Back to top

EX-99.1 Fourth Amended and Restated Commitment Letter

Letter of Credit

EX-99.1 Fourth Amended and Restated Commitment Letter 

 | Document Parties: MORGAN STANLEY SENIOR FUNDING,    INC | UBS LOAN FINANCE LLC | JPMORGAN CHASE BANK, N.A. | Morgan Stanley & Co. Incorporated  | Citigroup Global Markets Inc |  Jefferies & Company, Inc | Jefferies Finance LLC You are currently viewing:
This Letter of Credit involves

MORGAN STANLEY SENIOR FUNDING, INC | UBS LOAN FINANCE LLC | JPMORGAN CHASE BANK, N.A. | Morgan Stanley & Co. Incorporated | Citigroup Global Markets Inc | Jefferies & Company, Inc | Jefferies Finance LLC

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.
Title: EX-99.1 Fourth Amended and Restated Commitment Letter
Governing Law: New York     Date: 1/2/2007
Industry: Electronic Instr. and Controls    

EX-99.1 Fourth Amended and Restated Commitment Letter 

, Parties: morgan stanley senior funding     inc , ubs loan finance llc , jpmorgan chase bank  n.a. , morgan stanley & co. incorporated  , citigroup global markets inc ,  jefferies & company  inc , jefferies finance llc
50 of the Top 250 law firms use our Products every day

 

 

 

 

 

MORGAN STANLEY SENIOR FUNDING,    INC. MORGAN STANLEY SENIOR FUNDING,

 

UBS LOAN FINANCE LLC

   NOVA SCOTIA

 

677 Washington Boulevard

MORGAN STANLEY & CO.

 

Stamford, Connecticut 06901

   INCORPORATED

 

UBS SECURITIES LLC

1585 Broadway

 

299 Park Avenue

New York, New York 10036

 

New York, New York 10171

JPMORGAN CHASE BANK, N.A.

 

THE BANK OF NOVA SCOTIA

J.P. MORGAN SECURITIES INC.

 

One Liberty Plaza

270 Park Avenue

 

New York, New York 10006

New York, New York 10017

 

JEFFERIES & COMPANY, INC.

CITIGROUP GLOBAL MARKETS INC.

 

JEFFERIES FINANCE LLC

390 Greenwich Street

 

520 Madison Avenue, 2nd Floor

New York, New York 10013

 

New York, NY 10022

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.

1.

 

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 .”

 

2.

 

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.

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.

3.

 

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.

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 .”

4.

 

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.

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.

5.

 

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.

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.

6.

 

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).

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.

7.

 

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.

 

8.

 

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.

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.]

1

We are pleased to have the opportunity to work with you in connection with this important financing.

Very truly yours,

 

 

 

MORGAN STANLEY & CO. INCORPORATED

 

 

 

By:

 

/s/ ANDREW W. EARLS

 

 

 

 

 

Name: Andrew W. Earls
Title: Executive Director

 

 

 

 

 

 

MORGAN STANLEY SENIOR FUNDING, INC.

 

 

 

 

By:

 

 

 

/s/ ANDREW W. EARLS

 

 

 

 

 

 

 

 

Name: Andrew W. Earls

 

 

 

 

 

 

 

 

Title: Vice President

 

 

 

 

 

 

MORGAN STANLEY SENIOR FUNDING, NOVA SCOTIA

 

 

 

 

 

By:

 

 

 

/s/

 

 

MICHAEL A. HART

 

 

 

 

 

 

 

 

Name: Michael A. Hart

 

 

 

 

 

 

 

 

 

Title: President

 

2

 

 

 

 

 

UBS LOAN FINANCE LLC

 

 

By:

 

 

 

/s/ KENNETH L. GAYRON

 

 

 

 

 

 

 

 

Name: Kenneth L. Gayron

 

 

 

 

 

 

 

 

Title: Executive Director

 

 

By:

 

 

 

/s/ ERIC BOOTSMA

 

 

 

 

 

 

 

 

Name: Eric Bootsma

 

 

 

 

 

 

 

 

 

 

Title: Director & Counsel

 

 

 

 

 

 

 

 

Region American Legal

 

 

 

 

 

 

UBS SECURITIES LLC

 

 

By:

 

 

 

/s/ KENNETH L. GAYRON

 

 

 

 

 

 

 

 

Name: Kenneth L. Gayron

 

 

 

 

 

 

 

 

Title: Executive Director

 

 

By:

 

 

 

/s/ ERIC BOOTSMA

 

 

 

 

 

 

 

 

Name: Eric Bootsma

 

 

 

 

 

 

 

 

 

 

Title: Director & Counsel

 

 

 

 

 

 

 

 

Region American Legal

 

 

 

 

 

 

JPMORGAN CHASE BANK, N.A.

 

 

 

 

By:

 

 

 

/s/ MARIAN SCHULMAN

 

 

 

 

 

 

 

 

Name: Marian Shulman

 

 

 

 

 

 

 

 

Title:

 

 

 

 

 

 

J.P. MORGAN SECURITIES INC.

 

 

By:

 

 

 

/s/ JESSICA KEARNS

 

 

 

 

 

 

 

 

Name: Jessica Kearns

 

 

 

 

 

 

 

 

 

 

Title: Managing Director

 

 

 

 

 

 

THE BANK OF NOVA SCOTIA

 

 

By:

 

 

 

/s/ M.R. BRADLEY

 

 

 

 

 

 

 

 

Name: M.R. Bradley

 

 

 

 

 

 

 

 

 

 

Title: Managing Director

 

 

 

 

 

 

CITIGROUP GLOBAL MARKETS INC.

 

 

By:

 

 

 

/s/ JAMES MCCUMMINGS

 

 

 

 

 

 

 

 

Name: James McCummings

 

 

 

 

 

 

 

 

Title: Managing Director

 

 

 

 

 

 

JEFFERIES & COMPANY, INC.

 

 

By:

 

 

 

/s/ MICHAEL HENKIN

 

 

 

 

 

 

 

 

Name: Michael Henkin

Title: Managing Director

 

 

 

JEFFERIES FINANCE LLC
By:

 


/s/ E.J. HESS

 

 

 

 

 

Name: E.J. Hess
Title: Managing Director

 

 

 

3

 

 

 

 

 

4363205 CANADA INC.

 

 

By:

 

 

/s/ RICHARD MASTOLONI

 

 

 

 

 

Name:

Richard Mastoloni

 

 

 

 

 

Title: President

 

 

 

By:

 

 

/s/

 

 

DEREK MURPHY

 

 

 

 

 

Name: Derek Murphy

 

 

 

 

 

 

 

 

Title: Secretary

 

 

 


 
SITE SEARCH

AGREEMENTS / CONTRACTS

Document Title:

Entire Document: (optional)

Governing Law:(optional)


Try our advanced search >>
 

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Get Email Updates
Email:
This is only a partial view of this document. We have millions of legal documents and clauses drafted by top law firms. learn more search for free browse for free learn more