<PAGE> 1
EXECUTION COPY
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LORAL SATELLITE, INC.
---------------------------------
$500,000,000
CREDIT AGREEMENT
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November 17, 2000
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BANK OF AMERICA, NATIONAL
ASSOCIATION,
as Administrative Agent
BANK OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
CREDIT LYONNAIS NEW YORK BRANCH,
as Syndication Agent
LEHMAN COMMERCIAL PAPER, INC.,
as Documentation Agent
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TABLE OF CONTENTS
<TABLE>
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PAGE
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SECTION 1. DEFINITIONS...............................................................................................1
1.1 Defined Terms.............................................................................................1
1.2 Other Definitional Provisions............................................................................18
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS..........................................................................19
2.1 Term Commitments.........................................................................................19
2.2 Procedure for Initial Term Loan Interest Election........................................................19
2.3 Repayment of Term Loans..................................................................................19
2.4 Revolving Credit Commitments.............................................................................19
2.5 Procedure for Revolving Credit Borrowing.................................................................20
2.6 Repayment of Loans; Evidence of Debt.....................................................................20
2.7 Commitment Fees..........................................................................................22
2.8 Optional Termination or Reduction of Commitments.........................................................22
2.9 Optional and Mandatory Prepayments; Mandatory Commitment Reductions......................................22
2.10 Conversion and Continuation Options......................................................................24
2.11 Minimum Amounts of Eurodollar Tranches...................................................................25
2.12 Interest Rates and Payment Dates.........................................................................25
2.13 Computation of Interest and Fees.........................................................................26
2.14 Inability to Determine Interest Rate.....................................................................26
2.15 Pro Rata Treatment and Payments..........................................................................27
2.16 Illegality...............................................................................................28
2.17 Other Costs; Increased Costs.............................................................................28
2.18 Taxes....................................................................................................30
2.19 Indemnity................................................................................................31
2.20 Purpose..................................................................................................32
SECTION 3. REPRESENTATIONS AND WARRANTIES...........................................................................32
3.1 Financial Condition......................................................................................32
3.2 No Change................................................................................................32
3.3 Existence; Compliance with Law...........................................................................32
3.4 Corporate Power; Authorization; Enforceable Obligations..................................................33
3.5 No Legal Bar.............................................................................................33
3.6 No Material Litigation...................................................................................33
3.7 No Default...............................................................................................33
3.8 Ownership of Property; Liens.............................................................................33
3.9 Taxes....................................................................................................34
3.10 Federal Regulations......................................................................................34
3.11 ERISA....................................................................................................34
3.12 Investment Company Act; Other Regulations................................................................34
3.13 Subsidiaries.............................................................................................35
3.14 Environmental Matters....................................................................................35
3.15 Full Disclosure..........................................................................................35
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<TABLE>
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3.16 Chief Executive Office...................................................................................36
3.17 Equipment, Ground Stations and Satellite Construction Sites..............................................36
3.18 Satellite Orbit..........................................................................................36
3.19 Loral SatCom Ltd.........................................................................................36
SECTION 4. CONDITIONS PRECEDENT.....................................................................................36
4.1 Conditions to all Loans..................................................................................36
SECTION 5. AFFIRMATIVE COVENANTS....................................................................................36
5.1 Financial Statements.....................................................................................37
5.2 Certificates; Other Information..........................................................................37
5.3 Payment of Obligations...................................................................................38
5.4 Conduct of Business and Maintenance of Existence.........................................................38
5.5 Maintenance of Property; Insurance.......................................................................38
5.6 Inspection of Property; Books and Records; Discussions...................................................39
5.7 Notices..................................................................................................39
5.8 Environmental Laws.......................................................................................40
5.9 Appraisals...............................................................................................40
5.10 Cash Collateral Accounts.................................................................................40
5.11 Payments under Intercompany Notes........................................................................41
5.12 In Orbit Failures........................................................................................41
5.13 Launch Failures..........................................................................................41
5.14 Preservation of Separate Corporate Existence of the Borrower.............................................42
5.15 Collateral Coverage Ratio................................................................................42
5.16 Transponders Lease Agreements............................................................................43
5.17 New Subsidiaries; Further Security and Guarantees........................................................43
SECTION 6. NEGATIVE COVENANTS.......................................................................................43
6.1 Maintenance of Consolidated Net Worth....................................................................43
6.2 Indebtedness.............................................................................................45
6.3 Limitation on Liens......................................................................................45
6.4 Limitation on Fundamental Changes........................................................................45
6.5 Limitation on Sale of Assets.............................................................................45
6.6 Limitation on Restricted Payments........................................................................46
6.7 Limitation on Investments and Capital Expenditures.......................................................47
6.8 Affiliates...............................................................................................47
6.9 Negative Pledge Clauses..................................................................................48
6.10 Changes in Fiscal Periods................................................................................48
6.11 Lines of Business........................................................................................48
6.12 Dividend and Other Payment Restrictions Affecting Subsidiaries...........................................48
6.13 Amendments to Certain Documents..........................................................................49
6.14 Loss Payee...............................................................................................49
6.15 Changes in Locations.....................................................................................49
6.16 Optional Payments and Modifications of Subordinated Debt.................................................50
6.17 Loral SatCom Ltd.........................................................................................50
SECTION 7. EVENTS OF DEFAULT........................................................................................50
</TABLE>
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<TABLE>
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SECTION 8. THE ADMINISTRATIVE AGENT.................................................................................52
8.1 Appointment..............................................................................................52
8.2 Delegation of Duties.....................................................................................53
8.3 Exculpatory Provisions...................................................................................53
8.4 Reliance by the Administrative Agent.....................................................................53
8.5 Notice of Default........................................................................................54
8.6 Non-Reliance on the Administrative Agent and Other Lenders...............................................54
8.7 Indemnification..........................................................................................54
8.8 The Administrative Agent in Its Individual Capacity......................................................55
8.9 Successor Administrative Agent...........................................................................55
8.10 Syndication Agent........................................................................................55
SECTION 9. MISCELLANEOUS............................................................................................56
9.1 Amendments and Waivers...................................................................................56
9.2 Notices..................................................................................................56
9.3 No Waiver; Cumulative Remedies...........................................................................57
9.4 Survival of Representations and Warranties...............................................................58
9.5 Payment of Expenses and Taxes............................................................................58
9.6 Successors and Assigns; Participations; Purchasing Lenders...............................................58
9.7 Adjustments; Set-off.....................................................................................61
9.8 Severability.............................................................................................62
9.9 Counterparts.............................................................................................62
9.10 GOVERNING LAW............................................................................................62
9.11 Submission To Jurisdiction; Waivers......................................................................62
9.12 WAIVERS OF JURY TRIAL....................................................................................62
9.13 Integration..............................................................................................63
9.14 Confidentiality..........................................................................................63
</TABLE>
<TABLE>
<CAPTION>
Schedules:
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SCHEDULE I Notices
SCHEDULE 1.1(a) - Commitments
SCHEDULE 3.4 - Consents
SCHEDULE 3.16 - Chief Executive Office
SCHEDULE 3.17 - Locations of Equipment, Ground Stations and Satellite Construction Sites
SCHEDULE 6.2(a) - Indebtedness
SCHEDULE 6.8 - Transactions with Affiliates
Exhibits:
EXHIBIT A -1 - Form of Revolving Note
EXHIBIT A-2 - Form of Term Note
EXHIBIT B-1- - Form of Opinion of Willkie Farr & Gallagher
EXHIBIT B-2- - Form of Opinion of General Counsel of the Parent and Borrower
EXHIBIT B-3- - Form of Opinion of Bermuda Counsel
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<TABLE>
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EXHIBIT B-4- - Form of Opinion of Pennsylvania Counsel
EXHIBIT C-1- - Form of Closing Certificate - Borrower
EXHIBIT C-2- - Form of Closing Certificate - Other Loan Parties
EXHIBIT D - - Form of Commitment Transfer Supplement
EXHIBIT E - - Form of Loral Guarantee
EXHIBIT F - - Form of Subsidiary Guarantee
EXHIBIT G - - Form of Amended and Restated Collateral Agency Agreement
EXHIBIT H - - Form of Exemption Certificate
EXHIBIT I - - Form of Amended and Restated LSCC Pledge Agreement
EXHIBIT J - - Form of Amended and Restated Cash Collateral Agreement
EXHIBIT K - - Form of Master Lease Agreement
EXHIBIT L - - Form of Availability Agreement
EXHIBIT M - - Form of Amended and Restated Termination Agreement
EXHIBIT N - - Form of TT&C Agreement
EXHIBIT O - - Form of Amended and Restated Collateral Agreement
EXHIBIT P - - Form of Intercompany Note
</TABLE>
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CREDIT AGREEMENT, dated as of November 17, 2000 among LORAL
SATELLITE, INC., a Delaware corporation (the "Borrower"), the several banks and
other financial institutions or entities from time to time parties to this
Agreement (collectively, the "Lenders"; individually, a "Lender"), and BANK OF
AMERICA, NATIONAL ASSOCIATION, a national banking association ("Bank of
America"), as administrative agent for the Lenders hereunder (in such capacity,
the "Administrative Agent"), Bank of America Securities LLC, as sole lead
arranger and sole book manager, Credit Lyonnais New York Branch, as syndication
agent, and Lehman Commercial Paper, Inc. as documentation agent.
W I T N E S S E T H :
WHEREAS, the Borrower, the Lenders and the Administrative Agent
are parties to the Assignment, Amendment and Release Agreement, dated as of
November 17, 2000 (the "Assignment Agreement"), among the Borrower, the Lenders,
Loral SatCom Ltd., a Bermuda company ("SatCom"), Loral Space & Communications
Ltd., a Bermuda company (together with its successors and assigns, "Loral"),
Loral Space & Communications Corporation, a Delaware corporation (together with
its successors and assigns, "LSCC"), Globalstar, L.P., a Delaware limited
partnership (together with its successors and assigns, "Globalstar"), and the
Administrative Agent, pursuant to which the Lenders have agreed, subject to the
terms and conditions set forth therein, to assign to the Borrower their rights
under the Credit Agreement, dated as of August 5, 1999 (as amended, the
"Globalstar Credit Agreement"), among Globalstar, the Lenders and Bank of
America, as administrative agent, and as consideration therefor, the Borrower
has agreed to enter into this Agreement and to repay Term Loans and Revolving
Loans in an aggregate principal amount of $500,000,000 deemed to be incurred
under this Agreement on the Effective Date in accordance with the terms hereof;
and
WHEREAS, it is a condition precedent to the effectiveness of the
Assignment Agreement that this Agreement shall have been executed and delivered
by the Borrower, the Lenders and the Administrative Agent;
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": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to the greater of (a) the
Reference Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. For purposes hereof:
"Reference Rate" shall mean the rate of interest per annum publicly
announced from time to time by Bank of America as its reference rate (the
Reference Rate not being intended to be the lowest rate of interest
charged by Bank of America in connection with extensions of credit to
debtors); and "Federal Funds Effective Rate" shall mean, for any
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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 Federal Funds Effective Rate,
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) of the
first sentence of this definition until the circumstances giving rise to
such inability no longer exist. Any change in the ABR due to a change in
the Reference 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
Reference Rate or the Federal Funds Effective Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which is
based upon the ABR.
"Acceptable Collateral": assets of the Borrower which are
acceptable to the Administrative Agent and all the Lenders in their sole
discretion.
"Accepting Term Lenders": as defined in subsection 2.9(f).
"Additional Globalstar Loans": as defined in subsection 2.9(b).
"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 Credit Agreement, as amended, supplemented or
modified from time to time.
"Applicable Margin": for each Type of Loan, the rate per annum set
forth under the relevant column heading below:
<TABLE>
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ABR Loans Eurodollar Loans
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Revolving Loans 2.25% 3.25%
Term Loans 2.75% 3.75%
</TABLE>
"Appraised Value": as to any Satellite, the value of such
Satellite as determined from time to time by an Approved Appraiser. The
Appraised Value of any Satellite determined after the Effective Date
shall be determined using the same valuation methods
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employed by an Approved Appraiser prior to the Effective Date, unless
otherwise agreed by the Administrative Agent.
"Approved Appraiser": Ascent, The Communications Center or any
qualified third party appraiser reasonably acceptable to the
Administrative Agent.
"Arranger": Banc of America Securities LLC, in its capacity as
arranger of the Commitments.
"Ascent": Ascent Communications, Inc.
"Assignment Agreement": as defined in the recitals to this
Agreement.
"Attributable Debt": with respect to a Sale and Leaseback
Transaction, at the time of determination thereof, the present value of
the obligation of the lessee for net rental payments during the remaining
term of the lease included in such Sale and Leaseback Transaction
including any period for which such lease has been extended or may, at
the option of the lessor, be extended. Such present value shall be
calculated using a discount rate equal to the rate of interest implicit
in such transaction, determined in accordance with GAAP.
"Availability Agreements": the collective reference to (a) the
Availability Agreement, dated as of August 5, 1999, between the Borrower
as successor to SatCom, the Borrower and Loral SpaceCom with respect to
Telstar 6 (including the related FCC Licenses) and the Satellites, and
(b) the Availability Agreement, dated as of November 2, 1999, between the
Borrower as successor to SatCom, the Borrower and Loral SpaceCom with
respect to Telstar 7 (including the related FCC Licenses), in each case
as the same may be amended, supplemented or otherwise modified from time
to time.
"Available Revolving Commitment": as to any Revolving Lender, at
any time, an amount equal to the excess, if any, of (a) such Lender's
Revolving Commitment then in effect over (b) the aggregate principal
amount of such Lender's Revolving Loans then outstanding; collectively,
as to all such Lenders, the "Available Revolving Commitments".
"Bank of America": Bank of America, National Association, a
national banking association.
"Before Launch Appraised Value": as to any Satellite at any time,
the higher of $350,000,000 or, in the event that such Satellite is then
being constructed or the construction thereof has been completed, the
Appraised Value thereof at such time.
"Board of Directors": the board of directors of Loral.
"Borrowing Date": any day specified by the Borrower in a notice
pursuant to subsection 2.5 as a date on which the Borrower requests the
Lenders to make Loans hereunder.
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"Business Day": a day other than a Saturday, Sunday or other day
on which commercial banks in New York City or San Francisco are
authorized or required by law to close.
"Cash Collateral": cash and/or Collateral Cash Equivalents held in
the Loral Satellite Collateral Account pursuant to this Agreement.
"Cash Collateral Agreement": the Amended and Restated Cash
Collateral Agreement to be executed and delivered by the Borrower,
substantially in the form of Exhibit J, as the same may be amended,
supplemented or otherwise modified from time to time.
"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 Lender 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 Lender 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 Moody's 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 Moody's and A or the equivalent
thereof by S&P, (vi) money market mutual funds, (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 Moody's 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, (viii) money market funds at least 95% of the assets
of which constitute Cash Equivalents of the kinds described in (i)
through (vii) above, and (ix) the Merrill Lynch Mercury Institutional
Liquidity Fund PLC, and other funds with substantially similar investment
policies as in effect on the date hereof.
"Change of Control": an event or series of events as a result of
which (i) any "person" (as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"))
is or becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act) of shares entitling the holder thereof to cast
more than 35% of the votes for the election of directors of Loral, (ii)
at any time, Continuing Directors do not constitute a majority of the
Board of Directors, or (iii) at any time, Loral shall cease, directly or
indirectly, to own all of the outstanding capital stock of the Borrower.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
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"Collateral": all assets and property, now owned or hereafter
acquired, upon which a Lien is purported to be created by any Security
Document.
"Collateral Agency Agreement": the Amended and Restated Collateral
Agency Agreement to be executed and delivered by the Collateral Agent,
the Administrative Agent, the Borrower and LSCC, substantially in the
form of Exhibit G, as the same may be amended, supplemented or otherwise
modified from time to time.
"Collateral Agent": Bank of America, in its capacity as collateral
agent under this Agreement and the Collateral Agency Agreement.
"Collateral Agreement": the Amended and Restated Collateral
Agreement to be executed and delivered by the Borrower, substantially in
the term of Exhibit O, as the same may be amended, supplemented or
otherwise modified from time to time.
"Collateral Cash Equivalents": Cash Equivalents having a maturity
of one year or less at the time of acquisition thereof.
"Collateral Coverage Ratio": at any time, the ratio of (a) the
Collateral Pool Value at such time to (b) the difference between (i) the
aggregate principal amount of Loans then outstanding and (ii) the amount
of Cash Collateral on the aggregate sum of balances (consisting of cash
and Collateral Cash Equivalents) on deposit in the Loral Satellite
Collateral Account.
"Collateral Pool": as defined in the Collateral Agreement.
"Collateral Pool Value": at any time, the sum of, without
duplication, 90% of (i) the Appraised Value of any Orbiting Satellites,
and (ii) in the event that (A) the Borrower has the right to construct a
Replacement Satellite pursuant to subsection 5.12 and is constructing or
has notified the Administrative Agent that it intends to so construct, a
Replacement Satellite, (B) the Borrower has entered into or has notified
the Administrative Agent that it intends to enter into a Satellite
Contract with respect thereto, and (C) no Event of Default has occurred
in respect of subsection 5.12, the Before Launch Appraised Value of such
Replacement Satellite, in each case at the time of such determination;
provided that the Appraised Value of any Orbiting Satellite shall be
included in the Collateral Pool Value only if all of the outstanding
Equity Interests of the owner of the transponders (other than those
permitted to be transferred pursuant to subsection 6.5) on such Orbiting
Satellite are pledged to the Collateral Agent as security for the
Obligations pursuant to the Security Documents.
"Commitment": as to any Lender, the Revolving Commitment and/or
the Term Commitment of such Lender; collectively, as to all the Lenders,
the "Commitments".
"Commitment Fee": as defined in subsection 2.7.
"Commitment Percentage": as to any Lender, (a) at any time prior
to the termination of the Revolving Commitments, the percentage which (i)
the sum (A) of such Lender's Revolving Commitment at such time, if any,
plus (B) the aggregate outstanding
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principal amount of such Lender's Term Loans then constitutes of (ii) the
sum of (A) the Revolving Commitments of all the Lenders at such time plus
(B) the aggregate principal amount of Term Loans of all the Lenders then
outstanding and (b) at any time after the termination of the Revolving
Commitments, the percentage which (i) the aggregate outstanding principal
amount of such Lender's Loans then constitutes of (ii) the aggregate
outstanding principal amount of the Loans of all the Lenders.
"Commitment Transfer Supplement": a Commitment Transfer
Supplement, substantially in the form of Exhibit D.
"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": 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; provided, that any loss
relating to the occurrence of a Launch Failure, a Partial Failure or an
In-Orbit Failure of a Satellite shall be deemed extraordinary.
"Consolidated Net Income": for any period, the net income of the
Borrower and its Subsidiaries, for such period, as determined on a
consolidated basis in accordance with GAAP for such period.
"Consolidated Net Worth": at any date, all amounts that would in
conformity with GAAP, be included on a consolidated balance sheet of the
Borrower and its consolidated Subsidiaries under the stockholders' equity
plus the outstanding amount of Subordinated Debt at such date. In
computing Consolidated Net Worth, the principal amount of loans
outstanding under the Globalstar Credit Agreement shall be valued at par,
and any assignment or sale of any such loans (other than to a subsidiary)
shall be disregarded and treated as if such assignment or sale had not
occurred.
"Constructive Failure": with respect to any Satellite, the
occurrence of any event or circumstance (other than a Launch Failure or a
Total Failure) which results in the payment of amounts under the
insurance for such Satellite as if a Total Failure had occurred.
"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
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<PAGE> 12
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.
"Continuing Director": the directors of Loral on the Effective
Date and each other director, if, in each case, such other director's
nomination for election to the Board of Directors is recommended by at
least a majority of the then Continuing Directors.
"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 7, whether or
not any requirement for the giving of notice, the lapse of time, or both,
or any other condition, has been satisfied.
"Disposition": with respect to any property, any sale, lease, sale
and leaseback, assignment, conveyance, transfer or other disposition
thereof. The terms "Dispose" and "Disposed of" shall have correlative
meanings.
"Dollars" and "$": dollars in lawful currency of the United States
of America.
"Domestic Lending Office": initially, the office of each Lender
designated as such in Schedule 1.1(a); thereafter, such other office of
such Lender, if any, located within the United States which shall be
making or maintaining ABR Loans.
"Domestic Subsidiary": any Subsidiary organized under the laws of
the United States or any State thereof.
"Effective Date": as defined in the Assignment Agreement.
"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.
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"Equipment": all "equipment" as such term is defined in the New
York UCC on the date hereof.
"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 Business Day": any Business Day on which dealings in
foreign currencies and exchange between banks may be carried on in
London, England.
"Eurodollar Cash Collateral": as defined in subsection 2.9(h).
"Eurodollar Cash Collateral Account": as defined in subsection
2.9(h).
"Eurodollar Lending Office": initially, the office of each Lender
designated as such in Schedule 1.1(a); thereafter, such other office of
such Lender, 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 Screen 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
Screen (or otherwise on such service), the "Eurodollar Rate" shall be the
rate per annum equal to the rate at which Bank of America 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.
"Eurodollar Tranche": the collective reference to Eurodollar Loans
under a particular Facility the then current 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).
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<PAGE> 14
"Event of Default": any of the events specified in Section 7;
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.
"Excess Insurance Proceeds": as to any Satellite, (a) the excess
of the amount of insurance proceeds received as a result of an In-Orbit
Failure of such Satellite over the then replacement cost of such
Satellite, provided that such excess proceeds shall not constitute Excess
Insurance Proceeds unless the cost of the incremental increase in
premiums for insurance policies resulting in such excess proceeds shall
have been financed (whether at the time of purchase of such insurance or
thereafter) by equity proceeds contributed by Loral and (b) to the extent
that, following the occurrence of an In-Orbit Failure of such Satellite
and prior to the receipt of insurance proceeds in respect thereof, Loral
shall have made cash equity contributions to the Borrower to finance the
construction of a Replacement Satellite pursuant to subsection 5.12(a),
the excess of the amount of insurance proceeds received as a result of
such In-Orbit Failure over the remaining construction cost of such
Replacement Satellite (but in no event greater than the amount of such
equity contributions).
"Exchange Act": the Securities and Exchange Act of 1934, as
amended.
"Facility": each of (a) the Term Commitments and the Term Loans
made thereunder (the "Term Facility"), and (b) the Revolving Commitments
and the Revolving Loans made thereunder (the "Revolving Facility").
"FCC": the Federal Communications Commission.
"FCC Licenses": all licenses issued by the Federal Communications
Commission with respect to any Satellite.
"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 and
unearned orbital incentives) 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, provided that for
purposes of preparation of the
9
<PAGE> 15
financial statements to be delivered pursuant to subsection 5.1, "GAAP"
shall mean generally accepted accounting principles in the United States
in effect from time to time.
"Globalstar": as defined in the recitals to this Agreement.
"Globalstar Credit Agreement": as defined in the recitals to this
Agreement.
"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.
"Ground Stations": the collective reference to the ground control
stations with respect to any Satellite.
"Guarantees": the collective reference to the Loral Guarantee and
the Subsidiary Guarantees.
"Guarantor": any Person delivering a Guarantee pursuant to this
Agreement.
"Guarantor Obligations": as to any Guarantor, all obligations of
such Guarantor under this Guarantee and the other Loan Documents.
"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.
"Hedge Agreement": an interest rate swap, cap or collar agreement
or similar arrangement dealing with interest rates or currency exchange
rates or the exchange of nominal interest obligations, either generally
or under specific contingencies.
"Indebtedness": of a Person, at a particular date, the sum
(without duplication) at such date of (a) Funded Debt of such Person, (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 liabilities (excluding
Liens permitted under subsection 6.3) 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.
"In-Orbit Failure": with respect to any Satellite, the occurrence
of a Total Failure or a Constructive Failure with respect to such
Satellite.
"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 subsection 3.9.
"Intercompany Notes": any intercompany note evidencing
intercompany loans made by the Borrower to Loral or to LSCC,
substantially in the form of Exhibit P hereto.
10
<PAGE> 16
"Interest Payment Date": (a) as to any ABR Loan, the last Business
Day of each March, June, September and December to occur while such Loan
is outstanding and the final maturity date of such Loan 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 Business 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:
(1) (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;
(2) the Borrower may not select an Interest
Period for Loans under a particular Facility that would extend
beyond the Revolving Termination Date, in the case of Revolving
Loans, or beyond the date final payment is due on the Term Loans,
in the case of Term Loans; and
(3) 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.
"Investment": as to any Person, 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 other Person.
"Launch Failure": with respect to any Satellite, any launch
thereof which does not result in a Successful Launch of such Satellite.
11
<PAGE> 17
"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 and any Financing Lease having
substantially the same economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Assignment Agreement, any
Notes, the Guarantees, the LSCC Pledge Agreement, the Collateral
Agreement, the Collateral Agency Agreement, the Intercompany Notes and
the Cash Collateral Agreement.
"Loan Parties": the collective reference to the Borrower, each
Subsidiary of the Borrower which is a party to a Loan Document, Loral and
LSCC.
"Loral": as defined in the recitals to this Agreement.
"Loral Guarantee": the Guarantee to be executed and delivered by
Loral, substantially in the form of Exhibit E, as the same may be
amended, supplemented or otherwise modified from time to time.
"Loral Satellite Collateral Account": as defined in Section 5.10.
"Loral SpaceCom": Loral SpaceCom Corporation, a Delaware
corporation and its successors and assigns.
"LSCC": as defined in the recitals to this Agreement.
"LSCC Pledge Agreement": the Amended and Restated Pledge Agreement
to be executed and delivered by LSCC, substantially in the form of
Exhibit I, as the same may be amended, supplemented or otherwise modified
from time to time.
"Majority Facility Lenders": with respect to any Facility, the
holders of more than 50% of the aggregate unpaid principal amount of the
Loans outstanding under such Facility (or, in the case of the Revolving
Facility, prior to the termination of the Revolving Commitments, the
holders of more than 50% of the Revolving Commitments).
"Majority Lenders": at any date, Lenders whose Commitment
Percentages aggregate more than 50%.
"Mandatory Prepayment Date": as defined in subsection 2.9(f).
"Master Lease Agreement": as defined in subsection 5.16.
"Material Adverse Effect": a material adverse effect on (a) the
business, assets, property or condition (financial or otherwise) of the
Borrower and its Subsidiaries, taken as a whole, or Loral and its
Subsidiaries, taken as a whole, (b) the ability of the Borrower or any
Guarantor to perform its obligations under this Agreement, the Guarantee
or any
12
<PAGE> 18
other Loan Document or (c) the validity or enforceability of any of the
Loan Documents or the material rights or remedies of the Administrative
Agent, the Collateral Agent or the Lenders hereunder or thereunder. For
purposes of the foregoing, changes in the business, assets, property or
condition (financial or otherwise) of Globalstar or its Subsidiaries
shall not be considered in determining whether a Material Adverse Effect
has occurred.
"Moody's": Moody's Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"New York UCC": the Uniform Commercial Code as from time to time
in effect in the State of New York.
"Net Cash Proceeds": (a) with respect to any Indebtedness, the
gross cash proceeds from the incurrence, issuance or sale by the Borrower
or any Subsidiary of such 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 and (b) with respect to any asset sale, the gross
proceeds thereof in the form of cash and Cash Equivalents (including any
such proceeds received by way of purchase price adjustment receivable or
otherwise, but only as and when received) of such asset sale, net of
attorneys' fees, accountants' fees, investment banking fees, and other
customary fees and expenses actually incurred in connection therewith and
net of taxes paid or reasonably estimated to be payable as a result
thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements).
"Non-U.S. Lender": as defined in subsection 2.18(b).
"Notes": the collective reference to the Revolving Notes and Term
Notes.
"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 Lenders (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, any Hedge Agreement entered into with a
Lender or an Affiliate of a Lender (to the extent that the Borrower and
such Lender or such Affiliate of such Lender agree to include such Hedge
Agreement in the definition of "Obligations") 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
13
<PAGE> 19
Administrative Agent or to the Lenders that are required to be paid by
the Borrower pursuant to the terms of this Agreement or any other Loan
Document).
"Orbiting Satellite": at any time, any Satellite which has
experienced a Successful Launch and has not suffered an In-Orbit Failure.
"Partial Failure": with respect to any Satellite, the occurrence
of a loss of capacity of any transponders on such Satellite to the extent
such loss does not result in an In-Orbit Failure of such Satellite.
"Participants": as defined in subsection 9.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, limited
liability company, 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.
"Prepayment Amount": as defined in subsection 2.9(f).
"Prepayment Option Notice": as defined in subsection 2.9(f).
"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code in effect in the State of New
York on the date hereof.
"Properties": as defined in subsection 3.14.
"Purchasing Lenders": as defined in subsection 9.6(c).
"Register": as defined in subsection 9.6(d).
"Related Fund": with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Reorganization": at any particular time, the condition that a
Multiemployer Plan is in reorganization within the meaning of Section
4241 of ERISA.
"Replacement Satellite": any Satellite constructed or purchased
pursuant to a Satellite Contract pursuant to subsection 5.12 as a result
of an In-Orbit Failure of any Orbiting Satellite.
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<PAGE> 20
"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 .27, .28,
.29, .30, .31, .32, .34 or .35 of PBGC Reg. Section 4043.
"Required Lenders": at any date, Lenders whose Commitment
Percentages aggregate not less than 66-2/3%.
"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.
"Responsible Officer": the Chairman, the President or any Vice
President of the Borrower.
"Restricted Payments": as defined in subsection 6.6.
"Revolving Commitment": as to any Lender, the obligation of such
Lender, if any, to make Revolving Loans in an aggregate principal amount
not to exceed the amount set forth under the heading "Revolving
Commitment" opposite such Lender's name on Schedule 1.1(a) or in the
Commitment Transfer Supplement pursuant to which such Lender became a
party hereto, as the same may be changed from time to time pursuant to
the terms hereof. The original amount of the Total Revolving Commitments
is $200,000,000.
"Revolving Commitment Period": the period from and including the
Effective Date to the Revolving Termination Date.
"Revolving Lender": each Lender that has a Revolving Commitment or
that holds Revolving Loans.
"Revolving Loans": as defined in subsection 2.3(a).
"Revolving Note": as defined in subsection 2.6.
"Revolving Percentage": as to any Revolving Lender at any time,
the percentage which (a) such Lender's Revolving Commitment then
constitutes of (b) the Total Revolving Commitments (or, at any time after
the Revolving Commitments shall have expired or terminated, the
percentage which (i) the aggregate principal amount of such Lender's
Revolving Loans then outstanding then constitutes of (ii) the aggregate
principal amount of the Revolving Loans of all the Revolving Lenders then
outstanding).
"Revolving Termination Date": August 15, 2003, or such earlier
date on which the Revolving Commitments may terminate in accordance with
the terms of this Agreement.
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<PAGE> 21
"S&P": Standard & Poor's Ratings Group.
"Sale and Leaseback Transaction": an arrangement relating to
property now owned or hereafter acquired whereby the Borrower or a
Subsidiary transfers such property to a Person and the Borrower or a
Subsidiary leases it from such Person.
"SatCom": as defined in the recitals to this Agreement.
"Satellite": Telstar 6, Telstar 7 or Telstar R.
"Satellite Contract": any contract entered into between the
Borrower and SS/L or a third party pursuant to subsection 5.12 with
respect to the construction or purchase of a Replacement Satellite the
material terms of which shall be reasonably acceptable to the
Administrative Agent.
"Secured Parties": as defined in the Collateral Agreement.
"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 Collateral Agent granting a Lien on any asset
or assets of any Person to directly or indirectly secure any the
Obligations or to secure any guarantee of any such obligations and
liabilities.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA but which is not a Multiemployer Plan.
"SS/L": Space Systems/Loral, Inc., a Delaware corporation and its
successors and assigns.
"Subordinated Debt": any unsecured Indebtedness of the Borrower to
Loral and its Subsidiaries (other than the Borrower and its
Subsidiaries), 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 earlier of (a) the
repayment in full of the Obligations and the termination of all
Commitments or (b) August 15, 2007, the terms and conditions of which
(including any subordination provisions) are satisfactory to the
Administrative Agent and the Majority Lenders.
"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 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.
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<PAGE> 22
"Subsidiary Guarantee": the Guarantee to be executed and delivered
by each Subsidiary 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.
"Successful Launch": with respect to any Satellite, the successful
launch and placement of such Satellite into proper geosynchronous orbit
at a predetermined longitudinal location as certified by a Responsible
Officer.
"Telstar 6": the satellite (and all transponders located thereon)
constructed pursuant to the Satellite Contract Number LLJ108E, dated as
of October 5, 1995, between Loral SpaceCom and SS/L with respect to the
construction of Telstar 6.
"Telstar 6 Transponder Transfer Agreement": Asset Purchase
Agreement dated as of October 1, 1997 by and between Loral Spacecom and
Loral Skynet Ltd., as the same may be amended supplemented or otherwise
modified from time to time.
"Telstar 7": the satellite (and all transponders located thereon)
constructed pursuant to the Telstar 7 Satellite Construction Contract.
"Telstar 7 Satellite Construction Contract": Satellite
Construction Contract Number LLJ1098E, dated as of October 5, 1995,
between Loral SpaceCom and Space Systems/Loral, Inc. with respect to the
construction of Telstar 7, as the same may be amended, supplemented or
otherwise modified in accordance with subsection 6.16.
"Telstar 7 Transponder Transfer Agreement": Telstar 7 Transponder
Purchase Agreement dated as of October 1, 1997 by and between Loral
Spacecom and Loral Skynet Ltd., as the same may be amended supplemented
or otherwise modified from time to time.
"Telstar R": a Replacement Satellite constructed pursuant to a
Satellite Contract entered into pursuant to subsection 5.12 or purchased
as a result of an In-Orbit Failure of an Orbiting Satellite.
"Term Commitment": as to any Lender, the amount set forth under
the heading "Term Commitment" opposite such Lender's name on Schedule
1.1(a). The original aggregate amount of the Term Commitments is
$300,000,000.
"Term Lender": each Lender that has a Term Commitment or that
holds a Term Loan.
"Term Loan": as defined in subsection 2.1.
"Term Note": as defined in subsection 2.6.
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<PAGE> 23
"Term Percentage": as to any Lender at any time, the percentage
which (i) the aggregate principal amount of such Lender's Term Loans then
outstanding constitutes of (ii) the aggregate principal amount of the
Term Loans of all the Term Lenders then outstanding.
"The Communications Center": The Communications Center with
offices located at 2723 Green Valley Road, Clarksburg, Maryland 20871.
"Total Failure": as to any Satellite, the complete loss,
destruction or failure of such Satellite or the occurrence of or any
other event or circumstance as a result of which such Satellite or all of
the transponders on such Satellite are no longer available for their
intended use or such Satellite ceases to be in its proper geosynchronous
orbit.
"Total Revolving Commitments": at any time, the aggregate amount
of the Revolving Commitments then in effect.
"Transfer Effective Date": as defined in each Commitment Transfer
Supplement.
"Transferees": as defined in subsection 9.6(f).
"TT&C Agreement": the collective reference to the Amended and
Restated Agreement, effective as of August 5, 1999, between SatCom and
Loral SpaceCom and the Amended and Restated Agreement, effective as of
November 2, 1999 between SatCom and Loral SpaceCom, each covering
professional services related to Telstar 6 and Telstar 7, as each may be
amended, supplemented or otherwise modified from time to time.
"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. (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
subsection 1.1 and accounting terms partly defined in subsection 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 subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
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<PAGE> 24
(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 Term Commitments. Subject to the terms and conditions
hereof, on the Effective Date, each Term Lender shall be deemed to have made a
term loan (each a "Term Loan") to the Borrower in an amount equal to the amount
of the Term Commitment of such Lender. The Term Loans may from time to time be
Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with subsections 2.2 and 2.10.
2.2 Procedure for Initial Term Loan Interest Election. All Term
Loans shall initially be Eurodollar Loans, and the initial Interest Period
therefor shall be one month. The Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 11:00 A.M. New York City time, at least three Eurodollar Business Days
prior to the Effective Date) of the occurrence of the Effective Date (which must
be a Eurodollar Business Day).
2.3 Repayment of Term Loans. The Term Loan of each Term Lender
shall mature in 5 installments on the dates set forth below (or such earlier
date or dates on which the Term Loans become due and payable pursuant to
subsection 2.9 or Section 7), commencing on January 15, 2001, each of which
shall be in an amount equal to such Lender's Term Percentage multiplied by the
amount set forth below opposite such installment date:
<TABLE>
<CAPTION>
Installment Date Dollar Amount
<S> <C>
January 15, 2001 $ 3,000,000
June 30, 2001 3,000,000
June 30, 2002 45,000,000
March 31, 2003 75,000,000
August 15, 2003 174,000,000
</TABLE>
2.4 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Revolving Lender severally agrees to make revolving
credit loans (the "Revolving Loans") to the Borrower from time to time during
the Revolving Commitment Period in an aggregate principal amount at any one time
outstanding not to exceed such Lender's Revolving Commitment. During the
Revolving Commitment Period, the Borrower may use the Revolving Commitments by
borrowing, prepaying and reborrowing the Revolving Loans in whole or in part,
and reborrowing all in accordance with the terms and conditions hereof. On the
Effective Date, each Revolving Lender shall be deemed to have made Revolving
Loans in an aggregate amount equal to such Lender's Revolving Commitment.
(b) The Revolving 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 subsections
2.5 and 2.10; provided, that no Revolving
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<PAGE> 25
Loan shall be made as a Eurodollar Loan after the day that is one month prior to
the Revolving Termination Date.
2.5 Procedure for Revolving Credit Borrowing. All Revolving
Loans shall initially be Eurodollar Loans, and the Initial Interest Period
therefor shall be one month. The Borrower may borrow under the Revolving
Commitments during the Revolving Commitment Period on any Eurodollar Business
Day, if all or any part of the requested Revolving 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 11:00 A.M., New York City time)
(a) with respect to any of the requested Revolving Loans that are to be
initially Eurodollar Loans, three Eurodollar Business Days prior to the
requested Borrowing Date (or, in the case of Revolving Loans deemed outstanding
on the Effective Date, the Effective Date) or (b) with respect to any of the
requested Revolving 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 Revolving Loan
and the respective lengths of the initial Interest Periods therefor. Each
borrowing under the Revolving Commitments after the Effective Date shall be in
an amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess
thereof or in the remaining amount of the Available Revolving Commitments. Upon
receipt of any such notice from the Borrower, the Administrative Agent shall
promptly notify each Revolving Lender thereof. Each Revolving Lender will make
the amount of its pro rata share of each borrowing after the Effective Date
available to the Administrative Agent for the account of the Borrower at the
office of the Administrative Agent specified in subsection 9.2 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 Revolving Lenders
and in like funds as received by the Administrative Agent.
2.6 Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of (i) the Term Lenders, the principal amount of the Term Loans in
accordance with subsection 2.3 and (ii) the Revolving Lenders the then unpaid
principal amount of the Revolving Loans of the Borrower on the Revolving
Termination Date (or such earlier date or dates on which the Revolving Loans
become due and payable pursuant to subsection 2.9 or Section 7). 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 2.12.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
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(c) The Administrative Agent shall maintain the Register
pursuant to subsection 9.6(d), and a subaccount therein for each Lender, in
which shall be recorded (i) the amount of each Loan made or deemed 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 Lender 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 Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 2.6(b) shall, to the extent permitted
by applicable law, be prima facie 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 Lender 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 Lender in accordance with the
terms of this Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Revolving Lender or Term Lender, the Borrower will
(i) in the case of a Revolving Lender, execute and deliver to such Lender a
promissory note of the Borrower evidencing the Revolving Loans of such Lender,
substantially in the form of Exhibit A-1 with appropriate insertions as to date
and principal amount (a "Revolving Note"), and (ii) in the case of a Term
Lender, execute and deliver to such Lender a promissory note of the Borrower
evidencing the Term Loan of such Lender, substantially in the form of Exhibit
A-2 with appropriate insertions as to date and principal amount (a "Term Note").
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2.7 Commitment Fees. The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee
(the "Commitment Fee") for the period from and including the Effective Date to
but not including the last day of the Revolving Commitment Period computed at a
rate per annum equal to 1.25% on the average daily amount of the Available
Revolving Commitment of such Lender 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 last day of the Revolving Commitment Period, commencing on
the first of such dates to occur after the date hereof.
2.8 Optional Termination or Reduction 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
Lenders), to terminate the Commitments or, from time to time, to reduce the
amount of the Revolving Commitments, provided, that no such termination or
reduction of Revolving commitments shall be permitted if, after giving effect
thereto and to any payments or prepayments of the Revolving Loans made on the
effective date thereof, the aggregate principal amount of the Revolving Loans
then outstanding would exceed the aggregate Revolving Commitments then in
effect. Any such reduction shall be in a minimum amount equal to $5,000,000 or a
whole multiple of $1,000,000 in excess thereof and shall reduce permanently the
Revolving Commitments then in effect.
(b) The Revolving Commitments shall also automatically reduce
as provided in subsection 2.9(c).
2.9 Optional and Mandatory Prepayments; Mandatory Commitment
Reductions. (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 irrevocable notice
to the Administrative Agent by 11:00 A.M. New York City time on the date of any
prepayment 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 Lender 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. Optional prepayments of Term Loans shall be applied
to the installments thereof in the scheduled order of maturity. Partial
prepayments shall be in a minimum principal amount of $5,000,000 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 subsections 2.11 and 2.19.
(b) The Term Loans shall be prepaid, and the Commitments shall
be automatically reduced, by an amount equal to 100% of the proceeds of any
repayment or prepayment of the principal of any loans outstanding under the
Globalstar Credit Agreement or Additional Globalstar Loans and 100% of the gross
cash proceeds of any assignment of loans under the Globalstar Credit Agreement
pursuant to subsection 6.5(vi); provided, that no such prepayment or reduction
shall be required as a result of any repayment or prepayment of loans under the
Globalstar Credit Agreement or Additional Globalstar Loans until the day which
is 90 days after such repayment or prepayment and then only to the extent the
proceeds of such
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repayment or prepayment have not been used during such period to make additional
loans ("Additional Globalstar Loans") to Globalstar or to purchase additional
direct or indirect Equity Interests in Globalstar.
(c) The Term Loans shall be prepaid, and the Commitments shall be
automatically reduced, by an amount equal to 100% of the insurance proceeds
received as a result of any In-Orbit failure for which the insurance proceeds
are required to be deposited in the Loral Satellite Collateral Account pursuant
to subsection 5.12(b). Notwithstanding anything to the contrary contained in
subsection 2.9, the prepayment or reduction in accordance with this subsection
2.9(c) shall be made on the first Business Day following the receipt of the
insurance proceeds. In accordance with the terms of the Collateral Agency
Agreement and the Cash Collateral Agreement, the Collateral Agent shall be
permitted to make withdrawals from the Loral Satellite Collateral Account to
satisfy the prepayment required by this subsection 2.9(c).
(d) The Term Loans shall be prepaid, and the Commitments shall be
automatically reduced, by an amount equal to 100% of the Net Cash Proceeds
received as a result of any sale of a transponder on any Satellite or any
Satellite removed from the Collateral Pool pursuant to Section 2(b)(iii) or
Section 2(b)(iv) of the Collateral Agreement and sold pursuant to subsection 6.5
(vii) or subsection 6.5(viii), respectively.
(e) Prepayment of Term Loans and reductions of Commitments
pursuant to this subsection shall be made in the following order, first, to
prepay Term Loans and, second, to reduce the Revolving Commitments. Any such
prepayment of the Term Loans shall be applied ratably to the remaining
installments thereof.
(f) Notwithstanding anything to the contrary in subsection 2.9(e)
or 2.15, with respect to the amount of any mandatory prepayment described
therein that is allocated to the then outstanding Term Loans (such amount, the
"Prepayment Amount"), the Administrative Agent shall promptly provide to each
Term Lender a notice (each a "Prepayment Option Notice") as described below.
Each Prepayment Option Notice shall be in writing, shall refer to this
subsection 2.9(f) and shall (i) set forth the Prepayment Amount and the portion
thereof that the applicable Term Lender will be entitled to receive if it
accepts such mandatory prepayment in accordance with this subsection 2.9(f),
(ii) state that the Borrower is offering to prepay on a specified date (each a
"Mandatory Prepayment Date"), which shall be not less than 5 days or more than
15 days after the date of the Prepayment Option Notice, the Term Loans of such
Term Lender in an amount equal to the portion of the Prepayment Amount indicated
in such Term Lender's Prepayment Option Notice as being applicable to such Term
Lender, (iii) request such Term Lender to notify the Borrower and the
Administrative Agent in writing, no later than the second day prior to the
Mandatory Prepayment Date, of such Term Lender's acceptance or rejection of such
offer of prepayment and (iv) inform such Term Lender that failure by such Term
Lender to accept or reject such offer in writing on or before the second day
prior to the Mandatory Prepayment Date shall be deemed an acceptance of such
prepayment offer. Each Prepayment Option Notice shall be given by telecopy,
confirmed by hand delivery, overnight courier service or registered or certified
mail, in each case addressed as provided in subsection 9.2. On the Mandatory
Prepayment Date, the Borrower shall pay the Administrative Agent in immediately
available funds the aggregate amount necessary to prepay the portion of the
Prepayment Amount in respect of which the Term Lenders have accepted prepayment
as
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described above (such Term Lenders, the "Accepting Term Lenders"), and the
Administrative Agent shall apply such amount on behalf of the Borrower pro rata
against the remaining installments of principal due in respect of the Term Loans
of the Accepting Term Lenders. The Prepayment Amount remaining after the payment
of the amount described in the immediately preceding sentence shall be allocated
as follows: first, to prepay Term Loans of the Accepting Term Lenders and,
second, to reduce the Revolving Commitments.
(g) If at any time the aggregate principal amount of Revolving
Loans then outstanding shall exceed the Revolving Commitments, the Borrower
shall immediately prepay the Revolving Loans in an amount equal to such excess.
(h) Amounts payable pursuant to this subsection 2.9 shall be
applied, first, to prepay any relevant ABR Loans then outstanding and second, to
prepay or cash collateralize (at the Borrower's option) any relevant 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 subsection 2.9
shall be accompanied by accrued interest on the amount prepaid and any amounts
payable pursuant to subsection 2.19. The Borrower shall cash collateralize
Eurodollar Loans pursuant to this subsection 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 equal to the
principal amount of such Eurodollar Loans. Such deposited monies shall be held
by the Administrative Agent as cash collateral (the "Eurodollar Cash
Collateral") for the relevant 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 if, and to the extent, such ABR Loans are
owed to the Lenders for whose benefit such Eurodollar Cash Collateral is being
maintained 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 the
relevant 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 decreases in value with respect to the Eurodollar
Cash Collateral, other than those occurring as a result of its gross negligence
or willful misconduct.
2.10 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
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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 affected
Lender 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 Majority Lenders, except such notice
shall not be required in the case of the Event of Default described in clause
(f) of Section 7) has occurred and is continuing, (ii) any such conversion may
only be made if, after giving effect thereto, subsection 2.11 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 final maturity date of such Loan.
(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 subsection 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 Majority
Lenders, except such notice shall not be required in the case of an Event of
Default described in clause (f) of Section 7) has occurred and is continuing,
(ii) if, after giving effect thereto, subsection 2.11 would be contravened or
(iii) after the date that is one month prior to the final maturity date of such
Loan; 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.
2.11 Minimum Amounts of Eurodollar 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 Eurodollar Tranche shall be equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) with
respect to each Facility, there shall be no more than ten different Eurodollar
Tranches with respect to each Facility outstanding at any one time.
2.12 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 plus the Applicable Margin.
(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
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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 subsection 2.12 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 subsection 2.12
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
subsection 2.12 shall be payable on demand, or, in the absence of demand, weekly
on Friday of each week.
2.13 Computation of Interest and Fees. (a) Interest on Loans and
fees (other than interest calculated on the basis of the Reference 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 Reference 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 affected Lenders 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 affected Lenders 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 Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower
or any relevant Lender, deliver to the Borrower or such Lender, as the case may
be, a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to subsection 2.12(a).
2.14 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 Majority Facility Lenders in respect of the relevant Facility that the
Eurodollar Rate determined or to be determined for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (as conclusively
certified in writing by such Lenders) 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 Lenders 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
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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.
2.15 Pro Rata Treatment and Payments. (a) Each borrowing by the
Borrower from the Lenders hereunder, each payment by the Borrower on account of
any commitment fee and any reduction of the Commitments of the Lenders shall be
made pro rata according to the respective Term Percentages or Revolving
Percentages, as the case may be, of the relevant Lenders. 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 relevant Loans then held by the relevant
Lenders except as otherwise provided in subsection 2.9(f).
(b) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff 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 relevant Lenders, at the Administrative Agent's
office specified in subsection 9.2, in Dollars and in immediately available
funds. The Administrative Agent shall distribute such payments to the relevant
Lenders promptly upon receipt in like funds as received. If any payment
hereunder (other than 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. If any payment on a Eurodollar Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding 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 Business Day. In the case of
any extension of any payment of principal pursuant to the preceding two
sentences, interest thereon shall be payable at the then applicable rate during
such extension.
(c) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a Borrowing Date that such Lender 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 Lender 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 Lender 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
Lender'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 Lender'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 Lender with
respect to any amounts owing under this
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subsection 2.15(c) shall be conclusive in the absence of manifest error. If such
Lender's portion of such borrowing is not in fact made available to the
Administrative Agent by such Lender 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 Lender shall indemnify the Borrower for the difference, if any,
between the aggregate interest paid by the Borrower to the Administrative Agent
in accordance with the immediately preceding sentence less the aggregate
interest which actually accrued on such amount prior to its return to the
Administrative Agent.
2.16 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 Lender to make or maintain Eurodollar
Loans as contemplated by this Agreement, (a) the commitment of such Lender
hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert ABR Loans to Eurodollar Loans shall forthwith be cancelled and (b) such
Lender'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 Lender such amounts, if any, as may be
required pursuant to subsection 2.19.
2.17 Other Costs; Increased Costs. (a) The Borrower agrees to
pay to each Lender which requests compensation under this subsection 2.17(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
Lender, so long as such Lender 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 Lender 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 Lender
which includes any Eurodollar Loans), an additional amount (determined by such
Lender and promptly notified to the Borrower) representing such Lender's
calculation or, if an accurate calculation is impracticable, reasonable estimate
(using such reasonable means of allocation as such Lender shall determine) of
the actual costs, if any, incurred by such Lender 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 Lender 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
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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 Lender 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:
(i) shall subject any Lender 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 Lender in respect thereof (except for taxes
covered by subsection 2.18 and changes in the rate of tax on the
overall net income of such Lender);
(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 Lender which
is not otherwise described in subsection 2.17(a); or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender 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 Lender within 15
Business Days following demand therefor any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable. If
any Lender becomes entitled to claim any additional amounts pursuant to this
subsection 2.17(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 Lender 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 Lender or any
corporation controlling such Lender 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 Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such change or compliance
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then from time to time, after prompt submission by such Lender to the Borrower
(with a copy to the Administrative Agent) of a written request therefor, the
Borrower shall pay to
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such Lender within 15 Business Days following demand therefor such additional
amount or amounts as will compensate such Lender or such corporation for such
reduction.
(d) A certificate as to any additional amounts payable pursuant
to this subsection 2.17 submitted by the relevant Lender, through the
Administrative Agent, to the Borrower shall be conclusive in the absence of
manifest error. The covenants contained in this subsection 2.17 shall survive
the termination of this Agreement and the payment of the Notes and all other
amounts payable hereunder. Any notice to be given by a Lender under this
subsection 2.17 after termination of this Agreement shall be effective only if
given within 120 days after such Lender becomes aware or should have become
aware of the events giving rise to such notice.
2.18 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 Lender, (i) net
income taxes, franchise taxes and branch profit taxes (imposed in lieu of net
income taxes) imposed on the Administrative Agent or such Lender, 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 Lender (excluding a connection arising solely from the
Administrative Agent or such Lender 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 Effective Date, solely as a result of or attributable to the
Administrative Agent or Lender (x) changing its designated lending office as of
the Effective 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 U.S. withholding taxes in effect on the Effective 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 Lender
hereunder or under the Notes, the amounts so payable to the Administrative Agent
or such Lender shall be increased to the extent necessary to yield to the
Administrative Agent or such Lender (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
Lender, 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 Lenders for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender to the United States or other
Governmental Authority as a result of any such failure. The agreements in this
subsection 2.18(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 Effective Date,
to such
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payments by the Borrower to the Administrative Agent or Lender, the
Administrative Agent or such Lender shall use its best efforts to make, fund and
maintain its Loans through another lending office of the Administrative Agent or
such Lender 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
Lender.
(b) Each Lender (or Transferee) that is not a U.S. person as
defined in Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall deliver
to the Borrower and the Administrative Agent (or, in the case of a Participant,
to the Lender from which the related participation shall have been purchased)
two copies of either U.S. Internal Revenue Service Form 1001 or Form 4224, or,
in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a statement substantially in the form of
Exhibit H and a Form W-8, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by the Borrower under this Agreement and the other Loan Documents.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this paragraph, a Non-U.S. Lender shall not be required to
deliver any form pursuant to this paragraph that such Non-U.S. Lender is not
legally able to deliver. In the event that the Borrower is required to pay any
Lender any additional amount or indemnify any Lender pursuant to subsection
2.18(a) (subject to the provisions of subsection 2.19) and no change in lending
office is made in accordance with the last sentence of subsection 2.18(a), after
the Borrower makes such payment, such Lender shall transfer, in accordance with
the procedures set forth in subsection 9.6(c), its Loans and Commitments to a
Lender selected by the Borrower with the approval of such transferee Lender and
the Administrative Agent (not to be unreasonably withheld).
2.19 Indemnity. The Borrower agrees to indemnify each Lender and
to hold each Lender harmless from any loss or expense which such Lender 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 subsection 2.14 or 2.15 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 (excluding lost profits)
arising from the reemployment of funds obtained by it or from fees payable to
terminate the deposits from which
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such funds were obtained. A certificate setting forth the computation of any
amount payable pursuant to the foregoing sentence submitted by a Lender, 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.
2.20 Purpose. The proceeds of the Loans shall be used by the
Borrower solely to finance the acquisition of the assignments under the
Assignment Agreement and for general corporate purposes.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders 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 Lender that:
3.1 Financial Condition. (i) The audited combined balance sheet
of the Borrower and SatCom as at December 31, 1999, and the related combined
statements of income and of cash flows for the fiscal year ended on such date,
reported on by and accompanied by an unqualified report from Deloitte & Touche,
LLP, (ii) the unaudited combined balance sheet of the Borrower and SatCom as at
June 30, 2000, and the related combined statements of income and of cash flows
for the fiscal quarter ended on such date, copies of which have heretofore been
furnished to each Lender, are complete and correct in all material respects and
present fairly the financial condition and combined results of operations and of
cash flows of the Borrower and SatCom as of such dates and for such periods
(subject, in the case of unaudited financial statements, to normal year-end
audit adjustments). All such financial statements have been prepared in
accordance with GAAP applied on a consistent basis (except, as disclosed in the
notes thereto or, in the case of unaudited financial statements, for the absence
of footnotes).
3.2 No Change. Since December 31, 1999, (a) there has been no
change in the business, assets, operations, 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, (b) no dividends or distributions
have been declared, paid or made upon any shares of capital stock of the
Borrower nor have any shares of capital stock of the Borrower been redeemed,
retired, purchased or otherwise acquired for value by the Borrower or any of its
Subsidiaries, except as otherwise permitted by subsection 6.6, and (c) the
Borrower or any of its Subsidiaries has not engaged in any business or incurred
any liabilities prior to or after the Effective Date, other than as relates to
its limited businesses as previously disclosed to the Administrative Agent or as
otherwise permitted by Section 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 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
corporation, and in good standing under the laws of each jurisdiction where its
ownership, lease
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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 Corporate Power; Authorization; Enforceable Obligations.
Each of the Borrower and its Subsidiaries has the corporate 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 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. Except as set forth on Schedule 3.4, no consent or authorization of,
filing with or other act by or in respect of any Governmental Authority is
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.
This Agreement has been, and each other Loan Document will be, duly executed and
delivered on behalf of each Loan Party party thereto. This Agreement constitutes
and each other Loan Document, when executed and delivered will constitute, a
legal, valid and binding obligation of each Loan Party 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 (other than the
Security Documents).
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 its 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 its
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
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property, and good title to all its other property, and none of such property is
subject to any Lien, except as permitted in subsection 6.3.
3.9 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.
3.10 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
Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of Federal Reserve Form U-1 referred to in said
Regulation U.
3.11 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 $1,000,000, 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.
3.12 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
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regulation under any Federal or State statute or regulation which limits its
ability to incur Indebtedness.
3.13 Subsidiaries. The Borrower has no Subsidiaries other than
SatCom as of the Effective Date.
3.14 Environmental Matters. Each of the representations and
warranties set forth in paragraphs (a) through (e) of this subsection 3.14 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.
(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.
3.15 Full Disclosure. All information (other than projections)
heretofore furnished by or on behalf of the Borrower to the Administrative Agent
or any Lender 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 Lender 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 Lender for purposes
of or in connection with this Agreement or any transaction contemplated hereby
is, and all such projections hereafter
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furnished by or on behalf of the Borrower to the Administrative Agent or any
Lender will be, prepared in good faith based upon reasonable assumptions. The
Borrower has disclosed to the Lenders in writing any and all facts which could
reasonably be expected to have a Material Adverse Effect.
3.16 Chief Executive Office. On the date hereof, the Borrower's
jurisdiction of organization and the location of such Borrower's chief executive
office in the United States are specified on Schedule 3.16.
3.17 Equipment, Ground Stations and Satellite Construction
Sites. (a) On the date hereof, the Equipment (other than mobile goods) is found
at the locations listed on Schedule 3.17 and the Ground Stations are found at
the locations listed on Schedule 3.17 and (b) the location of the construction
site of each Satellite is listed on Schedule 3.17.
3.18 Satellite Orbit. Telstar 6 and Telstar 7 were placed into
proper geosynchronous orbit at 93(0) West Longitude and 129(0) West Longitude,
respectively, and no Constructive Failure or Partial Failure in respect of
Telstar 6 or Telstar 7 has occurred.
3.19 Loral SatCom Ltd. On the Effective Date (after giving
effect to the transactions consummated on the Effective Date), SatCom does not
own any assets and does not conduct any business or operations (other than an
indemnity from the Borrower as to the obligations of SatCom assumed by the
Borrower in connection with the acquisition by the Borrower of all of the assets
of SatCom).
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to all Loans. The obligation of each Lender 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, in which
case they are true and correct as of such 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.
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 subsection 4.1 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 Lender or the
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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 the Administrative Agent:
(a) as soon as available, but in any event within 120 days
after the end of each fiscal year of the Borrower, a copy of (i) (A) the audited
Loral-only condensed financial statements of Loral on a stand alone basis and
(B) the audited consolidated financial statements for Loral and its consolidated
Subsidiaries, in each case, as at the end of such year and the related audited
statements of operations and cash flows, (ii) the audited consolidated financial
statements for Loral SpaceCom and its consolidated Subsidiaries as at the end of
such year and the related audited consolidated statements of operations and cash
flows and (iii) the audited consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such year and the related audited consolidated
statements of operations and cash flows of the Borrower and its Subsidiaries.
Each financial statement delivered pursuant to this subsection 5.1(a) shall to
the extent appropriate set forth in comparative form the figures for the
previous year and shall be reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope of the
audit, by independent certified public accountants of nationally recognized
standing; and
(b) as soon as available, but in any event not later than 60
days after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, (i) the unaudited consolidated financial statements for
Loral and its Subsidiaries as at the end of such quarter and the related
unaudited statements of operations and cash flows, (ii) the unaudited
consolidated financial statements for Loral SpaceCom and its consolidated
Subsidiaries as at the end of such quarter and the related unaudited
consolidated statements of operations and cash flows and (iii) the unaudited
consolidated balance sheet of the Borrower and its Subsidiaries as of the end of
such quarter and the related unaudited consolidated statements of operations and
cash flows of the Borrower and its Subsidiaries. Each financial statement
delivered pursuant to this subsection 5.1(b) shall to the extent appropriate set
forth in comparative form the figures for the previous year and shall be
reported on without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by independent certified
public accountants of nationally recognized standing;
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 the
Administrative Agent:
(a) concurrently with the delivery of the financial statements
referred to in subsection 5.1(a) above, a certificate of the independent
certified public accountants reporting on such financial statements stating that
in making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such certificate;
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(b) concurrently with the delivery of the financial statements
referred to in subsections 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 subsections 5.15 and 6.1;
(c) within five days after the same are sent, copies of all
periodic reports (other than reports on Form 8-K) which Loral sends to its
stockholders and, and within five days after the same are filed, copies of all
periodic reports (other than reports on Form 8-K) which Loral may make to, or
file with, the Securities and Exchange Commission or any successor or analogous
Governmental Authority;
(d) promptly, such additional financial and other information
as any Lender 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 judgments, Indebtedness
and Contingent Obligations, which shall be beyond the scope of this subsection
5.3) including, without limitation, taxes, 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 provided on
the books of the Borrower or its Subsidiaries, as the case may be.
5.4 Conduct of Business and Maintenance of Existence. Continue
to engage in the same business as now conducted by it and preserve, renew and
keep in full force and effect its corporate 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 judgments, Indebtedness and Contingent Obligations,
which shall be beyond the scope of this subsection 5.4) and material
Requirements of Law (except for Environmental Laws, which shall be governed by
subsection 5.8)), except as otherwise expressly permitted by this Agreement.
Notwithstanding anything to the contrary contained in this subsection 5.4, the
Lenders acknowledge that the liquidation of SatCom in connection with the
transactions contemplated hereby shall be permitted.
5.5 Maintenance of Property; Insurance. (a) Keep all property
useful and necessary in its business in good working order and condition;
maintain with financially sound and reputable insurance companies insurance on
all its property in at least such amounts and against at least such risks but
including in any event public liability, product liability and business
interruption as are usually insured against in the same general area by
companies engaged in the same or a similar business, as certified by a
Responsible Officer; and furnish to each Lender, upon written request, full
information as to the insurance carried.
(b) Without limiting the foregoing, maintain with financially
sound and reputable insurance companies commercial launch insurance on Telstar R
and in-orbit insurance
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with respect to each Orbiting Satellite for an amount equal to at least each
such Satellite's replacement cost, as certified by a Responsible Officer. All
such insurance shall provide that no cancellation, material reduction in amount
or material change in coverage thereof shall be effective until at least 30 days
after receipt by the Collateral Agent of written notice thereof.
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, permit
representatives of any Lender 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 officers and employees 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 Lender:
(a) of the occurrence of any Default or Event of Default;
(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 $10,000,000 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
Lender 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; and
(e) of the occurrence of any event having or which could
reasonably be expected to have Material Adverse Effect.
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Each notice pursuant to this subsection 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;
(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 Collateral Agent,
the Administrative Agent and the Lenders, 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 Appraisals. (a) By May 31 of each year, deliver to the
Administrative Agent an appraisal demonstrating the Appraised Value of each
Orbiting Satellite prepared by an Approved Appraiser and reasonably satisfactory
in form and substance to the Administrative Agent; and
(b) Within 60 days of the occurrence of a Partial Failure with
respect to any Orbiting Satellite, deliver to the Administrative Agent an
appraisal demonstrating the Appraised Value (after giving effect to such Partial
Failure) of such Orbiting Satellite prepared by an Approved Appraiser and
reasonably satisfactory in form to the Administrative Agent.
5.10 Cash Collateral Accounts. (a) (i) Establish and maintain a
pledged collateral account (the "Loral Satellite Collateral Account") with the
Collateral Agent subject to the sole dominion and control of the Collateral
Agent pursuant to the Cash Collateral Agreement, (ii) at any time after an Event
of Default occurs and is continuing, deposit all lease payments received by the
Borrower in connection with the Master Lease Agreements with respect to any
Orbiting Satellite directly into the Loral Satellite Collateral Account, and
(iii) deposit directly
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<PAGE> 46
into the Loral Satellite Collateral Account, (A) all insurance proceeds received
as a result of a Partial Failure with respect to any Orbiting Satellite and (B)
all amounts required to be deposited pursuant to subsections 5.12 and 5.13; and
(b) at any time after an Event of Default occurs and is
continuing, cause all payments received by the Borrower in connection with any
Intercompany Note to be deposited directly into the Loral Satellite Collateral
Account.
5.11 Payments under Intercompany Notes. At any time after the
occurrence and during the continuation of an Event of Default, demand, accept
and receive all payments of interest and principal on any Intercompany Note
which is then due and payable pursuant to the terms thereof.
5.12 In Orbit Failures. (a) Upon the first occurrence of an
In-Orbit Failure with respect to any Orbiting Satellite after the Effective
Date, (i) use its best efforts to promptly (and, in any event, except in the
case of a purchase agreement, prior to the receipt of the insurance proceeds
referred to in clause (ii) below ) enter into a Satellite Contract or purchase
agreement for the construction or purchase of a Replacement Satellite (which has
a comparable value to the Satellite being replaced (as determined pursuant to an
appraisal by an Approved Appraiser, assuming for purposes of such appraisal,
that the leases applicable to the Satellite being replaced would be in effect
for the Replacement Satellite so long as the Replacement Satellite has the
capacity for such leases) and is operationally equivalent thereto) which shall
have the same ownership structure as such Orbiting Satellite, (ii) cause the
insurance proceeds (other than Excess Insurance Proceeds) from such In-Orbit
Failure to be segregated and maintained in a separate bank account (as to which
the Collateral Agent has no Lien), such account to be satisfactory to the
Administrative Agent and subject to withdrawal solely to make payments under
such Satellite Contract or purchase agreement, as the case may be, (it being
understood that the documentation relating to such bank account shall be
satisfactory in form and substance to the Administrative Agent and may not be
amended without the consent of the Administrative Agent (which consent shall not
be unreasonably withheld)); (iii) use its best efforts to ensure that such
Replacement Satellite will be constructed or purchased and a Successful Launch,
if necessary, of such Replacement Satellite will be attempted within a
reasonable period of time; (iv) cause the Collateral Agent, on behalf of the
Secured Parties, to be named as the loss payee under the insurance policies for
such Replacement Satellite; and (v) in the event that such Satellite Contract or
purchase agreement, as the case may be, is terminated for any reason, cause all
insurance proceeds on deposit in the segregated bank account at the time of such
termination to be immediately deposited in the Loral Satellite Collateral
Account.
(b) Upon any subsequent In-Orbit Failure with respect to an
Orbiting Satellite after the Effective Date, cause the insurance proceeds from
such In-Orbit Failure to be immediately deposited in the Loral Satellite
Collateral Account.
5.13 Launch Failures. Upon any Launch Failure with respect to
any Satellite after the Effective Date, cause the insurance proceeds from such
Launch Failure to be immediately deposited in the Loral Satellite Collateral
Account.
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5.14 Preservation of Separate Corporate Existence of the
Borrower. From and after the Effective Date, in the case of the Borrower and its
Subsidiaries, take (or refrain from taking, as the case may be) such actions as
shall be required to insure its compliance with the following provisions:
(a) The Borrower and its Subsidiaries shall maintain corporate
records and books of account separate from those of Loral, Globalstar and their
respective Subsidiaries and stationery that is separate and distinct from those
of Loral, Globalstar and their respective Subsidiaries.
(b) The assets of the Borrower and its Subsidiaries will be
maintained in a manner that facilitates their identification and segregation
from those of Loral, Globalstar and their respective Subsidiaries.
(c) The Borrower shall strictly observe corporate formalities
in its dealings with Loral, Globalstar and their respective Subsidiaries, and no
funds or other assets of Loral, Globalstar or their respective Subsidiaries will
be commingled or pooled with those of the Borrower or its Subsidiaries. Neither
the Borrower nor its Subsidiaries will maintain joint bank accounts with Loral,
Globalstar or their respective Subsidiaries or other depository accounts with
Loral, Globalstar or their respective Subsidiaries to which the Borrower or its
Subsidiaries has independent access.
(d) To the extent that either the Borrower or its Subsidiaries
shares any officers or other employees with Loral, Globalstar or any of their
respective Subsidiaries, the salaries of and the expenses related to providing
benefits to such officers and other employees will be allocated to the Borrower
or any of its Subsidiaries and Loral, Globalstar or such Subsidiary, and the
Borrower or any of its Subsidiaries, as the case may be, and Loral, Globalstar
or such Subsidiary shall bear their fair shares of the salary and benefit costs
associated with all such common officers and employees.
(e) To the extent that the Borrower or any of its Subsidiaries
jointly contracts with Loral, Globalstar or any of their respective Subsidiaries
to do business with vendors or service providers or to share overhead expenses,
the costs incurred in so doing will be allocated to the Borrower or any of its
Subsidiaries, as the case may be, and Loral, Globalstar or such Subsidiary, and
the Borrower or any of its and their respective Subsidiaries, as the case may
be, and Loral, Globalstar or such Subsidiary shall bear their fair shares of
such costs. To the extent that the Borrower or any of their and their respective
Subsidiaries contracts or does business with vendors or service providers where
the goods and services provided are partially for the benefit of Loral, the
Borrower or any of its respective Subsidiaries, the costs incurred in so doing
shall be allocated between the Borrower or any of its Subsidiaries, as the case
may be, and Loral, Globalstar or such Subsidiary in proportion to the benefit of
the goods or services each is provided, the Borrower or any of its Subsidiaries,
as the case may be, and Loral, Globalstar or such Subsidiary shall bear their
fair shares of such costs.
5.15 Collateral Coverage Ratio. (a) Maintain a Collateral
Coverage Ratio which is at all times equal to or in excess of 1.20 to 1.00;
provided that, if at any time the Collateral Coverage Ratio falls below 1.20 to
1.00 then the Borrower shall designate and deliver
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<PAGE> 48
additional Acceptable Collateral for inclusion in the Collateral Pool, in
amounts such that after giving effect thereto the Collateral Coverage Ratio
shall be at least 1.20 to 1.00. In connection with the delivery of any
Acceptable Collateral to the Collateral Agent pursuant to this paragraph, the
Borrower shall execute such documents and take such actions as the Collateral
Agent or the Administrative Agent may require to cause such Acceptable
Collateral to become subject to a perfected security interest in favor of the
Collateral Agent and shall deliver satisfactory appraisals of such Acceptable
Collateral to the Collateral Agent and the Administrative Agent.
5.16 Transponders Lease Agreements. Cause (a) all transponders
on all future Orbiting Satellites to be owned by the Borrower at all times, (b)
intercompany lease agreements for the lease of transponders on any Orbiting
Satellite by the Borrower to Loral SpaceCom (each, a "Master Lease Agreement")
to have terms and conditions which are, in all material respects, substantially
in the form of Exhibit K (which form is hereby approved) and (c) in connection
with entering into any such Master Lease Agreement, all relevant Persons to
enter into an Availability Agreement, a Termination Agreement and a TT&C
Agreement, substantially in the form of Exhibits L, M and N, respectively.
5.17 New Subsidiaries; Further Security and Guarantees. In the
event that the Borrower or any of its Subsidiaries forms any new Subsidiary, the
Borrower shall cause such Subsidiary to become a party to: (i) the Collateral
Agreement by causing such Subsidiary to (A) execute and deliver to the
Collateral Agent an Assumption Agreement in the form of Annex 1 to the
Collateral Agreement, (B) cause each holder of any Equity Interest of such
Subsidiary to pledge 100% of such Equity Interest pursuant to documentation
satisfactory to the Administrative Agent and (C) take any necessary steps to
perfect the security interest to be created thereby; and (ii) the Collateral
Agency Agreement by causing such Subsidiary to execute and deliver to the
Collateral Agent an assumption agreement in the form of Exhibit A to the
Collateral Agency Agreement.
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 Lender or the Administrative Agent hereunder, the Borrower shall not, nor
shall it permit any Subsidiary to, directly or indirectly:
6.1 Maintenance of Consolidated Net Worth. (a) Permit
Consolidated Net Worth at the end of any fiscal quarter to be less than
$375,000,000.
(b) Maintenance of Consolidated EBITDA. At such time as there
exists (x) one Orbiting Satellite and (y) (i) the Borrower is permitted to
construct or purchase a Replacement Satellite in accordance with subsection
5.12(a), or (ii) the Borrower is required to deposit insurance proceeds in
respect of an In-Orbit Failure or a Launch Failure in the Loral Satellite
Collateral Account pursuant to subsection 5.12(b) or 5.13, as the case may be,
permit at the last day of any fiscal quarter ending during any test period set
forth below, Consolidated EBITDA for the period of two fiscal quarters ending on
such date to be less than the amounts set forth opposite such test period below:
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<TABLE>
<CAPTION>
Test Period Consolidated EBITDA
----------- -------------------
<S> <C>
July 1, 2000 - December 31, 2000 12,500,000
January 1, 2001 - June 30, 2001 15,000,000
July 1, 2001 - December 31, 2001 15,000,000
January 1, 2002 - June 30, 2002 17,500,000
July 1, 2002 - December 31, 2002 17,500,000
January 1, 2003 - June 30, 2003 17,500,000
July 1, 2003 - December 31, 2003 17,500,000
</TABLE>
and (ii) at all other times, permit at the last day of any fiscal quarter ending
during any test period set forth below, Consolidated EBITDA for the period of
two fiscal quarters ending on such date to be less than the amounts set forth
opposite such test period below:
<TABLE>
<CAPTION>
Test Period Consolidated EBITDA
----------- -------------------
<S> <C>
July 1, 2000 - December 31, 2000 25,000,000
January 1, 2001 - June 30, 2001 30,000,000
July 1, 2001 - December 31, 2001 30,000,000
January 1, 2002 - June 30, 2002 35,000,000
July 1, 2002 - December 31, 2002 35,000,000
January 1, 2003 - June 30, 2003 35,000,000
July 1, 2003 - December 31, 2003 35,000,000
</TABLE>
provided, that (A) in any test period in which a Satellite experiences a Total
Failure for any part of such test period, for purposes of this subsection
6.1(b), Consolidated EBITDA for such period shall be calculated on a pro forma
basis, and shall be tested under this subsection 6.1(b), as if such Total
Failure occurred at the beginning of such period, (B) in any test period in
which a Satellite experiences a Partial Failure for any part of such test
period, the amounts set forth above shall be adjusted on a pro forma basis to
reflect the loss of capacity (and the resulting decrease in the required amount
of Consolidated EBITDA for the relevant test period under this subsection
6.1(b)) resulting from such Partial Failure, and such adjustment shall be
acceptable to the Administrative Agent and the Majority Lenders and (C) for
purposes of calculating the covenants set forth in this subsection 6.1(b), in
the event of a Successful Launch of any Replacement Satellite in any test
period, Consolidated EBITDA for such period shall be calculated on a pro forma
basis, and shall be tested under this subsection 6.1(b), as if such Successful
Launch occurred on the first day of the next succeeding test period.
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6.2 Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except Indebtedness created hereunder, Indebtedness set forth on
Schedule 6.2(a) and Subordinated Debt; provided, that the Borrower receives Net
Cash Proceeds equal to the principal amount of such Subordinated Debt.
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 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) easements, rights-of-way, restrictions and other Liens
incurred in the ordinary course of business which do not 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;
(d) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection with the
importation of goods;
(e) Liens under the Loan Documents, the Master Lease Agreements
and the Availability Agreements; and
(f) other Liens incidental to the conduct of the Borrower's
business or the ownership of its property not securing Indebtedness and that do
not in the aggregate materially detract from the value of the property when
taken as a whole or materially impair the use thereof in the operation of its
businesses.
6.4 Limitation on Fundamental Changes. Enter into any
transaction of merger or consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution) except that any
Subsidiary may be merged, liquidated or consolidated with or into the Borrower
(provided that the Borrower shall be the continuing or surviving Person) or with
or into any Wholly Owned Subsidiary (provided that the Wholly Owned Subsidiary
shall be the continuing or surviving Person).
6.5 Limitation on Sale of Assets. Convey, sell, lease, transfer
or otherwise dispose of any assets in a transaction or series of related
transactions, including in connection with any Sale and Leaseback Transaction,
except that:
(i) so long as no Default or Event of Default shall have
occurred and be continuing or would result therefrom, the Borrower
may sell, lease, transfer or otherwise dispose of assets released
from the Collateral Pool pursuant to Section 2(b)(i) and 2(b)(ii)
of the Collateral Agreement;
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(ii) the Borrower may sell, lease, transfer or otherwise
dispose of obsolete or worn out property in the ordinary course of
business;
(iii) the Borrower may sell, transfer or otherwise dispose
of Cash Equivalents in exchange for a comparable amount of cash
and/or Cash Equivalents;
(iv) the Borrower may enter into and perform its
obligations under the Loan Documents, the Master Lease Agreements
and the Availability Agreements; and
(v) such Person may make such transfers permitted by
subsection 6.6 or 6.7;
(vi) the Borrower may assign the loans outstanding under
the Globalstar Credit Agreement (and rights related thereto);
provided, that the consideration therefor shall consist of cash
equal to the fair market value of such loans plus accrued
interest;
(vii) the Borrower may sell transponders removed from the
Collateral Pool pursuant to Section 2(b)(iii) of the Collateral
Agreement for consideration consisting solely of cash and equal to
the fair market value of such transponders, provided that the Net
Cash Proceeds of such sales are applied to prepay Term Loans and
reduce Commitments pursuant to subsection 2.9(d); and
(viii) the Borrower may sell transponders and the related
Satellite removed from the Collateral Pool pursuant to Section
2(b)(iv) of the Collateral Agreement for consideration consisting
solely of cash and equal to the fair market value of such
transponders and Satellite, provided that the Net Cash Proceeds of
such sale are applied to prepay Term Loans and reduce Commitments
pursuant to subsection 2.9(d).
6.6 Limitation on Restricted Payments. Declare or pay any
dividends 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 shares of any class of stock of the Borrower, 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 shares of any class of stock
of the Borrower or any Subsidiary from any Person, except that:
(i) the Borrower may pay dividends to Loral or LSCC, so
long as (A) no Default or Event of Default shall have occurred and
be continuing or would result therefrom, (B) after giving effect
to any such dividends, the combined aggregate unencumbered cash on
hand (including any Cash Equivalents permitted hereunder) at the
Borrower is at least equal to the Available Commitments (as
defined in the Globalstar Credit Agreement) and (C) the Borrower
shall have made loans (evidenced by Intercompany Notes) to Loral
or LSCC in an aggregate
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outstanding principal amount at least equal to $100,000,000 at the
time such dividend is paid;
(ii) the Borrower may make a distribution in the form of
a dividend to Loral of assets released from the Collateral Pool
pursuant to Section 2(b)(i) or 2(b)(ii) of the Collateral
Agreement;
(iii) Subsidiaries of the Borrower may pay dividends to
the Borrower; and
(iv) Dividends consisting of Excess Insurance Proceeds.
6.7 Limitation on Investments and Capital Expenditures. Make,
commit to make or maintain any Investment or capital expenditures, except:
(i) loans to Loral or LSCC by the Borrower so long as
(A) no Default or Event of Default shall have occurred and be
continuing or would result therefrom, (B) any such loans are
evidenced by Intercompany Notes which are pledged to the
Collateral Agent pursuant to the Collateral Agreement and (C)
after giving effect to any such loans or dividends, the combined
aggregate unencumbered cash on hand (including any Cash
Equivalents permitted hereunder) at the Borrower is at least equal
to the Available Commitments (as defined in the Globalstar Credit
Agreement);
(ii) the construction or purchase of Replacement
Satellites pursuant to subsection 5.12;
(iii) investments by the Borrower in its Domestic
Subsidiaries created in the ordinary course of business, provided
that no such Investment in any Subsidiary shall include the
transfer to such Subsidiary of any assets (or associated rights,
licenses or agreements) included in the Collateral Pool Value at
such time;
(iv) Equity Interests in Globalstar received as a result
of the conversion of loans outstanding under the Globalstar Credit
Agreement into such Equity Interests or Additional Globalstar
Loans; and
(v) Additional Globalstar Loans made pursuant to
subsection 2.9(b).
6.8 Affiliates. Except as set forth on Schedule 6.8, 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 (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 upon 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 shall be determined in the reasonable
judgment of the Borrower), provided that this subsection shall not
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prohibit (a) employee compensation arrangements entered into in the ordinary
course of business and approved by the compensation committee (or equivalent
body) of the Borrower, (b) payments and other transactions permitted under
subsections 5.14, 5.16, 6.6 and 6.7, (c) the Master Lease Agreements, (d) tax
sharing agreements, (e) management fees and related costs payable to Loral or
its Subsidiaries by the Borrower, (f) any modifications, waivers and amendments
of the Globalstar Credit Agreement, (g) satellite construction relating to a
Replacement Satellite, (h) Subordinated Debt, (i) the purchase of Equity
Interests in the Borrower, and (j) the Agreement, dated as of the date hereof,
among Loral, the Borrower and LSCC relating to the Loans outstanding under the
Globalstar Credit Agreement.
6.9 Negative Pledge Clauses. Enter into or suffer to exist or
become effective any agreement that prohibits or limits the ability of the
Borrower or any of its Subsidiaries to create, incur, assume or suffer to exist
any Lien upon any of its property or revenues, whether now owned or hereafter
acquired, to secure its obligations under the Loan Documents to which it is a
party, other than the other Loan Documents.
6.10 Changes in Fiscal Periods. Permit the fiscal year of the
Borrower to end on a day other than December 31 or such date as the Borrower is
required to use for U.S. federal income tax purposes or change such Borrower's
method of determining fiscal quarters.
6.11 Lines of Business. Enter into any business, either directly
or through any Subsidiary, except for the business in which the Borrower is
engaged on the Effective Date.
6.12 Dividend and Other Payment Restrictions Affecting
Subsidiaries. Create or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Subsidiary to:
(i) pay dividends or make any other distributions on its
Equity Interests to the Borrower or any of its Subsidiaries, or
with respect to any other interest or participation in, or
measured by, its profits, 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 Subsidiaries.
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6.13 Amendments to Certain Documents. Without the consent of the
Administrative Agent and the Majority Lenders (such consent not to be
unreasonably withheld), amend, modify or waive any provision of any Master Lease
Agreement, the Availability Agreement, the TT&C Agreement, or any other
agreement entered into pursuant to subsection 5.16.
6.14 Loss Payee. Name or cause to be named any Person other than
the Borrower or the Collateral Agent as loss payee under any insurance policy
relating to any Satellite that constitutes Collateral.
6.15 Changes in Locations. Except upon 15 days' prior written
notice to the Administrative Agent and the Collateral Agent and delivery to the
Administrative Agent and the Collateral Agent of (a) all additional executed
financing statements and other documents reasonably requested by the
Administrative Agent to maintain the validity, perfection and priority of the
security interests provided for herein and (b) if applicable, a written
supplement to Schedule 3.16 or 3.17, as applicable, showing any additional
location at which Equipment shall be kept, any additional location of any Ground
Station and any additional construction site of any Satellite, as the case may
be:
(i) permit any of the Equipment to be kept at a location
other than those listed on Schedule 3.17;
(ii) change its jurisdiction of organization or the
location of its chief executive office in the United States from
that existing on the Effective Date;
(iii) permit the existence or use of any Ground Station at
a location other than those listed on Schedule 3.17; or
(iv) permit the existence or use of a construction site
for any Satellite at a location other than 3825 Fabian Way, Palo
Alto, California 94303.
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6.16 Optional Payments and Modifications of Subordinated Debt.
(a) Make or offer to make any optional or voluntary payment, prepayment,
repurchase or redemption of or otherwise optionally or voluntarily defease or
segregate funds with respect to Subordinated Debt; or (b) amend, modify, waive
or otherwise change, or consent or agree to any amendment, modification, waiver
or other change to, any of the terms of Subordinated Debt (other than such
amendment, modification, waiver or other change that (i) would extend the
maturity or reduce the amount of any payment of principal thereof or reduce the
rate or extend any date for payment of interest thereon and (ii) does not
involve the payment of a consent fee).
6.17 Loral SatCom Ltd. Permit SatCom (which shall be liquidated
promptly after giving effect to the transactions consummated on the Effective
Date) to (i) conduct, transact or otherwise engage in, or commit to conduct,
transact or otherwise engage in, any business or operations, (ii) incur, create,
assume or suffer to exist any Indebtedness or other liabilities or financial
obligations, or (iii) own, lease, manage or otherwise operate any properties or
assets (including cash and cash equivalents).
SECTION 7. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) 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
(b) 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
(c) Any Loan Party shall default in the observance or
performance of any agreement contained in (i) subsection 5.5(b), 5.7(a), 5.10,
5.11, 5.12(b), 5.13, 5.14 or 5.16 or Section 6 or Section 10 of the Loral
Guarantee or (ii) subsections 5.9, 5.12(a) and 5.15 and such default shall
continue unremedied for a period of five Business Days; or
(d) Any Loan Party shall default in the observance or
performance of any other agreement contained in this any Loan Document, and such
default shall continue unremedied for a period of 30 days; or
(e) The Borrower or any of its Subsidiaries, Loral, Loral
SpaceCom or LSCC (so long as an Intercompany Note remains outstanding to LSCC
and unpaid) shall (A) default in any payment of principal of or interest on any
Indebtedness or in the payment of any Contingent Obligation in respect of
Indebtedness, beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness or Contingent Obligation was created and
(I) in each case, the aggregate principal amount of all such Indebtedness equals
or exceeds $1,000,000 (or, in the case of Loral, Loral SpaceCom or LSCC,
$25,000,000) and (II) with
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respect to a default in the payment of interest by the Borrower, its
Subsidiaries, Loral, Loral SpaceCom or LSCC, 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
(f) (A) The Borrower or any of its Subsidiaries, Loral or Loral
SpaceCom 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, Loral or Loral SpaceCom,
as the case may be, 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, Loral or Loral SpaceCom, 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, Loral or
Loral SpaceCom 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, Loral or Loral SpaceCom 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, Loral or Loral SpaceCom shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay its debts as
they become due; or
(g) (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 Lenders, likely to result in the 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 Borrower or any Commonly
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Controlled Entity shall, or is, in the reasonable opinion of the Required
Lenders, 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
(h) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance) of $10,000,000 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
(i) any Security Document or Guarantee shall cease, for any
reason, to be in full force and effect, or any Loan Party or any Affiliate of
any Loan Party shall so assert, or any 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
(j) A Change of Control shall occur;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (f) above 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
Lender to enforce its claims against the Borrower: (i) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent 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 Required Lenders,
the Administrative Agent may, or upon the request of the Required Lenders, 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 7, presentment, demand, protest and all other notices of
any kind are hereby expressly waived. Notwithstanding the foregoing, the rights
and remedies provided in this Section 7 are cumulative and shall be in addition
to all other rights and remedies available to the Lenders by law or in equity.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 Appointment. Each Lender hereby irrevocably designates and
appoints Bank of America as the Administrative Agent of such Lender under this
Agreement and the other Loan Documents and as the Collateral Agent of such
Lender under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes Bank of America, in such capacities, to take such action
on its behalf under the provisions of this Agreement and the other
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<PAGE> 58
Loan Documents, and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent or the Collateral Agent, as the
case may be, 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, neither the Administrative Agent nor the Collateral
Agent shall have any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Administrative Agent
or the Collateral Agent, as the case may be. All references to the
Administrative Agent in this Section 8 (other than subsection 8.1) shall be
deemed to include the Collateral Agent.
8.2 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.
8.3 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 Lenders 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, enforce ability 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 Lender to ascertain or to 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.
8.4 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 Lenders or the Required
Lenders, as the case may be, as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any
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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 Lenders or the Required
Lenders, as the case may be, and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Notes.
8.5 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
Lender 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 Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Majority Lenders; 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 Lenders.
8.6 Non-Reliance on the Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or Affiliates
has made any 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 Lender. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own 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 Lender also represents that it
will, independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it shall 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 Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender 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.
8.7 Indemnification. The Lenders 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
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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 Lender 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 Lenders have
indemnified the Administrative Agent is recovered from the Borrower, the
Administrative Agent shall return the amount so recovered to the Lenders which
so indemnified the Administrative Agent, but without interest, unless the
Borrower has paid interest. The agreements in this subsection shall survive the
payment of the Loans and all other amounts payable hereunder.
8.8 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 Lender and may exercise the same as though it were
not the Administrative Agent, and the terms "Lender" and "Lenders" shall include
the Administrative Agent in its individual capacity.
8.9 Successor Administrative Agent. The Administrative Agent
may resign as such upon 10 days' notice to the Lenders and the Borrower. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Majority Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent shall
(unless an Event of Default under paragraph (a) or (f) of Section 7 with respect
to the Borrower shall have occurred and be continuing) be subject to approval by
the Borrower (which approval shall not be unreasonably withheld or delayed),
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 Loans. If no successor agent has accepted appointment as
Administrative Agent by the date that is 10 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall assume and perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Majority Lenders appoint a successor
agent as provided for above. After any retiring Administrative Agent's
resignation as such, the provisions of this subsection 8.9 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 and the other Loan Documents.
8.10 Syndication Agent. Credit Lyonnais New York Branch has been
designated as Syndication Agent under this Agreement, but the use of such title
does not impose on it any duties or obligations greater than those of any other
Lender.
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SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. None of this Agreement, any Note or
any other Loan Document, or any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection 9.1. With the written consent of the Majority Lenders, the
Administrative Agent, on behalf of the Lenders, 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 Lenders 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 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 Lender hereunder, or reduce the principal amount
of any Loan, or increase the amount or extend the expiry date of any Lender's
Commitment, in each case without the written consent of each Lender affected
thereby, or (b) amend, modify or waive any provision of subsection 2.15 without
the consent of the Majority Facility Lenders in respect of each Facility
adversely affected thereby, or (c) change the order of application of
prepayments in subsection 2.9(e) without the consent of the Majority Facility
Lenders in respect of each Facility adversely affected thereby, or (d) amend,
modify or waive any provision of this subsection 9.1, or reduce the percentage
specified in the definitions of Required Lenders or Majority Lenders, 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 Eurodollar Cash
Collateral Account other than in accordance with subsection 2.9, in each case
without the written consent of all the Lenders, or (e) amend, modify or waive
any provision of Section 8 without the written consent of the then
Administrative Agent, or (f) release the Loral Guarantee or all or substantially
all of the Collateral, in each case without the written consent of all of the
Lenders and Loral, or (g) modify clause (f) of this subsection 9.1 without the
written consent of Loral, or (h) amend the definition of "Acceptable Collateral"
without the consent of all of the Lenders and the Borrower. Any such waiver and
any such amendment, supplement or modification shall apply equally to each of
the Lenders and shall be binding upon the Loan Parties, the Lenders, the
Administrative Agent and all future holders of the Notes. In the case of any
waiver, the Loan Parties, the Lenders 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.
9.2 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 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
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address as may be hereafter notified by the respective parties hereto and any
future holders of the Notes:
<TABLE>
<S> <C>
The Borrower Loral Satellite, Inc.
c/o Loral SpaceCom Corporation
600 Third Avenue
New York, New York 10016
Attention: General Counsel
Attention: Treasurer
Attention: Assistant Treasurer
Telecopy: (212) 338-5350
(212) 338-5626
(212) 867-5248
with a copy to: Loral Space & Communications Ltd.
c/o Loral SpaceCom Corporation
600 Third Avenue
New York, New York 10016
Attention: General Counsel
Attention: Treasurer
Telecopy: (212) 338-5350
(212) 338-5626
(212) 867-5248
The Administrative Agent: For payments:
Bank of America, National Association
Agency Administrative Services #5596
1850 Gateway Boulevard, 5th Floor
Concord, California 94520
Attention: Josephine P. Flores
Assistant Vice President
Telecopy:(925) 675-8500
For all other notices (including with respect to
amendments and waivers):
Bank of America, National Association
Agency Management #10831
1455 Market Street, 12th Floor
San Francisco, California 94103
Attention: Dietmar Schiel
Vice President
Telecopy: (415) 436-3425
</TABLE>
; provided, that any notice, request or demand to or upon the Administrative
Agent or the Lenders pursuant to subsections 2.5, 2.9, 2.10 and 2.11 shall not
be effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Administrative Agent or any Lender,
any right, remedy, power or
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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 the other Loan
Documents are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
9.4 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.
9.5 Payment of Expenses and Taxes. The Borrower agrees (a) 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, (b) to pay or reimburse each Lender 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 Lenders (including, without limitation, the allocated
costs of in-house counsel), (c) to pay, indemnify, and hold each Lender 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, and (d) to
pay, indemnify, and hold each Lender, 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 Lender with respect
to indemnified liabilities arising from the gross negligence or willful
misconduct of the Administrative Agent, the Arranger or any such Lender, as the
case may be. The agreements in this subsection 9.5 shall survive repayment of
the Loans and all other amounts payable hereunder.
9.6 Successors and Assigns; Participations; Purchasing Lenders.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, 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
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this Agreement without the prior written consent of each Lender. The provisions
of clause (g) of subsection 9.1 shall inure to the benefit of and be enforceable
by Loral.
(b) Any Lender may, in the ordinary course of its 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 Lender, any Note held by such Lender, the Commitment of such Lender or any
other interest of such Lender hereunder; provided, that if the Participant is
not an Affiliate of such Lender or another Lender, such Lender 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 Lender 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 Lender of a participating interest to a Participant, such
Lender's obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender 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 Lender in connection with
such Lender'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 Lender 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 Lenders, and the Lenders
agree to share with such Participant, as provided in subsection 9.7. The
Borrower also agrees that each Participant shall be entitled to the benefits of
subsections 2.17, 2.18, 2.19 and 9.5 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
subsections than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its business and
in accordance with applicable law, and (if the Purchasing Lender is not an
Affiliate of such Lender, an existing Lender or a Related Fund of any Lender)
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 bank,
financial institutions or other entities ("Purchasing Lenders") 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 Lender and such
transferor Lender, and delivered to the Administrative Agent for its acceptance
and recording in the Register; provided, that (i) if the Purchasing Lender is
not an Affiliate of such Lender, an existing Lender or a Related Fund of any
Lender, any sale of Loans shall be in an amount equal to at least
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$1,000,000 (pro rated downward ratably in connection with permanent reductions
of the aggregate Commitments) and (ii) after giving effect thereto, such Lender
shall have Commitments and Loans aggregating at least $1,000,000 (pro rated
downward ratably in connection with permanent reductions of the aggregate
Commitments) unless all of such Lender'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 Lender thereunder shall be a party hereto and, to the extent
provided in such Commitment Transfer Supplement, have the rights and obligations
of a Lender hereunder with a Commitment as set forth therein, and (y) the
transferor Lender thereunder shall, to the extent provided in such Commitment
Transfer Supplement, 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 Lender's rights and obligations under this Agreement,
such transferor Lender 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 Lender
and the resulting adjustment of Commitment Percentages arising from the purchase
by such Purchasing Lender of all or a portion of the rights and obligations of
such transferor Lender under this Agreement and the Notes. If requested by the
Purchasing Lender and/or the transferor Lender, 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 Lender in an amount equal to the Commitment assumed by it pursuant to
such Commitment Transfer Supplement and, if the transferor Lender has retained a
Commitment hereunder, a new Note to the order of the transferor Lender in an
amount equal to the Commitment retained by it hereunder. Such new Notes shall be
dated the Effective Date and shall otherwise be in the form of the Notes
replaced thereby. The Note surrendered by the transferor Lender shall be
returned by the Administrative Agent to the Borrower marked "cancelled".
Notwithstanding any provision of this paragraph (c) and paragraph (e) of this
subsection, the consent of the Borrower shall not be required for any assignment
which occurs at any time when any of the events described in paragraph (f) of
Section 7 shall have occurred and be continuing.
(d) The Administrative Agent shall maintain at its address
referred to in subsection 9.2 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 Lenders and the Commitment of, and principal amount of the
Loans owing to, each Lender 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 Lenders 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 shall be effective only upon appropriate entries with respect thereto
being made in the Register. Any assignment or transfer of all or part of a Loan
evidenced by a Note shall be registered in the Register only upon surrender for
registration of assignment or transfer of the Note evidencing such Loan. The
Register shall be available for inspection by the Borrower or any Lender 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 Lender and a Purchasing Lender together with payment to
the Administrative Agent of
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a registration and processing fee of $3,500, 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 Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Purchasing Lender (each, a "Transferee") and any prospective
Transferee any and all financial information in such Lender's possession
concerning the Loan Parties and their affiliates which has been delivered to
such Lender 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 Lender by or on
behalf of any Loan Party in connection with such Lender's credit evaluation of
the Borrower and its affiliates prior to becoming a party to this Agreement;
provided, that such Transferee or prospective Transferee agrees in writing to be
bound by the confidentiality provisions set forth in subsection 9.14 hereof.
(g) Nothing herein shall prohibit any Lender from pledging or
assigning any Loan, either directly or through the principal banking subsidiary
of the bank holding company which owns such Lender, to any Federal Reserve
Lender in accordance with applicable law.
9.7 Adjustments; Set-off. (a) If any Lender (a "benefited
Lender") 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 (f) of Section 7, or otherwise) in a greater
proportion than any such payment to and collateral received by any other Lender,
if any, in respect of such other Lender's Loans or interest thereon, or Loans or
interest thereon, such benefited Lender shall purchase for cash from the other
Lenders such portion of each such other Lender's Loans, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefited Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such benefited Lender, 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 Lender so
purchasing a portion of another Lender'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 Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender (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 Lender (or any such Affiliate) to or for the credit or the
account of the Borrower. Each Lender agrees promptly to notify the Borrower and
the
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Administrative Agent after any such set-off and application made by such Lender;
provided, that the failure to give such notice shall not affect the validity of
such set-off and application.
9.8 Severability. Any provision of this Agreement that 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.
9.9 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.
9.10 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.
9.11 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(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 subsection 9.2 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 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.
9.12 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE
AGENT AND THE BANKS HEREBY IRREVOCABLY AND
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UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR THE NOTES AND FOR ANY COUNTERCLAIM THEREIN.
9.13 Integration. This Agreement and Loan Documents represent
the agreement of the Borrower, the Administrative Agent and the Lenders with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any Lender relative
to the subject matter hereof not expressly set forth or referred to herein or in
the other Loan Documents.
9.14 Confidentiality. The Lenders 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
Lender or Participant in connection with the contemplated transfer of any Note
or participation therein (subject to such prospective Purchasing Lender's or
Participant's compliance with subsection 9.6(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.
LORAL SATELLITE, INC.
By: /s/ Nicholas C. Moren
----------------------------------
Name: Nicholas C. Moren
Title: Senior Vice President
and Treasurer
BANK OF AMERICA, NATIONAL
ASSOCIATION, as a Lender
By: /s/ Steve Aronowitz
----------------------------------
Name: Steve Aronowitz
Title: Managing Director
<PAGE> 70
AMERICAN MONEY MANAGEMENT CORP., as a Lender
By: /s/ David Meyer
----------------------------------
Name: David Meyer
Title: Vice President
<PAGE> 71
CREDIT LYONNAIS NEW YORK
BRANCH, as a Lender
By: /s/ Patrick McCarthy
----------------------------------
Name: Patrick McCarthy
<PAGE> 72
NATIONAL WESTMINSTER BANK PLC,
as a Lender
By: /s/ Harry Paschalidis
----------------------------------
Name: Harry Paschalidis
Title: Assistant Vice President
<PAGE> 73
PACIFICA PARTNERS I, L.P., as a Lender
By: Imperial Credit Asset Management
As its Investment Manager
By: /s/ Dean Kawai
----------------------------------
Name: Dean Kawai
Title: Vice President
<PAGE> 74
SOCIETE GENERALE S.A., as a Lender
By: /s/ Xavier Saudreau
----------------------------------
Name: Xavier Saudreau
Title: Vice President
<PAGE> 75
SYNDICATED LOAN FUNDING TRUST, as a Lender
By: Lehman Commercial Paper Inc.,
Not in its individual capacity
but solely
as Asset Manager
By: /s/ G. Andrews Keys
----------------------------------
Name: G. Andrews Keys
<PAGE> 76
TRANSAMERICA EQUIPMENT FINANCIAL SERVICES
CORPORATION, as a Lender
By: /s/ Shawn McAlister
----------------------------------
Name: Shawn McAlister
Title: V.P. Region Credit Manager
