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EXHIBIT 10.4
EXECUTION COPY
AMENDED AND RESTATED COLLATERAL AGREEMENT
AMENDED AND RESTATED COLLATERAL AGREEMENT, dated as of November
17, 2000, made by LORAL SATELLITE, INC., a Delaware corporation (together with
its permitted successors and assigns, "Loral Satellite," and together with any
Person that may become a party hereto, individually a "Grantor"; collectively,
the "Grantors"), in favor of BANK OF AMERICA, NATIONAL ASSOCIATION, as
collateral agent (in such capacity, the "Collateral Agent") under the Amended
and Restated Collateral Agency Agreement, dated as of November 17, 2000 (the
"Collateral Agency Agreement"), for the several lenders (the "Lenders") from
time to time parties to the Credit Agreement, dated as of November 17, 2000 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Loral Satellite, the Lenders and Bank of America, National
Association ("Bank of America"), as administrative agent for the Lenders (in
such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, each of Loral SatCom, Ltd., a Bermuda company
("SatCom"), and Loral Satellite are parties to the Guarantee and Collateral
Agreement, dated as of August 5, 1999 (as amended, supplemented or otherwise
modified from time to time, the "Existing Guarantee and Collateral Agreement")
in favor of Bank of America, National Association, as collateral agent for the
several lenders from time to time parties to the Credit Agreement, dated as of
August 5, 1999 (as amended, supplemented or otherwise modified from time to
time, the "Globalstar Credit Agreement"), among Globalstar, L.P., a Delaware
limited partnership (together with its successors and assigns, "Globalstar"),
the lenders parties thereto and Bank of America, as administrative agent;
WHEREAS, each of the lenders to the Globalstar Credit Agreement
wishes to sell, assign and transfer to Loral Satellite, and Loral Satellite
wishes to purchase from the lenders, all of the rights, obligations and
commitments of the lenders under the Globalstar Credit Agreement (the
"Assignment"), subject to the terms and conditions of the Assignment Amendment
and Release Agreement, dated as of November 17, 2000 (the "Assignment
Agreement"), among the lenders parties to the Globalstar Credit Agreement, Loral
Satellite, SatCom, Loral Space & Communications Ltd., a Bermuda company
(together with its successors and assigns, "Loral"), Loral Space and
Communications Corporation (together with its successors and assigns, "LSCC"),
Globalstar and Bank of America, as administrative agent;
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WHEREAS, in connection with the Assignment, all of the assets of
SatCom will be acquired by the Assignee (with SatCom to be liquidated) (the
"Reorganization");
WHEREAS, as consideration for the Assignment, Loral Satellite
(upon consummation of the Reorganization) will enter into the Credit Agreement
pursuant to which Loral Satellite will, on the Effective Date, undertake the
obligations of the borrower thereunder and, without limiting the foregoing, to
repay loans outstanding thereunder in an aggregate principal amount of
$500,000,000 (such amount being equal to the aggregate principal amount of loans
outstanding under the Globalstar Credit Agreement) in accordance with the terms
thereof; and
WHEREAS, it is a condition precedent to the effectiveness of the
Assignment Agreement and to the obligation of the Lenders to make their
respective Loans to the Borrower under the Credit Agreement that the Grantors
shall have executed and delivered this Agreement to the Administrative Agent for
the ratable benefit of the Lenders pursuant to which the collateral which
previously secured the Existing Guarantee and Collateral Agreement will secure
the Grantors' obligations in respect of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent and the Lenders to enter into the Assignment Agreement
and to induce the Lenders to make their respective Loans to the Borrower under
the Credit Agreement, each Grantor hereby agrees with the Collateral Agent, for
the ratable benefit of the Lenders, as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement and the following terms are used herein as defined
in the New York UCC: Accounts, Equipment and General Intangibles. As used
herein, the following terms shall have the following meanings:
"Agreement": this Collateral Agreement, as may be amended,
supplemented or otherwise modified from time to time.
"Collateral Pool": as defined in Section 2 hereof.
"Globalstar Collateral": the collective reference to the
Globalstar Credit Agreement and all General Intangibles related thereto.
"Secured Obligations": (a) as to Loral Satellite, the Obligations
and (b) as to any other Grantor, its obligations under the Subsidiary Guarantee.
"Secured Parties": the collective reference to the Administrative
Agent, the Collateral Agent, the Lenders and their respective successors,
indorsees, transferees and assigns.
(b) 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 and
paragraph references are to this Agreement unless otherwise specified.
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(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(d) For purposes of this Agreement, the term "Lender" shall
include any Affiliate of a lender which has entered into a Hedge Agreement with
the Borrower if such Hedge Agreement is designated by the Borrower as a Hedge
Agreement for purposes of this Agreement and the term "Loan Document" shall
include any such Hedge Agreement.
2. Collateral. (a) Each of the Grantors hereby assigns and
transfers to the Collateral Agent, and hereby grants to the Collateral Agent,
for the ratable benefit of the Secured Parties, a security interest in, all of
the following property now owned or at any time hereafter acquired by such
Grantor or in which such Grantor now has or at any time in the future may
acquire any right, title or interest (collectively, the "Collateral Pool"), as
collateral security for the prompt and complete payment and performance when due
(whether at the stated maturity, by acceleration or otherwise) of the Secured
Obligations:
(i) Telstar 6, Telstar 7 and any Replacement Satellite;
(ii) the Availability Agreements, the TT&C Agreement and all
other agreements entered into pursuant to subsection 5.16 of the
Credit Agreement;
(iii) to the extent permitted by applicable law, the FCC
Licenses;
(iv) all transponder lease agreements to which such Grantor is
a party (including, without limitation, all Master Lease
Agreements);
(v) the Intercompany Notes;
(vi) the Loral Satellite Collateral Account and any other
collateral account established pursuant to the Collateral Agency
Agreement;
(vii) the Telstar 6 Transponder Transfer Agreement and the
Telstar 7 Transponder Transfer Agreement;
(viii) the Globalstar Collateral;
(ix) all Accounts, General Intangibles (including construction
and purchase contracts) and Equipment, in each case solely to the
extent relating to any other item in the Collateral Pool;
(x) all books and records pertaining to the Collateral Pool;
(xi) the Equity Interests of any Subsidiary of such Grantor;
and
(xii) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing (including, without
limitation, all Equity Interests in Globalstar received in
connection with any of the foregoing) and all collateral security
and guarantees given by any Person with respect to any of the
foregoing.
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(b) So long as no Default or Event of Default shall have occurred
and be continuing or would result therefrom, each Grantor shall be permitted to:
(i) remove any transponder on any Satellite from the Collateral Pool upon
delivery to the Collateral Agent of Acceptable Collateral, together with such
appraisals thereof as may be required by and be satisfactory to the
Administrative Agent and the Majority Lenders; (ii) remove up to 10 transponders
on the Satellites from the Collateral Pool; (iii) remove up to 15 additional
transponders from the Satellites to the extent such transponders are sold
pursuant to Section 6.5(vii) of the Credit Agreement; and (iv) remove additional
transponders from the Satellites (in addition to the 25 transponders permitted
under clauses (ii) and (iii) above) so long as the Grantors simultaneously
remove the Satellite on which such transponders are located, together with all
other transponders on such Satellite then owned by the Grantors, from the
Collateral Pool and such transponders and such Satellite are sold pursuant to
subsection 6.5(viii) of the Credit Agreement; in each case, provided that no
such removal shall be permitted (A) if, after giving effect thereto, the
Collateral Coverage Ratio, as computed after giving effect to such removal or
substitution, would be less than 1.20 to 1.00 and (B) in the case of a
substitution under clause (i) above only, unless the Acceptable Collateral is
subject to a fully perfected security interest in favor of the Collateral Agent
pursuant to this Agreement, and provided further that for purposes of
determining compliance with clause (A) above and subsection 5.15 of the Credit
Agreement, the Appraised Value of any Satellite shall be immediately reduced by
the proceeds received from any such sale of any transponders on such Satellite.
(c) So long as no Default or Event of Default shall have occurred
and be continuing or would result therefrom, the Grantors shall be permitted to
make cash withdrawals from the Loral Satellite Collateral Account or any other
collateral account maintained by the Grantors in connection with the Agreement,
provided, that the Grantors shall not be permitted to withdraw amounts deposited
therein pursuant to subsection 5.12 or subsection 5.13 of the Credit Agreement.
(d) The Grantors may sell or otherwise dispose of the Globalstar
Collateral to the extent permitted under subsection 6.5 of the Credit Agreement.
3. Authority of Collateral Agent. Each Grantor acknowledges that
the rights and responsibilities of the Collateral Agent under this Agreement
with respect to any action taken by the Collateral Agent or the exercise or
non-exercise by the Collateral Agent of any option, right, request, judgment or
other right or remedy provided for herein or resulting or arising out of this
Agreement shall, as between the Collateral Agent and the Lenders, be governed by
the Collateral Agency Agreement and the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Collateral Agent and such Grantor, the Collateral Agent shall be
conclusively presumed to be acting as agent for the Secured Parties with full
and valid authority so to act or refrain from acting, and such Grantor shall not
be under any obligation, or entitlement, to make any inquiry respecting such
authority.
4. Notices. All notices, requests and demands to or upon the
Collateral Agent, any Lender or any Grantor to be effective shall be in writing
(or by telex, fax or similar electronic transfer confirmed in writing) and shall
be deemed to have been duly given or made when delivered by hand or if given by
mail, when deposited in the mails by certified mail, return receipt requested,
or if by telex, fax or similar electronic transfer, when sent and receipt has
been confirmed, addressed as follows:
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(a) if to any Lender, at its address or transmission number for
notices provided in Section 9.2 of the Credit Agreement;
(b) if to the Collateral Agent, at its address or transmission
number for notices provided on the signature pages of the Collateral Agency
Agreement; and
(c) if to any Grantor, at its address or transmission number for
notices set forth under its signature below.
The Collateral Agent, each Lender and each Grantor may change its
address and transmission numbers for notices by notice in the manner provided in
this Section.
5. 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.
6. Integration. This Guarantee and the other Loan Documents
represent the agreement of the Loan Parties, the Collateral Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Collateral Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
7. Amendments in Writing; No Waiver; Cumulative Remedies. (a)
Subject to subsection 9.1 of the Credit Agreement, none of the terms or
provisions of this Agreement may be waived, amended, supplemented or otherwise
modified except by a written instrument executed by the Grantors and the
Collateral Agent.
(b) Neither the Collateral Agent nor any Lender shall by any act
(except by a written instrument pursuant to Section 7(a) hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default or in any
breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Collateral Agent or any Lender, any
right, power or privilege hereunder shall operate as a waiver thereof. No single
or partial exercise of any right, power or privilege hereunder shall preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. A waiver by the Collateral Agent or any Lender of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Collateral Agent or such Lender would otherwise have
on any future occasion.
(c) The rights and remedies herein provided are cumulative, may
be exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
8. Section Headings. The section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
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9. Successors and Assigns. This Agreement shall be binding upon
the successors and assigns of each Grantor and shall inure to the benefit of the
Collateral Agent and the Lenders and their successors and assigns. No Grantor
may transfer any of its rights or obligations under this Agreement without the
written consent of each Lender.
10. Governing Law. This Agreement shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
11. Submission To Jurisdiction; Waivers. Each Grantor hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgement 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 such
Grantor at its address set forth under its signature below or at such other
address of which the Administrative 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 sue 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 subsection any special, exemplary, punitive or consequential damages.
12. Acknowledgments. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents;
(b) neither the Collateral Agent nor any Lender has any fiduciary
relationship with or duty to any Loan Party arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
the Collateral Agent and Lenders, on one hand, and the Loan Parties, on the
other hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Loan Parties and the Lenders.
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13. WAIVERS OF JURY TRIAL. EACH GRANTOR, THE COLLATERAL AGENT AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.
14. Regulatory Approvals. (a) Any provision contained herein to
the contrary notwithstanding, except for the security interests expressly
granted herein or therein or upon the exercise by the Collateral Agent of rights
and remedies in accordance herewith or therewith and pursuant to clause (b)
below upon the occurrence and continuation of an Event of Default, this
Agreement, the other Loan Documents and the transactions contemplated hereby and
thereby (i) do not and will not constitute, create, or have the effect of
constituting or creating, directly or indirectly, actual or practical ownership
of any Loan Parties by the Secured Parties, or control, affirmative or negative,
direct or indirect, by the Secured Parties over the management or any other
aspect of the operation of any Grantor, which ownership and control remain
exclusively and at all times in such Grantor and (ii) do not and will not
constitute the transfer, assignment, or disposition in any manner, voluntarily
or involuntarily, directly or indirectly, of any license, permit, certificate or
authorization at any time issued to any Grantor by the FCC, any other federal,
state or local regulatory or governmental bodies applicable to or having
jurisdiction over the relevant Loan Party or any other Governmental Authority,
or the transfer of control of any such Grantor within the meaning of the Federal
Communications Act of 1934, as amended, and the respective rules and regulations
thereunder and thereof, any other federal or state laws, rules and regulations
of other operating municipality regulatory or governmental bodies applicable to
or having jurisdiction over any Grantor as well as pursuant to the terms of any
franchise, license or similar operating right held by such Grantor.
(b) Any provision contained herein to the contrary
notwithstanding, no action, including any foreclosure on, sale, transfer or
other disposition of, or the exercise of any right to vote or consent, shall be
taken hereunder by the Collateral Agent with respect to any item of the
Collateral unless and until all applicable requirements (if any) of the FCC
under the Federal Communications Act of 1934, as amended, and the respective
rules and regulations thereunder and thereof, as well as any other federal or
state laws, rules and regulations of other operating municipality regulatory or
governmental bodies applicable to or having jurisdiction over any Grantor, have
been satisfied with respect to such action and there have been obtained such
consents, approvals and authorizations (if any) as may be required to be
obtained from the FCC, any operating municipality and any other Governmental
Authority under the terms of any franchise, license or similar operating right
held by such Grantor. It is the intention of the parties hereto that the Liens
in favor of the Collateral Agent on the Collateral shall in all relevant aspects
be subject to and governed by said statutes, rules and regulations as well as
the terms of any franchise, license or similar operating right held by any
Grantor and that nothing in this Agreement shall be construed to diminish the
control exercised by such Grantor except in accordance with the provisions of
such statutory requirements and rules and regulations as well as the terms of
any franchise, license or similar operating right held by such Grantor and the
obtaining in advance of any necessary consents, approvals or authorizations
pursuant thereto. Each Grantor agrees that upon request by the Collateral Agent
from time to time after which a Notice of Default is in effect, it will use its
reasonable best efforts to obtain any governmental, regulatory or third party
consents, approvals or authorizations referred to in this Section 14.
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IN WITNESS WHEREOF, the undersigned has caused this Guarantee to
be duly executed and delivered by its duly authorized officer as of the day and
year first above written.
LORAL SATELLITE, INC.
By: /s/ Janet T. Yeung
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Name: Janet T. Yeung
Title: Vice President and
Assistant Secretary
Address for Notices:
c/o Loral SpaceCom Corporation
600 Third Avenue
Attn: General Counsel and Treasurer
New York, New York 10016
Telex:
Fax:
BANK OF AMERICA, NATIONAL
ASSOCIATION, as Collateral Agent
By: /s/ Steve Aronowitz
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Name: Steve Aronowitz
Title: Managing Director
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Annex 1 to
Collateral Agreement
ASSUMPTION AGREEMENT, dated as of ________________, 2000, made by
______________________________, a ______________ corporation (the "Additional
Grantor"), in favor of ____________________, as collateral agent (in such
capacity, the "Collateral Agent") for the banks and other financial institutions
(the "Lenders") parties to the Credit Agreement referred to below. All
capitalized terms not defined herein shall have the meaning ascribed to them in
such Credit Agreement.
W I T N E S S E T H :
WHEREAS, Loral Satellite, Inc. (the "Borrower"), the Lenders and
Bank of America, National Association, as Administrative Agent for the Lenders,
have entered into a Credit Agreement, dated as of November __, 2000 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement");
WHEREAS, in connection with the Credit Agreement, the Borrower
(other than the Additional Grantor) has entered into the Amended and Restated
Collateral Agreement, dated as of November __, 2000 (as amended, supplemented or
otherwise modified from time to time, the "Collateral Agreement") in favor of
the Collateral Agent for the benefit of the Lenders;
WHEREAS, the Credit Agreement requires the Additional Grantor to
become a party to the Collateral Agreement; and
WHEREAS, the Additional Grantor has agreed to execute and deliver
this Assumption Agreement in order to become a party to the Collateral
Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Collateral Agreement. By executing and delivering this
Assumption Agreement, the Additional Grantor, as provided in subsection 5.17 of
the Credit Agreement, hereby becomes a party to the Collateral Agreement as a
Grantor thereunder with the same force and effect as if originally named therein
as a Grantor and, without limiting the generality of the foregoing, hereby
expressly assumes all obligations and liabilities of a Grantor thereunder. The
Additional Grantor hereby represents and warrants that each of the
representations and warranties contained in Section 3 of the Credit Agreement is
true and correct as to it on and as the date hereof (after giving effect to this
Assumption Agreement) as if made on and as of such date.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
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IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GRANTOR]
By:
--------------------------------
Name:
Title:
