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EXHIBIT 10.12
[Conformed As Amended]
REVOLVING CREDIT AGREEMENT
among
GLOBALSTAR, L.P.,
CERTAIN BANKS,
and
CHEMICAL BANK,
as Administrative Agent
Dated as of December 15, 1995
As Amended on March 25, 1996
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS......................................................1
1.1 Defined Terms.............................................1
1.2 Other Definitional Provisions............................19
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.................................20
2.1 Revolving Credit Commitments.............................20
2.2 Commitment/Loan Support..................................20
2.3 Procedure for Revolving Credit Borrowing.................23
2.4 Repayment of Loans; Evidence of Debt.....................24
2.5 Commitment Fees..........................................25
2.6 Termination, Reduction or Increase of
Commitments..........................................25
2.7 Prepayments..............................................26
2.8 Conversion and Continuation Options......................28
2.9 Minimum Amounts of Tranches..............................28
2.10 Interest Rates and Payment Dates.........................29
2.11 Computation of Interest and Fees.........................29
2.12 Inability to Determine Interest Rate.....................30
2.13 Pro Rata Treatment and Payments..........................30
2.14 Illegality...............................................31
2.15 Other Costs; Increased Costs.............................32
2.16 Taxes....................................................34
2.17 Indemnity................................................36
2.18 Purpose..................................................36
SECTION 3. REPRESENTATIONS AND WARRANTIES..................................36
3.1 Financial Condition......................................36
3.2 No Change................................................37
3.3 Existence; Compliance with Law...........................37
3.4 Power; Authorization; Enforceable Obligations............37
3.5 No Legal Bar.............................................38
3.6 No Material Litigation...................................38
3.7 No Default...............................................38
3.8 Ownership of Property; Liens.............................38
3.9 Intellectual Property....................................39
3.10 No Burdensome Restrictions...............................39
3.11 Taxes....................................................39
3.12 Federal Regulations......................................39
3.13 ERISA....................................................40
3.14 Investment Company Act; Other Regulations................40
3.15 Subsidiaries.............................................40
3.16 Environmental Matters....................................40
3.17 Full Disclosure..........................................41
3.18 Solvency.................................................41
3.19 Security Interests; Guarantees...........................42
(i)
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SECTION 4. CONDITIONS PRECEDENT............................................42
4.1 Conditions of Initial Loans...............................42
4.2 Conditions to all Loans...................................45
SECTION 5. AFFIRMATIVE COVENANTS...........................................46
5.1 Financial Statements......................................46
5.2 Certificates; Other Information...........................46
5.3 Payment of Obligations....................................47
5.4 Conduct of Business and Maintenance of Existence..........48
5.5 Maintenance of Property; Insurance........................48
5.6 Inspection of Property; Books and Records;
Discussions..........................................48
5.7 Notices...................................................48
5.8 Environmental Laws........................................49
5.9 Additional Subsidiary Guarantors..........................50
5.10 Material Terms of Other Agreements Being More
Restrictive..........................................50
SECTION 6. NEGATIVE COVENANTS..............................................50
6.1 Financial Condition Covenants.............................51
6.2 Indebtedness..............................................51
6.3 Limitation on Liens.......................................52
6.4 Limitation on Contingent Obligations.......................53
6.5 Limitation on Fundamental Changes.........................53
6.6 Limitation on Restricted Payments.........................54
6.7 Investments...............................................55
6.8 Limitation on Optional Payments and
Modifications of Subordinated Debt and
Other Debt Instruments...............................55
6.9 Affiliates................................................56
6.10 Partnership Documents....................................56
6.11 Restrictions on Subsidiaries.............................56
6.12 Restrictive Agreements...................................57
SECTION 7. ADDITIONAL NEGATIVE COVENANTS...................................57
7.2 Financial Condition Covenants.............................57
7.2 Sale and Leaseback........................................58
7.3 Limitation on Changes in Fiscal Year......................58
SECTION 8. EVENTS OF DEFAULT...............................................58
SECTION 9. THE ADMINISTRATIVE AGENT........................................62
9.1 Appointment...............................................62
9.2 Delegation of Duties......................................62
9.3 Exculpatory Provisions....................................62
9.4 Reliance by the Administrative Agent......................63
9.5 Notice of Default.........................................63
9.6 Non-Reliance on the Administrative Agent and
Other Banks..........................................63
9.7 Indemnification...........................................64
9.8 The Administrative Agent in Its Individual
Capacity.............................................65
(ii)
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9.9 Successor Administrative Agent............................65
SECTION 10. MISCELLANEOUS..................................................65
10.1 Amendments and Waivers...................................65
10.2 Notices..................................................66
10.3 No Waiver; Cumulative Remedies...........................67
10.4 Survival of Representations and Warranties...............68
10.5 Payment of Expenses and Taxes............................68
10.6 Successors and Assigns; Participations;
Purchasing Banks.....................................69
10.7 Adjustments; Set-off.....................................72
10.8 Severability..............................................73
10.9 Counterparts.............................................73
10.10 GOVERNING LAW...........................................73
10.11 Submission To Jurisdiction; Waivers.....................73
10.12 WAIVERS OF JURY TRIAL...................................74
10.13 Integration.............................................74
10.14 Confidentiality.........................................74
Schedules:
SCHEDULE I - Commitments and Commitment Percentages
SCHEDULE 5.5 - Insurance
SCHEDULE 6.2 - Committed Vendor Financing
SCHEDULE 6.9 - Affiliate Transactions
(iii)
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REVOLVING CREDIT AGREEMENT dated as of December 15, 1995, as amended
on March 25, 1996, among GLOBALSTAR, L.P., a Delaware limited partnership (the
"Borrower"), the several financial institutions parties from time to time to
this Agreement (collectively, the "Banks"; individually, a "Bank") and CHEMICAL
BANK, a New York banking corporation ("Chemical"), as administrative agent for
the Banks hereunder (in such capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, the Borrower has requested the Banks to make revolving
credit loans to the Borrower, the proceeds of which will be used to finance (i)
the buildout of a global satellite communications system by the Borrower, (ii)
interest payments when due on the Loans made pursuant to this Agreement and
(iii) working capital needs; and
WHEREAS, the Banks are willing to make such Loans to the Borrower
upon the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms have the following meanings:
"ABR Loans": Loans the rate of interest applicable to which is
based upon the ABR.
"ABR": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in effect on
such day, (b) the Base CD Rate in effect on such day plus 1% and (c) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. For purposes hereof:
"Prime Rate" shall mean the rate of interest per annum publicly announced from
time to time by Chemical as its prime rate in effect at its principal office in
New York City (the Prime Rate not being intended to be the lowest rate of
interest charged by Chemical in connection with extensions of credit to
debtors); "Base CD Rate" shall mean the sum of (a) the product of (i) the
Three-Month Secondary CD Rate and (ii) a fraction, the numerator of which is one
and the denominator of which is one minus the CD Reserve Percentage and (b) the
CD Assessment Rate; "Three-Month Secondary CD Rate" shall mean, for any day, the
secondary market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day shall not be a Business Day, the next
preceding Business Day) by the Board of Governors of the Federal Reserve System
(the "Board") through the public information telephone line of the Federal
Reserve Bank of New
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York (which rate will, under the current practices of the Board, be published in
Federal Reserve Statistical Release H.15(519) during the week following such
day), or, if such rate shall not be so reported on such day or such next
preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 A.M., New York City time, on such day (or, if
such day shall not be a Business Day, on the next preceding Business Day) by the
Administrative Agent from three New York City negotiable certificate of deposit
dealers of recognized standing selected by it; "CD Assessment Rate" shall mean,
for any day, the annual assessment rate in effect on such day which is payable
by a member of the Bank Insurance Fund maintained by the FDIC classified as
well-capitalized and within supervisory subgroup "A" (or a comparable successor
assessment risk classification) within the meaning of 12 C.F.R. Section 327.3(d)
(or any successor provision) to the FDIC for the FDIC's insuring time deposits
at offices of such institution in the United States; "CD Reserve Percentage"
shall mean, for any day, that percentage (expressed as a decimal) which is in
effect on such day, as prescribed by the Board, for determining the maximum
reserve requirement for a Depositary Institution (as defined in Regulation D of
the Board) in respect of new non-personal time deposits in Dollars having a
maturity of 30 days or more; and "Federal Funds Effective Rate" shall mean, for
any day, the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Base CD
Rate or the Federal Funds Effective Rate, or both, for any reason, including the
inability or failure of the Administrative Agent to obtain sufficient quotations
in accordance with the terms thereof, the ABR shall be determined without regard
to clause (b) or (c), or both, of the first sentence of this definition, as
appropriate, until the circumstances giving rise to such inability no longer
exist. Any change in the ABR due to a change in the Prime Rate, the Three-Month
Secondary CD Rate, the CD Reserve Percentage, the CD Assessment Rate or the
Federal Funds Effective Rate shall be effective as of the opening of business on
the effective day of such change in the Prime Rate, the Three-Month Secondary CD
Rate, the CD Reserve Percentage, the CD Assessment Rate or the Federal Funds
Effective Rate, respectively.
"Acceptable Letter of Credit": a letter of credit, substantially in
the form of Exhibit G hereto, which satisfies the following conditions: (A) such
letter of credit supports a fixed amount of principal of the Loans plus up to
120 days of
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accrued interest on such principal amount calculated at a rate equal to 8% per
annum and based on an assumed year of 360 days, (B) such letter of credit is
issued by a bank which has an unsecured senior long-term debt rating of at least
A from S&P and A2 from ▇▇▇▇▇'▇, (C) the issuer of such letter of credit is
approved by the Majority Banks at the time of issuance, which approval shall not
be unreasonably withheld, (D) such letter of credit is issued for the account of
one or more Partners, (E) such letter of credit is issued in favor of the
Administrative Agent for the benefit of the Banks and (F) at the time of its
delivery to the Administrative Agent (i) such letter of credit is accompanied by
legal opinions, resolutions and comparable documents with respect to such letter
of credit and the issuer thereof requested by the Administrative Agent and (ii)
the Applicable Partner delivers to the Administrative Agent a Partner Cash
Collateral Agreement, legal opinions, resolutions, financing statements and
comparable documents with respect to such Applicable Partner and Partner Cash
Collateral Agreement. A letter of credit shall not be an Acceptable Letter of
Credit during any time that the condition set forth in clause (B) of the
preceding sentence is not satisfied.
"Additional Buildout Indebtedness": Indebtedness (including senior
and subordinated debt securities and bank financing) of the Borrower or any of
its Wholly-Owned Subsidiaries that is a Guarantor incurred or issued to finance
the buildout of the Satellite Project and related costs which satisfies the
following criteria:
(i) none of such Indebtedness will mature (by scheduled
payment or mandatory payment or prepayment) prior to the Termination Date; and
(ii) such Indebtedness bears interest at a market rate of
interest.
Additional Buildout Indebtedness shall not include the vendor
financing permitted under Sections 6.2(f) and (g). The Borrower shall designate
Indebtedness as Additional Buildout Indebtedness at the time it is created or
incurred.
"Affiliate": with respect to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, a Person shall be
deemed to be "controlled by" any other Person which possesses, directly or
indirectly, power either to (i) vote 10% or more of the securities having
ordinary voting power for the election of directors of such Person or (ii)
direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.
"Agreement": this Revolving Credit Agreement, as amended,
supplemented or modified from time to time.
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"Applicable Margin": with respect to each day for each Eurodollar
Loan, the rate of 0.625%.
"Applicable Partner": with respect to (i) a Letter of Credit, the
Partner Guarantor for whose account such Letter of Credit is issued and (ii) a
Partner Collateral Account, the Partner Guarantor for whose separate account
such Partner Collateral Account is established.
"Arranger": Chemical Securities Inc. in its capacity as arranger of
the Commitments.
"Available Commitment": as to any Bank, at a particular time, an
amount equal to such Bank's Commitment Percentage of the excess, if any, of (a)
the aggregate Commitments at such time over (b) the aggregate outstanding
principal amount of the Loans at such time; collectively, as to all the Banks,
the "Available Commitments".
"Borrowing Date": any day specified by the Borrower in a notice
pursuant to Section 2.3 as a date on which the Borrower requests the Banks to
make Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
close.
"Cash Equivalents": (i) 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 twelve months from
the date of acquisition, (ii) time deposits and certificates of deposit of any
Bank or any domestic commercial bank having capital and surplus in excess of
$500,000,000 the holding company of which has a commercial paper rating meeting
the requirements specified in clause (iv) below having maturities of not more
than twelve months from the date of acquisition, (iii) repurchase obligations
with a term of not more than seven days for underlying securities of the types
described in clauses (i) and (ii) entered into with any Bank or bank meeting the
qualifications specified in clause (ii) above, (iv) commercial paper rated at
least A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof by
▇▇▇▇▇'▇ and in either case maturing within twelve months after the date of
acquisition, (v) tax exempt obligations rated at least A2 or the equivalent
thereof by ▇▇▇▇▇'▇ and A or the equivalent thereof by S&P, (vi) money market
mutual funds, and (vii) commercial paper (other than commercial paper referred
to in the preceding clause (iv)) rated at least A-2 or the equivalent thereof by
S&P or P-2 or the equivalent thereof by ▇▇▇▇▇'▇ in an aggregate principal amount
not in excess of 25% of the liquid assets of the Borrower and its consolidated
Subsidiaries and in either case maturing within twelve months after the date of
acquisition.
"Change of Control":
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(i) the sale, lease or transfer, in one transaction or a
series of related transactions, of all or substantially all of the assets of the
Borrower and its Subsidiaries;
(ii) the adoption of a plan relating to the liquidation or
dissolution of the Borrower or of one or more Subsidiaries which in the
aggregate represent more than 50% of the total assets of the Borrower and its
Subsidiaries;
(iii) the failure of Loral Space & Communications Ltd. to own
at least 70% of the equity interests in the Borrower that it owned, directly or
indirectly, as of the date the Tender Offer (as defined in the Lockheed ▇▇▇▇▇▇
Credit Agreement) is consummated, free and clear of Liens and other
encumbrances; or
(iv) the first day on which Loral Space & Communications Ltd.
fails to be, or, directly or indirectly, fails solely to control, the sole
managing general partner of the Borrower.
"Closing Date": December 15, 1995.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all assets and property, now owned or hereafter
acquired, upon which a Lien is purported to be created by any Security Document.
"Collateral Cash Equivalents": Cash Equivalents having a maturity of
one year or less at the time of acquisition.
"Commitment": as to any Bank, its obligation to make Loans to the
Borrower in an aggregate principal amount not to exceed at any one time
outstanding the amount set forth opposite such Bank's name in Schedule I hereto,
as such amount may be reduced or increased from time to time as provided herein;
collectively, as to all the Banks, the "Commitments".
"Commitment Fee Rate": the rate of 0.25% per annum.
"Commitment Increase Supplement:" a Commitment Increase Supplement,
substantially in the form of Exhibit D-2.
"Commitment Percentage": as to any Bank, the percentage of the
aggregate Commitments constituted by such Bank's Commitment.
"Commitment Period": the period from and including the date hereof
to but not including the Termination Date.
"Commitment Transfer Supplement": a Commitment Transfer Supplement,
substantially in the form of Exhibit D-1.
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"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group which includes the Borrower and
which is treated as a single employer under Section 414 of the Code.
"Consolidated EBITDA": with respect to the Borrower and its
Subsidiaries for any period, the sum of the Consolidated Net Income for such
period plus, to the extent deducted in computing such Consolidated Net Income,
the sum of (i) income tax expense, (ii) interest expense (exclusive of interest
income), (iii) depreciation and amortization expense and any other non-cash
charges, and (iv) any extraordinary losses (minus extraordinary gains), all as
determined on a consolidated basis in accordance with GAAP.
"Consolidated Fixed Charges": for any period, the sum of:
(a) Consolidated Cash Interest Expense;
(b) Required amortization of Indebtedness, determined on a
consolidated basis in accordance with GAAP, for the period involved and discount
or premium relating to any such Indebtedness for any period involved, whether
expensed or capitalized; and
(c) Consolidated Lease Expense, determined without duplication of
items included in Consolidated Cash Interest Expense, in each case of the
Borrower and its Subsidiaries.
"Consolidated Cash Interest Expense": for any period the amount of
interest expense, both expensed and capitalized, of the Borrower and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP, for
such period on the aggregate principal amount of their Indebtedness, determined
on a consolidated basis in accordance with GAAP, excluding any such interest
which is paid-in-kind or accreted and not paid in cash.
"Consolidated Lease Expense": for any period, the aggregate amount
of fixed and contingent rentals payable by the Borrower and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP, for such period with
respect to leases of real and personal property.
"Consolidated Net Income": for any period, the consolidated net
income (or deficit) of the Borrower and its Subsidiaries for such period (taken
as a cumulative whole), determined in accordance with GAAP.
"Consolidated Net Worth": at a particular date, all amounts which
would be included under partners' equity on a consolidated balance sheet of the
Borrower and its Subsidiaries
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determined on a consolidated basis in accordance with GAAP as at such date.
"Contingent Obligation": as to any Person, any obligation of such
Person guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations quantified in accordance with the last sentence
of this definition (the "primary obligations") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent (a) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (b) to advance or supply funds (i) for the purchase
or payment of any such primary obligation or (ii) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (c) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (d) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided, however, that the
term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the amount
reasonably anticipated to be payable by the Borrower in respect of such
Contingent Obligation as determined by the Borrower in good faith.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or undertaking to
which such Person is a party or by which it or any of its property is bound.
"Default": any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied, provided, however, that Section 6.1 shall
not be the basis for a Default prior to the Release Date.
"Dollars" and "$": dollars in lawful currency of the United States
of America.
"Domestic Lending Office": initially, the office of each Bank
designated as such in Schedule I; thereafter, such other office of such Bank, if
any, located within the United States which shall be making or maintaining ABR
Loans.
"Downgraded Letter of Credit": a Letter of Credit, the issuer of
which no longer meets the minimum unsecured senior
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long-term debt rating set forth in clause (B) of the definition of Acceptable
Letter of Credit.
"Environmental Laws": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees
or requirements of any Governmental Authority regulating, relating to or
imposing liability or standards of conduct concerning environmental protection
matters, including without limitation, Hazardous Materials, as now or may at any
time hereafter be in effect.
"Equity Interests": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all partnership interests (general or limited) of a partnership, any and all
equivalent ownership interests in a Person (other than a corporation or
partnership) and any and all warrants or options to purchase any of the
foregoing.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurodollar Cash Collateral": as defined in Section 2.7(c).
"Eurodollar Cash Collateral Account": as defined in Section 2.7(c).
"Eurodollar Business Day": any Business Day on which dealings in
foreign currencies and exchange between banks may be carried on in London,
England.
"Eurodollar Lending Office": initially, the office of each Bank
designated as such in Schedule I; thereafter, such other office of such Bank, if
any, which shall be making or maintaining Eurodollar Loans.
"Eurodollar Loans": Loans hereunder at such time as they are made
and/or being maintained at a rate of interest based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each Eurodollar Loan during a
specified Interest Period, the rate of interest determined on the basis of the
rate for deposits in Dollars for a period equal to such Interest Period,
commencing on the first day of such Interest Period, appearing on Page 3750 of
the Telerate Service as of 11:00 A.M., London time, two Eurodollar Business Days
prior to the beginning of such Interest Period. In the event that such rate does
not appear on Page 3750 of the Telerate Service (or otherwise on such service),
the "Eurodollar Rate" shall be determined by reference to such other publicly
available service for displaying eurodollar rates as may be agreed upon by the
Administrative Agent and the Borrower or, in the absence of such agreement, the
"Eurodollar Rate" shall instead be the rate
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per annum equal to the rate at which Chemical is offered Dollar deposits at or
about 11:00 A.M., New York City time, two Eurodollar Business Days prior to the
beginning of such Interest Period, in the interbank eurodollar market where the
eurodollar and foreign currency and exchange operations in respect of its
Eurodollar Loans are then being conducted for delivery on the first day of such
Interest Period, for a period equal to such Interest Period, and in an amount
comparable to the amount of its Eurodollar Loan to be outstanding during such
Interest Period.
"Event of Default": any of the events specified in Section 8;
provided, that any requirement for the giving of notice, the lapse of time, or
both, or any other condition, event or act has been satisfied.
"Exchange Act": the Securities and Exchange Act of 1934, as amended.
"Excluded Employee Loans": loans or advances to directors, officers
or employees of the Borrower or any Wholly Owned Subsidiary the principal amount
of which, when added to the principal amount of existing such loans or advances,
would not exceed $1,000,000.
Expiring Letter of Credit": an Acceptable Letter of Credit, the
issuer of which has not notified the Administrative Agent at least 60 days prior
to the then scheduled expiration date that such Acceptable Letter of Credit will
be renewed.
"Feeder Link Licenses": the authorizations granted or to be granted
by the Federal Communications Commission to the Borrower for feeder links
(frequencies used for links between the gateways and the satellites) to be used
in the Satellite Project.
"Financing Lease": (a) any lease of property, real or personal, the
then present value of the minimum rental commitment thereunder of which should,
in accordance with GAAP, be capitalized on a balance sheet of the lessee, and
(b) any other such lease the obligations under which are capitalized on a
consolidated balance sheet of the Borrower and its Subsidiaries.
"Foreign Subsidiary": any Subsidiary organized or incorporated
outside the United States.
"Funded Debt": of a Person, at a particular date, the sum (without
duplication) at such date of (a) all indebtedness of such Person (i) for
borrowed money or (ii) for the deferred purchase price of property or services
(excluding trade payables in the ordinary course of business) or (iii) which is
evidenced by a note, bond, debenture or similar instrument, and (b) the
capitalized portion of obligations under Financing Leases.
"GAAP": generally accepted accounting principles in the United
States of America in effect on the date hereof,
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provided that for purposes of preparation of the financial statements to be
delivered pursuant to Section 5.1, "GAAP" shall mean generally accepted
accounting principles in the United States in effect from time to time.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantee Release": the release by the Administrative Agent and the
Banks of the Guarantees, including the return to each Applicable Partner of all
Letters of Credit issued for its account and its Partner Cash Collateral and the
termination of the Partner Cash Collateral Agreements.
"Guaranteed Obligations": the collective reference to the unpaid
principal of and interest on the Loans and all other obligations and liabilities
of the Borrower to the Administrative Agent and the Banks (including, without
limitation, interest accruing at the then applicable rate provided in this
Agreement after the maturity of the Loans and interest accruing at the then
applicable rate provided in this Agreement after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this
Agreement or the Notes, in each case whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to the
Administrative Agent or to the Banks that are required to be paid by the
Borrower or pursuant to the terms of this Agreement).
"Guarantees": the collective reference to the Partner Guarantees and
the Subsidiary Guarantees.
"Guarantor": any Person delivering a Guarantee pursuant to this
Agreement.
"Hazardous Materials": any hazardous materials, hazardous wastes,
hazardous constituents, hazardous or toxic substances, and petroleum products
(including crude oil or any fraction thereof), defined or regulated as such in
or under any Environmental Law.
"Indebtedness": of a Person, at a particular date, the sum (without
duplication) at such date of (a) Funded Debt, (b) all obligations of such Person
in respect of letters of credit, acceptances, or similar obligations issued or
created for the account of such Person and (c) all indebtedness or other
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liabilities (excluding taxes and assessments) secured by any Lien on any
property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof.
"Insolvency" or "Insolvent": at any particular time, the condition
that a Multiemployer Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Intellectual Property": as defined in Section 3.9.
"Interest Payment Date": (a) as to any ABR Loan, the last day of
each March, June, September and December and the Termination Date and (b) as to
any Eurodollar Loan in respect of which the Borrower has selected an Interest
Period of one, two or three months, the last day of such Interest Period, and
(c) as to any Eurodollar Loan having an Interest Period longer than three
months, each day which is three months, or a whole multiple thereof, after the
first day of such Interest Period and the last day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar Loan and
ending one, two, three or six months thereafter, as selected by the Borrower in
its notice of borrowing or notice of conversion, as the case may be, given with
respect thereto; and
(ii) thereafter, each period commencing on the last day
of the next preceding Interest Period applicable to such Eurodollar Loan and
ending one, two, three or six months thereafter, as selected by the Borrower by
irrevocable notice to the Administrative Agent not less than three Eurodollar
Business Days prior to the last day of the then current Interest Period with
respect thereto;
provided, that all of the foregoing provisions relating to Interest Periods
are subject to the following:
(a) if any Interest Period would otherwise end on a day that
is not a Eurodollar Business Day, such Interest Period shall be extended to the
next succeeding Eurodollar Business Day unless the result of such extension
would be to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding Eurodollar
Business Day;
(b) any Interest Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date;
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(c) any Interest Period that begins on the last Eurodollar
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Eurodollar Business Day of a calendar month; and
(d) the Borrower shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an Interest Period
for such Loan.
"Investment": any advance, loan, extension of credit or capital
contribution to, or purchase of any stock, bonds, notes, debentures, ownership
interests or other securities of, or other investment in, any Person.
"Letter of Credit": any Acceptable Letter of Credit or Downgraded
Letter of Credit.
"Leverage Ratio": on the last day of any fiscal quarter, the ratio
of (a) Funded Debt of the Borrower and its Subsidiaries on such day to (b)
Consolidated EBITDA for the period of four consecutive fiscal quarters ending on
such day.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any Financing Lease having substantially the same economic
effect as any of the foregoing).
"Loan": as defined in Section 2.1.
"Loan Documents": this Agreement, the Notes and, prior to the
Release Date, the Guarantees and the Partner Cash Collateral Agreements.
"Loan Parties": the Borrower and, prior to the Release Date, (i)
each Subsidiary of the Borrower which is a party to a Loan Document, (ii) from
the Closing Date through the date on which the Original Loral Guarantee is
released, Loral, and, thereafter, Lockheed ▇▇▇▇▇▇ and (iii) the other Partner
Guarantors.
"Lockheed ▇▇▇▇▇▇": Lockheed ▇▇▇▇▇▇ Corporation, a Maryland
corporation.
"Lockheed ▇▇▇▇▇▇ Credit Agreement": the Revolving Credit Agreement
(Five Year) to be dated as of a date in April 1996, and substantially in the
form delivered to the Banks on March 25, 1996, among Lockheed ▇▇▇▇▇▇, LAC
Acquisition Corporation, as guarantor thereunder, the several financial
institutions parties from time to time thereto, ▇▇▇▇▇▇ Guaranty Trust Company of
New York, as Documentation Agent, and Bank of
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America National Trust and Savings Association, as Administrative Agent, as
amended, modified and supplemented from time to time in accordance with the
terms thereof but without giving effect to any cancellation or termination
thereof.
"Lockheed ▇▇▇▇▇▇ Guarantee": the Guarantee to be executed and
delivered by Lockheed ▇▇▇▇▇▇, substantially in the form of Exhibit A to the
First Amendment dated as of March 25, 1996 to this Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"Loral": Loral Corporation, a New York corporation.
"Majority Banks": at any date, Banks whose Commitments aggregate not
less than 66-2/3% of the total Commitments or, if the Commitments have been
terminated, of the outstanding Loans.
"Managing General Partner": Loral/QUALCOMM Satellite Services, L.P.,
a Delaware limited partnership.
"Material Adverse Effect": a material adverse effect on (a) the
Satellite Project, (b) the business, assets, property, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole
and the ability of the Borrower and its Subsidiaries to perform their respective
obligations under the Loan Documents or (c) the validity or enforceability of
any of the Loan Documents or the material rights or remedies of the
Administrative Agent or the Banks hereunder or thereunder.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) the gross cash proceeds received by the
Borrower or any Subsidiary (including any cash payments received by way of
deferred payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise and including casualty
insurance settlements and condemnation awards, but only as and when received),
net of (i) attorneys' fees, accountants' fees, investment banking fees, transfer
taxes, deed or mortgage recording taxes, required debt payments of debt secured
by the applicable asset (other than pursuant hereto) or required to be paid in
connection with such sale, transfer or disposition and other customary fees
actually incurred in connection therewith and (ii) taxes paid or payable as a
result thereof (including taxes estimated by the Borrower to be payable as a
result thereof), from any loss, damage, destruction or condemnation of, or any
sale, transfer or other disposition (including any sale and leaseback of assets
and any mortgage or lease of real property) to any Person of any asset or assets
of the Borrower or any Subsidiary, and (b) the gross cash proceeds from the
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incurrence, issuance or sale by the Borrower or any Subsidiary of any
Indebtedness, net of all taxes (including taxes estimated by the Borrower to be
payable as a result thereof or as a result of such transactions) and fees
(including investment banking fees), commissions, costs and other expenses
incurred in connection with such issuance or sale.
"Notes": as defined in Section 2.4.
"Obligations": the collective reference to the unpaid principal of
and interest on the Loans and all other obligations and liabilities of the
Borrower to the Administrative Agent and the Banks (including, without
limitation, interest accruing at the then applicable rate provided in this
Agreement after the maturity of the Loans and interest accruing at the then
applicable rate provided in this Agreement after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this
Agreement, any Notes, the other Loan Documents or any other document made,
delivered or given in connection therewith, in each case whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees and disbursements
of counsel to the Administrative Agent or to the Banks that are required to be
paid by the Borrower pursuant to the terms of this Agreement or any other Loan
Document).
"Original Loral Guarantee": the guarantee executed and delivered by
Loral, substantially in the form of Exhibit E, dated as of December 15, 1995.
"Participants": as defined in Section 10.6(b).
"Partner": each general or limited partner in the Borrower from time
to time.
"Partner Cash Collateral": cash and/or Collateral Cash Equivalents,
held in a Partner Collateral Account derived from a drawing upon a Letter of
Credit issued for the account of a Partner Guarantor. Partner Cash Collateral
constitutes assets of the Applicable Partner that are pledged to secure the
Obligations pursuant to a Partner Cash Collateral Agreement.
"Partner Cash Collateral Agreement": each cash collateral agreement
executed and delivered by a Partner Guarantor in favor of the Administrative
Agent with respect to its Partner Collateral Account and Partner Cash
Collateral, such agreement to be satisfactory in form and substance to the
Administrative Agent in its sole discretion.
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"Partner Collateral Account": a pledged collateral account
established at the principal office of the Person acting as Administrative Agent
by an Applicable Partner in the name of the Administrative Agent and subject to
the sole dominion and control of the Administrative Agent. A separate Partner
Collateral Account will be established for each Partner Guarantor other than
Loral Space & Communications Ltd. at the time an Acceptable Letter of Credit is
delivered for the account of such Partner Guarantor. The proceeds of each
drawing under a Letter of Credit issued for the account of such Applicable
Partner shall be deposited in such Partner Collateral Account.
"Partner Guarantee": in the case of Loral Space & Communications
Ltd., the Lockheed ▇▇▇▇▇▇ Guarantee; and in the case of any other Partner
Guarantor, a Letter of Credit and, upon a drawing by the Administrative Agent
under such Letter of Credit, Partner Cash Collateral.
"Partner Guarantor": Loral Space & Communications Ltd. and any
partner that owns, directly or indirectly, an interest in the Borrower.
"Partner Guarantor Fee Arrangement": an arrangement to be entered
into among the Borrower, the Partner Guarantor(s) (or their Affiliates), Loral
and/or another Partner and certain other parties pursuant to which the Borrower
agrees to:
(i) issue warrants to purchase partnership interests of the
Borrower; and
(ii) pay to the Partner Guarantor(s) (or their Affiliates) a
quarterly fee equal to a percentage per annum of the amount of the Loans
outstanding, the payment of which shall be deferred on a subordinated basis
until after the Termination Date, at which time, the fee, together with interest
thereon shall be paid upon an amortization schedule to be determined.
Notwithstanding the foregoing, in lieu of paying the fees described in
clause (ii) above, the Borrower may issue its subordinated notes in an amount
equal to the fees otherwise payable, including without limitation deferral of
interest, providing payment terms as described in clause (ii) above. The terms
of the subordination referred to in clause (ii) above and of such subordinated
notes shall be satisfactory to the Administrative Agent.
"Partnership Agreement": the Amended and Restated Agreement of
Limited Partnership of Globalstar, L.P. dated as of December 31, 1994 among the
Partners, as amended, modified or supplemented from time to time in accordance
with Section 6.10.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
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"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at any particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Preferred Equity Interests": any Equity Interests of the Borrower
that are preferred or senior in right of payment to any other Equity Interests
of the Borrower and which have the following characteristics:
(d) such Equity Interests are not mandatorily redeemable or
redeemable at the option of the holder thereof prior to 90
days after the Termination Date;
(e) dividends thereon are payable no more frequently than
quarterly;
(f) the dividend rate thereon is a market rate at the time of
issuance; and
(g) such Equity Interests have other terms satisfactory to the
Administrative Agent (the Banks hereby acknowledging that the
terms of the Preferred Equity Interests to be issued by the
Borrower to Globalstar Telecommunications, Ltd. ("GTL") in
connection with the issuance by GTL of its $300,000,000 __%
Convertible Preferred Equivalent Obligation due 2006 are
satisfactory).
"Properties": as defined in Section 3.16.
"Purchasing Banks": as defined in Section 10.6(c).
"Qualified Equity Interests:" Equity Interests in the Borrower which
are not mandatorily redeemable and which do not require any mandatory payments
or distributions with respect thereto.
"Rating": the senior unsecured debt rating of the Borrower (or its
status as unrated) from time to time in effect from S&P or Moody's, as the case
may be.
"Register": as defined in Section 10.6(d).
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"Release Date": the date on which the Release Date Conditions
Precedent are satisfied and the Guarantee Release occurs.
"Release Date Conditions Precedent": the Guarantees shall be
released by the Administrative Agent and the Banks upon the satisfaction of the
following conditions precedent and only upon receipt by the Administrative Agent
of a certificate from a Responsible Officer of the Borrower certifying that: (i)
the Borrower's senior unsecured debt rating (without consideration of any
third-party credit support) from (A) S&P is at least BBB- or (B) ▇▇▇▇▇'▇ is at
least Baa3, (ii) (A) the Obligations (and, if applicable, the obligations of a
Subsidiary under any guarantee referred to in clause (B) below) are secured on
at least a pari passu and equal and ratable basis by the collateral securing all
outstanding Additional Buildout Indebtedness and (B) insofar as any of such
outstanding Additional Buildout Indebtedness is owed by or guaranteed by a
Subsidiary of the Borrower, such Subsidiary has guaranteed payment of the
Obligations, in all cases under the preceding clauses (A) and (B) on terms and
conditions relating to such collateral and guarantees (including intercreditor
arrangements) satisfactory to the Required Banks, (iii) no Default or Event of
Default has occurred and is continuing or would exist after giving effect to the
Guarantee Release and (iv) all representations and warranties set forth in
Section 3, when made on the Release Date and after giving effect to the
Guarantee Release, shall be true and correct. On and after the Release Date the
Borrower shall not be required to deliver the Lockheed ▇▇▇▇▇▇ Guarantee, any
Acceptable Letter of Credit or any Subsidiary Guarantee.
"Reorganization": at any particular time, the condition that a
Multiemployer Plan is in reorganization within the meaning of Section 4241 of
ERISA.
"Reportable Event": any of the events set forth in Section 4043(b)
of ERISA or the regulations thereunder, other than those events as to which the
thirty day notice period is waived under subsections .13, .14, .16, .18, .19 or
.20 of PBGC Reg. Section 2615.
"Required Banks": at any date, Banks whose Commitments aggregate not
less than 51% of the total Commitments or, if the Commitments have been
terminated, of the outstanding Loans.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
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"Responsible Officer": an officer of the Managing General Partner of
the Borrower.
"Restricted Payments": as defined in Section 6.6.
"S&P": Standard & Poor's Ratings Group.
"Satellite Project": the building, launching and operation by the
Borrower of a worldwide, low-earth orbit satellite based digital
telecommunications system which will provide wireless voice telephony and other
services.
"Security Documents": the collective reference to all assignments,
cash collateral agreements, security agreements, mortgages, deeds of trust,
pledge agreements, guarantees and all other security documents hereafter
delivered to the Administrative Agent granting a Lien on any asset or assets of
any Person to directly or indirectly secure any Additional Buildout Indebtedness
of the Borrower or to secure any guarantee of any such obligations and
liabilities.
"Service Provider Agreements": the Founding Service Provider
Agreements dated as of January 1, 1995, between the Borrower and each of
AirTouch Satellite Services, Finmeccanica S.p.A., Hyundai/DACOM, Loral/DASA
Globalstar, L.P., Loral Globalstar, L.P., TE.SA.M. and Vodastar Limited and any
agreements which the Borrower may enter into in the future with a service
provider to provide voice, fax, data, messaging, paging, geolocation,
information or other services using the Borrower's satellite constellation.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA but which is not a Multiemployer Plan.
"Subordinated Debt": any unsecured Indebtedness of the Borrower, no
part of the principal of which is required to be paid (whether by way of
mandatory sinking fund, mandatory redemption or mandatory prepayment or
otherwise) prior to the date which is 90 days after the Termination Date, and
the payment of principal of and interest on which, and the payment of any other
obligations of the Borrower to the holders of such Subordinated Debt, are
subordinated to the prior payment in full of the Obligations (including, without
limitation, obligations in respect of post-petition interest, whether or not
allowed) on terms satisfactory to the Administrative Agent.
"Subsidiary": as to any Person, a corporation, partnership or other
entity (a) of which Equity Interests having ordinary voting power (other than
Equity Interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such
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Person and (b) which is consolidated on such Person's financial statements.
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of
the Borrower.
"Subsidiary Guarantee": the Guarantees to be executed and delivered
by each Subsidiary (other than Foreign Subsidiaries) of the Borrower existing on
the date hereof, if any, or created or acquired after the date hereof,
substantially in the form of Exhibit F, as the same may be amended, supplemented
or otherwise modified from time to time.
"Subsidiary Guarantor": each Subsidiary that is a guarantor of the
Obligations pursuant to a Subsidiary Guarantee, provided that from and after the
Release Date "Subsidiary Guarantor" shall mean (i) each Subsidiary that is an
obligor, whether as borrower, issuer, guarantor or otherwise, of outstanding
Additional Buildout Indebtedness and has guaranteed payment of the Obligations
in a form substantially equivalent to the Subsidiary Guarantee and (ii) each
Subsidiary which is not an obligor, whether as borrower, issuer, guarantor or
otherwise, of outstanding Additional Buildout Indebtedness. A Subsidiary may be
a Subsidiary Guarantor under the preceding clause (ii) notwithstanding that it
has not guaranteed payment of the Obligations.
"Termination Date": the fifth anniversary of the Closing Date or
such earlier date as the Commitments shall terminate as provided herein,
provided, however, that if the Borrower does not comply with Section 6.1(a) then
the Termination Date shall automatically be moved forward to June 30, 2000
unless the Commitments shall terminate earlier as provided herein.
"Tranche": the reference to Eurodollar Loans the Interest Periods
with respect to all of which begin on the same date and end on the same later
date (whether or not such Loans shall originally have been made on the same
day).
"Transfer Effective Date": as defined in each Commitment Transfer
Supplement.
"Transferees": as defined in Section 10.6(f).
"Type": as to any Loan, its nature as an ABR Loan or a Eurodollar
Loan.
"Wholly Owned Subsidiary": any Subsidiary of the Borrower to the
extent at least 99% of the Equity Interests of such Subsidiary, other than
directors' or nominees' qualifying shares, are owned directly or indirectly by
the Borrower.
1.2 Other Definitional Provisions.
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(a) Unless otherwise specified herein, all terms defined in this
Agreement shall have the defined meanings when used in the Notes or any other
Loan Document certificate or other document made or delivered pursuant hereto.
(b) As used herein and in the Notes, the other Loan Documents and
any certificate or other document made or delivered pursuant hereto, accounting
terms relating to the Borrower and its Subsidiaries not defined in Section 1.1
and accounting terms partly defined in Section 1.1, to the extent not defined,
shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section ,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meaning given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Bank severally agrees to make revolving credit loans
(the "Loans") to the Borrower from time to time during the Commitment Period in
an aggregate principal amount at any one time outstanding not to exceed such
Bank's Commitment. During the Commitment Period the Borrower may use the
Commitments by borrowing, prepaying the Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
(b) The Loans may from time to time be (i) Eurodollar Loans, (ii)
ABR Loans or (iii) a combination thereof, as determined by the Borrower and
notified to the Administrative Agent in accordance with Sections 2.3 and 2.8;
provided, that no Loan shall be made as a Eurodollar Loan after the day that is
one month prior to the Termination Date.
2.2 Commitment/Loan Support. (a) Payment of all of the Guaranteed
Obligations shall be, prior to the Release Date, supported by the Lockheed
▇▇▇▇▇▇ Guarantee or, in lieu thereof, by Acceptable Letters of Credit (and,
after a drawing on an Acceptable Letter of Credit or Downgraded Letter of
Credit, by Partner Cash Collateral), provided that (a) no more than 60% of the
Guaranteed Obligations shall be supported at any time by Partner Guarantees
(other than the Lockheed ▇▇▇▇▇▇ Guarantee) and (b) no less than 40% of the
Guaranteed Obligations shall be supported at any time by the Lockheed ▇▇▇▇▇▇
Guarantee. In addition, at all times prior to the Release Date, payment of all
of the Guaranteed Obligations will be supported by the Subsidiary
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Guarantee executed by each domestic Subsidiary in existence prior to the Release
Date.
(b) Subject to the provisions of paragraph (a) above and the other
provisions of this Section 2.2, the maximum liability of Lockheed ▇▇▇▇▇▇ under
the Lockheed ▇▇▇▇▇▇ Guarantee in respect of principal of and interest on the
Loans shall be reduced by the available amount (i.e., at any time, the amount
that may be drawn under each Letter of Credit at such time and, if a drawing has
been made by the Administrative Agent under such Letter of Credit, the sum of
the amount of principal of the Loans in respect of which such drawing was made
plus the amount of unpaid accrued interest on such principal amount at such time
deposited in a Partner Collateral Account) of each Acceptable Letter of Credit
(and, if such Acceptable Letter of Credit becomes a Downgraded Letter of Credit,
such Downgraded Letter of Credit) delivered to the Administrative Agent by
another Partner Guarantor. In the event that (i) any Partner Guarantor shall be
insolvent or bankrupt or any of the events of the type described in clause (vi)
of paragraph (a) of Section 8 shall occur with respect to such Partner Guarantor
and (ii) such Partner Guarantor has delivered any Partner Cash Collateral
pursuant to a drawing by the Administrative Agent under a Letter of Credit
issued for the account of such Partner Guarantor, then upon the occurrence of
any of the events described in clause (i) the maximum liability of Lockheed
▇▇▇▇▇▇ under the Lockheed ▇▇▇▇▇▇ Guarantee shall be increased by an amount equal
to the aggregate amount of the drawing made by the Administrative Agent under
such Letter of Credit.
(c) Upon the termination or expiration of the Commitments or
acceleration of the Loans under Section 8 or maturity of the Loans on the
Termination Date, the Administrative Agent shall use reasonable efforts to call
on the Partner Guarantees, whether by notice or demand in the case of the
Lockheed ▇▇▇▇▇▇ Guarantee, or, in the case of a Letter of Credit, by drawing
thereunder in conformity with the terms and conditions thereof, or, in the case
of Partner Cash Collateral, by withdrawal from the applicable Partner Collateral
Account (unless the Administrative Agent is prohibited from doing so because
such Partner is the subject of insolvency proceedings) (x) at approximately the
same time, to the extent practical and to the extent permitted by law, provided
that the failure to so call or draw at approximately the same time shall not
affect the obligations of the Loan Parties (including Lockheed ▇▇▇▇▇▇) under the
Loan Documents or of any issuer of a Letter of Credit thereunder or of any other
Partner Guarantor with respect to its Partner Cash Collateral, and (y) to the
extent practical and to the extent permitted by law, on a pro rata basis based
on the respective principal amounts of the Loans supported by each such
Guarantee (which, in the case of Partner Cash Collateral, shall be the principal
amount of the Loans supported by the Letter of Credit which funded such Partner
Cash Collateral), provided that this clause (y) shall not apply to calls made on
the Lockheed
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▇▇▇▇▇▇ Guarantee for amounts in respect of which the other Partner Guarantees
are inapplicable, and provided that the failure to so call or draw on a pro rata
basis shall not affect the obligations of the Loan Parties (including Lockheed
▇▇▇▇▇▇) under the Loan Documents or of any issuer of an Acceptable Letter of
Credit thereunder. The preceding sentence shall not apply with respect to
drawings made pursuant to paragraphs (d) and (e) below.
(d) Unless any Expiring Letter of Credit is replaced by the
Applicable Partner with one or more Acceptable Letters of Credit with an equal
aggregate stated amount at least 30 days prior to the then scheduled expiration
date thereof, the Administrative Agent shall use reasonable efforts to draw upon
such Expiring Letter of Credit. All proceeds thereof shall be deposited to a
Partner Collateral Account established for the Applicable Partner.
(e) The Administrative Agent shall use reasonable efforts to draw
the full amount of each Downgraded Letter of Credit promptly following its
actual knowledge that an Acceptable Letter of Credit has become a Downgraded
Letter of Credit unless such Downgraded Letter of Credit is replaced by the
Applicable Partner prior to such draw with one or more Acceptable Letters of
Credit with an equal aggregate stated amount; provided that the Administrative
Agent shall not draw on such Downgraded Letter of Credit during the 45 day
period after it obtains such knowledge (unless Obligations are otherwise due) if
the Borrower or the Applicable Partner notifies the Administrative Agent that it
is attempting to provide replacement Acceptable Letters of Credit (unless such
Letter of Credit will expire within 30 days). All proceeds of any such drawing
shall be deposited to a Partner Collateral Account established for the
Applicable Partner. If (i) the issuer of such Downgraded Letter of Credit is
insolvent or bankrupt or any of the events described in clause (vi) of paragraph
(a) of Section 8 shall occur with respect to such issuer, (ii) such issuer fails
to honor such drawing, (iii) the Administrative Agent is prevented by applicable
law from making such a drawing or (iv) amounts drawn under such Downgraded
Letter of Credit are required to be restored or returned by the Administrative
Agent or any Bank as a result of the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the issuer of such Downgraded Letter of Credit
or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, such issuer or any
substantial part of its property, or otherwise, then the maximum liability of
Lockheed ▇▇▇▇▇▇ under the Lockheed ▇▇▇▇▇▇ Guarantee shall be increased by an
amount equal to the stated amount of such Downgraded Letter of Credit.
(f) All amounts, if any, credited to the Partner Collateral Accounts
shall be invested by the Administrative Agent in Collateral Cash Equivalents
(all such investments to be made in the name of the Administrative Agent) as
directed by the
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Applicable Partner unless a Default or Event of Default has occurred and is
continuing. Unless a Default or an Event of Default has occurred and is
continuing, the Administrative Agent is authorized to:
(i) release net earnings on such investments, if any,
quarterly on the last day of each March, June, September and December, provided
that the Administrative Agent shall not release any earnings at any time unless
the balance of the Partner Cash Collateral remaining in such Partner Collateral
Account after giving effect to such release is at least equal to the proceeds of
the Administrative Agent's drawing(s) under the Letters of Credit delivered to
it for the account of the Applicable Partner;
(ii) release all Partner Cash Collateral to the Applicable
Partner upon delivery of one or more Acceptable Letters of Credit with an equal
aggregate stated amount to that of the Letters of Credit drawn upon by the
Administrative Agent to fund the related Partner Collateral Account;
(iii) release all Partner Cash Collateral to the Applicable
Partner upon the Guarantee Release; and
(iv) release the applicable Partner Cash Collateral to
Lockheed ▇▇▇▇▇▇ (to the extent permitted by applicable law and applicable
Contractual Obligations) upon increase of liability of Lockheed ▇▇▇▇▇▇ under the
Lockheed ▇▇▇▇▇▇ Guarantee in accordance with this Section 2.2.
The Administrative Agent shall not be liable for any losses or decreases in
value with respect to the Partner Cash Collateral, other than those occurring as
a result of its gross negligence or willful misconduct.
2.3 Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Commitments during the Commitment Period on any Eurodollar
Business Day, if all or any part of the requested Loans are to be initially
Eurodollar Loans, or on any Business Day, otherwise; provided, that the Borrower
shall give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to 10:00 A.M., New York City time,
(a) with respect to any of the requested Loans that are to be initially
Eurodollar Loans, three Eurodollar Business Days prior to the requested
Borrowing Date or (b) with respect to any of the requested Loans that are to be
initially ABR Loans, on the requested Borrowing Date), specifying (i) the amount
to be borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing
is to be of Eurodollar Loans, ABR Loans or a combination thereof and (iv) if the
borrowing is to be entirely or partly of Eurodollar Loans, the respective
amounts of each such Loan and the respective lengths of the initial Interest
Periods therefor. Each borrowing under the Commitments shall be in an amount
equal to $10,000,000 or a whole multiple of
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$1,000,000 in excess thereof or in the remaining amount of the Available
Commitments. Upon receipt of any such notice from the Borrower, the
Administrative Agent shall promptly notify each Bank thereof. Each Bank will
make the amount of its pro rata share of each borrowing available to the
Administrative Agent for the account of the Borrower at the office of the
Administrative Agent specified in Section 10.2 prior to 12:00 Noon, New York
City time, on the Borrowing Date requested by the Borrower in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the Borrower by the Administrative Agent's crediting the account of
the Borrower on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Banks and in like funds as received
by the Administrative Agent.
2.4 Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Bank the then unpaid principal amount of each Loan of the Borrower on the
Termination Date (or such earlier date on which the Loans become due and payable
pursuant to Section 2.6, 2.7 or 8). The Borrower hereby further agrees to pay
interest on the unpaid principal amount of the Loans from time to time
outstanding from the date hereof until payment in full thereof at the rates per
annum, and on the dates, set forth in subsection 2.10.
(b) Each Bank shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Borrower to such Bank
resulting from each Loan of such Bank from time to time, including the amounts
of principal and interest payable and paid to such Bank from time to time under
this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 10.6(d), and a subaccount therein for each Bank, in which shall be
recorded (i) the amount of each Loan made hereunder, the Type thereof and each
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Bank
hereunder and (iii) both the amount of any sum received by the Administrative
Agent hereunder from or for the account of the Borrower and each Bank's share
thereof.
(d) The entries made in the Register and the accounts of each Bank
maintained pursuant to Section 2.4(b) shall, to the extent permitted by
applicable law, be conclusive evidence, in the absence of manifest error, of the
existence and amounts of the obligations of the Borrower therein recorded;
provided, however, that the failure of any Bank or the Administrative Agent to
maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligation of the Borrower to repay (with applicable
interest) the Loans made to such Borrower by such Bank in accordance with the
terms of this Agreement.
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(e) The Borrower agrees that, upon the request to the Administrative
Agent by any Bank, the Borrower will execute and deliver to such Bank a
promissory note of the Borrower evidencing the Loans of such Bank, substantially
in the form of Exhibit A with appropriate insertions as to date and principal
amount (a "Note").
2.5 Commitment Fees. The Borrower agrees to pay to the
Administrative Agent for the account of each Bank a commitment fee for the
period from and including the Closing Date, computed at the Commitment Fee Rate
on the average daily amount of the Available Commitment of such Bank during the
period for which payment is made, payable quarterly in arrears on the last day
of each March, June, September and December and on the Termination Date,
commencing on the first of such dates to occur after the date hereof.
2.6 Termination, Reduction or Increase of Commitments. (a) The
Borrower shall have the right, upon not less than three Business Days' notice to
the Administrative Agent (which shall give prompt notice thereof to the Banks),
to terminate the Commitments or, from time to time, to reduce the amount of the
Commitments; provided, that no such termination or reduction shall be permitted
if, after giving effect thereto and to any payments or prepayments of the Loans
made on the effective date thereof, the aggregate principal amount of the Loans
then outstanding would exceed the aggregate Commitments then in effect. Any such
reduction shall be in an amount equal to $10,000,000 or a whole multiple of
$1,000,000 in excess thereof and shall reduce permanently the Commitments then
in effect.
(b) The Commitments shall be automatically reduced in the following
amounts at the following times by an amount equal to:
(i) 100% of the Net Cash Proceeds of the issuance or
incurrence of Additional Buildout Indebtedness after the Closing Date, except
for the proceeds of not more than $950,000,000 (or such higher amount as may be
approved by the Required Banks) in the aggregate of Additional Buildout
Indebtedness, net of interest accretion on non-cash pay issuances and escrowed
interest on overfunded issuances related to such Additional Buildout
Indebtedness; and
(ii) 100% of the Net Cash Proceeds of any sale or other
disposition by the Borrower or any of its Subsidiaries of any assets except for
sales and dispositions permitted by Section 6.5(b).
(c) Upon the request of the Borrower to the Administrative Agent and
the Banks, the Commitments hereunder may be increased by not more than
$150,000,000 or such lesser amount as may be agreed upon by the parties as
referred to below; provided that (i) each Bank whose Commitment is increased
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consents, (ii) the Required Banks consent, (iii) such increases are supported by
either the Lockheed ▇▇▇▇▇▇ Guarantee or by Acceptable Letters of Credit or by
other guarantees, collateral or credit support satisfactory to the Required
Banks and (iv) if the Commitments would exceed $250,000,000 after giving effect
to such increase, Lockheed, ▇▇▇▇▇▇ consents to such increase.
(d) In the event of such a requested increase in the Commitments,
(i) each of the Banks shall be given the opportunity to participate in the
increased Commitments ratably in the proportions that their respective
Commitments bear to the aggregate Commitments, and (ii) to the extent that the
Banks do not elect so to participate in such increased Commitments after being
afforded an opportunity to do so, then the Borrower shall consult with the
Administrative Agent as to the number, identity and requested Commitments of
additional financial institutions which the Borrower may upon the written
consent of the Administrative Agent (which consent shall not be unreasonably
withheld) invite to participate in the Commitments.
(e) In the event that the Borrower and one or more of the Banks (or
other financial institutions which may elect to participate) shall agree, in
accordance with Section 2.6(c), upon such an increase in the aggregate
Commitments, the Borrower, the Administrative Agent and the financial
institution in question shall enter into a Commitment Increase Supplement
setting forth the amounts of the increase in Commitments and providing that the
additional financial institutions participating shall be deemed to be included
as Banks for all purposes of this Agreement. Upon the execution and delivery of
such Commitment Increase Supplement as provided above, and upon satisfaction of
such other conditions as the Administrative Agent may specify (including the
delivery of certificates and legal opinions on behalf of the Borrower relating
to the amendment and, if applicable, new Notes), this Agreement shall be deemed
to be amended accordingly.
(f) No Bank shall have any obligation to increase its Commitment in
the event of such a request by the Borrower hereunder.
2.7 Prepayments. (a) The Borrower may at any time and from time to
time prepay the Loans, in whole or in part, without premium or penalty, upon at
least three Business Days' irrevocable notice to the Administrative Agent in the
case of ABR Loans and at least three Eurodollar Business Days' irrevocable
notice to the Administrative Agent in the case of Eurodollar Loans, which notice
shall specify the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans, ABR Loans or a combination thereof, and, if of a combination
thereof, the amount allocable to each. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Bank thereof. If any such notice
is given, the amount specified in such notice shall be due and payable on the
date specified therein, together with accrued interest to such date on the
amount prepaid.
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Partial prepayments shall be in an aggregate principal amount of $10,000,000 or
a whole multiple of $1,000,000 in excess thereof. Each prepayment of Eurodollar
Loans shall be subject to compliance with the provisions of Sections 2.9 and
2.17.
(b) If at any time the principal amount of Loans then outstanding
shall exceed the Commitments, the Borrower shall immediately prepay or at its
option cash collateralize the Loans as provided in Section 2.7(c) in an amount
equal to such excess. Amounts payable pursuant to this Section 2.7(b) shall be
applied, first, to prepay any ABR Loans then outstanding and second, to prepay
or cash collateralize (at the Borrower's option) any Eurodollar Loans then
outstanding (provided, that any Eurodollar Loans so cash collateralized shall be
prepaid no later than the last day of the respective Interest Periods therefor).
Each prepayment pursuant to this Section 2.7(b) shall be accompanied by accrued
interest on the amount prepaid and any amounts payable pursuant to Section 2.17.
(c) The Borrower shall cash collateralize Eurodollar Loans pursuant
to Section 2.7(b) by depositing in an account with the Administrative Agent (the
"Eurodollar Cash Collateral Account"), to be established and maintained pursuant
to such terms and conditions as shall be specified by the Administrative Agent
in its discretion, an amount determined pursuant to the second sentence of
Section 2.7(b). Such deposited monies shall be held by the Administrative Agent
as cash collateral (the "Eurodollar Cash Collateral") for the outstanding
Eurodollar Loans on a pro rata basis; provided, that if any ABR Loans shall be
made while there is Eurodollar Cash Collateral on deposit in the Eurodollar Cash
Collateral Account, the Administrative Agent shall apply such Eurodollar Cash
Collateral to the immediate prepayment of such ABR Loans and only the Eurodollar
Cash Collateral remaining after such prepayment, if any, shall be retained in
the Eurodollar Cash Collateral Account. The Eurodollar Cash Collateral Account
and the Eurodollar Cash Collateral shall be subject to the sole dominion and
control of the Administrative Agent and, except as set forth above, the
Eurodollar Cash Collateral shall be retained in the Eurodollar Cash Collateral
Account and applied to the repayment of Eurodollar Loans on the last day of the
respective Interest Periods therefor, with the Borrower being obligated to repay
the balance of such Eurodollar Loans in the event the Eurodollar Cash Collateral
is insufficient therefor. Any amounts remaining in the Eurodollar Cash
Collateral Account after repayment of such Eurodollar Loans will be released to
the Borrower provided no Default or Event of Default exists. The Administrative
Agent shall invest the Eurodollar Cash Collateral in Cash Equivalents, and shall
pay over to the Borrower any interest earned on such investments quarterly on
the last day of each March, June, September and December; provided, that no
Default or Event of Default shall have occurred and be continuing (in which case
such interest shall be retained as Eurodollar Cash Collateral). The
Administrative Agent shall not be liable for any losses or
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decreases in value with respect to the Eurodollar Cash Collateral, other than
those occurring as a result of its gross negligence or willful misconduct.
2.8 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to ABR Loans, by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election; provided, that any such conversion of Eurodollar Loans may only
be made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert ABR Loans to Eurodollar Loans by giving
the Administrative Agent at least three Eurodollar Business Days' prior
irrevocable notice of such election. Any such notice of conversion to Eurodollar
Loans shall specify the length of the initial Interest Period or Interest
Periods therefor. Upon receipt of any such notice the Administrative Agent shall
promptly notify each Bank thereof. All or any part of outstanding Eurodollar
Loans or ABR Loans may be converted as provided herein; provided, that (i) no
Loan may be converted into a Eurodollar Loan when any Event of Default (upon
notice from the Administrative Agent, on behalf of the Required Banks, except
such notice shall not be required in the case of the Event of Default described
in clause (a)(vi) of Section 8) has occurred and is continuing, (ii) any such
conversion may only be made if, after giving effect thereto, Section 2.9 shall
not have been contravened and (iii) no Loan may be converted into a Eurodollar
Loan after the date that is one month prior to the Termination Date.
(b) Any Eurodollar Loan may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower's
giving notice to the Administrative Agent, in accordance with the applicable
provisions of the term "Interest Period" set forth in Section 1.1, of the length
of the next Interest Period to be applicable to such Loans; provided, that no
Eurodollar Loan may be continued as such (i) when any Event of Default (upon
notice from the Administrative Agent, on behalf of the Required Banks, except
such notice shall not be required in the case of an Event of Default described
in clause (a)(vi) of Section 8) has occurred and is continuing, (ii) if, after
giving effect thereto, Section 2.9 would be contravened or (iii) after the date
that is one month prior to the Termination Date; provided further, that if the
Borrower shall fail to give any required notice as described above in this
paragraph or if such continuation is not permitted pursuant to the preceding
proviso such Loans shall be automatically converted to ABR Loans on the last day
of such then expiring Interest Period.
2.9 Minimum Amounts of Tranches. All borrowings, conversions and
continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto (a) the aggregate principal amount of the
Loans comprising each Tranche shall be equal to $10,000,000 or a whole
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multiple of $1,000,000 in excess thereof and (b) there shall be no more than ten
different Tranches outstanding at any one time.
2.10 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
Interest Period plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to
the ABR.
(c) If all or a portion of (i) the principal amount of any Loan,
(ii) any interest payable thereon or (iii) any fee or other amount payable
pursuant to this Agreement shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum which is (y) in the case of overdue principal, the rate that
would otherwise be applicable thereto pursuant to the foregoing provisions of
this Section 2.10 plus 2% or (z) in the case of overdue interest (to the extent
permitted by applicable law), fees or other amounts, the rate described in
paragraph (b) of this Section 2.10 plus 2%, in each case from the date of such
non-payment until such amount is paid in full (whether before or, to the extent
permitted by applicable law, after judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date; provided, that interest accruing pursuant to paragraph (c) of this Section
2.10 shall be payable on demand, or, in the absence of demand, weekly on Friday
of each week.
2.11 Computation of Interest and Fees. (a) Interest on Loans and
fees (other than interest calculated on the basis of the Prime Rate) shall be
calculated on the basis of a 360-day year for the actual days elapsed; provided,
that interest calculated on the basis of the Prime Rate shall be calculated on
the basis of a 365- or 366- (as the case may be) day year for the actual days
elapsed. The Administrative Agent shall as soon as practicable notify in writing
the Borrower and the Banks of each determination of a Eurodollar Rate. Any
change in the interest rate on a Loan resulting from a change in the ABR shall
become effective as of the opening of business on the day on which such change
becomes effective. The Administrative Agent shall as soon as practicable notify
in writing the Borrower and the Banks of the effective date and the amount of
each such change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Banks in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower or a Bank, deliver to
the Borrower or such Bank, as the case may be, a statement showing the
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quotations used by the Administrative Agent in determining any interest rate
pursuant to Section 2.10(a).
2.12 Inability to Determine Interest Rate. In the event that prior
to the first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by reason
of circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Required Banks that the Eurodollar Rate determined or to be determined for such
Interest Period will not adequately and fairly reflect the cost to such Banks
(as conclusively certified in writing by such Banks) of making or maintaining
their affected Eurodollar Loans during such Interest Period, the Administrative
Agent shall give telecopy or telephonic notice (confirmed in writing) thereof to
the Borrower and the Banks as soon as practicable thereafter. If such notice is
given (x) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as ABR Loans, (y) any Loans that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
continued as ABR Loans and (z) any outstanding Eurodollar Loans shall be
converted, on the first day of such Interest Period, to ABR Loans. The
Administrative Agent shall promptly notify the Borrower at such time as the
conditions set forth in (a) and (b) above are no longer in effect, and until
such notice has been delivered by the Administrative Agent, no further
Eurodollar Loans shall be made or continued as such, nor shall the Borrower have
the right to convert Loans to Eurodollar Loans.
2.13 Pro Rata Treatment and Payments. (a) Each borrowing by the
Borrower from the Banks of Loans, each payment by the Borrower on account of any
commitment fee hereunder and any reduction of the Commitments of the Banks shall
be made pro rata according to the respective Commitment Percentages of the
Banks. Each payment (including each prepayment) by the Borrower on account of
principal of and interest on the Loans shall be made pro rata according to the
respective outstanding principal amounts of the Loans then held by the Banks
except to the extent any other provision of this Agreement provides for non pro
rata payments. All payments (including prepayments) to be made by the Borrower
hereunder and under the Notes, whether on account of principal, interest, fees
or otherwise, shall be made without set-off or counterclaim and shall be made
prior to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the Banks, at the Administrative
Agent's office specified in Section 10.2, in Dollars and in immediately
available funds. The Administrative Agent shall distribute such payments to the
Banks promptly upon receipt in like funds as received. If any payment hereunder
(other than
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payments on the Eurodollar Loans) becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding Business
Day, and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension. If any payment on a
Eurodollar Loan becomes due and payable on a day other than a Eurodollar
Business Day, the maturity thereof shall be extended to the next succeeding
Eurodollar Business Day unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Eurodollar Business Day.
(b) Unless the Administrative Agent shall have been notified in
writing by any Bank prior to a Borrowing Date that such Bank will not make the
amount that would constitute its portion of the borrowing to be made on such
date available to the Administrative Agent, the Administrative Agent may assume
that such Bank has made such amount available to the Administrative Agent on
such Borrowing Date, and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If such
amount is made available to the Administrative Agent on a date after such
Borrowing Date, such Bank shall pay to the Administrative Agent on demand an
amount equal to the product of (i) the daily average Federal funds rate during
such period as quoted by the Administrative Agent, times (ii) the amount of such
Bank's portion of such borrowing, times (iii) a fraction the numerator of which
is the number of days that elapse from and including such Borrowing Date to the
date on which such Bank's portion of such borrowing shall have become
immediately available to the Administrative Agent and the denominator of which
is 360. A certificate of the Administrative Agent submitted to any Bank with
respect to any amounts owing under this Section 2.13(b) shall be conclusive in
the absence of manifest error. If such Bank's portion of such borrowing is not
in fact made available to the Administrative Agent by such Bank within three
Business Days of such Borrowing Date, the Administrative Agent shall be entitled
to recover such amount with interest thereon at the rate per annum applicable to
ABR Loans hereunder, on demand, from the Borrower. If the Borrower returns to
the Administrative Agent any amount with interest thereon as described in the
immediately preceding sentence, such Bank shall indemnify the Borrower for the
difference, if any, between (i) the aggregate interest paid by the Borrower to
the Administrative Agent in accordance with the immediately preceding sentence
less (ii) the aggregate interest which actually accrued on such amount prior to
its return to the Administrative Agent.
2.14 Illegality. Notwithstanding any other provision herein, if any
change in any Requirement of Law or in the interpretation or application thereof
shall make it unlawful for any Bank to make or maintain Eurodollar Loans as
contemplated by this Agreement, (a) the commitment of such Bank hereunder to
make Eurodollar Loans, continue Eurodollar Loans as such and convert ABR Loans
to Eurodollar Loans shall forthwith be cancelled and
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(b) such Bank's Loans then outstanding as Eurodollar Loans, if any, shall be
converted automatically to ABR Loans on the respective last days of the then
current Interest Periods with respect to such Loans or within such earlier
period as required by law. If any such conversion of a Eurodollar Loan occurs on
a day which is not the last day of the then current Interest Period with respect
thereto, the Borrower shall pay to such Bank such amounts, if any, as may be
required pursuant to Section 2.17.
2.15 Other Costs; Increased Costs. (a) The Borrower agrees to pay
to each Bank which requests compensation under this Section 2.15(a) (by written
notice to the Borrower through the Administrative Agent), on the last day of
each Interest Period with respect to any Eurodollar Loan made by such Bank, so
long as such Bank shall be required to maintain reserves against "Eurocurrency
liabilities" under Regulation D of the Board of Governors of the Federal Reserve
System (or, so long as such Bank may be required by such Board of Governors or
by any other Governmental Authority to maintain reserves against any category of
liabilities which includes deposits by reference to which the interest rate on
Eurodollar Loans is determined as provided in this Agreement or against any
category of extensions of credit or other assets of such Bank which includes any
Eurodollar Loans), an additional amount (determined by such Bank and promptly
notified to the Borrower) representing such Bank's calculation or, if an
accurate calculation is impracticable, reasonable estimate (using such
reasonable means of allocation as such Bank shall determine) of the actual
costs, if any, incurred by such Bank while such Eurodollar Loans were
outstanding as a result of the applicability of the foregoing reserves to such
Eurodollar Loans, which amount in any event shall not exceed the product of the
following for each day while such Eurodollar Loans were outstanding:
(i) the principal amount of the relevant Eurodollar Loans made
by such Bank outstanding on such day; and
(ii) the difference between (x) a fraction the numerator of
which is the Eurodollar Rate (expressed as a decimal) applicable to such
Eurodollar Loans, and the denominator of which is one minus the maximum rate
(expressed as a decimal) at which such reserve requirements are imposed by such
Board of Governors or other Governmental Authority on such date minus (y) such
numerator; and
(iii) a fraction the numerator of which is one and the
denominator of which is 360.
(b) In the event that any change in any Requirement of Law or in the
interpretation or application thereof or compliance by any Bank with any request
or directive (whether or not having the force of law) from any central bank or
other Governmental Authority made subsequent to the date hereof:
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(i) shall subject any Bank to any tax of any kind whatsoever
with respect to this Agreement, any Note or any Eurodollar Loan made by it, or
change the basis of taxation of payments to such Bank in respect thereof (except
for taxes covered by Section 2.16 and changes in the rate of tax on the overall
net income of such Bank);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by, any office of
such Bank which is not otherwise described in Section 2.15(a); or
(iii) shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank, by
an amount which such Bank deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or to reduce any amount receivable
hereunder in respect thereof, then the Borrower shall pay such Bank within 15
Business Days following demand therefor any additional amounts necessary to
compensate such Bank for such increased cost or reduced amount receivable. If
any Bank becomes entitled to claim any additional amounts pursuant to this
Section 2.15(b), it shall promptly notify the Borrower, through the
Administrative Agent, of the event by reason of which it has become so entitled.
(c) In the event that any Bank shall have determined that any change
in any Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Bank or any corporation controlling
such Bank with any request or directive regarding capital adequacy (whether or
not having the force of law) from any Governmental Authority made subsequent to
the date hereof does or shall have the effect of reducing the rate of return on
such Bank's or such corporation's capital as a consequence of its obligations
hereunder to a level below that which such Bank or such corporation could have
achieved but for such change or compliance (taking into consideration such
Bank's or such corporation's policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time, after prompt
submission by such Bank to the Borrower (with a copy to the Administrative
Agent) of a written request therefor, the Borrower shall pay to such Bank within
15 Business Days following demand therefor such additional amount or amounts as
will compensate such Bank or such corporation for such reduction.
(d) A certificate as to any additional amounts payable pursuant to
this Section 2.15 submitted by the relevant Bank, through the Administrative
Agent, to the Borrower shall be conclusive in the absence of manifest error. The
covenants contained in this Section 2.15 shall survive the termination of
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this Agreement and the payment of the Notes and all other amounts payable
hereunder. Any notice to be given by a Bank under this Section 2.15 after
termination of this Agreement shall be effective only if given within 120 days
after such Bank becomes aware or should have become aware of the events giving
rise to such notice.
2.16 Taxes. (a) All payments made by the Borrower under this
Agreement and the Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings
imposed, levied, collected, withheld or assessed by any Governmental Authority,
excluding, in the case of the Administrative Agent and each Bank, (i) net income
taxes, franchise and branch profit taxes (imposed in lieu of net income taxes)
imposed on the Administrative Agent or such Bank, as the case may be, as a
result of a present or former connection between the jurisdiction of the
government or taxing authority imposing such tax and the Administrative Agent or
such Bank (excluding a connection arising solely from the Administrative Agent
or such Bank having executed, delivered or performed its obligations or received
a payment under, or enforced, this Agreement or the Notes) or any political
subdivision or taxing authority thereof or therein, (ii) any taxes, levies,
imposts, duties, charges, fees, deductions or withholdings arising after the
Closing Date, solely as a result of or attributable to the Administrative Agent
or Bank (x) changing its designated lending office as of the Closing Date to a
lending office located in any other jurisdiction or (y) designating an
additional lending office located in any other jurisdiction and (iii) any taxes,
levies, imposts, duties, charges, fees, deductions or withholdings in effect on
the Closing Date (all such non-excluded taxes, levies, imposts, duties, charges,
fees, deductions and withholdings being hereinafter called "Taxes"). If any
Taxes are required to be withheld from any amounts payable to the Administrative
Agent or any Bank hereunder or under the Notes, the amounts so payable to the
Administrative Agent or such Bank shall be increased to the extent necessary to
yield to the Administrative Agent or such Bank (after payment of all Taxes)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement and the Notes. Whenever any Taxes are
payable by the Borrower, as promptly as possible thereafter the Borrower shall
send to the Administrative Agent for its own account or for the account of the
Administrative Agent or such Bank, as the case may be, a copy of any original
official receipt that may be received by the Borrower showing payment thereof.
If the Borrower fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the receipts that may be
received or other available documentary evidence, the Borrower shall indemnify
the Administrative Agent and the Banks for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Bank to the
United States or
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other Governmental Authority as a result of any such failure. The agreements in
this Section 2.16(a) shall survive the termination of this Agreement and the
payment of the Notes and all other amounts payable hereunder. If any Taxes
constituting a withholding tax of the United States of America or any other
Governmental Authority shall be or become applicable, after the Closing Date, to
such payments by the Borrower to the Administrative Agent or Bank, the
Administrative Agent or such Bank shall use its best efforts to make, fund and
maintain its Loans through another lending office of the Administrative Agent or
such Bank in another jurisdiction so as to reduce, to the fullest extent
possible, the Borrower's liability hereunder, if the making, funding or
maintenance of such Loans through such other office does not otherwise
materially adversely affect such Loans or the Administrative Agent or such Bank.
(b) Prior to the first Interest Payment Date, each Bank that is not
incorporated under the laws of the United States of America or a state thereof
agrees that it will deliver to the Borrower and the Administrative Agent (i) two
duly completed copies of United States Internal Revenue Service Form 1001 or
4224 or successor applicable form, as the case may be, and (ii) an Internal
Revenue Service Form W-8 or W-9 or successor applicable form. Each such Bank
also agrees to deliver to the Borrower and the Administrative Agent two further
copies of the said Form 1001 or 4224 and Form W-8 or W-9, or successor
applicable forms or other manner of certification, as the case may be, on or
before the date that any such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form previously
delivered by it to the Borrower, and such extensions or renewals thereof as may
reasonably be requested by the Borrower or the Administrative Agent, unless in
any such case an event (including, without limitation, any change in treaty, law
or regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Bank from duly completing and delivering any such form with respect
to it and such Bank so advises the Borrower and the Administrative Agent. Such
Bank shall certify (i) in the case of a Form 1001 or 4224, that it is entitled
to receive payments under this Agreement without deduction or withholding of any
United States federal income taxes and (ii) in the case of a Form W-8 or W-9,
that it is entitled to an exemption from United States backup withholding tax.
The Borrower shall not be required to pay any increased amount on account of
Taxes pursuant to this Section 2.16 to the Administrative Agent or any Bank that
fails to furnish any form or statement that it is required to furnish in
accordance with this Section 2.16(b) and, to the extent required by law, the
Borrower shall be entitled to deduct Taxes from the payments owed to such Bank
or the Administrative Agent. In the event that the Borrower is required to pay
any Bank any additional amount or indemnify any Bank pursuant to Section 2.16(a)
(subject to the provisions of Section 2.17) and no change in lending office is
made in accordance with the last
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sentence of Section 2.16(a), after the Borrower makes such payment, such Bank
shall transfer, in accordance with the procedures set forth in Section 11.6(c),
its Loans and Commitment to a Bank selected by the Borrower with the approval of
such transferor Bank and the Administrative Agent (not to be unreasonably
withheld).
2.17 Indemnity. The Borrower agrees to indemnify each Bank and to
hold each Bank harmless from any loss or expense which such Bank may sustain or
incur as a consequence of (a) default by the Borrower in payment when due of the
principal amount of or interest on any Eurodollar Loan, (b) default by the
Borrower in making a borrowing of, conversion into or continuation of Eurodollar
Loans after the Borrower has given a notice requesting the same in accordance
with the provisions of this Agreement, (c) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement, (d) the making of a voluntary or involuntary
prepayment of Eurodollar Loans on a day which is not the last day of an Interest
Period with respect thereto or (e) the conversion of Eurodollar Loans to ABR
Loans pursuant to Section 2.12 or 2.14 on a day which is not the last day of the
Interest Period with respect thereto, including, without limitation, in each
case, any such loss or expense arising from the reemployment of funds obtained
by it or from fees payable to terminate the deposits from which such funds were
obtained. A certificate setting forth the computation of any amount payable
pursuant to the foregoing sentence submitted by a Bank, through the
Administrative Agent, to the Borrower shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Notes and all other amounts payable hereunder.
2.18 Purpose. The proceeds of the Loans shall be used by the
Borrower solely to finance (i) the buildout of the Satellite Project and (ii)
interest payments on the Loans and (iii) working capital needs.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to enter into this Agreement and to
make the Loans herein provided for, the Borrower hereby represents and warrants
to the Administrative Agent and to each Bank that:
3.1 Financial Condition. (a) The consolidated balance sheet of the
Borrower as at December 31, 1994 and the related consolidated statements of
operations, of partners' capital and of cash flows for the fiscal period ended
on such date, reported on by Deloitte & Touche and (b) the unaudited
consolidated balance sheet of the Borrower as at September 30, 1995 and the
related unaudited consolidated statements of operations and of cash flows for
the fiscal quarter ended on such date, copies of which have heretofore been
furnished to each
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Bank, are complete and correct in all material respects and present fairly
(except, with respect to interim reports, for normal year-end adjustments) the
consolidated financial condition of the Borrower as at such date, and the
consolidated results of their operations and cash flows for the fiscal period
then ended. All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by such accountants and as
disclosed therein). Such financial statements, taken together, disclose, in
accordance with GAAP, all material contingent liabilities and liability for
taxes, long-term leases and unusual forward or long-term commitments of the
Borrower and its Subsidiaries.
3.2 No Change. Since December 31, 1994 (a) there has been no change
in the business, operations, property or financial or other condition of the
Borrower or any of its Subsidiaries which has or could reasonably be expected to
have a Material Adverse Effect, and (b) no dividends or distributions have been
declared, paid or made upon any Equity Interests of the Borrower nor have any
shares or other units of Equity Interests of the Borrower been redeemed,
retired, purchased or otherwise acquired for value by the Borrower or any of its
Subsidiaries except as permitted by Section 6.6.
3.3 Existence; Compliance with Law. Each of the Borrower and its
Subsidiaries (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization, (b) has the
partnership or corporate power and authority and the legal right to own and
operate its property, to lease the property it operates as lessee and to conduct
the business in which it is currently engaged, (c) is duly qualified as a
foreign partnership or corporation, as the case may be, and in good standing
under the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification, except to
the extent that the failure to be so qualified could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect, and (d) is in
compliance with all Requirements of Law except to the extent that the failure to
comply therewith could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
3.4 Power; Authorization; Enforceable Obligations. Each of the
Borrower and its Subsidiaries has the partnership or corporate, as the case may
be, power and authority and the legal right to make, deliver and perform the
Loan Documents to which it is a party and, in the case of the Borrower, to
borrow hereunder and has taken all necessary partnership or corporate action to
authorize the execution, delivery and performance of the Loan Documents to which
it is a party and, in the case of the Borrower, the borrowings hereunder on the
terms and conditions of this Agreement. No consent or authorization of, filing
with or other act by or in respect of any Governmental Authority is
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required in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of the Loan Documents, other
than those which have been obtained or made and are in full force and effect,
including, but not limited to, the license granted on January 31, 1995 by the
Federal Communications Commission authorizing the construction, launch and
operation of the Satellite Project in the United States, provided that this
sentence shall not apply to the Feeder Link Licenses. This Agreement has been,
and each other Loan Document will be, duly executed and delivered on behalf of
each Loan Party (other than Lockheed ▇▇▇▇▇▇) party thereto. This Agreement
constitutes and each other Loan Document (other than the Lockheed ▇▇▇▇▇▇
Guarantee), when executed and delivered will constitute, a legal, valid and
binding obligation of each Loan Party thereto enforceable against such Loan
Party in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
3.5 No Legal Bar. The execution, delivery and performance of the
Loan Documents to which the Borrower or a Subsidiary is a party, the borrowings
hereunder and the use of the proceeds thereof, will not violate any Requirement
of Law or any Contractual Obligation applicable to the Borrower or of any of the
Subsidiaries, and will not result in, or require, the creation or imposition of
any Lien on any of its or their respective properties or revenues pursuant to
any Requirement of Law or Contractual Obligation.
3.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
of the Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby, or (b) which could reasonably be
expected to have a Material Adverse Effect.
3.7 No Default. Neither the Borrower nor any of the Subsidiaries is
in default under or with respect to any Contractual Obligation in any respect
which could reasonably be expected to have a Material Adverse Effect. No Default
or Event of Default has occurred and is continuing.
3.8 Ownership of Property; Liens. Each of the Borrower and the
Subsidiaries has good record and marketable title in fee simple to or valid
leasehold interests in all its real property, and good title to all its other
property, and none of such property is subject to any Lien, except as permitted
in Section 7.3 and except where the failure to have such title could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
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3.9 Intellectual Property. The Borrower and each of its
Subsidiaries owns, or are licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes (the "Intellectual Property"),
necessary for the conduct of its business as currently contemplated except for
those the failure to own or license which could not reasonably be expected to
have a Material Adverse Effect. No claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property, nor does the
Borrower know of any valid basis for any such claim. The use of such
Intellectual Property by the Borrower and its Subsidiaries does not infringe on
the rights of any Person, except for such claims and infringements that, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
3.10 No Burdensome Restrictions. No Requirement of Law or
Contractual Obligation of the Borrower or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
3.11 Taxes. Each of the Borrower and the Subsidiaries has filed or
caused to be filed all tax returns which to the knowledge of the Borrower are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than those the amount or validity of which is
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or the Subsidiaries, as the case may be, and other than
those the non-payment of which could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect); and no federal income tax liens
have been filed and, to the knowledge of the Borrower, no claims are being
asserted with respect to any such taxes, fees or other charges, except any such
claims which could not reasonably be expected to have a Material Adverse Effect.
3.12 Federal Regulations. No part of the proceeds of any Loans
hereunder will be used for the purpose of "purchasing" or "carrying" any "margin
stock" within the respective meanings of each of the quoted terms under
Regulation U of the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect or for any purpose which violates the
provisions of the Regulations of such Board of Governors. If requested by any
Bank or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Bank a statement to the foregoing effect in
conformity with the requirements of Federal Reserve Form U-1 referred to in said
Regulation U.
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3.13 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan which has
resulted or could reasonably be expected to result in a liability to the
Borrower or any Subsidiary in excess of $1,000,000, and each Plan has complied
in all material respects with the applicable provisions of ERISA and the Code.
No termination of a Single Employer Plan has occurred, and no Lien in favor of
the PBGC or a Plan has arisen, during such five-year period. The present value
of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed, by more than $5,000,000, the value of the assets of such Plan allocable
to such accrued benefits. Neither the Borrower nor any Commonly Controlled
Entity has had a complete or partial withdrawal from any Multiemployer Plan, and
neither the Borrower nor any Commonly Controlled Entity would become subject to
any liability under ERISA if the Borrower or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which this representation is made or
deemed made, where such liability could, in the aggregate, reasonably be
expected to have a Material Adverse Effect. No such Multiemployer Plan is in
Reorganization or Insolvent.
3.14 Investment Company Act; Other Regulations. The Borrower is not
an "investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Borrower is not subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness.
3.15 Subsidiaries. The Borrower has no Subsidiaries other than
Foreign Subsidiaries and other than Subsidiaries which are Guarantors.
3.16 Environmental Matters. Each of the representations and
warranties set forth in paragraphs (a) through (e) of this Section 3.16 is true
and correct with respect to each parcel of real property owned or operated by
the Borrower or any Subsidiary (the "Properties"), except to the extent that (i)
the facts and circumstances giving rise to such failure to be so true and
correct could not reasonably be expected to have a Material Adverse Effect or
(ii) the Borrower and the Subsidiaries are fully indemnified against any
liabilities which may result from any such failure to be so true and correct:
(a) The Properties do not contain, and have not previously
contained, in, on, or under, including, without limitation, the soil and
groundwater thereunder, any Hazardous Materials in concentrations which violate
Environmental Laws.
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(b) The Properties and all operations and facilities at the
Properties are in compliance with all Environmental Laws, and there is no
Hazardous Materials contamination or violation of any Environmental Law which
could interfere with the continued operation of any of the Properties or impair
the fair saleable value of any thereof.
(c) Neither the Borrower nor any of the Subsidiaries has received
any written complaint, notice of violation, alleged violation, investigation or
advisory action or of potential liability or of potential responsibility
regarding environmental protection matters or permit compliance with regard to
the Properties, nor is the Borrower aware that any Governmental Authority is
threatening to deliver to the Borrower or any of the Subsidiaries any such
notice.
(d) Hazardous Materials have not been generated, treated, stored,
disposed of, at, on or under any of the Properties, nor have any Hazardous
Materials been transferred from the Properties to any other location in
violation of any Environmental Law.
(e) There are no governmental, administrative actions or judicial
proceedings pending or (to the knowledge of the Borrower) contemplated under any
Environmental Laws to which the Borrower or any of the Subsidiaries is or (to
the knowledge of the Borrower) will be named as a party with respect to the
Properties, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to any of the
Properties.
3.17 Full Disclosure. All information (other than projections)
heretofore furnished by or on behalf of the Borrower to the Administrative Agent
or any Bank for purposes of or in connection with this Agreement or any
transaction contemplated hereby is, and all such information hereafter furnished
by or on behalf of the Borrower to the Administrative Agent or any Bank will be,
true and accurate in all material respects on the date as of which such
information is stated or certified. All projections heretofore furnished by or
on behalf of the Borrower to the Administrative Agent or any Bank for purposes
of or in connection with this Agreement or any transaction contemplated hereby
is, and all such projections hereafter furnished by or on behalf of the Borrower
to the Administrative Agent or any Bank will be, prepared in good faith based
upon reasonable assumptions. The Borrower has disclosed to the Banks in writing
any and all facts which could reasonably be expected to have a Material Adverse
Effect.
3.18 Solvency. (a) Immediately following the making of each Loan
made on the Closing Date and after giving effect to the application of the
proceeds thereof, the Borrower will be
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solvent, as defined under applicable creditors' rights and fraudulent conveyance
laws.
(b) The Borrower does not intend to, and does not believe that it or
any Subsidiary will, incur debts beyond its ability to pay such debts as they
mature, taking into account the timing and amounts of cash to be received by it
or any such Subsidiary and the timing and amounts of cash to be payable on or in
respect of its Indebtedness or the Indebtedness of any such Subsidiary.
3.19 Security Interests; Guarantees. All Obligations (and, if
applicable, the obligations of a Subsidiary under any guarantee referred to in
the last sentence of this Section ) are secured on at least a pari passu and
equal and ratable basis by all collateral securing all outstanding Additional
Buildout Indebtedness. The Security Documents are effective to create a
perfected security interest in, and enforceable Lien on, all such collateral to
the extent permitted under applicable law for the benefit of the Administrative
Agent and the Banks. Insofar as any of such outstanding Additional Buildout
Indebtedness is owed by or guaranteed by a Subsidiary of the Borrower, such
Subsidiary has guaranteed payment of the Obligations.
Notwithstanding the foregoing, the representations and warranties
set forth in clause (a) of Section 3.2 and in this Section 3.19 shall not be
required to be made prior to the Release Date and shall be deemed to be made on
the Release Date and on each Borrowing Date thereafter.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions of Initial Loans. The obligation of each Bank to make
its initial Loan hereunder and the effectiveness of this Agreement are subject
to the satisfaction of the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have received (i)
counterparts of this Agreement duly executed and delivered by the Borrower, the
Administrative Agent and each Bank, (ii) for the account of each Bank requesting
the same, a Note conforming to the requirements hereof and executed by a duly
authorized officer of the Borrower, and (iii) each of the Original Loral
Guarantee and the Subsidiary Guarantees, each executed by a duly authorized
officer of each Loan Party party thereto.
(b) Legal Opinions. The Administrative Agent shall have received,
with a photocopy counterpart for each Bank, (i) an opinion of Willkie, ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, counsel to the Loan Parties, dated the Closing Date and addressed to
the Administrative Agent and the Banks, substantially in the form of Exhibit
B-1, (ii) an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., General Counsel of Loral, dated
the Closing Date and addressed to the
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Administrative Agent and the Banks, substantially in the form of Exhibit B-2,
and given on the express instructions of Loral and (iii) an opinion of ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq., Senior Vice President and Secretary, acting as counsel to the
Borrower, dated the Closing Date and addressed to the Agents and the Banks,
substantially in the form of Exhibit B-3, and given on the express instructions
of the Borrower.
(c) Closing Certificate. The Administrative Agent shall have
received, with a photocopy counterpart for each Bank, a Closing Certificate of
each Loan Party, dated the Closing Date, substantially in the form of Exhibit
C-1 with respect to the Borrower and its Subsidiaries and C-2 with respect to
Loral, with appropriate insertions and attachments, satisfactory in form and
substance to the Administrative Agent and its counsel, executed by a Responsible
Officer of such Loan Party.
(d) Projections. The Administrative Agent shall have received, with
a photocopy counterpart for each Bank, financial projections and assumptions
with respect to the business and prospects of the Borrower and its Subsidiaries
for the period from the Closing Date through the Termination Date, all in a form
satisfactory to the Administrative Agent.
(e) No Proceeding or Litigation; No Injunctive Relief. No action,
suit or proceeding before any arbitrator or any Governmental Authority shall
have been commenced, no investigation by any Governmental Authority shall have
been commenced, no action, suit, proceeding or investigation by any Governmental
Authority shall have been threatened and no Requirement of Law shall have been
enacted or proposed, in each case as of the Closing Date (i) seeking to
restrain, prevent or change the transactions contemplated by this Agreement
(including the Satellite Project) in whole or in part or questioning the
validity or legality of the transactions contemplated by this Agreement or
seeking damages in connection with such transactions or (ii) which could
reasonably be expected to have a Material Adverse Effect.
(f) Consents, Licenses, Approvals, etc. The Administrative Agent
shall have received true copies (certified to be such by a Responsible Officer
of the Borrower or other appropriate Person) of all consents, licenses and
governmental and third party approvals (excluding the Feeder Link Licenses) (i)
required as of the Closing Date in accordance with applicable law in connection
with the execution, delivery, performance, validity and enforceability of this
Agreement and the other Loan Documents and the borrowings contemplated
hereunder, or (ii) required in connection with the Satellite Project if the
failure to obtain such consents, licenses or approvals, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect. Such
consents, licenses and approvals shall be in full force and effect and all
applicable waiting periods shall have expired without any action being taken or
threatened by any
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competent authority which would restrain, prevent or otherwise impose adverse
conditions on the Satellite Project or the financing thereof.
(g) Audited Financial Statements of the Borrower. The Administrative
Agent shall have received, with a copy for each Bank, the audited financial
statements described in Section 3.1(a) and the audited financial statements of
Loral and its Subsidiaries as at March 31, 1995 described (by reference) in
Section 9 of the Original Loral Guarantee, which financial statements shall have
been reported on without a "going concern" or like qualification or exception,
or qualification arising out of the scope of the audit.
(h) Unaudited Financial Statements. The Administrative Agent shall
have received, with a copy for each Bank, (i) the unaudited consolidated
financial statements of the Borrower and its Subsidiaries described in Section
3.1(b), and (ii) the unaudited consolidated financial statements of Loral and
its Subsidiaries described (by reference) in Section 9 of the Original Loral
Guarantee, which financial statements shall have been prepared in accordance
with GAAP.
(i) Lien Searches. The Administrative Agent shall have received,
with a copy for each Bank, the results of a recent lien search in each of the
jurisdictions and offices where assets of the Borrower are located or recorded
and such searches shall reveal no Liens on any of the assets of the Borrower or
its Subsidiaries except for liens permitted under Section 6.3 hereunder.
(j) Indebtedness; Restrictions. The terms and conditions of any
Indebtedness and Contingent Obligations (including, without limitation,
maturities, interest rates, prepayment and redemption requirements, covenants,
defaults, remedies, security provisions and subordination provisions) of the
Borrower or any of the Subsidiaries to remain outstanding after the Closing Date
shall be satisfactory to the Banks in all respects as of the Closing Date, and
the Banks shall be satisfied as of the Closing Date that the Borrower and its
Subsidiaries are not subject to contractual or other restrictions that would be
violated by this Agreement or the transactions contemplated hereby.
(k) New Developments. As of the Closing Date there shall not have
occurred any change, or development or event involving a prospective change,
which in either case in the opinion of the Banks could reasonably be expected to
have a Material Adverse Effect.
(l) Undisclosed Information. As of the Closing Date the Banks shall
not have become aware of any previously undisclosed materially adverse
information with respect to (i) the business, operations, properties, condition
(financial or
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otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole or
of Loral and its Subsidiaries taken as a whole, (ii) the Satellite Project,
(iii) the ability of any Loan Party to perform its obligations under this
Agreement, the Notes or any other Loan Document or (iv) the rights or remedies
of the Administrative Agent or the Banks hereunder or thereunder.
(m) Fees. The Administrative Agent and the Banks shall have received
all fees and expenses required to be paid on or before the Closing Date.
(n) Representations and Warranties. Each of the representations and
warranties made by the Loan Parties in or pursuant to this Agreement shall be
true and correct on and as of the Closing Date as if made on and as of such
date.
(o) No Default. No Default or Event of Default shall have occurred
and be continuing on the Closing Date or after giving effect to the Loans
requested to be made on such date, if any.
(p) Additional Documents. The Administrative Agent shall have
received each additional document, instrument, legal opinion or item of
information reasonably requested by it on or prior to the Closing Date,
including, without limitation, a copy of any debt instrument, security agreement
or other material contract to which any Loan Party or any Subsidiaries may then
be a party.
(q) Additional Matters. All partnership, corporate and other
proceedings and all documents, instruments and other legal matters in connection
with the transactions contemplated by this Agreement shall be satisfactory in
form and substance to the Administrative Agent as of the Closing Date, and the
Administrative Agent shall have received such other documents and legal opinions
in respect of any aspect or consequence of the transactions contemplated hereby
or thereby as it shall reasonably request on or prior to the Closing Date.
4.2 Conditions to all Loans. The obligation of each Bank to make any
Loan to be made by it hereunder is subject to the satisfaction of the following
conditions precedent on the relevant Borrowing Date:
(a) Representations and Warranties. Each of the representations and
warranties made by each Loan Party in or pursuant to each Loan Document shall be
true and correct on and as of such date as if made on and as of such date except
to the extent they expressly relate to an earlier date.
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the Loans requested to
be made on such date.
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Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by each Loan Party as of the date of such borrowing that the conditions
contained in this Section 4.2 have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain
in effect, any Loan remains outstanding and unpaid or any other amount is owing
to any Bank or the Administrative Agent hereunder, the Borrower shall and
(except in the case of delivery of financial information, reports and notices)
shall cause each of the Subsidiaries to:
5.1 Financial Statements. Furnish to each Bank:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the audited consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the end of
such year and the related audited consolidated statements of operations, of
partners' capital and of cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, reported on without
qualification arising out of the scope of the audit or, after commencement of
operation of the Satellite Project, a "going concern" or like qualification or
exception, by independent certified public accountants of nationally recognized
standing; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal year
of the Borrower, the unaudited consolidated balance sheet of the Borrower and
its consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of operations and cash flows of the Borrower
and its consolidated Subsidiaries for such quarter (except as to statements of
cash flow) and the portion of the fiscal year through such date, setting forth
in each case in comparative form the figures for the previous periods, certified
by a Responsible Officer (subject to normal year-end audit adjustments); all
such financial statements to be complete and correct in all material respects
and to be prepared in reasonable detail and in accordance with GAAP applied
consistently throughout the periods reflected therein (except as approved by
such accountants or officer, as the case may be, and disclosed therein).
5.2 Certificates; Other Information. Furnish to each Bank:
(a) concurrently with the delivery of the financial statements
referred to in Section 5.1(a) above, a certificate of the independent certified
public accountants reporting on such financial statements stating that in making
the examination
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necessary therefor no knowledge was obtained of any Default or Event of Default,
except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Sections 5.1(a) and (b) above, a certificate of a Responsible
Officer (i) stating that, to the best of such officer's knowledge, the Borrower
during such period has observed or performed all of its covenants and other
agreements, and satisfied every condition contained in this Agreement and in the
other Loan Documents to be observed, performed or satisfied by it, and that such
officer has obtained no knowledge of any Default or Event of Default except as
specified in such certificate, and (ii) showing in detail the calculations
supporting such statement in respect of Sections 6.1, 6.2, 6.6 and, if
applicable, 7.1;
(c) within five days after the same are sent, copies of all
financial statements and reports which are sent to shareholders of Globalstar
Telecommunications Limited, and within five days after the same are filed,
copies of all financial statements and reports which the Borrower may make to,
or file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority;
(d) annually a report as to the status of the buildout of the
Satellite Project, including the actual costs and projected costs to completion
of the Satellite Project, the number of subscribers to the Satellite Project and
a comparison of such costs against the Borrower's projections delivered pursuant
to subsection 4.1(d), such report to be in a form satisfactory to the
Administrative Agent;
(e) at least annually, a report prepared by the chief financial
officer of the Borrower updating the projections provided pursuant to Section
4.1(d);
(f) promptly after execution thereof, copies of each amendment,
waiver, supplement or other modification of or affecting those provisions of the
Lockheed ▇▇▇▇▇▇ Credit Agreement incorporated by reference in Sections 9 and 10
of the Lockheed ▇▇▇▇▇▇ Guarantee; and
(g) promptly, such additional financial and other information as any
Bank may from time to time reasonably request.
5.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature (other than Indebtedness and Contingent
Obligations, which shall be beyond the scope of this Section 5.3), except when
the amount or validity thereof is currently being contested in good faith by
appropriate proceedings and reserves in conformity with GAAP with respect
thereto have been
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provided on the books of the Borrower or its Subsidiaries, as the case may be.
5.4 Conduct of Business and Maintenance of Existence. Engage solely
in activities directly related to the Satellite Project and preserve, renew and
keep in full force and effect its partnership or corporate, as the case may be,
existence and maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business and comply in all material
respects with all material Contractual Obligations (other than Indebtedness and
Contingent Obligations, which shall be beyond the scope of this Section 5.4) and
material Requirements of Law (except for Environmental Laws, which shall be
governed by Section 5.8), except as otherwise expressly permitted by this
Agreement; and obtain and maintain in full force and effect all material
consents, licenses and approvals necessary for the completion and operations of
the Satellite Project and for the continuing operations of the Borrower and its
Subsidiaries.
5.5 Maintenance of Property; Insurance. Keep all property useful and
necessary in its business in good working order and condition; maintain with
financially sound and reputable insurance companies or through a formal
self-insurance program insurance on all its property in at least such amounts
and against at least such risks as are usually insured against in the same
general area by companies engaged in the same or a similar business, provided
that in any event the Borrower will maintain at least the insurance coverage set
forth in Schedule 5.5; and furnish to each Bank, upon written request, full
information as to the insurance carried.
5.6 Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and, subject to
applicable governmental security and secrecy regulations and Section 10.14,
permit representatives of the Administrative Agent to visit and inspect any of
its properties and examine and make abstracts from any of its books and records
at any reasonable time and as often as may reasonably be desired with prior
notice to the Borrower (which can have a representative present if it so
chooses), and to discuss the business, operations, properties and financial and
other condition of the Borrower and its Subsidiaries with Responsible Officers
of the Borrower and its Subsidiaries and with its independent certified public
accountants.
5.7 Notices. Promptly give notice (to be confirmed promptly in
writing) to the Administrative Agent and each Bank:
(a) of the occurrence of any Default or Event of Default;
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(b) of any (i) default or event of default under any Contractual
Obligation of the Borrower or any Subsidiary or (ii) litigation, investigation
or proceeding which may exist at any time between the Borrower or any Subsidiary
and any Governmental Authority, which in either case, if not cured or if
adversely determined, as the case may be, could reasonably be expected to have a
Material Adverse Effect;
(c) of any litigation or proceeding affecting the Borrower or any
Subsidiary in which the amount involved is $5,000,000 or more and not covered by
insurance; or in which injunctive or similar relief is sought and which could
reasonably be expected to have a Material Adverse Effect;
(d) as soon as possible and in any event within 30 days after the
Borrower knows or has reason to know of the following events: (i) the occurrence
or expected occurrence of any Reportable Event with respect to any Plan which
could reasonably be expected to result in any liability to the Borrower or any
Subsidiary in excess of $1,000,000 or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan, or (ii) the institution
of proceedings or the taking or expected taking of any other action by PBGC or
the Borrower or any Commonly Controlled Entity with respect to the withdrawal
from, or the terminating, Reorganization or Insolvency of, any Plan. The
Borrower shall deliver to the Administrative Agent and each Bank a certificate
of the chief financial officer of the Borrower setting forth the details thereof
and the action that the Borrower or Commonly Controlled Entity proposes to take
with respect thereto;
(e) of any change in a Rating; and
(f) of any material change in the business, operations, property or
financial or other condition of the Borrower or any of its Subsidiaries.
Each notice pursuant to this Section 5.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower proposes to take with respect
thereto.
5.8 Environmental Laws.
(a) Comply with, and require compliance by all tenants and
subtenants, if any, with, all Environmental Laws and obtain and comply with and
maintain, and insure that all tenants and subtenants obtain and comply with and
maintain, any and all licenses, approvals, registrations or permits required by
Environmental Laws, except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect;
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(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required by a Governmental
Authority under Environmental Laws and promptly comply with all lawful orders
and directives of all Governmental Authorities respecting Environmental Laws,
except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings could not
reasonably be expected to have a Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the Administrative Agent and
the Banks, and their respective employees, agents, officers and directors, from
and against any claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature known or unknown,
contingent or otherwise, arising out of, or in any way relating to the violation
of or noncompliance with any Environmental Laws applicable to the Properties, or
any orders, requirements or demands of Governmental Authorities related thereto,
including, without limitation, attorney's and consultant's fees, investigation
and laboratory fees, court costs and litigation expenses, except to the extent
that any of the foregoing arise out of the gross negligence or willful
misconduct of the party seeking indemnification therefor. The agreements in this
paragraph shall survive termination of the Commitments and repayment of the
Loans and all other amounts payable hereunder.
5.9 Additional Subsidiary Guarantors. If any Person shall become a
Subsidiary of the Borrower, cause such Subsidiary (other than a Foreign
Subsidiary) to promptly thereafter execute and deliver a Guarantee in favor of
the Administrative Agent in substantially the form of Exhibit F, each of which
Guarantees shall be accompanied by such resolutions, incumbency certificates and
legal opinions as are reasonably requested by the Administrative Agent and its
counsel.
5.10 Material Terms of Other Agreements Being More Restrictive. If
the Borrower or any Subsidiary enters into any agreement which contains
provisions that are materially more restrictive when taken as a whole than the
comparable provisions of this Agreement and the other Loan Documents, such more
restrictive provisions shall automatically be incorporated by reference in this
subsection 5.10, mutatis mutandis, and the Borrower and its Subsidiaries shall
deliver such confirmatory amendments to the Loan Documents to incorporate such
more restrictive provisions in the Loan Documents, on terms satisfactory to the
Administrative Agent.
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that so long as the Commitments remain in
effect, any Loan remains outstanding and unpaid or any other amount is owing to
any Bank or the
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Administrative Agent hereunder, the Borrower shall not, nor shall it permit any
Subsidiary to, directly or indirectly:
6.1 Financial Condition Covenants. (a) Revenues. Permit the
Borrower's consolidated revenues for fiscal year 1999 to be less than
$100,000,000.
(b) Maintenance of Consolidated Net Worth. Permit Consolidated Net
Worth on the last day of any fiscal quarter prior to the Release Date to be less
than $200,000,000.
(c) Fixed Charge Coverage. Permit for any period of four consecutive
fiscal quarters ending prior to the Release Date (and commencing June 30, 1998)
the ratio of (i) the sum of Consolidated Net Income for such period plus income
taxes deducted in determining such Consolidated Net Income plus Consolidated
Fixed Charges for such period to (ii) Consolidated Fixed Charges for such period
to be less than 2.0 to 1.0, provided that for the Borrower's fiscal quarter
ending on (A) June 30, 1998, such ratio shall be calculated for the fiscal
quarter then ended, (B) September 30, 1998, such ratio shall be calculated for
the two consecutive fiscal quarters then ended and (iii) December 31, 1998, such
ratio shall be calculated for the three consecutive fiscal quarter then ended
and provided further that for the fiscal quarter ending on June 30, 1998, such
ratio shall not be less than 1.5 to 1.0.
(d) Maximum Leverage. Permit the aggregate of the Additional
Buildout Indebtedness outstanding, the Loans outstanding and the unused
Commitments under this Agreement to be greater than $1,200,000,000 (net of
interest accretion on non-cash pay Additional Buildout Indebtedness and escrowed
interest on overfunded issuances relating to Additional Buildout Indebtedness).
6.2 Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under this Agreement;
(b) Subordinated Debt;
(c) unsecured Indebtedness incurred in the ordinary course of
business consistent with prior practice in respect of commercial and standby
letters of credit issued by any financial institution to secure contractual
commitments to its customers;
(d) Indebtedness owed by a Wholly Owned Subsidiary Guarantor to
another Wholly Owned Subsidiary that is a Subsidiary Guarantor; and Indebtedness
owed to the Borrower by a Wholly Owned Subsidiary that is a Subsidiary
Guarantor; and Indebtedness owed by the Borrower to a Wholly-Owned Subsidiary
that is a Subsidiary Guarantor or a Foreign Subsidiary;
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(e) unsecured Indebtedness of the Borrower and its Subsidiaries in
an aggregate principal amount not to exceed $5,000,000 outstanding at any time;
(f) unsecured vendor financing committed to the Borrower on the date
hereof and set forth on Schedule 6.2;
(g) additional unsecured vendor financing having terms satisfactory
to the Administrative Agent;
(h) Additional Buildout Indebtedness, provided that on and after the
Release Date the representation and warranty contained in Section 3.19 is true
with respect to such Additional Buildout Indebtedness;
(i) Indebtedness of a Subsidiary Guarantor which is acquired after
the Closing Date which Indebtedness exists at the time of such acquisition and
is not created in anticipation of such acquisition; and
(j) Indebtedness consisting of obligations under Financing Leases of
the Borrower incurred to finance the acquisition of fixed or capital assets in
an aggregate principal amount not exceeding $25,000,000 at any time outstanding.
6.3 Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except:
(a) Liens for taxes not yet due or which are being contested in good
faith and by appropriate proceedings if adequate reserves with respect thereto
are maintained on the books of the Borrower or the appropriate Subsidiary, as
the case may be, in accordance with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 60 days or which are being contested
in good faith and by appropriate proceedings;
(c) pledges or deposits in connection with workmen's compensation,
unemployment insurance and other social security legislation and deposits
securing liabilities to insurance carriers under insurance and self-insurance
agreements;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature incurred
in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other Liens incurred
in the ordinary course of business which do not
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secure Indebtedness and which do not in any case materially detract from the
value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the Borrower or any Subsidiaries;
(f) Liens upon real and/or personal property, which property was
acquired after the Closing Date by the Borrower or any Subsidiary in the
ordinary course of business, each of which Liens was created solely for the
purpose of securing Indebtedness incurred for the purpose of financing such
acquisition or for the purpose of securing any refinancings or renewals thereof;
provided, that no such Lien shall extend to or cover any property of the
Borrower or any such Subsidiary other than the respective property so acquired
and improvements thereon, and the principal amount of Indebtedness secured by
any such Lien shall at no time exceed 100% of the fair market value (as
determined in good faith by the board of directors of the Borrower) of the
respective property at the time it was acquired;
(g) Liens created pursuant to Section 2.7(c);
(h) Liens which secure Additional Buildout Indebtedness, provided
that from and after the Release Date the representation and warranty contained
in Section 3.19 is true with respect to such Additional Buildout Indebtedness;
and
(i) Liens securing Indebtedness of the Borrower permitted by Section
6.2(j) incurred to finance the acquisition of fixed or capital assets, provided
that (i) such Liens shall be created substantially simultaneously with the
acquisition of such fixed or capital assets, (ii) such Liens do not at any time
encumber any property other than the property financed by such Indebtedness,
(iii) the amount of Indebtedness secured thereby is not increased and (iv) the
principal amount of Indebtedness secured by any such Lien shall at no time
exceed the original purchase price of such property.
6.4 Limitation on Contingent Obligations. Create, incur, assume or
suffer to exist any Contingent Obligation, except:
(a) the Subsidiary Guarantees;
(b) the Borrower may guarantee the obligations of each Subsidiary
Guarantor;
(c) Subsidiary Guarantors may guarantee Additional Buildout
Indebtedness of the Borrower; and
(d) Subsidiaries may guarantee payment of the Obligations.
6.5 Limitation on Fundamental Changes. (a) Enter into any
transaction of merger or consolidation or amalgamation,
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or liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution) except that any Subsidiary may be merged or consolidated (i) with
or into the Borrower (provided that the Borrower shall be the continuing or
surviving Person) or (ii) with or into any one or more Wholly Owned Subsidiaries
(including any entity that, after giving effect to such merger or consolidation,
is a Wholly Owned Subsidiary) other than a Wholly Owned Subsidiary domiciled
outside the United States of America (provided that the Wholly Owned Subsidiary
shall be the continuing or surviving corporation); or
(b) convey, sell, lease, transfer or otherwise dispose of any assets
in a transaction or series of related transactions, except that:
(i) any Subsidiary may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or otherwise) to
the Borrower or a Wholly Owned Subsidiary (other than a Wholly Owned Subsidiary
domiciled outside the United States of America);
(ii) the Borrower or any Subsidiary may sell, lease, transfer
or otherwise dispose of inventory in the ordinary course of business;
(iii) the Borrower or any Subsidiary may sell, transfer or
otherwise dispose of Cash Equivalents in exchange for a comparable amount of
cash and/or Cash Equivalents; and
(iv) the Borrower or any Subsidiary may sell or otherwise
dispose of obsolete or worn out property in the ordinary course of business
having an aggregate value not to exceed $5,000,000 for all such transactions.
Notwithstanding the foregoing, the Borrower may transfer assets to Subsidiary
Guarantors and may transfer the Service Provider Agreements to Foreign
Subsidiaries.
6.6 Limitation on Restricted Payments. Declare or make any
distributions on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for the purchase, redemption, retirement or
other acquisition of, any Equity Interests of the Borrower or any Subsidiary,
whether now or hereafter outstanding, or make any other distribution in respect
thereof, either directly or indirectly, whether in cash or property or in
obligations of the Borrower or any Subsidiary, or permit any Subsidiary to make
any payment on account of, or purchase or otherwise acquire, any Equity
Interests of the Borrower or any Subsidiary from any Person or pay any interest
on the Borrower's subordinated obligations described in the definition of
"Partner Guarantor Fee Agreement" (all of the foregoing shall collectively be
referred to as "Restricted Payments"), except that, so long as no Default or
Event of Default has occurred and is continuing or would result from the
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making of such Restricted Payment, the Borrower may make a Restricted Payment
(a) if the sum of (i) such Restricted Payment plus (ii) the Restricted Payments
made from the Closing Date through any date of determination, shall not exceed
an amount equal to 50% of the aggregate Consolidated Net Income from January 1,
1996, through the end of the fiscal quarter immediately preceding such date of
determination, (b) consisting of Qualified Equity Interests. The value of any
distributions made other than of cash and the value of any Investments made
other than in cash shall be the value determined in good faith by the General
Partners' Committee of the Borrower and evidenced by a resolution of such
Committee or (c) in respect of Preferred Equity Interests.
6.7 Investments. Make, commit to make or maintain any Investment,
except:
(a) Investments by the Borrower or Subsidiaries in Wholly Owned
Subsidiary Guarantors and in the Borrower;
(b) Investments in accounts, contract rights and chattel paper (as
defined in the Uniform Commercial Code), and notes receivable, arising or
acquired in the ordinary course of business;
(c) Investments in Cash Equivalents; and
(d) Excluded Employee Loans;
(e) the Borrower may transfer the Service Provider Agreements to the
Foreign Subsidiaries;
(f) Investments in Foreign Subsidiaries; provided that the aggregate
amount of all such investments (whether cash or property, as valued at the time
each such investment is made) shall not exceed (net of any return representing
return of capital of (but not return on) any such investment) $15,000,000 at any
time; and
(g) Investments in Persons other than Subsidiaries made in
connection with the Satellite Project; provided that the aggregate amount of all
such investments (whether cash or property, as valued at the time each such
investment is made) shall not exceed (net of any return representing return of
capital of (but not return on) any such investment) $15,000,000 at any time.
6.8 Limitation on Optional Payments and Modifications of
Subordinated Debt and Other Debt Instruments. (a) Make any optional payment or
prepayment prior to scheduled maturity on or optional redemption or purchase
prior to scheduled maturity of any Subordinated Debt or other Indebtedness
(other than the Loans and the Additional Buildout Indebtedness), provided that
this clause (a) shall not prohibit the Borrower from consummating any
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such transactions if the sole consideration therefor is Qualified Equity
Interests, or (b) amend, modify or change, or consent or agree to any amendment,
modification or change to any of the terms of, any Subordinated Debt or other
Indebtedness (other than any such amendment, modification or change which would
extend the maturity or reduce the amount of any payment of principal thereof or
which would reduce the rate or extend the date for payment of interest thereon),
provided that this subsection shall not prohibit the refinancing of any
Subordinated Debt or Additional Buildout Indebtedness (the "Original Debt") with
other Subordinated Debt or Additional Buildout Indebtedness (the "Replacement
Debt"), respectively, as long as (i) the terms of the Replacement Debt are not
more restrictive than the comparable provisions of the Original Debt, (ii) the
Replacement Debt shall mature no earlier than the maturity date of the Original
Debt, (iii) the interest rate on the Replacement Debt shall be a market rate
determined on the date of issuance of the Replacement Debt and (iv) Subordinated
Debt may only be replaced with other Subordinated Debt.
6.9 Affiliates. Enter into any transaction, including, without
limitation, the purchase, sale or exchange of property or the rendering of any
services, with any Affiliate (other than a Wholly Owned Subsidiary) or enter
into, assume or suffer to exist any employment or consulting contract with any
such Affiliate, except any transaction or contract disclosed on Schedule 6.9
(including any modification or amendment to any such transaction or contract
that, in the reasonable judgment of the Borrower, is no less favorable to the
Borrower than such transaction or contract) and any transaction or contract
which is in the ordinary course of the Borrower's business and which is upon
fair and reasonable terms no less favorable to the Borrower than it would obtain
in a comparable arm's length transaction with a Person not an Affiliate (which,
prior to the Release Date, shall be determined in the reasonable judgment of the
Borrower), provided that this Section shall not prohibit the Partner Guarantor
Fee Arrangement.
6.10 Partnership Documents. Amend or terminate, or permit the
amendment or termination of, the Partnership Agreement or other organizational
documents of the Borrower and its Subsidiaries in any material respect adverse
to the Banks.
6.11 Restrictions on Subsidiaries. Permit any Wholly Owned
Subsidiary to enter into any agreement which prohibits or restricts the ability
of such Subsidiary to (i) pay dividends or make any other distributions on its
Equity Interests or any other interest or participation in, or measured by, its
profits, owned by the Borrower or any of its Subsidiaries, or pay any
Indebtedness owed to the Borrower or any of its Subsidiaries, (ii) make loans or
advances to the Borrower or any of its Subsidiaries or (iii) transfer any of its
properties or assets to the Borrower or any of its Wholly Owned Subsidiaries,
except for such encumbrances or restrictions existing under or by reason of:
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(A) the terms of this Agreement and the terms of Additional Buildout
Indebtedness provided that such terms are no more restrictive than those set
forth in this Agreement, (B) applicable law, (C) customary non-assignment
provisions entered into in the ordinary course of business and consistent with
past practices, (D) the terms of purchase money obligations for property
acquired in the ordinary course of business, but only to the extent that such
purchase money obligations restrict or prohibit the transfer of the property so
acquired and (E) any encumbrance or restriction existing under any agreement
which refinances or replaces the agreements for Additional Buildout Indebtedness
described in clause (A); provided, that the terms and conditions of any such
encumbrances or restrictions contained in any such agreement referred to in this
clause (E) constitute no greater encumbrance or restriction on the ability of
any Subsidiary to pay dividends or make distributions, make loans or advances or
transfer properties or assets other than those under or pursuant to the
agreement evidencing the Indebtedness or obligations refinanced.
6.12 Restrictive Agreements. Enter into or with any Person any
agreement which restricts the ability of the Borrower or its Subsidiaries to
perform any of their obligations under the Loan Documents.
SECTION 7. ADDITIONAL NEGATIVE COVENANTS
The Borrower hereby agrees that on and after the Release Date, so
long as the Commitments remain in effect, any Loan remains outstanding and
unpaid or any other amount is owing to any Bank or any Administrative Agent
hereunder, that in addition to compliance with the covenants contained in
Section 6, the Borrower shall not, nor shall it permit any Subsidiary to,
directly or indirectly:
7.1 Financial Condition Covenants. (a) Maintenance of Consolidated
Net Worth.
(b) Maintenance of Consolidated Net Worth Permit Consolidated Net
Worth on the last day of any fiscal quarter on or after the Release Date to be
less than the sum of (X) $300,000,000 plus (Y) 50% of Consolidated Net Income,
if positive, for the period from January 1, 1996 to the last day of such fiscal
quarter.
(c) Fixed Charge Coverage. Permit for any period of four consecutive
fiscal quarters ending after the Release Date the ratio of (i) the sum of
Consolidated Net Income for such period plus income taxes deducted in
determining such Consolidated Net Income plus Consolidated Fixed Charges for
such period to (ii) Consolidated Fixed Charges for such period to be less than
3.0 to 1.0.
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(d) Maximum Leverage. Permit the Leverage Ratio on the last day of
any fiscal quarter on or after the Release Date to be greater than (i) 5.0 to
1.0 during 1999 and (ii) 4.0 to 1.0 thereafter.
7.2 Sale and Leaseback. Enter into any arrangement with any Person
providing for the leasing by the Borrower or any Subsidiary of real or personal
property which has been or is to be sold or transferred by the Borrower or any
Subsidiary to such Person or to any other Person to whom funds have been or are
to be advanced by such Person on the security of such property or rental
obligations of the Borrower or such Subsidiary, except for such transactions
occurring after the Closing Date with respect to property having an aggregate
value for all such transactions not in excess of $5,000,000.
7.3 Limitation on Changes in Fiscal Year. Permit the fiscal year of
the Borrower to end on a day other than December 31.
SECTION 8. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) Prior to the Release Date:
(i) The Borrower shall fail to pay any principal of any Loans
when due in accordance with the terms thereof or hereof; or the Borrower shall
fail to pay any interest on any Loans, or any fee or other amount payable
hereunder, within five days after any such amount becomes due in accordance with
the terms thereof or hereof; or
(ii) Any representation or warranty made or deemed made by or
on behalf of any Loan Party herein or in any other Loan Document or which is
contained in any certificate, document or financial or other statement furnished
at any time under or in connection with this Agreement shall prove to have been
incorrect in any material respect on or as of the date made or deemed made; or
(iii) The Borrower shall default in the observance or
performance of any agreement contained in Section 6 (other than Section 6.1
prior to the Release Date) or 7;
(iv) The Borrower shall default in the observance or
performance of any other agreement contained in this Agreement (other than
Section 6.1 prior to the Release Date), and such default shall continue
unremedied for a period of 30 days; or
(v) The Borrower or any of its Subsidiaries shall (A) default
in any payment of principal of or interest on any Indebtedness (other than the
Loans) or in the payment of any Contingent Obligation, beyond the period of
grace, if any,
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provided in the instrument or agreement under which such Indebtedness or
Contingent Obligation was created and (I) the aggregate principal amount of (x)
all such Indebtedness equals or exceeds $1,000,000 or (y) all such Contingent
Obligations equal or exceed $5,000,000 and (II) (a) the effect of such default
is to cause such Indebtedness to become due prior to its stated maturity or such
Contingent Obligation to become payable or (b) such Indebtedness is otherwise
due or such Contingent Obligation is otherwise payable; or (B) default in the
observance or performance of any other agreement or condition relating to any
such Indebtedness or such Contingent Obligation or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause such Indebtedness to become due prior to its stated
maturity or such Contingent Obligation to become payable; or
(vi) (A) The Borrower or any of its Subsidiaries shall
commence any case, proceeding or other action (I) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (II) seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its assets, or the
Borrower or any of its Subsidiaries shall make a general assignment for the
benefit of its creditors; or (B) there shall be commenced against the Borrower
or any of its Subsidiaries any case, proceeding or other action of a nature
referred to in clause (A) above which (I) results in the entry of an order for
relief or any such adjudication or appointment or (II) remains undismissed,
undischarged or unbonded for a period of 60 days; or (C) there shall be
commenced against the Borrower or any of its Subsidiaries any case, proceeding
or other action seeking issuance of a warrant of attachment, execution,
restraint or similar process against all or any substantial part of its assets
which results in the entry of an order for any such relief which shall not have
been vacated, discharged, or stayed or bonded pending appeal within 60 days from
the entry thereof; or (D) the Borrower or any of its Subsidiaries shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (A), (B), or (C) above; or
(E) the Borrower or any of its Subsidiaries shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as they
become due; or
(vii) (A) Any Guarantee (including any Partner Cash Collateral
Agreement) shall cease, for any reason, to be in full force and effect (except
for the Guarantee Release) or any Guarantor shall so assert or (B) the Lien
created by any of the Partner Cash Collateral Agreements shall cease to be
enforceable
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and of the same effect and priority purported to be created thereby; or
(viii) A Change in Control shall occur; or
(ix) An Event of Default under Section 11 of the Lockheed
▇▇▇▇▇▇ Guarantee shall occur.
(b) From and After the Release Date:
(i) Any of the events described in the preceding paragraph (a)
shall have occurred other than (A) any of such events described in paragraph
(a)(ii) relating to Lockheed ▇▇▇▇▇▇ or (B) an event described in paragraph
(a)(vii) or (a)(ix); or
(ii) The Borrower or any of its Subsidiaries shall (A) default
in any payment of principal of or interest on any Indebtedness (other than the
Loans) or in the payment of any Contingent Obligation, beyond the period of
grace, if any, provided in the instrument or agreement under which such
Indebtedness or Contingent Obligation was created and (I) the aggregate
principal amount of (x) all such Indebtedness equals or exceeds $1,000,000 or
(y) all such Contingent Obligations equal or exceed $5,000,000 and (II) the
effect of such default is to cause, or permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Contingent Obligation (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or such Contingent
Obligation to become payable or (B) default in the observance or performance of
any other agreement or condition relating to any such Indebtedness or such
Contingent Obligation or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Contingent Obligation (or a trustee or agent on behalf of
such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to become due prior to its
stated maturity or such Contingent Obligation to become payable; or
(iii) (A) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (B) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to any
Plan, (C) a Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the reasonable
opinion of the Required Banks, likely to result in the
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termination of such Plan for purposes of Title IV of ERISA, (D) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (E) the Company
or any Commonly Controlled Entity shall, or is, in the reasonable opinion of the
Required Banks, likely to, incur any liability in connection with a withdrawal
from, or the Insolvency or Reorganization of, a Multiemployer Plan, or (F) any
other event or condition shall occur or exist with respect to a Plan; and in
each case in clauses (A) through (F) above, such event or condition, together
with all other such events or conditions, if any, could subject the Borrower or
any of its Subsidiaries to any tax, penalty or other liabilities in the
aggregate material in relation to the business, operations, property or
financial or other condition of the Borrower and its Subsidiaries taken as a
whole; or
(iv) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate a liability
(to the extent not paid or covered by insurance) of $5,000,000 or more and all
such judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 60 days from the entry thereof; or
(v) The Borrower or its Subsidiaries shall cease to hold or
fail to obtain on any date required any material consent, license or
authorization (other than the Feeder Link Licenses) required for the continued
operation of their business or for the construction, completion and operation of
the Satellite Project; or
(vi) (A) Any of the Security Documents shall cease, for any
reason, to be in full force and effect, or the Borrower or any other Loan Party
which is a party to any of the Security Documents shall so assert or (B) the
Lien created by any of the Security Documents shall cease to be enforceable and
of the same effect and priority purported to be created thereby or (C) on and
after the Release Date the representation and warranty contained in Section 3.19
shall not be true.
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (a)(vi) above, both prior to and after the Release Date,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the Notes shall immediately become due and payable, and (B) if
such event is any other Event of Default, either or both of the following
actions may be taken, without prejudice to the rights of any Bank to enforce its
claims against the Borrower: (i) with the consent of the Majority Banks, the
Administrative Agent may, or upon the request of the Majority Banks, the
Administrative Agent
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shall, by notice to the Borrower, declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; and (ii) with
the consent of the Majority Banks, the Administrative Agent may, or upon the
request of the Majority Banks, the Administrative Agent shall, by notice of
default to the Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and the Notes to be
due and payable forthwith, whereupon the same shall immediately become due and
payable. Except as expressly provided above in this Section 8, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 9. THE ADMINISTRATIVE AGENT
9.1 Appointment. Each Bank hereby irrevocably designates and
appoints Chemical as the Administrative Agent of such Bank under this Agreement
and the other Loan Documents, and each such Bank irrevocably authorizes
Chemical, as the Administrative Agent for such Bank, to take such action on its
behalf under the provisions of this Agreement and the other Loan Documents, and
to exercise such powers and perform such duties as are expressly delegated to
the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement and
the other Loan Documents, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent.
9.2 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by any of them with reasonable care.
9.3 Exculpatory Provisions. Neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement and the
other Loan Documents (except for its or such Person's own gross negligence or
willful misconduct), or (ii) responsible in any manner to any of the Banks for
any recitals, statements, representations or warranties made by any Loan Party
or any officer thereof contained in this Agreement or in the other Loan
Documents or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, the Loan Documents or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of any Loan Party to perform its obligations
hereunder or thereunder. The Administrative Agent shall not be under any
obligation to any Bank to ascertain or to
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inquire as to the observance or performance of any of the agreements contained
in, or conditions of, any Loan Document, or to inspect the properties, books or
records of any Loan Party.
9.4 Reliance by the Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
Note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Loan Parties), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement unless it shall
first receive such advice or concurrence of the Majority Banks or the Required
Banks, as the case may be, as it deems appropriate or it shall first be
indemnified to its satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement and the other Loan
Documents in accordance with a request of the Majority Banks or the Required
Banks, as the case may be, and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Banks and all future holders
of the Notes.
9.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Bank or the
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Banks. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Majority Banks; provided, that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Banks.
9.6 Non-Reliance on the Administrative Agent and Other Banks. Each
Bank expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
any
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representations or warranties to it and that no act by the Administrative Agent
hereafter taken, including any review of the affairs of any Loan Party, shall be
deemed to constitute any representation or warranty by the Administrative Agent
to any Bank. Each Bank represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent or any other
Bank, and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, operations,
property, financial and other condition and creditworthiness of each Loan Party,
and made its own decision to make its Loans hereunder and enter into this
Agreement. Each Bank also represents that it will, independently and without
reliance upon the Administrative Agent or any other Bank, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and/or decisions in taking or not
taking action under this Agreement, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, financial
and/or other condition and creditworthiness of each Loan Party. Except for
notices, reports and other documents expressly required to be furnished to the
Banks by the Administrative Agent hereunder, the Administrative Agent shall not
have any duty or responsibility to provide any Bank with any credit or other
information concerning the business, operations, property, financial and other
condition or creditworthiness any Loan Party which may come into the possession
of such Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
9.7 Indemnification. The Banks agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Commitment Percentages, from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including without limitation at any time following the payment
of the Loans) be imposed on, incurred by or asserted against the Administrative
Agent in any way relating to or arising out of this Agreement and the other Loan
Documents, or any documents contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing; provided,
that no Bank shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from the Administrative Agent's gross
negligence or willful misconduct. If any such amount with respect to which the
Banks have indemnified the Administrative Agent is recovered from the Borrower,
the Administrative Agent shall return the amount so recovered to the Banks which
so indemnified the Administrative Agent, but without interest, unless the
Borrower has paid
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interest. The agreements in this Section shall survive the payment of the Loans
and all other amounts payable hereunder.
9.8 The Administrative Agent in Its Individual Capacity. The
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower and the other
Loan Parties as though the Administrative Agent were not the Administrative
Agent hereunder. With respect to its Loans made or renewed by it and any Note
issued to it, the Administrative Agent shall have the same rights and powers
under this Agreement as any Bank and may exercise the same as though it were not
the Administrative Agent, and the terms "Bank" and "Banks" shall include the
Administrative Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent may
resign as such upon 10 days' notice to the Banks and the Borrower; provided,
that such resignation shall not become effective until a successor
Administrative Agent is appointed in accordance with this Section 9.9. If the
Administrative Agent shall resign as Administrative Agent under this Agreement,
then the Majority Banks shall appoint from among the Banks a successor agent for
the Banks which successor agent shall be approved by the Borrower, whereupon
such successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and any references to the Administrative Agent herein or
any other Loan Document shall mean such successor agent effective upon its
appointment, and the former Administrative Agent's rights, powers and duties as
such shall be terminated, without any other or further act or deed on the part
of such former Administrative Agent or any of the parties to this Agreement or
any holders of the Notes. After any retiring Administrative Agent's resignation
as such, the provisions of this Section 10.9 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was the Administrative
Agent under this Agreement.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. None of this Agreement, any Note or
any other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
Section 10.1. With the written consent of the Required Banks, the Administrative
Agent, on behalf of the Banks, and the applicable Loan Party may, from time to
time, enter into written amendments, supplements or modifications hereto and to
the other Loan Documents for the purpose of adding any provisions to this
Agreement and the other Loan Documents or changing in any manner the rights of
the Banks or of the applicable Loan Party hereunder or thereunder or waiving, on
such terms and conditions as the Administrative Agent may specify in such
instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences; provided,
however, that no such
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waiver and no such amendment, supplement or modification shall (a) reduce the
amount or extend the scheduled maturity of any Loan, or reduce the rate or
extend the time of payment of interest thereon, or reduce any fee payable to any
Bank hereunder, or reduce the principal amount of any Loan, or increase the
amount or extend the expiry date of any Bank's Commitment, in each case without
the written consent of each Bank affected thereby, and in the case of any
extension of the Termination Date, the written extension of the time of payment
of interest on any Loan in an aggregate amount exceeding $15,000,000 for more
than six months or the extension of the Commitment Period, without the written
consent of Lockheed ▇▇▇▇▇▇ or (b) [INTENTIONALLY OMITTED], or (c) approve a
financial institution as an issuer of an Acceptable Letter of Credit without the
written consent of the Majority Banks or (d) amend, modify or waive any
provision of this Section 10.1, or reduce the percentage specified in the
definitions of Required Banks or Majority Banks, or consent to the assignment or
transfer by any Loan Party of any of its rights and obligations under the Loan
Documents, or release amounts in the Cash Collateral Account other than in
accordance with Section 2.7, in each case without the written consent of all the
Banks, or amend, modify or waive any provision of this Section 10.1 that
requires the consent of Lockheed ▇▇▇▇▇▇ without the written consent of Lockheed
▇▇▇▇▇▇ or (e) amend, modify or waive any provision of Section 9 without the
written consent of the then Administrative Agent or (f) increase the Commitments
hereunder except in accordance with Section 2.6 or (g) amend the definition of
Release Date, release the Lockheed ▇▇▇▇▇▇ Guarantee, the Subsidiary Guarantee,
any Letter of Credit (except on the Release Date and, with respect to any Letter
of Credit only, except if such Letter of Credit is being replaced by an
Acceptable Letter of Credit in an equal stated amount) or all or substantially
all of the Collateral, in each case without the written consent of all of the
Banks and Lockheed ▇▇▇▇▇▇ or (h) amend Section 2.2 or Section 2.6(a) or Section
2.6(c) without the written consent of Lockheed ▇▇▇▇▇▇. Any such waiver and any
such amendment, supplement or modification shall apply equally to each of the
Banks and shall be binding upon the Loan Parties, the Banks, the Administrative
Agent and all future holders of the Notes. In the case of any waiver, the Loan
Parties, the Banks and the Administrative Agent shall be restored to their
former position and rights hereunder and under the other Loan Documents, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy or telex), and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made when delivered by hand, or three Business
Days after being deposited in the mail, postage prepaid, or, in the case of
telecopy notice, when received, or, in the case of telex
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notice, when sent, answerback received, addressed as follows in the case of the
Borrower and the Administrative Agent, and as set forth in Schedule I in the
case of the other parties hereto, or to such other address as may be hereafter
notified by the respective parties hereto and any future holders of the Notes:
The Borrower:
Globalstar, L.P.
3200 Zanker Road
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President-Finance
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Lockheed ▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
The Administrative
Agent:
Chemical Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Chemical Bank Agent
Bank Services Group
Grand Central Tower
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: 212-622-0002
; provided, that any notice, request or demand to or upon the Administrative
Agent or the Banks pursuant to Sections 2.3, 2.6, 2.7 and 2.8 shall not be
effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Bank, any
right, remedy, power or privilege hereunder or under any Loan Document shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder or thereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided or
provided in
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the other Loan Documents are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the other Loan Documents.
10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay
all fees and expenses of the Arranger and the Agent as set forth in the separate
letter agreement dated October 16, 1995 with the Borrower, (b) to pay or
reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the preparation, execution and delivery
of, and any amendment, supplement or modification to, this Agreement, the other
Loan Documents and any other documents prepared in connection herewith or
therewith, the consummation of the transactions contemplated hereby and thereby,
including, without limitation, the reasonable fees and disbursements of counsel
to the Administrative Agent, (c) to pay or reimburse each Bank and the
Administrative Agent for all their reasonable costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, fees and disbursements of counsel to the Administrative
Agent and to the several Banks (including, without limitation, the allocated
costs of in-house counsel), (d) to pay, indemnify, and hold each Bank and the
Administrative Agent harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation of any
of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this
Agreement, the other Loan Documents and any such other documents, (e) to pay or
reimburse the Administrative Agent for all its reasonable costs, expenses and
charges in connection with the opening and administration of the Partner
Collateral Accounts, and (f) to pay, indemnify, and hold each Bank, the Arranger
and the Administrative Agent (and their respective directors, officers,
employees and agents) harmless from and against, any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to or
arising out of the execution, delivery, enforcement, performance, syndication
and administration of this Agreement, the other Loan Documents and any such
other documents and the use or proposed use of proceeds of the Loans (all the
foregoing, collectively, the "indemnified liabilities"); provided, that the
Borrower shall have no obligation hereunder to the Administrative Agent, the
Arranger or any Bank with respect to indemnified liabilities arising from the
gross negligence or willful misconduct of the
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Administrative Agent, the Arranger or any such Bank, as the case may be. The
agreements in this Section 10.5 shall survive repayment of the Loans and all
other amounts payable hereunder.
10.6 Successors and Assigns; Participations; Purchasing Banks. (a)
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Banks, the Administrative Agent, all future holders of the Notes, and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Bank. Sections 2.2 and 2.6 and Clauses (a), (d) (g) and
(h) of Section 10.1 shall inure to the benefit of and be enforceable by Lockheed
▇▇▇▇▇▇ to the extent provided therein.
(b) Any Bank may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("Participants") participating interests in any Loan
owing to such Bank, any Note held by such Bank, the Commitment of such Bank or
any other interest of such Bank hereunder; provided, that if the Participant is
not an Affiliate of such Bank or another Bank, such Bank shall obtain the prior
consent of the Borrower and the Administrative Agent to such sale of
participating interests (which consent shall not be unreasonably withheld or
delayed); and provided further, that such Bank shall reserve solely unto itself,
and shall not grant to any Participant, any part or all of its right to agree to
the amendment, modification or waiver of any of the terms of this Agreement, its
Note, any other Loan Document or any document related thereto, except to the
extent that such amendment, modification or waiver would reduce the principal
of, or interest on, the Loans or any fees payable hereunder, in each case to the
extent subject to such participation, or postpone the date of the final maturity
of, or any date fixed for any payment of interest on, the Loans, in each case to
the extent subject to such participation. In the event of any such sale by a
Bank of a participating interest to a Participant, such Bank's obligations under
this Agreement to the other parties to this Agreement shall remain unchanged,
such Bank shall remain solely responsible for the performance thereof, such Bank
shall remain the holder of any such Note for all purposes under this Agreement
and the Borrower, and the Administrative Agent shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and obligations
under this Agreement. The Borrower agrees that if amounts outstanding under this
Agreement and the Notes are due and unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement and any Note to the
same extent as if the amount of its participating interest were owing directly
to it as a Bank under this Agreement or any Note; provided, that such right of
setoff shall be subject to the obligation of such Participant to share with the
Banks,
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and the Banks agree to share with such Participant, as provided in Section 10.7.
The Borrower also agrees that each Participant shall be entitled to the benefits
of Sections 2.15, 2.16, 2.17 and 10.5 with respect to its participation in the
Commitments and the Loans outstanding from time to time; provided, that no
Participant shall be entitled to receive any greater amount pursuant to such
Sections than the transferor Bank would have been entitled to receive in respect
of the amount of the participation transferred by such transferor Bank to such
Participant had no such transfer occurred.
(c) Any Bank may, in the ordinary course of its commercial banking
business and in accordance with applicable law, and (if the Purchasing Bank is
not an Affiliate of such Bank or an existing Bank) with the prior consent of the
Borrower and the Administrative Agent (which shall not be unreasonably withheld
or delayed), at any time sell to one or more banks or financial institutions
("Purchasing Banks") all or any part of its rights and obligations under this
Agreement and the Notes, pursuant to a Commitment Transfer Supplement, executed
by such Purchasing Bank and such transferor Bank, and delivered to the
Administrative Agent for its acceptance and recording in the Register; provided,
that (i) if the Purchasing Bank is not an Affiliate of such Bank or an existing
Bank any sale of Loans shall be in an amount equal to at least $7,500,000 (pro
rated downward ratably in connection with permanent reductions of the aggregate
Commitments) and (ii) after giving effect thereto, such Bank shall have
Commitments and Loans aggregating at least $7,500,000 (pro rated downward
ratably in connection with permanent reductions of the aggregate Commitments)
unless all of such Bank's Commitments and Loans are sold. Upon such execution,
delivery, acceptance and recording, from and after the Transfer Effective Date
determined pursuant to such Commitment Transfer Supplement, (x) the Purchasing
Bank thereunder shall be a party hereto and, to the extent provided in such
Commitment Transfer Supplement, have the rights and obligations of a Bank
hereunder with a Commitment as set forth therein, and (y) the transferor Bank
thereunder shall, to the extent provided in such Commitment Transfer
Supplement, to be released from its obligations under this Agreement (and, in
the case of a Commitment Transfer Supplement covering all or the remaining
portion of a transferor Bank's rights and obligations under this Agreement,
such transferor Bank shall cease to be a party hereto). Such Commitment
Transfer Supplement shall be deemed to amend this Agreement to the extent, and
only to the extent, necessary to reflect the addition of such Purchasing Bank
and the resulting adjustment of Commitment Percentages arising from the
purchase by such Purchasing Bank of all or a portion of the rights and
obligations of such transferor Bank under this Agreement and the Notes. If
requested by the Purchasing Bank and/or the transferor Bank, on or prior to the
Transfer Effective Date determined pursuant to such Commitment Transfer
Supplement, the Borrower, at its own expense, shall execute and deliver to
the Administrative Agent in exchange for the surrendered Note a new Note to the
order of such Purchasing
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Bank in an amount equal to the Commitment assumed by it pursuant to such
Commitment Transfer Supplement and, if the transferor Bank has retained a
Commitment hereunder, a new Note to the order of the transferor Bank in an
amount equal to the Commitment retained by it hereunder. Such new Notes shall
be dated the Closing Date and shall otherwise be in the form of the Notes
replaced thereby. The Note surrendered by the transferor Bank shall be returned
by the Administrative Agent to the Borrower marked "cancelled". Notwithstanding
any provision of this paragraph (c) and paragraph (e) of this Section, the
consent of the Borrower shall not be required, and, unless requested by the
assignee and/or the assigning Bank, new Notes shall not be required to be
executed and delivered by the Borrower, for any assignment which occurs at any
time when any of the events described in paragraph (a)(vi) of Section 8 shall
have occurred and be continuing.
(d) The Administrative Agent shall maintain at its address referred
to in Section 10.2 a copy of each Commitment Transfer Supplement delivered to it
and a register (the "Register") for the recordation of the names and addresses
of the Banks and the Commitment of, and principal amount of the Loans owing to,
each Bank from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrower, the Administrative Agent and
the Banks may (and, in the case of any Loan or other obligation hereunder not
evidenced by a Note, shall) treat each Person whose name is recorded in the
Register as the owner of the Loan recorded therein for all purposes of this
Agreement. Any assignment of a Loan or other obligation hereunder not evidenced
by a Note shall be effective only upon appropriate entries with respect thereto
being made in the Register. The Register shall be available for inspection by
the Borrower or any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of a Commitment Transfer Supplement executed by
a transferor Bank and a Purchasing Bank together with payment to the
Administrative Agent of a registration and processing fee of $4,000, the
Administrative Agent shall (i) promptly accept such Commitment Transfer
Supplement and (ii) on the Transfer Effective Date determined pursuant thereto
record the information contained therein in the Register and give notice of such
acceptance and recordation to the Administrative Agent, the Banks and the
Borrower.
(f) The Borrower authorizes each Bank to disclose to any Participant
or Purchasing Bank (each, a "Transferee") and any prospective Transferee any and
all financial information in such Bank's possession concerning the Loan Parties
and their affiliates which has been delivered to such Bank by or on behalf of
any such Loan Party pursuant to this Agreement or the other Loan Documents or
which has been delivered to such Bank by or on behalf of any Loan Party in
connection with such Bank's credit evaluation of the Borrower and its affiliates
prior to becoming a
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party to this Agreement; provided, that such Transferee or prospective
Transferee agrees in writing to be bound by the confidentiality provisions set
forth in Section 10.14 hereof.
(g) If, pursuant to this Section 10.6, any interest in this
Agreement or any Note is transferred to any Transferee which is organized under
the laws of any jurisdiction other than the United States or any State thereof,
the transferor Bank shall cause such Transferee, concurrently with the
effectiveness of such transfer, (i) to represent to the transferor Bank (for the
benefit of the transferor Bank, the Administrative Agent and the Borrower) that
under applicable law and treaties no taxes will be required to be withheld by
the Administrative Agent, the Borrower or the transferor Bank with respect to
any payments to be made to such Transferee in respect of the Loans, (ii) to
furnish to the transferor Bank (and, in the case of any Purchasing Bank
registered in the Register, the Administrative Agent and the Borrower) either
U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form
1001 (wherein such Transferee claims entitlement to complete exemption from U.S.
federal withholding tax on all interest payments hereunder) and an Internal
Revenue Service Form W-8 or W-9 or successor applicable form (wherein such
Transferee claims exemption from United States backup withholding tax) and (iii)
to agree (for the benefit of the transferor Bank, the Administrative Agent and
the Borrower) to provide the transferor Bank (and, in the case of any Purchasing
Bank registered in the Register, the Administrative Agent and the Borrower) a
new Form 4224 or 1001 or Form W-8 or W-9 upon the expiration or obsolescence of
any previously delivered form and comparable statements in accordance with
applicable U.S. laws and regulations and amendments duly executed and completed
by such Transferee, and to comply from time to time with all applicable U.S.
laws and regulations with regard to such withholding and backup withholding tax
exemptions.
(h) Nothing herein shall prohibit any Bank from pledging or
assigning any Loan, either directly or through the principal banking subsidiary
of the bank holding company which owns such Bank, to any Federal Reserve Bank in
accordance with applicable law.
10.7 Adjustments; Set-off. (a) If any Bank (a "benefitted Bank")
shall receive any payment of all or part of its Loans or interest thereon, or
receive any collateral in respect of its Loans (in each case whether voluntarily
or involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in clause (a)(vi) of Section 8, or otherwise) in a greater
proportion than any such payment to and collateral received by any other Bank,
if any, in respect of such other Bank's Loans or interest thereon, or Loans or
interest thereon, such benefitted Bank shall purchase for cash from the other
Banks such portion of each such other Bank's Loans, or shall provide such other
Banks with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to
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cause such benefitted Bank to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Banks; provided, however, that
if all or any portion of such excess payment or benefits is thereafter recovered
from such benefitted Bank, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest. The Borrower agrees that each Bank so purchasing a portion of another
Bank's Loans may exercise all rights of payment (including, without limitation,
rights of set-off) with respect to such portion as fully as if such Bank were
the direct holder of such portion.
(b) In addition to any rights and remedies of the Banks provided by
law, each Bank (and its Affiliates, to the extent permitted by law) shall have
the right, without prior notice to the Borrower, any such notice being expressly
waived by the Borrower to the extent permitted by applicable law, upon any
amount becoming due and payable by the Borrower hereunder or under the Notes
(whether at the stated maturity, by acceleration or otherwise) to set off and
appropriate and apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Bank (or any such Affiliate) to or for the credit or the account
of the Borrower. Each Bank agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such Bank;
provided, that the failure to give such notice shall not affect the validity of
such set-off and application.
10.8 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.9 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Borrower and the Agent.
10.10 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
10.11 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
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(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement or any other Loan Documents, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York, the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to the Borrower at its
address set forth in Section 10.2 or at such other address of which the Agent
shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred to in
this Section any special, exemplary, punitive or consequential damages.
10.12 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT
AND THE BANKS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTES AND FOR ANY
COUNTERCLAIM THEREIN.
10.13 Integration. This Agreement represents the agreement of the
Borrower, the Administrative Agent and the Banks with respect to the subject
matter hereof, and there are no promises, undertakings, representations or
warranties by the Administrative Agent or any Bank relative to the subject
matter hereof not expressly set forth or referred to herein or in the other Loan
Documents.
10.14 Confidentiality. The Banks shall hold all non-public
information obtained pursuant to the requirements of this Agreement or any other
Loan Document which has been identified as such by a Loan Party in accordance
with their customary procedures for handling confidential information of this
nature and in accordance with safe and sound banking practices but in any event
may make disclosure reasonably required by a bona fide prospective Purchasing
Bank or Participant in connection with the contemplated transfer of any Note or
participation therein
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(subject to such prospective Purchasing Bank's or Participant's compliance with
Section 10.6(f) hereof) or as required or requested by any Governmental
Authority or representative thereof or pursuant to legal process.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in New York, New York by their proper and duly
authorized officers as of the day and year first above written.
GLOBALSTAR, L.P.
By: LORAL/QUALCOMM SATELLITE
SERVICES L.P., as Managing
General Partner
By: LORAL/QUALCOMM PARTNERSHIP,
L.P., as General Partner
By: LORAL GENERAL PARTNER, INC.,
as General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title: Vice President
CHEMICAL BANK, as
Administrative Agent and as
a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. Swith
-----------------------------------
Title: Vice President
BANK OF AMERICA ILLINOIS
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: Vice President
THE BANK OF NEW YORK
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ J. ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: Authorized Signatory
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BARCLAYS BANK PLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: Director
BAYERISCHE LANDESBANK
GIROZENTRALE
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: Executive Vice President
BANQUE NATIONALE de PARIS
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
THE CHASE MANHATTAN BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: Vice President
CIBC INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Director
CITICORP USA, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
CREDIT LYONNAIS CREDIT LYONNAIS
CAYMAN ISLAND BRANCH NEW YORK BRANCH
By: /s/ Credit Lyonnais By: /s/ Credit Lyonnais
--------------------------- -----------------------------------
Title: Title:
CREDIT SUISSE
By: /s/ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Associate
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By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Title: Member of Senior
Management
THE DAI-ICHI KANGYO BANK,
LIMITED, NEW YORK BRANCH
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: Vice President
THE FUJI BANK, LIMITED
NEW YORK BRANCH
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
BAYERISCHE HYPOTHEKEN-UND WECHSEL-
BANK AKTIENGESELLSCHAFT, NEW YORK
BRANCH
By: /s/ ▇▇▇▇▇▇▇▇▇ Eleik
-----------------------------------
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED - NEW YORK BRANCH
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Senior Vice President
LTCB TRUST COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Title: Senior Vice President
MELLON BANK, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: Vice President
THE MITSUBISHI TRUST AND
BANKING CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
-----------------------------------
Title: Senior Vice President
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NATIONAL CITY BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
NATIONSBANK, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ PNC Bank
-----------------------------------
Title:
ROYAL BANK OF CANADA
By: /s/ ▇▇▇▇ ▇. Page
-----------------------------------
Title: Senior Manager
ISTITUTO BANCARIO SAN PAOLO
DI TORINO S.P.A.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title: Vice President
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: First Vice President
THE SANWA BANK, LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
SOCIETE GENERALE
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
THE SUMITOMO BANK, LIMITED
By: /s/ The Sumitomo Bank
-----------------------------------
Title:
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
-----------------------------------
Title: Vice President
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TORONTO DOMINION (TEXAS), INC.
By: /s/ Toronto Dominion
-----------------------------------
Title:
THE YASUDA TRUST & BANKING
COMPANY, LIMITED
By: /s/ ▇▇▇ Longinswater
-----------------------------------
Title: Joint General Manager
80
