related Granting Lender makes such
payment. In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPV, it will not institute
against, or join any other person in instituting against, such SPV any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other similar proceedings under the laws of the United States of America or
any State thereof arising out of any claim against such SPV under this
Agreement. In addition, notwithstanding anything to the contrary contained in
this Section, any SPV may with notice to, but without the prior written consent
of, the Borrower or the Administrative Agent and without paying any processing
fee therefor, assign all or a portion of its interests in any Loans to its
Granting Lender or to any financial institutions (consented to by the Borrower
and the Administrative Agent) providing liquidity and/or credit support (if any)
with respect to commercial paper issued by such SPV to fund such Loans and such
SPV may disclose, on a
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confidential basis, confidential information with respect to the Borrower and
its Subsidiaries to any rating agency, commercial paper dealer or provider of a
surety, guarantee or credit liquidity enhancement to such SPV. This paragraph
may not be amended without the consent of any SPV at the time holding Loans
under this Agreement.
(c) Maintenance of Register by the Administrative Agent. The
Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices in New York City a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amount of the
Loans and LC Disbursements 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, the Issuing Lender and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Lender and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Effectiveness of Assignments. 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.
(e) Participations. Any Lender may, without the consent of the
Borrower, the Administrative Agent, the Issuing Lender or the Swingline Lender,
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
and the other Loan Documents (including all or a portion of its Commitments and
the Loans owing to it); provided that (i) such Lender's obligations under this
Agreement and the other Loan Documents shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations and (iii) the Borrower, the Administrative Agent, the
Issuing Lender 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 and the other Loan Documents. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and the other Loan
Documents and to approve any amendment, modification or waiver of any provision
of this Agreement or any other Loan Document; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.02(b) that affects such Participant. Subject to
paragraph (f) of this Section, the Borrower agrees that each Participant shall
be entitled to the benefits of Sections 2.14, 2.15 and 2.16 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section.
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(f) Limitations on Rights of Participants. A Participant shall not
be entitled to receive any greater payment under Section 2.14 or 2.16 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 2.16 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 2.16(e) as though it were a
Lender.
(g) Certain Pledges. 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 such pledge or assignment 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 assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Lender or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.14, 2.15, 2.16, 3.03 and 9.03 and
Article VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract between and among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts 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 parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page to this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
Credit Agreement
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SECTION 9.07. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. 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 or any
subsidiary or Affiliate thereof to or for the credit or the account of any
Obligor against any of and all the obligations of any Obligor now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement shall be construed in accordance
with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. The Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, 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 the State of New York 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 the Administrative Agent, the Issuing Lender or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement
against any Obligor or its properties in the courts of any jurisdiction.
(c) Waiver of Venue. The Borrower 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 in
any court referred to in paragraph (b) of this Section. 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.
(d) Service of Process. Each party to this Agreement irrevocably
consents to service of process in the manner provided for notices in Section
9.01. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
Credit Agreement
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SECTION 9.10. 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 ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). 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 BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. 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 shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Treatment of Certain Information; Confidentiality.
(a) Treatment of Certain Information. The Borrower acknowledges that
from time to time financial advisory, investment banking and other services may
be offered or provided to the Borrower or one or more of its Subsidiaries (in
connection with this Agreement or otherwise) by any Lender or by one or more
subsidiaries or affiliates of such Lender and the Borrower hereby authorizes
each Lender to share any information delivered to such Lender by the Borrower
and its Subsidiaries pursuant to this Agreement, or in connection with the
decision of such Lender to enter into this Agreement, to any such subsidiary or
affiliate, it being understood that any such subsidiary or affiliate receiving
such information shall be bound by the provisions of paragraph (b) of this
Section as if it were a Lender hereunder. Such authorization shall survive the
repayment of the Loans, the expiration or termination of the Letters of Credit
and the Commitments or the termination of this Agreement or any provision
hereof.
(b) Confidentiality. Each of the Administrative Agent, the Issuing
Lender and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (i) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (ii) to the
extent requested by any regulatory authority (including the National Association
of Insurance Commissioners), (iii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (iv) to any other party
to this Agreement, (v) in connection with the exercise of any remedies hereunder
or under any other Loan Document or any suit, action or proceeding relating to
this Agreement or any other Loan Document or the enforcement of rights hereunder
or thereunder, (vi) subject to an agreement containing provisions substantially
the same as those of this paragraph, to any assignee of or Participant in, or
any prospective assignee of or Participant in, any of its rights or obligations
under this Agreement, (vii) with the consent of the Borrower,
Credit Agreement
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(viii) to any direct or indirect contractual counterparty in any swap, hedge or
similar agreement (or to any such contractual counterparty's professional
advisor), so long as such contractual counterparty (or such professional
advisor) agrees to be bound by the provisions of this Section 9.12, or (ix) to
the extent such Information (A) becomes publicly available other than as a
result of a breach of this paragraph or (B) becomes available to the
Administrative Agent, the Issuing Lender or any Lender on a nonconfidential
basis from a source other than a Credit Party. For the purposes of this
paragraph, "Information" means all information received from any Credit Party
relating to a Credit Party or its business, other than any such information that
is available to the Administrative Agent, the Issuing Lender or any Lender on a
nonconfidential basis prior to disclosure by a Credit Party; provided that, in
the case of information received from a Credit Party after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION 9.13. Limitation on Liability. Each Lender (and the
Administrative Agent) hereby agrees that, to the extent any portion of the
proceeds of the Refinancing shall be paid or delivered to ▇▇▇▇▇▇ and/or by
▇▇▇▇▇▇ to General Motors Acceptance Corporation, such Lender (and the
Administrative Agent) will not assert (and hereby waives) any claim against
▇▇▇▇▇▇ and/or General Motors Acceptance Corporation with respect to any such
proceeds or in any other manner seek to recover any of such proceeds.
Credit Agreement
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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 above written.
PANAMSAT CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President &
Chief Financial Officer
LENDERS
CREDIT SUISSE FIRST BOSTON,
individually, as Swingline Lender and
as Administrative Agent
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
BANKERS TRUST COMPANY
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Credit Agreement
- 126 -
ALLIED IRISH BANKS PLC
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
Title: Vice President
THE GOVERNOR AND COMPANY OF
THE BANK OF SCOTLAND
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Associate Director, Telecoms and
Media
FUJI BANK, LTD.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Manager
Credit Agreement
GENERAL ELECTRIC CAPITAL
CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Manager-Operations
SOCIETE GENERALE, NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
THE BANK OF NEW YORK
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Credit Agreement
METROPOLITAN LIFE INSURANCE
COMPANY
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
Credit Agreement
CREDIT INDUSTRIEL ET COMMERCIAL
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
INDUSTRIAL BANK OF JAPAN
By /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and Senior
Deputy General Manager
Credit Agreement
