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MORGAN STANLEY
SENIOR FUNDING, INC. MORGAN STANLEY SENIOR
FUNDING,
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UBS LOAN FINANCE LLC
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677
Washington Boulevard
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Stamford, Connecticut 06901
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UBS SECURITIES LLC
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299
Park Avenue
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New York, New York 10171
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JPMORGAN CHASE
BANK, N.A.
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THE BANK OF NOVA SCOTIA
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J.P. MORGAN
SECURITIES INC.
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One Liberty Plaza
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New York, New York 10006
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JEFFERIES & COMPANY, INC.
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CITIGROUP GLOBAL
MARKETS INC.
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JEFFERIES FINANCE LLC
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520
Madison Avenue, 2nd Floor
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New York, NY 10022
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February 1, 2007
4363205 Canada Inc.
c/o Loral Space & Communications Inc.
600 Third Avenue
New York, New York 10016
Attention: Richard Mastoloni, Treasurer
Project
Thunder
Fourth Amended and
Restated Commitment Letter
$2.179 Billion
Senior Secured Credit Facilities
$910 Million Senior
Unsecured Bridge Facility
Ladies and Gentlemen:
This Fourth Amended and Restated
Commitment Letter amends and restates in its entirety the Third
Commitment Letter dated January 19, 2007 among you, Morgan
Stanley Senior Funding, Inc. (“ MSSF ”), Morgan
Stanley Senior Funding, Nova Scotia (“ MSSFNS
”), Morgan Stanley & Co. Incorporated (“ MS
”), UBS Loan Finance LLC (“ UBS ”), UBS
Securities LLC (“ UBSS ”), JPMorgan Chase Bank,
N.A. (“ JPM ”), J.P. Morgan Securities Inc.
(“ JPMSI ”), The Bank of Nova Scotia (“
BNS ”), Citigroup Global Markets Inc. (“
CGMI ”), Jefferies & Company, Inc. (“
Jefferies ”) and Jefferies Finance LLC (“
Jefferies Finance ” and together with MSSF, MSSFNS,
MS, UBS, UBSS, JPM, JPMSI, BNS, CGMI and Jefferies, “
we ” or “ us ”) and will supersede
such letter in all respects.
Loral Space & Communications
Inc., a Delaware corporation (“ Loral ”), is the
direct parent of Loral Space & Communications Holdings
Corporation, a Delaware corporation (“ LSCH ”),
which in turn is the parent of Loral Holdings Corporation, a
Delaware Corporation, a Delaware Corporation (“ LHC
”). Loral or LSCH, together with PSPIB and Designee (each as
hereinafter defined) has formed 4363205 Canada Inc., a Canadian
corporation, which may be converted into an Alberta unlimited
liability company prior to the Closing Date (as defined below)
(“ Holdings ” or “ you ”),
1/3 of the voting stock of which will be owned by LHC and the
remaining 2/3 of the voting stock of which will be owned by the
Public Sector Pension Investment Board, a Canadian federal special
Act corporation or a subsidiary thereof (“ `PSPIB
”) and two individuals (collectively, the “
Designee ”). You have advised us that a newly formed
wholly owned indirect subsidiary of Holdings incorporated in Canada
(“ AcquireCo ”) will acquire all of the capital
stock of Telesat Canada, a Canadian corporation (the “
Target ”) and the Safe Income Notes (as defined in the
Acquisition Agreement) issued by the Target (defined below),
pursuant to a Share Purchase Agreement (including all exhibits,
schedules and other ancillary documents, the “ Acquisition
Agreement ”) among AcquireCo, BCE Inc., a Canadian
corporation and owner of all the capital stock of the Target
(“ Seller ”), and Target (the “
Acquisition ”). Promptly after the closing of the
Acquisition, AcquireCo shall transfer the capital stock of the
Target and the Safe Income Notes to a newly formed wholly owned
subsidiary of AcquireCo incorporated in Canada (“
InterCo ”) and InterCo and the Target and certain of
their affiliates will amalgamate. After giving effect to the
Acquisition and the Target Refinancing (as hereinafter defined),
Holdings will be a holding company that directly owns all of the
equity interests in AcquireCo which will directly own all the
equity interests in Interco. Certain assets of AcquireCo may be
transferred to another wholly owned subsidiary of Holdings (“
SisterCo ”). Except as otherwise described in Annex I
hereto, after giving effect to the Acquisition, AcquireCo is
referred to herein as the “ Borrower .”
Holdings, the Borrower, Interco and their subsidiaries are
collectively referred to herein as the “ Companies
.” JPM may provide its commitment hereunder or a portion
thereof through any of its lending affiliates and the reference to
“ JPM ” shall be deemed to include any such
affiliate. For purposes of this Commitment Letter, “
Citigroup ,” shall mean CGMI, Citibank, N.A., Citicorp
USA, Inc., Citicorp North America, Inc. and/or any of their
affiliates as Citigroup shall determine to be appropriate to
provide the services contemplated herein.
You have also advised us that either
concurrently with or within one year after the Acquisition,
AcquireCo or Holdings will acquire (the “ Skynet
Purchase ”) all of the capital stock or substantially all
of the assets of Loral Skynet Corporation, a Delaware corporation
and a direct wholly owned subsidiary of LSCH (“ Skynet
”). The Skynet Purchase will not include the stock or assets
of XTAR, L.L.C., Satelites Mexicanos S.A. de C.V., Globalstar,
Inc., Enlaces Integra, S. de R.L. de C.V or Loral SatMex Ltd. As a
result, the stock or assets of Skynet and the Target would be
directly or indirectly wholly owned by Holdings. For clarity, Loral
Skynet Corporation shall not be one of the Companies, unless and
until the Skynet Purchase is consummated (except for
inconsequential transactions which may be delayed with the consent
of the Lead Arrangers), provided that with respect to any
information required to be delivered or conveyed in connection with
the syndication of each of the Facilities and the placement of the
Notes, Loral Skynet Corporation shall be deemed to be one of the
Companies, unless the context otherwise requires.
You have also advised us that you
intend to finance the Acquisition for a purchase price of
approximately $2.854 billion, the Skynet Purchase, the costs
and expenses related to the Transaction (as hereinafter defined),
the repayment of certain existing indebtedness of the Target (the
“ Target Refinancing ”) and the redemption of
the preferred stock, the repayment of notes of Skynet and the
repayment of amounts owed to finance the construction, launch and
insurance of Telstar 11N (collectively, the “ Skynet
Refinancing ” and, together with the Target Refinancing,
the “ Refinancing ”) and the ongoing working
capital and other general corporate purposes of the Companies after
consummation of the Acquisition from the following sources (and
that no financing other than the financing described herein will be
required in connection with the Transaction): (a) up to the US
dollar equivalent of $2.179 billion in senior secured credit
facilities of the Borrower (collectively, the “ Senior
Credit Facilities ”), comprised of (i) a Canadian dollar
denominated Term A Loan facility of up to Cdn$500 million,
(ii) a Term B Loan facility of up to $1.054 billion
(subject to adjustment as described herein), (iii) a delayed
draw Term B-1 Loan facility of up to $386 million (the “
Term B-1 Loan Facility ”), which shall be available on
a delayed draw basis for the purposes described under
“Purpose” in Annex I hereto, (iv) a delayed draw
Term B-2 Loan facility of up to $150 million (the “
Term B-2 Loan Facility ”), which shall be available on
a delayed draw basis for the purposes described under
“Purpose” in Annex I hereto, and (v) a Canadian
dollar denominated revolving credit facility of up to the Canadian
dollar equivalent of $150 million (none of which will be drawn
upon consummation of the Acquisition except in connection with
replacement or backstopping outstanding letters of credit of the
Companies in an amount to be agreed and an additional amount, not
to exceed an amount to be agreed which will be available to the
extent of obligations in respect of hedging currency fluctuations);
(b) at least $910 million in gross proceeds from the
issuance and sale by the Borrower (and if requested by the Lead
Arrangers, a corporate co-Borrower) of senior notes (the “
Notes ”) or, alternatively, up to $910 million of
senior unsecured loans under a bridge facility (the “
Bridge Facility ” and, together with the Senior Credit
Facilities, the “ Facilities ”) to the Borrower
(such loans being the “ Bridge Loans ” and,
together with any Rollover Loans and Exchange Notes (as defined in
Annex II hereto), the “ Bridge Financing
”); and (c) common and preferred equity investments made
in cash of not less than $525 million (the “ Equity
Financing ”) by Loral or one of its subsidiaries, PSPIB
and Designee (the “ Equity Investors ”). The
Acquisition, the entering into and funding of the Senior Credit
Facilities, the issuance and sale of the Notes or the entering into
and funding of the Bridge Facility, the Target Refinancing and all
related transactions are hereinafter collectively referred to as
the “ Acquisition Transaction ”; the Skynet
Purchase and the Skynet Refinancing are collectively referred to as
the “ Skynet Transaction ”; and the Acquisition
Transaction and Skynet Transaction are collectively referred to as
the “ Transaction ”. The sources and uses for
the financing for the Transaction are as set forth on
Schedule I hereto. Immediately following the
Acquisition Transaction, the Companies shall have no indebtedness
for money borrowed or preferred stock outstanding other than the
Facilities and the Notes, the preferred stock referred to above,
capital leases not to exceed an amount to be determined and the
preferred stock and indebtedness to be subject to the Skynet
Refinancing. Unless otherwise noted, all references herein to
“$” and all dollar amounts are to U.S. dollars.
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1.
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Commitments. In connection with the
foregoing, (a) MSSF and MSSFNS are pleased to advise you of
their several commitment to provide 40.00% of the full principal
amount of the Senior Credit Facilities, UBS is pleased to advise
you of its several commitment to provide 27.5% of the full
principal amount of the Senior Credit Facilities, JPM is pleased to
advise you of its several commitment to provide 15.00% of the full
principal amount of the Senior Credit Facilities, BNS is pleased to
advise you of its several commitment to provide 10.00% of the full
principal amount of the Senior Credit Facilities, and Citigroup is
pleased to advise you of its several commitment to provide 7.5% of
the full principal amount of the Senior Credit Facilities, all upon
and subject to the terms and conditions set forth in this letter
and in the summary of terms attached as Annex I and
Annex III hereto (collectively, the “ Senior
Financing Summary of Terms ”); (b) MSSF is pleased
to advise you of its willingness to act as the sole and exclusive
administrative agent (in such capacity, the “
Administrative Agent ”) for the Senior Credit
Facilities, UBSS is pleased to advise you of its willingness to act
as the sole and exclusive syndication agent (in such capacity, the
“ Syndication Agent ”) for the Senior Credit
Facilities, each of BNS, JPM and Citigroup is pleased to advise you
of its willingness to act as co-documentation agent (in such
capacity, the “ Co-Documentation Agents ”) for
the Senior Credit Facilities, all upon and subject to the terms and
conditions set forth in this letter and in the Senior Financing
Summary of Terms; (c) each of MS, UBS and JPMSI is pleased to
advise you of their willingness, as the exclusive joint lead
arrangers and exclusive joint book running managers (only MS and
UBS in such capacities, the “ Senior Lead Arrangers
”) and each of BNS and Citigroup is pleased to advise you of
its willingness to act as a co-arranger, in each case, for the
Senior Credit Facilities, to form a syndicate of financial
institutions and institutional lenders (collectively, the “
Senior Lenders ”) in consultation with you for the
Senior Credit Facilities, including MSSF, UBS, JPM, BNS and
Citigroup with MSSF to appear “on the left” on all
marketing material and other documentation and UBS to appear
“on the left” of JPM and each of BNS and Citigroup to
appear below each of MSSF, UBS and JPM with BNS to appear “on
the left” of Citigroup; (d) MSSF and MSSFNS are pleased
to advise you of their several commitment to provide 40.00% of the
full principal amount of the Bridge Facility, UBS is pleased to
advise you of its several commitment to provide 27.5% of the full
principal amount of the Bridge Facility, JPM is pleased to advise
you of its several commitment to provide 15.00% of the full
principal amount of the Bridge Facility, BNS is pleased to advise
you of its several commitment to provide 10.00% of the full
principal amount of the Bridge Facility, and Jefferies Finance is
pleased to advise you of its several commitment to provide 7.5% of
the full principal amount of the Bridge Facility, all upon and
subject to the terms and conditions set forth in this letter and in
the summary of terms attached as Annex II and Annex
III hereto (collectively, the “ Bridge Summary of
Terms ” and, together with the Senior Financing Summary
of Terms, the “ Summaries of Terms ” and,
together with this letter agreement, the “ Commitment
Letter ”); and (e) each of MS, UBSS and JPMSI is
also pleased to advise you of their willingness, as the exclusive
joint lead arrangers and exclusive joint book running managers
(only MS and UBSS in such capacities, the “ Bridge Lead
Arrangers ”; MS and UBSS acting in their capacities as
Senior Lead Arrangers and/or Bridge Lead Arrangers are sometimes
referred to herein as the “ Lead Arrangers ”)
and each of BNS and Jefferies is pleased to advise you of its
willingness to act as a co-arranger, in each case for the Bridge
Facility, to form a syndicate of financial institutions and
institutional lenders (collectively, the “ Bridge
Lenders ” and, together with the Senior Lenders, the
“ Lenders ”) in consultation with you for the
Bridge Facility, including MS, UBSS, JPM, BNS and Jefferies Finance
(together, the “ Initial Bridge Lenders ”), with
MSSF and MSSFNS to appear “on the left” on all
marketing material and other documentation and UBS to appear
“on the left” of JPM and each of BNS and Jefferies
Finance to appear below each of MSSF, UBS and JPM with BNS to
appear “on the left” of Jefferies Finance. All
capitalized terms used and not otherwise defined herein shall have
the same meanings as specified therefor in the Summaries of Terms.
If you accept this Commitment Letter, the date of the initial
funding under the Senior Credit Facilities and of the Bridge
Facility (or of the issuance and sale of the Notes in lieu of
funding the Bridge Facility) is referred to herein as the “
Closing Date .”
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2.
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Syndication. The Lead Arrangers intend
to commence syndication of each of the Facilities promptly after
your acceptance of the terms of this Commitment Letter and the Fee
Letter to financial institutions and institutional lenders (such
persons that become party to the definitive documentation for the
Facilities, including MSSF, MSSFNS, UBS, JPM, BNS, Citigroup and
Jefferies Finance, collectively, the “ Lenders
”) in consultation with you, and the commitments of MSSF,
MSSFNS, UBS, JPM, BNS, Citigroup and Jefferies Finance hereunder
shall be reduced dollar-for-dollar with respect to the applicable
Facility on a pro rata basis as and when corresponding commitments
are received, provided that the Lenders remain liable for their
full commitment to the extent any assignee fails to fund its loans
under the Facilities on the Closing Date. Notwithstanding any
provision in this Commitment Letter or Fee Letter to the contrary,
syndication is not a condition to the obligations of the Lenders to
make their loans on the Closing Date. MSSF, MSSFNS, UBS, JPM, BNS
and Jefferies Finance collectively, however, shall retain at least
51% of the aggregate commitments in respect of the Bridge Facility.
You agree through the earlier of 180 days after the Closing
Date and the successful syndication of the Facilities to actively
assist, and to cause the Companies to actively assist, the Lead
Arrangers in achieving a syndication of each such Facility that is
satisfactory to the Lead Arrangers. Such assistance shall include
as soon as reasonably practicable, (a) your providing and
causing your advisors to provide the Lead Arrangers and the Lenders
upon request with all available information reasonably deemed
necessary by the Lead Arrangers to complete such syndication,
including, but not limited to, information and evaluations prepared
by you, the Companies and your and their advisors, or on your or
their behalf, relating to the Transaction, (b) your assistance
in the preparation of an Information Memorandum to be used in
connection with the syndication of each such Facility,
(c) your using your commercially reasonable efforts to have
the syndication efforts of the Lead Arrangers benefit materially
from your existing lending relationships and the existing lending
relationships of the Companies, and (d) your otherwise
assisting the Lead Arrangers in their syndication efforts,
including by making your and Skynet’s (and using your
commercially reasonable efforts to make Target’s) officers
and employees (other than Mark Rachesky, Sai Devabhaktuni, Hal
Goldstein and each other employee of MHR Fund Management LLC
(“ MHR ”) who is on the board of directors of
Loral other than the officers of Loral) and advisors available from
time to time to attend and make presentations regarding the
business and prospects of the Companies, as appropriate, at one or
more meetings of prospective Lenders and of rating agencies and
using your commercially reasonable efforts to obtain ratings of the
Companies, the Facilities and the Notes.
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You agree that no additional agents,
co-agents or lead arrangers will be appointed, or other titles
conferred, without the consent of the Lead Arrangers (such consent
not to be unreasonably withheld). For the avoidance of doubt, the
terms “Lead Arrangers”, “Senior Lead
Arrangers” and “Bridge Lead Arrangers” shall not
include JPMSI, BNS, Citigroup or Jefferies.
It is understood and agreed that the
Lead Arrangers will manage and control all aspects of the
syndication of each Facility in consultation with you, including
decisions as to the selection of prospective Lenders and (subject
to the immediately preceding paragraph) any titles offered to
prospective Lenders, when commitments will be accepted and the
final allocations of the commitments among the Lenders. It is
understood that no Lender participating in either Facility will
receive compensation from you in order to obtain its commitment,
except on the terms contained herein and in the Summaries of Terms.
It is also understood and agreed that the amount and distribution
of the fees among the Lenders will be at the sole discretion of the
Lead Arrangers.
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3.
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Information Requirements. You hereby
represent, warrant and covenant that (a) all information,
other than Projections (as defined below), that has been or is
hereafter made available to any Lead Arranger or any of the Lenders
by you or any of your representatives (or on your or their behalf)
or to your knowledge by any of the Target or any of its affiliates
or representatives (or on their behalf) in connection with any
aspect of the Transaction (the “ Information ”)
is and will be complete and correct in all material respects and
does not and will not, when taken as a whole, contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements contained therein not misleading
in light of the circumstances under which such statements were made
and (b) all financial projections concerning the Companies
that have been or are hereafter made available to any Lead Arranger
or any of the Lenders by you or any of your representatives (or on
your or their behalf) or to your knowledge by any of the Target or
its affiliates or representatives (or on their behalf) (the “
Projections ”) have been or will be prepared in good
faith based upon assumptions you believe to be reasonable at the
time made. It is understood that actual results may differ
materially from the Projections. You agree to furnish us with such
Information and Projections as we may reasonably request and to
supplement the Information and the Projections from time to time
until the Closing Date so that the representation, warranty and
covenant in the immediately preceding sentence is correct on the
Closing Date. In issuing this commitment and in arranging and
syndicating each of the Facilities, MS, MSSF, MSSFNS, UBS, UBSS,
JPM, JPMSI, BNS, Citigroup, Jefferies and Jefferies Finance are and
will be using and relying on the Information and the Projections
without independent verification thereof.
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You hereby acknowledge that
(a) MS, MSSF, and/or MSSFNS will make available Information
and Projections (collectively, “ Borrower Materials
”) to the proposed syndicate of Lenders by posting the
Borrower Materials on IntraLinks or another similar electronic
system (the “ Platform ”) and (b) certain
of the proposed Lenders may be “public-side” Lenders (
i.e ., Lenders that do not wish to receive material
non-public information with respect to the Borrower or its
securities) (each, a “ Public Lender ”). You
hereby agree that (w) you will use commercially reasonable
efforts to identify that portion of the Borrower Materials that may
be distributed to the Public Lenders and include a reasonably
detailed term sheet among such Borrower Materials and that all
Borrower Materials that are to be made available to Public Lenders
shall be clearly and conspicuously marked “ PUBLIC
” which, at a minimum, shall mean that the word
“PUBLIC” shall appear prominently on the first page
thereof; (x) by marking Borrower Materials
“PUBLIC,” you shall be deemed to have authorized MS,
MSSF, MSSFNS, UBS, UBSS, JPM, JPMSI, BNS, Citigroup, Jefferies and
Jefferies Finance and the proposed Lenders to treat such Borrower
Materials as not containing any material non-public information
with respect to the Borrower or its securities for purposes of
United States federal and state securities laws, it being
understood that certain of such Borrower Materials may be subject
to the confidentiality requirements of the definitive credit
documentation; (y) all Borrower Materials marked
“PUBLIC” are permitted to be made available through a
portion of the Platform designated “ Public Investor
”; and (z) MS, MSSF, MSSFNS, UBS, UBSS, JPM, JPMSI, BNS,
Citigroup, Jefferies and Jefferies Finance shall be entitled to
treat any Borrower Materials that are not marked
“PUBLIC” as being suitable only for posting on a
portion of the Platform not designated “ Public
Investor .”
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4.
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Fees and Indemnities. You agree to pay
the fees set forth in the Fee Letter dated as of the date hereof
(the “ Fee Letter ”) among the parties hereto.
If and only if the Closing Date occurs, you also agree to reimburse
MS, MSSF, MSSFNS, UBS, UBSS, JPM, JPMSI, BNS, Citigroup, Jefferies
and Jefferies Finance from time to time upon presentation of a
summary statement for all reasonable out-of-pocket fees and
expenses (including, but not limited to, the reasonable fees,
disbursements and other charges of Cahill Gordon & Reindel llp,
as counsel to the Lead Arrangers, the other parties hereto and the
Administrative Agent, and of any special regulatory counsel and
local counsel to the Lenders retained by the Lead Arrangers and due
diligence expenses) incurred in connection with the Facilities, the
syndication thereof and the preparation of the definitive
documentation therefor and the other transactions contemplated
hereby, provided that you shall not be liable for the fees
and expenses of more than one counsel to the Lead Arrangers and the
Administrative Agent, as well as regulatory counsel and Canadian
counsel.
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You also agree to indemnify and hold
harmless MS, MSSF, MSSFNS, UBS, UBSS, JPM, JPMSI, BNS, Citigroup,
Jefferies and Jefferies Finance, each other Lender and each of
their affiliates and their officers, directors, employees, agents,
advisors and other representatives (each, an “ Indemnified
Party ”) from and against (and will reimburse each
Indemnified Party as the same are incurred for) any and all claims,
damages, losses, liabilities and expenses (including, without
limitation, the reasonable fees, disbursements and other charges of
counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection
with or by reason of (including, without limitation, in connection
with any investigation, litigation or proceeding or preparation of
a defense in connection therewith) (a) any aspect of the
Transaction or any related transaction and any of the other
transactions contemplated thereby or (b) the Facilities and
any other financings in connection with the Transaction, or any use
made or proposed to be made with the proceeds, except, in each
case, to the extent such claim, damage, loss, liability or expense
is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified
Party’s gross negligence or willful misconduct. In the case
of an investigation, litigation or proceeding to which the
indemnity in this paragraph applies, such indemnity shall be
effective whether or not such investigation, litigation or
proceeding is brought by you, your equity holders or creditors or
an Indemnified Party, whether or not an Indemnified Party is
otherwise a party thereto and whether or not any aspect of the
Transaction is consummated. You also agree that no Indemnified
Party shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to you or your subsidiaries or
affiliates or to your or their respective equity holders or
creditors arising out of, related to or in connection with any
aspect of the Transaction, except to the extent of direct (as
opposed to special, indirect, consequential or punitive) damages
determined in a final non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified
Party’s gross negligence or willful misconduct. It is further
agreed that each of MS, MSSF, MSSFNS, UBS, UBSS, JPM, JPMSI, BNS,
Citigroup, Jefferies and Jefferies Finance shall only have
liability to you (as opposed to any other person), and that each of
MS, MSSF, MSSFNS, UBS, UBSS, JPM, JPMSI, BNS, Citigroup, Jefferies
and Jefferies Finance shall be liable solely in respect of its own
commitment to the Facilities on a several, and not joint, basis
with any other Lenders, and that such liability shall only arise to
the extent damages have been caused by breach of MS’s,
MSSF’s, MSSFNS’s, UBS’s, UBSS’s,
JPM’s, JPMSI’s, BNS’s, Citigroup’s,
Jefferies’s or Jefferies Finance’s, as the case may be,
obligations hereunder to negotiate in good faith definitive
documentation for the applicable Facility on the terms set forth
herein, as determined in a final, non-appealable judgment by a
court of competent jurisdiction. Notwithstanding any other
provision of this Commitment Letter, (a) no Indemnified Party
shall be liable for any damages arising from the use by others of
information or other materials obtained through electronic
telecommunications or other information transmission systems and
(b) you shall not be obligated to indemnify any Indemnified
Party in its capacity as an advisor to the Target.
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5.
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Conditions to Financing. The commitment
of MSSF, MSSFNS, UBS, JPM, BNS and Citigroup in respect of the
Senior Credit Facilities, the commitment of MSSF, MSSFNS, UBS, JPM,
BNS and Jefferies Finance in respect of the Bridge Facility and the
undertaking of each of MS, UBSS, JPMSI, BNS, Citigroup and
Jefferies to provide the services described herein are subject to
the satisfaction of each of the conditions set forth in
Annex III hereto and each of the following conditions
precedent: (a) in the case of the Senior Credit Facilities and
the Bridge Facility, respectively, you shall have accepted the Fee
Letter as provided therein for the Senior Credit Facilities, the
Bridge Facility or all such Facilities, as the case may be; and you
shall have paid, or caused the Companies to pay, all applicable
fees and expenses (including the reasonable fees and disbursements
of counsel) that are due thereunder, which fees and expenses may be
paid with the proceeds of Loans to be made on the Closing Date, (b)
the negotiation, execution and delivery of definitive documentation
(the “ Facilities Documentation ”) with respect
to each such Facility reflecting the Summaries of Terms and
otherwise reasonably satisfactory to the Lead Arrangers, and
(c) prior to and during the syndication of the Facilities,
there shall be no offering, placement or arrangement of any debt
securities (other than the Notes), preferred stock (other than to
the extent issued to Equity Investors) or bank financing by or on
behalf of any of the Companies or Loral or any of its subsidiaries
which could reasonably be expected to adversely affect the
syndication of the Facilities or the marketing of the Notes,
subject to exceptions to be discussed and mutually agreed and
provided that such restriction shall not apply prior to
March 1, 2007 to equity issuances of Loral and its
subsidiaries and the revolving facility of Space Systems/Loral,
Inc. (“ SS/L ”) previously described to the Lead
Arrangers.
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Notwithstanding anything in this
Commitment Letter, the Fee Letter, the Facilities Documentation or
any other letter agreement or other undertaking concerning the
financing of the Transactions to the contrary, (i) the only
representations relating to the Target, its subsidiaries and their
businesses the making of which shall be a condition to availability
of the Facilities on the Closing Date shall be (A) such of the
representations made by the Target in the Acquisition Agreement as
are material to the interests of the Lenders, but only to the
extent that you have the right to terminate your obligations under
the Acquisition Agreement as a result of a breach of such
representations in the Acquisition Agreement and (B) the
Specified Representations (as defined below) and (ii) the
terms of the Facilities Documentation shall be in a form such that
they do not impair availability of the Facilities on the Closing
Date if the conditions set forth herein, in the Summaries of Terms
and in Annex III hereto are satisfied (it being
understood that, to the extent any Collateral (each as defined in
the Summaries of Terms hereto) is not provided on the Closing Date
after your use of commercially reasonable efforts to do so, except
as provided in Annex III hereto, the delivery of such
Collateral shall not constitute a condition precedent to the
availability of the Facilities on the Closing Date but shall be
required to be delivered after the Closing Date pursuant to
arrangements to be mutually agreed) (it being understood that
commercially reasonable efforts in this context shall mean at a
minimum that UCC and Canadian PPSA filings have been filed for each
of the Companies and stock certificates have been delivered). Those
matters that are not covered by or made clear under the provisions
of this Commitment Letter and the Summaries of Terms are subject to
the approval and agreement of the Lead Arrangers and you;
provided that such approvals and agreements shall be in a
manner that is consistent with the Summaries of Terms and customary
and appropriate for transactions of this type. For purposes hereof,
“ Specified Representations ” means the
representations and warranties set forth in the Summaries of Terms
relating to corporate power and authority, the enforceability of
the Facilities Documentation, compliance with margin regulations
and status under the Investment Company Act.
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6.
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Confidentiality and Other Obligations.
This Commitment Letter and the Fee Letter and the contents hereof
and thereof are confidential and, except for the disclosure hereof
or thereof on a confidential basis to your investors and your
accountants, attorneys and other professional advisors retained in
connection with the Transaction, may not be disclosed in whole or
in part to any person or entity without our prior written consent
(which will not be unreasonably withheld); provided ,
however , it is understood and agreed that you may disclose
this Commitment Letter (including the Summaries of Terms) but not
the Fee Letter (a) on a confidential basis to the board of
directors and advisors of Target in connection with their
consideration of the Transaction, (b) after your acceptance of
this Commitment Letter and the Fee Letter, in filings with the
Securities and Exchange Commission or in any offering memorandum
related to the Notes or Facilities and other applicable regulatory
authorities and stock exchanges and (c) as otherwise required
by law or compulsory legal process (in which case you agree to give
us prompt written notice thereof).
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You acknowledge that MS, MSSF,
MSSFNS, UBS, UBSS, JPM, JPMSI, BNS, Citigroup, Jefferies and
Jefferies Finance or their respective affiliates may be providing
financing or other services to parties whose interests may conflict
with yours, other than competing bidders for the Target and its
affiliates. However, be assured that, consistent with their
longstanding policy to hold in confidence the affairs of their
customers, none of MS, MSSF, MSSFNS, UBS, UBSS, JPM, JPMSI, BNS,
Citigroup, Jefferies or Jefferies Finance will furnish confidential
information obtained from you to any of their other customers, and
each of them will treat confidential information relating to you,
the Companies and your and their respective affiliates with the
same degree of care as they treat their own confidential
information. By the same token, none of MS, MSSF, MSSFNS, UBS,
UBSS, JPM, JPMSI, BNS, Citigroup, Jefferies or Jefferies Finance
will make available to you confidential information that they have
obtained or may obtain from any other customer. In connection with
the services and transactions contemplated hereby, you agree that
each of MS, MSSF, MSSFNS, UBS, UBSS, JPM, JPMSI, BNS, Citigroup,
Jefferies and Jefferies Finance are permitted to access, use and
share with any of their bank or non-bank affiliates, agents,
advisors (legal or otherwise) or representatives, any information
concerning you, the Companies or any of your or their respective
affiliates that is or may come into the possession of any of them
or any of such affiliates.
In connection with all aspects of
each transaction contemplated by this letter, you acknowledge and
agree, and acknowledge your affiliates’ understanding, that:
(i) the Senior Credit Facilities and any related arranging or
other services described in this letter is an arm’s-length
commercial transaction between you and your affiliates, on the one
hand, and MS, MSSF, MSSFNS, UBS, UBSS, JPM, JPMSI, BNS, Citigroup,
Jefferies and Jefferies Finance, on the other hand, and you are
capable of evaluating and understanding and understand and accept
the terms, risks and conditions of the transactions contemplated by
this letter; (ii) in connection with each transaction contemplated
hereby and the process leading to such transaction, MS, MSSF,
MSSFNS, UBS, UBSS, JPM, JPMSI, BNS, Citigroup, Jefferies and
Jefferies Finance each is and has been acting solely as a principal
and is not acting as an agent or fiduciary, for you or any of your
affiliates, stockholders, creditors or employees or any other
party; (iii) none of MS, MSSF, MSSFNS, UBS, UBSS, JPM, JPMSI,
BNS, Citigroup, Jefferies or Jefferies Finance has assumed or will
assume an advisory or fiduciary responsibility in your or your
affiliates’ favor with respect to any of the transactions
contemplated hereby or the process leading thereto (irrespective of
whether MS, MSSF, MSSFNS, UBS, UBSS, JPM, JPMSI, BNS, Citigroup,
Jefferies or Jefferies Finance has advised or is currently advising
you or your affiliates on other matters) and none of MS, MSSF,
MSSFNS, UBS, UBSS, JPM, JPMSI, BNS, Citigroup, Jefferies or
Jefferies Finance has any obligation to you or your affiliates with
respect to the transactions contemplated hereby except those
obligations expressly set forth in this letter and certain other
letters under which advisory services are being offered;
(iv) MS, MSSF, MSSFNS, UBS, UBSS, JPM, JPMSI, BNS, Citigroup,
Jefferies and Jefferies Finance and their respective affiliates may
be engaged in a broad range of transactions that involve interests
that differ from yours and your affiliates and MS, MSSF, MSSFNS,
UBS, UBSS, JPM, JPMSI, BNS, Citigroup, Jefferies and Jefferies
Finance have no obligation to disclose any of such interests by
virtue of any fiduciary or advisory relationship; and (v) MS,
MSSF, MSSFNS, UBS, UBSS, JPM, JPMSI, BNS, Citigroup, Jefferies and
Jefferies Finance have not provided any legal, accounting,
regulatory or tax advice with respect to any of the transactions
contemplated hereby and you have consulted your own legal,
accounting, regulatory and tax advisors to the extent you have
deemed appropriate. You hereby waive and release, to the fullest
extent permitted by law, any claims that you may have against MS,
MSSF, MSSFNS, UBS, UBSS, JPM, JPMSI, BNS, Citigroup, Jefferies and
Jefferies Finance with respect to any breach or alleged breach of
fiduciary duty.
MS, MSSF, MSSFNS, UBS, UBSS, JPM,
JPMSI, BNS, Citigroup, Jefferies and Jefferies Finance hereby
notify you that pursuant to the requirements of the USA PATRIOT
Act, Title III of Pub. L. 107-56 (signed into law October 26,
2001) (the “ Act ”), each of them is required to
obtain, verify and record information that identifies you, which
information includes your name and address and other information
that will allow any of them, as applicable, to identify you in
accordance with the Act.
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7.
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Survival of Obligations. The provisions
of numbered paragraphs 3, 4 and 6 shall remain in full force and
effect regardless of whether any definitive documentation for the
Facilities shall be executed and delivered and notwithstanding the
termination of this Commitment Letter or any commitment or
undertaking of MS, MSSF, MSSFNS, UBS, UBSS, JPM, JPMSI, BNS,
Citigroup, Jefferies and Jefferies Finance hereunder;
provided , however , that you shall be deemed
released from your obligations hereunder (other than those
contained in numbered paragraphs 2, 3 and 6) (i) if you have
accepted the commitments hereunder in respect of the Senior Credit
Facilities, upon the execution and delivery by the Companies of all
definitive documentation for the Senior Credit Facilities and the
initial extension of credit thereunder and/or (ii) if you have
accepted the commitments hereunder in respect of the Bridge
Facility, upon the execution and delivery by the Companies of all
definitive documentation for the Bridge Facility and the initial
extension of credit thereunder or the execution and delivery by the
Companies of all definitive documentation for the Notes and the
issuance and sale thereof on the Closing Date.
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8.
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Miscellaneous. This Commitment Letter
and the Fee Letter may be executed in multiple counterparts and by
different parties hereto in separate counterparts, all of which,
taken together, shall constitute an original. Delivery of an
executed counterpart of a signature page to this Commitment Letter
or the Fee Letter by telecopier or other method of electronic
delivery shall be effective as delivery of a manually executed
counterpart thereof.
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This Commitment Letter and the Fee
Letter shall be governed by, and construed in accordance with, the
laws of the State of New York. Each of you, MS, MSSF, MSSFNS, UBS,
UBSS, JPM, JPMSI, BNS, Citigroup, Jefferies and Jefferies Finance
hereby irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Commitment Letter
(including, without limitation, the Summaries of Terms), the Fee
Letter, the Transaction and the other transactions contemplated
hereby and thereby or the actions of MS, MSSF, MSSFNS, UBS, UBSS,
JPM, JPMSI, BNS, Citigroup, Jefferies and Jefferies Finance in the
negotiation, performance or enforcement hereof. Each of you, MS,
MSSF, MSSFNS, UBS, UBSS, JPM, JPMSI, BNS, Citigroup, Jefferies and
Jefferies Finance hereby irrevocably submits to the jurisdiction of
any New York State court or Federal court sitting in the Borough of
Manhattan in New York City in respect of any suit, action or
proceeding arising out of or relating to the provisions of this
Commitment Letter (including, without limitation, the Summaries of
Terms), the Fee Letter, the Transaction and the other transactions
contemplated hereby and thereby and irrevocably agrees that all
claims in respect of any such suit, action or proceeding may be
heard and determined in any such court. Each of you, MS, MSSF,
MSSFNS, UBS, UBSS, JPM, JPMSI, BNS, Citigroup, Jefferies and
Jefferies Finance waives, to the fullest extent permitted by
applicable law, any objection that it may now or hereafter have to
the laying of the venue of any such suit, action or proceedings
brought in any such court, and any claim that any such suit, action
or proceeding brought in any such court has been brought in an
inconvenient forum.
This Commitment Letter, together
with the Summaries of Terms and the Fee Letter, embodies the entire
agreement and understanding among MS, MSSF, MSSFNS, UBS, UBSS, JPM,
JPMSI, BNS, Citigroup, Jefferies, Jefferies Finance you and your
and their affiliates with respect to the Facilities and supersedes
all prior agreements and understandings relating to the subject
matter hereof. No party has been authorized by MS, MSSF, MSSFNS,
UBS, UBSS, JPM, JPMSI, BNS, Citigroup, Jefferies and Jefferies
Finance to make any oral or written statements that are
inconsistent with this Commitment Letter.
This Commitment Letter is not
assignable by you without our prior written consent and is intended
to be solely for the benefit of the parties hereto and the
Indemnified Parties.
In respect of any judgment or order
given or made for any amount due to any person under the Commitment
Letter or the Fee Letter that is expressed and paid in a currency
(the “ judgment currency ”) other than United
States dollars, you will indemnify such person against any loss
incurred by such person as a result of any variation as between (i)
the rate of exchange at which the United States dollar amount is
converted into the judgment currency for the purpose of such
judgment or order and (ii) the rate of exchange at which such
person is able to purchase United States dollars with the amount of
the judgment currency actually received by such person. The
foregoing indemnity shall constitute a separate and independent
obligation of yours and shall survive any termination of the
Commitment and Fee Letters, shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term
“rate of exchange” shall include any premiums and costs
of exchange payable in connection with the purchase of or
conversion into United States dollars.
All commitments and undertakings of
MSSF, MSSFNS, UBS, JPM, BNS and Citigroup under this Commitment
Letter with respect to the Senior Credit Facilities will expire at
12:30 p.m. (New York City time) on February 1, 2007
unless you execute this Commitment Letter as provided below and the
Fee Letter as provided therein to accept such commitments and
return them to us prior to that time. All commitments and
undertakings of MS, MSSF, MSSFNS, UBS, UBSS, JPM, JPMSI, BNS,
Citigroup, Jefferies and Jefferies Finance hereunder with respect
to the Bridge Facility will also expire at that time unless you
execute this Commitment Letter and the Fee Letter and return them
to us prior to that time. Thereafter, all accepted commitments and
undertakings of MSSF, MSSFNS, UBS, JPM, BNS, Citigroup, Jefferies
and Jefferies Finance hereunder will expire on the earliest of
(a) the date that is three-hundred sixty five days from
December 16, 2006 (subject to extension in the discretion of
MS, MSSF, MSSFNS, UBS, UBSS, JPM, JPMSI, BNS, Citigroup, Jefferies
and Jefferies Finance), unless the Closing Date occurs on or prior
thereto, (b) the closing of the Acquisition, and (c) the
termination of the Acquisition Agreement in accordance with the
terms thereof.
[The remainder of this
page intentionally left blank.]
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We are pleased to have the opportunity to work with you in
connection with this important financing.
Very truly yours,
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MORGAN STANLEY & CO. INCORPORATED
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/s/ ANDREW W. EARLS
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Name: Andrew W. Earls
Title: Executive Director
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MORGAN STANLEY SENIOR FUNDING, INC.
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By:
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/s/
ANDREW W. EARLS
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Name:
Andrew W. Earls
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Title: Vice President
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MORGAN STANLEY SENIOR FUNDING, NOVA SCOTIA
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By:
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/s/
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MICHAEL A. HART
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Name:
Michael A. Hart
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Title: President
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2
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UBS
LOAN FINANCE LLC
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By:
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/s/
KENNETH L. GAYRON
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Name:
Kenneth L. Gayron
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Title: Executive Director
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By:
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/s/
ERIC BOOTSMA
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Name:
Eric Bootsma
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Title: Director & Counsel
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Region American Legal
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UBS
SECURITIES LLC
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By:
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/s/
KENNETH L. GAYRON
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Name:
Kenneth L. Gayron
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Title: Executive Director
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By:
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/s/
ERIC BOOTSMA
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Name:
Eric Bootsma
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Title: Director & Counsel
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Region American Legal
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JPMORGAN CHASE BANK, N.A.
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By:
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/s/
MARIAN SCHULMAN
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Name:
Marian Shulman
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Title:
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J.P.
MORGAN SECURITIES INC.
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By:
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/s/
JESSICA KEARNS
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Name:
Jessica Kearns
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Title: Managing Director
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THE
BANK OF NOVA SCOTIA
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By:
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/s/
M.R. BRADLEY
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Name:
M.R. Bradley
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Title: Managing Director
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CITIGROUP GLOBAL MARKETS INC.
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By:
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/s/
JAMES MCCUMMINGS
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Name:
James McCummings
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Title: Managing Director
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JEFFERIES & COMPANY, INC.
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By:
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/s/
MICHAEL HENKIN
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Name:
Michael Henkin
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Title: Managing
Director
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JEFFERIES FINANCE LLC
By:
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/s/ E.J. HESS
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Name: E.J. Hess
Title: Managing Director
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3
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4363205 CANADA INC.
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By:
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/s/
RICHARD MASTOLONI
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Name:
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Richard Mastoloni
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Title: President
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By:
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/s/
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DEREK
MURPHY
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Name:
Derek Murphy
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Title: Secretary
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