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Exhibit 99.6
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$300,000,000
CREDIT AGREEMENT
Dated as of April 22, 2005,
Among
HUGHES NETWORK SYSTEMS, LLC,
as Borrower,
THE LENDERS PARTY HERETO,
JPMORGAN CHASE BANK, N.A.
as Administrative Agent,
BEAR STEARNS CORPORATE LENDING INC.,
as Syndication Agent
_________________
J.P. MORGAN SECURITIES INC.
and
BEAR, STEARNS & CO. INC.,
as Joint Lead Arrangers and Joint Bookrunners
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TABLE OF CONTENTS
ARTICLE I
Definitions
<S> <C> <C>
SECTION 1.01. Defined
Terms..............................................................................1
SECTION 1.02. Terms
Generally...........................................................................41
SECTION 1.03. Effectuation of
Transfers.................................................................41
ARTICLE II
The Credits
SECTION 2.01.
Commitments...............................................................................41
SECTION 2.02. Loans and
Borrowings......................................................................42
SECTION 2.03. Requests for
Borrowings...................................................................42
SECTION 2.04. Swingline
Loans...........................................................................43
SECTION 2.05. Letters of
Credit.........................................................................44
SECTION 2.06. Funding of
Borrowings.....................................................................48
SECTION 2.07. Interest
Elections........................................................................48
SECTION 2.08. Termination and Reduction of
Commitments..................................................50
SECTION 2.09. Repayment of Loans; Evidence of
Debt......................................................50
SECTION 2.10. Repayment of Term Loans and Revolving Facility
Loans......................................51
SECTION 2.11. Prepayment of
Loans.......................................................................52
SECTION 2.12.
Fees......................................................................................53
SECTION 2.13.
Interest..................................................................................54
SECTION 2.14. Alternate Rate of
Interest................................................................54
SECTION 2.15. Increased
Costs...........................................................................55
SECTION 2.16. Break Funding
Payments....................................................................56
SECTION 2.17.
Taxes.....................................................................................56
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs...............................57
SECTION 2.19. Mitigation Obligations; Replacement of
Lenders............................................59
SECTION 2.20. Increase in Term Loan Commitments and Revolving
Facility Commitments......................60
SECTION 2.21.
Illegality................................................................................61
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization;
Powers......................................................................61
SECTION 3.02.
Authorization.............................................................................62
SECTION 3.03.
Enforceability............................................................................62
SECTION 3.04. Governmental
Approvals....................................................................62
SECTION 3.05. Financial
Statements......................................................................63
SECTION 3.06. No Material Adverse Change or Material Adverse
Effect.....................................63
SECTION 3.07. Title to Properties; Possession Under
Leases..............................................64
SECTION 3.08.
Subsidiaries..............................................................................64
SECTION 3.09. Litigation; Compliance with
Laws..........................................................64
SECTION 3.10. Federal Reserve
Regulations...............................................................65
SECTION 3.11. Investment Company Act: Public Utility Holding
Company Act................................65
SECTION 3.12. Use of
Proceeds...........................................................................65
SECTION 3.13. Tax
Returns...............................................................................65
SECTION 3.14. No Material
Misstatements.................................................................66
SECTION 3.15. Employee Benefit
Plans....................................................................66
SECTION 3.16. Environmental
Matters.....................................................................67
SECTION 3.17. Security
Documents........................................................................67
SECTION 3.18. Location of Real
Property.................................................................68
SECTION 3.19.
Solvency..................................................................................68
SECTION 3.20. Labor
Matters.............................................................................69
SECTION 3.21.
Insurance.................................................................................69
SECTION 3.22. Representations and Warranties in Transaction
Agreement...................................69
SECTION 3.23. Communications Licenses,
etc..............................................................69
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit
Events.........................................................................70
SECTION 4.02. First Credit
Event........................................................................70
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and
Properties......................................................74
SECTION 5.02.
Insurance.................................................................................74
SECTION 5.03.
Taxes.....................................................................................76
SECTION 5.04. Financial Statements, Reports,
etc........................................................76
SECTION 5.05. Litigation and Other
Notices..............................................................78
SECTION 5.06. Compliance with
Laws......................................................................79
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections.................................79
SECTION 5.08. Use of
Proceeds...........................................................................79
SECTION 5.09. Compliance with Environmental
Laws........................................................79
SECTION 5.10. Further Assurances; Additional
Mortgages..................................................79
SECTION 5.11. Fiscal Year;
Accounting...................................................................81
SECTION 5.12. Interest Rate Protection
Agreements.......................................................81
SECTION 5.13.
Rating....................................................................................81
ARTICLE VI
Negative Covenants
SECTION 6.01.
Indebtedness..............................................................................82
SECTION 6.02.
Liens.....................................................................................84
SECTION 6.03. Sale and Lease-Back
Transactions..........................................................87
SECTION 6.04. Investments, Loans and
Advances...........................................................87
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions.................................89
SECTION 6.06. Dividends and
Distributions...............................................................91
SECTION 6.07. Transactions with
Affiliates..............................................................93
SECTION 6.08. Business of the Borrower and the
Subsidiaries.............................................95
SECTION 6.09. Limitation on Modifications of Indebtedness;
Modifications of Certificate of
Incorporation, By-Laws and Certain Other Agreements;
etc............................95
SECTION 6.10. Capital
Expenditures......................................................................97
SECTION 6.11. Interest Coverage
Ratio...................................................................97
SECTION 6.12. First Lien Leverage
Ratio.................................................................98
SECTION 6.13. Debt to Adjusted EBITDA
Ratio.............................................................98
SECTION 6.14. Swap
Agreements...........................................................................99
ARTICLE VII
Events of Default
SECTION 7.01. Events of
Default.........................................................................99
SECTION 7.02. Exclusion of Immaterial
Subsidiaries.....................................................101
SECTION 7.03. Borrower's Right to
Cure.................................................................102
ARTICLE VIII
The Agents
SECTION 8.01. Appointment.
...........................................................................102
SECTION 8.02. Delegation of
Duties.....................................................................103
SECTION 8.03. Exculpatory
Provisions...................................................................103
SECTION 8.04. Reliance by Administrative
Agent.........................................................103
SECTION 8.05. Notice of
Default........................................................................103
SECTION 8.06. Non-Reliance on Agents and Other
Lenders.................................................104
SECTION 8.07.
Indemnification..........................................................................104
SECTION 8.08. Agent in Its Individual
Capacity.........................................................104
SECTION 8.09. Successor Administrative
Agent...........................................................105
SECTION 8.10. Syndication
Agent........................................................................105
ARTICLE IX
Miscellaneous
SECTION 9.01.
Notices..................................................................................105
SECTION 9.02. Survival of
Agreement....................................................................106
SECTION 9.03. Binding
Effect...........................................................................106
SECTION 9.04. Successors and
Assigns...................................................................106
SECTION 9.05. Expenses;
Indemnity......................................................................109
SECTION 9.06. Right of
Set-off.........................................................................110
SECTION 9.07. Applicable
Law...........................................................................110
SECTION 9.08. Waivers;
Amendment.......................................................................110
SECTION 9.09. Interest Rate
Limitation.................................................................112
SECTION 9.10. Entire
Agreement.........................................................................112
SECTION 9.11. WAIVER OF JURY
TRIAL.....................................................................113
SECTION 9.12.
Severability.............................................................................113
SECTION 9.13.
Counterparts.............................................................................113
SECTION 9.14.
Headings.................................................................................113
SECTION 9.15. Jurisdiction; Consent to Service of
Process..............................................113
SECTION 9.16.
Confidentiality..........................................................................114
SECTION 9.17. JPMorgan Chase Bank, N.A. Direct Website
Communications..................................115
SECTION 9.18. Release of Liens and
Guarantees..........................................................115
SECTION 9.19. USA PATRIOT
ACT..........................................................................116
SECTION 9.20. Regulatory
Matters.......................................................................116
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Exhibits and Schedules
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Administrative Questionnaire
Exhibit C-1 Form of Borrowing Request
Exhibit C-2 Form of Swingline Borrowing Request
Exhibit D Form of Mortgage
Exhibit E Form of Collateral Agreement
Exhibit F Form of Solvency Certificate
Exhibit G Form of Real Property Officers' Certificate
Exhibit H Form of Parent Pledge Agreement
Exhibit I Form of Intercreditor Agreement
Schedule 1.01(a) Certain U.S. Subsidiaries
Schedule 1.01(b) Mortgaged Properties
Schedule 1.01(c) Closing Date First Tier Foreign
Subsidiaries
Schedule 2.01 Commitments
Schedule 3.01 Organization and Good Standing
Schedule 3.04 Governmental Approvals
Schedule 3.07(b) Possession under Leases
Schedule 3.07(c) Intellectual Property
Schedule 3.08(a) Subsidiaries
Schedule 3.08(b) Subscriptions
Schedule 3.09 Litigation
Schedule 3.13 Taxes
Schedule 3.16 Environmental Matters
Schedule 3.20 Labor Matters
Schedule 3.21 Insurance
Schedule 3.23 Communications Licenses
Schedule 4.02(b) Local U.S. and/or Foreign Counsel
Schedule 5.10(h) Post-Closing First Tier Foreign
Subsidiaries
Schedule 6.01 Indebtedness
Schedule 6.02(a) Liens
Schedule 6.04 Investments
Schedule 6.05 Asset Sales
Schedule 6.07 Transactions with Affiliates
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CREDIT AGREEMENT dated as of April 22, 2005 (this "Agreement"),
among
HUGHES NETWORK SYSTEMS LLC, a Delaware limited liability company
(the
"Borrower"), the LENDERS party hereto from time to time,
JPMORGAN CHASE BANK,
N.A., as administrative agent (in such capacity, the
"Administrative Agent") for
the Lenders, BEAR, STEARNS CORPORATE LENDING INC., as
syndication agent (in such
capacity, the "Syndication Agent"), and JPMORGAN SECURITIES INC.
and BEAR,
STEARNS & CO. INC., as joint lead arrangers and joint book
managers (in such
capacity, the "Joint Lead Arrangers").
WHEREAS, Hughes Network Systems, Inc., a Delaware corporation
("HNS"),
has indirectly formed the Borrower, to be jointly owned as of
the date hereof by
HNS and SkyTerra Communications, Inc., a Delaware corporation
("SkyTerra"; and
together with HNS and their successors and assigns, the
"Parents") (it being
understood that if, after the date hereof, SkyTerra assigns or
otherwise
transfers its interests in the Borrower to any of its
Subsidiaries, "SkyTerra"
shall thereafter mean such Subsidiary), for the purpose of
entering into that
certain Contribution and Membership Interest Purchase Agreement
(the
"Transaction Agreement") dated December 3, 2004, as amended on
January 28, 2005,
with SkyTerra, The DIRECTV Group, Inc., a Delaware corporation
("DIRECTV"), and
HNS (HNS and DIRECTV collectively, the "Sellers") as amended,
supplemented or
otherwise modified from time to time in accordance with the
provisions hereof,
pursuant to which the Borrower will acquire (the "Acquisition")
certain
businesses and assets of the Sellers (including the Contributed
SPACEWAY Assets
which relate to Ka-band satellites identified as SPACEWAY
("SPACEWAY"))
(collectively, the "Acquired Business"); and
WHEREAS, in connection with the consummation of the Acquisition,
the
Borrower has requested the Lenders to extend credit in the form
of (a) Term
Loans on the Closing Date, in an aggregate principal amount not
in excess of
$250 million, and (b) Revolving Facility Loans and Letters of
Credit at any time
and from time to time prior to the Revolving Facility Maturity
Date, in an
aggregate principal amount at any time outstanding not in excess
of $50.0
million;
NOW, THEREFORE, the Lenders are willing to extend such credit to
the
Borrower on the terms and subject to the conditions set forth
herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following
terms shall have the meanings specified below:
"ABR" shall mean for any day, a rate per annum equal to the
greatest
of (a) the Prime Rate in effect on such day, (b) the Base CD
Rate in effect on
such day plus 1% and (c) the Federal Funds Effective Rate in
effect on such day
plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean the
rate of
interest per annum publicly announced from time to time by
JPMorgan Chase Bank,
N.A. as its prime rate in effect at its principal office in New
York City (the
Prime Rate not being intended to be the lowest rate of interest
charged by
JPMorgan Chase Bank, N.A. in connection with extensions of
credit to debtors);
"Base CD Rate" shall mean the sum of (a) the product of (i) the
Three-Month
Secondary CD Rate and (ii) a fraction, the numerator of which is
one and the
denominator of which is one minus the CD Reserve Percentage and
(b) the CD
Assessment Rate; and "Three-Month Secondary CD Rate" shall mean,
for any day,
the secondary market rate for three-month certificates of
deposit reported as
being in effect on such day (or, if such day shall not be a
Business Day, the
next preceding Business Day) by the Board through the public
information
telephone line of the Federal Reserve Bank of New York (which
rate will, under
the current practices of the Board, be published in Federal
Reserve Statistical
Release H.15(519) during the week following such day), or, if
such rate shall
not be so reported on such day or such next preceding Business
Day, the average
of the secondary market quotations for three-month certificates
of deposit of
major money center banks in New York City received at
approximately 10:00 A.M.,
New York City time, on such day (or, if such day shall not be a
Business Day,
on the next preceding Business Day) by JPMorgan Chase Bank, N.A.
from three New
York City negotiable certificate of deposit dealers of
recognized standing
selected by it. Any change in the ABR due to a change in the
Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective
Rate shall be
effective as of the opening of business on the effective day of
such change in
the Prime Rate, the Three-Month Secondary CD Rate or the Federal
Funds
Effective Rate, respectively.
"ABR Borrowing" shall mean a Borrowing comprised of ABR
Loans.
"ABR Loan" shall mean any ABR Term Loan, ABR Revolving Loan
or
Swingline Loan.
"ABR Revolving Borrowing" shall mean a Borrowing comprised of
ABR
Revolving Loans.
"ABR Revolving Loan" shall mean any Revolving Facility Loan
bearing
interest at a rate determined by reference to the ABR in
accordance with the
provisions of Article II.
"ABR Term Loan" shall mean any Term Loan bearing interest at a
rate
determined by reference to the ABR in accordance with the
provisions of Article
II.
"Acceptable Exclusions" shall mean
(a) war, invasion or hostile or warlike action in time of
peace
or war, including action in hindering, combating or defending
against an
actual, impending or expected attack by:
(i) any government or sovereign power (de jure or de facto),
(ii) any authority maintaining or using a military, naval or
air
force,
(iii) a military, naval or air force, or
(iv) any agent of any such government, power, authority or
force;
(b) any anti-satellite device, or device employing atomic or
nuclear
fission or fusion, or device employing laser or directed energy
beams;
(c) insurrection, strikes, labor disturbances, riots, civil
commotion, rebellion, revolution, civil war, usurpation, or
action taken by a
government authority in hindering, combating or defending
against such an
occurrence, whether there be declaration of war or not;
(d) confiscation, nationalization, seizure, restraint,
detention,
appropriation, requisition for title or use by or under the
order of any
government or governmental authority or agent (whether secret or
otherwise or
whether civil, military or de facto) or public or local
authority or agency;
(e) nuclear reaction, nuclear radiation, or radioactive
contamination
of any nature, whether such loss or damage be direct or
indirect, except for
radiation naturally occurring in the space environment;
(f) electromagnetic or radio frequency interference, except
for
physical damage to the Satellite directly resulting from such
interference;
(g) willful or intentional acts of the directors or officers of
the
named insured, acting within the scope of their duties, designed
to cause loss
or failure of the Satellite;
(h) an act of one or more individuals, whether or not agents of
a
sovereign power, for political or terrorist purposes and whether
the loss,
damage or failure resulting therefrom is accidental or
intentional;
(i) any unlawful seizure or wrongful exercise of control of
the
Satellite made by any individual or individuals acting for
political or
terrorist purposes;
(j) loss of revenue, incidental damages or consequential
loss;
(k) extra expenses, other than the expenses insured under such
policy;
(l) third party liability;
(m) loss of a redundant component(s) that does not cause a
transponder
failure; and
(n) such other similar exclusions or modifications to the
foregoing
exclusions as may be customary for policies of such type as of
the date of
issuance or renewal of such coverage.
"Acquired Assets" shall mean (a) the total purchase price of
assets
acquired pursuant to a Permitted Business Acquisition during any
fiscal year
determined in accordance with GAAP (the "Specified Amount"),
provided that if
such Permitted Business Acquisition is not consummated during
the first quarter
of a fiscal year, Acquired Assets for such fiscal year shall be
determined by
multiplying the Specified Amount by (i) 0.75 if such Permitted
Business
Acquisition is consummated during the second quarter of such
fiscal year, (ii)
0.50 if such Permitted Business Acquisition is consummated
during the third
quarter of such fiscal year and (iii) 0.25 if such Permitted
Business
Acquisition is consummated during the fourth quarter of such
fiscal year and
(b) with respect to any fiscal year occurring after such
Permitted Business
Acquisition, the Specified Amount.
"Acquired Assets Amount" shall have the meaning assigned to such
term
in Section 6.10(a).
"Acquired Business" shall have the meaning assigned to such term
in
the first recital hereto.
"Acquisition" shall have the meaning assigned to such term in
the
first recital hereto.
"Added Historical Adjustment" shall mean the writeoff of
certain
accounts receivable and capitalized software and the elimination
of payroll and
benefits reflective of headcount reductions for purposes of
calculating
Adjusted EBITDA, in an aggregate amount not to exceed
$24,866,000 and as
further described in the Offering Memorandum, but only to the
extent such
writeoff and/or elimination occurred in the consecutive four
quarter period
referred to in the definition of Debt to Adjusted EBITDA
Ratio.
"Added Projected Adjustment" shall mean with respect to any
Person,
without duplication and solely to the extent the calculation of
Adjusted EBITDA
includes any period commencing on April 1, 2004 and ending on
the Closing Date,
the sum of (a) payroll and benefits costs associated with
employees terminated
(voluntarily or involuntarily) in connection with the SPACEWAY
program
realignment and other restructuring initiatives as if such
employees had been
terminated on April 1, 2004, plus (b) the sum of (i) an assumed
rate of cost
recovery to the Borrower and its Subsidiaries equal to $3.0
million per
calendar quarter (to be calculated on a pro rata basis for any
period less than
one quarter) from DIRECTV for services performed under the
SPACEWAY Services
Agreement and (ii) the reduction in non-labor costs from
realignment of the
SPACEWAY program, in each case as if the SPACEWAY Services
Agreement had been
executed and the realignment of the SPACEWAY program had been
implemented on
April 1, 2004; provided that in the event the definition of Debt
to Adjusted
EBITDA Ratio requires a calculation of Adjusted EBITDA for the
consecutive four
quarter period commencing January 1, 2004, the Added Projected
Adjustment shall
equal $16,042,000. The calculation of the Added Projected
Adjustment shall be
performed in good faith by a Financial Officer of the Borrower
in a manner
consistent with the presentation of "Projected net reduction of
SPACEWAY
operating costs" set forth in the Offering Memorandum and such
calculation
shall be set forth in an officers' certificate signed by a
Financial Officer.
"Additional Mortgage" shall have the meaning assigned to such
term in
Section 5.10(c).
"Adjusted EBITDA" shall mean, with respect to any Person for
any
period, the Consolidated Net Income of such Person for such
period plus,
without duplication, to the extent the same was deducted in
calculating
Consolidated Net Income:
(a) Consolidated Taxes; plus
(b) Consolidated Interest Expense; plus
(c) Consolidated Non-cash Charges; plus
(d) the amount of any restructuring charges or expenses (which,
for
the avoidance of doubt, shall include retention, severance,
systems
establishment costs or excess pension charges); plus
(e) the amount of management, monitoring, consulting and
advisory
fees and related expenses paid to the Permitted Holders (or any
accruals
relating to such fees and related expenses) during such period;
provided that
such amount shall not exceed in any four quarter period $1.0
million; plus
(f) Added Historical Adjustment; plus
(g) Added Projected Adjustment;
less, without duplication,
----
(h) non-cash items increasing Consolidated Net Income for such
period
(excluding any items which represent the reversal of any accrual
of, or cash
reserve for, anticipated cash charges in any prior period and
any items for
which cash was received in any prior period); less
(i) Subtracted Historical Adjustment.
For purposes of determining Adjusted EBITDA for determining
compliance with Sections 6.11, 6.12 and 6.13 for any period that
includes any
of the fiscal quarters ended in 2004, Adjusted EBITDA shall be
calculated on a
quarterly basis in good faith by management of the Borrower in a
manner
consistent with the calculation in the Offering Memorandum.
"Adjusted LIBO Rate" shall mean, with respect to any
Eurocurrency
Borrowing for any Interest Period, an interest rate per annum
(rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate
in effect for
such Interest Period divided by (b) one minus the Statutory
Reserves applicable
to such Eurocurrency Borrowing, if any.
"Adjustment Date" shall have the meaning assigned to such term
in the
definition of "Pricing Grid."
"Administrative Agent" shall have the meaning assigned to such
term
in the introductory paragraph of this Agreement.
"Administrative Agent Fees" shall have the meaning assigned to
such
term in Section 2.12(c).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit B.
"Affiliate" of any specified Person means any other Person
directly
or indirectly controlling or controlled by or under direct or
indirect common
control with such specified Person. For purposes of this
definition, "control"
(including, with correlative meanings, the terms "controlling,"
"controlled by"
and "under common control with"), as used with respect to any
Person, means the
possession, directly or indirectly, of the power to direct or
cause the
direction of the management or policies of such Person, whether
through the
ownership of voting securities, by agreement or otherwise.
"Agent Parties" shall have the meaning assigned to such term
in
Section 9.17(c).
"Agents" shall mean the Administrative Agent and the
Syndication
Agent.
"Agreement" shall have the meaning assigned to such term in
the
introductory paragraph of this Agreement and shall include all
Exhibits and
Schedules hereto.
"Alpine" shall mean Alpine Capital Corporation and any
successor.
"Apollo" shall mean Apollo Management, L.P. and its
Affiliates.
"Applicable Margin" shall mean for any day (a) with respect to
any
Term Loan, 2.50% per annum in the case of any Eurocurrency Loan
and 1.50% per
annum in the case of any ABR Loan and (b) with respect to any
Revolving
Facility Loan, 2.50% per annum in the case of any Eurocurrency
Loan and 1.50%
per annum in the case of any ABR Loan, provided that on and
after the first
Adjustment Date occurring after the completion of two full
fiscal quarters of
the Borrower after the Closing Date, the Applicable Margin with
respect to
Revolving Facility Loans and Swingline Loans will be determined
pursuant to the
Pricing Grid.
"Approved Fund" shall have the meaning assigned to such term
in
Section 9.04(b).
"Assignment and Acceptance" shall mean an assignment and
acceptance
entered into by a Lender and an assignee, and accepted by the
Administrative
Agent and the Borrower (if required by such assignment and
acceptance), in the
form of Exhibit A or such other form as shall be approved by the
Administrative
Agent.
"Available Investment Basket Amount" shall mean, on any date
of
determination, an amount equal to (a) the Cumulative Retained
Excess Cash Flow
Amount on such date plus (b) the aggregate amount of proceeds
received after
the Closing Date that would have constituted Net Proceeds
pursuant to clause
(c) of the definition thereof except for the operation of clause
(x) or (y) of
the second proviso thereto, plus (c) the cumulative amount of
cash proceeds
from the sale or issuance of Equity Interests of the Borrower
after the Closing
Date (which proceeds have been contributed as common equity to
the capital of
the Borrower), except to the extent such proceeds are required
to be applied in
accordance with Section 2.11(b), minus (d) any amounts thereof
used to make
Investments pursuant to Section 6.04(i)(ii) after the Closing
Date and on or
prior to such date, minus (e) the aggregate amount of Capital
Expenditures made
after the Closing Date and on or prior to such date pursuant to
Section
6.10(c), minus (f) the cumulative amount of dividends paid and
distributions
made pursuant to Sections 6.06(f)(ii), minus (g) any amounts
thereof used to
redeem or repay Indebtedness pursuant to Section 6.09(b).
"Availability Period" shall mean the period from and including
the
Closing Date to but excluding the earlier of the Revolving
Facility Maturity
Date and in the case of each of the Revolving Facility Loans,
Revolving
Facility Borrowings, Swingline Loans, Swingline Borrowings and
Letters of
Credit, the date of termination of the Revolving Facility
Commitments.
"Available Unused Commitment" shall mean, with respect to a
Revolving
Facility Lender at any time, an amount equal to the amount by
which (a) the
Revolving Facility Commitment of such Revolving Facility Lender
at such time
exceeds (b) the Revolving Facility Credit Exposure of such
Revolving Facility
Lender at such time.
"Board" shall mean the Board of Governors of the Federal
Reserve
System of the United States of America.
"Board of Directors" shall mean as to any Person, the board
of
directors or managers, as applicable, of such Person (or, if
such Person is a
partnership, the board of directors or other governing body of
the general
partner of such Person) or any duly authorized committee
thereof.
"Borrower" shall have the meaning assigned to such term in
the
preamble hereto.
"Borrowing" shall mean a group of Loans of a single Type and
made on
a single date and, in the case of Eurocurrency Loans, as to
which a single
Interest Period is in effect.
"Borrowing Minimum" shall mean $500,000.
"Borrowing Multiple" shall mean $100,000.
"Borrowing Request" shall mean a request by a Borrower in
accordance
with the terms of Section 2.03 and substantially in the form of
Exhibit C-1.
"Business Day" shall mean any day that is not a Saturday, Sunday
or
other day on which commercial banks in New York City are
authorized or required
by law to remain closed; provided that when used in connection
with a
Eurocurrency Loan, the term "Business Day" shall also exclude
any day on which
banks are not open for dealings in deposits in the applicable
currency in the
London interbank market.
"Capital Expenditures" shall mean, for any person in respect of
any
period, the aggregate of all expenditures incurred by such
person during such
period that, in accordance with GAAP, are or should be included
in "additions
to property, plant or equipment" or similar items reflected in
the statement of
cash flows of such person, provided, however, that Capital
Expenditures for the
Borrower and the Subsidiaries shall not include:
(a) expenditures to the extent they are made with funds that
would
have constituted Net Proceeds under clause (a) of the definition
of the term
"Net Proceeds" (but that will not constitute Net Proceeds as a
result of the
first proviso to such clause (a)),
(b) expenditures of proceeds of insurance settlements,
condemnation
awards and other settlements in respect of lost, destroyed,
damaged or
condemned assets, equipment or other property to the extent such
expenditures
are made to replace or repair such lost, destroyed, damaged or
condemned
assets, equipment or other property or otherwise to acquire,
maintain, develop,
construct, improve, upgrade or repair assets or properties
useful in the
business of the Borrower and the Subsidiaries within 12 months
of receipt of
such proceeds,
(c) interest capitalized during such period,
(d) expenditures that are accounted for as capital expenditures
of
such person and that actually are paid for by a third party
(excluding the
Borrower or any Subsidiary thereof) and for which neither the
Borrower nor any
Subsidiary thereof has provided or is required to provide or
incur, directly or
indirectly, any consideration or obligation to such third party
or any other
person (whether before, during or after such period),
(e) the book value of any asset owned by such person prior to
or
during such period to the extent that such book value is
included as a capital
expenditure during such period as a result of such person
reusing or beginning
to reuse such asset during such period without a corresponding
expenditure
actually having been made in such period, provided that (i) any
expenditure
necessary in order to permit such asset to be reused shall be
included as a
Capital Expenditure during the period that such expenditure
actually is made
and (ii) such book value shall have been included in Capital
Expenditures when
such asset was originally acquired,
(f) the purchase price of equipment purchased during such period
to
the extent the consideration therefor consists of any
combination of (i) used
or surplus equipment traded in at the time of such purchase and
(ii) the
proceeds of a concurrent sale of used or surplus equipment, in
each case, in
the ordinary course of business,
(g) Investments in respect of a Permitted Business Acquisition,
or
(h) the Acquisition (including, without limitation, such
transactions
contemplated by the Transaction Agreement to be consummated
after the Closing
Date).
"Capital Stock" shall mean:
(a) in the case of a corporation or a company, corporate stock
or
shares;
(b) in the case of an association or business entity, any and
all
shares, interests, participations, rights or other equivalents
(however
designated) of corporate stock;
(c) in the case of a partnership or limited liability
company,
partnership or membership interests (whether general or
limited); and
(d) any other interest or participation that confers on a Person
the
right to receive a share of the profits and losses of, or
distributions of
assets of, the issuing Person.
"Capitalized Lease Obligation" shall mean, at the time any
determination thereof is to be made, the amount of the liability
in respect of
a capital lease that would at such time be required to be
capitalized and
reflected as a liability on a balance sheet (excluding the
footnotes thereto)
in accordance with GAAP.
"Cash Interest Expense" shall mean, with respect to the Borrower
and
the Subsidiaries on a consolidated basis for any period,
Consolidated Interest
Expense for such period, less the sum of (a) pay-in-kind
Consolidated Interest
Expense or other noncash Consolidated Interest Expense
(including as a result
of the effects of purchase accounting), (b) to the extent
included in
Consolidated Interest Expense, the amortization of any financing
fees paid by,
or on behalf of, the Borrower or any Subsidiary, including such
fees paid in
connection with the Transactions, (c) the amortization of debt
discounts, if
any, or fees in respect of Swap Agreements and (d) to the extent
not deducted
from Consolidated Interest, cash interest income of the Borrower
and its
Subsidiaries for such period; provided that Cash Interest
Expense shall exclude
any one-time financing fees, including those paid in connection
with the
Transactions or any amendment of this Agreement.
For purposes of determining compliance with Section 6.11 for
any
period that includes any of the fiscal quarters ended June 30,
2004, September
30, 2004 and December 31, 2004, Cash Interest Expense for each
such fiscal
quarters shall be $6,446,000.
"CD Assessment Rate" shall mean for any day as applied to any
ABR
Loan, the annual assessment rate in effect on such day that is
payable by a
member of the Bank Insurance Fund maintained by the Federal
Deposit Insurance
Corporation (the "FDIC") classified as well-capitalized and
within supervisory
subgroup "B" (or a comparable successor assessment risk
classification) within
the meaning of 12 C.F.R. ss. 327.4 (or any successor provision)
to the FDIC (or
any successor) for the FDIC's (or such successor's) insuring
time deposits at
offices of such institution in the United States.
"CD Reserve Percentage" shall mean for any day as applied to any
ABR
Loan, that percentage (expressed as a decimal) which is in
effect on such day,
as prescribed by the Board, for determining the maximum reserve
requirement for
a Depositary Institution (as defined in Regulation D of the
Board as in effect
from time to time) in respect of new non-personal time deposits
in Dollars
having a maturity of 30 days or more.
A "Change in Control" shall be deemed to occur if:
(a) at any time prior to a Qualified IPO, (i) any combination
of
Permitted Holders shall fail to own beneficially (within the
meaning of Rule
13d-5 of the Exchange Act as in effect on the Closing Date),
directly or
indirectly, in the aggregate Equity Interests representing at
least 51% of (x)
the aggregate ordinary voting power represented by the issued
and outstanding
Equity Interests of the Borrower or (y) the common economic
interest
represented by the issued and outstanding Equity Interests of
the Borrower or
(ii) any Person, other than a Permitted Holder shall become the
managing member
of the Borrower; or
(b) at any time after a Qualified IPO, any Person or "group"
(within
the meaning of Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934,
as in effect on the Closing Date), other than any combination of
the Permitted
Holders, shall have acquired beneficial ownership of 25% or more
on a fully
diluted basis of the voting or economic interest in the
Borrower's capital
stock and the Permitted Holders shall own, directly or
indirectly, less than
such Person or "group" on a fully diluted basis of the economic
and voting
interest in Borrower's capital stock.
"Change in Law" shall mean (a) the adoption of any law, rule
or
regulation after the Closing Date, (b) any change in law, rule
or regulation or
in the interpretation or application thereof by any Governmental
Authority
after the Closing Date or (c) compliance by any Lender or
Issuing Bank (or, for
purposes of Section 2.15(b), by any Lending Office of such
Lender or by such
Lender's or Issuing Bank's holding company, if any) with any
written request,
guideline or directive (whether or not having the force of law)
of any
Governmental Authority made or issued after the Closing
Date.
"Charges" shall have the meaning assigned to such term in
Section
9.09.
"Closing Date" shall mean the date on which the conditions
precedent
set forth in Section 4 shall have been satisfied, which date
shall be not later
than June 30, 2005.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from
time to time.
"Collateral" shall mean all the "Collateral" as defined in
any
Security Document and shall also include the Mortgaged
Properties.
"Collateral Agreement" shall mean the Guarantee and
Collateral
Agreement, as amended, supplemented or otherwise modified from
time to time, in
the form of Exhibit E, among, the Borrower, each Subsidiary Loan
Party and the
Administrative Agent.
"Collateral and Guarantee Requirement" shall mean the
requirement
that:
(a) on the Closing Date, the Administrative Agent shall have
received
(I) from the Borrower and each Subsidiary Loan Party, a
counterpart of the
Collateral Agreement duly executed and delivered on behalf of
such person, (II)
from each Parent, a counterpart of the Parent Pledge Agreement
duly executed
and delivered on behalf of such person and (III) from each Loan
Party listed on
Schedule 1.01(c), a counterpart of a Foreign Pledge Agreement
duly executed and
delivered by such Loan Party with respect to the amount of
Equity Interests of
each "first tier" Foreign Subsidiary directly owned by such Loan
Party and
included on Schedule 1.01(c);
(b) on the Closing Date, the Administrative Agent shall have
received
(I) a pledge of all the issued and outstanding Equity Interests
of (A) the
Borrower and (B) each Domestic Subsidiary owned on the Closing
Date directly by
or on behalf of the Borrower or any Subsidiary Loan Party and
(II) a pledge of
65% of the outstanding Equity Interests of each "first tier"
Foreign Subsidiary
directly owned by the Borrower or a Subsidiary Loan Party; and
the
Administrative Agent shall have received all certificates or
other instruments
(if any) representing such Equity Interests, together with stock
powers or
other instruments of transfer with respect thereto endorsed in
blank;
(c) on the Closing Date, all Indebtedness of the Borrower and
each
Subsidiary having, in the case of each instance of Indebtedness,
an aggregate
principal amount in excess of $500,000 (other than (i)
intercompany current
liabilities incurred in the ordinary course of business in
connection with the
cash management operations of the Borrower and its Subsidiaries
or (ii) to the
extent that a pledge of such promissory note or instrument would
violate
applicable law) that is owing to any Loan Party and evidenced by
a promissory
note or an instrument shall have been pledged pursuant to the
Collateral
Agreement, and the Administrative Agent shall have received all
such promissory
notes or instruments, together with note powers or other
instruments of
transfer with respect thereto endorsed in blank;
(d) in the case of any person that becomes a Subsidiary Loan
Party
after the Closing Date, the Administrative Agent shall have
received a
supplement to the Collateral Agreement, in the form specified
therein, duly
executed and delivered on behalf of such Subsidiary Loan
Party;
(e) in the case of any person that becomes a "first tier"
Material
Foreign Subsidiary directly owned by the Borrower or a
Subsidiary Loan Party
after the Closing Date, the Administrative Agent shall have
received, as
promptly as practicable following a request by the
Administrative Agent, a
Foreign Pledge Agreement, duly executed and delivered by the
direct parent
company of such Foreign Subsidiary on behalf of such Foreign
Subsidiary;
(f) after the Closing Date, all the outstanding Equity Interests
of
(A) any person that becomes a Subsidiary Loan Party after the
Closing Date and
(B) subject to Section 5.10(g), all the Equity Interests that
are acquired by a
Loan Party after the Closing Date, shall have been pledged
pursuant to the
Collateral Agreement (provided that with respect to any Foreign
Subsidiary in
no event shall more than 65% of the issued and outstanding
Equity Interests
thereof be pledged to secure Credit Agreement Obligations of the
Borrower and
only if such Foreign Subsidiary is or becomes a Material Foreign
Subsidiary),
and the Administrative Agent shall have received all
certificates or other
instruments (if any) representing such Equity Interests,
together with stock
powers or other instruments of transfer with respect thereto
endorsed in blank;
(g) except as set forth pursuant to Section 3.04 or as
otherwise
contemplated by any Security Document, all documents and
instruments, including
Uniform Commercial Code financing statements, required by law or
reasonably
requested by the Administrative Agent to be filed, registered or
recorded to
create the Liens intended to be created by the Security
Documents (in each
case, including any supplements thereto) and perfect such Liens
to the extent
required by, and with the priority required by, the Security
Documents, shall
have been filed, registered or recorded or delivered to the
Administrative
Agent for filing, registration or the recording concurrently
with, or promptly
following, the execution and delivery of each such Security
Document;
(h) on the Closing Date, the Administrative Agent shall have
received
(i) counterparts of each Mortgage to be entered into with
respect to each
Mortgaged Property set forth on Schedule 1.01(b) duly executed
and delivered by
the record owner of such Mortgaged Property, (ii) such other
documents as the
Administrative Agent may reasonably request with respect to any
such Mortgage
or Mortgaged Property and (iii) a Real Property Officers'
Certificate
substantially in the form of Exhibit G attached hereto with
respect to each
Mortgaged Property;
(i) on the Closing Date, or as soon as is practicable not to
exceed
60 days from the Closing Date, the Administrative Agent shall
have received (i)
a policy or policies or marked-up unconditional binder of title
insurance or
foreign equivalent thereof, as applicable, paid for by the
Borrower, issued by
a nationally recognized title insurance company insuring the
Lien of each
Mortgage to be entered into on the Closing Date as a valid first
Lien on the
Mortgaged Property described therein, free of any other Liens
except as
permitted by Section 6.02 and Liens arising by operation of law,
together with
such endorsements, coinsurance and reinsurance as the
Administrative Agent may
reasonably request and (ii) a survey of any Mortgaged Property
(and all
improvements thereon), or foreign equivalent thereof, as
applicable, which is
(1) dated (or redated) not earlier than six months prior to the
date of
delivery thereof unless there shall have occurred within six
months prior to
such date of delivery any exterior construction on the site of
such Mortgaged
Property, in which event such survey shall be dated (or redated)
after the
completion of such construction or if such construction shall
not have been
completed as of such date of delivery, not earlier than 20 days
prior to such
date of delivery, (2) certified by the surveyor (in a manner
reasonably
acceptable to the Administrative Agent) to the Administrative
Agent and the
title insurance company insuring the Mortgage, (3) complying in
all respects
with the minimum detail requirements of the American Land Title
Association as
such requirements are in effect on the date of preparation of
such survey and
(4) sufficient for such title insurance company to remove all
standard survey
exceptions from the title insurance policy relating to such
Mortgaged Property
or otherwise reasonably acceptable to the Administrative Agent;
and
(j) except as disclosed on Schedule 3.04 or as otherwise
contemplated
by any Security Document, each Loan Party shall have obtained
all consents and
approvals required to be obtained by it in connection with (i)
the execution
and delivery of all Security Documents (or supplements thereto)
to which it is
a party and the granting by it of the Liens thereunder and (ii)
the performance
of its obligations thereunder.
"Commitment Fee" shall have the meaning assigned to such term
in
Section 2.12(a).
"Commitments" shall mean (a) with respect to any Lender,
such
Lender's Revolving Facility Commitment and Term Loan Commitment
and (b) with
respect to any Swingline Lender, its Swingline Commitment.
"Communications Licenses" shall mean, collectively, all FCC
Licenses
and all Foreign Licenses.
"Conduit Lender" shall mean any special purpose corporation
organized
and administered by any Lender for the purpose of making Loans
otherwise
required to be made by such Lender and designated by such Lender
in a written
instrument; provided, that the designation by any Lender of a
Conduit Lender
shall not relieve the designating Lender of any of its
obligations to fund a
Loan under this Agreement if, for any reason, its Conduit Lender
fails to fund
any such Loan, and the designating Lender (and not the Conduit
Lender) shall
have the sole right and responsibility to deliver all consents
and waivers
required or requested under this Agreement with respect to its
Conduit Lender,
and provided, further, that no Conduit Lender shall (a) be
entitled to receive
any greater amount pursuant to Section 2.15, 2.16, 2.17 or 9.05
than the
designating Lender would have been entitled to receive in
respect of the
extensions of credit made by such Conduit Lender or (b) be
deemed to have any
Commitment.
"Consolidated Interest Expense" shall mean, with respect to
any
Person for any period, the sum, without duplication, of:
(a) consolidated interest expense of such Person and its
Subsidiaries
for such period, to the extent such expense was deducted in
computing
Consolidated Net Income (including amortization of original
issue discount, the
interest component of Capitalized Lease Obligations (and, to the
extent not
included therein, the Indebtedness under Equipment Financing
Agreements), and
net payments and receipts (if any) pursuant to interest rate
Hedging
Obligations and excluding amortization of deferred financing
fees, expensing of
any bridge or other financing fees and any interest under
Satellite Purchase
Agreements);
(b) consolidated capitalized interest of such Person and its
Subsidiaries for such period, whether paid or accrued; and
(c) commissions, discounts, yield and other fees and charges
Incurred
in connection with any Receivables Financing which are payable
to Persons other
than the Borrower and its Subsidiaries;
less interest income for such period;
provided, that for purposes of calculating Consolidated Interest
Expense, no
effect shall be given to the discount and/or premium resulting
from the
bifurcation of derivatives under Statement of Financial
Accounting Standards
No. 133 and related interpretations as a result of the terms of
the
Indebtedness to which such Consolidated Interest Expense
relates.
"Consolidated Net Income" shall mean, with respect to any Person
for
any period, the aggregate of the Net Income of such Person and
its Subsidiaries
for such period, on a consolidated basis; provided, that:
(a) any net after-tax extraordinary or nonrecurring or unusual
gains
or losses (less all fees and expenses relating thereto), or
income or expense
or charge (including, without limitation, any severance,
relocation or other
restructuring costs and transition expenses Incurred as a direct
result of the
transition of the Borrower to an independent operating company
in connection
with the Transactions) and fees, expenses or charges related to
any offering of
equity interests of such Person, Investment, acquisition or
Indebtedness
permitted to be incurred by this Agreement (in each case,
whether or not
successful), including any such fees, expenses or charges
related to the
Transactions, in each case, shall be excluded;
(b) any increase in amortization or depreciation or any
one-time
non-cash charges resulting from purchase accounting in
connection with any
acquisition that is consummated after the Closing Date shall be
excluded;
(c) the cumulative effect of a change in accounting principles
during
such period shall be excluded;
(d) any net after-tax income or loss from discontinued
operations and
any net after-tax gains or losses on disposal of discontinued
operations shall
be excluded;
(e) any net after-tax gains or losses (less all fees and
expenses or
charges relating thereto) attributable to business dispositions
or asset
dispositions other than in the ordinary course of business (as
determined in
good faith by senior management or the Board of Directors of the
Borrower,
except that no such determination shall be required for asset
dispositions
reflected as an adjustment in the calculation of Adjusted EBITDA
set forth in
the Offering Memorandum) shall be excluded;
(f) any net after-tax gains or losses (less all fees and
expenses or
charges relating thereto) attributable to the early
extinguishment of
Indebtedness shall be excluded;
(g) the Net Income for such period of any Person that is not
a
Subsidiary of such Person or that is accounted for by the equity
method of
accounting, shall be included only to the extent of the amount
of dividends or
distributions or other payments actually paid in cash (or to the
extent
converted into cash) to the referent Person or a Subsidiary
thereof in respect
of such period;
(h) solely for the purpose of determining compliance with
Sections
6.11, 6.12 and 6.13, the Net Income for such period of any
Subsidiary (other
than any Subsidiary Loan Party) shall be excluded to the extent
that the
declaration or payment of dividends or similar distributions by
such Subsidiary
of its Net Income is not at the date of determination permitted
without any
prior governmental approval (which has not been obtained) or,
directly or
indirectly, by the operation of the terms of its charter or any
agreement,
instrument, judgment, decree, order, statute, rule or
governmental regulation
applicable to such Subsidiary or its equityholders, unless such
restrictions
with respect to the payment of dividends or similar
distributions have been
legally waived (provided that this clause (h) shall not apply
with respect to
the Net Income of Hughes Escorts Communications Limited);
provided that the
Consolidated Net Income of such Person shall be increased by the
amount of
dividends or other distributions or other payments actually paid
in cash (or
converted into cash) by any such Subsidiary to such Person or a
Subsidiary of
such Person, to the extent not already included therein;
(i) any non-cash impairment charge or asset write-off resulting
from
the application of Statement of Financial Accounting Standards
No. 142 and 144,
and the amortization of intangibles arising pursuant to No. 141,
shall be
excluded;
(j) any non-cash expenses realized or resulting from employee
benefit
plans or post-employment benefit plans, grants of stock
appreciation or similar
rights, stock options or other rights to officers, directors and
employees of
such Person or any of its Subsidiaries shall be excluded;
(k) any one-time non-cash compensation charges shall be
excluded; and
(l) non-cash gains, losses, income and expenses resulting from
fair
value accounting required by Statement of Financial Accounting
Standards No.
133 and related interpretations shall be excluded.
"Consolidated Non-cash Charges" shall mean, with respect to
any
Person for any period, the aggregate depreciation, amortization,
impairment,
non-cash compensation, non-cash rent and other non-cash expenses
of such Person
and its Subsidiaries for such period on a consolidated basis and
otherwise
determined in accordance with GAAP, but excluding (a) any such
charge which
consists of or requires an accrual of, or cash reserve for,
anticipated cash
charges for any future period and (b) the non-cash impact of
recording the
change in fair value of any embedded derivatives under Statement
of Financial
Accounting Standards No. 133 and related interpretations as a
result of the
terms of any agreement or instrument to which such Consolidated
Non-cash
Charges relate.
"Consolidated Taxes" shall mean, with respect to any Person and
its
Subsidiaries on a consolidated basis for any period, provision
for taxes based
on income, profits or capital, including, without limitation,
state franchise
and similar taxes, and including an amount equal to the amount
of tax
distributions actually made to the holders of Capital Stock of
such Person or
any parent of such Person in respect of such period in
accordance with Section
6.06(g), which shall be included as though such amounts had been
paid as income
taxes directly by such Person.
"Consolidated Total Indebtedness" shall mean, as at any date
of
determination, an amount equal to the sum of (a) the aggregate
amount of all
outstanding Indebtedness of the Borrower and the Subsidiaries
(other than
letters of credit to the extent undrawn) the and (b) the
aggregate amount of
all outstanding Disqualified Stock of the Borrower and all
Preferred Stock of
Subsidiaries issued to Persons that are not Loan Parties, with
the amount of
such Disqualified Stock and Preferred Stock equal to the greater
of their
respective voluntary or involuntary liquidation preferences and
maximum fixed
repurchase prices, in each case determined on a consolidated
basis in
accordance with GAAP.
For purposes hereof, the "maximum fixed repurchase price" of
any
Disqualified Stock or Preferred Stock that does not have a fixed
price shall be
calculated in accordance with the terms of such Disqualified
Stock or Preferred
Stock as if such Disqualified Stock or Preferred Stock were
purchased on any
date on which Consolidated Total Indebtedness shall be required
to be
determined pursuant to this Agreement, and if such price is
based upon, or
measured by, the Fair Market Value of such Disqualified Stock or
Preferred
Stock, such Fair Market Value shall be determined reasonably and
in good faith
by senior management or the Board of Directors of the
Borrower.
"Contingent Obligations" shall mean, with respect to any Person,
any
obligation of such Person guaranteeing any leases, dividends or
other
obligations that do not constitute Indebtedness ("primary
obligations") of any
other Person (the "primary obligor") in any manner, whether
directly or
indirectly, including, without limitation, any obligation of
such Person,
whether or not contingent:
(a) to purchase any such primary obligation or any property
constituting direct or indirect security therefor;
(b) to advance or supply funds:
(i) for the purchase or payment of any such primary obligation;
or
(ii) to maintain working capital or equity capital of the
primary
obligor or otherwise to maintain the net worth or solvency of
the primary
obligor; or
(c) to purchase property, securities or services primarily for
the
purpose of assuring the owner of any such primary obligation of
the ability of
the primary obligor to make payment of such primary obligation
against loss in
respect thereof.
"Control" shall mean the possession, directly or indirectly, of
the
power to direct or cause the direction of the management or
policies of a
person, whether through the ownership of voting securities, by
contract or
otherwise, and "Controlling" and "Controlled" shall have
meanings correlative
thereto.
"Contributed SPACEWAY Assets" shall have the meaning assigned to
such
term in the Transaction Agreement.
"Contribution Financing" shall mean, in connection with the
consummation of the Acquisition, (a) the purchase by SkyTerra
and its
Affiliates from HNS of 50% of the class A units of the Borrower
for an
aggregate amount of not less than $50.0 million in cash and
300,000 shares of
common stock of SkyTerra and (b) the equity contribution by
DIRECTV or its
Affiliates to the Borrower in an aggregate amount of not less
than $50.0
million.
"Credit Agreement Obligations" shall mean all amounts owing to
the
Administrative Agent or any Lender pursuant to the terms of this
Agreement or
any other Loan Document.
"Credit Event" shall have the meaning assigned to such term
in
Article IV.
"Cumulative Retained Excess Cash Flow Amount" shall mean, at
any
date, an amount, not less than zero in the aggregate, determined
on a
cumulative basis equal to the sum of the Retained Percentage of
Excess Cash
Flow for each Excess Cash Flow Period commencing on or after the
Closing Date.
"Cure Amount" shall have the meaning assigned to such term in
Section
7.03(a).
"Cure Right" shall have the meaning assigned to such term in
Section
7.03(a).
"Current Assets" shall mean, with respect to the Borrower and
the
Subsidiaries on a consolidated basis at any date of
determination, all assets
(other than cash and Permitted Investments or other cash
equivalents) that
would, in accordance with GAAP, be classified on a consolidated
balance sheet
of the Borrower and the Subsidiaries as current assets at such
date of
determination, other than amounts related to current or deferred
Taxes based on
income or profits.
"Current Liabilities" shall mean, with respect to the Borrower
and
the Subsidiaries on a consolidated basis at any date of
determination, all
liabilities that would, in accordance with GAAP, be classified
on a
consolidated balance sheet of the Borrower and the Subsidiaries
as current
liabilities at such date of determination, other than (a) the
current portion
of any Indebtedness, (b) accruals of Consolidated Interest
Expense (excluding
Consolidated Interest Expense that is due and unpaid), (c)
accruals for current
or deferred Taxes based on income or profits, (d) accruals, if
any, of
transaction costs resulting from the Transactions, and (e)
accruals of any
costs or expenses related to (i) severance or termination of
employees prior to
the Closing Date or (ii) bonuses, pension and other
post-retirement benefit
obligations, and (f) accruals for add-backs to Adjusted EBITDA
included in
clauses (c), (d) and (e) of the definition of such term.
"Debt to Adjusted EBITDA Ratio" shall mean, with respect to
the
Borrower on any date, the ratio of (a) Consolidated Total
Indebtedness as of
such date (the "Calculation Date") to (b) Adjusted EBITDA of the
Borrower for
the four consecutive fiscal quarters immediately preceding such
Calculation
Date.
For purposes of making the computation referred to above and
for
other pro forma calculations required hereunder, Investments,
acquisitions,
dispositions, mergers or consolidations (as determined in
accordance with GAAP)
that have been made by the Borrower or any Subsidiary during the
four-quarter
reference period or subsequent to such reference period and on
or prior to or
simultaneously with the Calculation Date shall be calculated on
a pro forma
basis assuming that all such Investments, acquisitions,
dispositions, mergers
or consolidations (including the Transactions) (and the change
in any
associated Consolidated Total Indebtedness obligations and the
change in
Adjusted EBITDA resulting therefrom) had occurred on the first
day of the
four-quarter reference period. If since the beginning of such
period any Person
(that subsequently became a Subsidiary or was merged with or
into the Borrower
or any Subsidiary since the beginning of such period) shall have
made any
Investment, acquisition, disposition, merger or consolidation
that would have
required adjustment pursuant to this definition, then the Debt
to Adjusted
EBITDA Ratio shall be calculated giving pro forma effect thereto
for such
period as if such Investment, acquisition, disposition, merger
or consolidation
had occurred at the beginning of the applicable four-quarter
period. For
purposes of this definition, whenever pro forma effect is to be
given to an
Investment, acquisition, disposition, merger or consolidation
(including the
Transactions) and the amount of income or earnings relating
thereto, the pro
forma calculations shall be determined in good faith by a
Financial Officer of
the Borrower and shall comply with the requirements of Rule
11-02 of Regulation
S-X promulgated by the Commission, except that such pro forma
calculations may
include operating expense reductions for such period resulting
from the
transaction which is being given pro forma effect that have been
realized or
for which substantially all the steps necessary for realization
have been taken
or are reasonably expected to be taken within six months
following any such
transaction, including, but not limited to, the execution or
termination of any
contracts, the reduction of costs related to administrative
functions or the
termination of any personnel, as applicable; provided that, in
either case,
such adjustments are set forth in a certificate signed by a
Financial Officer
of the Borrower and another Responsible Officer which states (i)
the amount of
such adjustment or adjustments, (ii) that such adjustment or
adjustments are
based on the reasonable good faith beliefs of the Responsible
Officers
executing such certificate at the time of such execution and
(iii) that any
related incurrence of Indebtedness is permitted pursuant to this
Agreement. If
any Indebtedness bears a floating rate of interest and is being
given pro forma
effect, the interest on such Indebtedness shall be calculated as
if the rate in
effect on the Calculation Date had been the applicable rate for
the entire
period (taking into account any Hedging Obligations applicable
to such
Indebtedness if the related hedge has a remaining term in excess
of twelve
months). Interest on a Capitalized Lease Obligation shall be
deemed to accrue
at an interest rate reasonably determined by a Financial Officer
of the
Borrower to be the rate of interest implicit in such Capitalized
Lease
Obligation in accordance with GAAP. Interest on Indebtedness
that may
optionally be determined at an interest rate based upon a factor
of a prime or
similar rate, a eurocurrency interbank offered rate, or other
rate, shall be
deemed to have been based upon the rate actually chosen, or, if
none, then
based upon such optional rate chosen as the Borrower may
designate.
"Debt Service" shall mean, with respect to the Borrower and
the
Subsidiaries on a consolidated basis for any period, Cash
Interest Expense for
such period plus scheduled principal amortization of
Consolidated Total
Indebtedness for such period.
"Default" shall mean any event or condition that upon notice,
lapse
of time or both would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which
a
Lender Default is in effect.
"DIRECTV" shall have the meaning assigned to such term in the
first
recital hereto.
"Disqualified Stock" shall mean, with respect to any Person,
any
Capital Stock of such Person which, by its terms (or by the
terms of any
security into which it is convertible or for which it is
redeemable, putable or
exchangeable), or upon the happening of any event:
(a) matures or is mandatorily redeemable, pursuant to a sinking
fund
obligation or otherwise,
(b) is convertible or exchangeable for Indebtedness or
Disqualified
Stock of such Person, or
(c) is redeemable at the option of the holder thereof, in whole
or in
part,
in each case prior to 91 days after the Maturity Date;
provided, however, that only the portion of Capital Stock which
so
matures or is mandatorily redeemable, is so convertible or
exchangeable or is
so redeemable at the option of the holder thereof prior to such
date shall be
deemed to be Disqualified Stock; provided, further, however,
that (x) if such
Capital Stock is issued to any employee or to any plan for the
benefit of
employees of the Borrower or its Subsidiaries or by any such
plan to such
employees, such Capital Stock shall not constitute Disqualified
Stock solely
because it may be required to be repurchased by the Borrower in
order to
satisfy applicable statutory or regulatory obligations or as a
result of such
employee's termination, death or disability and (y) such Capital
Stock shall
not constitute Disqualified Stock if such Capital Stock matures
or is
mandatorily redeemable or is redeemable at the option of the
holders thereof as
a result of a change of control or asset sale; provided,
further, that any
class of Capital Stock of such Person that by its terms
authorizes such Person
to satisfy its obligations thereunder by delivery of Capital
Stock that is not
Disqualified Stock shall not be deemed to be Disqualified
Stock.
"Dollars" or "$" shall mean lawful money of the United States
of
America.
"Domestic Subsidiary" shall mean any Subsidiary that is not a
Foreign
Subsidiary.
"Earth Station" shall mean any earth station of the Borrower or
any
of its Subsidiaries that is the subject of a license granted by
the FCC.
"environment" shall mean ambient and indoor air, surface water
and
groundwater (including potable water, navigable water and
wetlands), the land
surface or subsurface strata, natural resources such as flora
and fauna, the
workplace or as otherwise defined in any Environmental Law.
"Environmental Laws" shall mean all applicable laws (including
common
law), rules, regulations, codes, ordinances, orders, decrees,
judgments,
injunctions, notices or binding agreements issued, promulgated
or entered into
by any Governmental Authority, relating in any way to the
environment,
preservation or reclamation of natural resources, the
generation, management,
Release or threatened Release of, or exposure to, any Hazardous
Material or to
health and safety matters (to the extent relating to the
environment or
Hazardous Materials).
"Equipment Financing Agreements" shall mean (a)(i) the
Master
Purchase Agreement dated April 27, 1998, between the Borrower
and Alpine, (ii)
the Master Equipment Lease dated April 21, 1998, between the
Borrower and
Alpine and (iii) the Assignment Agreement dated April 27, 1998,
between the
Borrower and Alpine, (b) the equipment financing arrangements
pursuant to the
Master Performance and Counter-Indemnity between the Borrower
and certain of
its Subsidiaries and Barclays Technology Finance Limited,
Barclays Technology
Finance GmbH, Alpine Capital (Europe) Limited and Alpine Capital
(Europe)
Limited GmbH and related agreements, (c) any and all assignment
agreements
entered into by the Borrower and its Subsidiaries in the
ordinary course of
business as contemplated by clauses (a)(i) through (iii) and (b)
of this
definition, in each case, as the same may be refinanced,
amended, modified,
restated, renewed, supplemented or replaced, and (d) any
agreements between the
Borrower or any of its Subsidiaries and any third-party relating
generally to
the subject matter of the agreements set forth in clause (a),
(b) or (c) of
this definition; provided that any agreements specified in
clauses (c) or (d)
of this definition are entered into on terms consistent with
then prevailing
market conditions.
"Equity Interests" shall mean Capital Stock and all warrants,
options
or other rights to acquire Capital Stock (but excluding any debt
security that
is convertible into, or exchangeable for, Capital Stock).
"ERISA" shall mean the Employee Retirement Income Security Act
of
1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or
not
incorporated) that, together with the Borrower or a Subsidiary,
is treated as a
single employer under Section 414(b) or (c) of the Code, or,
solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a
single employer under Section 414 of the Code.
"ERISA Event" shall mean (a) any Reportable Event; (b) the
existence
with respect to any Plan of an "accumulated funding deficiency"
(as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c)
the filing pursuant to Section 412(d) of the Code or Section
303(d) of ERISA of
an application for a waiver of the minimum funding standard with
respect to any
Plan, the failure to make by its due date a required installment
under Section
412(m) of the Code with respect to any Plan or the failure to
make any required
contribution to a Multiemployer Plan; (d) the incurrence by the
Borrower, a
Subsidiary or any ERISA Affiliate of any liability under Title
IV of ERISA with
respect to the termination of any Plan; (e) the receipt by the
Borrower, a
Subsidiary or any ERISA Affiliate from the PBGC or a plan
administrator of any
notice relating to an intention to terminate any Plan or to
appoint a trustee
to administer any Plan under Section 4042 of ERISA; (f) the
incurrence by the
Borrower, a Subsidiary or any ERISA Affiliate of any liability
with respect to
the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or
(g) the receipt by the Borrower, a Subsidiary or any ERISA
Affiliate of any
notice, or the receipt by any Multiemployer Plan from the
Borrower, a
Subsidiary or any ERISA Affiliate of any notice, concerning the
imposition of
Withdrawal Liability or a determination that a Multiemployer
Plan is, or is
expected to be, insolvent or in reorganization, within the
meaning of Title IV
of ERISA.
"Eurocurrency Borrowing" shall mean a Borrowing comprised of
Eurocurrency Loans.
"Eurocurrency Loan" shall mean any Eurocurrency Term Loan or
Eurocurrency Revolving Loan.
"Eurocurrency Revolving Borrowing" shall mean a Borrowing
comprised
of Eurocurrency Revolving Loans.
"Eurocurrency Revolving Loan" shall mean any Revolving Facility
Loan
bearing interest at a rate determined by reference to the
Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Eurocurrency Term Loan" shall mean any Term Loan bearing
interest at
a rate determined by reference to the Adjusted LIBO Rate in
accordance with the
provisions of Article II.
"Event of Default" shall have the meaning assigned to such term
in
Section 7.01.
"Event of Loss" shall mean any event that results in the
Borrower or
its Subsidiaries receiving proceeds from any insurance covering
any Satellite,
or in the event that the Borrower or any of its Subsidiaries
receives proceeds
from any insurance maintained for it by any Satellite
Manufacturer or any
launch provider covering any of such Satellites.
"Event of Loss Proceeds" shall mean, with respect to any
proceeds
from any Event of Loss, all Satellite insurance proceeds
received by the
Borrower or any of the Subsidiaries in connection with such
Event of Loss,
after
(1) provision for all income or other taxes measured by or
resulting
from such Event of Loss,
(2) payment of all reasonable legal, accounting and other
reasonable
fees and expenses related to such Event of Loss,
(3) payment of amounts required to be applied to the repayment
of
Indebtedness secured by a Lien on the Satellite that is the
subject of such
Event of Loss,
(4) provision for payments to Persons who own an interest in
the
Satellite (including any transponder thereon) in accordance with
the terms of
the agreement(s) governing the ownership of such interest by
such Person (other
than provision for payments to insurance carriers required to be
made based on
projected future revenues expected to be generated from such
Satellite in the
good faith determination of the Borrower as evidenced by a
certificate executed
by a Financial Officer), and
(5) deduction of appropriate amounts to be provided by the
Borrower
or such Subsidiary as a reserve, in accordance with GAAP,
against any
liabilities associated with the Satellite that was the subject
of the Event of
Loss.
"Excess Cash Flow" shall mean, with respect to the Borrower and
the
Subsidiaries on a consolidated basis for any Excess Cash Flow
Period, Adjusted
EBITDA of the Borrower and the Subsidiaries on a consolidated
basis for such
Excess Cash Flow Period, minus, without duplication,
(a) Debt Service for such Excess Cash Flow Period,
(b) the amount of any voluntary prepayment permitted hereunder
of
term Indebtedness (other than the Term Loans) during such Excess
Cash Flow
Period to the extent not financed, or intended to be financed,
using the
proceeds of the incurrence of Indebtedness, so long as the
amount of such
prepayment is not already reflected in Debt Service,
(c) (i) Capital Expenditures by the Borrower and the
Subsidiaries on
a consolidated basis during such Excess Cash Flow Period that
are paid in cash
(other than Capital Expenditures in respect of SPACEWAY and
related assets in
an aggregate amount equal to $175 million) and (ii) the
aggregate consideration
paid in cash during the Excess Cash Flow period in respect of
Permitted
Business Acquisitions and other Investments permitted hereunder
to the extent
not financed with the proceeds of Indebtedness other than Loans
(less any
amounts received in respect thereof as a return of capital).
(d) Capital Expenditures that the Borrower or any Subsidiary
shall,
during such Excess Cash Flow Period, become obligated to make
but that are not
made during such Excess Cash Flow Period, provided that the
Borrower shall
deliver a certificate to the Administrative Agent not later than
90 days after
the end of such Excess Cash Flow Period, signed by a Responsible
Officer of the
Borrower and certifying that such Capital Expenditures and the
delivery of the
related equipment will be made in the following Excess Cash Flow
Period,
(e) Taxes paid in cash by the Borrower and its Subsidiaries on
a
consolidated basis during such Excess Cash Flow Period or that
will be paid
within six months after the close of such Excess Cash Flow
Period (provided
that any amount so deducted that will be paid after the close of
such Excess
Cash Flow Period shall not be deducted again in a subsequent
Excess Cash Flow
Period) and for which reserves have been established, including
income tax
expense and withholding tax expense incurred in connection with
cross-border
transactions involving the Foreign Subsidiaries,
(f) an amount equal to any increase in Working Capital of
the
Borrower and its Subsidiaries for such Excess Cash Flow
Period,
(g) cash expenditures made in respect of Swap Agreements during
such
Excess Cash Flow Period, to the extent not reflected in the
computation of
Adjusted EBITDA or Cash Interest Expense,
(h) permitted dividends or distributions or repurchases of its
Equity
Interests paid in cash by the Borrower during such Excess Cash
Flow Period and
permitted dividends paid by the Borrower or by any Subsidiary to
any person
other than the Borrower or any of the Subsidiaries during such
Excess Cash Flow
Period, in each case in accordance with Section 6.06 (other than
6.06(f)(ii)),
(i) amounts paid in cash during such Excess Cash Flow Period
on
account of (x) items that were accounted for as noncash
reductions of Net
Income in determining Consolidated Net Income or as noncash
reductions of
Consolidated Net Income in determining Adjusted EBITDA of the
Borrower and its
Subsidiaries in a prior Excess Cash Flow Period and (y) reserves
or accruals
established in purchase accounting,
(j) to the extent not deducted in the computation of Net
Proceeds in
respect of any asset disposition or condemnation giving rise
thereto, the
amount of any mandatory prepayment of Indebtedness (other than
Indebtedness
created hereunder or under any other Loan Document), together
with any
interest, premium or penalties required to be paid (and actually
paid) in
connection therewith, and
(k) the amount related to items that were added to or not
deducted
from Net Income in calculating Consolidated Net Income or were
added to or not
deducted from Consolidated Net Income in calculating Adjusted
EBITDA to the
extent such items represented a cash payment (which had not
reduced Excess Cash
Flow upon the accrual thereof in a prior Excess Cash Flow
Period), or an
accrual for a cash payment, by the Borrower and its Subsidiaries
or did not
represent cash received by the Borrower and its Subsidiaries, in
each case on a
consolidated basis during such Excess Cash Flow Period.
plus, without duplication,
----
(a) an amount equal to any decrease in Working Capital for
such
Excess Cash Flow Period,
(b) all proceeds received during such Excess Cash Flow Period
of
Capitalized Lease Obligations, purchase money Indebtedness, Sale
and Lease-Back
Transactions pursuant to Section 6.03 and any other
Indebtedness, in each case
to the extent used to finance any Capital Expenditure (other
than Indebtedness
under this Agreement to the extent there is no corresponding
deduction to
Excess Cash Flow above in respect of the use of such
Borrowings),
(c) all amounts referred to in clause (c) above to the extent
funded
with the proceeds of the issuance of Equity Interests of, or
capital
contributions to, the Borrower after the Closing Date (to the
extent not
previously used to prepay Indebtedness (other than Revolving
Facility Loans or
Swingline Loans), make any investment or capital expenditure or
otherwise for
any purpose resulting in a deduction to Excess Cash Flow in any
prior Excess
Cash Flow Period) or any amount that would have constituted Net
Proceeds under
clause (a) of the definition of the term "Net Proceeds" if not
so spent, in
each case to the extent there is a corresponding deduction from
Excess Cash
Flow above,
(d) to the extent any permitted Capital Expenditures referred to
in
clause (d) above and the delivery of the related equipment do
not occur in the
following Excess Cash Flow Period of the Borrower specified in
the certificate
of the Borrower provided pursuant to clause (d) above, the
amount of such
Capital Expenditures that were not so made in such following
Excess Cash Flow
Period,
(e) cash payments received in respect of Swap Agreements during
such
Excess Cash Flow Period to the extent (i) not included in the
computation of
Adjusted EBITDA or (ii) such payments do not reduce Cash
Interest Expense,
(f) any extraordinary or nonrecurring gain realized in cash
during
such Excess Cash Flow Period (except to the extent such gain
consists of Net
Proceeds subject to 2.11(b)),
(g) to the extent deducted in the computation of EBITDA,
cash
interest income, and
(h) the amount related to items that were deducted from or not
added
to Net Income in connection with calculating Consolidated Net
Income or were
deducted from or not added to Consolidated Net Income in
calculating EBITDA to
the extent either (x) such items represented cash received by
the Borrower or
any Subsidiary or (y) such items do not represent cash paid by
the Borrower or
any Subsidiary, in each case on a consolidated basis during such
Excess Cash
Flow Period.
"Excess Cash Flow Period" shall mean (a) the period taken as
one
accounting period from the Closing Date and ending December 31,
2005 and (b)
each fiscal year of the Borrower ended thereafter.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as
amended and the rules and regulations of the SEC promulgated
thereunder.
"Excluded Indebtedness" shall mean all Indebtedness permitted to
be
incurred under Section 6.01.
"Excluded Taxes" shall mean, with respect to the
Administrative
Agent, any Lender, any Issuing Bank or any other recipient of
any payment to be
made by or on account of any obligation of the Borrower
hereunder, (a) income
or franchise taxes imposed on (or measured by) its net income by
the United
States of America (or any state thereof) or the jurisdiction
under the laws of
which such recipient is organized or in which its principal
office is located
or, in the case of any Lender, in which its applicable Lending
Office is
located, (b) any branch profits tax or any similar tax that is
imposed by any
jurisdiction described in clause (a) above and (c) in the case
of a Lender
making a Loan to the Borrower, any withholding tax imposed by
the United States
that is in effect and would apply to amounts payable hereunder
to such Lender
at the time such Lender becomes a party to such Loan to the
Borrower (or
designates a new Lending Office) or is attributable to such
Lender's failure to
comply with Section 2.17(e) with respect to such Loan except to
the extent that
such Lender (or its assignor, if any) was entitled, at the time
of designation
of a new Lending Office (or assignment), to receive additional
amounts from a
Loan Party with respect to any withholding tax pursuant to
Section 2.17(a) or
Section 2.17(c).
"Existing Letters of Credit" shall mean each letter of
credit
previously issued for the account of the Borrower or any
Subsidiary by DIRECTV
or any of its Affiliates that is outstanding on the Closing
Date. The face
amount of the Existing Letters of Credit on the Closing Date is
approximately
$23.8 million.
"Facility" shall mean the respective facility and
commitments
utilized in making Loans and credit extensions hereunder, it
being understood
that as of the date of this Agreement there are two Facilities,
i.e., the Term
Facility and the Revolving Facility.
"Fair Market Value" shall mean, with respect to any asset or
property, the price that could be negotiated in an arm's-length
transaction
between a willing seller and a willing and able buyer, neither
of whom is under
undue pressure or compulsion to complete the transaction.
"FCC" shall mean the Federal Communications Commission or
any
governmental authority substituted therefor.
"FCC Licenses" shall mean all authorizations, licenses and
permits,
including experimental authorizations, issued by the FCC or any
governmental
authority substituted therefor to the Borrower or any of its
Subsidiaries,
under which the Borrower or any of its Subsidiaries is
authorized to launch and
operate any of its Satellites or to operate any of its Earth
Stations (other
than authorizations, orders, licenses or permits that are no
longer in effect).
"Federal Funds Effective Rate" shall mean, for any day, the
weighted
average (rounded upward, if necessary, to the next 1/100 of 1%)
of the rates on
overnight Federal funds transactions with members of the Federal
Reserve System
arranged by Federal funds brokers, as published on the next
succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is
not so
published for any day which is a Business Day, the average
(rounded upward, if
necessary, to the next 1/100 of 1%) of the quotations for the
day of such
transactions received by the Administrative Agent from three
Federal funds
brokers of recognized standing selected by it.
"Fees" shall mean the Commitment Fees, the L/C Participation
Fees,
the Issuing Bank Fees and the Administrative Agent Fees.
"Financial Officer" of any person shall mean the Chief
Financial
Officer, principal accounting officer, Treasurer, Assistant
Treasurer or
Controller of such person.
"Financial Performance Covenants" shall mean the covenants of
the
Borrower set forth in Sections 6.11, 6.12 and 6.13.
"First Lien Debt" shall mean at any date the sum of (a) the
aggregate
outstanding principal amount of Indebtedness outstanding
hereunder (other than
Letters of Credit to the extent undrawn) and (b) the amount then
outstanding
under any Receivables Financing (as calculated pursuant to
clause (d) of the
definition of Indebtedness).
"First Lien Leverage Ratio" shall mean at any date the ratio of
(a)
First Lien Debt as of such date of calculation to (b) Adjusted
EBITDA of the
Borrower for the four full fiscal quarters immediately preceding
such date. The
provisions applicable to pro forma transaction and Indebtedness
set forth in
the second paragraph of the definition of "Debt to Adjusted
EBITDA Ratio" will
apply for the purposes of making the computations referred to in
this
definition.
"Flow Through Entity" shall mean an entity that is treated as
a
partnership not taxable as a corporation, a grantor trust or a
disregarded
entity for U.S. federal income tax purposes or subject to
treatment on a
comparable basis for purposes of state, local or foreign tax
law.
"Foreign Lender" shall mean any Lender that is organized under
the
laws of a jurisdiction other than the United States of America.
For purposes of
this definition, the United States of America, each State
thereof and the
District of Columbia shall be deemed to constitute a single
jurisdiction.
"Foreign Licenses" shall mean all authorizations, orders,
licenses,
permits, approvals, consents, and rights issued to the Borrower
or any of its
Subsidiaries by any foreign Governmental Authority pursuant to
any statute,
rule, regulation or policy regarding the operation of channels
of radio
communications and/or the provisions of communications or
telecommunications
services (other than authorizations, orders, licenses or permits
that are no
longer in effect).
"Foreign Pledge Agreement" shall mean a pledge agreement with
respect
to the Pledged Collateral that constitutes Equity Interests of a
first-tier
Foreign Subsidiary, in form and substance reasonably
satisfactory to the
Administrative Agent; provided that in no event shall more than
65% of the
issued and outstanding Equity Interests of such Foreign
Subsidiary be pledged
to secure Credit Agreement Obligations of the Borrower.
"Foreign Subsidiary" shall mean a Subsidiary not organized
or
existing under the laws of the United States of America or any
state or
territory thereof or the District of Columbia and any direct or
indirect
subsidiary of such Subsidiary.
"GAAP" shall mean generally accepted accounting principles in
effect
from time to time in the United States, applied on a consistent
basis, subject
to the provisions of Section 1.02; provided that any reference
to the
application of GAAP to a Foreign Subsidiary (and not as a
consolidated
Subsidiary of the Borrower) shall mean generally accepted
accounting principles
in effect from time to time in the jurisdiction of organization
of such Foreign
Subsidiary.
"Governmental Authority" shall mean any federal, state, local
or
foreign court or governmental agency, authority, instrumentality
or regulatory
or legislative body.
"guarantee" or "Guarantee" shall mean a guarantee (other than
by
endorsement of negotiable instruments for collection in the
ordinary course of
business or customary and reasonable indemnity obligations in
effect on the
Closing Date or entered into in connection with an acquisition
or disposition
of assets permitted under this Agreement), direct or indirect,
in any manner
(including, without limitation, letters of credit and
reimbursement agreements
in respect thereof), of all or any part of any Indebtedness or
other
obligations, and "guarantor" and "Guarantor" shall have meanings
correlative
thereto.
"Hazardous Materials" shall mean all pollutants,
contaminants,
wastes, chemicals, materials, substances and constituents,
including, without
limitation, explosive or radioactive substances or petroleum or
petroleum
distillates, asbestos or asbestos containing materials,
polychlorinated
biphenyls or radon gas, of any nature subject to regulation or
which can give
rise to liability under any Environmental Law.
"HNS" shall have the meaning assigned to such term in the
first
recital hereto.
"Hedging Obligations" shall mean, with respect to any Person,
the
obligations of such Person under:
(a) currency exchange or interest rate swap agreements, cap
agreements and collar agreements; and
(b) other agreements or arrangements designed to manage exposure
or
protect such Person against fluctuations in currency exchange or
interest
rates.
"Increased Amount Date" shall have the meaning assigned to such
term
in Section 2.20.
"Incremental Amount" shall mean, at any time, the excess, if
any, of
(a) $150.0 million over (b) the aggregate amount of all
Incremental Term Loan
Commitments and Incremental Revolving Facility Commitments
established prior to
such time pursuant to Section 2.20.
"Incremental Assumption Agreement" shall mean an Incremental
Assumption Agreement in form and substance reasonably
satisfactory to the
Administrative Agent, among the Borrower, the Administrative
Agent and one or
more Incremental Term Lenders and/or Incremental Revolving
Facility Lenders.
"Incremental Revolving Facility Lender" shall mean a Lender with
an
Incremental Revolving Facility Commitment or an outstanding
Incremental
Revolving Facility Loan.
"Incremental Revolving Facility Borrowing" shall mean a
Borrowing
comprised of Incremental Revolving Facility Loans.
"Incremental Revolving Facility Commitment" shall mean the
commitment
of any Lender, established pursuant to Section 2.20, to make
Incremental
Revolving Facility Loans to the Borrower.
"Incremental Revolving Facility Maturity Date" shall mean the
final
maturity date of any Incremental Revolving Facility Loan, as set
forth in the
applicable Incremental Assumption Agreement.
"Incremental Revolving Facility Loans" shall mean Revolving
Facility
Loans made by one or more Lenders to the Borrower pursuant to
Section 2.01(c).
Incremental Term Loans may be made in the form of additional
Revolving Facility
Loans or, to the extent permitted by Section 2.20 and provided
for in the
relevant Incremental Assumption Agreement, Other Revolving
Facility Loans.
"Incremental Term Lender" shall mean a Lender with an
Incremental
Term Loan Commitment or an outstanding Incremental Term
Loan.
"Incremental Term Loan Borrowing" shall mean a Borrowing
comprised of
Incremental Term Loans
"Incremental Term Loan Commitment" shall mean the commitment of
any
Lender, established pursuant to Section 2.20, to make
Incremental Term Loans to
the Borrower.
"Incremental Term Loan Maturity Date" shall mean the final
maturity
date of any Incremental Term Loan, as set forth in the
applicable Incremental
Term Loan Assumption Agreement.
"Incremental Term Loan Repayment Dates" shall mean the dates
scheduled for the repayment of principal of any Incremental Term
Loan, as set
forth in the applicable Incremental Term Loan Assumption
Agreement.
"Incremental Term Loans" shall mean Term Loans made by one or
more
Lenders to the Borrower pursuant to Section 2.01(c). Incremental
Term Loans may
be made in the form of additional Term Loans or, to the extent
permitted by
Section 2.20 and provided for in the relevant Incremental Term
Loan Assumption
Agreement, Other Term Loans.
"Incur" or "incur" shall mean issue, assume, guarantee, incur
or
otherwise become liable for; provided, however, that any
Indebtedness or
Capital Stock of a Person existing at the time such Person
becomes a Subsidiary
(whether by merger, amalgamation, consolidation, acquisition or
otherwise)
shall be deemed to be Incurred by such Person at the time it
becomes a
Subsidiary.
"Indebtedness" shall mean, with respect to any Person,
without
duplication:
(a) the principal and premium (if any) of any indebtedness of
such
Person, whether or not contingent, (i) in respect of borrowed
money, (ii)
evidenced by bonds, notes, debentures or similar instruments or
letters of
credit or bankers' acceptances (or, without duplication,
reimbursement
agreements in respect thereof), (iii) representing the deferred
and unpaid
purchase price of any property, except any such balance that
constitutes a
current account payable, trade payable or similar obligation
Incurred, (iv) in
respect of Capitalized Lease Obligations, or (v) representing
any Hedging
Obligations, if and to the extent that any of the foregoing
indebtedness (other
than letters of credit and Hedging Obligations) would appear as
a liability on
a balance sheet (excluding the footnotes thereto) of such Person
prepared in
accordance with GAAP;
(b) to the extent not otherwise included, any obligation of
such
Person to be liable for, or to pay, as obligor, guarantor or
otherwise, the
Indebtedness of another Person (other than by endorsement of
negotiable
instruments for collection in the ordinary course of
business);
(c) to the extent not otherwise included, Indebtedness of
another
Person secured by a Lien on any asset owned by such Person
(whether or not such
Indebtedness is assumed by such Person); provided, however, that
the amount of
such Indebtedness will be the lesser of: (i) the Fair Market
Value of such
asset at such date of determination and (ii) the amount of such
Indebtedness of
such other Person; and
(d) to the extent not otherwise included, with respect to
the
Borrower and its Subsidiaries, the amount then outstanding (i)
(i.e., advanced,
and received by, and available for use by, the Borrower or any
of its
Subsidiaries) under any Receivables Financing (as confirmed by
the agent,
trustee or other representative of the institution or group
providing such
Receivables Financing) or (ii) under any Equipment Financing
Agreement;
provided, however, that notwithstanding the foregoing,
Indebtedness shall be
deemed not to include (1) Contingent Obligations incurred in the
ordinary
course of business and not in respect of borrowed money; (2)
deferred or
prepaid revenues; (3) purchase price holdbacks in respect of a
portion of the
purchase price of an asset to satisfy warranty or other
unperformed obligations
of the respective seller; (4) obligations to make payments to
one or more
insurers under satellite insurance policies in respect of
premiums or the
requirement to remit to such insurer(s) a portion of the future
revenue
generated by a satellite which has been declared a constructive
total loss, in
each case in accordance with the terms of the insurance policies
relating
thereto; (5) any obligations to make progress or incentive
payments or risk
money payments under any satellite manufacturing contract or to
make payments
under satellite launch contracts in respect of launch services
provided
thereunder, in each case, to the extent not overdue by more than
90 days; or
(6) the financing of insurance premiums with the carrier of such
insurance or
take or pay obligations contained in supply agreements, in each
case entered
into in the ordinary course of business.
Notwithstanding anything in this Agreement, Indebtedness shall
not
include, and shall be calculated without giving effect to, the
effects of
Statement of Financial Accounting Standards No. 133 and related
interpretations
to the extent such effects would otherwise increase or decrease
an amount of
Indebtedness for any purpose under this Agreement as a result of
accounting for
any embedded derivatives created by the terms of such
Indebtedness; and any
such amounts that would have constituted Indebtedness under this
Agreement but
for the application of this sentence shall not be deemed an
Incurrence of
Indebtedness under this Agreement.
"Indemnified Taxes" shall mean all Taxes other than Excluded
Taxes.
"Indemnitee" shall have the meaning assigned to such term in
Section
9.05(b).
"In-Orbit Insurance" shall mean, with respect to any Satellite
(or,
if the entire Satellite is not owned by the Borrower or any
Subsidiary, as the
case may be, the portion of the Satellite it owns or for which
it has risk of
loss), insurance or other contractual arrangement providing for
coverage
against the risk of loss of or damage to such Satellite (or
portion, as
applicable) attaching upon the expiration of the launch
insurance therefor (or,
if launch insurance is not procured, upon the initial completion
of in-orbit
testing) and attaching, during the commercial in-orbit service
of such
Satellite (or portion, as applicable), upon the expiration of
the immediately
preceding corresponding policy or other contractual arrangement,
as the case
may be, subject to the terms and conditions set forth in this
Agreement.
"Intercreditor Agreement" shall mean the Intercreditor
Agreement, as
amended, supplemented or otherwise modified from time to time,
in the form of
Exhibit I, between among the Administrative Agent and the Second
Lien
Administrative Agent.
"Interest Election Request" shall mean a request by the Borrower
to
convert or continue a Term Borrowing or Revolving Facility
Borrowing in
accordance with Section 2.07.
"Interest Payment Date" shall mean, (a) with respect to any
Eurocurrency Loan, the last day of the Interest Period
applicable to the
Borrowing of which such Loan is a part and, in the case of a
Eurocurrency
Borrowing with an Interest Period of more than three months'
duration, each day
that would have been an Interest Payment Date had successive
Interest Periods
of three months' duration been applicable to such Borrowing and,
in addition,
the date of any refinancing or conversion of such Borrowing with
or to a
Borrowing of a different Type, (b) with respect to any ABR Loan,
the last day
of each calendar quarter and (c) with respect to any Swingline
Loan, the day
that such Swingline Loan is required to be repaid pursuant to
Section 2.09(a).
"Interest Period" shall mean, as to any Eurocurrency Borrowing,
the
period commencing on the date of such Borrowing or on the last
day of the
immediately preceding Interest Period applicable to such
Borrowing, as
applicable, and ending on the numerically corresponding day (or,
if there is no
numerically corresponding day, on the last day) in the calendar
month that is
1, 2, 3 or 6 months thereafter (or 9 or 12 months, if at the
time of the
relevant Borrowing, all Lenders make interest periods of such
length
available), as the Borrower may elect, or the date any
Eurocurrency Borrowing
is converted to an ABR Borrowing in accordance with Section 2.07
or repaid or
prepaid in accordance with Section 2.09, 2.10 or 2.11; provided,
unless the
Administrative Agent shall otherwise agree, that with respect to
periods
commencing prior to the 31st day after the Closing Date, the
Borrower shall
only be permitted to request Interest Periods of seven days;
provided, however,
that if any Interest Period would end on a day other than a
Business Day, such
Interest Period shall be extended to the next succeeding
Business Day unless
such next succeeding Business Day would fall in the next
calendar month, in
which case such Interest Period shall end on the next preceding
Business Day.
Interest shall accrue from and including the first day of an
Interest Period to
but excluding the last day of such Interest Period.
"Investment" shall have the meaning assigned to such term in
Section
6.04.
"Issuing Bank" shall mean JPMorgan Chase Bank, N.A. and each
other
Issuing Bank designated pursuant to Section 2.05(k), in each
case in its
capacity as an issuer of Letters of Credit hereunder, and its
successors in
such capacity as provided in Section 2.05(i). An Issuing Bank
may, in its
discretion, arrange for one or more Letters of Credit to be
issued by
Affiliates of such Issuing Bank, in which case the term "Issuing
Bank" shall
include any such Affiliate with respect to Letters of Credit
issued by such
Affiliate.
"Issuing Bank Fees" shall have the meaning assigned to such term
in
Section 2.12(b).
"Joint Lead Arrangers" shall have the meaning assigned to such
term
in the introductory paragraph of this Agreement.
"Law" shall mean any treaty, intergovernmental arrangement,
multinational, national, federal, state, provincial or local
law, statute,
ordinance, rule, regulation, judgment, order, injunction,
decree, determination
or arbitration award, of any Governmental Authority.
"L/C Disbursement" shall mean a payment or disbursement made by
an
Issuing Bank pursuant to a Letter of Credit.
"L/C Participation Fee" shall have the meaning assigned such
term in
Section 2.12(b).
"Lender" shall mean each financial institution listed on
Schedule
2.01, as well as any person that becomes a "Lender" hereunder
pursuant to
Section 9.04.
"Lender Default" shall mean (a) the refusal (which has not
been
retracted) of a Lender to make available its portion of any
Borrowing, to
acquire participations in a Swingline Loan pursuant to Section
2.04 or to fund
its portion of any unreimbursed payment under Section 2.05(e),
or (b) a Lender
having notified in writing the Borrower and/or the
Administrative Agent that it
does not intend to comply with its obligations under Section
2.04, 2.05 or
2.06.
"Lending Office" shall mean, as to any Lender, the applicable
branch,
office or Affiliate of such Lender designated by such Lender to
make Loans.
"Letter of Credit" shall mean any letter of credit issued
pursuant to
Section 2.05.
"LIBO Rate" shall mean, with respect to any Eurocurrency
Borrowing
for any Interest Period, the rate per annum determined by the
Administrative
Agent at approximately 11:00 a.m., London time, on the Quotation
Day for such
Interest Period by reference to the British Bankers' Association
Interest
Settlement Rates for deposits in the currency of such Borrowing
(as reflected
on the applicable Telerate screen page), for a period equal to
such Interest
Period; provided that, to the extent that an interest rate is
not ascertainable
pursuant to the foregoing provisions of this definition, the
"LIBO Rate" shall
be the average (rounded upward, if necessary, to the next 1/100
of 1%) of the
respective interest rates per annum at which deposits in the
currency of such
Borrowing are offered for such Interest Period to major banks in
the London
interbank market by JPMorgan Chase Bank, N.A. at approximately
11:00 a.m.,
London time, on the Quotation Day for such Interest Period.
"License Subsidiary" shall mean one or more Wholly Owned
Subsidiaries
of the Borrower (i) that holds, was formed for the purpose of
holding or is
designated to hold FCC Licenses and (ii) all of the shares of
Capital Stock and
other ownership interests of which are held directly by the
Borrower or a
Subsidiary Loan Party.
"Lien" shall mean, with respect to any asset, any mortgage,
lien,
pledge, charge, security interest or encumbrance of any kind in
respect of such
asset, whether or not filed, recorded or otherwise perfected
under applicable
law (including any conditional sale or other title retention
agreement, any
lease in the nature thereof, any other agreement to give a
security interest
and, except in connection with any Qualified Receivables
Financing, any filing
of or agreement to give any financing statement under the
Uniform Commercial
Code or equivalent statutes of any jurisdiction); provided that
in no event
shall an operating lease or an agreement to sell be deemed to
constitute a
Lien.
"Loan Documents" shall mean this Agreement, the Letters of
Credit,
the Security Documents, the Intercreditor Agreement and any
promissory note
issued under Section 2.09(e), and solely for the purposes of
Sections 4.02(o)
and 7.01(c) hereof, the Fee Letter dated December 2, 2004, as
amended on
January 27, 2005, by and among the Parents, the Administrative
Agent, Bear
Stearns Corporate Lending Inc. and the Joint Lead Arrangers.
"Loan Parties" shall mean the Borrower and the Subsidiary
Loan
Parties.
"Loans" shall mean the Term Loans, the Revolving Facility Loans
and
the Swingline Loans (and shall include any Loans under the
Incremental
Revolving Facility Commitments or Incremental Term Loan
Commitments).
"Local Time" shall mean New York City time.
"Majority Lenders" of any Facility shall mean, at any time,
Lenders
under such Facility having Loans and unused Commitments
representing more than
50% of the sum of all Loans outstanding under such Facility and
unused
Commitments under such Facility at such time.
"Margin Stock" shall have the meaning assigned to such term
in
Regulation U.
"Material Adverse Effect" shall mean the existence of any
event,
development or circumstance that has had or could reasonably be
expected to
have a material adverse effect on (a) the Transactions, (b) the
business,
property, operations or condition (financial or otherwise) of
the Borrower and
its Subsidiaries, taken as a whole, or (c) the validity or
enforceability of
any of the Loan Documents or the rights and remedies of the
Administrative
Agent and the Lenders thereunder.
"Material Foreign Subsidiary" shall mean a Foreign Subsidiary
that is
a Material Subsidiary.
"Material Indebtedness" shall mean Indebtedness (other than
Loans and
Letters of Credit) of any one or more of the Borrower or any
Subsidiary in an
aggregate principal amount exceeding $25.0 million.
"Material Subsidiary" shall have the meaning assigned to such
term in
Section 7.02.
"Maximum Rate" shall have the meaning assigned to such term
in
Section 9.09.
"Moody's" shall mean Moody's Investors Service, Inc. or any
successor
to the rating agency business thereof.
"Mortgaged Properties" shall mean the owned real properties of
the
Loan Parties set forth on Schedule 1.01(c) and each additional
real property
encumbered by a Mortgage pursuant to Section 5.10.
"Mortgages" shall mean the mortgages, deeds of trust, deeds to
secure
debt, assignments of leases and rents, and other security
documents delivered
pursuant to Section 5.10 and clause (h) of the definition of
Collateral and
Guarantee Requirement, as amended, supplemented or otherwise
modified from time
to time, with respect to Mortgaged Properties, each
substantially in the form
of Exhibit D, with such changes as consented to by the
Administrative Agent as
evidenced by its execution of any Mortgage containing any such
change.
"Multiemployer Plan" shall mean a multiemployer plan as defined
in
Section 4001(a)(3) of ERISA to which the Borrower or any
Subsidiary or any
ERISA Affiliate (other than one considered an ERISA Affiliate
only pursuant to
subsection (m) or (o) of Code Section 414) is making or accruing
an obligation
to make contributions, or has within any of the preceding six
plan years made
or accrued an obligation to make contributions.
"Net Income" shall mean, with respect to any person, the net
income
(loss) of such person, determined in accordance with GAAP and
before any
reduction in respect of preferred stock dividends.
"Net Proceeds" shall mean:
(a) 100% of (i) any Event of Loss Proceeds and (ii) the cash
proceeds
actually received by the Borrower or any of their Subsidiaries
(including any
cash payments received by way of deferred payment of principal
pursuant to a
note or installment receivable or purchase price adjustment
receivable or
otherwise and including casualty insurance settlements and
condemnation awards,
but only as and when received) from any loss, damage,
destruction or
condemnation of, or any sale, transfer or other disposition
(including any sale
and leaseback of assets and any mortgage or lease of real
property) to any
person of any asset or assets of the Borrower or any Subsidiary
(other than
pursuant to Section 6.05 (a) through (j), (l) and (m), net of
(A) attorneys'
fees, accountants' fees, investment banking fees, survey costs,
title insurance
premiums, and related search and recording charges, transfer
taxes, deed or
mortgage recording taxes, required debt payments and required
payments of other
obligations relating to the applicable asset (other than
pursuant hereto or
pursuant to any Permitted Debt Securities or any Permitted
Refinancing
Indebtedness in respect thereof), other customary expenses and
brokerage,
consultant and other customary fees actually incurred in
connection therewith
and (B) Taxes paid or payable as a result thereof provided that,
in each case,
if no Event of Default exists and Borrower shall deliver a
certificate of a
Responsible Officer to the Administrative Agent promptly
following receipt of
any such proceeds setting forth the Borrower's intention to use
(or enter into
a binding commitment to use) any portion of such proceeds, to
acquire,
maintain, develop, construct, improve, upgrade or repair assets
useful in the
business of the Borrower and the Subsidiaries or to make
investments in
Permitted Business Acquisitions or Investments permitted by
Section 6.04(i), in
each case within 12 months of such receipt, such portion of such
proceeds shall
not constitute Net Proceeds except to the extent not so used (or
entered into)
within such 12-month period or not used in accordance with the
terms of such
binding commitment, and provided, further, that (x) no proceeds
realized in a
single transaction or series of related transactions shall
constitute Net
Proceeds unless such proceeds shall exceed $1.0 million and (y)
no proceeds
shall constitute Net Proceeds in any fiscal year until the
aggregate amount of
all such proceeds in such fiscal year shall exceed $4.0
million,
(b) 100% of the cash proceeds from the incurrence, issuance or
sale
by the Borrower or any Subsidiary of any Indebtedness (other
than Excluded
Indebtedness), net of all taxes and fees (including investment
banking fees),
commissions, costs and other expenses, in each case incurred in
connection with
such issuance or sale, and
(c) 50% of the cash proceeds from the issuance or sale of any
Equity
Interest of the Borrower or any Subsidiary at any time after
SPACEWAY has
entered commercial operation (other than Equity Interests (i) of
the Borrower
issued to the then existing holders of the Equity Interests of
the Borrower,
(ii) Equity Interests of any Subsidiary issued to the then
existing owners of
such Subsidiary and (iii) Equity Interests issued to finance a
Permitted
Business Acquisition, an Investment permitted by Section 6.04(i)
or a permitted
Capital Expenditure) net of all taxes and fees (including
investment banking
fees), commissions, costs and other expenses, in each case
incurred in
connection with such issuance or sale.
For purposes of calculating the amount of Net Proceeds,
fees,
commissions and other costs and expenses payable to the Borrower
or any
Affiliate thereof shall be disregarded, except for financial
advisory fees
customary in type and amount paid to Affiliates of SkyTerra.
"Non-Consenting Lender" shall have the meaning assigned to such
term
in Section 2.19(c).
"Note" shall have the meaning assigned to such term in
Section
2.09(e).
"Offering Memorandum" shall mean the certain preliminary
offering
memorandum dated April 5, 2005 relating to the Borrower's
proposed offering of
senior notes.
"Other Revolving Facility Loans" shall have the meaning assigned
to
such term in Section 2.20.
"Other Taxes" shall mean any and all present or future stamp
or
documentary taxes or any other excise or property taxes, charges
or similar
levies arising from any payment made hereunder or from the
execution, delivery
or enforcement of, or otherwise with respect to, the Loan
Documents, and any
and all interest and penalties related thereto.
"Other Term Loans" shall have the meaning assigned to such term
in
Section 2.20.
"Parents" shall have the meaning assigned to such term in the
first
recital hereto.
"Parent Pledge Agreement" shall mean the Parent Pledge
Agreement, as
amended, supplemented or otherwise modified from time to time,
in the form of
Exhibit H, to be made by the Parents in favor of the
Administrative Agent, for
the ratable benefit of the Lenders.
"Participant" shall have the meaning assigned to such term in
Section
9.04(c).
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred
to and defined in ERISA.
"Perfection Certificate" shall mean a certificate in the
form
of Annex I to the Collateral Agreement or any other form
approved by the
Administrative Agent.
"Permitted Business Acquisition" shall mean any acquisition of
all or
substantially all the assets of, or all the Equity Interests
(other than
directors' qualifying shares) in, a person or division or line
of business of a
person (or any subsequent investment made in a person, division
or line of
business previously acquired in a Permitted Business
Acquisition) if (a) such
acquisition was not preceded by, or effected pursuant to, an
unsolicited or
hostile offer by the acquirer or an Affiliate of the acquirer
and (b)
immediately after giving effect thereto: (i) no Event of Default
shall have
occurred and be continuing or would result therefrom; (ii) all
transactions
related thereto shall be consummated in accordance with
applicable laws; (iii)
(A) the Borrower and its Subsidiaries shall be in compliance, on
a pro forma
basis after giving effect to such acquisition or formation, with
the covenants
contained in Sections 6.11, 6.12 and 6.13 recomputed as at the
last day of the
most recently ended fiscal quarter of the Borrower and its
Subsidiaries, and
the Borrower shall have delivered to the Administrative Agent a
certificate of
a Responsible Officer of the Borrower to such effect, together
with all
relevant financial information for such Subsidiary or assets,
and (B) any
acquired or newly formed Subsidiary shall not be liable for any
Indebtedness
(except for Indebtedness permitted by Section 6.01); and (iv)
the Available
Unused Commitments, together with all cash and Permitted
Investments of the
Borrower and its Subsidiaries at such time, shall be no less
than (A) $15.0
million plus (unless SPACEWAY has entered commercial operation
or has been
abandoned) (B) $146 million minus the cumulative amount expended
after the
Closing Date by the Borrower and its Subsidiaries for the
construction of
SPACEWAY, launch insurance, launch costs and associated network
operations
centers and ground facilities.
"Permitted Cure Security" shall mean an equity security of
the
Borrower having no mandatory redemption, repurchase or similar
requirements
prior to 91 days after the Term Facility Maturity Date, and upon
which all
dividends or distributions (if any) shall, prior to 91 days
after the Term
Facility Maturity Date, be payable solely in additional shares
of such equity
security.
"Permitted Debt Securities" shall mean unsecured senior or
senior
subordinated notes issued by the Borrower (a) the terms of which
do not provide
for any scheduled repayment, mandatory redemption or sinking
fund obligation
prior to the date that is six months after the Term Facility
Maturity Date
(except that any such obligations in the nature of "bridge"
notes or loans (i)
may be subject to prepayment with the proceeds of Permitted
Refinancing
Indebtedness in respect thereof or the issuance of Equity
Interests or asset
sales permitted to be issued or made hereunder and the proceeds
of which are
permitted hereunder to be used for such purpose and (ii) may be
subject to
scheduled repayment or mandatory redemption, in each case to the
extent that
the Borrower has the right to cause such obligations to be
exchanged for, or
redeemed with, Permitted Refinancing Indebtedness in respect
thereof), (b) the
covenants, events of default, Subsidiary guarantees and other
terms of which
(other than interest rate and redemption premiums), taken as a
whole, are, in
the reasonable judgment of the Administrative Agent, generally
consistent with
those applicable to similar securities issued by companies with
credit
characteristics similar to those of the Borrower, (c) in respect
of which no
Subsidiary of the Borrower that is not an obligor under the Loan
Documents is
an obligor and (d) the proceeds of which are used to pay or
prepay Second Lien
Term Loans, to pay or prepay Term Loans, to reduce the Revolving
Facility
Commitments hereunder or to finance a Permitted Business
Acquisition or any
Investment permitted pursuant to Section 6.04(i); provided that
any Permitted
Debt Securities used to finance a Permitted Business Acquisition
or Investment
shall provide for subordination of payments in respect of such
notes to the
Credit Agreement Obligations and guarantees thereof under the
Loan Documents in
a manner reasonably satisfactory to the Administrative
Agent.
"Permitted Holders" shall mean each of DirecTV, Apollo and
SkyTerra
and their Affiliates.
"Permitted Investments" shall mean:
(a) U.S. dollars, pounds sterling, euros, national currency of
any
participating member state in the European Union or, in the case
of any Foreign
Subsidiary, such local currencies held by it from time to time
in the ordinary
course of business;
(b) securities issued or directly and fully guaranteed or
insured by
the government of the United States or any country that is a
member of the
European Union or any agency or instrumentality thereof, in each
case with
maturities not exceeding two years from the date of
acquisition;
(c) certificates of deposit, time deposits and eurodollar
time
deposits with maturities of one year or less from the date of
acquisition,
bankers' acceptances, in each case with maturities not exceeding
one year, and
overnight bank deposits, in each case with any commercial bank
having capital
and surplus in excess of $250.0 million, or the foreign currency
equivalent
thereof, and whose long-term debt is rated "A" or the equivalent
thereof by
Moody's or S&P (or reasonably equivalent ratings of another
internationally
recognized ratings agency);
(d) repurchase obligations for underlying securities of the
types
described in clauses (b) and (c) above entered into with any
financial
institution meeting the qualifications specified in clause (c)
above;
(e) commercial paper issued by a corporation (other than an
Affiliate
of the Borrower) rated at least "A-1" or the equivalent thereof
by Moody's or
S&P (or reasonably equivalent ratings of another
internationally recognized
ratings agency) and in each case maturing within one year after
the date of
acquisition;
(f) readily marketable direct obligations issued by any state of
the
United States of America or any political subdivision thereof
having one of the
two highest rating categories obtainable from either Moody's or
S&P (or
reasonably equivalent ratings of another internationally
recognized ratings
agency) in each case with maturities not exceeding two years
from the date of
acquisition;
(g) Indebtedness issued by Persons (other than the Permitted
Holders
or any of their Affiliates) with a rating of "A" or higher from
S&P or "A-2" or
higher from Moody's (or reasonably equivalent ratings of
another
internationally recognized ratings agency) in each case with
maturities not
exceeding two years from the date of acquisition;
(h) investment funds investing at least 95% of their assets
in
securities of the types described in clauses (a) through (g)
above;
"Permitted Refinancing Indebtedness" shall mean any
Indebtedness
issued in exchange for, or the net proceeds of which are used to
extend,
refinance, renew, replace, defease or refund (collectively, to
"Refinance"),
the Indebtedness being Refinanced (or previous refinancings
thereof
constituting Permitted Refinancing Indebtedness); provided that
(a) the
principal amount (or accreted value, if applicable) of such
Permitted
Refinancing Indebtedness does not exceed the principal amount
(or accreted
value, if applicable) of the Indebtedness so Refinanced (plus
unpaid accrued
interest and premium thereon and underwriting discounts, fees,
commissions and
expenses), (b) the average life to maturity of such Permitted
Refinancing
Indebtedness is greater than or equal to that of the
Indebtedness being
Refinanced, (c) if the Indebtedness being Refinanced is
subordinated in right
of payment to the Credit Agreement Obligations, such Permitted
Refinancing
Indebtedness shall be subordinated in right of payment to such
Credit Agreement
Obligations on terms at least as favorable to the Lenders as
those contained in
the documentation governing the Indebtedness being Refinanced,
(d) no Permitted
Refinancing Indebtedness shall have obligors that are not Loan
Parties
hereunder, or greater guarantees or security, than the
Indebtedness being
Refinanced and (e) if the Indebtedness being Refinanced is
secured by any
collateral (whether equally and ratably with, or junior to, the
Secured Parties
or otherwise), such Permitted Refinancing Indebtedness may be
secured by such
collateral (including in respect of working capital facilities
of Foreign
Subsidiaries otherwise permitted under this Agreement only, any
collateral
pursuant to after-acquired property clauses to the extent any
such collateral
secured the Indebtedness being Refinanced) on terms no less
favorable to the
Secured Parties than those contained in the documentation
(including any
intercreditor agreement) governing the Indebtedness being
Refinanced; and
provided further, that with respect to a Refinancing of
Permitted Debt
Securities, such Permitted Refinancing Indebtedness shall meet
the requirements
of clauses (a), (b) and (c) of the definition of "Permitted Debt
Securities."
"Person" or "person" shall mean any individual, corporation,
partnership, limited liability company, Joint Venture,
association, joint-stock
company, trust, unincorporated organization, government or any
agency or
political subdivision thereof or any other entity.
"Plan" shall mean any employee pension benefit plan (other than
a
Multiemployer Plan) subject to the provisions of Title IV of
ERISA or Section
412 of the Code and in respect of which the Borrower, any
Subsidiary or any
ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069
of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"Platform" shall have the meaning assigned to such term in
Section
9.17(b).
"Pledged Collateral" shall have the meaning assigned to such
term in
the Collateral Agreement.
"Preferred Stock" means any Equity Interest with preferential
right
of payment of dividends or upon liquidation, dissolution or
winding up.
"Pricing Grid" shall mean the table set forth below:
<TABLE>
<CAPTION>
====================================
================================= ==========================
Applicable Margin for
Debt to Adjusted EBITDA Ratio Applicable Margin for ABR Loans
Eurocurrency Loans
------------------------------------
--------------------------------- --------------------------
<S> <C> <C>
Equal to or greater than 3.00 to 1.50% 2.50%
1.00
------------------------------------
--------------------------------- --------------------------
Less than 3.00 to 1.00 and equal
to or greater than 2.50 1.25% 2.25%
------------------------------------
--------------------------------- --------------------------
Less than 2.50 to 1.00 and equal
to or greater than 2.00 1.00% 2.00%
------------------------------------
--------------------------------- --------------------------
Less than 2.00 to 1.00 0.75% 1.75%
====================================
================================= ==========================
</TABLE>
For the purposes of the Pricing Grid, changes in the
Applicable
Margin resulting from changes in the Debt to Adjusted EBITDA
Ratio shall become
effective on the date (the "Adjustment Date") that is three
Business Days after
the date on which financial statements are delivered to the
Lenders pursuant to
Section 5.04 and shall remain in effect until the next change to
be effected
pursuant to this paragraph. If any financial statements referred
to above are
not delivered within the time periods specified in Section 5.04,
then, until
the date that is three Business Days after the date on which
such financial
statements are delivered, the highest rate set forth in each
column of the
Pricing Grid shall apply. In addition, at all times while an
Event of Default
shall have occurred and be continuing, the highest rate set
forth in each
column of the Pricing Grid shall apply. Each determination of
the Debt to
Adjusted EBITDA Ratio pursuant to the Pricing Grid shall be made
in a manner
consistent with the determination thereof pursuant to Section
6.13.
"Projections" shall mean any projections and any
forward-looking
statements (including statements with respect to booked
business) of such
entities furnished to the Lenders or the Administrative Agent by
or on behalf
of the Borrower or any of the Subsidiaries prior to the Closing
Date.
"Presumed Tax Rate" shall mean the highest effective
marginal
statutory combined U.S. federal, state and local income tax rate
prescribed for
an individual residing in New York City (taking into account (a)
the
deductibility of state and local income taxes for U.S. federal
income tax
purposes, assuming the limitation of Section 68(a)(2) of the
Code applies and
taking into account any impact of Section 68(f) of the Code, and
(b) the
character (long-term or short-term capital gain, dividend income
or other
ordinary income) of the applicable income).
"Purchase Money Note" shall mean a promissory note of a
Receivables
Subsidiary evidencing a line of credit, which may be
irrevocable, from the
Borrower or any Subsidiary of the Borrower to a Receivables
Subsidiary in
connection with a Qualified Receivables Financing, which note is
intended to
finance that portion of the purchase price that is not paid by
cash or a
contribution of equity.
"Qualified IPO" shall mean an underwritten public offering of
the
Equity Interests of the Borrower, which generates cash proceeds
to the Borrower
of at least $100.0 million.
"Qualified Receivables Financing" shall mean any Receivables
Financing of a Receivables Subsidiary that meets the following
conditions:
(a) senior management or the Board of Directors of the Borrower
shall
have determined in good faith that such Qualified Receivables
Financing
(including financing terms, covenants, termination events and
other provisions)
is in the aggregate economically fair and reasonable to the
Borrower and the
Receivables Subsidiary,
(b) all sales of accounts receivable and related assets to
the
Receivables Subsidiary (or valid capital contributions made to
the Receivables
Subsidiary) are made at Fair Market Value (as determined in good
faith by
senior management or the Board of Directors of the Borrower),
and
(c) the financing terms, covenants, termination events and
other
provisions thereof shall be market terms (as determined in good
faith by senior
management or the Board of Directors of the Borrower) and may
include Standard
Securitization Undertakings.
"Quotation Day" shall mean, with respect to any Eurocurrency
Borrowing and any Interest Period, the day on which it is market
practice in
the relevant interbank market for prime banks to give quotations
for deposits
in the currency of such Borrowing for delivery on the first day
of such
Interest Period. If such quotations would normally be given by
prime banks on
more than one day, the Quotation Day will be the last of such
days.
"Receivables Fees" shall mean distributions or payments made
directly
or by means of discounts with respect to any participation
interest issued or
sold in connection with, and other fees paid to a Person that is
not a
Subsidiary in connection with any Receivables Financing.
"Receivables Financing" shall mean any transaction or series
of
transactions that may be entered into by the Borrower or any of
its
Subsidiaries pursuant to which the Borrower or any of its
Subsidiaries may (a)
sell, convey or otherwise transfer to (i) a Receivables
Subsidiary (in the case
of a transfer by the Borrower or any of its Subsidiaries), (ii)
any other
Person (in the case of a transfer by a Receivables Subsidiary),
or (iii) a
third party that is financing the same in a customary repurchase
arrangement in
contemplation of a subsequent transfer to a Receivables
Subsidiary in a
Receivables Financing or (b) may grant a security interest in,
any accounts
receivable (whether now existing or arising in the future) of
the Borrower or
any of its Subsidiaries, and any assets related thereto
including, without
limitation, all collateral securing such accounts receivable,
all contracts and
all guarantees or other obligations in respect of such accounts
receivable,
proceeds of such accounts receivable and other assets which are
customarily
transferred or in respect of which security interests are
customarily granted
in connection with asset securitization transactions involving
accounts
receivable and any Hedging Obligations entered into by the
Borrower or any such
Subsidiary in connection with such accounts receivable.
"Receivables Repurchase Obligation" shall mean any obligation of
a
seller of receivables in a Qualified Receivables Financing to
repurchase
receivables arising as a result of a breach of a representation,
warranty or
covenant or otherwise, including as a result of a receivable or
portion thereof
becoming subject to any asserted defense, dispute, off-set or
counterclaim of
any kind as a result of any action taken by, any failure to take
action by or
any other event relating to the seller.
"Receivables Subsidiary" means a Wholly Owned Subsidiary of
the
Borrower (or another Person formed for the purposes of engaging
in a Qualified
Receivables Financing with the Borrower in which the Borrower or
any Subsidiary
of the Borrower makes an Investment and to which the Borrower or
any Subsidiary
of the Borrower transfers accounts receivable and related
assets) which engages
in no activities other than in connection with the financing of
accounts
receivable of the Borrower and its Subsidiaries, all proceeds
thereof and all
rights (contractual or other), collateral and other assets
relating thereto,
and any business or activities incidental or related to such
business, and
which is designated by the Board of Directors of the Borrower
(as provided
below) as a Receivables Subsidiary and:
(a) no portion of the Indebtedness or any other obligations
(contingent or otherwise) of which (i) is guaranteed by the
Borrower or any
other Subsidiary of the Borrower (excluding guarantees of
obligations (other
than the principal of, and interest on, Indebtedness) pursuant
to Standard
Securitization Undertakings), (ii) is recourse to or obligates
the Borrower or
any other Subsidiary of the Borrower in any way other than
pursuant to Standard
Securitization Undertakings or (iii) subjects any property or
asset of the
Borrower or any other Subsidiary of the Borrower, directly or
indirectly,
contingently or otherwise, to the satisfaction thereof, other
than pursuant to
Standard Securitization Undertakings,
(b) with which neither the Borrower nor any other Subsidiary of
the
Borrower has any material contract, agreement, arrangement or
understanding
other than on terms which the Borrower reasonably believes to
be, on the whole,
no less favorable to the Borrower or such Subsidiary than those
that might be
obtained at the time from Persons that are not Affiliates of the
Borrower, and
(c) to which neither the Borrower nor any other Subsidiary of
the
Borrower has any obligation to maintain or preserve such
entity's financial
condition or cause such entity to achieve certain levels of
operating results.
Any such designation by the Board of Directors of the Borrower
shall
be evidenced to the Administrative Agent by delivery to the
Administrative
Agent a certified copy of the resolution of the Board of
Directors of the
Borrower giving effect to such designation and a certificate of
a Responsible
Officer certifying that such designation complied with the
foregoing
conditions.
"Refinance" shall have the meaning assigned to such term in
the
definition of the term "Permitted Refinancing Indebtedness," and
"Refinanced"
shall have a meaning correlative thereto.
"Register" shall have the meaning assigned to such term in
Section
9.04(b).
"Regulation U" shall mean Regulation U of the Board as from time
to
time in effect and all official rulings and interpretations
thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time
to
time in effect and all official rulings and interpretations
thereunder or
thereof.
"Related Parties" shall mean, with respect to any specified
person,
such person's Affiliates and the respective directors, officers,
employees,
agents and advisors of such person and such person's
Affiliates.
"Release" shall mean any spilling, leaking, seepage,
pumping,
pouring, emitting, emptying, discharging, injecting, escaping,
leaching,
dumping, disposing, depositing, emanating or migrating in, into,
onto or
through the environment.
"Remaining Present Value" shall mean, as of any date with
respect to
any lease, the present value as of such date of the scheduled
future lease
payments with respect to such lease, determined with a discount
rate equal to a
market rate of interest for such lease reasonably determined at
the time such
lease was entered into.
"Reportable Event" shall mean any reportable event as defined
in
Section 4043(c) of ERISA or the regulations issued thereunder,
other than those
events as to which the 30-day notice period referred to in
Section 4043(c) of
ERISA has been waived, with respect to a Plan (other than a Plan
maintained by
an ERISA Affiliate that is considered an ERISA Affiliate only
pursuant to
subsection (m) or (o) of Section 414 of the Code).
"Required Lenders" shall mean, at any time, Lenders having (a)
Loans
(other than Swingline Loans) outstanding, (b) Revolving L/C
Exposures, (c)
Swingline Exposures, and (d) Available Unused Commitments, that
taken together,
represent more than 50% of the sum of (w) all Loans (other than
Swingline
Loans) outstanding, (x) Revolving L/C Exposures, (y) Swingline
Exposures, and
(z) the total Available Unused Commitments at such time. The
Loans, Revolving
L/C Exposures, Swingline Exposures and Available Unused
Commitment of any
Defaulting Lender shall be disregarded in determining Required
Lenders at any
time.
"Required Percentage" shall mean, with respect to an Excess Cash
Flow
Period, 75%, provided that if the Debt to Adjusted EBITDA Ratio
at the end of
any Excess Cash Flow Period is (a) less than or equal to 3.00 to
1.00 but
greater than 2.50 to 1.00, such percentage shall be reduced to
50% and (b) less
than or equal to 2.50 to 1.00, such percentage shall be reduced
to 25%.
"Responsible Officer" of any person shall mean any executive
officer
or Financial Officer of such person and any other officer or
similar official
thereof responsible for the administration of the obligations of
such person in
respect of this Agreement.
"Retained Percentage" shall mean, with respect to any Excess
Cash
Flow Period (a) 100%, minus (b) the Required Percentage with
respect to such
Excess Cash Flow Period.
"Revolving Facility" shall mean the Commitments and the
extensions of
credit made hereunder by the Lenders.
"Revolving Facility Borrowing" shall mean a Borrowing comprised
of
Revolving Facility Loans.
"Revolving Facility Commitment" shall mean, with respect to
each
Revolving Facility Lender, the commitment of such Revolving
Facility Lender to
make Revolving Facility Loans pursuant to Section 2.01,
expressed as an amount
representing the maximum aggregate permitted amount of such
Revolving Facility
Lender's Revolving Facility Credit Exposure hereunder, as such
commitment may
be (a) reduced from time to time pursuant to Section 2.08 and
(b) reduced or
increased from time to time pursuant to assignments by or to
such Lender under
Section 9.04. The initial amount of each Revolving Facility
Lender's Revolving
Facility Commitment is set forth on Schedule 2.01, or in the
Assignment and
Acceptance pursuant to which such Revolving Facility Lender
shall have assumed
its Revolving Facility Commitment, as applicable. The aggregate
amount of the
Revolving Facility Commitments if $50 million.
"Revolving Facility Credit Exposure" shall mean, at any time,
the sum
of (a) the aggregate principal amount of the Revolving Facility
Loans
outstanding at such time, (b) the Swingline Exposure at such
time and (c) the
Revolving L/C Exposure at such time. The Revolving Facility
Credit Exposure of
any Revolving Facility Lender at any time shall be the sum of
(a) the aggregate
principal amount of such Revolving Facility Lender's Revolving
Facility Loans
outstanding at such time and (b) such Revolving Facility
Lender's Revolving
Facility Percentage of the Swingline Exposure and Revolving L/C
Exposure at
such time.
"Revolving Facility Lender" shall mean a Lender with a
Revolving
Facility Commitment or with outstanding Revolving Facility Loans
(including any
Incremental Revolving Facility Lenders).
"Revolving Facility Loan" shall mean a Loan made by a
Revolving
Facility Lender pursuant to Section 2.01.
"Revolving Facility Maturity Date" shall mean April 22,
2011.
"Revolving Facility Percentage" shall mean, with respect to
any
Revolving Facility Lender, the percentage of the total Revolving
Facility
Commitments represented by such Lender's Revolving Facility
Commitment. If the
Revolving Facility Commitments have terminated or expired, the
Revolving
Facility Percentages shall be determined based upon the
Revolving Facility
Commitments most recently in effect, giving effect to any
assignments pursuant
to Section 9.04.
"Revolving L/C Exposure" shall mean at any time the sum of (a)
the
aggregate undrawn amount of all Letters of Credit outstanding at
such time and
(b) the aggregate principal amount of all L/C Disbursements that
have not yet
been reimbursed at such time. The Revolving L/C Exposure of any
Revolving
Facility Lender at any time shall mean its Revolving Facility
Percentage of the
aggregate Revolving L/C Exposure at such time.
"S&P" shall mean Standard & Poor's Ratings Group,
Inc.
"Sale and Lease-Back Transaction" shall have the meaning
assigned to
such term in Section 6.03.
"Satellite" shall mean any satellite owned by the Borrower or
any of
its Subsidiaries and any satellite purchased by the Borrower or
any of its
Subsidiaries pursuant to the terms of a Satellite Purchase
Agreement, whether
such satellite is in the process of manufacture, has been
delivered for launch
or is in orbit (whether or not in operational service).
"Satellite Manufacturer" shall mean, with respect to any
Satellite,
the prime contractor and manufacturer of such Satellite.
"Satellite Purchase Agreement" shall mean, with respect to
any
Satellite, the agreement between the applicable Satellite
Purchaser and the
applicable Satellite Manufacturer relating to the manufacture,
testing and
delivery of such Satellite.
"Satellite Purchaser" shall mean the Borrower or Subsidiary that
is a
party to a Satellite Purchase Agreement.
"SEC" shall mean the Securities and Exchange Commission or
any
successor thereto.
"Second Lien Administrative Agent" shall mean Bear Stearns
Corporate
Lending Inc., in its capacity as administrative agent under the
Second Lien
Credit Agreement.
"Second Lien Credit Agreement" shall mean the Credit Agreement,
dated
as of the Closing Date, among the Borrower, the Second Lien
Administrative
Agent, JPMorgan Chase Bank, N.A. as syndication agent
thereunder, the lenders
from time to time party thereto.
"Second Lien Loan Documents" shall mean the Second Lien
Credit
Agreement and each security agreement, mortgage and other
instrument and
documents executed and delivered pursuant to any of the
foregoing.
"Second Lien Term Loans" shall mean the term loans borrowed by
the
Borrower under the Second Lien Credit Agreement.
"Secured Parties" shall mean the "Secured Parties" as defined in
the
Collateral Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
amended,
and the rules and regulations of the SEC promulgated
thereunder..
"Security Documents" shall mean the Mortgages, the
Collateral
Agreement, the Foreign Pledge Agreements, the Parent Pledge
Agreement and each
of the security agreements, mortgages and other instruments and
documents
executed and delivered pursuant to any of the foregoing or
pursuant to Section
5.10.
"Sellers" shall have the meaning assigned to such term in the
first
recital hereto.
"SkyTerra" shall have the meaning assigned to such term in the
first
recital hereto.
"SPACEWAY" shall have the meaning assigned to such term in the
first
recital hereto.
"SPACEWAY Services Agreement" shall mean the SPACEWAY
Services
Agreement to be executed by the Borrower and DIRECTV on the
Closing Date for
the provision of technical services to each other in connection
with SPACEWAY
assets, as such agreement may be amended, modified or otherwise
supplemented
from time to time.
"Standard Securitization Undertakings" means
representations,
warranties, covenants, indemnities and guarantees of performance
entered into
by the Borrower or any Subsidiary of the Borrower which senior
management or
the Board of Directors of the Borrower has determined in good
faith to be
either customary in a Receivables Financing or, when taken as a
whole, to be
more favorable to the Borrower than in a customary Receivables
Financing
including, without limitation, those relating to the servicing
of the assets of
a Receivables Subsidiary, it being understood that any
Receivables Repurchase
Obligation shall be deemed to be a Standard Securitization
Undertaking.
"Statutory Reserves" shall mean, with respect to any currency,
any
reserve, liquid asset or similar requirements established by any
Governmental
Authority of the United States of America or of the jurisdiction
of such
currency or any jurisdiction in which Loans in such currency are
made to which
banks in such jurisdiction are subject for any category of
deposits or
liabilities customarily used to fund loans in such currency or
by reference to
which interest rates applicable to Loans in such currency are
determined.
"Subsidiary" shall mean, with respect to any Person, (a) any
corporation, association or other business entity (other than a
partnership,
joint venture or limited liability company) of which more than
50% of the total
voting power of shares of Capital Stock entitled (without regard
to the
occurrence of any contingency) to vote in the election of
directors, managers
or trustees thereof is at the time of determination owned or
controlled,
directly or indirectly, by such Person or one or more of the
other Subsidiaries
of such Person or a combination thereof, (b) any partnership,
joint venture or
limited liability company of which (i) more than 50% of the
capital accounts,
distribution rights, total equity and voting interests or
general and limited
partnership interests, as applicable, are owned or controlled,
directly or
indirectly, by such Person or one or more of the other
Subsidiaries of that
Person or a combination thereof, whether in the form of
membership, general,
special or limited partnership interests or otherwise, and (ii)
such Person or
any Wholly Owned Subsidiary of such Person is a controlling
general partner or
otherwise controls such entity and (c) any Person that is
consolidated in the
consolidated financial statements of the specified Person in
accordance with
GAAP.
"Subsidiary Loan Party" shall mean (a) each Wholly Owned
Subsidiary
of the Borrower that is at any time a Material Subsidiary and
not (i) a Foreign
Subsidiary, (ii) a License Subsidiary, (iii) a Receivables
Subsidiary or (iv)
listed on Schedule 1.01(a) and (b) each Domestic Subsidiary of
the Borrower or
the Subsidiaries that guarantees the Second Lien Term Loans.
"Subtracted Historical Adjustment" shall mean the gain on sale
of
real estate for purposes of calculating Adjusted EBITDA, in the
amount set
forth in and as further described in the Offering Memorandum,
but only to the
extent the adjustment for such gain occurred in the consecutive
four quarter
period referred to in the definition of Debt to Adjusted EBITDA
Ratio.
"Swap Agreement" shall mean any agreement with respect to any
swap,
forward, future or derivative transaction or option or similar
agreement
involving, or settled by reference to, one or more rates,
currencies,
commodities, equity or debt instruments or securities, or
economic, financial
or pricing indices or measures of economic, financial or pricing
risk or value
or any similar transaction or any combination of these
transactions, provided
that no phantom stock or similar plan providing for payments
only on account of
services provided by current or former directors, officers,
employees or
consultants of the Borrower or any of its Subsidiaries shall be
a Swap
Agreement.
"Swingline Borrowing" shall mean a Borrowing comprised of
Swingline
Loans.
"Swingline Borrowing Request" shall mean a request by a
Borrower
substantially in the form of Exhibit C-2.
"Swingline Commitment" shall mean, with respect to each
Swingline
Lender, the commitment of such Swingline Lender to make
Swingline Loans
pursuant to Section 2.04. The aggregate amount of the Swingline
Commitments on
the Closing Date is $10.0 million.
"Swingline Exposure" shall mean at any time the aggregate
principal
amount of all outstanding Swingline Borrowings at such time. The
Swingline
Exposure of any Revolving Facility Lender at any time shall mean
its Revolving
Facility Percentage of the aggregate Swingline Exposure at such
time.
"Swingline Lender" shall mean JPMorgan Chase Bank, N.A., in
its
capacity as a lender of Swingline Loans.
"Swingline Loans" shall mean the swingline loans made to the
Borrower
pursuant to Section 2.04.
"Syndication Agent" shall have the meaning assigned to such term
in
the introductory paragraph of this Agreement.
"Taxes" shall mean any and all present or future taxes,
levies,
imposts, duties (including stamp duties), deductions, charges
(including ad
valorem charges) or withholdings imposed by any Governmental
Authority and any
and all interest and penalties related thereto.
"Term Borrowing" shall mean a Borrowing comprised of Term
Loans.
"Term Facility" shall mean the Term Loan Commitments and the
Term
Loans made hereunder.
"Term Facility Maturity Date" shall mean April 22, 2012.
"Term Loan Commitment" shall mean with respect to each Lender,
the
commitment of such Lender to make Term Loans as set forth in
Section 2.01. The
aggregate amount of the Term Loan Commitments on the Closing
Date is $250
million.
"Term Loan Installment Date" shall have the meaning assigned to
such
term in Section 2.10(a).
"Term Loans" shall mean the term loans made by the Lenders to
the
Borrower pursuant to Section 2.01 or 2.20 (including Incremental
Term Loans).
"Total Assets" shall mean, with respect to any Person, the
total
consolidated assets of such Person and its Subsidiaries, as
shown on the most
recent balance sheet.
"Transaction Agreement" shall have the meaning given such term
in the
recitals hereto.
"Transaction Documents" shall mean the Transaction Agreement,
Loan
Documents, the Second Lien Loan Documents and, in each case, any
other document
entered into in connection therewith, in each case as amended,
supplemented or
modified from time to time.
"Transactions" shall mean, collectively, the transactions to
occur
pursuant to the Transaction Documents, including (a) the
consummation of the
Acquisition and the execution and delivery of the Transaction
Agreement; (b)
the execution and delivery of the Loan Documents and the initial
borrowings
hereunder; (c) the Contribution Financing; (d) the borrowing of
the Second Lien
Term Loans and the execution and delivery of the Second Lien
Loan Documents;
and (e) the payment of all fees and expenses to be paid on or
prior to the
Closing Date and owing in connection with the foregoing.
"Type", when used in respect of any Loan or Borrowing, shall
refer to
the Rate by reference to which interest on such Loan or on the
Loans comprising
such Borrowing is determined. For purposes hereof, the term
"Rate" shall
include the Adjusted LIBO Rate and the ABR.
"U.S. Bankruptcy Code" shall mean Title 11 of the United States
Code,
as amended, or any similar federal or state law for the relief
of debtors.
"Wholly Owned Subsidiary" of any Person shall mean a Subsidiary
of
such Person 100% of the outstanding Capital Stock or other
ownership interests
of which (other than directors' qualifying shares or shares or
interests
required to be held by foreign nationals) shall at the time be
owned by such
Person or by one or more Wholly Owned Subsidiaries of such
Person and one or
more Wholly Owned Subsidiaries of such Person.
"Withdrawal Liability" shall mean liability to a Multiemployer
Plan
as a result of a complete or partial withdrawal from such
Multiemployer Plan,
as such terms are defined in Part I of Subtitle E of Title IV of
ERISA.
"Working Capital" shall mean, with respect to the Borrower and
the
Subsidiaries on a consolidated basis at any date of
determination, Current
Assets at such date of determination minus Current Liabilities
at such date of
determination; provided that, for purposes of calculating Excess
Cash Flow,
increases or decreases in Working Capital shall be calculated
without regard to
any changes in Current Assets or Current Liabilities as a result
of (a) any
reclassification in accordance with GAAP of assets or
liabilities, as
applicable, between current and noncurrent or (b) the effects of
purchase
accounting.
SECTION 1.02. Terms Generally. The definitions set forth or
referred
to in Section 1.01 shall apply equally to both the singular and
plural forms of
the terms defined. Whenever the context may require, any pronoun
shall include
the corresponding masculine, feminine and neuter forms. The
words "include,"
"includes" and "including" shall be deemed to be followed by the
phrase
"without limitation." All references herein to Articles,
Sections, Exhibits and
Schedules shall be deemed references to Articles and Sections
of, and Exhibits
and Schedules to, this Agreement unless the context shall
otherwise require.
Except as otherwise expressly provided herein, any reference in
this Agreement
to any Loan Document shall mean such document as amended,
restated,
supplemented or otherwise modified from time to time. Except as
otherwise
expressly provided herein, all terms of an accounting or
financial nature shall
be construed in accordance with GAAP, as in effect from time to
time; provided
that, if the Borrower notifies the Administrative Agent that the
Borrower
requests an amendment to any provision hereof to eliminate the
effect of any
change occurring after the Closing Date in GAAP or in the
application thereof
on the operation of such provision (or if the Administrative
Agent notifies the
Borrower that the Required Lenders request an amendment to any
provision hereof
for such purpose), regardless of whether any such notice is
given before or
after such change in GAAP or in the application thereof, then
such provision
shall be interpreted on the basis of GAAP as in effect and
applied immediately
before such change shall have become effective until such notice
shall have
been withdrawn or such provision amended in accordance
herewith.
SECTION 1.03. Effectuation of Transfers. Each of the
representations
and warranties of the Borrower contained in this Agreement (and
all
corresponding definitions) are made after giving effect to the
Transactions (or
such portion thereof as shall have been consummated as of the
date of the
applicable representation or warranty), unless the context
otherwise requires.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions
set
forth herein:
(a) each Lender agrees to make Term Loans to the Borrower on
the
Closing Date in a principal amount not to exceed its Term Loan
Commitment;
(b) ach Lender agrees to make Revolving Facility Loans to
the
Borrower from time to time during the Availability Period in an
aggregate
principal amount that will not result in (i) such Lender's
Revolving Facility
Credit Exposure exceeding such Lender's Revolving Facility
Commitment or (ii)
the Revolving Facility Credit Exposure exceeding the total
Revolving Facility
Commitments; provided that no Revolving Facility Loans shall be
made on the
Closing Date. Within the foregoing limits and subject to the
terms and
conditions set forth herein, the Borrower may borrow, prepay and
reborrow
Revolving Facility Loans; and
(c) each Lender having an Incremental Term Loan Commitment or
an
Incremental Revolving Facility Commitment agrees, subject to the
terms and
conditions set forth in the applicable Incremental Assumption
Agreement, to
make Incremental Term Loans and/or Incremental Revolving
Facility Loans to the
Borrower, in an aggregate principal amount not to exceed its
Incremental Term
Loan Commitment or Incremental Revolving Facility Commitment, as
the case may
be.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be made
as
part of a Borrowing consisting of Loans under the same Facility
and of the same
Type made by the Lenders ratably in accordance with their
respective
Commitments under the applicable Facility (or, in the case of
Swingline Loans,
in accordance with their respective Swingline Commitments);
provided, however,
that Revolving Facility Loans shall be made by the Revolving
Facility Lenders
ratably in accordance with their respective Revolving Facility
Percentages on
the date such Loans are made hereunder. The failure of any
Lender to make any
Loan required to be made by it shall not relieve any other
Lender of its
obligations hereunder; provided that the Commitments of the
Lenders are several
and no Lender shall be responsible for any other Lender's
failure to make Loans
as required.
(b) Subject to Section 2.14, each Borrowing (other than a
Swingline
Borrowing) shall be comprised entirely of ABR Loans or
Eurocurrency Loans as
the Borrower may request in accordance herewith. Each Swingline
Borrowing shall
be an ABR Borrowing. Each Lender at its option may make any ABR
Loan or
Eurocurrency Loan by causing any domestic or foreign branch or
Affiliate of
such Lender to make such Loan; provided that any exercise of
such option shall
not affect the obligation of the Borrower to repay such Loan in
accordance with
the terms of this Agreement and such Lender shall not be
entitled to any
amounts payable under Section 2.15 or 2.17 solely in respect of
increased costs
resulting from such exercise and existing at the time of such
exercise.
(c) At the commencement of each Interest Period for any
Eurocurrency
Revolving Borrowing, such Borrowing shall be in an aggregate
amount that is an
integral multiple of the Borrowing Multiple and not less than
the Borrowing
Minimum. At the time that each ABR Revolving Borrowing is made,
such Borrowing
shall be in an aggregate amount that is an integral multiple of
the Borrowing
Multiple and not less than the Borrowing Minimum; provided that
an ABR
Revolving Borrowing may be in an aggregate amount that is equal
to the entire
unused balance of the Revolving Facility Commitments or that is
required to
finance the reimbursement of an L/C Disbursement as contemplated
by Section
2.05(e). Each Swingline Borrowing shall be in an amount that is
an integral
multiple of the Borrowing Multiple and not less than the
Borrowing Minimum (or
the amount equal to the entire unused balance of the Revolving
Facility
Commitments). Borrowings of more than one Type and under more
than one Facility
may be outstanding at the same time; provided that there shall
not at any time
be more than a total of (i) 8 Eurocurrency Borrowings
outstanding under the
Term Facility and (ii) 8 Eurocurrency Borrowings outstanding
under the
Revolving Facility.
(d) Notwithstanding any other provision of this Agreement,
no
Borrower shall be entitled to request, or to elect to convert or
continue, any
Borrowing if the Interest Period requested with respect thereto
would end after
the Revolving Facility Maturity Date or the Term Facility
Maturity Date, as
applicable.
SECTION 2.03. Requests for Borrowings. To request a
Revolving
Facility Borrowing and/or a Term Borrowing, the Borrower shall
notify the
Administrative Agent of such request by telephone (a) in the
case of a
Eurocurrency Borrowing, not later than 11:00 a.m., Local Time,
three Business
Days before the date of the proposed Borrowing or (b) in the
case of an ABR
Borrowing, not later than 12:00 noon, Local Time one Business
Day before the
date of the proposed Borrowing; provided that any such notice of
an ABR
Revolving Borrowing to finance the reimbursement of an L/C
Disbursement as
contemplated by Section 2.05(e) may be given not later than
10:00 a.m., Local
Time, on the date of the proposed Borrowing. Each such
telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by
hand delivery
or telecopy to the Administrative Agent of a written Borrowing
Request in a
form approved by the Administrative Agent and signed by the
applicable
Borrower. Each such telephonic and written Borrowing Request
shall specify the
following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing (provided that the any Borrowing on the
Closing
Date shall be an ABR Borrowing);
(iv) in the case of a Eurocurrency Borrowing, the initial
Interest Period to be applicable thereto, which shall be a
period
contemplated by clause (a) of the definition of the term
"Interest
Period"; and
(v) the location and number of the Borrower's account to
which
funds are to be disbursed.
If no election as to the Type of Revolving Facility Borrowing is
specified,
then the requested Revolving Facility Borrowing shall be an ABR
Borrowing. If
no Interest Period is specified with respect to any requested
Eurocurrency
Borrowing, then the applicable Borrower shall be deemed to have
selected an
Interest Period of one month's duration. Promptly following
receipt of a
Borrowing Request in accordance with this Section, the
Administrative Agent
shall advise each Lender of the details thereof and of the
amount of such
Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, each Swingline Lender agrees to
make Swingline
Loans to the Borrower from time to time during the Availability
Period, in an
aggregate principal amount at any time outstanding that will not
result in (i)
the aggregate principal amount of outstanding Swingline Loans
exceeding the
Swingline Commitment or (ii) the Revolving Facility Credit
Exposure exceeding
the total Revolving Facility Commitments; provided that no
Swingline Lender
shall be required to make a Swingline Loan to refinance an
outstanding
Swingline Borrowing. Within the foregoing limits and subject to
the terms and
conditions set forth herein, the Borrower may borrow, prepay and
reborrow
Swingline Loans.
(b) To request a Swingline Borrowing, the Borrower shall notify
the
Administrative Agent and the Swingline Lenders of such request
by telephone
(confirmed by a Swingline Borrowing Request by telecopy), not
later than 11:00
a.m., Local Time, on the day of a proposed Swingline Borrowing.
Each such
notice and Swingline Borrowing Request shall be irrevocable and
shall specify
(i) the requested date (which shall be a Business Day) and (ii)
the amount of
the requested Swingline Borrowing. The applicable Swingline
Lender shall
consult with the Administrative Agent as to whether the making
of the Swingline
Loan is in accordance with the terms of this Agreement prior to
such Swingline
Lender funding such Swingline Loan. Each Swingline Lender shall
make each
Swingline Loan to be made by it hereunder in accordance with
Section 2.02(a) on
the proposed date thereof by wire transfer of immediately
available funds by
3:00 p.m., Local Time, to the account of the Borrower (or, in
the case of a
Swingline Borrowing made to finance the reimbursement of an L/C
Disbursement as
provided in Section 2.05(e), by remittance to the applicable
Issuing Bank).
(c) A Swingline Lender may by written notice given to the
Administrative Agent (and to the other Swingline Lenders) not
later than 10:00
a.m., Local Time, on any Business Day require the Revolving
Facility Lenders to
acquire participations on such Business Day in all or a portion
of the
outstanding Swingline Loans made by it. Such notice shall
specify the aggregate
amount of such Swingline Loans in which the Revolving Facility
Lenders will
participate. Promptly upon receipt of such notice, the
Administrative Agent
will give notice thereof to each such Lender, specifying in such
notice such
Revolving Facility Lender's Revolving Facility Percentage of
such Swingline
Loan or Loans. Each Revolving Facility Lender hereby absolutely
and
unconditionally agrees, upon receipt of notice as provided
above, to pay to the
Administrative Agent for the account of the applicable Swingline
Lender, such
Revolving Facility Lender's Revolving Facility Percentage of
such Swingline
Loan or Loans. Each Revolving Facility Lender acknowledges and
agrees that its
respective obligation to acquire participations in Swingline
Loans pursuant to
this paragraph is absolute and unconditional and shall not be
affected by any
circumstance whatsoever, including the occurrence and
continuance of a Default
or reduction or termination of the Commitments, and that each
such payment
shall be made without any offset, abatement, withholding or
reduction
whatsoever. Each Revolving Facility Lender shall comply with its
obligation
under this paragraph by wire transfer of immediately available
funds, in the
same manner as provided in Section 2.06 with respect to Loans
made by such
Revolving Facility Lender (and Section 2.06 shall apply, mutatis
mutandis, to
the payment obligations of the Lenders), and the Administrative
Agent shall
promptly pay to the applicable Swingline Lender the amounts so
received by it
from the Revolving Facility Lenders. The Administrative Agent
shall notify the
Borrower of any participations in any Swingline Loan acquired
pursuant to this
paragraph (c), and thereafter payments in respect of such
Swingline Loan shall
be made to the Administrative Agent and not to the applicable
Swingline Lender.
Any amounts received by a Swingline Lender from the Borrower (or
other party on
behalf of such Borrower) in respect of a Swingline Loan after
receipt by such
Swingline Lender of the proceeds of a sale of participations
therein shall be
promptly remitted to the Administrative Agent; any such amounts
received by the
Administrative Agent shall be promptly remitted by the
Administrative Agent to
the Revolving Facility Lenders that shall have made their
payments pursuant to
this paragraph and to such Swingline Lender, as their interests
may appear;
provided that any such payment so remitted shall be repaid to
such Swingline
Lender or to the Administrative Agent, as applicable, if and to
the extent such
payment is required to be refunded to the applicable Borrower
for any reason.
The purchase of participations in a Swingline Loan pursuant to
this paragraph
shall not relieve the Borrower of any default in the payment
thereof.
SECTION 2.05. Letters of Credit. (a) General. In addition,
subject to
the terms and conditions set forth herein, the Borrower may
request the
issuance of Letters of Credit for its own account in a form
reasonably
acceptable to the applicable Issuing Bank, at any time and from
time to time
during the Availability Period and prior to the date that is
five Business Days
prior to the Revolving Facility Maturity Date. In the event of
any
inconsistency between the terms and conditions of this Agreement
and the terms
and conditions of any form of letter of credit application or
other agreement
submitted by the Borrower to, or entered into by the Borrower
with, an Issuing
Bank relating to any Letter of Credit, the terms and conditions
of this
Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension:
Certain
Conditions. To request the issuance of a Letter of Credit (or
the amendment,
renewal (other than an automatic renewal in accordance with
paragraph (c) of
this Section) or extension of an outstanding Letter of Credit),
the Borrower
shall hand deliver or telecopy (or transmit by electronic
communication, if
arrangements for doing so have been approved by the applicable
Issuing Bank) to
the applicable Issuing Bank and the Administrative Agent (two
Business Days in
advance of the requested date of issuance, amendment, renewal or
extension) a
notice requesting the issuance of a Letter of Credit, or
identifying the Letter
of Credit to be amended, renewed or extended, and specifying the
date of
issuance, amendment, renewal or extension (which shall be a
Business Day), the
date on which such Letter of Credit is to expire (which shall
comply with
paragraph (c) of this Section), the amount of such Letter of
Credit, the name
and address of the beneficiary thereof and such other
information as shall be
necessary to issue, amend, renew or extend such Letter of
Credit. If requested
by the applicable Issuing Bank, the Borrower also shall submit a
letter of
credit application on such Issuing Bank's standard form in
connection with any
request for a Letter of Credit. A Letter of Credit shall be
issued, amended,
renewed or extended only if (and upon issuance, amendment,
renewal or extension
of each Letter of Credit the Borrower shall be deemed to
represent and warrant
that), after giving effect to such issuance, amendment, renewal
or extension
(i) the Revolving L/C Exposure shall not exceed $40.0 million
and (ii) the
Revolving Facility Credit Exposure shall not exceed the total
Revolving
Facility Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or
prior
to the close of business on the earlier of (i) the date one year
after the date
of the issuance of such Letter of Credit (or, in the case of any
renewal or
extension thereof, one year after such renewal or extension) and
(ii) the date
that is five Business Days prior to the Revolving Facility
Maturity Date;
provided that any Letter of Credit with a one-year (or shorter)
tenor may
provide for the automatic renewal thereof for additional
one-year (or shorter)
periods (which, in no event, shall extend beyond the date
referred to in clause
(ii) of this paragraph (c)).
(d) Participations. By the issuance of a Letter of Credit (or
an
amendment to a Letter of Credit increasing the amount thereof)
and without any
further action on the part of the applicable Issuing Bank or the
Revolving
Facility Lenders, such Issuing Bank hereby grants to each
Revolving Facility
Lender, and each Revolving Facility Lender hereby acquires from
such Issuing
Bank, a participation in such Letter of Credit equal to such
Revolving Facility
Lender's Revolving Facility Percentage of the aggregate amount
available to be
drawn under such Letter of Credit. In consideration and in
furtherance of the
foregoing, each Revolving Facility Lender hereby absolutely and
unconditionally
agrees to pay to the Administrative Agent, for the account of
the applicable
Issuing Bank, such Revolving Facility Lender's Revolving
Facility Percentage of
each L/C Disbursement made by such Issuing Bank and not
reimbursed by the
Borrower on the date due as provided in paragraph (e) of this
Section, or of
any reimbursement payment required to be refunded to the
Borrower for any
reason. Each Revolving Facility Lender acknowledges and agrees
that its
obligation to acquire participations pursuant to this paragraph
in respect of
Letters of Credit is absolute and unconditional and shall not be
affected by
any circumstance whatsoever, including any amendment, renewal or
extension of
any Letter of Credit or the occurrence and continuance of a
Default or
reduction or termination of the Commitments, and that each such
payment shall
be made without any offset, abatement, withholding or reduction
whatsoever.
(e) Reimbursement. If the applicable Issuing Bank shall make any
L/C
Disbursement in respect of a Letter of Credit, the Borrower
shall reimburse
such L/C Disbursement by paying to the Administrative Agent an
amount equal to
such L/C Disbursement not later than 2:00 P.M., Local Time, on
(i) the Business
Day that the Borrower receives notice under paragraph (g) of
this Section of
such L/C Disbursement, if such notice is received on such day
prior to 10:00
A.M., Local Time, or (ii) if clause (i) does not apply, the
Business Day
immediately following the date the Borrower receives such
notice, provided that
the Borrower may, subject to the conditions to borrowing set
forth herein,
request in accordance with Section 2.03 or 2.04 that such
payment be financed
with an ABR Revolving Borrowing or a Swingline Borrowing, as
applicable, in an
equivalent amount and, to the extent so financed, the Borrower's
obligation to
make such payment shall be discharged and replaced by the
resulting ABR
Revolving Borrowing or Swingline Borrowing. If the Borrower
fails to reimburse
any L/C Disbursement when due, then the Administrative Agent
shall promptly
notify the applicable Issuing Bank and each other Revolving
Facility Lender of
the applicable L/C Disbursement, the payment then due from the
Borrower in
respect thereof and, in the case of a Revolving Facility Lender,
such Lender's
Revolving Facility Percentage thereof. Promptly following
receipt of such
notice, each Revolving Facility Lender shall pay to the
Administrative Agent
its Revolving Facility Percentage of the payment then due from
the Borrower in
the same manner as provided in Section 2.06 with respect to
Loans made by such
Lender (and Section 2.06 shall apply, mutatis mutandis, to the
payment
obligations of the Lenders), and the Administrative Agent shall
promptly pay to
the applicable Issuing Bank the amounts so received by it from
the Revolving
Facility Lenders. Promptly following receipt by the
Administrative Agent of any
payment from the Borrower pursuant to this paragraph, the
Administrative Agent
shall distribute such payment to the applicable Issuing Bank or,
to the extent
that Revolving Facility Lenders have made payments pursuant to
this paragraph
to reimburse such Issuing Bank, then to such Lenders and such
Issuing Bank as
their interests may appear. Any payment made by a Revolving
Facility Lender
pursuant to this paragraph to reimburse an Issuing Bank for any
L/C
Disbursement (other than the funding of an ABR Revolving Loan or
a Swingline
Borrowing as contemplated above) shall not constitute a Loan and
shall not
relieve the Borrower of its obligation to reimburse such L/C
Disbursement.
(f) Obligations Absolute. The obligation of the Borrower to
reimburse
L/C Disbursements as provided in paragraph (e) of this Section
shall be
absolute, unconditional and irrevocable, and shall be performed
strictly in
accordance with the terms of this Agreement under any and all
circumstances
whatsoever and irrespective of (i) any lack of validity or
enforceability of
any Letter of Credit or this Agreement, or any term or provision
therein, (ii)
any draft or other document presented under a Letter of Credit
proving to be
forged, fraudulent or invalid in any respect or any statement
therein being
untrue or inaccurate in any respect, (iii) payment by the
applicable Issuing
Bank under a Letter of Credit against presentation of a draft or
other document
that does not comply with the terms of such Letter of Credit or
(iv) any other
event or circumstance whatsoever, whether or not similar to any
of the
foregoing, that might, but for the provisions of this Section,
constitute a
legal or equitable discharge of, or provide a right of setoff
against, the
Borrower's obligations hereunder. Neither the Administrative
Agent, the Lenders
nor any Issuing Bank, nor any of their Related Parties, shall
have any
liability or responsibility by reason of or in connection with
the issuance or
transfer of any Letter of Credit or any payment or failure to
make any payment
thereunder (irrespective of any of the circumstances referred to
in the
preceding sentence), or any error, omission, interruption, loss
or delay in
transmission or delivery of any draft, notice or other
communication under or
relating to any Letter of Credit (including any document
required to make a
drawing thereunder), any error in interpretation of technical
terms or any
consequence arising from causes beyond the control of such
Issuing Bank, or any
of the circumstances referred to in clauses (i), (ii) or (iii)
of the first
sentence; provided that the foregoing shall not be construed to
excuse the
applicable Issuing Bank from liability to the Borrower to the
extent of any
direct damages (as opposed to consequential damages, claims in
respect of which
are hereby waived by the Borrower to the extent permitted by
applicable law)
suffered by the Borrower that are determined by a final and
binding decision of
a court of competent jurisdiction to have been caused by (i)
such Issuing
Bank's failure to exercise care when determining whether drafts
and other
documents presented under a Letter of Credit comply with the
terms thereof or
(ii) such Issuing Bank's refusal to issue a Letter of Credit in
accordance with
the terms of this Agreement. The parties hereto expressly agree
that, in the
absence of gross negligence or willful misconduct on the part of
the applicable
Issuing Bank, such Issuing Bank shall be deemed to have
exercised care in each
such determination and each refusal to issue a Letter of Credit.
In furtherance
of the foregoing and without limiting the generality thereof,
the parties agree
that, with respect to documents presented which appear on their
face to be in
substantial compliance with the terms of a Letter of Credit, the
applicable
Issuing Bank may, in its sole discretion, either accept and make
payment upon
such documents without responsibility for further investigation,
regardless of
any notice or information to the contrary, or refuse to accept
and make payment
upon such documents if such documents are not in strict
compliance with the
terms of such Letter of Credit.
(g) Disbursement Procedures. The applicable Issuing Bank
shall,
promptly following its receipt thereof, examine all documents
purporting to
represent a demand for payment under a Letter of Credit. Such
Issuing Bank
shall promptly notify the Administrative Agent and the Borrower
by telephone
(confirmed by telecopy) of such demand for payment and whether
such Issuing
Bank has made or will make a L/C Disbursement thereunder;
provided that any
failure to give or delay in giving such notice shall not relieve
the Borrower
of its obligation to reimburse such Issuing Bank and the
Revolving Facility
Lenders with respect to any such L/C Disbursement.
(h) Interim Interest. If an Issuing Bank shall make any L/C
Disbursement, then, unless the Borrower shall reimburse such L/C
Disbursement
in full on the date such L/C Disbursement is made, the unpaid
amount thereof
shall bear interest, for each day from and including the date
such L/C
Disbursement is made to but excluding the date that the Borrower
reimburses
such L/C Disbursement, at the rate per annum then applicable to
ABR Revolving
Loans; provided that, if such L/C Disbursement is not reimbursed
by the
Borrower when due pursuant to paragraph (e) of this Section,
then Section
2.13(c) shall apply. Interest accrued pursuant to this paragraph
shall be for
the account of the applicable Issuing Bank, except that interest
accrued on and
after the date of payment by any Revolving Facility Lender
pursuant to
paragraph (e) of this Section to reimburse such Issuing Bank
shall be for the
account of such Revolving Facility Lender to the extent of such
payment.
(i) Replacement of an Issuing Bank. An Issuing Bank may be
replaced
at any time by written agreement among the Borrower, the
Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The
Administrative
Agent shall notify the Lenders of any such replacement of an
Issuing Bank. At
the time any such replacement shall become effective, the
Borrower shall pay
all unpaid fees accrued for the account of the replaced Issuing
Bank pursuant
to Section 2.12. From and after the effective date of any such
replacement, (i)
the successor Issuing Bank shall have all the rights and
obligations of the
replaced Issuing Bank under this Agreement with respect to
Letters of Credit to
be issued thereafter and (ii) references herein to the term
"Issuing Bank"
shall be deemed to refer to such successor or to any previous
Issuing Bank, or
to such successor and all previous Issuing Banks, as the context
shall require.
After the replacement of an Issuing Bank hereunder, the replaced
Issuing Bank
shall remain a party hereto and shall continue to have all the
rights and
obligations of such Issuing Bank under this Agreement with
respect to Letters
of Credit issued by it prior to such replacement but shall not
be required to
issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur
and
be continuing, (i) in the case of an Event of Default described
in Section
7.01(h) or (i), on the Business Day or (ii) in the case of any
other Event of
Default, on the third Business Day, in each case, following the
date on which
the Borrower receives notice from the Administrative Agent (or,
if the maturity
of the Loans has been accelerated, Revolving Facility Lenders
with Revolving
L/C Exposure representing greater than 50% of the total
Revolving L/C Exposure)
demanding the deposit of cash collateral pursuant to this
paragraph, the
Borrower shall deposit in an account with the Administrative
Agent, in the name
of the Administrative Agent and for the benefit of the Lenders,
an amount in
cash equal to the Revolving L/C Exposure as of such date plus
any accrued and
unpaid interest thereon; provided that upon the occurrence of
any Event of
Default with respect to the Borrower described in clause (h) or
(i) of Section
7.01, the obligation to deposit such cash collateral shall
become effective
immediately, and such deposit shall become immediately due and
payable, without
demand or other noti
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