Exhibit 10.18
THIS TRANSACTION
AND MONITORING FEE AGREEMENT is dated as of November 2, 2004 (this
“ Agreement ”) and is between New Skies
Satellites B.V. (f/k/a Munaro Holding B.V.), a private company with
limited liability organized under the laws of The Netherlands (the
“ Company ”), and Blackstone Management Partners
IV L.L.C., a Delaware limited liability company (the “
Advisor ”).
BACKGROUND
1.
The Company has entered into an Acquisition Agreement among Neptune
One Holdings Ltd., a Cayman Islands exempted company, the Company
and New Skies Satellites N.V., a public company with limited
liability organized under the laws of The Netherlands, with a
corporate seat in The Hague (the “ Seller ”),
dated as of June 5, 2004 (the “ Acquisition Agreement
”), pursuant to which the Company will acquire, subject to
the terms and conditions set forth in the Acquisition Agreement,
substantially all of the assets and liabilities of the Seller after
the closing of the Transactions (as defined below).
2.
The Advisor, by and through itself, its affiliates and their
respective officers, employees, partners, members, agents and
representatives, has expertise in the areas of finance, strategy,
investment, acquisitions and other matters relating to the Company
and its business and has facilitated the transactions referred to
above and certain other related transactions (collectively, the
“ Transactions ”) through their provision of
financial and structural analysis, due diligence investigations and
other advice and negotiation assistance with all relevant parties
to the Transactions. The Advisor has also provided advice and
negotiation assistance with relevant parties in connection with the
financing of the Transactions.
3.
The Company desires to avail itself for the purpose of making and
managing its investments, for the term of this Agreement, of the
Advisor’s expertise in the aforesaid areas, which the Company
believes will be beneficial to it, and the Advisor wishes to
provide the services to the Company as set forth in this Agreement
in consideration of the payment of the fees and other agreements
contained herein.
In consideration
of the premises and agreements contained herein and of other good
and valuable consideration, the sufficiency of which are hereby
acknowledged, the parties agree as follows:
AGREEMENT
SECTION 1. Transaction and
Advisory Fee . In consideration of the Advisor
undertaking financial and structural analysis, due diligence
investigations, and other advice and negotiation assistance
necessary in order to enable finance to be raised such that the
Transactions could be consummated, the Company will pay, at the
Effective Time (as defined herein), a fee to the Advisor of
$9,000,000.
SECTION 2. Appointment
. The Company hereby engages the Advisor to provide the
services described in Section 3 (the “ Services
”) for the term of this Agreement on the terms and subject to
the conditions of this Agreement.
SECTION 3. Services
. The Advisor hereby agrees that during the term of this
Agreement it shall render to the Company, by and through itself,
its affiliates, and their respective officers, employees, partners,
members, agents and representatives as the Advisor in its sole
discretion shall designate from time to time, advisory services
relating to the management of the investment business of the
Company, including, without limitation: (i) advice in designing
financing structures; (ii) advice regarding relationships with the
Company’s lenders and bankers; (iii) advice regarding the
structure and timing of public offerings of debt and equity
securities of the Company; (iv) advice regarding strategic
investments, joint ventures, acquisitions and dispositions; and (v)
such other advice directly related or ancillary to the above
advisory services as may be reasonably requested by the Company or
deemed appropriate by the Advisor in its sole discretion. It
is expressly agreed that the services to be performed hereunder
shall not include investment banking or other financial advisory
services rendered by the Advisor or its affiliates to the Company
in connection with any specific acquisition, divestiture,
refinancing or recapitalization by the Company. The Advisor
and its affiliates may be entitled to receive additional
compensation for providing services of the type specified in the
preceding sentence by mutual agreement of the Company or such
subsidiary, on the one hand, and the Advisor and such affiliates,
on the other hand.
SECTION 4. Monitoring Fee
.
(a)
In consideration of the Services being provided by the Advisor, the
Company will pay to the Advisor an aggregate annual monitoring fee
of $1,500,000 or 1.0% of Adjusted EBITDA (as defined below),
whichever is greater (the “ Monitoring Fee
”). The Monitoring Fee will be payable quarterly in
advance on January 1 st , April 1 st , July 1
st and October 1 st of each year (or if such
day is not a business day, then on the following business day), by
wire transfer in same-day funds to the bank account designated by
the Advisor, commencing at the Effective Time (as defined herein)
through the Termination Date (as defined below); provided
that the first Monitoring Fee hereunder will be payable on the
Effective Time and will be prorated for the period from the
Effective Time to the next quarterly payment date. For
purposes of this Agreement, “ Termination Date ”
means the earliest of (i) the date on which the funds managed
by the Advisor or its affiliates beneficially own less than 5% of
the common equity of the Company then outstanding on a fully
diluted basis, (ii) receipt by the Advisor of the Lump Sum Fee
in accordance with Section 4(c) and (iii) ten years from the
date hereof. For purposes of this Section 4, “Adjusted
EBITDA” shall have the meaning set forth in the Senior
Indenture dated November 2, 2004 between the Company and U.S. Bank
National Association, as trustee.
(b)
To the extent the Company does not pay any installment of the
Monitoring Fee when due for any reason, including by reason of any
prohibition on such payment pursuant to the terms of any debt
financing of any member of the Company’s group, the payment
by the Company to the Advisor of the accrued and payable Monitoring
Fee will be payable immediately on the earlier of (i) the
first date on which the payment of such deferred Monitoring Fee is
no longer prohibited under any contract applicable to such member
of the Company’s group and the Company is otherwise able to
make such payment, and (ii) total or partial liquidation,
dissolution
2
or
winding up of the Company. Any installment of the Monitoring
Fee not paid on the scheduled due date will bear interest at an
annual rate of 10%, compounded quarterly, from the date due until
paid.
(c)
Notwithstanding anything to the contrary contained in subparagraph
(a) above, the Advisor may elect at any time in connection with or
in anticipation of a change of control or an initial public
offering (or at any time thereafter) (which election can be made in
its sole discretion by the delivery of written notice to the
Company) to receive, in lieu of annual payments of the Monitoring
Fee, a single lump sum cash payment equal to the then present value
(using a discount rate equal to the yield to maturity on the
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