EXECUTION COPY
AMENDMENT AGREEMENT
AMENDMENT AGREEMENT, dated as of July 3, 2006 (this "AGREEMENT"),
among PANAMSAT CORPORATION, a Delaware corporation (the "BORROWER"), the
Guarantors party hereto, CITICORP USA, INC., as Administrative Agent, the
lending institutions and other Persons with a Commitment under the Second
Amended and Restated Credit Agreement (as defined below) (the "LENDERS"),
CITIGROUP GLOBAL MARKETS INC., as Joint Lead Arranger and Joint Bookrunner,
DEUTSCHE BANK SECURITIES INC., as Joint Lead Arranger, Joint Bookrunner, CREDIT
SUISSE SECURITIES (USA) LLC, as Joint Lead Arranger and Joint Bookrunner, CREDIT
SUISSE, CAYMAN ISLANDS BRANCH as Syndication Agent and ▇▇▇▇▇▇ BROTHERS INC. as
Joint Lead Arranger and Joint Bookrunner.
W I T N E S S E T H:
WHEREAS, the Borrower, the lending institutions from time to time
party thereto as Lenders (the "ORIGINAL LENDERS"), Citicorp USA, Inc., as
administrative agent, Citigroup Global Markets Inc., as joint lead arranger and
joint bookrunner, Credit Suisse, Cayman Islands Branch (formerly known as Credit
Suisse First Boston, acting though its Cayman Islands Branch), as joint lead
arranger, joint lead bookrunner and syndication agent, and Bear, ▇▇▇▇▇▇▇ and Co.
Inc., ▇▇▇▇▇▇ Brothers Inc. and Bank of America, N.A., as co-documentation agents
for the Original Lenders, entered into that certain Credit Agreement, dated as
of August 20, 2004 (as further amended, supplemented or otherwise modified from
time to time prior to the date hereof, the "ORIGINAL CREDIT AGREEMENT"),
pursuant to which the Original Lenders made certain loans and other extensions
of credit to the Borrower;
WHEREAS, the Borrower, the Lenders party thereto from time to time,
Citicorp USA, Inc., as administrative agent, Citigroup Global Markets Inc., as
joint lead arranger and joint bookrunner, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, as joint lead arranger, joint bookrunner and syndication agent,
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as joint lead arranger, joint
bookrunner and documentation agent, entered into the first amendment and
restatement of the Original Agreement on March 22, 2005 (the "FIRST AMENDED AND
RESTATED CREDIT AGREEMENT");
WHEREAS, the Obligations (as defined in the First Amended and Restated
Credit Agreement, hereinafter the "ORIGINAL OBLIGATIONS") of the Borrower and
the other Credit Parties under the First Amended and Restated Credit Agreement
and the other Credit Documents (as defined in the First Amended and Restated
Credit Agreement, hereinafter the "CREDIT DOCUMENTS") are secured by certain
collateral (hereinafter the "CONTINUING COLLATERAL") and are guaranteed or
otherwise benefited by the Credit Documents;
WHEREAS, Intelsat (Bermuda), Ltd. ("INTELSAT BERMUDA") intends to
acquire all of the outstanding equity interests of PanAmSat Holding Corporation
("HOLDINGS") pursuant to the terms of the Acquisition Agreement and, in
connection with such Acquisition, Borrower would like to renew, amend and
restate the First Amended and Restated Credit Agreement ;
WHEREAS, the parties hereto wish to renew, amend and restate the First
Amended and Restated Credit Agreement in its entirety to effect the amendments
described therein and to (i) create a class of Renewed Revolving Credit
Commitments (as defined below) having identical terms with, having the same
rights and obligations under the Credit Documents as and in the same aggregate
principal amount as, the Revolving Credit Commitments (as defined in the First
Amended and Restated Credit Agreement), (ii) create a Class of Tranche A-3 Term
Loans (as defined below) having identical terms with, having the same rights and
obligations under the Credit Documents as and in the same aggregate
principal amount as, the Tranche A-1 Term Loans and the Tranche A-2 Term Loans
(as defined in the First Amended and Restated Credit Agreement), and (iii)
create a Class of Tranche B-2 Term Loans (as defined below) having identical
terms with, having the same rights and obligations under the Credit Documents as
and in the same aggregate principal amount as, the Tranche B-1 Term Loans (as
defined in the First Amended and Restated Credit Agreement), in each case,
except as such terms are amended in the Second Amended and Restated Credit
Agreement (as defined below);
WHEREAS, each Lender with a Revolving Credit Commitment (as defined in
the First Amended and Restated Credit Agreement) who executes and delivers this
Agreement shall be deemed, upon effectiveness of this Agreement, to have
exchanged its Revolving Credit Commitment (which Revolving Credit Commitment
shall thereafter be deemed terminated) and Revolving Credit Loans (as defined in
the First Amended and Restated Credit Agreement) for a Renewed Revolving Credit
Commitment (as defined below) and Exchange Revolving Credit Loans (as defined
below) under the Second Amended and Restated Credit Agreement in the same
aggregate principal amount as such Lender's Revolving Credit Commitment and
Revolving Credit Loans, and such Lender shall thereafter have a Renewed
Revolving Credit Commitment and Exchange Revolving Credit Loans under the Second
Amended and Restated Credit Agreement;
WHEREAS, each Tranche A Term Loan Lender (as defined in the First
Amended and Restated Credit Agreement) who executes and delivers this Agreement
shall be deemed, upon effectiveness of this Agreement, to have exchanged its
Tranche A-1 Term Loan Commitment (as defined in the First Amended and Restated
Agreement) and Tranche A-1 Term Loans (which Tranche A-1 Term Loan Commitment
and Tranche A-1 Term Loans shall thereafter be deemed terminated) and/or its
Tranche A-2 Term Loan Commitment (as defined in the First Amended and Restated
Agreement) and Tranche A-2 Term Loans (which Tranche A-2 Term Loan Commitment
and Tranche A-2 Term Loans shall thereafter be deemed terminated), as
applicable, for a Tranche A-3 Term Loan Commitment (as defined below) and
Tranche A-3 Term Loans under the Second Amended and Restated Credit Agreement in
the same aggregate principal amount as such Lender's Tranche A-1 Term Loans or
Tranche A-2 Term Loans, as applicable, and such Lender shall thereafter become a
Tranche A-3 Term Loan Lender under the Second Amended and Restated Credit
Agreement;
WHEREAS, each Tranche B-1 Term Loan Lender (as defined in the First
Amended and Restated Credit Agreement) who executes and delivers this Agreement
shall be deemed, upon effectiveness of this Agreement, to have exchanged its
Tranche B-1 Term Loan Commitment (as defined in the First Amended and Restated
Credit Agreement) and Tranche B-1 Term Loans (which Tranche B-1 Term Loan
Commitment and Tranche B-1 Term Loans shall thereafter be deemed terminated) for
a Tranche B-2 Term Loan Commitment (as defined below) and Tranche B-2 Term Loans
under the Second Amended and Restated Credit Agreement in the same aggregate
principal amount as such Lender's Tranche B-1 Term Loans, and such Lender shall
thereafter become a Tranche B-2 Term Loan Lender under the Second Amended and
Restated Credit Agreement;
WHEREAS, each Person who executes and delivers this Agreement as an
Additional Revolving Credit Lender (as defined below) commits to provide its
Additional Renewed Revolving Credit Commitment (as defined below) and will make
Exchange Revolving Credit Loans under the Second Amended and Restated Credit
Agreement on the effective date of this Agreement to the Borrower, the proceeds
of which will be used by the Borrower to replace the Revolving Credit Commitment
of, and to refinance in full the outstanding principal amount of Revolving
Credit Loans of, Non-Consenting Revolving Commitment Lenders (as defined below);
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WHEREAS, each Person who executes and delivers this Agreement as an
Additional Term Loan Lender (as defined below) will make Tranche A-3 Term Loans
and/or Tranche B-2 Term Loans, as applicable, under the Second Amended and
Restated Credit Agreement on the effective date of this Agreement to the
Borrower, the proceeds of which will be used by the Borrower to refinance in
full the outstanding principal amount of Term Loans of Non-Consenting Term Loan
Lenders (as defined below);
WHEREAS, the Borrower shall pay (i) to each lender of Revolving Credit
Loans all accrued and unpaid Commitment Fees payable to such lender pursuant to
Section 4.1 of the First Amended and Restated Credit Agreement and (ii) to each
lender of Revolving Credit Loans and each Tranche A Term Loan Lender and Tranche
B-1 Term Loan Lender all accrued and unpaid interest on its Loans, in each case
to, but not including, the date of effectiveness of this Agreement on such date
of effectiveness; and
WHEREAS, the parties hereto intend that (a) the loans under the First
Amended and Restated Credit Agreement outstanding as of the date hereof
(including after giving effect to the exchange of Loans contemplated by this
Agreement) shall be Loans under and as defined in the Second Amended and
Restated Credit Agreement on the terms set forth therein, (b) any letters of
credit outstanding under the First Amended and Restated Credit Agreement as of
the date hereof shall be Letters of Credit under and as defined in the Second
Amended and Restated Credit Agreement and (c) the Continuing Collateral and the
Credit Documents shall continue to secure, guarantee, support and otherwise
benefit the Original Obligations as well as the other Obligations of the
Borrower and the other Credit Parties under the Second Amended and Restated
Credit Agreement and the other Credit Documents.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration (the receipt and sufficiency of which is hereby
acknowledged), the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS.
(a) CERTAIN DEFINITIONS. The following terms when used in this
Agreement shall have the following meanings (such meanings to be equally
applicable to the singular and plural form thereof):
"ACQUISITION" means the acquisition of Holdings by Intelsat Bermuda
pursuant to the Acquisition Agreement.
"ACQUISITION AGREEMENT" means the Merger Agreement, dated as of August
28, 2005, among Intelsat Bermuda, Proton Acquisition Corporation and Holdings,
as amended, supplemented or modified from time to time.
"ADDITIONAL LENDER" means an Additional Revolving Credit Lender, an
Additional Tranche A-3 Term Loan Lender and/or an Additional Tranche B-2 Term
Loan Lender.
"ADDITIONAL RENEWED REVOLVING CREDIT COMMITMENT" means, with respect
to an Additional Revolving Credit Lender, the commitment of such Additional
Revolving Credit Lender to make Exchange Revolving Credit Loans in an amount set
forth on Schedule 1 to this Agreement or otherwise indicated in writing to the
Administrative Agent. The aggregate amount of the Additional Renewed Revolving
Credit Commitments shall equal the outstanding principal amount of Revolving
Credit Commitment of Non-Consenting Revolving Commitment Lenders.
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"ADDITIONAL REVOLVING CREDIT LENDER" means a Person with an Additional
Renewed Revolving Credit Commitment on the Amendment Effective Date.
"ADDITIONAL TRANCHE A-3 TERM LOAN COMMITMENT" means, with respect to
an Additional Tranche A-3 Term Loan Lender, the commitment of such Additional
Tranche A-3 Term Loan Lender to make Tranche A-3 Term Loans on the Amendment
Effective Date, in an amount set forth on Schedule 1 this Agreement or otherwise
indicated in writing to the Administrative Agent. The aggregate amount of the
Additional Tranche A-3 Term Loan Commitments shall equal the outstanding
principal amount of Tranche A-1 Term Loans and Tranche A-2 Term Loans of
Non-Consenting Tranche A Term Loan Lenders.
"ADDITIONAL TRANCHE A-3 TERM LOAN LENDER" means a Person with an
Additional Tranche A-3 Term Loan Commitment to make Tranche A-3 Term Loans to
the Borrower on the Amendment Effective Date.
"ADDITIONAL TRANCHE B-2 TERM LOAN COMMITMENT" means, with respect to
an Additional Tranche B-3 Term Loan Lender, the commitment of such Additional
Tranche B-2 Term Loan Lender to make Tranche B-2 Term Loans on the Amendment
Effective Date, in an amount set forth on Schedule 1 to this Agreement or
otherwise indicated in writing to the Administrative Agent. The aggregate amount
of the Additional Tranche B-2 Term Loan Commitments shall equal the outstanding
principal amount of Tranche B-1 Term Loans of Non-Consenting Tranche B-1 Term
Loan Lenders.
"ADDITIONAL TRANCHE B-2 TERM LOAN LENDER" means a Person with an
Additional Tranche B-2 Term Loan Commitment to make Tranche B-2 Term Loans to
the Borrower on the Amendment Effective Date.
"AGREEMENT" is defined in the preamble.
"AMENDMENT EFFECTIVE DATE" is defined in Section 4 hereof.
"BORROWER" is defined in the preamble.
"CONTINUING COLLATERAL" is defined in the recitals hereto.
"CREDIT DOCUMENTS" is defined in the recitals hereto.
"EXCHANGE REVOLVING CREDIT LOANS" means a Loan made pursuant to
Section 2.1(b)(i) under the Second Amended and Restated Credit Agreement on the
Amendment Effective Date.
"FIRST AMENDED AND RESTATED CREDIT AGREEMENT" is defined in the
recitals hereto.
"HOLDINGS" is defined in the recitals hereto.
"INTELSAT BERMUDA" is defined in the recitals hereto.
"LENDERS" is defined in the preamble.
"NON-CONSENTING REVOLVING COMMITMENT LENDER" means each Lender with a
Revolving Credit Commitment that has not executed and delivered a counterpart of
this Agreement on or prior to the Amendment Effective Date for a Renewed
Revolving Credit Commitment at least equal to its Revolving Credit Commitment
immediately prior to the Amendment Effective Date.
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"NON-CONSENTING TERM LOAN LENDER" means any of a Non-Consenting
Tranche A Term Loan Lender or a Non-Consenting Tranche B-1 Term Loan Lender, as
applicable.
"NON-CONSENTING TRANCHE A TERM LOAN LENDER" means each Tranche A Term
Loan Lender that has not executed and delivered a counterpart of this Agreement
on or prior to the Amendment Effective Date for an amount of Tranche A-3 Term
Loans at least equal to its Tranche A-1 Term Loans and/or Tranche A-2 Term
Loans, as applicable, immediately prior to the Amendment Effective Date.
"NON-CONSENTING TRANCHE B-1 TERM LOAN LENDER" means each Tranche B-1
Term Loan Lender that has not executed and delivered a counterpart of this
Agreement on or prior to the Amendment Effective Date for an amount of Tranche
B-2 Loans at least equal to its Tranche B-1 Term Loans immediately prior to the
Amendment Effective Date.
"ORIGINAL CREDIT AGREEMENT" is defined in the recitals hereto.
"ORIGINAL LENDERS" is defined in the recitals hereto.
"RENEWED REVOLVING CREDIT COMMITMENT" means, with respect to a
Revolving Credit Commitment, the agreement of the Lender holding such commitment
to exchange the amount of its Revolving Credit Commitment set forth on Schedule
1 this Agreement for an equal aggregate principal amount of Renewed Revolving
Credit Commitments on the Amendment Effective Date under the Second Amended and
Restated Credit Agreement, as evidenced by such Lender executing and delivering
this Agreement.
"REVOLVING CREDIT LENDERS" means, collectively, (i) each Lender with a
Revolving Credit Commitment that executes and delivers this Agreement with
respect to all or part of such Revolving Credit Commitment on or prior to the
Amendment Effective Date and (ii) each Additional Revolving Credit Lender.
"SECOND AMENDED AND RESTATED CREDIT AGREEMENT" is defined in Section 3
hereof.
"TRANCHE A-3 TERM LOAN" means a Loan made pursuant to Section
2.1(a)(i) under the Second Amended and Restated Credit Agreement on the
Amendment Effective Date.
"TRANCHE A-3 TERM LOAN COMMITMENT" means, with respect to a Tranche A
Term Loan Lender, the agreement of such lender to exchange the amount of its
Tranche A-1 Term Loans and/or Tranche A-2 Term Loans, as applicable, set forth
on Schedule 1 to this Agreement for an equal aggregate principal amount of
Tranche 3-A Term Loans on the Amendment Effective Date under the Second Amended
and Restated Credit Agreement, as evidenced by such Tranche A Term Loan Lender
executing and delivering this Agreement.
"TRANCHE A-3 TERM LOAN LENDER" means, collectively, (i) each Tranche A
Term Loan Lender that executes and delivers this Agreement on or prior to the
Amendment Effective Date and (ii) each Additional Tranche A-3 Term Loan Lender.
"TRANCHE B-2 TERM LOAN" means a Loan made pursuant to Section
2.1(a)(ii) under the Second Amended and Restated Credit Agreement on the
Amendment Effective Date.
"TRANCHE B-2 TERM LOAN COMMITMENT" means, with respect to a Tranche
B-1 Term Loan Lender, the agreement of such Tranche B-1 Term Loan Lender to
exchange the amount of its Tranche B-1 Term Loans set forth on Schedule 1 to
this Agreement for an equal aggregate principal
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amount of Tranche B-2 Term Loans on the Amendment Effective Date under the
Second Amended and Restated Credit Agreement, as evidenced by such Tranche B-1
Term Loan Lender executing and delivering this Agreement.
"TRANCHE B-2 TERM LOAN LENDER" means, collectively, (i) each Tranche
B-1 Term Loan Lender that executes and delivers this Agreement on or prior to
the Amendment Effective Date and (ii) each Additional Tranche B-2 Term Loan
Lender.
(b) OTHER DEFINITIONS. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in the Second Amended
and Restated Credit Agreement shall have such meanings when used in this
Agreement.
SECTION 2. EXCHANGE OF LOANS AND COMMITMENTS.
(a) Subject to and upon the terms and conditions herein and of the
Second Amended and Restated Credit Agreement:
(i) each Lender with a Revolving Credit Commitment and
Revolving Credit Loans severally agrees to exchange its Revolving
Credit Commitment and Revolving Credit Loans for a like principal
amount of Renewed Revolving Credit Commitment and Exchange Revolving
Credit Loans on the Amendment Effective Date;
(ii) each Tranche A Term Loan Lender with a Tranche A-3 Term
Loan Commitment severally agrees to exchange its Tranche A-1 Term
Loans or its Tranche A-2 Term Loans, as applicable, for a like
outstanding principal amount of Tranche A-3 Term Loans on the
Amendment Effective Date, which exchange shall be deemed to be the
making of a Tranche A-3 Term Loan by such Lender for such amount; and
(iii) each Tranche B-1 Term Loan Lender with a Tranche B-2
Term Loan Commitment severally agrees to exchange its Tranche B-1 Term
Loans for a like outstanding principal amount of Tranche B-2 Term
Loans on the Amendment Effective Date, which exchange shall be deemed
to be the making of a Tranche B-2 Term Loan by such Lender for such
amount.
(b) Subject to and upon the terms and conditions herein and of the
Amended and Restated Credit Agreement:
(i) each Additional Revolving Credit Lender severally
commits to its Renewed Revolving Credit Commitment on the Amendment
Effective Date and severally agrees to make Exchange Revolving Credit
Loans on the Amendment Effective Date. The Revolving Credit
Commitments of all Non-Consenting Revolving Commitment Lenders shall
be terminated on the Amendment Effective Date and the Borrower shall
refinance on the Amendment Effective Date all Revolving Credit Loans
of Non-Consenting Revolving Commitment Lenders with the gross proceeds
of such Exchange Revolving Credit Loans;
(ii) each Additional Tranche A-3 Term Loan Lender severally
agrees to make Tranche A-3 Term Loans to the Borrower on the Amendment
Effective Date in a principal amount not to exceed its Additional
Tranche A-3 Term Loan Commitment on the Amendment Effective Date. The
Borrower shall refinance on the Amendment Effective Date all Tranche
A-1 Term Loans and all Tranche A-2 Term Loans of Non-Consenting
Tranche A Term Loan Lenders with the gross proceeds of such Tranche
A-3 Term Loans; and
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(iii) each Additional Tranche B-2 Term Loan Lender severally
agrees to make Tranche B-2 Term Loans to the Borrower on the Amendment
Effective Date in a principal amount not to exceed its Additional
Tranche B-2 Term Loan Commitment on the Amendment Effective Date. The
Borrower shall refinance on the Amendment Effective Date all Tranche
B-1 Term Loans of Non-Consenting Tranche B-1 Term Loan Lenders with
the gross proceeds of such Tranche B-2 Term Loans.
(c) The Borrower shall pay all accrued and unpaid Commitment Fees
payable pursuant to Section 4.1 of the First Amended and Restated Credit
Agreement and interest on (i) the Revolving Credit Loans (if any) to the lenders
with Revolving Credit Commitments, (ii) the Tranche A-1 Term Loans to the
applicable Tranche A Term Loan Lenders, (iii) the Tranche A-2 Term Loans to the
applicable Tranche A Term Loan Lenders and (iv) the Tranche B-1 Term Loans to
the Tranche B-1 Term Loan Lenders in each case to, but not including, the date
of refinancing thereof, such payment to be made on such date of refinancing and
any breakage loss or expense under Section 2.11 of the First Amended and
Restated Credit Agreement. The Amendment Effective Date shall be deemed the
first day of a new Interest Period under the Amended and Restated Credit
Agreement with respect to the Exchange Revolving Credit Loans, the Tranche A-3
Term Loans and the Tranche B-2 Term Loans made on the Amendment Effective Date.
(d) For avoidance of doubt, holders of the Exchange Revolving Credit
Loans, the Tranche A-3 Term Loans and the Tranche B-2 Term Loans shall be
entitled to the same guarantees and security interests pursuant to the Credit
Documents from and after the Amendment Effective Date as the holders of
Revolving Credit Loans, Tranche A-1 Term Loans, Tranche A-2 Term Loans and
Tranche B-1 Term Loans had been entitled immediately prior to the Amendment
Effective Date.
SECTION 3. AMENDMENT AND RESTATEMENT OF FIRST AMENDED AND RESTATED
CREDIT AGREEMENT.
On the Amendment Effective Date, the First Amended and Restated Credit
Agreement shall be, and is hereby, amended and restated in its entirety as set
forth in ANNEX I hereto (as set forth in such ANNEX I, the "SECOND AMENDED AND
RESTATED CREDIT AGREEMENT"), and as so amended and restated is hereby ratified,
approved and confirmed in each and every respect by all parties hereto. The
rights and obligations of the parties to the First Amended and Restated Credit
Agreement with respect to the period prior to the Amendment Effective Date shall
not be affected by such amendment and restatement.
SECTION 4. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS
AMENDMENT.
This Agreement shall become effective as of the date first written
above upon (the "AMENDMENT EFFECTIVE DATE"), and the obligations of the Lenders
under the Second Amended and Restated Credit Agreement shall be subject to,
satisfaction of each of the conditions precedent set forth in this Section 4
hereof.
(a) CONSUMMATION OF THE ACQUISITION. The Acquisition shall be
consummated pursuant to the Acquisition Agreement (which consummation shall
occur immediately prior to the effectiveness of this Agreement and the funding
of the Loans under the Second Amended and Restated Credit Agreement), and no
material provision or condition thereof shall have been waived, amended,
supplemented or otherwise modified in a manner that is material and adverse to
the Lead Arrangers or the Lenders without the prior written consent of the
Lead Arrangers, which shall not be unreasonably withheld or delayed.
(b) SENIOR 2006 NOTES. The Borrower shall have received aggregate
gross proceeds of at least $575,000,000 from the issuance of the Senior 2006
Notes.
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(c) EXECUTED COUNTERPARTS. The Administrative Agent shall have
received this Agreement, duly executed by (A) (i) each lender with a Revolving
Credit Commitment, or in lieu of one or more lenders with a Revolving Credit
Commitment, one or more Additional Revolving Credit Lenders, (ii) each Tranche
A Term Loan Lender, or in lieu of one or more Tranche A Term Loan Lenders, one
or more Additional Tranche A-3 Term Loan Lenders and (iii) each Tranche B-1
Term Loan Lender, or in lieu of one or more Tranche B-1 Term Loan Lenders, one
or more Additional Tranche B-2 Term Loan Lenders, and (B) each of the other
parties hereto.
(d) INTEREST. The Borrower shall have paid (i) simultaneously with
the making of Exchange Revolving Credit Loans, to all Lenders with Revolving
Credit Loans all accrued and unpaid interest on the Revolving Credit Loans,
(ii) simultaneously with the making of Tranche A-3 Term Loans, to all Tranche
A Term Loan Lenders all accrued and unpaid interest on the Tranche A-1 Term
Loans and Tranche A-2 Term Loans and (iii), simultaneously with the making of
Tranche B-2 Term Loans, to all Tranche B-1 Term Loan Lenders all accrued and
unpaid interest on the Tranche B-1 Term Loans, in each case, to, but not
including, the Amendment Effective Date.
(e) CORPORATE AND OTHER PROCEEDINGS. The Administrative Agent shall
have received from each Credit Party a certificate, executed by the secretary
of such Credit Party (or such other officer as may be acceptable to the
Administrative Agent) in form and substance satisfactory to the Administrative
Agent, attaching: (i) a copy of the resolutions, in form and substance
reasonably satisfactory to the Administrative Agent, of the board of directors
(or similar body) of such Credit Party (or a duly authorized committee
thereof) authorizing (A) the execution, delivery and performance of this
Agreement and the Amended and Restated Credit Agreement and (B) in the case of
the Borrower, the extensions of credit contemplated hereunder and under the
Amended and Restated Credit Agreement; (ii) the certificate of incorporation
and bylaws (or memorandum and articles, or other documents of similar import
pursuant to the laws of such Credit Party's jurisdiction of organization) of
such Credit Party; and (iii) a certificate of good standing (or such other
document of similar import as may be acceptable to the Administrative Agent)
with respect to such Credit Party from the secretary of state (or comparable
body) of the jurisdiction in which such Credit Party is organized, dated as
of a recent date acceptable to the Administrative Agent.
(f) OPINIONS OF COUNSEL. The Administrative Agent shall have received
(i) a legal opinion, in form and substance reasonably satisfactory to the
Administrative Agent, from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, counsel to the
Borrower and (ii) such other opinions of counsel to the Borrower as may be
reasonably requested by the Administrative Agent or its counsel.
(g) BORROWING REQUEST. The Borrower shall have provided the
Administrative Agent with a Notice of Borrowing two Business Days prior to the
Amendment Effective Date with respect to the borrowing of Exchange Revolving
Credit Loans, Tranche A-3 Term Loans and Tranche B-2 Term Loans on the
Amendment Effective Date.
(h) PROMISSORY NOTES. Each applicable Lender shall have received, if
requested at least two (2) Business Days prior to the Amendment Effective
Date, one or more promissory notes payable to the order of such Lender duly
executed by the Borrower in substantially the form of EXHIBITS L-1 and L-2, as
applicable, to the Second Amended and Restated Credit Agreement evidencing its
Tranche A-3 Term Loans, and Tranche B-2 Term Loans, as applicable.
(i) REPRESENTATIONS AND WARRANTIES. On the Amendment Effective Date,
the representations and warranties made by the Borrower in Section 5(a)
hereof, as they relate to the Credit Parties at such time, shall be true
and correct in all material respects.
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(j) SECOND AMENDED AND RESTATED CREDIT AGREEMENT. All other conditions
precedent set forth in Section 6 of the Second Amended and Restated Credit
Agreement shall be satisfied.
(k) FEES. The Lenders shall have received the fees required to be paid
on the Amendment Effective Date and all expenses (including the reasonable
fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel
for the Administrative Agent) for which invoices have been presented on or
prior to the Amendment Effective Date shall have been paid.
(l) COLLATERAL. The Collateral Trustee shall have received:
(i) with respect to each Mortgage encumbering Mortgaged
Property, an amendment thereof (each a "Mortgage Amendment") duly executed
and acknowledged by the applicable Credit Party, and in form for recording in
the recording office where each such Mortgage was recorded, together with such
certificates, affidavits, questionnaires or returns as shall be required in
connection with the recording or filing thereof under applicable law, in each
case in form and substance reasonably satisfactory to the Collateral Trustee;
(ii) with respect to each Mortgage Amendment, a copy of the
existing mortgage title insurance policy and an endorsement with respect
thereto (collectively, the "Mortgage Policy") relating to the Mortgage
encumbering such Mortgaged Property assuring the Collateral Trustee that the
Mortgage, as amended by the Mortgage Amendment is a valid and enforceable
first priority lien on such Mortgaged Property in favor of the Collateral
Trustee for the benefit of the Secured Parties free and clear of all defects
and encumbrances and liens except as expressly permitted by Section 10.2 of
the Second Amended and Restated Credit Agreement or by the Collateral Trustee,
and such Mortgage Policy shall otherwise be in form and substance reasonably
satisfactory to the Collateral Trustee; and
(iii) to the extent reasonably requested by the Administrative Agent,
with respect to each Mortgage Amendment, opinions of local counsel to the
Credit Parties, which opinions (x) shall be addressed to each Agent and each
of the Lenders and be dated the Amendment Effective Date, (y) shall cover the
enforceability of the respective Mortgage as amended by the Mortgage Amendment
and such other matters incident to the transactions contemplated herein as the
Agents may reasonably request and (z) shall be in form and substance
reasonably satisfactory to the Agents.
(m) LIEN SEARCHES. The Administrative Agent shall have received the
results of a recent lien and litigation search in each relevant jurisdiction
with respect to Holdings, the Borrower and the other Credit Parties, and such
search shall reveal no liens on any of the assets of any of them, except for
liens permitted by the Second Amended and Restated Credit Agreement or liens
to be discharged on or prior to the Amendment Effective Date pursuant to
documentation satisfactory to the Administrative Agent.
(n) PERFECTION CERTIFICATE SUPPLEMENT. The Administrative Agent shall
have received a completed Perfection Certificate substantially in the form of
EXHIBIT E to the Second Amended and Restated Credit Agreement, together with
all attachments contemplated thereby.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
On and as of the Amendment Effective Date, after giving effect to this
Agreement, the Borrower hereby represents and warrants to the Administrative
Agent and each Lender as follows:
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(a) this Agreement has been duly authorized, executed and delivered by
the Borrower and each Guarantor and constitutes the legal, valid and binding
obligations of the Borrower and each Guarantor enforceable against the
Borrower and each Guarantor in accordance with its terms and the Second
Amended and Restated Credit Agreement and constitutes the legal, valid and
binding obligation of the Borrower and each Guarantor enforceable against the
Borrower and each Guarantor in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally; and
(b) no Default or Event of Default has occurred and is continuing.
SECTION 6. LIENS UNIMPAIRED.
After giving effect to this Agreement, neither the modification of
the First Amended and Restated Credit Agreement effected pursuant to this
Agreement nor the execution, delivery, performance or effectiveness of this
Agreement and the Second Amended and Restated Credit Agreement:
(a) impairs the validity, effectiveness or priority of the Liens
granted pursuant to any Credit Document, and such Liens continue unimpaired
with the same priority to secure repayment of all Obligations, whether
heretofore or hereafter incurred; or
(b) requires that any new filings be made or other action taken to
perfect or to maintain the perfection of such Liens other than the actions
required by Section 4(m) of this Agreement.
SECTION 7. NO OTHER AMENDMENTS; REFERENCES TO THE CREDIT AGREEMENT.
Other than as specifically provided herein or in the Second Amended
and Restated Credit Agreement, this Agreement shall not operate as a waiver or
amendment of any right, power or privilege of the Lenders under (and as defined
in) the First Amended and Restated Credit Agreement or any other Credit Document
(as such term is defined in the First Amended and Restated Credit Agreement) or
of any other term or condition of the First Amended and Restated Credit
Agreement or any other Credit Document (as such term is defined in the First
Amended and Restated Credit Agreement) nor shall the entering into of this
Agreement preclude the Lenders from refusing to enter into any further waivers
or amendments with respect to the Second Amended and Restated Credit Agreement.
All references to the Original Credit Agreement or the First Amended and
Restated Credit Agreement in any document, instrument, agreement, or writing
that is a Credit Document shall from and after the Amendment Effective Date be
deemed to refer to the Second Amended and Restated Credit Agreement, and, as
used in the Second Amended and Restated Credit Agreement, the terms "Agreement,"
"herein," "hereafter," "hereunder," "hereto" and words of similar import shall
mean, from and after the Amendment Effective Date, the Second Amended and
Restated Credit Agreement.
SECTION 8. HEADINGS.
The various headings of this Agreement are inserted for convenience
only and shall not affect the meaning or interpretation of this Agreement or any
provisions hereof.
SECTION 9. EXECUTION IN COUNTERPARTS.
This Agreement may be executed by the parties hereto in several
counterparts (including by facsimile), each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
10
SECTION 10. EXPENSES.
The Borrower agree to pay promptly (and in any event on the Amendment
Effective Date) after presentation of an invoice therefor all reasonable
out-of-pocket expenses of the Agents (including the reasonable fees and
out-of-pocket expenses of one counsel to the Agents (and of local counsel, if
any, who may be retained by such counsel)) in connection with the preparation,
negotiation, execution and delivery of this Agreement, the Second Amended and
Restated Credit Agreement, each other Credit Document and the documents and
transactions contemplated hereby, including the reasonable fees and
disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Administrative
Agent.
SECTION 11. CROSS-REFERENCES.
References in this Agreement to any Section are, unless otherwise
specified or otherwise required by the context, to such Section of this
Agreement.
SECTION 12. COOPERATION; OTHER DOCUMEMENTS.
At all times following the execution of this Agreement, the parties
hereto shall execute and deliver to the Lenders and the Agents, or shall cause
to be executed and delivered to the Lenders and the Agents, and shall do or
cause to be done all such other acts and things as the Lenders and the Agents
may reasonably deem to be necessary or desirable to assure the Lenders and the
Agents of the benefit of this Agreement (including the Second Amended and
Restated Credit Agreement), the other Credit Documents and each other document
relating to this Agreement.
SECTION 13. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK.
SECTION 14. GUARANTOR ACKNOWLEDGMENTS.
(a) Each Guarantor hereby (i) expressly acknowledges the terms of the
Second Amended and Restated Credit Agreement, (ii) ratifies and affirms its
obligations under the Credit Documents (including guarantees and security
agreements) executed by the undersigned, (iii) acknowledges renews and extends
its continued liability under all such Credit Documents to which it is party and
agrees such Credit Documents remain in full force and effect and (iv) agrees
that each Security Agreement and Pledge Agreement secures all obligations of the
Borrower under the Second Amended and Restated Credit Agreement.
(b) Each Guarantor hereby reaffirms, as of the Amendment Effective
Date, (i) the covenants and agreements contained in each Credit Document to
which it is a party, including, in each case, such covenants and agreements as
in effect immediately after giving effect to this Agreement and the transactions
contemplated thereby, and (ii) its guarantee of payment of the Obligations
pursuant to the Guarantee and its grant of Liens on the Collateral to secure the
Obligations under the Security Documents.
(c) Each Guarantor hereby certifies that, as of the date hereof (both
before and after giving effect to the occurrence of the Amendment Effective Date
and the effectiveness of the Second Amended and Restated Credit Agreement), the
representations and warranties made by it contained in the Credit Documents to
which it is a party are true and correct in all material respects with the same
effect as
11
if made on the date hereof, except to the extent any such representation or
warranty refers or pertains solely to a date prior to the date hereof (in which
case such representation and warranty was true and correct in all material
respects as of such earlier date).
(d) Each Guarantor further confirms that each Credit Document to which
it is a party is and shall continue to be in full force and effect and the same
are hereby ratified and confirmed in all respects.
(e) Each Guarantor hereby acknowledges and agrees that the acceptance
by the Administrative Agents, each Lender and each other Agent of this document
shall not be construed in any manner to establish any course of dealing on any
Agent's or Lender's part, including the providing of any notice or the
requesting of any acknowledgment not otherwise expressly provided for in any
Credit Document with respect to any future amendment, waiver, supplement or
other modification to any Credit Document or any arrangement contemplated by any
Credit Document.
[SIGNATURE PAGES FOLLOW]
12
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
PanAmSat Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
Signature Page to Amendment Agreement
AccessPAS, Inc.
PanAmSat Communications Carrier
Services, Inc.
PanAmSat Communications Japan, Inc.
PanAmSat Communications Services, Inc.
PanAmSat International Holdings, LLC
PanAmSat Europe Corporation
PanAmSat India Marketing, L.L.C.
PanAmSat Asia Carrier Services, Inc.
PanAmSat Capital Corporation
PanAmSat Services, Inc.
PanAmSat India, Inc.
PAS International Employment, Inc.
PanAmSat International Sales, Inc.
PAS International, LLC
PanAmSat Licensee Corp.
PanAmSat International Systems, LLC
PanAmSat International Systems
Marketing, L.L.C.
PanAmSat Satellite PAS 1R, Inc.
PanAmSat Satellite PAS 2, Inc.
PanAmSat Satellite PAS 3, Inc.
PanAmSat Satellite PAS 4, Inc.
PanAmSat Satellite PAS 5, Inc.
PanAmSat Satellite PAS 6B, Inc.
PanAmSat Satellite PAS 7, Inc.
PanAmSat Satellite PAS 8, Inc.
PanAmSat Satellite PAS 9, Inc.
PanAmSat Satellite PAS 10, Inc.
PanAmSat Satellite HGS 3, Inc.
PanAmSat Satellite HGS 5, Inc.
PanAmSat Satellite Galaxy 1R, Inc.
PanAmSat Satellite Galaxy 3R, Inc.
PanAmSat Satellite Galaxy 3C, Inc.
PanAmSat Satellite Galaxy 4R, Inc.
PanAmSat Satellite Galaxy 5, Inc.
PanAmSat Satellite Galaxy 10R, Inc.
PanAmSat Satellite Galaxy 11, Inc.
PanAmSat Satellite Galaxy 12, Inc.
PanAmSat Satellite Galaxy 13, Inc.
PanAmSat Satellite Galaxy 9, Inc.
PanAmSat Satellite Galaxy 14, Inc.
PanAmSat Satellite Galaxy 15, Inc.
PanAmSat Satellite Leasat F5, Inc.
PanAmSat Satellite SBS 6, Inc.
PanAmSat H-2 Licensee Corp.
Service and Equipment Corporation
Southern Satellite Corp.
Signature Page to Amendment Agreement
Southern Satellite Licensee Corporation
USHI, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
Signature Page to Amendment Agreement
Citicorp USA, Inc.,
as Administrative Agent and as Lender,
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Signature Page to Amendment Agreement
Citigroup Global Markets Inc.,
as Joint Lead Arranger
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Signature Page to Amendment Agreement
Deutsche Bank Securities Inc.,
as Joint Lead Arranger
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
Signature Page to Amendment Agreement
Credit Suisse Securities (USA) LLC,
as Joint Lead Arranger
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇
--------------------------------
Name: J. ▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
Signature Page to Amendment Agreement
Credit Suisse, Cayman Islands Branch,
as Syndication Agent
By: /s/ ▇▇▇▇ ▇'▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇'▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Associate
Signature Page to Amendment Agreement
▇▇▇▇▇▇ Brothers Inc.,
as Joint Lead Arranger
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
Signature Page to Amendment Agreement
SCHEDULE 1
COMMITMENTS
LENDER RENEWED REVOLVING TRANCHE ▇-▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇-▇ TERM LOAN
CREDIT COMMITMENT LOAN COMMITMENT COMMITMENT
------- ---------------- ---------------- ----------------------
Citicorp USA, Inc.
$163,100,000.00 $258,228,005 $577,844,340.
ADDITIONAL ADDITIONAL ADDITIONAL ADDITIONAL
LENDER RENEWED TRANCHE TRANCHE B-2
---------- ---------- ---------- -------------
REVOLVING CREDIT A-3 TERM LOAN TERM LOAN
---------------- ------------- ---------
COMMITMENT COMMITMENT COMMITMENT
---------- ---------- ----------
Citicorp USA, Inc.
$86,900,000.00 $97,681,995 $1,057,255,660
Signature Page to Amendment Agreement
ANNEX I to
Agreement
SECOND AMENDED AND RESTATED CREDIT AGREEMENT