EXHIBIT 4.3
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EUROBOND GUARANTY
by and among
INTELSAT (BERMUDA), LTD.
CERTAIN SUBSIDIARIES OF INTELSAT (BERMUDA), LTD.
in favor of
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Collateral Trustee
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Dated as of January 28, 2005
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EUROBOND GUARANTY
EUROBOND GUARANTY (as amended, modified, restated and/or
supplemented from time to time, this "GUARANTY"), dated as of January 28, 2005,
made by and among each of the undersigned guarantors (each, a "GUARANTOR" and,
together with any other entity that becomes a guarantor hereunder pursuant to
Section 21 hereof, collectively, the "GUARANTORS") in favor of DEUTSCHE BANK
TRUST COMPANY AMERICAS, as Collateral Trustee on behalf of the Eurobond
Creditors (together with any successor Collateral Trustee, the "Collateral
TRUSTEE") pursuant to the terms of a Collateral Trust Agreement (the "Collateral
Trust Agreement"), dated as of January 28, 2005, by and among Intelsat, Ltd. and
certain subsidiaries thereof, the Collateral Trustee, and Deutsche Bank Trust
Company Americas, as Collateral Agent under the Credit Agreement. Except as
otherwise defined herein, all capitalized terms used herein and defined in the
Credit Agreement, dated as of January 28, 2005, by and among Intelsat, Ltd. (as
the company resulting from the amalgamation of Zeus Merger One Limited and
Intelsat, Ltd.), Intelsat (Bermuda), Ltd. (as the company resulting from the
amalgamation of Zeus Merger Two Limited and Intelsat (Bermuda), Ltd.), the
lenders from time to time party thereto (the "LENDERS"), Credit Suisse First
Boston and ▇▇▇▇▇▇ Brothers Inc., as Co-Documentation Agents, Bank of America,
N.A., Bear ▇▇▇▇▇▇▇ Corporate Lending Inc., BNP Paribas and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital
Corporation, as Co-Documentation Agents, Credit Suisse First Boston and ▇▇▇▇▇▇
Brothers Inc., as Co-Syndication Agents, and Deutsche Bank Trust Company
Americas, as Administrative Agent (together with any successor Administrative
Agent, the "ADMINISTRATIVE AGENT") and as Collateral Agent (together with any
successor Collateral Agent, the "COLLATERAL AGENT") (as amended, modified,
restated and/or supplemented from time to time, the "CREDIT AGREEMENT") shall be
used herein as therein defined.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, The International Telecommunications Satellite Organization
("INTELSAT"), established by the Agreement Relating to the International
Telecommunications Satellite Organization "INTELSAT" on August 20, 1971, as
amended (the "INTELSAT AGREEMENT"), and Citibank, N.A. (as successor to ▇▇▇▇▇▇
Guaranty Trust Company of New York), as Fiscal Agent and Principal Paying Agent
(together with any successor Fiscal Agent and Principal Paying Agent, the
"FISCAL AGENT"), have entered into a Fiscal Agency Agreement, dated as of
February 28, 1995 (as amended, modified or supplemented from time to time,
the "FISCAL AGENCY AGREEMENT"), providing for the issuance by INTELSAT of
its 8 1/8% Notes due February 28, 2005 (the "EUROBOND 8 1/8% NOTES") to the
holders thereof from time to time (the "EUROBOND 8 1/8% NOTEHOLDERS" and,
together with the Fiscal Agent, the "EUROBOND CREDITORS");
WHEREAS, INTELSAT transferred, assigned and delegated all of its
rights, benefits and obligations under the Eurobond 8 1/8% Notes and the
Fiscal Agency Agreement to Intelsat, Ltd. ("ISSUER"), a company organized
under the laws of Bermuda, and Issuer accepted all of such rights, benefits and
obligations, and agreed to be bound by substantially all of the terms and
conditions of the Eurobond 8 1/8% Notes and the Fiscal Agency Agreement
pursuant to the Assignment, Assumption and Amendment Agreement, dated as of
July 18, 2001, by and among
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INTELSAT, Issuer, and Citibank, N.A. (this Guaranty, together with the Fiscal
Agency Agreement, the Eurobond 8 1/8% Notes and the Assignment, Assumption
and Amendment Agreement, the "EUROBOND DOCUMENTS");
WHEREAS, each Guarantor has agreed to guarantee to the Collateral
Trustee for the benefit of the Eurobond Creditors the payment and performance
when due of all Eurobond Obligations owing by Intelsat, Ltd. in respect of the
Eurobond 8 1/8% Notes and related Eurobond Documents;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Guarantor, the receipt and sufficiency of which are hereby
acknowledged, each Guarantor hereby makes the following representations and
warranties to the Collateral Trustee for the benefit of the Eurobond Creditors
and hereby covenants and agrees with each other Guarantor and the Collateral
Trustee for the benefit of the Eurobond Creditors as follows:
1. GUARANTY. Each Guarantor, jointly and severally, irrevocably,
absolutely and unconditionally guarantees as a primary obligor and not merely as
surety, to the Collateral Trustee for the benefit of the Eurobond Creditors the
full and prompt payment when due (whether at the stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise) of the principal of,
premium, if any, and interest in respect of the Eurobond 8 1/8% Notes and all
other obligations (including, without limitation, obligations which, but
for the automatic stay under Section 362(a) of the Bankruptcy Code, would
become due), liabilities and indebtedness (including, without limitation,
indemnities, fees and interest thereon (including, without limitation, all
similar interest that accrues after the commencement of any bankruptcy,
insolvency, receivership, reorganization or similar proceeding at the rate
provided for in the respective documentation, whether or not such interest
is an allowed claim in any such proceeding)) of the Issuer owing to the
Eurobond Creditors, whether now existing or hereafter incurred under, arising
out of, or in connection with the Eurobond Documents and the due performance
and compliance by such Issuer with all of the terms, conditions, covenants and
agreements contained in the Eurobond Documents (all such principal, premium,
interest, obligations, liabilities and indebtedness being herein collectively
called the "GUARANTEED OBLIGATIONS").
Each Guarantor understands, agrees and confirms that the Eurobond Creditors may
enforce this Guaranty up to the full amount of the Guaranteed Obligations
against such Guarantor without proceeding against any other Guarantor, the
Issuer or INTELSAT, or against any security for the Guaranteed Obligations, or
under any other guaranty covering all or a portion of the Guaranteed
Obligations. This Guaranty is a guaranty of prompt payment and performance and
not of collection.
2. LIABILITY OF GUARANTORS ABSOLUTE. The liability of each Guarantor
hereunder is primary, absolute, joint and several, and unconditional and is
exclusive and independent of any security for or other guaranty of the
indebtedness of the Issuer or INTELSAT whether executed by such Guarantor, any
other Guarantor, any other guarantor or by any other party, and the liability of
each Guarantor hereunder shall not be affected or impaired by any circumstance
or occurrence whatsoever, including, without limitation: (a) any direction as to
application of payment by the Issuer, INTELSAT or any other party, (b) any other
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continuing or other guaranty, undertaking or maximum liability of a Guarantor or
of any other party as to the Guaranteed Obligations, (c) any payment on or in
reduction of any such other guaranty or undertaking, (d) any dissolution,
termination or increase, decrease or change in personnel by the Issuer or
INTELSAT, (e) the failure of the Guarantor to receive any benefit from or as a
result of its execution, delivery and performance of this Guaranty, (f) any
payment made to any Eurobond Creditor on the indebtedness which any Eurobond
Creditor repays the Issuer or INTELSAT pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and each Guarantor waives any right to the deferral or modification
of its obligations hereunder by reason of any such proceeding, (g) any action or
inaction by the Eurobond Creditors as contemplated in Section 5 hereof, (h) any
invalidity, rescission, irregularity or unenforceability of all or any part of
the Guaranteed Obligations or of any security therefor or (i) except for the
payment in full in cash of the Guaranteed Obligations, any event or the
existence of any other circumstance which might constitute a legal or equitable
discharge of a surety or guarantee.
3. OBLIGATIONS OF GUARANTORS INDEPENDENT. The obligations of each
Guarantor hereunder are independent of the obligations of any other Guarantor,
any other guarantor, the Issuer and INTELSAT, and a separate action or actions
may be brought and prosecuted against each Guarantor whether or not action is
brought against any other Guarantor, any other guarantor, the Issuer or INTELSAT
and whether or not any other Guarantor, any other guarantor of the Guaranteed
Obligations, the Issuer or INTELSAT be joined in any such action or actions.
Each Guarantor waives (to the fullest extent permitted by applicable law) the
benefits of any statute of limitations affecting its liability hereunder or the
enforcement thereof. Any payment by the Issuer or other circumstance which
operates to toll any statute of limitations as to the Issuer shall operate to
toll the statute of limitations as to each Guarantor.
4. WAIVERS BY GUARANTORS. (a) Each Guarantor hereby waives (to the
fullest extent permitted by applicable law) notice of acceptance of this
Guaranty and notice of the existence, creation or incurrence of any new or
additional liability to which it may apply, and waives promptness, diligence,
presentment, demand of payment, demand for performance, protest, notice of
dishonor or nonpayment of any such liabilities, suit or taking of other action
by the Collateral Trustee or any other Eurobond Creditor against, and any other
notice to, any party liable thereon (including such Guarantor, any other
Guarantor, any other guarantor, the Issuer or INTELSAT) and each Guarantor
further hereby waives any and all notice of the creation, renewal, extension or
accrual of any of the Guaranteed Obligations and notice or proof of reliance by
the Collateral Trustee or any Eurobond Creditor upon this Guaranty, and the
Guaranteed Obligations shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended, modified, supplemented or
waived, in reliance upon this Guaranty.
(b) Each Guarantor waives (to the fullest extent permitted by
applicable law) any right to require the Collateral Trustee or any Eurobond
Creditor to: (i) proceed against the Issuer, INTELSAT, any other Guarantor, any
other guarantor of the Guaranteed Obligations or any other party; (ii) proceed
against or exhaust any security held from the Issuer, any other Guarantor, any
other guarantor of the Guaranteed Obligations or any other party; or (iii)
pursue any other remedy in the Collateral Trustee's or any Eurobond Creditor's
power whatsoever. Each Guarantor waives any defense based on or arising out of
any defense of the Issuer,
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INTELSAT, any other Guarantor, any other guarantor of the Guaranteed Obligations
or any other party other than payment in full in cash of the Guaranteed
Obligations, including, without limitation, any defense based on or arising out
of the disability of the Issuer, INTELSAT, any other Guarantor, any other
guarantor of the Guaranteed Obligations or any other party, or the
unenforceability of the Guaranteed Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of the Issuer other than
payment in full in cash of the Guaranteed Obligations. The Collateral Agent for
the benefit of the Secured Creditors may, at its election, foreclose on any
collateral serving as security held by the Administrative Agent, the Collateral
Agent or the other Secured Creditors by one or more judicial or nonjudicial
sales, whether or not every aspect of any such sale is commercially reasonable
(to the extent such sale is permitted by applicable law), or exercise any other
right or remedy the Collateral Agent on behalf of the Secured Creditors may have
against the Issuer, INTELSAT, any other Guaranteed Party or any other party, or
any security, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Guaranteed Obligations have been
paid in full in cash. Each Guarantor waives (to the fullest extent permitted by
applicable law) any defense arising out of any such election by the Collateral
Agent for the benefit of the Secured Creditors, even though such election
operates to impair or extinguish any right of reimbursement, contribution,
indemnification or subrogation or other right or remedy of such Guarantor
against the Issuer, INTELSAT, any other Guaranteed Party, any other guarantor of
the Guaranteed Obligations or any other party or any security.
(c) To the extent that the failure to do so might give rise to a
defense under this Guaranty (with any such defense being hereby waived by each
Guarantor to the fullest extent permitted by law), each Guarantor assumes all
responsibility for being and keeping itself informed of the Issuer's, INTELSAT's
and each other Guarantor's financial condition, affairs and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks which such Guarantor
assumes and incurs hereunder, and each Guarantor acknowledges that it has
adequate means to obtain from the Issuer, INTELSAT and each other Guarantor on
an ongoing basis information relating thereto and the Issuer's, INTELSAT's and
each other Guarantor's ability to pay and perform its respective Guaranteed
Obligations, and agrees to assume the responsibility for keeping, and to keep,
so informed for so long as this Guaranty is in effect. Each Guarantor
acknowledges and agrees that (x) neither the Collateral Trustee nor any Eurobond
Creditor shall have any obligation to investigate the financial condition or
affairs of the Issuer, INTELSAT or any other Guarantor for the benefit of such
Guarantor nor to advise such Guarantor of any fact respecting, or any change in,
the financial condition, assets or affairs of the Issuer, INTELSAT or any other
Guarantor that might become known to the Collateral Trustee or any Eurobond
Creditor at any time, whether or not the Collateral Trustee or such Eurobond
Creditor knows or believes or has reason to know or believe that any such fact
or change is unknown to such Guarantor, or might (or does) increase the risk of
such Guarantor as guarantor hereunder, or might (or would) affect the
willingness of such Guarantor to continue as a guarantor of the Guaranteed
Obligations hereunder and (y) neither the Collateral Trustee nor any Eurobond
Creditor shall have any duty to advise any Guarantor of information known to
them regarding any of the aforementioned circumstances or risks.
(d) Each Guarantor hereby acknowledges and agrees that neither the
Collateral Trustee nor any other Person shall be under any obligation (i) to
marshal any assets in
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favor of such Guarantor or in payment of any or all of the liabilities under the
Eurobond Documents or the obligation of such Guarantor hereunder or (ii) to
pursue any other remedy that such Guarantor may or may not be able to pursue
itself, any right to which such Guarantor hereby waives.
(e) Each Guarantor warrants and agrees that if any of the waivers
set forth in Section 3 and in this Section 4 are determined to be contrary to
any applicable law or public policy, such waivers shall be effective only to the
maximum extent permitted by law.
5. RIGHTS OF COLLATERAL TRUSTEE AND EUROBOND CREDITORS . Subject to
Section 4, any of the following actions by the Collateral Trustee or any
Eurobond Creditor, to the extent not prohibited by any Eurobond Document, at any
time and from time to time, will not impair or release the obligations or
liabilities of any Guarantor hereunder, upon or without any terms or conditions
and in whole or in part (except as shall be required by applicable statute and
cannot be waived):
(a) change the manner, place or terms of payment of, and/or change,
increase or extend the time of payment of, renew, increase, accelerate or alter,
any of the Guaranteed Obligations (including, without limitation, any increase
or decrease in the rate of interest thereon or the principal amount thereof),
any security therefor, or any liability incurred directly or indirectly in
respect thereof, and the guaranty herein made shall apply to the Guaranteed
Obligations as so changed, extended, increased, accelerated, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, impair, realize upon or
otherwise deal with in any manner and in any order any property or other
collateral by whomsoever at any time pledged or mortgaged to secure, or
howsoever securing, the Guaranteed Obligations or any liabilities (including any
of those hereunder) incurred directly or indirectly in respect thereof or
hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against the
Issuer, INTELSAT, any other Guarantor, any Subsidiary thereof, any other
guarantor of the Issuer or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, Guarantors,
other guarantors, the Issuer, INTELSAT or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and may subordinate the
payment of all or any part thereof to the payment of any liability (whether due
or not) of the Issuer to creditors of the Issuer (or of INTELSAT to creditors of
INTELSAT) other than the Collateral Trustee or the Eurobond Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Issuer or INTESAT to the Collateral Trustee or
the Eurobond Creditors regardless of what liabilities of the Issuer or INTELSAT
remain unpaid;
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(g) consent to or waive any breach of, or any act, omission or
default under, any of the Eurobond Documents or any of the instruments or
agreements referred to therein, or otherwise amend, modify or supplement any of
the Eurobond Documents or any of such other instruments or agreements;
(h) act or fail to act in any manner which may deprive such
Guarantor of its right to subrogation against the Issuer or INTELSAT to recover
full indemnity for any payments made pursuant to this Guaranty; and/or
(i) take any other action or omit to take any other action which
would, under otherwise applicable principles of common law, give rise to a legal
or equitable discharge of such Guarantor from its liabilities under this
Guaranty (including, without limitation, any action or omission whatsoever that
might otherwise vary the risk of such Guarantor or constitute a legal or
equitable defense to or discharge of the liabilities of a guarantor or surety or
that might otherwise limit recourse against such Guarantor).
No invalidity, illegality, irregularity or unenforceability of all or any part
of the Guaranteed Obligations, the Eurobond Documents or any other agreement or
instrument relating to the Guaranteed Obligations or of any security or
guarantee therefor shall affect, impair or be a defense to this Guaranty, and
this Guaranty shall be primary, absolute and unconditional notwithstanding the
occurrence of any event or the existence of any other circumstances which might
constitute a legal or equitable discharge of a surety or guarantor except
payment in full in cash of the Guaranteed Obligations.
The Collateral Trustee makes no representation or warranty and shall have no
liability with respect to the validity, sufficiency, valuation or enforceability
of this Guaranty. Nothing hereunder shall require the Collateral Trustee to take
any action without written direction from the Required Eurobond Creditors and
without full indemnity deemed satisfactory in the sole discretion of the
Collateral Trustee for all of its costs, expenses and fees, including the fees
and expenses of its counsel. The rights, protections and indemnities of the
Collateral Trustee under the terms of the Collateral Trust Agreement are
expressly incorporated herein and the Collateral Trustee shall be protected by
such terms hereunder to the same extent as under the Collateral Trust Agreement.
6. CONTINUING GUARANTY. This Guaranty is a continuing one and all
liabilities to which it applies or may apply under the terms hereof shall be
conclusively presumed to have been created in reliance hereon. No failure or
delay on the part of the Collateral Trustee or any Eurobond Creditor in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
expressly specified are cumulative and not exclusive of any rights or remedies
which the Collateral Trustee or any Eurobond Creditor would otherwise have. No
notice to or demand on any Guarantor in any case shall entitle such Guarantor to
any other further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Collateral Trustee or any Eurobond
Creditor to any other or further action in any circumstances without notice or
demand. It is not necessary for the Collateral Trustee or any Eurobond Creditor
to inquire into the capacity or powers of the Issuer or the
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officers, directors, partners or agents acting or purporting to act on its or
their behalf, and any indebtedness made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder.
7. GUARANTY ENFORCEABLE BY COLLATERAL TRUSTEE OR COLLATERAL AGENT.
Notwithstanding anything to the contrary contained elsewhere in this Guaranty,
the Eurobond Creditors agree (by their acceptance of the benefits of this
Guaranty) that this Guaranty may be enforced only by the action of the
Collateral Trustee acting upon the instructions of the Required Eurobond
Creditors and that no other Eurobond Creditor shall have any right individually
to seek to enforce or to enforce this Guaranty or to realize upon the security
to be granted by the Security Documents, it being understood and agreed that
such rights and remedies may be exercised by the Collateral Trustee and the
Collateral Agent for the benefit of the Eurobond Creditors upon the terms of
this Guaranty and the Security Documents. The Eurobond Creditors further agree
that this Guaranty may not be enforced against any director, officer, employee,
partner, member or stockholder of any Guarantor (except to the extent such
partner, member or stockholder is also a Guarantor hereunder). It is understood
and agreed that the agreement in this Section 7 is among and solely for the
benefit of the Eurobond Creditors and that, if the Required Eurobond Creditors
so agree (without requiring the consent of any Guarantor), this Guaranty may be
directly enforced by any Eurobond Creditor.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF GUARANTORS. Each
Guarantor hereby makes the representations and warranties contained in Sections
7.01, 7.02, 7.03, 7.04 (solely with respect to Credit Documents to which such
Guarantor is a party and qualified, rather than in respect of the knowledge of
the Borrower, to the knowledge of such Guarantor) and 7.06 (solely with respect
to the Credit Documents to which such Guarantor is a party) of the Credit
Agreement, in each case after giving effect to the Transaction.
9. EXPENSES. The Guarantors hereby jointly and severally agree to
pay all reasonable out-of-pocket costs and expenses of the Collateral Trustee or
any Eurobond Creditor in connection with the enforcement of this Guaranty and,
upon the occurrence of and during the continuance of an Event of Default, the
protection of the Eurobond Creditors' rights hereunder (including, in each case,
without limitation, the reasonable fees and disbursements of counsel (including
in-house counsel) employed by the Collateral Trustee and each Eurobond
Creditor).
10. BENEFIT AND BINDING EFFECT. This Guaranty shall be binding upon
each Guarantor and its successors and assigns and shall inure to the benefit of
the Collateral Trustee (for the benefit of the Eurobond Creditors) and its
successors and assigns.
11. AMENDMENTS; WAIVERS. Neither this Guaranty nor any provision
hereof may be changed, waived, discharged or terminated except with the written
consent of each Guarantor directly affected thereby (it being understood that
the addition or release of any Guarantor hereunder shall not constitute a
change, waiver, discharge or termination affecting any Guarantor other than the
Guarantor so added or released) and with the written consent of the Collateral
Trustee, acting upon the direction of the Required Eurobond Creditors.
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12. SET OFF. In addition to any rights now or hereafter granted
under applicable law (including, without limitation, Section 151 of the New York
Debtor and Creditor Law) and not by way of limitation of any such rights, upon
the occurrence and during the continuance of any event of default under, and as
defined in, Section 7 of the reverse side of the Eurobond 8 1/8% Notes (an
"EVENT OF DEFAULT"), the Collateral Trustee and each Eurobond Creditor is
hereby authorized, at any time or from time to time, without notice to any
Guarantor or to any other Person, any such notice being expressly waived, to
set off and to appropriate and apply any and all deposits (general or
special) and any other indebtedness at any time held or owing by the
Collateral Trustee or such Eurobond Creditor to or for the credit or the
account of such Guarantor, against and on account of the obligations and
liabilities of such Guarantor to the Collateral Trustee or such Eurobond
Creditor under this Guaranty, irrespective of whether or not the Collateral
Trustee or such Eurobond Creditor shall have made any demand hereunder and
although said obligations, liabilities, deposits or claims, or any of them,
shall be contingent or unmatured.
13. NOTICE. Except as otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be sent or delivered by mail, telecopy or courier service and all
such notices and communications shall, when mailed, telecopied or sent by
courier, be effective when deposited in the mails or delivered to the overnight
courier, as the case may be, or sent by telecopier, except that notices and
communications to the Collateral Trustee or any Guarantor shall not be effective
until received by the Collateral Trustee or such Guarantor, as the case may be.
All notices and other communications shall be in writing and addressed to such
party at (i) in the case of the Collateral Trustee, Deutsche Bank Trust Company
Americas, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Mail Stop: NYC60-2710, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Manager, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Escrow Team, Tel: (▇▇▇) ▇▇▇-▇▇▇▇, Fax:
(▇▇▇) ▇▇▇-▇▇▇▇, and (ii) in the case of any Guarantor, c/o Intelsat Global
Service Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., Tel.: (▇▇▇) ▇▇▇-▇▇▇▇, Fax: (▇▇▇) ▇▇▇-▇▇▇▇; or in
any case at such other address as any of the Persons listed above may hereafter
notify the others in writing.
14. REINSTATEMENT. If any claim is ever made upon the Collateral
Trustee or any Eurobond Creditor for repayment or recovery of any amount or
amounts received in payment or on account of any of the Guaranteed Obligations
and any of the aforesaid payees repays all or part of said amount by reason of
(i) any judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property or (ii) any settlement or
compromise of any such claim effected by such payee with any such claimant
(including, without limitation, the Issuer), then and in such event each
Guarantor agrees that any such judgment, decree, order, settlement or compromise
shall be binding upon such Guarantor, notwithstanding any revocation hereof or
the cancellation of any Eurobond 8 1/8% Note, any other Eurobond Document or
any other instrument evidencing any liability of the Issuer, and such
Guarantor shall be and remain liable to the aforesaid payees hereunder for the
amount so repaid or recovered to the same extent as if such amount had never
originally been received by any such payee.
15. CONSENT TO JURISDICTION; SERVICE OF PROCESS; AND WAIVER OF TRIAL
BY JURY. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE COLLATERAL
TRUSTEE AND THE EUROBOND CREDITORS
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AND OF THE UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. Any legal action or proceeding
with respect to this Guaranty may be brought in the courts of the State of New
York or of the United States of America for the Southern District of New York,
in each case located within the County of New York, and, by execution and
delivery of this Guaranty, each Guarantor hereby irrevocably accepts for itself
and in respect of its property, generally and unconditionally, the jurisdiction
of the aforesaid courts. Each Guarantor hereby irrevocably designates, appoints
and empowers CT Corporation System, with offices on the date hereof at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, as its authorized designee, appointee
and agent to receive, accept and acknowledge for and on its behalf, and in
respect of its property, service of any and all legal process, summons, notices
and documents which may be served in any such action or proceeding. If for any
reason such authorized designee, appointee and agent shall cease to be available
to act as such, each Guarantor agrees to designate a new authorized designee,
appointee and agent in New York City on the terms and for the purposes of this
provision reasonably satisfactory to the Collateral Trustee under this Guaranty.
Each Guarantor hereby further irrevocably waives (to the fullest extent
permitted by applicable law) any claim that any such courts lack jurisdiction
over such Guarantor, and agrees not to plead or claim, in any legal action or
proceeding with respect to this Guaranty or any other Credit Document to which
such Guarantor is a party brought in any of the aforesaid courts, that any such
court lacks jurisdiction over such Guarantor. Each Guarantor further irrevocably
consents to the service of process out of any of the aforementioned courts in
any such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to each Guarantor at its address set forth in
Section 13 hereof, such service to become effective 30 days after such mailing.
Each Guarantor hereby irrevocably waives (to the fullest extent permitted by
applicable law) any objection to such service of process and further irrevocably
waives and agrees not to plead or claim in any action or proceeding commenced
hereunder or under any other Credit Document to which such Guarantor is a party
that such service of process was in any way invalid or ineffective. Nothing
herein shall affect the right of the Collateral Trustee or any Eurobond Creditor
to serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against each Guarantor in any other
jurisdiction.
(b) Each Guarantor hereby irrevocably waives (to the fullest extent
permitted by applicable law) any objection which it may now or hereafter have to
the laying of venue of any of the aforesaid actions or proceedings arising out
of or in connection with this Guaranty or any other Credit Document to which
such Guarantor is a party brought in the courts referred to in clause (a) above
and hereby further irrevocably waives and agrees not to plead or claim in any
such court that such action or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) EACH GUARANTOR AND THE COLLATERAL TRUSTEE HEREBY IRREVOCABLY
WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS GUARANTY, THE OTHER EUROBOND DOCUMENTS TO
WHICH SUCH GUARANTOR IS A PARTY OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
16. RELEASE OF LIABILITY OF GUARANTOR UPON SALE OR DISSOLUTION. In
the event that any Guarantor shall no longer be a "Guarantor" under the
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Credit Agreement, then such Guarantor shall be released from this Guaranty
automatically and without further action other than delivering written notice
thereof to the Collateral Trustee, and this Guaranty shall, as to each such
Guarantor or Guarantors, terminate, and have no further force or effect. The
Collateral Trustee agrees to execute such releases and other documents and
instruments prepared by such Guarantor as any Guarantor may request in
furtherance of the requirements under this Section 16.
17. CONTRIBUTION. At any time a payment in respect of the Guaranteed
Obligations is made under this Guaranty, the right of contribution of each
Guarantor against each other Guarantor shall be determined as provided in the
immediately following sentence, with the right of contribution of each Guarantor
to be revised and restated as of each date on which a payment (a "RELEVANT
PAYMENT") is made on the Guaranteed Obligations under this Guaranty. At any time
that a Relevant Payment is made by a Guarantor that results in the aggregate
payments made by such Guarantor in respect of the Guaranteed Obligations to and
including the date of the Relevant Payment exceeding such Guarantor's
Contribution Percentage (as defined below) of the aggregate payments made by all
Guarantors in respect of the Guaranteed Obligations to and including the date of
the Relevant Payment (such excess, the "AGGREGATE EXCESS AMOUNT"), each such
Guarantor shall have a right of contribution against each other Guarantor who
has made payments in respect of the Guaranteed Obligations to and including the
date of the Relevant Payment in an aggregate amount less than such other
Guarantor's Contribution Percentage of the aggregate payments made to and
including the date of the Relevant Payment by all Guarantors in respect of the
Guaranteed Obligations (the aggregate amount of such deficit, the "AGGREGATE
DEFICIT AMOUNT") in an amount equal to (x) a fraction the numerator of which is
the Aggregate Excess Amount of such Guarantor and the denominator of which is
the Aggregate Excess Amount of all Guarantors multiplied by (y) the Aggregate
Deficit Amount of such other Guarantor. A Guarantor's right of contribution
pursuant to the preceding sentences shall arise at the time of each computation,
subject to adjustment to the time of each computation; PROVIDED that no
Guarantor may take any action to enforce such right until the Guaranteed
Obligations (other than indemnities to the extent not then due and payable) have
been paid in full in cash and the Total Commitment and all Letters of Credit
have been terminated, it being expressly recognized and agreed by all parties
hereto that any Guarantor's right of contribution arising pursuant to this
Section 17 against any other Guarantor shall be expressly junior and subordinate
to such other Guarantor's obligations and liabilities in respect of the
Guaranteed Obligations and any other obligations owing under this Guaranty. As
used in this Section 17: (i) each Guarantor's "Contribution Percentage" shall
mean the percentage obtained by dividing (x) the Adjusted Net Worth (as defined
below) of such Guarantor by (y) the aggregate Adjusted Net Worth of all
Guarantors; (ii) the "Adjusted Net Worth" of each Guarantor shall mean the
greater of (x) the Net Worth (as defined below) of such Guarantor and (y) zero;
and (iii) the "Net Worth" of each Guarantor shall mean the amount by which the
fair saleable value of such Guarantor's assets on the date of any Relevant
Payment exceeds its existing debts and other liabilities (including contingent
liabilities, but without giving effect to any Guaranteed Obligations arising
under this Guaranty, any Subsidiaries Guaranty or any guaranteed obligations
arising under any guaranty of the Senior Notes) on such date. Notwithstanding
anything to the contrary contained above, any Guarantor that is released from
this Guaranty pursuant to Section 16 hereof shall thereafter have no
contribution obligations, or rights, pursuant to this Section 17, and at the
time of any such release, if the released Guarantor had an Aggregate Excess
Amount or an Aggregate Deficit Amount, same shall be deemed
Page 11
reduced to $0, and the contribution rights and obligations of the remaining
Guarantors shall be recalculated on the respective date of release (as otherwise
provided above) based on the payments made hereunder by the remaining
Guarantors. All parties hereto recognize and agree that, except for any right of
contribution arising pursuant to this Section 17, each Guarantor who makes any
payment in respect of the Guaranteed Obligations shall have no right of
contribution or subrogation against any other Guarantor in respect of such
payment until all of the Guaranteed Obligations (other than indemnities to the
extent not then due and payable) have been paid in full in cash. Each of the
Guarantors recognizes and acknowledges that the rights to contribution arising
hereunder shall constitute an asset in favor of the party entitled to such
contribution. In this connection, each Guarantor has the right to waive its
contribution right against any Guarantor to the extent that after giving effect
to such waiver such Guarantor would remain solvent.
18. LIMITATION ON GUARANTEED OBLIGATIONS. Each Guarantor and the
Collateral Trustee (and each Eurobond Creditor by its acceptance of the benefits
of this Guaranty) hereby confirms that it is its intention that this Guaranty
not constitute a fraudulent transfer or conveyance for purposes of the
Bankruptcy Code, the Uniform Fraudulent Conveyance Act of any similar Federal or
state law. To effectuate the foregoing intention, each Guarantor and the
Collateral Trustee (and each Eurobond Creditor by its acceptance of the benefits
of this Guaranty) hereby irrevocably agrees that the Guaranteed Obligations
guaranteed by such Guarantor shall be limited to such amount as will, after
giving effect to such maximum amount and all other (contingent or otherwise)
liabilities of such Guarantor that are relevant under such laws (it being
understood that it is the intention of the parties to this Guaranty and the
parties to any guaranty of the Senior Notes that, to the maximum extent
permitted under applicable laws, the liabilities in respect of the guarantees of
the Senior Notes shall not be included for the foregoing purposes and that, if
any reduction is required to the amount guaranteed by any Guarantor hereunder
and with respect to the Senior Notes that its guarantee of amounts owing in
respect of the Senior Notes shall first be reduced) and after giving effect to
any rights to contribution pursuant to any agreement providing for an equitable
contribution among such Guarantor and the other Guarantors, result in the
Guaranteed Obligations of such Guarantor in respect of such maximum amount not
constituting a fraudulent transfer or conveyance. In addition, each Guarantor
organized under the laws of England and Wales and the Collateral Trustee (and
each Eurobond Creditor by its acceptance of the benefits of this Guaranty)
hereby irrevocably agrees that the Guaranteed Obligations guaranteed by any such
Guarantor shall not apply to any liability to the extent that it would result in
this Guaranty constituting unlawful financial assistance within the meaning of
Section 151 of the Companies ▇▇▇ ▇▇▇▇.
19. COUNTERPARTS. This Guaranty may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Issuer and the
Collateral Trustee.
20. PAYMENTS. All payments made by any Guarantor hereunder will be
made without setoff, counterclaim or other defense and on the same basis as
payments are made by the Borrower under Sections 4.03 and 4.04 of the Credit
Agreement.
Page 12
21. ADDITIONAL GUARANTORS. It is understood and agreed that any
Subsidiary of the Issuer that is required to execute a counterpart of this
Guaranty after the date hereof pursuant to the Credit Agreement shall become a
Guarantor hereunder by (x) executing and delivering a counterpart hereof to the
Collateral Trustee or (y) executing a joinder agreement in a form substantially
similar to Exhibit N under the Credit Agreement, with such modifications as the
Collateral Agent shall approve and delivering same to the Collateral Trustee, in
each case as may be requested by (and in form and substance satisfactory to) the
Collateral Trustee and shall, in connection therewith, take all actions as
specified in this Guaranty as would have been taken by such Guarantor had it
been an original party to this Guaranty, in each case with all documents and
actions required to be taken to be taken above, including to the reasonable
satisfaction of the Collateral Trustee.
22. HEADINGS DESCRIPTIVE. The headings of the several Sections of
this Guaranty are inserted for convenience only and shall not in any way affect
the meaning or construction of any provision of this Guaranty.
* * *
Page 13
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
INTELSAT (BERMUDA), LTD.,
as a Guarantor
By:______________________________________
Name:
Title:
INTELSAT HOLDINGS LLC,
as a Guarantor
By:______________________________________
Name:
Title:
INTELSAT LLC,
as a Guarantor
By:______________________________________
Name:
Title:
INTELSAT USA SALES CORP.,
as a Guarantor
By:______________________________________
Name:
Title:
INTELSAT USA LICENSE CORP.,
as a Guarantor
By:______________________________________
Name:
Title:
Page 14
INTELSAT GLOBAL SERVICE CORPORATION,
as a Guarantor
By:______________________________________
Name:
Title:
INTELSAT GLOBAL SALES & MARKETING LTD.,
as a Guarantor
By:______________________________________
Name:
Title:
Page 15
Accepted and Agreed to:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Collateral Trustee
By:______________________________________
Name:
Title:
TABLE OF CONTENTS
PAGE
1. GUARANTY.................................................................2
2. LIABILITY OF GUARANTORS ABSOLUTE.........................................2
3. OBLIGATIONS OF GUARANTORS INDEPENDENT....................................3
4. WAIVERS BY GUARANTORS....................................................3
5. RIGHTS OF COLLATERAL TRUSTEE AND EUROBOND CREDITORS .....................5
6. CONTINUING GUARANTY......................................................6
7. GUARANTY ENFORCEABLE BY COLLATERAL TRUSTEE OR COLLATERAL AGENT...........7
8. RESERVED.................................................................7
9. EXPENSES.................................................................7
10. BENEFIT AND BINDING EFFECT...............................................7
11. AMENDMENTS; WAIVERS......................................................7
12. SET OFF..................................................................8
13. NOTICE...................................................................8
14. REINSTATEMENT............................................................8
15. CONSENT TO JURISDICTION; SERVICE OF PROCESS; AND WAIVER OF TRIAL
BY JURY...............................................................8
16. RELEASE OF LIABILITY OF GUARANTOR UPON SALE OR DISSOLUTION...............9
17. CONTRIBUTION............................................................10
18. LIMITATION ON GUARANTEED OBLIGATIONS....................................11
19. COUNTERPARTS............................................................11
20. PAYMENTS................................................................11
21. ADDITIONAL GUARANTORS...................................................12
22. HEADINGS DESCRIPTIVE....................................................12