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EXHIBIT 10.1
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CREDIT AGREEMENT
among
ZEUS MERGER ONE LIMITED,
ZEUS MERGER TWO LIMITED,
VARIOUS LENDING INSTITUTIONS,
BANK OF AMERICA, N.A.,
BEAR STEARNS CORPORATE LENDING INC.,
BNP PARIBAS
AND
MERRILL LYNCH CAPITAL CORPORATION,
AS CO-DOCUMENTATION AGENTS,
CREDIT SUISSE FIRST BOSTON
AND
LEHMAN BROTHERS INC.,
AS CO-SYNDICATION AGENTS,
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS ADMINISTRATIVE AGENT AND AS COLLATERAL AGENT
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Dated as of January 28, 2005
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DEUTSCHE BANK SECURITIES INC.,
CREDIT SUISSE FIRST BOSTON AND
LEHMAN BROTHERS INC.,
AS JOINT LEAD ARRANGERS
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TABLE OF CONTENTS
PAGE
SECTION 1. Amount and Terms of
Credit.........................................1
1.01
Commitments.......................................................1
1.02 Minimum Borrowing Amounts,
etc....................................4
1.03 Notice of
Borrowing...............................................5
1.04 Disbursement of
Funds.............................................6
1.05
Notes.............................................................7
1.06
Conversions.......................................................8
1.07 Pro Rata
Borrowings...............................................9
1.08
Interest..........................................................9
1.09 Interest
Periods.................................................10
1.10 Increased Costs; Illegality;
etc.................................11
1.11
Compensation.....................................................13
1.12 Change of Lending Office
........................................14
1.13 Replacement of
Lenders...........................................14
SECTION 2. Letters of
Credit.................................................16
2.01 Letters of
Credit................................................16
2.02 Letter of Credit
Requests........................................17
2.03 Letter of Credit
Participations..................................18
2.04 Agreement to Repay Letter of Credit
Drawings.....................20
2.05 Increased
Costs..................................................21
SECTION 3. Fees;
Commitments.................................................22
3.01
Fees.............................................................22
3.02 Voluntary Termination or Reduction of Total Unutilized
Revolving Loan
Commitment........................................23
3.03 Mandatory Reduction of
Commitments...............................24
SECTION 4.
Payments..........................................................24
4.01 Voluntary
Prepayments............................................24
4.02 Mandatory
Repayments.............................................26
4.03 Method and Place of
Payment......................................31
4.04 Net
Payments.....................................................31
SECTION 5. Conditions Precedent to Initial Credit
Events.....................33
5.01 Execution of Agreement;
Notes....................................33
5.02 Officer's
Certificate............................................33
5.03 Opinions of
Counsel..............................................33
5.04 Organizational
Documents.........................................33
5.05 Adverse Change,
etc..............................................34
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5.06
Approvals........................................................34
5.07 Consummation of the Transaction;
etc.............................34
5.08 Pledge
Agreements................................................36
5.09 Security
Agreements..............................................37
5.10 Initial Subsidiaries
Guaranty....................................37
5.11 Consent
Letter...................................................38
5.12 Solvency Certificate; Insurance
Certificates.....................38
5.13
Projections......................................................38
5.14 Payment of
Fees..................................................38
5.15 No Default; Representations and
Warranties.......................38
SECTION 6. Conditions Precedent to All Credit
Events.........................39
6.01 No Default; Representations and Warranties,
etc..................39
6.02 Notice of Borrowing; Letter of Credit
Request....................39
SECTION 7. Representations and
Warranties....................................40
7.01 Organizational
Status............................................40
7.02 Company Power and
Authority......................................40
7.03 No
Violation.....................................................40
7.04
Litigation.......................................................41
7.05 Use of Proceeds; Margin
Regulations..............................41
7.06 Governmental
Approvals...........................................41
7.07 Investment Company
Act...........................................42
7.08 Public Utility Holding Company
Act...............................42
7.09 True and Complete
Disclosure.....................................42
7.10 Financial Condition; Financial
Statements........................43
7.11 Security
Interests...............................................44
7.12 Compliance with
ERISA............................................44
7.13 Satellite Licenses,
etc..........................................45
7.14
Subsidiaries.....................................................46
7.15 Intellectual Property,
etc.......................................46
7.16 Compliance with Statutes,
etc....................................46
7.17 Environmental
Matters............................................46
7.18
Properties.......................................................47
7.19 Labor
Relations..................................................47
7.20 Tax Returns and
Payments.........................................47
7.21
Insurance........................................................48
7.22 TT&C Earth Station Licenses,
etc.................................48
7.23 In-Orbit
Satellites..............................................48
7.24 No
Immunity......................................................48
7.25 Proper
Form......................................................48
7.26 Employee Benefit Plans; Shareholders' Agreements;
Management Agreements; Collective Bargaining Agreements;
Existing Indebtedness Agreements; Tax Allocation
Agreements......49
SECTION 8. Affirmative
Covenants.............................................49
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8.01 Information
Covenants............................................50
8.02 Books, Records and
Inspections...................................54
8.03
Insurance........................................................54
8.04 Payment of
Taxes.................................................56
8.05 Corporate
Franchises.............................................56
8.06 Compliance with Statutes;
etc....................................56
8.07 Compliance with Environmental
Laws...............................56
8.08
ERISA............................................................58
8.09 Good
Repair......................................................58
8.10 End of Fiscal Years; Fiscal
Quarters.............................59
8.11 Additional Security; Additional Guaranties; Further
Assurances.......................................................59
8.12 Access and Command
Codes.........................................64
8.13 Use of
Proceeds..................................................66
8.14 Permitted
Acquisitions...........................................66
8.15 Maintenance of Organizational
Separateness.......................67
8.16 License
Subsidiary...............................................67
8.17 Intelsat General
Corporation.....................................68
SECTION 9. Negative
Covenants................................................68
9.01 Changes in
Business..............................................68
9.02 Consolidation; Merger; Sale or Purchase of Assets;
etc...........68
9.03
Liens............................................................72
9.04
Indebtedness.....................................................75
9.05 Advances; Investments;
Loans.....................................78
9.06 Dividends;
etc...................................................83
9.07 Transactions with Affiliates and Unrestricted
Subsidiaries.......86
9.08 Non-Material
Subsidiaries........................................86
9.09 Consolidated Interest Coverage
Ratio.............................87
9.10 Senior Secured Leverage
Ratio....................................87
9.11 Private
Act......................................................87
9.12 Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Certificate of
Incorporation, By-Laws and Certain Other Agreements;
Issuances of Capital Stock;
etc..................................87
9.13 Limitation on Issuance of Equity
Interests.......................88
9.14 Limitation on Certain Restrictions on
Subsidiaries...............89
9.15 Limitation on the Creation of Subsidiaries, Joint
Ventures
and Unrestricted
Subsidiaries....................................90
9.16 Change of Legal Names; Type of Organization (and Whether
a
Registered Organization); Jurisdiction of Organization;
etc......91
SECTION 10. Events of
Default................................................92
10.01
Payments........................................................92
10.02 Representations,
etc............................................92
10.03
Covenants.......................................................92
10.04 Default Under Other
Agreements..................................92
10.05 Bankruptcy,
etc.................................................93
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10.06
ERISA...........................................................93
10.07 Security
Documents..............................................93
10.08
Guaranties......................................................93
10.09
Judgments.......................................................93
10.10
Ownership.......................................................94
SECTION 11.
Definitions......................................................94
SECTION 12. The
Agents......................................................148
12.01
Appointment....................................................148
12.02 Delegation of
Duties...........................................149
12.03 Exculpatory
Provisions.........................................149
12.04 Reliance by
Agents.............................................150
12.05 Notice of
Default..............................................150
12.06 Nonreliance on Agents and Other
Lenders........................150
12.07
Indemnification................................................151
12.08 Agents in their Individual
Capacities..........................151
12.09
Holders........................................................151
12.10 Resignation of the
Agents......................................151
12.11 Collateral
Matters.............................................153
12.12 Special Appointment of Collateral Agent for German
Pledge
Agreement.......................................................154
12.13 The Co-Documentation Agents and the Co-Syndication
Agents......155
SECTION 13.
Miscellaneous...................................................155
13.01 Payment of Expenses,
etc.......................................155
13.02 Right of
Setoff................................................156
13.03
Notices........................................................156
13.04 Benefit of Agreement; Assignments;
Participations..............157
13.05 No Waiver; Remedies
Cumulative.................................159
13.06 Payments Pro
Rata..............................................159
13.07 Calculations;
Computations.....................................160
13.08 Governing Law; Submission to Jurisdiction;
Venue...............161
13.09
Counterparts...................................................161
13.10
Effectiveness..................................................162
13.11 Headings
Descriptive...........................................162
13.12 Amendment or Waiver;
etc.......................................162
13.13
Survival.......................................................164
13.14 Domicile of Loans and
Commitments..............................164
13.15
Confidentiality................................................164
13.16 Waiver of Jury
Trial...........................................165
13.17
Register.......................................................165
13.18 Limitation on Additional Amounts,
etc..........................165
13.19 USA Patriot
Act................................................166
13.20 Conversion of
Currencies.......................................166
13.21 Regulatory
Matters.............................................166
13.22 Application of
Proceeds........................................167
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13.23 Acknowledgment of Indebtedness and Joint
Creditorship..........169
13.24 Provisions relating to
Eurobonds...............................170
SECTION 14. Holdings
Guaranty...............................................172
14.01 The Holdings
Guaranty..........................................172
14.02
Bankruptcy.....................................................172
14.03 Nature of
Liability............................................172
14.04 Independent
Obligation.........................................173
14.05
Authorization..................................................173
14.06
Reliance.......................................................174
14.07
Subordination..................................................174
14.08
Waivers........................................................175
14.09 Maximum
Liability..............................................175
SCHEDULE 1.01 List of Lenders and Commitments
SCHEDULE 5.07 Indebtedness
SCHEDULE 5.10 Material Subsidiaries Executing a Subsidiaries
Guaranty on
the Initial Borrowing Date
SCHEDULE 7.12 Plans
SCHEDULE 7.13 Satellite Licenses
SCHEDULE 7.14 Subsidiaries
SCHEDULE 7.18 Real Property
SCHEDULE 7.21 Insurance
SCHEDULE 7.22 TT&C Earth Station Licenses
SCHEDULE 7.23 In-Orbit Satellites
SCHEDULE 9.02(s) Intelsat General Corporation Transfers
SCHEDULE 9.03 Existing Liens
SCHEDULE 9.05 Existing Investments
SCHEDULE 9.07 Affiliate Transactions
SCHEDULE 13.03 Lender Addresses
EXHIBIT A-1 Notice of Borrowing
EXHIBIT A-2 Notice of Conversion/Continuation
EXHIBIT B-1 Term Note
EXHIBIT B-2 Revolving Note
EXHIBIT B-3 Swingline Note
EXHIBIT C Letter of Credit Request
EXHIBIT D-1 Opinion of Wachtell, Lipton, Rosen & Katz,
special New York
counsel to the Credit Parties
EXHIBIT D-2 Opinion of Sullivan & Cromwell LLP, special New
York
counsel to the Credit Parties
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EXHIBIT D-3 Opinion of Appleby Spurling Hunter, special Bermuda
counsel
to the Credit Parties
EXHIBIT D-4 Opinion of David Meltzer, Esq., General Counsel of
Intelsat
Global Service Corporation
EXHIBIT D-5 Opinion of White & Case LLP, special U.K.
counsel to the
Administrative Agent
EXHIBIT D-6 Opinion of White & Case LLP, special German
counsel to the
Administrative Agent
EXHIBIT D-7 Opinion of Richards, Layton & Finger, PA,
special Delaware
counsel to the Credit Parties
EXHIBIT D-8 Opinion of Akin Gump Strauss Hauer & Feld LLP,
special FCC
counsel to the Credit Parties
EXHIBIT E Officers' Certificate
EXHIBIT F-1 Holdings Pledge Agreement (Bermuda law)
EXHIBIT F-2 U.S. Pledge Agreement (New York law)
EXHIBIT F-3 U.K. Pledge Agreement (English law)
EXHIBIT F-4 German Pledge Agreement (German law)
EXHIBIT G-1 Holdings/Borrower Security Agreement (Bermuda
law)
EXHIBIT G-2 U.S. Security Agreement (New York law)
EXHIBIT G-3 U.K. Security Agreement (English law)
EXHIBIT H Initial Subsidiaries Guaranty
EXHIBIT I Intercompany Subordination Agreement
EXHIBIT J Solvency Certificate
EXHIBIT K Consent Letter
EXHIBIT L Assignment and Assumption Agreement
EXHIBIT M Intercompany Note
EXHIBIT N Joinder Agreement
EXHIBIT O Satellite Health Report
EXHIBIT P Eurobond Guaranty
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CREDIT AGREEMENT, dated as of January 28, 2005, among ZEUS
MERGER
ONE LIMITED, a company incorporated under the laws of Bermuda
("ZEUS MERGER
ONE"; which as part of the Acquisition (as hereinafter defined)
shall be
amalgamated with Intelsat, Ltd., a company incorporated under
the laws of
Bermuda, with the resulting entity being called Intelsat, Ltd.),
ZEUS MERGER TWO
LIMITED, a company incorporated under the laws of Bermuda ("ZEUS
MERGER TWO";
which as part of the Acquisition shall be amalgamated with
Intelsat (Bermuda),
Ltd., a company incorporated under the laws of Bermuda, with the
resulting
entity being called Intelsat (Bermuda), Ltd.), the lenders from
time to time
party hereto (each, a "LENDER" and, collectively, the
"Lenders"), BANK OF
AMERICA, N.A., BEAR STEARNS CORPORATE LENDING INC., BNP PARIBAS
AND MERRILL
LYNCH CAPITAL CORPORATION, as Co-Documentation Agents (in such
capacity, the
"CO-DOCUMENTATION AGENTS"), CREDIT SUISSE FIRST BOSTON AND
LEHMAN BROTHERS INC.,
as Co-Syndication Agents (in such capacity, the "CO-SYNDICATION
AGENTS"), and
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative Agent
(in such capacity,
the "ADMINISTRATIVE AGENT") and as Collateral Agent (as
hereinafter defined)
(the Administrative Agent, the Collateral Agent, the
Co-Documentation Agents and
the Co-Syndication Agents, each, an "AGENT" and, collectively,
the "AGENTS").
Unless otherwise defined herein, all capitalized terms used
herein and defined
in Section 11 are used herein as so defined.
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions herein
set
forth, the Lenders are willing to make available to the Borrower
the credit
facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. AMOUNT AND TERMS OF CREDIT.
1.01 COMMITMENTS. (a) Subject to and upon the terms and
conditions
set forth herein, each Lender with a Term Loan Commitment
severally agrees to
make a term loan (each, a "TERM LOAN" and, collectively, the
"TERM LOANS") to
the Borrower, which Term Loans:
(i) shall be incurred by the Borrower pursuant to two drawings,
with
(x) the first such drawing to be made on the Initial Borrowing
Date for
the purposes described in Section 7.05(a)(i) and (y) the second
such
drawing to be made on or prior to the Term Loan Commitment
Termination
Date for the purposes described in Section 7.05(a)(ii);
(ii) shall be denominated in U.S. Dollars;
(iii) except as hereafter provided, shall, at the option of
the
Borrower, be incurred and maintained as, and/or converted into,
Base Rate
Loans or Eurodollar Loans, PROVIDED that (x) except as
otherwise
specifically provided in Section 1.10(b), all Term Loans made as
part of
the same Borrowing shall at all times consist of Term Loans of
the same
Type and (y) unless the Administrative Agent has determined that
the
Syndication Date has occurred (at which time this clause (y)
shall no
longer be applicable), no more than three Borrowings of Term
Loans to be
maintained as Eurodollar Loans may be incurred prior to the 90th
day after
the Initial Borrowing Date (or, if later, the last day of
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the Interest Period applicable to the third Borrowing of
Eurodollar Loans
referred to below), each of which Borrowings of Eurodollar Loans
may only
have an Interest Period of one month, and the first of which
Borrowings may
only be made on or after the third Business Day following the
Initial
Borrowing Date, the second of which Borrowings may only be made
on the last
day of the Interest Period of the first such Borrowing and the
third of
which Borrowings may only be made on the last day of the
Interest Period of
the second such Borrowing;
(iv) shall not exceed for any Lender, in initial principal
amount
for the Term Loans being made by such Lender on the Initial
Borrowing Date,
that amount which equals the lesser of (x) such Lender's TL
Percentage of
$150,000,000 and (y) the Term Loan Commitment of such Lender as
in effect
on the Initial Borrowing Date (before giving effect to any
reduction
thereto on such date pursuant to Section 3.03(b)(i)); and
(v) shall not exceed for any Lender, in initial principal amount
for
the Term Loans being made by such Lender on the Business Day
prior to or,
at the Borrower's request on, the Repayment Date, that amount
which equals
the Term Loan Commitment of such Lender as in effect on such
date (before
giving effect to any reduction thereto or termination thereof on
such date
pursuant to Section 3.03(b)(i) or (ii)).
Once repaid or prepaid, Term Loans incurred hereunder may not be
reborrowed.
(b) Subject to and upon the terms and conditions herein set
forth,
each RL Lender severally agrees, at any time and from time to
time after the
Initial Borrowing Date and prior to the Revolving Loan Maturity
Date, to make a
revolving loan or revolving loans (each, a "REVOLVING LOAN" and,
collectively,
the "REVOLVING LOANS") to the Borrower, which Revolving
Loans:
(i) shall be denominated in U.S. Dollars;
(ii) shall, at the option of the Borrower, be incurred and
maintained as, and/or converted into, Base Rate Loans or
Eurodollar Loans,
PROVIDED that (x) except as otherwise specifically provided in
Section
1.10(b), all Revolving Loans made as part of the same Borrowing
shall at
all times be of the same Type and (y) unless the Administrative
Agent has
determined that the Syndication Date has occurred (at which time
this
clause (y) shall no longer be applicable), no more than three
Borrowings
of Revolving Loans to be maintained as Eurodollar Loans may be
incurred
prior to the 90th day after the Initial Borrowing Date (or, if
later, the
last day of the Interest Period applicable to the third
Borrowing of
Eurodollar Loans referred to below), each of which Borrowings
of
Eurodollar Loans may only have an Interest Period of one month,
and the
first of which Borrowings may only be made on the same date as
the initial
Borrowing of Term Loans that are maintained as Eurodollar Loans,
the
second of which Borrowings may only be made on the last day of
the
Interest Period of the first such Borrowing and the third of
which
Borrowings may only be made on the last day of the Interest
Period of the
second such Borrowing;
(iii) may be repaid and reborrowed in accordance with the
provisions
hereof;
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(iv) shall not exceed for any Lender at any time outstanding
that
aggregate principal amount which, when added to the product of
(x) such
Lender's Adjusted RL Percentage and (y) the sum of (I) the
aggregate
amount of all Letter of Credit Outstandings (exclusive of Unpaid
Drawings
which are repaid with the proceeds of, and simultaneously with
the
incurrence of, the respective incurrence of Revolving Loans) at
such time
and (II) the aggregate principal amount of all Swingline Loans
(exclusive
of Swingline Loans which are repaid with the proceeds of,
and
simultaneously with the incurrence of, the respective incurrence
of
Revolving Loans) then outstanding, equals the Revolving Loan
Commitment of
such Lender at such time; and
(v) shall not exceed for all Lenders at any time outstanding
that
aggregate principal amount which, when added to (x) the
aggregate amount
of all Letter of Credit Outstandings (exclusive of Unpaid
Drawings which
are repaid with the proceeds of, and simultaneously with the
incurrence
of, the respective incurrence of Revolving Loans) at such time
and (y) the
aggregate principal amount of all Swingline Loans (exclusive of
Swingline
Loans which are repaid with the proceeds of, and simultaneously
with the
incurrence of, the respective incurrence of Revolving Loans)
then
outstanding, exceeds an amount equal to the Total Revolving
Loan
Commitment then in effect.
(c) Subject to and upon the terms and conditions set forth
herein,
the Swingline Lender agrees to make at any time and from time to
time
after the Initial Borrowing Date and prior to the Swingline
Expiry Date, a
revolving loan or revolving loans to the Borrower (each, a
"SWINGLINE
LOAN" and, collectively, the "SWINGLINE LOANS"), which Swingline
Loans:
(i) shall be denominated in U.S. Dollars;
(ii) shall be made and maintained as Base Rate Loans;
(iii) may be repaid and reborrowed in accordance with the
provisions
hereof;
(iv) shall not exceed in aggregate principal amount at any
time
outstanding, when combined with (x) the aggregate principal
amount of all
Revolving Loans made by Non-Defaulting Lenders then outstanding
and (y)
the aggregate amount of all Letter of Credit Outstandings
(exclusive of
Unpaid Drawings which are repaid with the proceeds of, and
simultaneously
with the incurrence of, the respective incurrence of Swingline
Loans) at
such time, an amount equal to the Adjusted Total Revolving Loan
Commitment
at such time (after giving effect to any changes thereto on such
date);
and
(v) shall not exceed in aggregate principal amount at any
time
outstanding the Maximum Swingline Amount.
Notwithstanding anything contained in this Section 1.01(c), (i)
the Swingline
Lender shall not be obligated to make any Swingline Loans at a
time when a
Lender Default exists unless the Swingline Lender has entered
into arrangements
satisfactory to it and the Borrower to eliminate the Swingline
Lender's risk
with respect to the Defaulting Lender's or Lenders'
participation in such
Swingline Loans, including by cash collateralizing such
Defaulting Lender's or
Lenders' RL Percentage of the outstanding Swingline Loans and
(ii) the Swingline
Lender will not make a Swingline Loan after it has received
written notice from
the Borrower or the Required Lenders
3
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stating that a Default or an Event of Default exists until such
time as the
Administrative Agent shall have received a written notice of (x)
rescission of
such notice from the party or parties originally delivering the
same or (y) a
waiver of such Default or Event of Default from the Required
Lenders.
(d) On any Business Day, the Swingline Lender may, in its
sole
discretion, give notice to the RL Lenders that its outstanding
Swingline Loans
shall be funded with a Borrowing of Revolving Loans (PROVIDED
that each such
notice shall be deemed to have been automatically given upon the
occurrence of a
Default or an Event of Default under Section 10.05 or upon the
exercise of any
of the remedies provided in the last paragraph of Section 10),
in which case a
Borrowing of Revolving Loans constituting Base Rate Loans (each
such Borrowing,
a "MANDATORY BORROWING") shall be made on the immediately
succeeding Business
Day by all RL Lenders PRO RATA based on each RL Lender's
Adjusted RL Percentage
(determined before giving effect to any termination of the
Revolving Loan
Commitments pursuant to the last paragraph of Section 10), and
the proceeds
thereof shall be applied directly to repay the Swingline Lender
for such
outstanding Swingline Loans. Each RL Lender hereby irrevocably
agrees to make
Revolving Loans upon one Business Day's notice pursuant to each
Mandatory
Borrowing in the amount and in the manner specified in the
preceding sentence
and on the date specified in writing by the Swingline Lender
notwithstanding (i)
that the amount of the Mandatory Borrowing may not comply with
the Minimum
Borrowing Amount otherwise required hereunder, (ii) whether any
conditions
specified in Section 5 or 6 are then satisfied, (iii) whether a
Default or an
Event of Default has occurred and is continuing, (iv) the date
of such Mandatory
Borrowing and (v) the amount of the Total Revolving Loan
Commitment or the
Adjusted Total Revolving Loan Commitment at such time. In the
event that any
Mandatory Borrowing cannot for any reason be made on the date
otherwise required
above (including, without limitation, as a result of the
commencement of a
proceeding under the Bankruptcy Code with respect to the
Borrower), then each RL
Lender (other than the Swingline Lender) hereby agrees that it
shall forthwith
purchase from the Swingline Lender (without recourse or
warranty) such
assignment of the outstanding Swingline Loans as shall be
necessary to cause the
RL Lenders to share in such Swingline Loans ratably based upon
their respective
Adjusted RL Percentages (determined before giving effect to any
termination of
the Revolving Loan Commitments pursuant to the last paragraph of
Section 10),
PROVIDED that (x) all interest payable on the Swingline Loans
shall be for the
account of the Swingline Lender until the date the respective
assignment is
purchased and, to the extent attributable to the purchased
assignment, shall be
payable to the RL Lender purchasing same from and after such
date of purchase
(or, if earlier, from the date on which the Mandatory Borrowing
would otherwise
have occurred, so long as the payments required by the following
clause (y) have
in fact been made) and (y) at the time any purchase of
assignments pursuant to
this sentence is actually made, the purchasing RL Lender shall
be required to
pay the Swingline Lender interest on the principal amount of
assignment
purchased for each day from and including the day upon which the
Mandatory
Borrowing would otherwise have occurred to but excluding the
date of payment for
such assignment, at the rate otherwise applicable to Revolving
Loans maintained
as Base Rate Loans hereunder for each day thereafter.
1.02 MINIMUM BORROWING AMOUNTS, ETC. The aggregate principal
amount
of each Borrowing of Loans shall not be less than the Minimum
Borrowing Amount
applicable to such Loans, PROVIDED that Mandatory Borrowings
shall be made in
the amounts required by
4
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Section 1.01(d). More than one Borrowing may be incurred on any
day, PROVIDED
that at no time shall there be outstanding more than eight
Borrowings of
Eurodollar Loans.
1.03 NOTICE OF BORROWING. (a) Whenever the Borrower desires to
make
a Borrowing of Loans hereunder (excluding Borrowings of
Swingline Loans and
Mandatory Borrowings), an Authorized Officer shall give the
Administrative Agent
at its Notice Office, prior to 12:00 Noon (New York time), at
least three
Business Days' prior written notice (or telephonic notice
promptly confirmed in
writing) of each Borrowing of Eurodollar Loans, and at least one
Business Day's
prior written notice (or telephonic notice promptly confirmed in
writing) of
each Borrowing of Base Rate Loans to be made hereunder (or, in
the case of the
Borrowings to occur on the Initial Borrowing Date, no later than
5:00 P.M. (New
York time) on the Business Day prior to the Initial Borrowing
Date). Each such
notice (each, a "NOTICE OF BORROWING") shall, except as
otherwise expressly
provided in Section 1.10, be irrevocable, and, in the case of
each written
notice and each confirmation of telephonic notice, shall be in
the form of
Exhibit A-1, appropriately completed to specify: (i) the
aggregate principal
amount of the Loans to be made pursuant to such Borrowing, (ii)
the date of such
Borrowing (which shall be a Business Day), (iii) whether the
respective
Borrowing shall consist of Term Loans or Revolving Loans, (iv)
whether the
respective Borrowing shall consist of Base Rate Loans or, to the
extent
permitted hereunder, Eurodollar Loans and, if Eurodollar Loans,
the Interest
Period to be initially applicable thereto and (v) in the case of
a Borrowing of
Revolving Loans the proceeds of which are to be utilized to
finance, in whole or
in part, a Permitted Acquisition, (x) a reference to the
officer's certificate,
if any, delivered in accordance with Section 8.14, and (y) the
aggregate
principal amount of such Revolving Loans to be utilized in
connection with such
Permitted Acquisition. The Administrative Agent shall promptly
give each Lender
which is required to make Loans of the Tranche specified in the
respective
Notice of Borrowing, written notice (or telephonic notice
promptly confirmed in
writing) of each proposed Borrowing, of such Lender's
proportionate share
thereof and of the other matters required by the immediately
preceding sentence
to be specified in the Notice of Borrowing.
(b) (i) Whenever the Borrower desires to incur Swingline
Loans
hereunder, an Authorized Officer shall give the Swingline Lender
not later than
2:00 P.M. (New York time) on the day such Swingline Loan is to
be made, written
notice thereof in the form of a Notice of Borrowing (or
telephone notice thereof
promptly so confirmed in writing) for each Swingline Loan to be
made hereunder.
Each such notice shall be irrevocable and shall specify in each
case (x) the
date of such Borrowing (which shall be a Business Day) and (y)
the aggregate
principal amount of the Swingline Loan to be made pursuant to
such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice (or
deemed
notice) specified in Section 1.01(d), with the Borrower
irrevocably agreeing, by
its incurrence of any Swingline Loan, to the making of Mandatory
Borrowings as
set forth in such Section 1.01(d).
(c) Without in any way limiting the obligation of the Borrower
to
confirm in writing any telephonic notice permitted to be given
hereunder, the
Administrative Agent or the Swingline Lender (in the case of a
Borrowing of
Swingline Loans) or the respective Letter of Credit Issuer (in
the case of the
issuance of Letters of Credit), as the case may be, may prior to
receipt of
written confirmation act without liability upon the basis of
such telephonic
notice, believed by the Administrative Agent, the Swingline
Lender or such
Letter of Credit Issuer, as
5
<PAGE>
the case may be, in good faith to be from an Authorized Officer.
In each such
case, the Administrative Agent's, the Swingline Lender's or the
respective
Letter of Credit Issuer's, as the case may be, record of the
terms of such
telephonic notice shall be conclusive evidence of the contents
of such notice,
absent manifest error.
1.04 DISBURSEMENT OF FUNDS. (a) Not later than 1:00 P.M. (New
York
time) on the date specified in each Notice of Borrowing (or (x)
in the case of
Swingline Loans, not later than 2:00 P.M. (New York time) on the
date specified
in Section 1.03(b)(i), (y) in the case of Mandatory Borrowings,
not later than
12:00 Noon (New York time) on the date specified in Section
1.01(d) or (z) in
the case of Term Loans made on the Initial Borrowing Date, not
later than 11:00
A.M. (New York time) (or such earlier time as may be agreed by
the
Administrative Agent) on such date), each Lender with a
Commitment under the
respective Tranche will make available its PRO RATA share
(determined in
accordance with Section 1.07), if any, of each Borrowing
requested to be made on
such date (or in the case of Swingline Loans, the Swingline
Lender shall make
available the full amount thereof) in the manner provided below.
All amounts
shall be made available to the Administrative Agent in U.S.
Dollars and in
immediately available funds at the Payment Office and the
Administrative Agent
promptly will make available to the Borrower by depositing to
its account at the
Payment Office (or such other account at a commercial bank
located in New York
City as designated in the Notice of Borrowing or otherwise by
the Borrower to
the Administrative Agent) the aggregate of the amounts so made
available in the
type of funds received. Unless the Administrative Agent shall
have been notified
by any Lender prior to the date of Borrowing that such Lender
does not intend to
make available to the Administrative Agent its portion of the
Borrowing or
Borrowings to be made on such date, the Administrative Agent may
assume that
such Lender has made such amount available to the Administrative
Agent on such
date of Borrowing, and the Administrative Agent, in reliance
upon such
assumption, may (in its sole discretion and without any
obligation to do so)
make available to the Borrower a corresponding amount. If such
corresponding
amount is not in fact made available to the Administrative Agent
by such Lender
and the Administrative Agent has made available same to the
Borrower, the
Administrative Agent shall be entitled to recover such
corresponding amount on
demand from such Lender. If such Lender does not pay such
corresponding amount
forthwith upon the Administrative Agent's demand therefor, the
Administrative
Agent shall promptly notify the Borrower, and the Borrower shall
promptly (and,
in any event, no later than one Business Day following such
notification) pay
such corresponding amount to the Administrative Agent. The
Administrative Agent
shall also be entitled to recover on demand from such Lender or
the Borrower, as
the case may be, interest on such corresponding amount in
respect of each day
from the date such corresponding amount was made available by
the Administrative
Agent to the Borrower to the date such corresponding amount is
recovered by the
Administrative Agent, at a rate per annum equal to (x) if paid
by such Lender,
the overnight Federal Funds Rate for the first three days and
the interest rate
otherwise applicable to such Loans for each day thereafter or
(y) if paid by the
Borrower, the then applicable rate of interest, calculated in
accordance with,
and in satisfaction of its obligation to pay interest under,
Section 1.08.
(b) Nothing in this Agreement shall be deemed to relieve any
Lender
from its obligation to fulfill its commitments hereunder or to
prejudice any
rights which the Borrower may have against any Lender as a
result of any default
by such Lender hereunder.
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<PAGE>
1.05 NOTES. (a) The Borrower's obligation to pay the principal
of,
and interest on, all the Loans made to it by each Lender shall
be set forth on
the Register maintained by the Administrative Agent pursuant to
Section 13.17
and, subject to the provisions of Section 1.05(f), shall be
evidenced (i) if
Term Loans, by a promissory note substantially in the form of
Exhibit B-1 with
blanks appropriately completed in conformity herewith (each, a
"TERM NOTE" and,
collectively, the "TERM NOTES"), (ii) if Revolving Loans, by a
promissory note
substantially in the form of Exhibit B-2 with blanks
appropriately completed in
conformity herewith (each, a "REVOLVING NOTE" and, collectively,
the "REVOLVING
NOTES") and (iii) if Swingline Loans, by a promissory note
substantially in the
form of Exhibit B-3 with blanks appropriately completed in
conformity herewith
(the "SWINGLINE NOTE").
(b) The Term Note issued to each Lender with a Term Loan
Commitment
and/or outstanding Term Loans shall (i) be executed by the
Borrower, (ii) be
payable to such Lender or its registered assigns and be dated
the Initial
Borrowing Date (or, in the case of any Term Note issued after
the Initial
Borrowing Date, the date of issuance thereof), (iii) be in a
stated principal
amount equal to the Term Loan Commitment of such Lender on the
Initial Borrowing
Date (or, in the case of any Term Note issued after the Initial
Borrowing Date,
in a stated principal amount equal to the sum of the Term Loan
Commitment and
the outstanding principal amount of the Term Loans of such
Lender on the date of
the issuance thereof) and be payable in the principal amount of
Term Loans
evidenced thereby from time to time, (iv) mature on the Term
Loan Maturity Date,
(v) bear interest as provided in the appropriate clause of
Section 1.08 in
respect of the Base Rate Loans and Eurodollar Loans, as the case
may be,
evidenced thereby, (vi) be subject to voluntary repayment as
provided in Section
4.01 and mandatory repayment as provided in Section 4.02 and
(vii) be entitled
to the benefits of this Agreement and the other Credit
Documents.
(c) The Revolving Note issued to each RL Lender shall (i) be
executed by the Borrower, (ii) be payable to such RL Lender or
its registered
assigns and be dated the date of issuance thereof, (iii) be in a
stated
principal amount equal to the Revolving Loan Commitment of such
RL Lender and be
payable in the principal amount of the outstanding Revolving
Loans evidenced
thereby, (iv) mature on the Revolving Loan Maturity Date, (v)
bear interest as
provided in the appropriate clause of Section 1.08 in respect of
the Base Rate
Loans and Eurodollar Loans, as the case may be, evidenced
thereby, (vi) be
subject to voluntary prepayment as provided in Section 4.01 and
mandatory
repayment as provided in Section 4.02 and (vii) be entitled to
the benefits of
this Agreement and the other Credit Documents.
(d) The Swingline Note issued to the Swingline Lender shall (i)
be
executed by the Borrower, (ii) be payable to the Swingline
Lender or its
registered assigns and be dated the Initial Borrowing Date,
(iii) be in a stated
principal amount equal to the Maximum Swingline Amount and be
payable in the
principal amount of the outstanding Swingline Loans evidenced
thereby, (iv)
mature on the Swingline Expiry Date, (v) bear interest as
provided in Section
1.08 in respect of the Base Rate Loans evidenced thereby, (vi)
be subject to
voluntary prepayment as provided in Section 4.01 and mandatory
repayment as
provided in Section 4.02 and (vii) be entitled to the benefits
of this Agreement
and the other Credit Documents.
(e) Each Lender will note on its internal records the amount of
each
Loan made by it and each payment in respect thereof and will
prior to any
transfer of any of its Notes
7
<PAGE>
endorse on the reverse side thereof the outstanding principal
amount of Loans
evidenced thereby. Failure to make any such notation or any
error in such
notation shall not affect the Borrower's obligations in respect
of such Loans.
(f) Notwithstanding anything to the contrary contained above
or
elsewhere in this Agreement, Notes shall only be delivered to
Lenders which at
any time specifically request the delivery of such Notes. No
failure of any
Lender to request or obtain a Note evidencing its Loans to the
Borrower shall
affect or in any manner impair the obligations of the Borrower
to pay the Loans
(and all related Obligations) which would otherwise be evidenced
thereby in
accordance with the requirements of this Agreement, and shall
not in any way
affect the security or guaranties therefor provided pursuant to
the various
Credit Documents. Any Lender which does not have a Note
evidencing its
outstanding Loans shall in no event be required to make the
notations otherwise
described in preceding clause (e). At any time when any Lender
requests the
delivery of a Note to evidence any of its Loans, the Borrower
shall promptly
execute and deliver to the respective Lender the requested Note
in the
appropriate amount or amounts to evidence such Loans.
1.06 CONVERSIONS. The Borrower shall have the option to convert
on
any Business Day occurring on or after the Initial Borrowing
Date, all or a
portion at least equal to the applicable Minimum Borrowing
Amount of the
outstanding principal amount of Loans (other than Swingline
Loans, which shall
at all times be maintained as Base Rate Loans) made pursuant to
one or more
Borrowings of one or more Types of Loans under a single Tranche
into a Borrowing
or Borrowings of another Type of Loan under such Tranche;
PROVIDED that (i)
except as otherwise provided in Section 1.10(b) or unless the
Borrower pays all
breakage costs and other amounts owing to each Lender pursuant
to Section 1.11
concurrently with any such conversion, Eurodollar Loans may be
converted into
Base Rate Loans only on the last day of an Interest Period
applicable to the
Loans being converted, and no partial conversion of a Borrowing
of Eurodollar
Loans shall reduce the outstanding principal amount of the
Eurodollar Loans made
pursuant to such Borrowing to less than the Minimum Borrowing
Amount applicable
thereto, (ii) Base Rate Loans may only be converted into
Eurodollar Loans if no
Default or Event of Default is in existence on the date of the
conversion, (iii)
unless the Administrative Agent has determined that the
Syndication Date has
occurred (at which time this clause (iii) shall no longer be
applicable), prior
to the 90th day after the Initial Borrowing Date, conversions of
Base Rate Loans
into Eurodollar Loans may only be made if any such conversion is
effective on
the first day of the first, second or third Interest Period
referred to in
clause (y) of each of Sections 1.01(a)(iii) and 1.01(b)(ii) and
so long as such
conversion does not result in a greater number of Borrowings of
Eurodollar Loans
prior to the 90th day after the Initial Borrowing Date as are
permitted under
Sections 1.01(a)(iii) and 1.01(b)(ii) and (iv) Borrowings of
Eurodollar Loans
resulting from this Section 1.06 shall be limited in number as
provided in
Section 1.02. Each such conversion shall be effected by the
Borrower by giving
the Administrative Agent at its Notice Office, prior to 12:00
Noon (New York
time), at least three Business Days' (or one Business Day's in
the case of a
conversion into Base Rate Loans) prior written notice (or
telephonic notice
promptly confirmed in writing) (each, a "NOTICE OF
CONVERSION/CONTINUATION") in
the form of Exhibit A-2, appropriately completed specifying the
Loans to be so
converted, the Borrowing(s) pursuant to which the Loans were
made and, if to be
converted into a Borrowing of Eurodollar Loans, the Interest
Period to be
initially applicable thereto. The Administrative Agent shall
give each Lender
prompt notice of any such proposed
8
<PAGE>
conversion affecting any of its Loans. Upon any such conversion,
the proceeds
thereof will be deemed to be applied directly on the day of such
conversion to
prepay the outstanding principal amount of the Loans being
converted.
1.07 PRO RATA BORROWINGS. All Borrowings of Term Loans and
Revolving
Loans under this Agreement shall be incurred by the Borrower
from the Lenders
PRO RATA on the basis of such Lenders' Term Loan Commitments or
Revolving Loan
Commitments, as the case may be; PROVIDED that all Borrowings of
Revolving Loans
made pursuant to a Mandatory Borrowing shall be incurred from
the RL Lenders PRO
RATA on the basis of their respective Adjusted RL Percentages.
It is understood
that no Lender shall be responsible for any default by any other
Lender of its
obligation to make Loans hereunder and that each Lender shall be
obligated to
make the Loans to be made by it hereunder, regardless of the
failure of any
other Lender to fulfill its commitments hereunder.
1.08 INTEREST. (a) The Borrower agrees to pay interest in
respect of
the unpaid principal amount of each Base Rate Loan made to it
from the date of
the Borrowing thereof until the earlier of (i) the maturity
(whether by
acceleration or otherwise) of such Base Rate Loan and (ii) the
conversion of
such Base Rate Loan to a Eurodollar Loan pursuant to Section
1.06, at a rate PER
ANNUM which shall at all times be the relevant Applicable Margin
PLUS the Base
Rate, each as in effect from time to time.
(b) The Borrower agrees to pay interest in respect of the
unpaid
principal amount of each Eurodollar Loan made to it from the
date of the
Borrowing thereof until the earlier of (i) the maturity (whether
by acceleration
or otherwise) of such Eurodollar Loan and (ii) the conversion of
such Eurodollar
Loan to a Base Rate Loan pursuant to Section 1.06, 1.09 or
1.10(b), as
applicable, at a rate PER ANNUM which shall at all times be the
relevant
Applicable Margin as in effect from time to time PLUS the
Eurodollar Rate for
each Interest Period applicable to such Eurodollar Loan.
(c) To the extent permitted by law, overdue principal and
overdue
interest in respect of each Loan shall, in each case, bear
interest at a rate
PER ANNUM equal to the greater of (x) the rate which is 2% in
excess of the rate
borne by such Loan immediately prior to the respective payment
default and (y)
the rate which is 2% in excess of the rate otherwise applicable
to Base Rate
Loans of the respective Tranche of Loans from time to time, and
all other
overdue amounts payable hereunder and under any other Credit
Document shall bear
interest at a rate per annum which is 2% in excess of the rate
applicable to
Revolving Loans maintained as Base Rate Loans from time to time.
Interest which
accrues under this Section 1.08(c) shall be payable on
demand.
(d) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof and
shall be
payable (i) in respect of each Base Rate Loan, quarterly in
arrears on each
Quarterly Payment Date, (ii) in respect of each Eurodollar Loan,
on (x) the date
of any conversion into a Base Rate Loan pursuant to Section
1.06, 1.09 or
1.10(b), as applicable (on the amount converted) and (y) the
last day of each
Interest Period applicable thereto and, in the case of an
Interest Period in
excess of three months, on each date occurring at three month
intervals after
the first day of such Interest Period and (iii) in respect of
each Loan, on (x)
the date of any prepayment or repayment thereof (on the amount
prepaid or
9
<PAGE>
repaid), (y) at maturity (whether by acceleration or otherwise)
and (z) after
such maturity, on demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 13.07(b).
(f) Upon each Interest Determination Date, the Administrative
Agent
shall determine the Eurodollar Rate for the respective Interest
Period or
Interest Periods and shall promptly notify the Borrower and the
Lenders thereof.
Each such determination shall, absent manifest error, be final
and conclusive
and binding on all parties hereto.
1.09 INTEREST PERIODS. At the time the Borrower gives a Notice
of
Borrowing or Notice of Conversion/Continuation in respect of the
making of, or
conversion into, a Borrowing of Eurodollar Loans (in the case of
the initial
Interest Period applicable thereto) or prior to 12:00 Noon (New
York time) on
the third Business Day prior to the expiration of an Interest
Period applicable
to a Borrowing of Eurodollar Loans (in the case of any
subsequent Interest
Period), the Borrower shall have the right to elect by giving
the Administrative
Agent written notice (or telephonic notice promptly confirmed in
writing) of the
Interest Period to be applicable to such Borrowing, which
Interest Period shall,
at the option of the Borrower (but otherwise subject to clause
(y) of the
proviso to Sections 1.01(a)(iii) and 1.01(b)(ii) and to clause
(iii) of the
proviso to Section 1.06), be a one, two, three, six or, with the
prior written
consent of each Lender with outstanding Loans and/or Commitments
under the
respective Tranche, nine or twelve month period. Notwithstanding
anything to the
contrary contained above:
(i) all Eurodollar Loans comprising a Borrowing shall at all
times
have the same Interest Period;
(ii) the initial Interest Period for any Borrowing of
Eurodollar
Loans shall commence on the date of such Borrowing (including
the date of
any conversion from a Borrowing of Base Rate Loans) and each
Interest
Period occurring thereafter in respect of such Borrowing shall
commence on
the day on which the next preceding Interest Period applicable
thereto
expires;
(iii) if any Interest Period for any Borrowing of Eurodollar
Loans
begins on a day for which there is no numerically corresponding
day in the
calendar month at the end of such Interest Period, such Interest
Period
shall end on the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day
which is
not a Business Day, such Interest Period shall expire on the
next
succeeding Business Day, PROVIDED that if any Interest Period
for any
Borrowing of Eurodollar Loans would otherwise expire on a day
which is not
a Business Day but is a day of the month after which no further
Business
Day occurs in such month, such Interest Period shall expire on
the next
preceding Business Day;
(v) no Interest Period for a Borrowing under a Tranche shall
be
selected which would extend beyond the respective Maturity Date
for such
Tranche;
10
<PAGE>
(vi) no Interest Period may be elected at any time when a
Default or
an Event of Default is then in existence; and
(vii) no Interest Period in respect of any Borrowing of Term
Loans
shall be elected which extends beyond any date upon which a
Scheduled
Repayment will be required to be made under Section 4.02(b) if,
after
giving effect to the election of such Interest Period, the
aggregate
principal amount of such Term Loans which have Interest Periods
which will
expire after such date will be in excess of the aggregate
principal amount
of such Term Loans then outstanding less the aggregate amount of
such
required Scheduled Repayment.
If upon the expiration of any Interest Period applicable to
a
Borrowing of Eurodollar Loans, the Borrower has failed to elect,
or is not
permitted to elect, a new Interest Period to be applicable to
the respective
Borrowing of Eurodollar Loans as provided above, the Borrower
shall be deemed to
have elected to convert such Borrowing into a Borrowing of Base
Rate Loans
effective as of the expiration date of such current Interest
Period.
1.10 INCREASED COSTS; ILLEGALITY; ETC. (a) In the event that (x)
in
the case of clause (i) below, the Administrative Agent or (y) in
the case of
clauses (ii) and (iii) below, any Lender, shall have determined
in good faith
(which determination shall, absent manifest error, be final and
conclusive and
binding upon all parties hereto):
(i) on any Interest Determination Date, that, by reason of
any
changes arising after the Effective Date affecting the
interbank
Eurodollar market, adequate and fair means do not exist for
ascertaining
the applicable interest rate on the basis provided for in the
definition
of Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased costs
or
reductions in the amounts received or receivable hereunder with
respect to
any Eurodollar Loans because of (x) any change since the
Effective Date in
any applicable law, governmental rule, regulation, guideline,
order or
request (whether or not having the force of law), or in the
interpretation
or administration thereof and including the introduction of any
new law or
governmental rule, regulation, guideline, order or request, such
as, for
example, but not limited to, (A) a change in the basis of
taxation of
payments to a Lender of the principal of or interest on the
Loans or any
other amounts payable hereunder (except for changes in the rate
of tax on,
or determined by reference to, the net income or net profits of
such
Lender imposed by the jurisdiction in which its principal office
or
applicable lending office is located), or (B) a change in
official reserve
requirements, but, in all events, excluding reserves required
under
Regulation D to the extent included in the computation of the
Eurodollar
Rate and/or (y) other circumstances affecting such Lender, the
interbank
Eurodollar market or the position of such Lender in such market
(other
than circumstances relating to taxes or any similar charges);
or
(iii) at any time since the Effective Date, that the making
or
continuance of any Eurodollar Loan has become unlawful by
compliance by
such Lender with any law, governmental rule, regulation,
guideline or
order (or would conflict with any governmental rule,
regulation,
guideline, request or order not having the force of law but
11
<PAGE>
with which such Lender customarily complies even though the
failure to
comply therewith would not be unlawful), or has become
impracticable as a
result of a contingency occurring after the Effective Date
which
materially and adversely affects the interbank Eurodollar
market;
then, and in any such event, such Lender (or the Administrative
Agent in the
case of clause (i) above) shall promptly give notice (by
telephone confirmed in
writing) to the Borrower and (except in the case of clause (i))
to the
Administrative Agent of such determination (which notice the
Administrative
Agent shall promptly transmit to each of the other Lenders).
Thereafter, (x) in
the case of clause (i) above, Eurodollar Loans shall no longer
be available
until such time as the Administrative Agent notifies the
Borrower and the
Lenders that the circumstances giving rise to such notice by the
Administrative
Agent no longer exist, and any Notice of Borrowing or Notice
of
Conversion/Continuation given by the Borrower with respect to
Eurodollar Loans
which have not yet been incurred (including by way of
conversion) shall be
deemed rescinded by the Borrower, (y) in the case of clause (ii)
above, the
Borrower agrees, subject to the provisions of Section 13.18 (to
the extent
applicable), to pay to such Lender, upon written demand
therefor, such
additional amounts (in the form of an increased rate of, or a
different method
of calculating, interest or otherwise as such Lender in its sole
discretion
shall determine) as shall be required to compensate such Lender
for such
increased costs or reductions in amounts received or receivable
hereunder (a
written notice as to the additional amounts owed to such Lender,
showing in
reasonable detail the basis for the calculation thereof,
prepared in good faith
and submitted to the Borrower by such Lender shall, absent
manifest error, be
final and conclusive and binding upon all parties hereto,
although the failure
to give any such notice shall not release or diminish any of the
Borrower's
obligations to pay additional amounts pursuant to this Section
1.10(a) upon the
subsequent receipt of such notice) and (z) in the case of clause
(iii) above,
the Borrower shall take one of the actions specified in Section
1.10(b) as
promptly as practicable and, in any event, within the time
period required by
law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the
Borrower may (and
in the case of a Eurodollar Loan affected pursuant to Section
1.10(a)(iii), the
Borrower shall) either (i) if the affected Eurodollar Loan is
then being made
pursuant to a Borrowing, cancel said Borrowing by giving the
Administrative
Agent telephonic notice (confirmed promptly in writing) thereof
on the same date
that the Borrower was notified by a Lender pursuant to Section
1.10(a)(ii) or
(iii)), or (ii) if the affected Eurodollar Loan is then
outstanding, upon at
least three Business Days' notice to the Administrative Agent,
require the
affected Lender to convert each such Eurodollar Loan into a Base
Rate Loan
(which conversion, in the case of the circumstance described in
Section
1.10(a)(iii), shall occur no later than the last day of the
Interest Period then
applicable to such Eurodollar Loan or such earlier day as shall
be required by
applicable law); PROVIDED that if more than one Lender is
affected at any time,
then all affected Lenders must be treated the same pursuant to
this Section
1.10(b).
(c) If any Lender shall have determined that after the
Effective
Date, the adoption or effectiveness of any applicable law, rule
or regulation
regarding capital adequacy, or any change therein, or any change
in the
interpretation or administration thereof by any Governmental
Authority charged
with the interpretation or administration thereof, or compliance
by such Lender
or any corporation controlling such Lender with any request or
directive
<PAGE>
12
regarding capital adequacy (whether or not having the force of
law) of any such
Governmental Authority, has or would have the effect of reducing
the rate of
return on such Lender's or such other corporation's capital or
assets as a
consequence of such Lender's Commitment or Commitments or its
obligations
hereunder to the Borrower by an amount deemed by such Lender to
be material to a
level below that which such Lender or such other corporation
could have achieved
but for such adoption, effectiveness, change or compliance
(taking into
consideration such Lender's or such other corporation's policies
with respect to
capital adequacy), then from time to time, upon written demand
by such Lender
(with a copy to the Administrative Agent), accompanied by the
notice referred to
in the last sentence of this clause (c), the Borrower agrees,
subject to the
provisions of Section 13.18 (to the extent applicable), to pay
to such Lender
such additional amount or amounts as will compensate such Lender
or such other
corporation for such reduction in the rate of return to such
Lender or such
other corporation. Each Lender, upon determining in good faith
that any
additional amounts will be payable pursuant to this Section
1.10(c), will give
prompt written notice thereof to the Borrower (a copy of which
shall be sent by
such Lender to the Administrative Agent), which notice shall set
forth in
reasonable detail the basis of the calculation of such
additional amounts,
although the failure to give any such notice shall not release
or diminish the
Borrower's obligation to pay additional amounts pursuant to this
Section 1.10(c)
upon the subsequent receipt of such notice. In determining any
additional
amounts owing under this Section 1.10(c), each Lender will act
reasonably and in
good faith and will use averaging and attribution methods which
are reasonable;
PROVIDED that such Lender's reasonable good faith determination
of compensation
owing under this Section 1.10(c) shall, absent manifest error,
be final and
conclusive and binding on all the parties hereto.
1.11 COMPENSATION. The Borrower agrees, subject to the
provisions of
Section 13.18 (to the extent applicable), to compensate each
Lender, promptly
upon its written request (which request shall set forth in
reasonable detail the
basis for requesting such compensation), for all reasonable
losses, expenses and
liabilities (including, without limitation, any loss, expense or
liability
incurred by reason of the liquidation or reemployment of
deposits or other funds
required by such Lender to fund its Eurodollar Loans but
excluding any loss of
anticipated profits) which such Lender may sustain and which
such Lender deems
to be material: (i) if for any reason (other than a default by
such Lender or
any Agent) a Borrowing of, or conversion from or into,
Eurodollar Loans does not
occur on a date specified therefor in a Notice of Borrowing or
Notice of
Conversion/Continuation given by the Borrower (whether or not
withdrawn by the
Borrower or deemed withdrawn pursuant to Section 1.10(a)); (ii)
if any repayment
(including any repayment made pursuant to Section 4.01 or 4.02
or as a result of
an acceleration of the Loans pursuant to Section 10 or as a
result of the
replacement of a Lender pursuant to Section 1.13 or 13.12(b)) or
conversion of
any Eurodollar Loans of the Borrower occurs on a date which is
not the last day
of an Interest Period applicable thereto; (iii) if any
prepayment of any
Eurodollar Loans is not made on any date specified in a notice
of prepayment
given by the Borrower; or (iv) as a consequence of (x) any other
default by the
Borrower to repay its Eurodollar Loans when required by the
terms of this
Agreement or (y) an election made by the Borrower pursuant to
Section 1.10(b).
Each Lender's calculation of the amount of compensation owing
pursuant to this
Section 1.11 shall be made in good faith. A Lender's basis for
requesting
compensation pursuant to this Section 1.11 and a Lender's
calculation of the
amount thereof made in accordance with the requirements of this
Section 1.11,
shall, absent manifest error, be final and conclusive and
binding on all parties
hereto.
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<PAGE>
1.12 CHANGE OF LENDING OFFICE. (a) Each Lender may at any time
or
from time to time designate, by written notice to the
Administrative Agent to
the extent not already reflected on Schedule 13.03, one or more
lending offices
(which, for this purpose, may include Affiliates of the
respective Lender) for
the various Loans made, and Letters of Credit participated in,
by such Lender;
PROVIDED that, for designations made after the Effective Date,
to the extent
such designation shall result in increased costs under Section
1.10, 2.05 or
4.04 in excess of those which would be charged in the absence of
the designation
of a different lending office (including a different Affiliate
of the respective
Lender), then the Borrower shall not be obligated to pay such
excess increased
costs (although the Borrower, in accordance with and pursuant to
the other
provisions of this Agreement, shall be obligated to pay the
costs which would
apply in the absence of such designation and any subsequent
increased costs of
the type described above resulting from changes after the date
of the respective
designation). Each lending office and Affiliate of any Lender
designated as
provided above shall, for all purposes of this Agreement, be
treated in the same
manner as the respective Lender (and shall be entitled to all
indemnities and
similar provisions in respect of its acting as such
hereunder).
(b) Each Lender agrees that, upon the occurrence of any event
giving
rise to the operation of Section 1.10(a)(ii) or (iii), 1.10(c),
2.05 or 4.04
with respect to such Lender, it will, if requested by the
Borrower, use
reasonable efforts (subject to overall policy considerations of
such Lender) to
designate another lending office for any Loans or Letters of
Credit affected by
such event, with the object of avoiding the consequences of the
event giving
rise to the operation of any such Section; PROVIDED that such
designation is
made on such terms that such Lender and its lending office
suffer no economic,
legal or regulatory disadvantage. Nothing in this Section 1.12
shall affect or
postpone any of the obligations of the Borrower or the right of
any Lender
provided in Section 1.10, 2.05 or 4.04 (although each such
Lender shall
nevertheless have an obligation to change its applicable lending
office subject
to the terms set forth in the immediately preceding
sentence).
1.13 REPLACEMENT OF LENDERS. On and after the Term Loan
Commitment
Termination Date, (x) if any Lender becomes a Defaulting Lender,
(y) upon the
occurrence of any event giving rise to the operation of Section
1.10(a)(ii) or
(iii), Section 1.10(c), Section 2.05 or Section 4.04 with
respect to any Lender
which results in such Lender charging to the Borrower increased
costs in a
material amount in excess of those being generally charged by
the other Lenders
or (z) in the case of a refusal by a Lender to consent to a
proposed change,
waiver, discharge or termination with respect to this Agreement
which has been
approved by the Required Lenders as provided in Section
13.12(b), the Borrower
shall have the right, in accordance with Section 13.04(b), if no
Default or
Event of Default then exists or would exist after giving effect
to such
replacement, to replace such Lender (the "REPLACED LENDER") with
one or more
other Eligible Transferee or Transferees, none of whom shall
constitute a
Defaulting Lender at the time of such replacement (collectively,
the
"REPLACEMENT LENDER") and each of which shall be reasonably
acceptable to the
Administrative Agent or, at the option of the Borrower, to
replace only (a) the
Revolving Loan Commitment (and outstandings pursuant thereto) of
the Replaced
Lender with an identical Revolving Loan Commitment provided by
the Replacement
Lender or (b) in the case of a replacement as provided in
Section 13.12(b) where
the consent of the respective Lender is required with respect to
less than all
Tranches of its Loans or Commitments, the Commitments and/or
outstanding Loans
of such Lender in respect of each Tranche where the consent of
such Lender would
otherwise be individually required, with
14
<PAGE>
identical Commitments and/or Loans of the respective Tranche
provided by the
Replacement Lender; PROVIDED that:
(i) at the time of any replacement pursuant to this Section
1.13,
the Replacement Lender shall enter into one or more Assignment
and
Assumption Agreements pursuant to Section 13.04(b) (and with all
fees
payable pursuant to said Section 13.04(b) to be paid by the
Replacement
Lender) pursuant to which the Replacement Lender shall acquire
all of the
Commitments and outstanding Loans (or, in the case of the
replacement of
only (a) the Revolving Loan Commitment, the Revolving Loan
Commitment and
outstanding Revolving Loans and participations in Letter of
Credit
Outstandings and/or (b) the outstanding Term Loans, the
outstanding Term
Loans) of, and in each case (except for the replacement of only
the
outstanding Term Loans of the respective Lender) participations
in Letters
of Credit by, the Replaced Lender and, in connection therewith,
shall pay
to (x) the Replaced Lender in respect thereof an amount equal to
the sum
of (A) an amount equal to the principal of, and all accrued
interest on,
all outstanding Loans (or of the Loans of the respective Tranche
being
replaced) of the Replaced Lender, (B) an amount equal to all
Unpaid
Drawings (unless there are no Unpaid Drawings with respect to
the Tranche
being replaced) that have been funded by (and not reimbursed to)
such
Replaced Lender, together with all then unpaid interest with
respect
thereto at such time and (C) an amount equal to all accrued,
but
theretofore unpaid, Fees owing to the Replaced Lender (but only
with
respect to the relevant Tranche, in the case of the replacement
of less
than all Tranches of Loans then held by the respective Replaced
Lender)
pursuant to Section 3.01, (y) except in the case of the
replacement of
only the outstanding Term Loans of a Replaced Lender, each
Letter of
Credit Issuer an amount equal to such Replaced Lender's RL
Percentage of
any Unpaid Drawing relating to Letters of Credit issued by such
Letter of
Credit Issuer (which at such time remains an Unpaid Drawing) to
the extent
such amount was not theretofore funded by such Replaced Lender
and (z) in
the case of any replacement of Revolving Loan Commitments, the
Swingline
Lender an amount equal to such Replaced Lender's Adjusted RL
Percentage of
any Mandatory Borrowing to the extent such amount was not
theretofore
funded by such Replaced Lender; and
(ii) all obligations of the Borrower then owing to the
Replaced
Lender (other than those (a) specifically described in clause
(i) above in
respect of which the assignment purchase price has been, or
is
concurrently being, paid, but including all amounts, if any,
owing under
Section 1.11 or (b) relating to any Tranche of Loans and/or
Commitments of
the respective Replaced Lender which will remain outstanding
after giving
effect to the respective replacement) shall be paid in full to
such
Replaced Lender concurrently with such replacement.
Upon the execution of the respective Assignment and Assumption
Agreements, the
payment of amounts referred to in clauses (i) and (ii) above,
recordation of the
assignment on the Register by the Administrative Agent pursuant
to Section 13.17
and, if so requested by the Replacement Lender, delivery to the
Replacement
Lender of the appropriate Note or Notes executed by the
Borrower, (x) the
Replacement Lender shall become a Lender hereunder and, unless
the respective
Replaced Lender continues to have outstanding Term Loans and/or
a Revolving Loan
Commitment hereunder, the Replaced Lender shall cease to
constitute a Lender
hereunder,
15
<PAGE>
except with respect to indemnification provisions under this
Agreement
(including, without limitation, Sections 1.10, 1.11, 2.05, 4.04,
13.01 and
13.06), which shall survive as to such Replaced Lender and (y)
except in the
case of the replacement of only outstanding Term Loans, the
Adjusted RL
Percentages of the Lenders shall be automatically adjusted at
such time to give
effect to such replacement.
SECTION 2. LETTERS OF CREDIT.
2.01 LETTERS OF CREDIT. (a) Subject to and upon the terms
and
conditions herein set forth, the Borrower may request a Letter
of Credit Issuer
at any time and from time to time after the Initial Borrowing
Date and prior to
the third Business Day (or the 30th day in the case of Trade
Letters of Credit)
preceding the Revolving Loan Maturity Date to issue (i) on a
sight basis, (x)
for the account of the Borrower and for the benefit of any
holder (or any
trustee, agent or other similar representative for any such
holders) of L/C
Supportable Indebtedness, irrevocable sight standby letters of
credit in a form
customarily used by such Letter of Credit Issuer or in such
other form as has
been approved by such Letter of Credit Issuer (each such standby
letter of
credit, a "STANDBY LETTER OF CREDIT") in support of such L/C
Supportable
Indebtedness and (y) for the account of the Borrower irrevocable
sight trade
letters of credit in a form customarily used by such Letter of
Credit Issuer or
in such other form as has been approved by such Letter of Credit
Issuer (each
such trade letter of credit, a "TRADE LETTER OF CREDIT") and
(ii) for the
account of the Borrower and for the benefit of any holder (or
any trustee, agent
or other similar representative for any such holder) located
outside the United
States of L/C Supportable Indebtedness, a bank guarantee in a
form customarily
used by such Letter of Credit Issuer or in such other form as
has been approved
by such Letter of Credit Issuer (each such bank guarantee, a
"BANK GUARANTEE"
and each such Standby Letter of Credit, Trade Letter of Credit
and Bank
Guarantee, a "LETTER OF CREDIT" and, collectively, the "LETTERS
OF CREDIT").
(b) Subject to and upon the terms and conditions set forth
herein,
each Letter of Credit Issuer hereby agrees that it will, at any
time and from
time to time after the Initial Borrowing Date and prior to the
third Business
Day (or the 30th day in the case of Trade Letters of Credit)
preceding the
Revolving Loan Maturity Date, following its receipt of the
respective Letter of
Credit Request, issue for the account of the Borrower one or
more Letters of
Credit in accordance with the terms of Section 2.01(a).
Notwithstanding the
foregoing, no Letter of Credit Issuer shall be under any
obligation to issue any
Letter of Credit if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority
or
arbitrator shall purport by its terms to enjoin or restrain such
Letter of
Credit Issuer from issuing such Letter of Credit or any
requirement of law
applicable to such Letter of Credit Issuer or any request or
directive
(whether or not having the force of law) from any governmental
authority
with jurisdiction over such Letter of Credit Issuer shall
prohibit, or
request that such Letter of Credit Issuer refrain from, the
issuance of
letters of credit generally or such Letter of Credit in
particular or
shall impose upon such Letter of Credit Issuer with respect to
such Letter
of Credit any restriction or reserve or capital requirement (for
which
such Letter of Credit Issuer is not otherwise compensated) not
in effect
on the Effective Date, or any unreimbursed loss, cost or expense
which was
not applicable, in effect or known to such Letter of Credit
Issuer as of
the Effective Date and which such Letter of Credit Issuer in
good faith
deems material to it; or
16
<PAGE>
(ii) such Letter of Credit Issuer shall have received written
notice
from the Borrower or the Required Lenders prior to the issuance
of such
Letter of Credit of the type described in clause (vi) of Section
2.01(c)
or the last sentence of Section 2.02(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit shall
be
issued the Stated Amount of which, when added to the Letter of
Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on
the date of, and
prior to the issuance of, the respective Letter of Credit) at
such time, would
exceed either (1) $200,000,000 or (2) when added to the
aggregate principal
amount of all Revolving Loans made by the Non-Defaulting Lenders
and then
outstanding and all Swingline Loans then outstanding, the
Adjusted Total
Revolving Loan Commitment at such time; (ii) (x) each Standby
Letter of Credit
and Bank Guarantee shall have an expiry date occurring not later
than one year
after such Standby Letter of Credit's or Bank Guarantee's date
of issuance,
PROVIDED that any such Standby Letter of Credit or Bank
Guarantee may be
extendable for successive periods of up to one year, but not
beyond the third
Business Day preceding the Revolving Loan Maturity Date, on
terms acceptable to
the Letter of Credit Issuer and (y) each Trade Letter of Credit
shall have an
expiry date occurring not later than 180 days after such Trade
Letter of
Credit's date of issuance; (iii) (x) no Standby Letter of Credit
or Bank
Guarantee shall have an expiry date occurring later than the
third Business Day
preceding the Revolving Loan Maturity Date and (y) no Trade
Letter of Credit
shall have an expiry date occurring later than 30 days prior to
the Revolving
Loan Maturity Date; (iv) each Letter of Credit shall be
denominated in U.S.
Dollars or Euros, PROVIDED that the aggregate Stated Amount of
all Letters of
Credit denominated in Euros shall not exceed $30,000,000; (v)
the Stated Amount
of each Letter of Credit shall not be less than $10,000 (or such
lesser amount
as is acceptable to the applicable Letter of Credit Issuer);
PROVIDED that no
more than ten Letters of Credit with a Stated Amount of less
than $100,000 (or
such greater number as is acceptable to the applicable Letter of
Credit Issuer)
shall be issued and outstanding at any time; and (vi) no Letter
of Credit Issuer
will issue any Letter of Credit after it has received written
notice from the
Borrower or the Required Lenders stating that a Default or an
Event of Default
exists until such time as such Letter of Credit Issuer shall
have received a
written notice of (x) rescission of such notice from the party
or parties
originally delivering the same or (y) a waiver of such Default
or Event of
Default by the Required Lenders.
(d) Notwithstanding the foregoing, in the event a Lender
Default
exists, no Letter of Credit Issuer shall be required to issue
any Letter of
Credit unless the respective Letter of Credit Issuer has entered
into
arrangements satisfactory to it and the Borrower to eliminate
such Letter of
Credit Issuer's risk with respect to the participation in
Letters of Credit of
the Defaulting Lender or Defaulting Lenders, including by cash
collateralizing
such Defaulting Lender's or Defaulting Lenders' RL Percentage of
the Letter of
Credit Outstandings, as the case may be.
2.02 LETTER OF CREDIT REQUESTS. (a) Whenever the Borrower
desires
that a Letter of Credit be issued, the Borrower shall give the
Administrative
Agent and the respective Letter of Credit Issuer written notice
thereof prior to
12:00 Noon (New York time) at least three Business Days (or such
shorter period
as may be acceptable to the respective Letter of Credit Issuer)
prior to the
proposed date of issuance (which shall be a Business Day), which
written notice
shall be in the form of Exhibit C (each, a "LETTER OF CREDIT
REQUEST"). Each
Letter of
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<PAGE>
Credit Request shall include any other documents as such Letter
of Credit Issuer
customarily requires in connection therewith.
(b) The making of each Letter of Credit Request shall be deemed
to
be a representation and warranty by the Borrower that such
Letter of Credit may
be issued in accordance with, and it will not violate the
requirements of,
Section 2.01(c). Unless the respective Letter of Credit Issuer
has received
notice from the Borrower, any Agent or the Required Lenders
before it issues a
Letter of Credit that one or more of the applicable conditions
specified in
Section 5 or 6, as the case may be, are not then satisfied, or
that the issuance
of such Letter of Credit would violate Section 2.01(c), then
such Letter of
Credit Issuer may issue the requested Letter of Credit for the
account of the
Borrower in accordance with such Letter of Credit Issuer's usual
and customary
practice.
2.03 LETTER OF CREDIT PARTICIPATIONS. (a) Immediately upon
the
issuance by a Letter of Credit Issuer of any Letter of Credit,
such Letter of
Credit Issuer shall be deemed to have sold and transferred to
each other RL
Lender, and each such RL Lender (each, a "PARTICIPANT") shall be
deemed
irrevocably and unconditionally to have purchased and received
from such Letter
of Credit Issuer, without recourse or warranty, an undivided
interest and
participation, to the extent of such Participant's Adjusted RL
Percentage, in
such Letter of Credit, each substitute Letter of Credit, each
drawing made
thereunder and the obligations of the Borrower under this
Agreement with respect
thereto (although Letter of Credit Fees shall be payable
directly to the
Administrative Agent for the account of the RL Lenders as
provided in Section
3.01(c) and the Participants shall have no right to receive any
portion of any
Facing Fees with respect to such Letters of Credit) and any
security therefor or
guaranty pertaining thereto. Upon any change in the Revolving
Loan Commitments
or the Adjusted RL Percentages of the RL Lenders pursuant to
Section 1.13 or
13.04(b) or as a result of a Lender Default, it is hereby agreed
that, with
respect to all outstanding Letters of Credit and Unpaid Drawings
with respect
thereto, there shall be an automatic adjustment to the
participations pursuant
to this Section 2.03 to reflect the new Adjusted RL Percentages
of the assigning
and assignee Lender or of all RL Lenders, as the case may
be.
(b) In determining whether to pay under any Letter of Credit,
no
Letter of Credit Issuer shall have any obligation relative to
the Participants
other than to determine that any documents required to be
delivered under such
Letter of Credit have been delivered and that they appear to
substantially
comply on their face with the requirements of such Letter of
Credit. Any action
taken or omitted to be taken by any Letter of Credit Issuer
under or in
connection with any Letter of Credit issued by it if taken or
omitted in the
absence of gross negligence or willful misconduct (as determined
by a court of
competent jurisdiction in a final and non-appealable decision),
shall not create
for such Letter of Credit Issuer any resulting liability.
(c) In the event that any Letter of Credit Issuer makes any
payment
under any Letter of Credit issued by it and the Borrower shall
not have
reimbursed such amount in full to the Letter of Credit Issuer
pursuant to
Section 2.04(a), such Letter of Credit Issuer shall promptly
notify the
Administrative Agent, and the Administrative Agent shall
promptly notify each
Participant of such failure, and each such Participant shall
promptly and
unconditionally pay to the Administrative Agent for the account
of such Letter
of Credit Issuer, the amount of such Participant's Adjusted RL
Percentage of
such payment in U.S. Dollars or Euros, as the case may
18
<PAGE>
be, and in same day funds. If the Administrative Agent so
notifies any
Participant required to fund a payment under a Letter of Credit
prior to 11:00
A.M. (New York time) on any Business Day, such Participant shall
make available
to the Administrative Agent at the Payment Office for the
account of the
respective Letter of Credit Issuer such Participant's Adjusted
RL Percentage of
the amount of such payment on such Business Day in same day
funds (and, to the
extent such notice is given after 11:00 A.M. (New York time) on
any Business
Day, such Participant shall make such payment on the immediately
following
Business Day). If and to the extent such Participant shall not
have so made its
Adjusted RL Percentage of the amount of such payment available
to the
Administrative Agent for the account of the respective Letter of
Credit Issuer,
such Participant agrees to pay to the Administrative Agent for
the account of
such Letter of Credit Issuer, forthwith on demand such amount,
together with
interest thereon, for each day from such date until the date
such amount is paid
to the Administrative Agent for the account of the Letter of
Credit Issuer at
the overnight Federal Funds Rate for the first three days and at
the interest
rate applicable to Revolving Loans maintained as Base Rate Loans
for each day
thereafter. The failure of any Participant to make available to
the
Administrative Agent for the account of the respective Letter of
Credit Issuer
its Adjusted RL Percentage of any payment under any Letter of
Credit issued by
it shall not relieve any other Participant of its obligation
hereunder to make
available to the Administrative Agent for the account of such
Letter of Credit
Issuer its applicable Adjusted RL Percentage of any payment
under any such
Letter of Credit on the date required, as specified above, but
no Participant
shall be responsible for the failure of any other Participant to
make available
to the Administrative Agent for the account of such Letter of
Credit Issuer such
other Participant's Adjusted RL Percentage of any such
payment.
(d) Whenever any Letter of Credit Issuer receives a payment of
a
reimbursement obligation as to which the Administrative Agent
has received for
the account of such Letter of Credit Issuer any payments from
the Participants
pursuant to clause (c) above, such Letter of Credit Issuer shall
pay to the
Administrative Agent and the Administrative Agent shall promptly
pay to each
Participant which has paid its Adjusted RL Percentage thereof,
in U.S. Dollars
or Euros, as the case may be, and in same day funds, an amount
equal to such
Participant's Adjusted RL Percentage of the principal amount
thereof and
interest thereon accruing after the purchase of the respective
participations.
(e) Each Letter of Credit Issuer shall, promptly after each
issuance
of, or amendment or modification to, a Standby Letter of Credit
or Bank
Guarantee issued by it, give the Administrative Agent and the
Borrower written
notice of the issuance of, or amendment or modification to, such
Standby Letter
of Credit, or Bank Guarantee, as the case may be, which notice
shall be
accompanied by a copy of the Standby Letter of Credit or Bank
Guarantee issued
by it and each such amendment or modification thereto. Promptly
upon receipt of
such notice, the Administrative Agent shall notify each
Participant, in writing,
of such issuance, amendment or modification and if any
Participant shall so
request, the Administrative Agent shall furnish said Participant
with a copy of
such Standby Letter of Credit, Bank Guarantee, such amendment or
such
modification, as the case may be.
(f) Each Letter of Credit Issuer shall deliver to the
Administrative
Agent, promptly on the first Business Day of each week, by
facsimile
transmission, the aggregate daily Stated Amount available to be
drawn under the
outstanding Trade Letters of Credit issued by such Letter of
Credit Issuer for
the previous week.
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<PAGE>
(g) The obligations of the Participants to make payments to
the
Administrative Agent for the account of the respective Letter of
Credit Issuer
with respect to Letters of Credit issued by it shall be
irrevocable and not
subject to counterclaim, set-off or other defense or any other
qualification or
exception whatsoever and shall be made in accordance with the
terms and
conditions of this Agreement under all circumstances, including,
without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or
any
of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other
right
which the Borrower or any of its Subsidiaries may have at any
time against
a beneficiary named in a Letter of Credit, any transferee of any
Letter of
Credit (or any Person for whom any such transferee may be
acting), any
Agent, any Letter of Credit Issuer, any Lender, or any other
Person,
whether in connection with this Agreement, any Letter of Credit,
the
transactions contemplated herein or any unrelated transactions
(including
any underlying transaction between the Borrower or any of its
Subsidiaries
and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or other document presented under
the
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient
in any respect or any statement therein being untrue or
inaccurate in any
respect;
(iv) the surrender or impairment of any security for the
performance
or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
2.04 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS. (a) The
Borrower hereby agrees to reimburse each Letter of Credit
Issuer, by making
payment to the Administrative Agent in U.S. Dollars or Euros, as
the case may
be, and in immediately available funds at the Payment Office,
for any payment or
disbursement made by such Letter of Credit Issuer under any
Letter of Credit
issued by it (each such amount so paid or disbursed until
reimbursed, an "UNPAID
DRAWING") on or prior to the third Business Day following the
date of such
payment or disbursement, with interest on the amount so paid or
disbursed by
such Letter of Credit Issuer, to the extent not reimbursed prior
to 2:00 P.M.
(New York time) on the date of such payment or disbursement,
from and including
the date paid or disbursed to but not including the date such
Letter of Credit
Issuer is reimbursed therefor at a rate per annum which shall be
the then
Applicable Margin for Revolving Loans maintained as Base Rate
Loans plus the
Base Rate, each as in effect from time to time (plus an
additional 2% per annum
if not reimbursed by the third Business Day after the date of
the receipt by the
Borrower from such Letter of Credit Issuer of notice of such
payment or
disbursement), such interest also to be payable on demand;
provided, that it is
understood and agreed, however, that the notices referred to
above in this
clause (a) shall not be required to be given if a Default or an
Event of Default
under such Section 10.05 shall have occurred and be continuing,
in which case
the Unpaid Drawings shall be due and payable immediately without
presentment,
demand, protest or notice of any kind (all of which are hereby
waived by the
Borrower) and shall bear interest at a rate per annum which
shall be (x)
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until the third Business Day following the respective drawing,
the Applicable
Margin for Revolving Loans maintained as Base Rate Loans plus
the Base Rate,
each as in effect from time to time, and (y) at all times on and
after the third
Business Day following the respective drawing, the rate per
annum specified in
preceding clause (x) plus 2%. Each Letter of Credit Issuer shall
provide the
Borrower prompt notice of any payment or disbursement made by it
under any
Letter of Credit issued by it, although the failure of, or delay
in, giving any
such notice shall not release or diminish the obligations of the
Borrower under
this Section 2.04(a) or under any other Section of this
Agreement.
(b) The Borrower's obligation under this Section 2.04 to
reimburse
the respective Letter of Credit Issuer with respect to drawings
on Letters of
Credit (including, in each case, interest thereon) shall be
absolute and
unconditional under any and all circumstances and irrespective
of any setoff,
counterclaim or defense to payment which the Borrower or any of
its Subsidiaries
may have or have had against such Letter of Credit Issuer, any
Agent or any
Lender or other Person, including, without limitation, any
defense based upon
the failure of any drawing under a Letter of Credit issued by it
to conform to
the terms of the Letter of Credit or any nonapplication or
misapplication by the
beneficiary of the proceeds of such drawing; PROVIDED, HOWEVER,
that the
Borrower shall not be obligated to reimburse such Letter of
Credit Issuer for
any wrongful payment made by such Letter of Credit Issuer under
a Letter of
Credit issued by it as a result of acts or omissions
constituting willful
misconduct or gross negligence on the part of such Letter of
Credit Issuer;
PROVIDED FURTHER, that any reimbursement made by the Borrower
shall be without
prejudice to any claim it may have against such Letter of Credit
Issuer as a
result of acts or omissions constituting willful misconduct or
gross negligence
on the part of such Letter of Credit Issuer.
2.05 INCREASED COSTS. If after the Effective Date, any Letter
of
Credit Issuer or any Participant determines that the adoption or
effectiveness
of any applicable law, rule or regulation, order, guideline or
request or any
change therein, or any change in the interpretation or
administration thereof by
any Governmental Authority charged with the interpretation or
administration
thereof, or compliance by any Letter of Credit Issuer or any
Participant with
any request or directive (whether or not having the force of
law) by any such
Governmental Authority shall either (i) impose, modify or make
applicable any
reserve, deposit, capital adequacy or similar requirement
against Letters of
Credit issued by such Letter of Credit Issuer or such
Participant's
participation therein, or (ii) impose on any Letter of Credit
Issuer or any
Participant any other conditions directly or indirectly
affecting this
Agreement, any Letter of Credit or such Participant's
participation therein; and
the result of any of the foregoing is to increase the cost to
such Letter of
Credit Issuer or such Participant of issuing, maintaining or
participating in
any Letter of Credit, or to reduce the amount of any sum
received or receivable
by such Letter of Credit Issuer or such Participant hereunder or
reduce the rate
of return on its capital (other than any increased costs or
reduction in the
amount received or receivable resulting from a change in the
rate of taxes or
any similar charges) with respect to Letters of Credit, in each
case by an
amount deemed material by such Letter of Credit Issuer or such
Participant,
then, upon written demand to the Borrower by such Letter of
Credit Issuer or
such Participant (a copy of which notice shall be sent by such
Letter of Credit
Issuer or such Participant to the Administrative Agent),
accompanied by the
certificate described in the last sentence of this Section 2.05,
the Borrower
agrees, subject to the provisions of Section 13.18 (to the
extent applicable),
to pay to such Letter of Credit Issuer or such Participant such
additional
amount or
21
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amounts as will compensate such Letter of Credit Issuer or such
Participant for
such increased cost or reduction. Any Letter of Credit Issuer or
any
Participant, upon determining that any additional amounts will
be payable
pursuant to this Section 2.05, will give prompt written notice
thereof to the
Borrower, which notice shall include a certificate submitted to
the Borrower by
such Letter of Credit Issuer or such Participant, as the case
may be (a copy of
which certificate shall be sent by such Letter of Credit Issuer
or such
Participant to the Administrative Agent), setting forth in
reasonable detail the
basis for the determination of such additional amount or amounts
necessary to
compensate such Letter of Credit Issuer or such Participant as
aforesaid and
such certificate, if delivered in good faith, shall be final and
conclusive and
binding on the Borrower absent manifest error, although the
failure to deliver
any such certificate shall not release or diminish the
Borrower's obligations to
pay additional amounts pursuant to this Section 2.05 upon
subsequent receipt of
such certificate.
SECTION 3. Fees; Commitments.
3.01 FEES. (a) The Borrower shall pay to the Administrative
Agent
for distribution to each Non-Defaulting Lender with a Revolving
Loan Commitment,
a commitment fee (the "RL COMMITMENT FEE") for the period from
the Effective
Date to but not including the Revolving Loan Maturity Date (or
such earlier date
as the Total Revolving Loan Commitment shall have been
terminated), computed at
a rate for each day equal to the Applicable Commitment Fee
Percentage on the
daily average Unutilized Revolving Loan Commitment of such
Non-Defaulting
Lender. Accrued RL Commitment Fees shall be due and payable
quarterly in arrears
on each Quarterly Payment Date and on the Revolving Loan
Maturity Date (or such
earlier date upon which the Total Revolving Loan Commitment is
terminated).
(b) The Borrower shall pay to the Administrative Agent for
distribution to each Non-Defaulting Lender with a Term Loan
Commitment, a
commitment fee (the "TL COMMITMENT FEE") for the period from the
Effective Date
to but not including the Term Loan Commitment Termination Date
(or such earlier
date as the Total Term Loan Commitment shall have been
terminated), computed at
a rate for each day equal to 3/4 of 1% on the daily average Term
Loan Commitment
of such Non-Defaulting Lender. Accrued TL Commitment Fees shall
be due and
payable quarterly in arrears on each Quarterly Payment Date and
on the Term Loan
Commitment Termination Date (or such earlier date upon which the
Total Term Loan
Commitment is terminated).
(c) The Borrower shall pay to the Administrative Agent for PRO
RATA
distribution to each Non-Defaulting Lender with a Revolving Loan
Commitment
(based on its respective Adjusted RL Percentage), a fee in
respect of each
Letter of Credit (the "LETTER OF CREDIT FEE") computed at a rate
per annum equal
to the difference of (i) the Applicable Margin for Revolving
Loans maintained as
Eurodollar Loans then in effect MINUS (ii) the Facing Fee with
respect to such
Letter of Credit on the daily Stated Amount of such Letter of
Credit. Accrued
Letter of Credit Fees shall be due and payable quarterly in
arrears on each
Quarterly Payment Date and upon the first day on or after the
termination of the
Total Revolving Loan Commitment upon which no Letters of Credit
remain
outstanding.
(d) The Borrower shall pay to each Letter of Credit Issuer a fee
in
respect of each Letter of Credit issued by such Letter of Credit
Issuer (the
"FACING FEE") computed at the
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<PAGE>
rate of 1/4 of 1% PER ANNUM on the daily Stated Amount of such
Letter of Credit;
PROVIDED that in no event shall the annual Facing Fee with
respect to each
Letter of Credit be less than $500; it being agreed that (x) on
the date of
issuance of any Letter of Credit and on each anniversary thereof
prior to the
termination of such Letter of Credit, if $500 will exceed the
amount of Facing
Fees that will accrue with respect to such Letter of Credit for
the immediately
succeeding 12-month period, the full $500 shall be payable on
the date of
issuance of such Letter of Credit and on each such anniversary
thereof prior to
the termination of such Letter of Credit and (y) if on the date
of the
termination of any Letter of Credit, $500 actually exceeds the
amount of Facing
Fees paid or payable with respect to such Letter of Credit for
the period
beginning on the date of the issuance thereof (or if the
respective Letter of
Credit has been outstanding for more than one year, the date of
the last
anniversary of the issuance thereof occurring prior to the
termination of such
Letter of Credit) and ending on the date of the termination
thereof, an amount
equal to such excess shall be paid as additional Facing Fees
with respect to
such Letter of Credit on the next date upon which Facing Fees
are payable in
accordance with the immediately succeeding sentence. Except as
provided in the
immediately preceding sentence, accrued Facing Fees shall be due
and payable
quarterly in arrears on each Quarterly Payment Date and upon the
first day on or
after the termination of the Total Revolving Loan Commitment
upon which no
Letters of Credit remain outstanding.
(e) The Borrower shall pay directly to each Letter of Credit
Issuer
upon each issuance of, payment under, and/or amendment of, a
Letter of Credit
issued by such Letter of Credit Issuer such amount as shall at
the time of such
issuance, payment or amendment be the administrative charge
which such Letter of
Credit Issuer is generally charging for issuances of, payments
under or
amendments of, letters of credit issued by it.
(f) The Borrower shall pay to each Agent, for its own account,
such
other fees as may be agreed to in writing from time to time
between the Borrower
and such Agent, when and as due.
(g) All computations of Fees shall be made in accordance
with
Section 13.07(b).
3.02 VOLUNTARY TERMINATION OR REDUCTION OF TOTAL UNUTILIZED
REVOLVING LOAN COMMITMENT. (a) Upon at least three Business
Days' prior notice
to the Administrative Agent at its Notice Office (which notice
the
Administrative Agent shall promptly transmit to each of the
Lenders), the
Borrower shall have the right, without premium or penalty, to
terminate or
partially reduce the Total Unutilized Revolving Loan Commitment;
PROVIDED that
(i) any such termination or partial reduction shall apply to
proportionately and
permanently reduce the Revolving Loan Commitment of each Lender
with such a
Commitment, (ii) any partial reduction pursuant to this Section
3.02(a) shall be
in integral multiples of $1,000,000 and (iii) no reduction to
the Total
Unutilized Revolving Loan Commitment shall be in an amount which
would cause the
Revolving Loan Commitment of any RL Lender to be reduced (as
required by the
preceding clause (i)) by an amount which exceeds the remainder
of (A) the
Unutilized Revolving Loan Commitment of such RL Lender as in
effect immediately
before giving effect to such reduction MINUS (B) such RL
Lender's Adjusted RL
Percentage of the aggregate principal amount of Swingline Loans
then
outstanding.
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<PAGE>
(b) In the event of any refusal by a Lender to consent to
certain
proposed changes, waivers, discharges or terminations with
respect to this
Agreement which have been approved by the Required Lenders as
provided in
Section 13.12(b), the Borrower shall have the right, on or after
the Term Loan
Commitment Termination Date, subject to obtaining the consents
required by
Section 13.12(b), upon five Business Days' prior written notice
to the
Administrative Agent at its Notice Office (which notice the
Administrative Agent
shall promptly transmit to each of the Lenders), to terminate
the entire
Revolving Loan Commitment of such Lender, so long as all Loans,
together with
accrued and unpaid interest, Fees and all other amounts, owing
to such Lender
(including all amounts, if any, owing pursuant to Section 1.11
but excluding
amounts owing in respect of Term Loans maintained by such
Lender, if such Term
Loans are not being repaid pursuant to Section 13.12(b)) are
repaid concurrently
with the effectiveness of such termination (at which time
Schedule 1.01 shall be
deemed modified to reflect such changed amounts) and at such
time, unless the
respective Lender continues to have outstanding Term Loans
hereunder, such
Lender shall no longer constitute a "Lender" for purposes of
this Agreement,
except with respect to indemnifications under this Agreement
(including, without
limitation, Sections 1.10, 1.11, 2.05, 4.04, 13.01 and 13.06),
which shall
survive as to such repaid Lender.
(c) The Borrower shall not have the right to voluntarily
terminate
or partially reduce the Total Term Loan Commitment (or the Term
Loan Commitment
of any Lender).
3.03 MANDATORY REDUCTION OF COMMITMENTS. (a) The Total
Commitment
(and the Term Loan Commitment and Revolving Loan Commitment of
each Lender)
shall terminate in its entirety on March 18, 2005 unless the
Initial Borrowing
Date has occurred on or before such date.
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Term Loan Commitment
(and the Term Loan
Commitment of each Lender) shall (i) be reduced on each date on
which Term Loans
are incurred (after giving effect to the making of Term Loans on
such date) in
an amount equal to the aggregate principal amount of Term Loans
incurred on such
date, (ii) terminate in its entirety (to the extent not
theretofore terminated)
on the Term Loan Commitment Termination Date (after giving
effect to any
incurrence of Term Loans on such date) and (iii) be reduced on
such dates, and
in such amounts, as provided in Section 13.24(f).
(c) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan
Commitment (and the
Revolving Loan Commitment of each RL Lender) shall terminate in
its entirety on
the Revolving Loan Maturity Date.
(d) Each reduction to the Total Revolving Loan Commitment
pursuant
to this Section 3.03 shall be applied proportionately to reduce
the Revolving
Loan Commitment of each RL Lender.
SECTION 4. PAYMENTS.
4.01 VOLUNTARY PREPAYMENTS. The Borrower shall have the right
to
prepay the Loans, and the right to allocate such prepayments to
Term Loans,
Revolving Loans and/or
24
<PAGE>
Swingline Loans as the Borrower elects, in whole or in part,
without premium or
penalty except as otherwise provided in this Agreement, from
time to time on the
following terms and conditions:
(i) the Borrower shall give the Administrative Agent at its
Notice
Office written notice (or telephonic notice promptly confirmed
in writing)
of its intent to prepay the Loans, whether such Loans are Term
Loans,
Revolving Loans or Swingline Loans, the amount of such
prepayment, the
Types of Loans to be repaid and (in the case of Eurodollar
Loans) the
specific Borrowing(s) pursuant to which made, which notice (I)
shall be
given by the Borrower prior to 12:00 Noon (New York time) (x) at
least one
Business Day prior to the date of such prepayment in the case of
Term
Loans and Revolving Loans maintained as Base Rate Loans, (y) at
least
three Business Days prior to the date of such prepayment in the
case of
Eurodollar Loans and (z) on the date of such prepayment in the
case of
Swingline Loans, (II) shall, in the case of prepayments of Term
Loans,
specify the manner in which such prepayment shall be applied to
reduce the
then remaining Scheduled Repayments and (III) shall, except in
the case of
Swingline Loans, promptly be transmitted by the Administrative
Agent to
each of the Lenders;
(ii) each prepayment (other than prepayments in full of (I)
all
outstanding Base Rate Loans or (II) any outstanding Borrowing
of
Eurodollar Loans) shall be in an aggregate principal amount of
at least
(x) $1,000,000, in the case of Eurodollar Loans, (y) $500,000,
in the case
of Revolving Loans and Term Loans maintained as Base Rate Loans
and (z)
$100,000, in the case of Swingline Loans and, in each case, if
greater, in
integral multiples of $100,000, PROVIDED that no partial
prepayment of
Eurodollar Loans made pursuant to a Borrowing shall reduce the
aggregate
principal amount of the Eurodollar Loans outstanding pursuant to
such
Borrowing to an amount less than the Minimum Borrowing Amount
applicable
thereto;
(iii) at the time of any prepayment of Eurodollar Loans pursuant
to
this Section 4.01 on any date other than the last day of the
Interest
Period applicable thereto, the Borrower shall pay the amounts
required
pursuant to Section 1.11;
(iv) except as provided in clause (vi) below, each prepayment
in
respect of any Loans made pursuant to a Borrowing shall be
applied PRO
RATA among such Loans, PROVIDED that at the Borrower's election
in
connection with any prepayment of Revolving Loans pursuant to
this Section
4.01, such prepayment shall not be applied to any Revolving
Loans of a
Defaulting Lender;
(v) each prepayment of principal of Term Loans pursuant to
this
Section 4.01 shall be applied to reduce the then remaining
Scheduled
Repayments in such manner as the Borrower shall designate in the
notice
delivered pursuant to clause (i) of this Section 4.01, PROVIDED
that if
the Borrower fails to make such a designation, each such
prepayment of
Term Loans shall be applied to reduce the then remaining
Scheduled
Repayments on a PRO RATA basis; and
(vi) in the event of any refusal by a Lender to consent to
certain
proposed changes, waivers, discharges or terminations with
respect to this
Agreement which have
25
<PAGE>
been approved by the Required Lenders as provided in Section
13.12(b), the
Borrower may, on or after the Term Loan Commitment Termination
Date, upon
five Business Days' prior written notice to the Administrative
Agent at
its Notice Office (which notice the Administrative Agent shall
promptly
transmit to each of the Lenders), repay all Loans of such
Lender
(including all amounts, if any, owing pursuant to Section 1.11),
together
with accrued and unpaid interest, Fees and all other amounts
then owing to
such Lender (or owing to such Lender with respect to each
Tranche which
gave rise to the need to obtain such Lender's individual
consent) in
accordance with said Section 13.12(b), so long as (A) in the
case of the
repayment of Revolving Loans of any Lender pursuant to this
clause (vi),
the Revolving Loan Commitment of such Lender is terminated
concurrently
with such repayment (at which time Schedule 1.01 shall be deemed
modified
to reflect the changed Revolving Loan Commitments) and (B) the
consents
required by Section 13.12(b) in connection with the repayment
pursuant to
this clause (vi) shall have been obtained.
4.02 MANDATORY REPAYMENTS. (a) (i) If on any date the sum of (A)
the
aggregate outstanding principal amount of Revolving Loans made
by Non-Defaulting
Lenders and Swingline Loans (after giving effect to all other
repayments thereof
on such date) and (B) the Letter of Credit Outstandings on such
date, exceeds
the Adjusted Total Revolving Loan Commitment as then in effect,
the Borrower
shall repay on any such date the principal of Swingline Loans,
and if no
Swingline Loans are or remain outstanding, the principal of
Revolving Loans of
Non-Defaulting Lenders in an aggregate amount equal to such
excess. If, after
giving effect to the prepayment of all outstanding Swingline
Loans and all
outstanding Revolving Loans of Non-Defaulting Lenders, the
aggregate amount of
Letter of Credit Outstandings exceeds the Adjusted Total
Revolving Loan
Commitment as then in effect, the Borrower shall pay to the
Administrative Agent
at the Payment Office on such date an amount in cash and/or Cash
Equivalents
equal to such excess (up to the aggregate amount of Letter of
Credit
Outstandings at such time), and the Administrative Agent shall
hold such payment
as security for the obligations of the Borrower to
Non-Defaulting Lenders
hereunder pursuant to a cash collateral agreement to be entered
into in form and
substance reasonably satisfactory to the Administrative
Agent.
(ii) On any date on which the aggregate outstanding principal
amount
of the Revolving Loans made by any Defaulting Lender exceeds the
Revolving
Loan Commitment of such Defaulting Lender, the Borrower shall
prepay on
such date principal of Revolving Loans of such Defaulting Lender
in an
amount equal to such excess.
(iii) If on any date (including, without limitation, any date
on
which Dollar Equivalents are determined pursuant to Section
13.07(c)), the
Letter of Credit Outstandings with respect to Letters of
Credit
denominated in Euros exceed $31,500,000, the Borrower shall pay
to the
Administrative Agent at the Payment Office on such date an
amount of cash
and/or Cash Equivalents equal to the amount by which such Letter
of Credit
Outstandings exceed $30,000,000, such cash and/or Cash
Equivalents to be
held as security for all obligations of the Borrower to the
Lenders
hereunder in a cash collateral account to be established by
the
Administrative Agent on terms reasonably satisfactory to the
Administrative Agent.
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<PAGE>
(b) In addition to any other mandatory repayments pursuant to
this
Section 4.02, on each date set forth below, the Borrower shall
be required to
repay that principal amount of Term Loans, to the extent then
outstanding, as is
set forth opposite such date (each such repayment, as the same
may be reduced as
provided in Sections 4.01 and 4.02(f), a "SCHEDULED
REPAYMENT"):
SCHEDULED REPAYMENT DATE AMOUNT
------------------------ ------
March 31, 2005 $375,000
June 30, 2005 $375,000
September 30, 2005 $375,000
December 31, 2005 $375,000
March 31, 2006 $375,000
June 30, 2006 $375,000
September 30, 2006 $375,000
December 31, 2006 $375,000
March 31, 2007 $375,000
June 30, 2007 $375,000
September 30, 2007 $375,000
December 31, 2007 $375,000
March 31, 2008 $375,000
June 30, 2008 $375,000
September 30, 2008 $375,000
December 31, 2008 $375,000
March 31, 2009 $375,000
June 30, 2009 $375,000
September 30, 2009 $375,000
December 31, 2009 $375,000
March 31, 2010 $375,000
June 30, 2010 $375,000
September 30, 2010 $375,000
December 31, 2010 $375,000
Term Loan Maturity Date $141,000,000
In the event that, on the Term Loan Commitment Termination Date,
more than
$150,000,000 in aggregate principal amount of Term Loans have
been incurred on
or prior to such date, an amount equal to the remainder of the
aggregate
principal amount of the Term Loans outstanding on the Term Loan
Commitment Date
(after giving effect to all Term Loans incurred on such date)
less $150,000,000
shall be applied to increase the then remaining Scheduled
Repayments on a PRO
RATA basis (based upon the then remaining principal amount of
such Scheduled
Repayments after giving effect to all prior reductions
thereto).
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<PAGE>
(c) In addition to any other mandatory repayments pursuant to
this
Section 4.02, on the next Business Day following each date on or
after the
Effective Date upon which the Borrower or any of its
Subsidiaries receives Net
Asset Disposition Proceeds from any Asset Disposition, an amount
equal to 100%
of the Net Asset Disposition Proceeds from such Asset
Disposition shall be
applied as a mandatory repayment in accordance with the
requirements of Sections
4.02(f) and (g); PROVIDED that there shall be no obligation to
make a mandatory
repayment on such date to the extent that no Default or Event of
Default then
exists and the Borrower delivers a certificate to the
Administrative Agent on or
prior to such date stating that such Net Asset Disposition
Proceeds shall be
used or contractually committed to be used to purchase,
construct or improve
assets used or to be used in the businesses permitted pursuant
to Section 9.01
(including, without limitation (but only to the extent permitted
by Section
9.02), the purchase of the capital stock of a Person engaged in
such businesses)
within 365-days following the date of receipt of such Net Asset
Disposition
Proceeds from such Asset Disposition (which certificate shall
set forth the
estimates of the proceeds to be so expended); PROVIDED FURTHER,
that (i) if all
or any portion of such Net Asset Disposition Proceeds described
in the
immediately preceding proviso are not so used (or contractually
committed to be
used) within such 365 day period, such remaining portion shall
be applied on the
last day of such period as a mandatory repayment as provided
above (without
giving effect to the immediately preceding proviso) and (ii) if
all or any
portion of such Net Asset Disposition Proceeds described in the
immediately
preceding proviso are not so used within such 365-day period
referred to in
clause (i) of this proviso because such amount is contractually
committed to be
used and subsequent to such date such contract is terminated or
expires without
such portion being so used, such remaining portion shall be
applied on the date
of such termination or expiration as a mandatory repayment as
provided above
(without giving effect to the immediately preceding proviso).
Notwithstanding
the foregoing provisions of this Section 4.02(c), so long as no
Default or Event
of Default shall have occurred and be continuing, no mandatory
repayments shall
be required (x) pursuant to the immediately preceding proviso
appearing in this
Section 4.02(c) until the date on which the aggregate Net Asset
Disposition
Proceeds from all Asset Dispositions not reinvested within the
time periods
specified by said proviso equals or exceeds $10,000,000 (at
which time such
entire amount not so reinvested shall be applied as a mandatory
repayment
hereunder), (y) pursuant to this Section 4.02(c) until the date
on which the
aggregate Net Asset Disposition Proceeds received by the
Borrower and its
Subsidiaries from Asset Dispositions exceeds $250,000,000 (and
then only as to
the Net Asset Disposition Proceeds in respect thereof in excess
of $250,000,000)
and (z) with respect to any Asset Disposition for which the
aggregate Net Asset
Disposition Proceeds is equal to or less than $10,000,000.
(d) In addition to any other mandatory repayments pursuant to
this
Section 4.02, on the next Business Day following each date on or
after the
Effective Date on which the Borrower or any of its Subsidiaries
receives any
cash proceeds from any incurrence of Indebtedness (other than
Indebtedness
permitted to be incurred pursuant to Section 9.04 as in effect
on the Effective
Date) by the Borrower or any of its Subsidiaries an amount equal
to 100% of the
Net Cash Proceeds of the respective incurrence of Indebtedness
shall be applied
as a mandatory repayment in accordance with the requirements of
Sections 4.02(f)
and (g). Notwithstanding the foregoing provisions of this
Section 4.02(d), so
long as no Default or Event of Default shall have occurred and
be continuing, no
mandatory repayment shall be required pursuant to this Section
4.02(d) in the
event that the Senior Secured Leverage Ratio (calculated on a
PRO FORMA Basis
after giving effect to the respective incurrence of
Indebtedness) at the end
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<PAGE>
of the Test Period ended most recently prior to the date of the
respective
incurrence of Indebtedness for which financial statements have
been delivered
pursuant to Section 8.01(a) or (b), as the case may be, is less
than or equal to
1.50:1.00.
(e) In addition to any other mandatory repayments pursuant to
this
Section 4.02, on the next Business Day following each date on or
after the
Effective Date on which Zeus or any of its Subsidiaries receives
any cash
proceeds from any sale or issuance of any Equity Interests of
(or cash capital
contributions to) Zeus and its Subsidiaries (other than (i)
Equity Interests
issued to, or cash capital contributions from, the Equity
Investors and
Management Participants, (ii) any issuance of ordinary Equity
Interests or
Qualified Preferred Stock, to the extent the proceeds therefrom
are used to
effect Permitted Acquisitions or Capital Expenditures, and (iii)
any issuance of
Equity Interests by, or cash capital contributions to, a
Subsidiary of the
Borrower to, or from, the Borrower or a Wholly-Owned Subsidiary
of the
Borrower), an amount equal to 50% of the Net Cash Proceeds of
the respective
equity issuance or capital contribution shall be applied as a
mandatory
repayment in accordance with the requirements of Sections
4.02(f) and (g).
Notwithstanding the foregoing provisions of this Section
4.02(e), so long as no
Default or Event of Default shall have occurred and be
continuing, no mandatory
repayment shall be required pursuant to this Section 4.02(e) in
the event that
the Senior Secured Leverage Ratio at the end of the Test Period
ended most
recently prior to the date of the respective equity issuance or
capital
contribution for which financial statements have been delivered
pursuant to
Section 8.01(a) or (b), as the case may be, is less than or
equal to 1.50:1.00.
(f) Except as otherwise provided in Section 4.02(i), each
amount
required to be applied pursuant to Sections 4.02(c), (d) and (e)
in accordance
with this Section 4.02(f) shall be applied (i) FIRST, to repay
the outstanding
principal amount of Term Loans and (ii) SECOND, to the extent in
excess of the
amounts required to be applied pursuant to preceding subclause
(i), to repay the
outstanding principal amount of Revolving Loans (without a
corresponding
reduction to the Total Revolving Loan Commitment). All
repayments of outstanding
Term Loans pursuant to Section 4.02(c), (d) or (e) shall be
applied (i) first,
to reduce in direct order of maturity the Scheduled Repayments
which are due and
payable within twelve calendar months from the date of such
payment, and (ii)
second, to the extent in excess of the amounts required to be
applied pursuant
to the preceding clause (i), to reduce the then remaining
Scheduled Repayments
on a PRO RATA basis (based upon the then remaining Scheduled
Repayments after
giving effect to all prior reductions thereto). Notwithstanding
anything to the
contrary contained in this Section 4.02, if Section 13.22 or
Section 13.24
applies to any portion of any Net Asset Disposition Proceeds or
Net Cash
Proceeds, the provisions of such Section 13.22 and/or Section
13.24 shall be
applied prior to application of this Section 4.02.
(g) With respect to each repayment of Loans required by this
Section
4.02, the Borrower may designate the Types of Loans of the
respective Tranche
which are to be repaid and, in the case of Eurodollar Loans, the
specific
Borrowing or Borrowings of the respective Tranche pursuant to
which made,
PROVIDED that: (i) repayments of Eurodollar Loans pursuant to
this Section 4.02
may only be made on the last day of an Interest Period
applicable thereto unless
(x) all Eurodollar Loans of the respective Tranche with Interest
Periods ending
on such date of required repayment and all Base Rate Loans of
the respective
Tranche have been paid in full and/or (y) concurrently with such
repayment, the
Borrower pays all breakage costs and other amounts owing to each
Lender pursuant
to Section 1.11; (ii) if any repayment of Eurodollar
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Loans made pursuant to a single Borrowing shall reduce the
outstanding
Eurodollar Loans made pursuant to such Borrowing to an amount
less than the
Minimum Borrowing Amount applicable thereto, such Borrowing
shall be converted
at the end of the then current Interest Period into a Borrowing
of Base Rate
Loans; and (iii) each repayment of any Tranche of Loans made
pursuant to a
Borrowing shall be applied PRO RATA among such Tranche of Loans.
In the absence
of a designation by the Borrower as described in the preceding
sentence, the
Administrative Agent shall, subject to the above, make such
designation in its
sole discretion with a view, but no obligation, to minimize
breakage costs owing
under Section 1.11. Notwithstanding the foregoing provisions of
this Section
4.02, if at any time the mandatory repayment of Loans pursuant
to this Section
4.02 would result, after giving effect to the procedures set
forth in this
clause (i) above, in the Borrower incurring breakage costs under
Section 1.11 as
a result of Eurodollar Loans being repaid other than on the last
day of an
Interest Period applicable thereto (any such Eurodollar Loans,
"AFFECTED
LOANS"), the Borrower may elect, by written notice to the
Administrative Agent,
to have the provisions of the following sentence be applicable.
At the time any
Affected Loans are otherwise required to be prepaid, the
Borrower may elect to
deposit 100% (or such lesser percentage elected by the Borrower
as not being
repaid) of the principal amounts that otherwise would have been
paid in respect
of the Affected Loans with the Administrative Agent to be held
as security for
the obligations of the Borrower hereunder pursuant to a cash
collateral
agreement to be entered into in form and substance satisfactory
to the
Administrative Agent, with such cash collateral to be released
from such cash
collateral account (and applied to repay the principal amount of
such Eurodollar
Loans) upon each occurrence thereafter of the last day of an
Interest Period
applicable to Eurodollar Loans (or such earlier date or dates as
shall be
requested by the Borrower), with the amount to be so released
and applied on the
last day of each Interest Period (or such earlier date or dates
as shall be
requested by the Borrower) to be the amount of such Eurodollar
Loans to which
such Interest Period applies (or, if less, the amount remaining
in such cash
collateral account).
(h) Notwithstanding anything to the contrary contained elsewhere
in
this Agreement, all then outstanding Loans shall be due and
payable in full on
the respective Maturity Date for such Loans.
(i) Notwithstanding anything to the contrary contained in
this
Section 4.02 or elsewhere in this Agreement (including, without
limitation, in
Section 13.12), but subject to Sections 13.22 and 13.24, the
Borrower shall have
the option, in its sole discretion, to give the Lenders with
outstanding Term
Loans the option to waive their PRO RATA share of a mandatory
repayment of Term
Loans which is to be made pursuant to Sections 4.02(c), (d)
and/or (e) (each
such repayment, a "WAIVABLE MANDATORY REPAYMENT") upon the terms
and provisions
set forth in this Section 4.02(i). If the Borrower elects to
exercise the option
referred to in the immediately preceding sentence, the Borrower
shall give to
the Administrative Agent written notice of its intention to give
the Lenders the
right to waive a Waivable Mandatory Repayment (including in such
notice, the
aggregate amount of such proposed repayment) at least five
Business Days prior
to the date of the proposed repayment, which notice the
Administrative Agent
shall promptly forward to all Lenders with outstanding Term
Loans (indicating in
such notice the amount of such repayment to be applied to each
such Lender's
outstanding Term Loans). The Borrower's offer to permit the
Lenders with
outstanding Term Loans to waive any such Waivable Mandatory
Repayment may apply
to all or part of such repayment, PROVIDED that any offer to
waive part of such
repayment must be made ratably to the Lenders with outstanding
Term Loans on the
basis
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of their outstanding Term Loans. In the event that any such
Lender with
outstanding Term Loans desires to waive its PRO RATA share of
such Lender's
right to receive any such Waivable Mandatory Repayment in whole
or in part, such
Lender shall so advise the Administrative Agent no later than
4:00 P.M. (New
York time) on the date which is two Business Days after the date
of such notice
from the Administrative Agent (and the Administrative Agent
shall promptly
thereafter notify the Borrower thereof), which notice shall also
include the
amount such Lender desires to receive in respect of such
repayment. If any
Lender with outstanding Term Loans does not reply to the
Administrative Agent
within such two Business Day period, such Lender will be deemed
not to have
waived any part of such repayment. If any Lender with
outstanding Term Loans
does not specify an amount it wishes to receive, such Lender
will be deemed to
have accepted 100% of its share of such repayment. In the event
that any such
Lender waives all or part of its share of any such Waivable
Mandatory Repayment,
the Borrower shall retain 100% of the amount so waived by such
Lender.
Notwithstanding anything to the contrary contained above, if one
or more Lenders
with outstanding Term Loans waives its right to receive all or
any part of any
Waivable Mandatory Repayment, but less than all the Lenders with
outstanding
Term Loans waive in full their right to receive 100% of the
total payment
otherwise required with respect to the Term Loans, then of the
amount actually
applied to the repayment of Term Loans of Lenders which have
waived all or any
of part their right to receive 100% of such repayment, such
amount shall be
applied to each then outstanding Borrowing of Term Loans on a
PRO RATA basis (so
that each Lender with outstanding Term Loans shall, after giving
effect to the
application of the respective repayment, maintain the same
percentage (as
determined for such Lender, but not the same percentage as the
other Lenders
with outstanding Term Loans hold and not the same percentage
held by such Lender
prior to repayment) of each Borrowing of Term Loans which
remains outstanding
after giving effect to such application).
4.03 METHOD AND PLACE OF PAYMENT. Except as otherwise
specifically
provided herein, all payments under this Agreement or any Note
shall be made to
the Administrative Agent for the ratable account of the Lender
or Lenders
entitled thereto not later than 12:00 Noon (New York time) on
the date when due
and shall be made in U.S. Dollars in immediately available funds
at the Payment
Office. Any payments under this Agreement or under any Note
which are made later
than 12:00 Noon (New York time) on any Business Day shall be
deemed to have been
made on the next succeeding Business Day. Whenever any payment
to be made
hereunder or under any Note shall be stated to be due on a day
which is not a
Business Day, the due date thereof shall be extended to the next
succeeding
Business Day and, with respect to payments of principal,
interest shall be
payable during such extension at the applicable rate in effect
immediately prior
to such extension.
4.04 NET PAYMENTS. (a) All payments made by the Borrower
hereunder
or under any Note will be made without setoff, counterclaim or
other defense.
All such payments will be made free and clear of, and without
deduction or
withholding for, any present or future taxes, levies, imposts,
duties, fees,
assessments or other charges of whatever nature now or hereafter
imposed with
respect to such payments by any jurisdiction or by any political
subdivision or
taxing authority thereof or therein with respect to such
payments (but
excluding, in the case of each Lender, except as provided in the
second
succeeding sentence, any tax, including any income, branch
profits, franchise or
similar tax, which in each case is imposed on or measured by the
net income, net
profits or capital of such Lender pursuant to the laws of the
jurisdiction in
which such Lender is organized or the jurisdiction in which the
principal office
or applicable
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<PAGE>
lending office of such Lender is located or any political
subdivision or taxing
authority thereof or therein) and all interest, penalties or
similar liabilities
with respect to such nonexcluded taxes, levies, imposts, duties,
fees,
assessments or other charges (all such nonexcluded taxes,
levies, imposts,
duties, fees, assessments or other charges being referred to
collectively as
"TAXES"). If any Taxes are so levied or imposed, the Borrower
agrees to pay the
full amount of such Taxes, and such additional amounts as may be
necessary so
that every payment of all amounts due by the Borrower under this
Agreement or
under any Note, after withholding or deduction for or on account
of any Taxes,
will not be less than the amount provided for herein or in such
Note. If any
amounts are payable in respect of Taxes pursuant to the
preceding sentence (any
such amounts, the "GROSS-UP AMOUNT"), the Borrower agrees to
reimburse each
Lender, upon the written request of such Lender, for the net
amount, if any, of
any taxes such Lender shall determine are incurred by such
Lender that would not
have been incurred in the absence of the payment by the Borrower
of (i) the
Gross-Up Amount or (ii) any amount paid pursuant to this
sentence. The Borrower
will furnish to the Administrative Agent within 45 days after
the date the
payment of any Taxes is due pursuant to applicable law certified
copies of tax
receipts evidencing such payment by the Borrower. The Borrower
agrees to
indemnify and hold harmless each Lender, and reimburse such
Lender upon its
written request, for the amount of any Taxes so levied or
imposed and paid by
such Lender in respect of any payments by or on behalf of the
Borrower.
(b) Each Lender agrees to use reasonable efforts (consistent
with
legal and regulatory restrictions and subject to overall policy
considerations
of such Lender) to file any certificate or document or to
furnish to the
Borrower any information, in each case, as reasonably requested
by the Borrower
that may be necessary to establish any available exemption from,
or reduction in
the amount of, any Taxes; PROVIDED, HOWEVER, that nothing in
this Section
4.04(b) shall require a Lender to disclose any confidential
information
(including, without limitation, its tax returns or its
calculations).
(c) If the Borrower pays any additional amount under this
Section
4.04 with respect to taxes imposed on any payments made to or on
behalf of a
Lender and such Lender determines in its sole discretion that it
has actually
received or realized in connection therewith any refund of tax,
or any reduction
of, or credit against, its tax liabilities (a "TAX BENEFIT"),
such Lender shall
pay to the Borrower an amount that the Lender shall, in its sole
discretion,
determine is equal to the net benefit, after tax, which was
obtained by the
Lender as a consequence of such refund, reduction or credit;
PROVIDED, HOWEVER,
that (i) any Lender may determine, in its sole discretion
consistent with the
policies of such Lender, whether to seek a Tax Benefit and (ii)
nothing in this
Section 4.04(c) shall require the Lender to disclose any
confidential
information to the Borrower (including, without limitation, its
tax returns).
(d) Each Lender shall use reasonable efforts (consistent with
legal
and regulatory restrictions and subject to overall policy
considerations of such
Lender) (i) to file any certificate or document or to furnish
any information as
reasonably requested by the Borrower pursuant to any applicable
treaty, law or
regulation or (ii) to designate a different applicable lending
office of such
Lender, if the making of such filing or the furnishing of such
information or
the designation of such other lending office would avoid the
need for or reduce
the amount of any additional amounts payable by the Borrower and
would not, in
the sole discretion of such Lender, be disadvantageous to such
Lender.
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(e) The provisions of this Section 4.04 are subject to the
provisions of Section 13.18 (to the extent applicable).
SECTION 5. CONDITIONS PRECEDENT TO INITIAL CREDIT EVENTS.
The
obligation of each Lender to make each Loan hereunder, and the
obligation of
each Letter of Credit Issuer to issue each Letter of Credit
hereunder, in each
case on the Initial Borrowing Date, is subject at the time of
the making of such
Loan or the issuance of such Letter of Credit, as the case may
be, to the
satisfaction of the following conditions:
5.01 EXECUTION OF AGREEMENT; NOTES. On or prior to the
Initial
Borrowing Date, (i) the Effective Date shall have occurred and
(ii) there shall
have been delivered to the Administrative Agent for the account
of each Lender
requesting same the appropriate Term Note and/or Revolving Note
and to the
Swingline Lender, if so requested, the Swingline Note, in each
case executed by
the Borrower and in the amount, maturity and as otherwise
provided herein.
5.02 OFFICER'S CERTIFICATE. On the Initial Borrowing Date,
the
Administrative Agent shall have received a certificate dated
such date signed by
an appropriate officer of the Borrower stating that all of the
applicable
conditions set forth in Sections 5.05 through 5.07, inclusive,
and 5.15 (other
than such conditions that are subject to the satisfaction of the
Agents and/or
the Required Lenders), have been satisfied on such date (or
shall, to the extent
permitted therein, be satisfied substantially simultaneously
with the incurrence
of Loans on the Initial Borrowing Date).
5.03 OPINIONS OF COUNSEL. On the Initial Borrowing Date, the
Administrative Agent shall have received opinions, addressed to
each Agent, the
Collateral Agent and each of the Lenders and dated the Initial
Borrowing Date,
from (a) Wachtell, Lipton, Rosen & Katz, special New York
counsel to the Credit
Parties, which opinion shall be substantially in the form of
Exhibit D-1, (b)
Sullivan & Cromwell LLP, special New York counsel to the
Credit Parties, which
opinion shall be substantially in the form of Exhibit D-2, (c)
Appleby Spurling
Hunter, special Bermuda counsel to the Credit Parties, which
opinion shall be
substantially in the form of Exhibit D-3, (d) David Meltzer,
Esq., the General
Counsel to Intelsat Global, which opinion shall be substantially
in the form of
Exhibit D-4, (e) White & Case LLP, special U.K. counsel to
the Administrative
Agent, which opinion shall be substantially in the form of
Exhibit D-5, (f)
Richard, Layton & Finger, PA, special Delaware counsel to
the Credit Parties,
which opinion shall be substantially in the form of Exhibit D-7,
and (g) Akin
Gump Strauss Hauer & Feld LLP, special FCC counsel to the
Credit Parties, which
opinion shall be substantially in the form of Exhibit D-8.
5.04 ORGANIZATIONAL DOCUMENTS. (a) On the Initial Borrowing
Date,
the Administrative Agent shall have received from the Borrower
and each other
Credit Party a certificate, dated the Initial Borrowing Date,
signed by the
chairman, a vice-chairman, the president, the chief executive
officer or any
vice-president (or a person with any similar position) of such
Credit Party, and
attested to by the secretary or any assistant secretary of such
Credit Party, in
the form of Exhibit E with appropriate insertions, together with
copies of the
certificate of incorporation, by-laws or equivalent
organizational documents of
such Credit Party and the resolutions of such Credit Party
referred to in such
certificate and all of the foregoing (including each such
certificate of
incorporation, by-laws or other organizational document) shall
be
33
<PAGE>
reasonably satisfactory to the Agents. It is understood that,
notwithstanding
anything to the contrary contained herein, the conditions set
forth in this
Section 5.04 may occur substantially simultaneously with the
incurrence of Loans
on the Initial Borrowing Date.
(b) On the Initial Borrowing Date, the Administrative Agent
shall
have received all good standing certificates and bring-down
certificates for
each U.S. Credit Party in its jurisdiction of organization and
good standing
certificates for Zeus Merger Two Limited and Zeus Merger One
Limited in Bermuda.
5.05 ADVERSE CHANGE, ETC. On or prior to the Initial Borrowing
Date,
there shall not have occurred any effect, event, change or state
of fact that,
individually or in the aggregate, (i) is materially adverse to
the condition
(financial or otherwise), properties, business or results of
operations of
Holdings and its Subsidiaries taken as a whole, except for any
such effect,
event, change or state of fact resulting from any (x) change in
Law (as defined
in the Acquisition Agreement), GAAP or interpretations thereof
that applies to
Holdings, (y) change in economic, business or financial market
conditions
generally or in the fixed satellite services industry
specifically or (z) items
set forth in Section 2.1(a)(iv)(D) of the Company Disclosure
Letter (except, in
the cases of clauses (x) and (y) above, to the extent such
change has had a
disproportionate effect on Holdings and its Subsidiaries as
compared to other
Persons in the fixed satellite services industry) or (ii) would
prevent, render
illegal, delay beyond the Termination Date or materially impair
the ability of
Holdings to consummate the Amalgamation, the Sub-Amalgamation or
the other
transactions contemplated by the Acquisition Agreement, the
Amalgamation
Agreement or the Sub-Amalgamation Agreement.
5.06 APPROVALS. On the Initial Borrowing Date, all necessary
governmental (domestic and foreign), regulatory and third party
approvals
required under the Acquisition Agreement as a condition
thereunder to closing
the Acquisition shall have been obtained (or waived) and remain
in full force
and effect and evidence thereof shall have been provided to the
Administrative
Agent. No court or other Governmental Entity (as defined in the
Acquisition
Agreement) of competent jurisdiction shall have enacted, issued,
promulgated,
enforced or entered any Law (as defined in the Acquisition
Agreement) (whether
temporary, preliminary or permanent) that is in effect and
restrains, enjoins or
otherwise prohibits consummation of the Amalgamation (including
payment of the
Amalgamation Consideration), the Sub Amalgamation or the other
transactions
contemplated by the Acquisition Agreement, the Amalgamation
Agreement or the Sub
Amalgamation Agreement, including the financing thereof.
5.07 CONSUMMATION OF THE TRANSACTION; ETC. (a) On or prior to
the
Initial Borrowing Date, the Administrative Agent shall have
received true and
correct copies of all Acquisition Documents, all Equity
Financing Documents and
all Senior Note Documents (including the form of Senior Note but
excluding each
individual Senior Note) (certified as such by an appropriate
officer of the
Borrower), all of which Documents shall be in full force and
effect.
(b) On or prior to the Initial Borrowing Date, the Acquisition
shall
have been consummated in accordance with the Acquisition
Agreement and no
provision or condition of the Acquisition Agreement shall have
been amended,
waived, supplemented or otherwise modified in a manner that is
material and
adverse to the Administrative Agent or the Lenders
34
<PAGE>
without the prior written consent of the Administrative Agent
(which consent
shall not be unreasonably withheld or delayed).
(c) On or prior to the Initial Borrowing Date, (i) Zeus shall
have
received cash from the Equity Investors and Management
Participants in an
aggregate amount of at least $515,000,000 (the "EQUITY
FINANCING") and (ii) Zeus
shall have used the entire amount of such gross cash proceeds to
make payments
owing in connection with the Transaction. All terms and
conditions (and the
documentation) in connection with the Equity Financing shall be
reasonably
satisfactory to the Administrative Agent. The Equity Financing
shall have been
consummated in all material respects in accordance with the
terms and conditions
of the Equity Financing Documents and all applicable laws.
(d) On or prior to the Initial Borrowing Date, (i) Zeus Merger
Two
Limited shall have received cash proceeds of at least
$2,550,000,000 (calculated
before underwriting fees, original issue discount and expenses)
from the
issuance of (x) $875,000,000 face amount of the 8 1/4% Senior
Notes, (y)
$675,000,000 face amount of the 8 5/8% Senior Notes, and (z)
$1,000,000,000 face
amount of the Floating Rate Notes and (ii) Zeus Merger Two
Limited shall have
used the entire amount of such proceeds to make payments owing
in connection
with the Transaction prior to (or contemporaneously with)
utilizing any proceeds
of Loans for such purpose. All terms and conditions (and the
documentation) in
connection with the Senior Notes (including, without limitation,
amortization,
maturities, interest rate, covenants, defaults, remedies,
sinking fund
provisions, pay-in-kind provisions and other terms) shall be
reasonably
satisfactory to the Administrative Agent and all conditions
precedent to the
issuance of the Senior Notes as set forth in the respective
Senior Note
Documents shall have been satisfied (and not waived without the
prior written
consent of the Administrative Agent) to the reasonable
satisfaction of the
Administrative Agent. The issuance of the Senior Notes shall
have been
consummated in all material respects in accordance with the
terms and conditions
of the Senior Note Documents and all applicable laws.
(e) On the Initial Borrowing Date (prior to giving effect to
the
Transaction), Intelsat, Ltd. and/or its Subsidiaries, on a
consolidated basis,
shall have at least $23,000,000 of cash on hand.
(f) On or prior to the Initial Borrowing Date and concurrently
with
the incurrence of Loans on such date, all outstanding
Indebtedness under the
Existing Credit Agreement shall have been repaid in full,
together with all fees
and other amounts owing thereon and all commitments under the
Existing Credit
Agreement shall have been terminated (the "REFINANCING").
(g) On the Initial Borrowing Date and after giving effect to
each
component of the Transaction to be consummated on the Initial
Borrowing Date,
Zeus and its Subsidiaries shall have no material Indebtedness
for borrowed money
or equity interests outstanding other than (i) the Loans and the
Guaranties,
(ii) the Senior Notes and the guaranties in respect thereof,
(iii) the Holdings
Existing Senior Notes, (iv) guarantees in respect of the
Eurobond 8 5/8% Notes,
(v) the Equity Interests held directly or indirectly by the
Equity Investors and
Management Participants (other than equity held by third parties
in WildBlue
Communications, Inc., Galaxy Satellite Broadcasting Ltd. and
Galaxy Satellite TV
Holdings Ltd.), (vi) Capital Leases in an
35
<PAGE>
aggregate imputed principal amount not to exceed $37,000,000,
and (vii) other
Indebtedness in an aggregate amount not to exceed $35,000,000
existing on the
Initial Borrowing Date and listed on Schedule 5.07 (with the
Indebtedness
described in sub-clauses (iii), (iv), (vi) and (vii) being
herein called the
"EXISTING INDEBTEDNESS"). On and as of the Initial Borrowing
Date, all of the
Existing Indebtedness shall remain outstanding after giving
effect to the
Transaction and the other transactions contemplated hereby
without any default
or event of default existing thereunder or arising as a result
of the
Transaction and the other transactions contemplated hereby.
(h) The Administrative Agent shall have received evidence in
form,
scope and substance reasonably satisfactory to it that the
matters set forth in
this Section 5.07 have been or shall be satisfied on the Initial
Borrowing Date;
it being understood that, notwithstanding anything to the
contrary, the
conditions set forth in paragraphs (b), (c)(ii), (d), (e), (f)
and (g) may occur
substantially simultaneously with the incurrence of Loans on the
Initial
Borrowing Date.
5.08 PLEDGE AGREEMENTS. (a) Prior to or substantially
simultaneously
with the incurrence of the Loans on the Initial Borrowing Date,
Holdings shall
have duly authorized, executed and delivered the Charge Over
Shares
substantially in the form of Exhibit F-1 (as amended, modified,
restated and/or
supplemented from time to time, the "HOLDINGS PLEDGE AGREEMENT")
and shall have
delivered to the Collateral Agent, as Collateral Agent
thereunder, all of the
certificated Pledge Agreement Collateral, if any, referred to
therein and then
owned by Holdings, together with (x) executed and undated
transfer powers in the
case of certificated Equity Interests constituting Pledge
Agreement Collateral,
and (y) all other items required to be delivered pursuant to
Clause 3 thereof,
and the Holdings Pledge Agreement shall be in full force and
effect.
(b) Prior to or substantially simultaneously with the incurrence
of
the Loans on the Initial Borrowing Date, the Borrower and each
Subsidiary
Guarantor shall have duly authorized, executed and delivered the
U.S. Pledge
Agreement substantially in the form of Exhibit F-2 (as amended,
modified,
restated and/or supplemented from time to time, the "U.S. PLEDGE
AGREEMENT") and
shall have delivered to the Collateral Agent, as Pledgee
thereunder, all of the
certificated Pledge Agreement Collateral, if any, referred to
therein and then
owned by such Credit Party, (x) endorsed in blank in the case of
promissory
notes constituting Pledge Agreement Collateral and (y) together
with executed
and undated transfer powers in the case of certificated Equity
Interests
constituting Pledge Agreement Collateral, and the U.S. Pledge
Agreement shall be
in full force and effect.
(c) Prior to or substantially simultaneously with the incurrence
of
the Loans on the Initial Borrowing Date, the Borrower shall have
duly
authorized, executed and delivered the Equitable Charge Over
Shares
substantially in the form of Exhibit F-3 (as amended, modified,
restated and/or
supplemented from time to time, the "U.K. PLEDGE AGREEMENT") and
shall have
delivered to the Collateral Agent all share certificates and
other documents of
title relating to the Initially Charged Shares (as defined in
the U.K. Pledge
agreement), together with stock transfer forms in respect of the
Initially
Charged Shares duly executed in blank by or on behalf of the
Borrower, and the
U.K. Pledge Agreement shall be in full force and effect.
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5.09 SECURITY AGREEMENTS. (a) Prior to or substantially
simultaneously with the incurrence of the Loans on the Initial
Borrowing Date,
each of Holdings and the Borrower shall have duly authorized,
executed and
delivered the Deed of Debenture substantially in the form of
Exhibit G-1 (as
amended, modified, restated and/or supplemented from time to
time, the
"HOLDINGS/BORROWER SECURITY AGREEMENT") covering all of
Holdings' and the
Borrower's present and future Security Agreement Collateral
referred to therein,
together with an executed copy of registration Form 9
(appropriately completed)
for filing with the Registrar of Charges in Bermuda, together
with all
attachments necessary or, in the reasonable opinion of the
Collateral Agent,
desirable to perfect the security interests purported to be
created by the
Holdings/Borrower Security Agreement; and the Holdings/Borrower
Security
Agreement shall be in full force and effect.
(b) Prior to or substantially simultaneously with the incurrence
of
the Loans on the Initial Borrowing Date, each Subsidiary
Guarantor (other than
Intelsat Global Sales & Marketing Ltd.) shall have duly
authorized, executed and
delivered the U.S. Security Agreement substantially in the form
of Exhibit G-2
(as amended, modified, restated and/or supplemented from time to
time, the "U.S.
SECURITY AGREEMENT") covering all of such Subsidiary Guarantor's
present and
future Security Agreement Collateral referred to therein,
together with:
(i) copies of financing statements (Form UCC-1) in appropriate
form
for filing under the UCC of each jurisdiction as may be
necessary or, in
the reasonable opinion of the Collateral Agent, desirable to
perfect the
security interests purported to be created by the U.S. Security
Agreement;
and
(ii) certified copies of Requests for Information or Copies
(Form
UCC-11), or equivalent reports, each of a recent date listing
all
effective financing statements that name any such Subsidiary
Guarantor as
debtor and that are filed in the jurisdictions referred to in
clause (i)
above, in each case together with copies of such financing
statements
(none of which shall cover the Collateral except (A) those with
respect to
which appropriate termination statements fully authorized for
filing have
been delivered to the Administrative Agent and (B) to the
extent
evidencing Permitted Liens);
and the U.S. Security Agreement shall be in full force and
effect.
(c) Prior to or substantially simultaneously with the incurrence
of
the Loans on the Initial Borrowing Date, Intelsat Global Sales
& Marketing Ltd.
shall have duly authorized, executed and delivered the Debenture
substantially
in the form of Exhibit G-3 (as amended, modified, restated
and/or supplemented
from time to time, the "U.K. SECURITY AGREEMENT") covering all
of Intelsat
Global Sales & Marketing Ltd.'s present and future Secured
Assets referred to
therein, and the U.K. Security Agreement shall be in full force
and effect.
5.10 INITIAL SUBSIDIARIES GUARANTY. Prior to or
substantially
simultaneously with the incurrence of the Loans on the Initial
Borrowing Date,
each Material Subsidiary of the Borrower (which Material
Subsidiaries are
listed, for reference purposes, on Schedule 5.10) shall have
duly authorized,
executed and delivered the Initial Subsidiaries Guaranty
substantially in the
form of Exhibit H (as amended, modified, restated and/or
supplemented from time
to time, the "INITIAL SUBSIDIARIES GUARANTY"), guaranteeing all
of the
obligations of the Borrower, subject
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to any limitations provided therein and as more fully provided
therein, and the
Initial Subsidiaries Guaranty shall be in full force and
effect.
5.11 CONSENT LETTER. Prior to or substantially simultaneously
with
the incurrence of the Loans on the Initial Borrowing Date, the
Administrative
Agent shall have received a letter from CT Corporation System,
presently located
at 111 Eighth Avenue, New York, New York, 10011, substantially
in the form of
Exhibit K, indicating its consent to its appointment by each
Credit Party as its
agent to receive service of process as specified in Section
13.08 or the Initial
Subsidiaries Guaranty.
5.12 SOLVENCY CERTIFICATE; INSURANCE CERTIFICATES. Prior to
or
substantially simultaneously with the incurrence of the Loans on
the Initial
Borrowing Date, the Administrative Agent shall have
received:
(a) a solvency certificate in the form of Exhibit J from the
Chief
Financial Officer, dated the Initial Borrowing Date; and
(b) evidence of insurance complying with the requirements of
Section
8.03.
5.13 PROJECTIONS. On or prior to the Initial Borrowing Date,
there
shall have been delivered to the Administrative Agent detailed
projected
consolidated financial statements of Holdings and its
Subsidiaries for the five
fiscal years ended after the Initial Borrowing Date (the
"PROJECTIONS"), which
Projections (x) shall reflect the forecasted consolidated
financial conditions
and income and expenses of the Parent and its Subsidiaries after
giving effect
to the Transaction and the related financing thereof and the
other transactions
contemplated hereby and (y) shall be reasonably satisfactory in
form to the
Administrative Agent.
5.14 PAYMENT OF FEES. On the Initial Borrowing Date, all costs,
fees
and expenses, and all other compensation due to the Agents or
the Lenders
(including, without limitation, legal fees and expenses),
invoiced at least one
Business Day prior to the Initial Borrowing Date, shall have
been paid to the
extent due.
5.15 NO DEFAULT; REPRESENTATIONS AND WARRANTIES. On the
Initial
Borrowing Date, after giving effect to the Transaction, (i)
there shall exist no
Default or Event of Default (other than pursuant to Section
10.02) and (ii) the
representations and warranties contained in Sections 7.02, 7.03
(subject to the
same qualifications as contained in Section 2.1(d) of the
Acquisition Agreement,
to the extent applicable to such representations and
warranties), 7.10(a) and
7.11 shall be true and correct in all material respects (it
being understood and
agreed that any representation or warranty which by its terms is
made as of a
specified date shall be required to be true and correct in all
material respects
only as of such specified date).
The occurrence of the Initial Borrowing Date and the acceptance
of
the benefits or proceeds of each Credit Event occurring thereon
shall constitute
a representation and warranty by the Borrower to each Agent and
each of the
Lenders that all the conditions specified in Section 5 (other
than such
conditions that are subject to the satisfaction of the Agents
and/or the
Required Lenders) exist as of that time or substantially
concurrently therewith.
All of the Notes, certificates, legal opinions and other
documents and papers
referred to in Section 5, unless otherwise specified, shall be
delivered to the
Administrative Agent.
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SECTION 6. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS. The
obligation
of each Lender to make Loans (excluding (x) in the case of
Section 6.01, Loans
made on the Initial Borrowing Date and (y) Mandatory Borrowings
made after the
Initial Borrowing Date, which shall be made as provided in
Section 1.01(d)), and
the obligation of a Letter of Credit Issuer to issue any Letter
of Credit, is
subject, at the time of each such Credit Event (except as
hereinafter
indicated), to the satisfaction of the following conditions:
6.01 NO DEFAULT; REPRESENTATIONS AND WARRANTIES, ETC. At the
time of
each such Credit Event and also after giving effect thereto (i)
there shall
exist no Default or Event of Default, (ii) all representations
and warranties
contained herein or in any other Credit Document shall be true
and correct in
all material respects with the same effect as though such
representations and
warranties had been made on the date of such Credit Event (it
being understood
and agreed that any representation or warranty which by its
terms is made as of
a specified date shall be required to be true and correct in all
material
respects only as of such specified date), and (iii) the Holdings
Senior Debt
Condition shall be satisfied.
6.02 NOTICE OF BORROWING; LETTER OF CREDIT REQUEST (a) Prior to
the
making of each Loan (excluding Swingline Loans and Mandatory
Borrowings), the
Administrative Agent shall have received a Notice of Borrowing
meeting the
requirements of Section 1.03(a). Prior to the making of any
Swingline Loan, the
Swingline Lender shall have received the notice required by
Section 1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the respective Letter of Credit Issuer
shall have
received a Letter of Credit Request meeting the requirements of
Section 2.02(a).
The acceptance of the benefits or proceeds of each Credit
Event
shall constitute a representation and warranty by the Credit
Agreement Parties
to each Agent and each of the Lenders that all the conditions
specified in this
Section 6 and applicable to such Credit Event exist as of that
time.
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SECTION 7. REPRESENTATIONS AND WARRANTIES. In order to induce
the
Lenders to enter into this Agreement and to make the Loans and
issue and/or
participate in the Letters of Credit provided for herein, each
Credit Agreement
Party makes the following representations and warranties to the
Lenders, in each
case after giving effect to the Transaction, all of which shall
survive the
execution and delivery of this Agreement, the making of the
Loans and the
issuance of the Letters of Credit (with the occurrence of the
Initial Borrowing
Date and each Credit Event on and after the Initial Borrowing
Date being deemed
to constitute a representation and warranty by each of the
Credit Agreement
Parties that the matters specified in this Section 7 are true
and correct in all
material respects on and as of the Initial Borrowing Date or the
date of each
such Credit Event, as the case may be, unless stated to relate
to a specific
earlier date in which case such representations and warranties
shall be true and
correct in all material respects as of such earlier date);
PROVIDED that, in the
case of any Credit Event on the Initial Borrowing Date, each
Credit Agreement
Party shall be required only to make the representations and
warranties as
specified in Section 5.15(ii).
7.01 ORGANIZATIONAL STATUS. Each of Holdings and each of its
Subsidiaries (i) is a duly organized and validly existing
Organization in good
standing (or, if applicable in a foreign jurisdiction, has the
equivalent status
under the laws of any jurisdiction of organization outside the
United States)
under the laws of the jurisdiction of its organization, (ii) has
the
Organizational power and authority to own its property and
assets and to
transact the business in which it is engaged and (iii) is duly
qualified and is
authorized to do business and is in good standing in all
jurisdictions where it
is required to be so qualified and where the failure to be so
qualified would
have a Material Adverse Effect.
7.02 COMPANY POWER AND AUTHORITY. Each Credit Party has the
Organizational power and authority to execute, deliver and carry
out the terms
and provisions of the Credit Documents to which it is a party
and has taken all
necessary Organizational action to authorize the execution,
delivery and
performance of the Credit Documents to which it is a party. Each
Credit Party
has duly executed and delivered each Credit Document to which it
is a party and
each such Credit Document constitutes the legal, valid and
binding obligation of
such Credit Party enforceable in accordance with its terms,
except to the extent
that the enforceability thereof may be limited by applicable
bankruptcy,
insolvency, reorganization, moratorium or similar laws generally
affecting
creditors' rights and by equitable principles (regardless of
whether enforcement
is sought in equity or at law).
7.03 NO VIOLATION. Neither the execution, delivery or
performance by
any Credit Party of the Credit Documents to which it is a party,
nor compliance
by any Credit Party with the terms and provisions thereof, nor
the consummation
of the transactions contemplated herein or therein, (i) will
contravene any
material provision of any applicable law, statute, rule or
regulation, or any
order, writ, injunction or decree of any Governmental Authority
(including,
without limitation, the Bermuda Monetary Authority), (ii) will
conflict or be
inconsistent with or result in any breach of, any of the terms,
covenants,
conditions or provisions of, or constitute a default under, or
(other than
pursuant to the Security Documents and the Eurobond 8 1/8%
Notes) result in the
creation or imposition of (or the obligation to create or
impose) any Lien upon
any of the property or assets of such Credit Party or any of its
Subsidiaries
pursuant to the terms of any Existing Indebtedness, the Senior
Notes, any other
material indenture, mortgage, deed of trust, loan agreement,
credit agreement or
any other material agreement or instrument to which
40
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such Credit Party or any of its Subsidiaries is a party or by
which it or any of
its property or assets are bound or to which such Credit Party
and any of its
Subsidiaries may be subject (including, without limitation, the
Existing
Indebtedness Agreements, the Holdings Existing Senior Notes or
the Senior Notes)
or (iii) will violate any provision of the certificate of
incorporation,
by-laws, certificate of partnership, partnership agreement,
certificate of
limited liability company, limited liability company agreement
or equivalent
organizational document, as the case may be, of such Credit
Party or any of its
Subsidiaries.
7.04 LITIGATION. There are no actions, suits, proceedings or
investigations pending or, to the best knowledge of the
Borrower, threatened (i)
with respect to any Credit Document, (ii) with respect to the
Transaction, any
of the transactions contemplated under this Agreement or any
Document, or (iii)
with respect to the Borrower or any of its Subsidiaries (x) that
has had, or
would reasonably be expected to have, a Material Adverse Effect
or (y) that has
had, or would reasonably be expected to have, a material adverse
effect on the
rights or remedies of the Agents or the Lenders or on the
ability of any Credit
Party to perform its respective obligations to the Agents or the
Lenders
hereunder and under the other Credit Documents to which it is,
or will be, a
party. Additionally, there does not exist any judgment, order or
injunction
prohibiting or imposing material adverse conditions upon the
occurrence of any
Credit Event.
7.05 USE OF PROCEEDS; MARGIN REGULATIONS. (a) The proceeds of
the
Term Loans shall be utilized by the Borrower (i) on the Initial
Borrowing Date
solely to (x) finance the Transaction, (y) refinance existing
indebtedness and
(z) pay fees and expenses incurred in connection with the
foregoing and (ii) on
or prior to February 28, 2005 solely to finance the Eurobond 8
1/8% Notes
Refinancing.
(b) The proceeds of all Revolving Loans, Swingline Loans and
Letters
of Credit shall be utilized by the Borrower for the general
corporate and
working capital purposes of the Borrower and its Subsidiaries
(including, but
not limited to, Permitted Acquisitions and purchase price
adjustments in
connection therewith); PROVIDED that no Revolving Loans may be
incurred on the
Initial Borrowing Date.
(c) No part of any Credit Event (or the proceeds thereof) will
be
used to purchase or carry any Margin Stock or to extend credit
for the purpose
of purchasing or carrying any Margin Stock. Neither the making
of any Loan, nor
the use of the proceeds thereof, nor the occurrence of any other
Credit Event,
will violate or be inconsistent with the provisions of
Regulation T, U or X of
the Board of Governors of the Federal Reserve System.
7.06 GOVERNMENTAL APPROVALS. No order, consent, approval,
license,
authorization or validation of, or filing, recording or
registration with, or
exemption by, any Governmental Authority, or any subdivision
thereof, is
required to authorize or is required in connection with the
Transaction,
including, without limitation, (a) the execution, delivery and
performance of
any Credit Document or (b) the legality, validity, binding
effect or
enforceability of any Credit Document; in each case except for
(i) the filing of
Uniform Commercial Code financing statements and equivalent
filings in non-U.S.
jurisdictions, (ii) filings with the United States Patent and
Trademark Office
and the United States Copyright Office and comparable offices in
foreign
jurisdictions and equivalent filings in foreign jurisdictions,
(iii) such
consents,
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approvals, registrations and filings with or by the FCC or any
Governmental
Authority outside of the United States as may be required in
connection with the
Transaction, (iv) such consents, approvals, registrations and
filings with or by
the FCC or any Governmental Authority outside of the United
States as may be
required in connection with the exercise of rights under the
Security Documents
following an Event of Default, (v) such consents, approvals,
registrations, and
filings with or by the FCC or any Governmental Authority outside
of the United
States as may be required in the ordinary course of business of
the Borrower and
its Subsidiaries in connection with the use of proceeds of the
Loans hereunder,
(vi) such licenses, approvals, authorizations and consents as
may be required by
the U.S. Department of State pursuant to the International
Traffic in Arms
Regulations, the U.S. Department of Commerce pursuant to the
Export
Administration Regulations, the U.S. Department of Defense
pursuant to the
National Industrial Security Program issued pursuant to
Executive Order 12829,
the Committee on Foreign Investment in the United States
pursuant to the Exon
Florio amendment to the Defense Production Act and implementing
regulations, and
the U.S. Department of Treasury pursuant to the Foreign Asset
Control
Regulations in connection with the exercise of rights hereunder
and under the
Security Documents following an Event of Default, (vii) such
approvals,
authorizations and consents as may be required by the U.S.
Department of
Justice, the Federal Bureau of Investigation and the U.S.
Department of Homeland
Security regarding potential national security, law enforcement
and public
safety issues, (viii) such as have been made or obtained and are
in full force
and effect and (ix) such other orders, consents, approvals,
registrations and
filings (none of which shall adversely affect the execution,
delivery,
performance, legality, validity, binding effect or
enforceability of any Credit
Document) the failure to obtain or make would not reasonably be
expected to have
a Material Adverse Effect.
7.07 INVESTMENT COMPANY ACT. Neither the Borrower nor any of
its
Subsidiaries is an "investment company" or a company
"controlled" by an
"investment company," within the meaning of the Investment
Company Act of 1940,
as amended.
7.08 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Borrower
nor
any of its Subsidiaries is a "holding company," or a "subsidiary
company" of a
"holding company," or an "affiliate" of a "holding company" or
of a "subsidiary
company" of a "holding company," within the meaning of the
Public Utility
Holding Company Act of 1935, as amended.
7.09 TRUE AND COMPLETE DISCLOSURE. All factual information
(taken as
a whole, as modified or supplemented by other information so
furnished and taken
as a whole) heretofore or contemporaneously furnished by or on
behalf of the
Borrower or any of its Subsidiaries in writing to any Agent or
any Lender
(including, without limitation, all factual information
contained in the
Documents) for purposes of or in connection with this Agreement
or any
transaction contemplated herein or therein is, and all other
such factual
information (taken as a whole, as modified or supplemented by
other information
so furnished and taken as a whole) hereafter furnished by or on
behalf of any
such Persons in writing to any Agent or any Lender will be, true
and accurate in
all material respects on the date as of which such information
is dated or
certified and not incomplete by omitting to state any material
fact necessary to
make such information (taken as a whole, as modified or
supplemented by other
information so furnished and taken as a whole) not misleading at
such time in
light of the circumstances under which such information was
provided (subject,
in the case of any quarterly or interim financial statements, to
normal year-end
audit adjustments, none which shall be material), it being
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understood and agreed that for purposes of this Section 7.09,
such factual
information shall not include the Projections or any PRO FORMA
financial
information.
7.10 FINANCIAL CONDITION; FINANCIAL STATEMENTS. (a) On and as of
the
Initial Borrowing Date, on a PRO FORMA basis after giving effect
to the
Transaction and to all Indebtedness (including the Loans and the
Senior Notes)
incurred, and to be incurred, and Liens created, and to be
created, by each
Credit Party in connection therewith, with respect to the
Borrower (on a
stand-alone basis) and Holdings and its Subsidiaries (on a
consolidated basis),
(x) the sum of the assets, at a fair valuation, of the Borrower
(on a
stand-alone basis) and Holdings and its Subsidiaries (on a
consolidated basis)
will exceed its or their debts, (y) it has or they have not
incurred nor
intended to, nor believes or believe that it or they will, incur
debts beyond
its or their ability to pay such debts as such debts mature and
(z) it or they
will have sufficient capital with which to conduct its or their
business. For
purposes of this Section 7.10, "debt" means any liability on a
claim, and
"claim" means (i) right to payment, whether or not such a right
is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or
(ii) right to an
equitable remedy for breach of performance if such breach gives
rise to a
payment, whether or not such right to an equitable remedy is
reduced to
judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured
or unsecured. The amount of contingent liabilities at any time
shall be computed
as the amount that, in the light of all the facts and
circumstances existing at
such time, represents the amount that can reasonably be expected
to become an
actual or matured liability.
(b) The Historical Financial Statements present fairly in
all
material respects the consolidated financial position of
Intelsat, Ltd. and its
Subsidiaries at the respective dates of said financial
statements and the
results for the respective periods covered thereby. All such
financial
statements have been prepared in accordance with GAAP
consistently applied
except to the extent provided in the notes to said financial
statements and
subject, in the case of the unaudited interim financial
statements referred to
therein, to normal year-end audit adjustments (all of which are
of a recurring
nature and none of which, individually or in the aggregate,
would be material)
and the absence of footnotes.
(c) Since December 31, 2003 (but after giving effect to the
Transaction as if same had occurred prior thereto), nothing has
occurred that
has had or would reasonably be expected to have a Material
Adverse Effect.
(d) Except as fully reflected in the financial statements
described
in Section 7.10(b) (including the related notes thereto) and the
Indebtedness
incurred under this Agreement and in respect of the Eurobond 8
1/8% Notes, as of
the Initial Borrowing Date (and excluding any Loans made, or
Senior Notes
issued, on or prior to such date), (i) there are no liabilities
or obligations
(excluding current obligations incurred in the ordinary course
of business) with
respect to the Borrower or any of its Subsidiaries of any nature
whatsoever
(whether absolute, accrued, contingent or otherwise and whether
or not due)
which, either individually or in the aggregate, would reasonably
be expected to
be material to the Borrower and its Subsidiaries taken as a
whole and (ii) the
Borrower does not know of any basis for the assertion against it
or any of its
Subsidiaries of any such liability or obligation which, either
individually or
in the aggregate, is or would be reasonably likely to have, a
Material Adverse
Effect.
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(e) The Projections have been prepared on a basis consistent
with
the Historical Financial Statements, and have been prepared in
good faith and
are based on reasonable assumptions under the then known facts
and
circumstances. On the Initial Borrowing Date, the management of
the Borrower
believes that the Projections are reasonable and attainable
based upon the then
known facts and circumstances (it being understood that nothing
contained in
this Section 7.10(e) shall constitute a representation that the
results
forecasted in such Projections will in fact be achieved). There
is no fact known
to the Borrower or any of its Subsidiaries which would
reasonably be expected to
have a Material Adverse Effect, which has not been disclosed
herein or in such
other documents, certificates and statements furnished to the
Lenders for use in
connection with the transactions contemplated hereby.
7.11 SECURITY INTERESTS. On and after the Initial Borrowing
Date,
each of the Security Documents, subject to any exceptions,
conditions and
qualifications expressly set forth in such Security Document,
creates (or after
the execution and delivery thereof and the filings, recordings
and similar acts
required thereby are made will create), as security for the
Secured Obligations,
a valid and enforceable perfected security interest in and Lien
on all of the
Collateral subject thereto, superior to and prior to the rights
of all third
Persons, and subject to no other Liens (except that (i) the
Security Agreement
Collateral may be subject to Permitted Liens relating thereto,
(ii) the Pledge
Agreement Collateral may be subject to the Liens described in
clauses (a) and
(e) of Section 9.03 and (iii) in the case of any Security
Agreement Collateral
acquired after the Initial Borrowing Date, the foregoing
representation as to
the perfection, superiority and priority of the security
interest in such
after-acquired Security Agreement Collateral, shall not be made
hereunder until
the time limit (if any) specified in the respective Security
Agreement for the
perfection of such Security Agreement Collateral has lapsed and
shall be subject
to any exceptions, conditions and qualifications expressly set
forth in such
Security Agreement), in favor of the Collateral Agent for the
benefit of the
Secured Creditors. No filings or recordings are required in
order to perfect
and/or render enforceable as against third parties the security
interests
created under any Security Agreement in respect of Security
Agreement Collateral
except for filings or recordings required by any such Security
Agreement, which
filings and recordings have been made as, at the time and to the
extent,
required by such Security Agreement to have been made by any
Credit Party).
7.12 COMPLIANCE WITH ERISA. (a) Part A of Schedule 7.12 sets
forth
each Plan and each Multiemployer Plan; except as set forth in
Part B of Schedule
7.12, each Plan (and each related trust, insurance contract or
fund) is in
substantial compliance with its terms and with all applicable
laws, including
without limitation ERISA and the Code; except as set forth in
Part C of Schedule
7.12, each Plan (and each related trust, if any) which is
intended to be
qualified under Section 401(a) of the Code has received a
determination letter
from the Internal Revenue Service to the effect that it meets
the requirements
of Sections 401(a) and 501(a) of the Code or the Borrower has
applied for a
determination letter within the appropriate timeframe; using
actuarial
assumptions and computation methods consistent with Part 1 of
subtitle E of
Title IV of ERISA, the aggregate liabilities of the Borrower and
its
Subsidiaries and its ERISA Affiliates to all Multiemployer Plans
in the event of
a complete withdrawal therefrom, as of the close of the most
recent fiscal year
of each such Multiemployer Plan ended prior to the date of the
most recent
Credit Event, would not exceed an amount that would reasonably
be expected to
have a Material Adverse Effect; no lien imposed under the Code
or ERISA on the
assets of the Borrower or any Subsidiary of the Borrower or any
ERISA Affiliate
exists or is likely to arise on
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account of any Plan or Multiemployer Plan; no ERISA Event has
occurred or is
reasonably expected to occur that, when taken together with all
other such ERISA
Events for which liability is reasonably expected to occur,
would reasonably be
expected to result in a Material Adverse Effect; and the present
value of all
accumulated benefit obligations under each Plan (based on the
assumptions used
for purposes of Statement of Financial Accounting Standards No.
87) did not, as
of the date of the most recent financial statements reflecting
such amounts,
exceed by more than $100,000,000 the Fair Market Value of the
assets of such
Plan, and the present value of all accumulated benefit
obligations of all
underfunded Plans (based on the assumptions used for purposes of
Statement of
Financial Accounting Standards No. 87) did not, as of the date
of the most
recent financial statements reflecting such amounts, exceed by
more than
$110,000,000 the Fair Market Value of the assets of all such
underfunded Plans.
(b) Each Foreign Pension Plan has been maintained in
substantial
compliance with its terms and with the requirements of any and
all applicable
laws, statutes, rules, regulations and orders and has been
maintained, where
required, in good standing with applicable regulatory
authorities. Neither the
Borrower nor any of its Subsidiaries has incurred any liability
in connection
with the termination of or withdrawal from any Foreign Pension
Plan that has not
been accrued or otherwise properly reserved on the Borrower's or
such
Subsidiary's balance sheet. With respect to each Foreign Pension
Plan that is
required by applicable local law or by its terms to be funded
through a separate
funding vehicle, the present value of the accrued benefit
liabilities (whether
or not vested) under each such Foreign Pension Plan, determined
as of the latest
valuation date for such Foreign Pension Plan on the basis of
actuarial
assumptions, each of which is reasonable, did not exceed the
current value of
the assets of such Foreign Pension Plan allocable to such
benefit liabilities by
an amount which, when added to the aggregate amount of the
accrued benefit
liabilities with respect to all other Foreign Pension Plans,
would reasonably be
expected to have a Material Adverse Effect.
7.13 SATELLITE LICENSES, ETC. As of the Initial Borrowing
Date,
Schedule 7.13 accurately and completely lists for each owned
Satellite (except
any Satellite that has been decommissioned or that has suffered
an actual or
constructive total loss) (a) all current space station licenses
or
authorizations (including the placement of a Satellite on the
FCC's "Permitted
Space Station List") for operation of Satellites with C-band or
Ku-band
transponders issued by the FCC to the Borrower or any of its
Subsidiaries (other
than licenses or authorizations that are no longer in effect,
Section 214 common
carrier authorizations or licenses and authorizations or
licenses relating to
the operation of ground facilities, including private land
mobile, experimental
earth station and TT&C Earth Station licenses ) and (b) all
current licenses and
other approvals, orders or authorizations issued or granted by
any Governmental
Authority outside of the United States to the Borrower or any of
its
Subsidiaries for operation of any such Satellite (other than
licenses or
authorizations that are no longer in effect, authorizations,
licenses or
concessions relating to landing rights or market access, common
carrier
authorizations or licenses, and authorizations or licenses
relating to the
operation of ground facilities, including private land mobile,
experimental
earth station and TT&C Earth Station licenses). The FCC
Licenses and the other
licenses, approvals or authorizations listed on Schedule 7.13
with respect to
any owned Satellite (except any Satellite that has been
decommissioned or that
has suffered an actual or constructive total loss) include all
material
authorizations, licenses and permits issued by the FCC or any
other Governmental
Authority to the Borrower or any of its Subsidiaries that are
required or
necessary by the Borrower or any of its Subsidiaries or
Unrestricted
Subsidiaries to
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launch or operate such Satellite, as applicable as of the
Initial Borrowing
Date. Each such license is held in the name of the Borrower or
one of its
Subsidiaries and is validly issued and in full force and effect
as of the
Initial Borrowing Date, and as of the Initial Borrowing Date, to
the best of the
Borrower's knowledge, the Borrower and its Subsidiaries have
fulfilled and
performed in all material respects all of their obligations with
respect thereto
required to be fulfilled or performed and have full power and
authority to
operate thereunder, except such non-compliance as is not
reasonably likely to,
individually or in the aggregate, have a Material Adverse
Effect.
7.14 SUBSIDIARIES. (a) On and as of the Initial Borrowing
Date,
Holdings has no Subsidiaries other than those Subsidiaries
listed on Part A of
Schedule 7.14. Part A of Schedule 7.14 correctly sets forth, as
of the Initial
Borrowing Date, the percentage ownership (direct and indirect)
of Holdings in
each class of capital stock or other equity interests of each of
its
Subsidiaries and also identifies the direct owner thereof. All
outstanding
shares of capital stock of each Subsidiary of the Borrower have
been duly and
validly issued, are fully paid and non-assessable (or the
equivalent under the
laws of the applicable jurisdiction) and have been issued free
of preemptive
rights. No Subsidiary of the Borrower has outstanding any
securities convertible
into or exchangeable for its capital stock or outstanding any
right to subscribe
for or to purchase, or any options or warrants for the purchase
of, or any
agreement providing for the issuance (contingent or otherwise)
of, or any calls,
commitments or claims of any character relating to, its capital
stock or any
stock appreciation or similar rights.
(b) Part B of Schedule 7.14 sets forth, as of the Initial
Borrowing
Date, the exact legal name of each Credit Party, the type of
organization of
each U.S. Credit Party, whether or not such U.S. Credit Party is
a registered
organization (within the meaning of the New York UCC), the
jurisdiction of
organization of such Credit Party, the location (within the
meaning of the New
York UCC) of each such U.S. Credit Party, and the organizational
identification
number (if any) of each such U.S. Credit Party.
7.15 INTELLECTUAL PROPERTY, ETC. Each of the Borrower and each
of
its Subsidiaries owns or has a valid existing license to use all
patents,
trademarks, permits, service marks, trade names, trade secrets,
copyrights,
licenses, franchises and other rights with respect to the
foregoing reasonably
necessary for the conduct of its business, without, to the
knowledge of the
Borrower, any known conflict with the rights of others which, or
the failure to
obtain which, as the case may be, would result in a Material
Adverse Effect.
7.16 COMPLIANCE WITH STATUTES, ETC. Each of the Borrower and
each of
its Subsidiaries is in compliance with all applicable statutes,
regulations,
rules and orders of, and all applicable restrictions imposed by,
all
governmental bodies, domestic or foreign, in respect of the
conduct of its
business and the ownership of its property, except such
non-compliance as is not
reasonably likely to, individually or in the aggregate, have a
Material Adverse
Effect.
7.17 ENVIRONMENTAL MATTERS. Except with respect to any matters
that,
individually or in the aggregate, would not reasonably be
expected to result in
a Material Adverse Effect, neither the Borrower nor any of its
Subsidiaries (i)
has failed to comply with any Environmental Law or to obtain,
maintain or comply
with any permit, license or other approval required under any
Environmental Law,
(ii) has incurred any Environmental Liability, (iii) has
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received written notice of any claim with respect to any
Environmental Liability
or (iv) would reasonably be expected to incur any Environmental
Liability based
on any facts, circumstances or conditions relating to their (or
any of their
predecessors') past or present business or operations.
7.18 PROPERTIES. All Real Property owned by the Borrower or any
of
its Subsidiaries and all material Leaseholds leased by the
Borrower or any of
its Subsidiaries, in each case as of the Initial Borrowing Date,
and the nature
of the interest therein, is correctly set forth in Schedule
7.18. Each of the
Borrower and each of its Subsidiaries has good and marketable
title to, or a
validly subsisting leasehold interest in, all properties owned
or leased by it,
including all Real Property reflected in Schedule 7.18 and in
the Historical
Financial Statements (except such properties sold or otherwise
disposed of in
the ordinary course of business since the dates of the
respective financial
statements referred to therein or in accordance with the terms
of this
Agreement), free and clear of all Liens, other than Permitted
Liens (or, in the
case of Mortgaged Property, Permitted Encumbrances), other than
with respect to
any such Real Property that is not material to the business of
the Borrower and
its Subsidiaries taken as a whole.
7.19 LABOR RELATIONS. Neither the Borrower nor any of its
Subsidiaries is engaged in any unfair labor practice that would
reasonably be
expected to have a Material Adverse Effect. There is (i) no
unfair labor
practice complaint pending against the Borrower or any of its
Subsidiaries or,
to the best knowledge of the Borrower and its Subsidiaries,
threatened against
any of them, before the National Labor Relations Board, and no
grievance or
arbitration proceeding arising out of or under any collective
bargaining
agreement is so pending against the Borrower or any of its
Subsidiaries or, to
the best knowledge of the Borrower and its Subsidiaries,
threatened against any
of them, (ii) no strike, labor dispute, slowdown or stoppage
pending against the
Borrower or any of its Subsidiaries or, to the best knowledge of
the Borrower
and its Subsidiaries, threatened against the Borrower or any of
its Subsidiaries
and (iii) no union representation question existing with respect
to the
employees of the Borrower or any of its Subsidiaries and, to the
best knowledge
of the Borrower and its Subsidiaries, no union organizing
activities are taking
place, except (with respect to any matter specified in clause
(i), (ii) or (iii)
above, either individually or in the aggregate) such as is not
reasonably likely
to have a Material Adverse Effect.
7.20 TAX RETURNS AND PAYMENTS. Each of the Borrower and each of
its
Subsidiaries (i) has timely filed with the appropriate taxing
authority, all
material returns, statements, forms and reports for taxes (the
"RETURNS")
required to be filed by or with respect to the income,
properties or operations
of the Borrower and/or any of its Subsidiaries and such Returns
accurately
reflect in all material respects all liability for taxes of the
Borrower and its
Subsidiaries and (ii) has paid all material taxes and
assessments payable by it
which have become due, except for those contested in good faith
and fully
provided for on the financial statements of the Borrower and its
Subsidiaries in
accordance with GAAP. Each of the Borrower and each of its
Subsidiaries has
provided adequate reserves (in the good faith judgment of the
management of the
Credit Agreement Parties) for the payment of all federal, state
and foreign
income taxes which have not yet become due. There is no material
action, suit,
proceeding, investigation, audit, or claim now pending or, to
the knowledge of
the Borrower, threatened by any authority regarding any taxes
relating to the
Borrower or any of its
47
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Subsidiaries. Neither the Borrower nor any of its Subsidiaries
has entered into
an agreement or waiver or been requested to enter into an
agreement or waiver
extending any statute of limitations relating to the payment or
collection of
taxes of the Borrower or any of its Subsidiaries, or is aware of
any
circumstances that would cause the taxable years or other
taxable periods of the
Borrower or any of its Subsidiaries not to be subject to the
normally applicable
statute of limitations, in each case except to the extent the
liability for
taxes of the Borrower or such Subsidiary giving rise to any
extension of any
such normally applicable statute of limitation is not
material.
7.21 INSURANCE. Set forth on Schedule 7.21 hereto is a true,
correct
and complete summary of all insurance carried by each Credit
Party on and as of
the Initial Borrowing Date, with the amounts insured set forth
therein.
7.22 TT&C EARTH STATION LICENSES, ETC. As of the Initial
Borrowing
Date, to the best of the Borrower's knowledge, Schedule 7.22
accurately and
completely lists for each TT&C Earth Station all current
licenses or
authorizations issued or granted by the FCC or by any
Governmental Authority
outside of the United States to the Borrower or any of its
Subsidiaries. As of
the Initial Borrowing Date, the TT&C Earth Station licenses
and authorizations
listed on Schedule 7.22 include all material authorizations,
licenses and
permits issued by the FCC or any other Governmental Authority
outside of the
United States to the Borrower or any of its Subsidiaries that
are required or
necessary for it to operate such TT&C Earth Station. Each
such license is held
in the name of the Borrower or one of its Subsidiaries and is
validly issued and
in full force and effect as of the Initial Borrowing Date, and
as of the Initial
Borrowing Date, to the best of the Borrower's knowledge, the
Borrower and its
Subsidiaries have fulfilled and performed in all material
respects all of their
obligations with respect thereto and have full power and
authority to operate
thereunder, except such non-compliance as is not reasonably
likely to,
individually or in the aggregate, have a Material Adverse
Effect.
7.23 IN-ORBIT SATELLITES. Schedule 7.23 accurately and
completely
lists as of the Initial Borrowing Date each of the In-Orbit
Satellites owned by
the Borrower and its Subsidiaries on the Initial Borrowing Date,
and sets forth
for each such In-Orbit Satellite the orbital slot of, and number
and frequency
band of the transponders (based on Satellite design capabilities
and measured in
36 megahertz equivalents) on, such In-Orbit Satellite.
7.24 NO IMMUNITY. Each Credit Agreement Party is subject to
civil
and commercial law with respect to its obligations under this
Agreement. The
execution, delivery and performance by the Borrower of this
Agreement constitute
private and commercial acts rather than public or governmental
acts. Neither the
Borrower nor any of its properties or revenues, is entitled to
any right of
immunity in any jurisdiction from suit, court jurisdiction,
judgment, attachment
(whether before or after judgment), set-off or execution of a
judgment or from
any other legal process or remedy relating to the obligations of
the Borrower
under this Agreement.
7.25 PROPER FORM. This Agreement is in proper legal form under
the
law of Bermuda for the enforcement hereof against each Credit
Agreement Party
under such law, and if this Agreement were stated to be governed
by such law, it
would constitute a legal, valid and binding obligations of each
such Credit
Agreement Party under the law of Bermuda, enforceable
48
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in accordance with its terms. All formalities required in
Bermuda for the
validity and enforceability of this Agreement (including any
necessary
registration, recording or filing with any court or other
Governmental Authority
thereof or therein) have been accomplished, and no Taxes or any
stamp or
documentary taxes or any other excise or property taxes, charge
or similar
levies are required to be paid to Bermuda, or any political
subdivision thereof
or therein, and no notarization is required, for the validity
and enforceability
of this Agreement.
7.26 EMPLOYEE BENEFIT PLANS; SHAREHOLDERS' AGREEMENTS;
MANAGEMENT
AGREEMENTS; COLLECTIVE BARGAINING AGREEMENTS; EXISTING
INDEBTEDNESS AGREEMENTS;
TAX ALLOCATION AGREEMENTS. On or prior to the Initial Borrowing
Date, the
Borrower has made available to the Administrative Agent true and
correct copies
of the following documents:
(i) all Plans (and for each Plan that is required to file an
annual
report on Internal Revenue Service Form 5500-series, a copy of
the most
recent such report (including, to the extent required, the
related
financial and actuarial statements), and for each Plan that is
a
"single-employer plan," as defined in Section 4001(a)(15) of
ERISA, the
most recently prepared actuarial valuation therefor, if any) and
any other
"employee benefit plans," as defined in Section 3(3) of ERISA,
and any
other material agreements, plans or arrangements, with or for
the benefit
of current or former employees of Holdings or any of its
Subsidiaries or
any ERISA Affiliate (provided that the foregoing shall apply in
the case
of any Multiemployer Plan, only to the extent that any document
described
herein is in the possession of Holdings or any Subsidiary of
Holdings or
any ERISA Affiliate);
(ii) all agreements (including, without limitation,
shareholders'
agreements, subscription agreements and registration rights
agreements)
entered into by Holdings, the Borrower or any of the
Borrower's
Subsidiaries governing the terms and relative rights of its
capital stock
and any agreements of which Holdings is aware entered into by
shareholders
relating to any such entity with respect to its capital
stock
(collectively, the "SHAREHOLDERS' AGREEMENTS");
(iii) all material agreements in effect with members of the
senior
management of Holdings or any of its Subsidiaries (collectively,
the
"MANAGEMENT AGREEMENTS");
(iv) all collective bargaining agreements in effect applying
or
relating to any employee of Holdings or any of its
Subsidiaries;
(v) all agreements in effect evidencing Existing
Indebtedness
(collectively, the "EXISTING INDEBTEDNESS AGREEMENTS"); and
(vi) any tax sharing or tax allocation agreements in effect
and
entered into by Holdings or any of its Subsidiaries.
SECTION 8. AFFIRMATIVE COVENANTS. Each Credit Agreement Party
hereby
covenants and agrees that as of the Effective Date and
thereafter for so long as
this Agreement is in effect and until the Total Commitment has
terminated, no
Letters of Credit or Notes are outstanding and the Loans and
Unpaid Drawings,
together with interest, Fees and all other
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<PAGE>
Obligations (other than any indemnities described in Section
13.13 which are not
then due and payable) incurred hereunder, are paid in full:
8.01 INFORMATION COVENANTS. Holdings or the Borrower, as the
case
may be, will furnish to the Administrative Agent:
(a) QUARTERLY FINANCIAL STATEMENTS. Within 45 days after the
close
of the first three quarterly accounting periods in each fiscal
year of the
Borrower, (i) the consolidated balance sheet of each of Holdings
and its
Subsidiaries and the Borrower and its Subsidiaries as at the end
of such
quarterly accounting period and the related consolidated
statements of
operations and of cash flows for such quarterly accounting
period and for
the elapsed portion of the fiscal year ended with the last day
of such
quarterly accounting period and the budgeted figures for such
quarterly
period as set forth in the respective budget delivered pursuant
to Section
8.01(c) and (ii) management's discussion and analysis of
significant
operational and financial developments during such quarterly
period, all
of which shall be in reasonable detail and certified by the
Chief
Financial Officer that they fairly present in all material
respects the
financial condition of Holdings and its Subsidiaries or the
Borrower and
its Subsidiaries, as the case may be, as of the dates indicated
and the
results of their operations and changes in their cash flows for
the
periods indicated, subject to normal year-end audit adjustments
and the
absence of footnotes (it being understood and agreed that (i)
the
furnishing by Holdings or the Borrower of its Form 6-K relating
to its
quarterly financial statements or the filing of a Form 10-Q (or
any
successor or comparable forms) with the SEC as at the end of and
for any
fiscal quarter, certified as aforesaid, shall be deemed to
satisfy its
obligations under this paragraph with respect to such quarter
and (ii) if
permitted under applicable rules of the SEC (assuming the
Borrower were an
issuer of public debt), such financial statements of Holdings
shall
satisfy any such requirement of the Borrower). If the Borrower
has
designated any Unrestricted Subsidiaries hereunder, then the
quarterly
financial information required by this Section 8.01(a) shall
include a
reasonably detailed presentation, either on the face of the
financial
statements or in the footnotes thereto, and in management's
discussion and
analysis of operational and financial developments, of the
financial
condition and results of operations of the Borrower and its
Subsidiaries
separate from the financial condition and results of operations
of the
Unrestricted Subsidiaries of the Borrower.
(b) ANNUAL FINANCIAL STATEMENTS. Within 90 days after the close
of
each fiscal year of the Borrower, the consolidated balance sheet
of each
of Holdings and its Subsidiaries and the Borrower and its
Subsidiaries as
at the end of such fiscal year and the related consolidated
statements of
operations and of cash flows for such fiscal year and setting
forth
comparative consolidated figures for the preceding fiscal year
and
comparable budgeted figures for such fiscal year as set forth in
the
respective budget delivered pursuant to Section 8.01(c) and
(except for
such comparable budgeted figures) certified by KPMG LLP or such
other
independent certified public accountants of recognized national
standing
as shall be reasonably acceptable to the Administrative Agent
whose
opinion shall not be qualified as to scope of audit (except with
respect
to Intelsat General Corporation) or as to status of Holdings or
any of its
Subsidiaries as a going concern, in each case to the effect that
such
statements fairly present in all material
50
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respects the financial condition of each of Holdings and its
Subsidiaries
and the Borrower and its Subsidiaries, as the case may be, as of
the dates
indicated and the results of their operations and changes in
financial
position for the periods indicated in conformity with GAAP
applied on a
basis consistent with prior years (it being understood and
agreed that (i)
the filing by Holdings or the Borrower of its Form 20-F or Form
10-K (or
any successor or comparable forms) with the SEC as at the end of
and for
any fiscal year, reported on as aforesaid, shall be deemed to
satisfy its
obligations under the foregoing portion of this paragraph with
respect to
such year and (ii) if permitted under applicable rules of the
SEC
(assuming the Borrower were an issuer of public debt), such
financial
statements of Holdings shall satisfy any such requirement of
the
Borrower), together with a certificate of such accounting firm
stating
that in the course of their annual audit examination, which
audit
examination was conducted in accordance with auditing standards
generally
accepted in the United States, nothing has come to their
attention to
cause them to believe that there has been any failure to comply
with the
terms, covenants, provisions or conditions of the Sections or
subsections
of this Agreement specified in such certificate relating to
accounting
matters (which will include Sections 9.08, 9.09 and 9.10) or, if
such a
failure has come to their attention, providing a statement as to
the
nature thereof. If the Borrower has designated any
Unrestricted
Subsidiaries hereunder, then the annual financial information
required by
this Section 8.01(b) shall include a reasonably detailed
presentation,
either on the face of the financial statements or in the
footnotes
thereto, and in management's discussion and analysis of
operational and
financial developments, of the financial condition and results
of
operations of the Borrower and its Subsidiaries separate from
the
financial condition and results of operations of the
Unrestricted
Subsidiaries of the Borrower.
(c) BUDGETS, ETC. Not more than 60 days after the commencement
of
each fiscal year of the Borrower, a consolidated budget of
Holdings and
its Subsidiaries in reasonable detail for each of the four
fiscal quarters
of such fiscal year, in each case as customarily prepared by
management
for its internal use setting forth in reasonable detail the
principal
assumptions upon which such budgets are based.
(d) OFFICER'S CERTIFICATES. At the time of the delivery of
the
financial statements provided for in Sections 8.01(a) and (b),
a
certificate of the Chief Financial Officer to the effect that,
to the best
of such officer's knowledge, no Default or Event of Default
exists or, if
any Default or Event of Default does exist, specifying the
nature and
extent thereof, which certificate shall set forth (x) the
calculations
required to establish whether the Borrower and its Subsidiaries
were in
compliance with the provisions of Sections 9.06(ix), 9.08, 9.09
and 9.10
as at the end of such fiscal quarter or year, as the case may
be, (y) the
calculation of the Consolidated Interest Coverage Ratio, the
Total
Leverage Ratio and the Senior Secured Leverage Ratio as at the
last day of
the respective fiscal quarter or fiscal year of the Borrower,
and (z) (i)
certify that there have been no changes to any of the Schedules
or Annexes
to the Security Agreements, or any of the Schedules or Annexes
to the
Pledge Agreements or any equivalent schedules or annexes to any
Additional
Security Document, in each case since the Initial Borrowing Date
(or, if
later, the date of the most recent certificate delivered
pursuant to this
Section 8.01(d)), or (ii) to the extent that such information is
no longer
accurate and complete as of such date, list in reasonable detail
all
information necessary to make such Schedules and Annexes
referred
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to in the preceding clause (i) accurate and complete (at which
time such
Schedules and Annexes, as the case may be, shall be deemed
modified to
reflect such information), as the case may be.
(e) NOTICE OF DEFAULT OR LITIGATION. Promptly, and in any
event
within five Business Days after an executive officer of the
Borrower or
any of its Subsidiaries obtains actual knowledge thereof, notice
of (i)
the occurrence of any event that constitutes a Default or an
Event of
Default, which notice shall specify the nature and period of
existence
thereof and what action the Borrower proposes to take with
respect
thereto, and (ii) any litigation or proceeding pending or
threatened in
writing (x) against the Borrower or any of its Subsidiaries
which has had,
or would reasonably be expected to have, a Material Adverse
Effect, (y)
with respect to any material Indebtedness of Holdings or any of
its
Subsidiaries or (z) with respect to any Document.
(f) AUDITORS' REPORTS. Promptly upon receipt thereof, a copy of
each
report or "management letter" submitted to the Borrower or any
of its
Subsidiaries by its independent accountants in connection with
any annual,
interim or special audit made by them of the books of the
Borrower or any
of its Subsidiaries and the management's non-privileged
responses thereto.
(g) ENVIRONMENTAL MATTERS. Promptly after an executive officer
of
the Borrower or any of its Subsidiaries obtains actual knowledge
of any of
the following (but only to the extent that any of the following,
either
individually or in the aggregate, would reasonably be expected
to have a
Material Adverse Effect) written notice of:
(i) any pending or threatened Environmental Claim against
the
Borrower or any of its Subsidiaries or any Real Property owned
or
operated by the Borrower or any of its Subsidiaries;
(ii) any condition or occurrence on any Real Property at any
time owned or operated by the Borrower or any of its
Subsidiaries
that (x) results in noncompliance by the Borrower or any of
its
Subsidiaries with any applicable Environmental Law or (y)
would
reasonably be anticipated to form the basis of an
Environmental
Claim against the Borrower or any of its Subsidiaries or any
such
Real Property;
(iii) any condition or occurrence on any Real Property owned
or operated by the Borrower or any of its Subsidiaries that
would
reasonably be anticipated to cause such Real Property to be
subject
to any restrictions on the ownership, occupancy, use or
transferability by the Borrower or such Subsidiary, as the case
may
be, of its interest in such Real Property under any
Environmental
Law; and
(iv) the taking of any removal or remedial action in
response
to the actual or alleged presence of any Hazardous Material on
any
Real Property owned or operated by the Borrower or any of
its
Subsidiaries.
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All such notices shall describe in reasonable detail the nature
of the claim,
investigation, condition, occurrence or removal or remedial
action and the
Borrower's response or proposed response thereto. In addition,
the Borrower
agrees to provide the Lenders with such reasonably detailed
reports relating to
any of the matters set forth in clauses (i)-(iv) above as may
reasonably be
requested by the Administrative Agent.
(h) NOTICE OF MANDATORY REPAYMENTS. On or prior to the date of
any
mandatory repayment of outstanding Term Loans or Revolving Loans
pursuant
to any of Sections 4.02(c) through (e), inclusive, the Borrower
shall
provide written notice of the amount of the respective repayment
and the
calculation thereof (in reasonable detail).
(i) FCC REPORTS. Promptly upon receipt thereof, copies of any
and
all notices and other communications from the FCC or from any
other
Federal, state or local Governmental Authority or other
Governmental
Authority outside of the United States, with respect to the
Borrower, any
of its Subsidiaries or any Satellite relating to any matter that
could
reasonably be expected to result in a Material Adverse
Effect.
(j) SATELLITE HEALTH REPORT. No less than annually with respect
to
each In-Orbit Satellite that has a net book value exceeding
$50,000,000,
and upon the occurrence of an Event of Default at any time upon
the
reasonable request of the Administrative Agent, (i) with respect
to any
one or more In-Orbit Satellites operated by the Borrower or any
of its
Subsidiaries, a Satellite Health Report and (ii) with respect to
any
In-Orbit Satellite that is operated by any Person other than the
Borrower
or any of its Subsidiaries, any satellite health reports
received by the
Borrower from such Person, it being understood that to the
extent that any
such Satellite Health Report or other satellite health report
contains any
forward looking statements, estimates or projections, such
statements,
estimates or projections are subject to significant
uncertainties and
contingencies, many of which are beyond the Borrower's or any of
its
Subsidiaries' control, and no assurance can be given that such
forward
looking statements, estimates or projections will be realized,
and
PROVIDED that nothing in this clause (j) shall require the
Borrower to
deliver any information to the Administrative Agent or any
Lender to the
extent delivery of such information is restricted by applicable
law or
regulation.
(k) OTHER INFORMATION. Promptly following transmission
thereof,
copies of any filings and registrations with, and reports to,
the SEC by
Holdings or any of its Subsidiaries and copies of all
financial
statements, proxy statements, notices and reports as Holdings or
any of
its Subsidiaries shall send generally to analysts and the
holders of their
capital stock or of the Holdings Existing Senior Notes, Senior
Notes or
any other Indebtedness, in their capacity as such holders (to
the extent
not theretofore delivered to the Lenders pursuant to this
Agreement) and,
with reasonable promptness, such other information or documents
(financial
or otherwise) as any Agent on its own behalf or on behalf of the
Required
Lenders may reasonably request from time to time; provided that
neither
Holdings nor the Borrower shall be required to furnish any such
reports
and other materials to the Administrative Agent to the extent
the same is
available on the web site of Holdings or the Borrower or through
the EDGAR
system.
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8.02 BOOKS, RECORDS AND INSPECTIONS. The Borrower will, and
will
cause each of its Subsidiaries to, keep proper books of record
and account in
which full, true and correct entries in conformity with GAAP and
all
requirements of law shall be made of all dealings and
transactions in relation
to its business and activities. The Borrower will, and will
cause each of its
Subsidiaries to, permit, upon reasonable notice to an Authorized
Officer,
officers and designated representatives of any Agent or the
Required Lenders (in
each case which are not Disqualified Persons) to visit and
inspect under the
guidance of officers of Borrower any of the properties or assets
of the Borrower
and any of its Subsidiaries in whomsoever's possession, and to
examine the books
of account of the Borrower and any of its Subsidiaries and
discuss the affairs,
finances and accounts of the Borrower and of any of its
Subsidiaries with, and
be advised as to the same by, their officers and independent
accountants, all at
such reasonable times and intervals and to such reasonable
extent as such Agent
or the Required Lenders may desire, PROVIDED that so long as no
Default or Event
of Default is then in existence, the Borrower and any Credit
Party shall have
the right to participate in any discussions of the Agents or the
Lenders with
any independent accountants of the Borrower.
8.03 INSURANCE. (a) The Borrower will, and will cause each of
its
Subsidiaries to, obtain, maintain and keep in full force and
effect at all times
(i) with respect to each Satellite procured by the Borrower or
any of its
Subsidiaries for which the risk of loss passes to the Borrower
or such
Subsidiary at or before launch, and for which launch insurance
or commitments
with respect thereto are not in place as of the Initial
Borrowing Date, launch
insurance with respect to each such Satellite covering the
launch of such
Satellite and a period of time thereafter, but only to the
extent, if at all,
and on such terms (including coverage period, exclusions,
limitations on
coverage, co-insurance, deductibles and coverage amount) as is
determined by the
Board of Directors of the Borrower to be in the best interests
of the Borrower
as evidenced by a resolution of the Board of Directors, (ii)
with respect to
each Satellite it currently owns or for which it has risk of
loss (or, if the
entire Satellite is not owned, the portion it owns or for which
it has risk of
loss), other than any Excluded Satellite, In-Orbit Insurance and
(iii) at all
times subsequent to the coverage period of the launch insurance
described in
clause (i) above, if any, or if launch insurance is not
procured, at all times
subsequent to the initial completion of in-orbit testing, in
each case with
respect to each Satellite it then owns or for which it has risk
of loss (or
portion, as applicable), other than any Excluded Satellite,
In-Orbit Insurance;
PROVIDED, HOWEVER, that at any time with respect to a Satellite
that is not an
Excluded Satellite, neither the Borrower nor any of its
Subsidiaries shall be
required to maintain In-Orbit Insurance in excess of 33% of the
aggregate net
book value of all in-orbit Satellites (and portions it owns or
for which it has
risk of loss) insured (it being understood that any Satellite
(or portion, as
applicable) protected by In-Orbit Contingency Protection shall
be deemed to be
insured for a percentage of its net book value as set forth in
the definition of
"In-Orbit Contingency Protection"). In the event that the
expiration and
non-renewal of In-Orbit Insurance for such a Satellite (or
portion, as
applicable) resulting from a claim of loss under such policy
causes a failure to
comply with the proviso in the immediately preceding sentence,
the Borrower and
its Subsidiaries shall be deemed to be in compliance with such
proviso for the
120 days immediately following such expiration or non-renewal,
PROVIDED that the
Borrower or any of its Subsidiaries, as the case may be,
procures such In-Orbit
Insurance or provides such In-Orbit Contingency Protection as
necessary to
comply with such proviso within such 120-day period. In the
event of the
unavailability of any In-Orbit Contingency Protection for any
reason, the
Borrower or any of its Subsidiaries, as the case may be, shall,
subject to the
first proviso above,
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within 120 days of such unavailability, be required to have in
effect In-Orbit
Insurance complying with clause (ii) or (iii) above, as
applicable, with respect
to all Satellites (or portions, as applicable), other than
Excluded Satellites
that the unavailable In-Orbit Contingency Protection was
intended to protect and
for so long as such In-Orbit Contingency Protection is
unavailable, PROVIDED
that the Borrower and its Subsidiaries shall be considered in
compliance with
this insurance covenant for the 120 days immediately following
such
unavailability.
(b) For insurance policies obtained or renewed after the
Initial
Borrowing Date, the insurance policies required by Section
8.03(a) shall:
(i) contain no exclusions other than:
(A) Acceptable Exclusions and such other exclusions or
limitations of coverage as may be applicable to a
substantial
portion of satellites of the same model or relating to
systemic
failures or anomalies as are then customary in the satellite
insurance market; and
(B) such specific exclusions applicable to the performance
of
the Satellite (or portion, as applicable) being insured as
are
reasonably acceptable to the Board of Directors of the Borrower
in
order to obtain insurance for a price that is, and on other
terms
and conditions that are, commercially reasonable; and
(ii) provide coverage for all risks of loss of and damage to
the
Satellite (or portion, as applicable).
(c) The Borrower will, and will cause each of its Subsidiaries
to,
use its reasonable best efforts at all times keep the respective
property of the
Borrower and its Subsidiaries (except (x) real or personal
property leased or
financed through third parties in accordance with this Agreement
and (y)
satellites) insured in favor of the Collateral Agent for the
benefit of the
Secured Creditors, and all policies or certificates with respect
to such
insurance (and any general liability, umbrella liability
coverage and workers'
compensation insurance (to the extent permitted by law)
maintained by, or on
behalf of, the Borrower or any Subsidiary of the Borrower) (i)
shall be endorsed
to the Collateral Agent's reasonable satisfaction for the
benefit of the
Collateral Agent (including, without limitation, by naming the
Collateral Agent
as certificate holder, mortgagee and loss payee with respect to
real property,
certificate holder and loss payee with respect to personal
property, additional
insured with respect to general liability and umbrella liability
coverage and
(to the extent permitted by law) certificate holder with respect
to workers'
compensation insurance), (ii) shall state that such insurance
policies shall not
be cancelled or materially changed without at least 30 days'
prior written
notice thereof by the respective insurer to the Collateral Agent
provided, that
with respect to any launch insurance or In-Orbit Insurance, such
notice is
available, and if available, on such terms as may be available
and (iii) shall,
upon the request of the Collateral Agent, be deposited with the
Collateral Agent
for the benefit of the Secured Creditors.
(d) If the Borrower or any of its Subsidiaries shall fail to
maintain all insurance in accordance with this Section 8.03, or
if the Borrower
or any of its Subsidiaries shall fail to so name the Collateral
Agent for the
benefit of the Secured Creditors as an additional insured,
55
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mortgagee or loss payee, as the case may be, or so deposit all
certificates with
respect thereto, the Administrative Agent and/or the Collateral
Agent shall have
the right (but shall be under no obligation), upon reasonable
prior notice to
the Borrower of its intention to do so, to procure such
insurance on such terms
and against such risks as are required hereby, and the Borrower
agrees to
reimburse the Administrative Agent or the Collateral Agent, as
the case may be,
for any premium paid therefor.
8.04 PAYMENT OF TAXES. The Borrower will pay and discharge, and
will
cause each of its Subsidiaries to pay and discharge, all
material taxes,
assessments and governmental charges or levies imposed upon it
or upon its
income or profits, or upon any material properties belonging to
it, prior to the
date on which penalties attach thereto, and all material lawful
claims for sums
that have become due and payable which, if unpaid, might become
a Lien not
otherwise permitted under Section 9.03(a); PROVIDED that neither
the Borrower
nor any of its Subsidiaries shall be required to pay any such
tax, assessment,
charge, levy or claim which is being contested in good faith and
by proper
proceedings if it has maintained adequate reserves with respect
thereto in
accordance with GAAP.
8.05 CORPORATE FRANCHISES. The Borrower will do, and will cause
each
of its Subsidiaries to do, or cause to be done, all things
necessary to preserve
and keep in full force and effect its existence and its material
rights,
franchises, authority to do business, licenses and patents,
except for rights,
franchises, authority to do business, licenses and patents the
loss of which
(individually or in the aggregate) would not reasonably be
expected to have a
Material Adverse Effect; PROVIDED, HOWEVER, that (a) any
transaction permitted
by Section 9.02 will not constitute a breach of this Section
8.05 and (b) any
failure as it may relate to any FCC License for a Satellite
Under Construction
shall not, in itself, be considered or deemed to result in a
Material Adverse
Effect.
8.06 COMPLIANCE WITH STATUTES; ETC. The Borrower will, and
will
cause each of its Subsidiaries to, comply with all applicable
statutes,
regulations and orders of, and all applicable restrictions
imposed by, all
Governmental Authorities, in respect of the conduct of its
business and the
ownership of its property (including, without limitation, all
FCC Licenses and
all other governmental approvals or authorizations required for
the launch or
operation of Satellites or for the operation of TT&C Earth
Stations), except for
such noncompliances as would not reasonably be expected, either
individually or
in the aggregate, to have a Material Adverse Effect or a
material adverse effect
on the ability of any Credit Party to perform its obligations
under any Credit
Document to which it is a party; PROVIDED that (a) any failure
as it may relate
to any FCC License or other governmental approval or
authorization for a
Satellite Under Construction shall not, in itself, be considered
or deemed to
result in a Material Adverse Effect or a material adverse effect
on any Credit
Party's ability to perform its obligations under any Credit
Document to which it
is a party and (b) where a Person other than the Borrower or a
Subsidiary of the
Borrower has agreed in accordance with customary practices to
perform any such
actions on behalf of the Borrower or any of its Subsidiaries,
the Borrower will,
and will cause its Subsidiaries to, use commercially reasonable
efforts to cause
such Person to take such actions.
8.07 COMPLIANCE WITH ENVIRONMENTAL LAWS. (a) (i) The Borrower
will
comply, and will cause each of its Subsidiaries to comply, in
all material
respects with all Environmental Laws applicable to their
businesses or the
ownership or use of its Real Property now or hereafter
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owned or operated by the Borrower or any of its Subsidiaries,
will promptly pay
or, with respect to any of its Subsidiaries, cause to be paid
all costs and
expenses incurred in connection with such compliance, and will
keep or cause to
be kept all such Real Property free and clear of any Liens
imposed pursuant to
such Environmental Laws and (ii) neither the Borrower nor any of
its
Subsidiaries will generate, use, treat, store, Release or
dispose of, or permit
the generation, use, treatment, storage, release or disposal of,
Hazardous
Materials on any Real Property owned or operated by the Borrower
or any of its
Subsidiaries other than in compliance with Environmental Laws
and as required in
connection with the normal business operations of the Borrower
and its
Subsidiaries, or transport or permit the transportation of
Hazardous Materials
other than in compliance with Environmental Laws and as required
in connection
with the normal business operations of the Borrower and its
Subsidiaries, unless
the failure to comply with the requirements specified in clause
(i) or (ii)
above, either individually or in the aggregate, would not
reasonably be expected
to have a Material Adverse Effect. If the Borrower or any of its
Subsidiaries or
any tenant or occupant of any Real Property owned or operated by
the Borrower or
any of its Subsidiaries causes or permits any intentional or
unintentional act
or omission resulting in the presence or Release of any
Hazardous Material in a
quantity or concentration sufficient to require reporting or to
trigger an
obligation to undertake clean-up, removal or remedial action
under applicable
Environmental Laws, the Borrower agrees to undertake, and/or to
cause any of its
Subsidiaries, tenants or occupants to undertake, at their sole
expense, any
clean up, removal, remedial or other action required pursuant to
Environmental
Laws to remove and clean up any Hazardous Materials from any
Real Property
except where the failure to do so would not reasonably be
expected to have a
Material Adverse Effect; PROVIDED that neither the Borrower nor
any of its
Subsidiaries shall be required to undertake any clean up,
removal, remedial or
other action while the requirement to undertake such clean up,
removal, remedial
or other action is being contested in good faith and by proper
proceedings so
long as it has maintained adequate reserves with respect to such
clean up,
removal, remedial or other action to the extent required in
accordance with
GAAP. Notwithstanding any provision of this Section 8.07(a), the
Borrower shall
not be required by this Section to exercise any degree of
control over the
operations of any of its Subsidiaries that would reasonably be
construed under
applicable Environmental Law to make the Borrower liable for
Environmental
Claims arising from or casually related to the Real Property or
operations of
such Subsidiary as an owner or an operator or upon any other
basis.
(b) At the written request of the Administrative Agent or
the
Required Lenders, which request shall specify in reasonable
detail the basis
therefor, at any time and from time to time, the Borrower will
provide, at its
sole cost and expense, an environmental site assessment report
concerning any
Real Property now or hereafter owned or operated by the Borrower
or any of its
Subsidiaries, prepared by an environmental consulting firm
approved by the
Administrative Agent, addressing the matters in clause (i) or
(ii) below which
gives rise to such request (or, in the case of a request
pursuant to following
clause (i), addressing such matter as may be requested by the
Administrative
Agent or the Required Lenders) and estimating the range of the
potential costs
of any removal, remedial or other corrective action in
connection with any such
matter, PROVIDED that in no event shall such request be made
unless (i) an Event
of Default has occurred and is continuing or (ii) the Lenders
receive notice
under Section 8.01(g) of any event for which notice is required
to be delivered
for any such Real Property. If the Borrower fails to provide the
same within 60
days after such request was made, the Administrative Agent may
order the same,
and the Borrower shall grant and hereby grants, to the
Administrative Agent and
the Lenders and their agents access to such Real Property
owned
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or operated by the Borrower or any of its Subsidiaries, and
specifically grants
the Administrative Agent and the Lenders and their agents an
irrevocable
non-exclusive license, subject to the rights of tenants, to
undertake such an
assessment, all at the Borrower's expense.
8.08 ERISA. As soon as possible and, in any event, within
ten
Business Days after the Borrower or any Subsidiary of the
Borrower or any ERISA
Affiliate knows or has reason to know of the occurrence of any
ERISA Event, the
Borrower will deliver to the Administrative Agent a certificate
of an Authorized
Officer setting forth the full details as to such ERISA Event
and the action, if
any, that the Borrower, such Subsidiary or such ERISA Affiliate
is required or
proposes to take, together with any notices required or proposed
to be given to
or filed with or by the Borrower, the Subsidiary, the ERISA
Affiliate, the PBGC
or any other governmental agency, a Plan or, to the extent
received by the
Borrower, the Plan or Multiemployer Plan participant, or the
Plan or
Multiemployer Plan administrator with respect thereto. The
Borrower will deliver
to each of the Lenders at the request of any Lender on ten
Business Days' notice
(i) a complete copy of the most recently filed annual report (on
Internal
Revenue Service Form 5500-series) of each Plan (including, to
the extent
required, the related financial and actuarial statements and
opinions and other
supporting statements, certifications, schedules and
information) required to be
filed with the Internal Revenue Service and (ii) copies of any
records,
documents or other information that must be and have been
furnished to the PBGC
with respect to any Plan pursuant to Section 4010 of ERISA. In
addition to any
certificates or notices delivered to the Lenders pursuant to the
first sentence
hereof, copies of any material documents or other information
required to be
furnished to the PBGC, and any material notices received by the
Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate with respect
to any Plan,
Multiemployer Plan or Foreign Pension Plan shall be delivered to
the Lenders no
later than ten Business Days after the date such documents
and/or information
has been furnished to the PBGC or such notice has been received
by the Borrower,
such Subsidiary or such ERISA Affiliate, as applicable. If, at
any time after
the Initial Borrowing Date, the Borrower, any Subsidiary of the
Borrower or any
ERISA Affiliate maintains, or contributes to (or incurs an
obligation to
contribute to), a pension plan as defined in Section 3(2) of
ERISA which is not
set forth in Part A of Schedule 7.12, as may be updated from
time to time, then
the Borrower shall deliver to the Lenders an updated Part A of
Schedule 7.12 as
soon as possible and, in any event, within ten days after the
Borrower, such
Subsidiary or such ERISA Affiliate maintains, or contributes to
(or incurs an
obligation to contribute to), such pension plan. Such updated
Part A of Schedule
7.12 shall supersede and replace the existing Part A of Schedule
7.12. The
Borrower and each of its applicable Subsidiaries shall ensure
that all Foreign
Pension Plans administered by it or into which it makes payments
obtains or
retains (as applicable) registered status under and as required
by applicable
law and is administered in a timely manner in all respects in
compliance with
all applicable laws except where the failure to do any of the
foregoing would
not be reasonably likely to result in a Material Adverse
Effect.
8.09 GOOD REPAIR. The Borrower will, and will cause each of
its
Subsidiaries to, ensure that its material properties and
equipment used in its
business are kept in good repair, working order and condition,
ordinary wear and
tear excepted, and that from time to time there are made in such
properties and
equipment all necessary and proper repairs, renewals,
replacements, extensions,
additions, betterments and improvements thereto, to the extent
and in the manner
useful or customary for companies in similar businesses.
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8.10 END OF FISCAL YEARS; FISCAL QUARTERS. The Borrower will,
for
financial reporting purposes, cause each of its Subsidiaries'
(i) fiscal years
to end on December 31 of each calendar year and (ii) fiscal
quarters to end on
March 31, June 30, September 30 and December 31 of each
year.
8.11 ADDITIONAL SECURITY; ADDITIONAL GUARANTIES; FURTHER
ASSURANCES.
(a) The Borrower shall use, and shall cause each of its
respective Subsidiaries
to use, its commercially reasonable efforts to deliver to the
Collateral Agent
for the benefit of the Secured Creditors as promptly as
practicable following
the Initial Borrowing Date a fully executed Mortgage, in form
and substance
reasonably satisfactory to the Collateral Agent, which Mortgage
shall encumber
such Real Property located in the United States or any State or
territory
thereof and owned by the Borrower or any of its Subsidiaries
(after giving
effect to the Transaction) and designated as a "Mortgaged
Property" on Schedule
7.18, together with (to the extent not delivered on or prior to
the Initial
Borrowing Date):
(i) evidence that counterparts of such Mortgages, together with
such
certificates, affidavits, questionnaires or returns as shall be
required
in connection with the recording or filing thereof, have been
delivered to
the title insurance company insuring the Lien of such Mortgage
for
recording in all places to the extent necessary or, in the
reasonable
opinion of the Collateral Agent desirable, to effectively create
a valid
and enforceable first priority mortgage lien, subject only to
Permitted
Encumbrances, on such Mortgaged Property described therein in
favor of the
Collateral Agent (or such other trustee as may be necessary or
appropriate
under local law) for the benefit of the Secured Creditors;
(ii) such consents, approvals, amendments, supplements,
estoppels,
tenant subordination agreements or other instruments as shall
be
reasonably deemed necessary by the Collateral Agent in order for
the owner
or holder of the fee interest constituting such Mortgaged
Property to
grant the Lien contemplated by the Mortgage with respect to such
Mortgaged
Property;
(iii) Mortgage Policies insuring the Mortgage on such
Mortgaged
Property referred to above issued by a title insurer
reasonably
satisfactory to the Collateral Agent and in amounts satisfactory
to the
Collateral Agent and insuring the Collateral Agent that the
Mortgage on
such Mortgaged Property is a valid and enforceable first
priority mortgage
lien on such Mortgaged Property and the fixtures described
therein, free
and clear of all defects and encumbrances except Permitted
Encumbrances,
and such Mortgage Policies shall otherwise be in form and
substance
reasonably satisfactory to the Collateral Agent and shall
include, to the
extent available in the applicable jurisdiction, supplemental
endorsements
(including, without limitation, endorsements relating to future
advances
under this Agreement and the Notes, usury, first loss, last
dollar,
zoning, contiguity, revolving credit, doing business, public
road access,
survey, variable rate, environmental lien and so-called
comprehensive
coverage over covenants and restrictions and for any other
matters that
the Collateral Agent in its discretion may reasonably request)
and shall
not include the "standard" title exceptions, a survey exception
or an
exception for mechanics' liens, and shall provide for
affirmative
insurance and such reinsurance as the Collateral Agent in its
discretion
may reasonably request;
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(iv) such affidavits, certificates, information (including
financial
data) and instruments of indemnification (including, without
limitation, a
so-called "gap" indemnification) as shall be required to induce
the title
company to issue the Mortgage Policies referred to in subsection
(iii)
above;
(v) evidence reasonably acceptable to the Collateral Agent
of
payment by the Borrower of all Mortgage Policy premiums in
respect of such
Mortgaged Property, search and examination charges, and related
charges,
mortgage recording taxes, fees, charges, costs and expenses
required for
the recording of such Mortgages and issuance of such Mortgage
Policies;
(vi) flood certificates covering such Mortgaged Property in form
and
substance reasonably acceptable to the Collateral Agent, and
certifying
whether or not each such Mortgaged Property is located in a
flood hazard
area, as determined by reference to the applicable FEMA map;
(vii) an opinion, addressed to each Agent, the Collateral Agent
and
each of the Lenders and dated the date of the Mortgage from
local counsel
to the Credit Parties and/or the Agents reasonably satisfactory
to the
Agents practicing in those jurisdictions inside the United
States in which
the Mortgaged Property is located, which opinion (x) shall cover
the
perfection of the Lien granted pursuant to the Mortgage and such
other
matters incident to the transactions contemplated herein as
the
Administrative Agent may reasonably request and (y) shall be in
form and
substance reasonably satisfactory to the Administrative
Agent;
(viii) if reasonably required by the Administrative Agent, a
survey
of such Mortgaged Property (and all improvements thereon) (v)
prepared by
a surveyor or engineer licensed to perform surveys in the
state,
commonwealth or applicable jurisdiction where such Mortgaged
Property is
located, (w) dated a recent date reasonably satisfactory to the
Collateral
Agent, (x) certified by the surveyor (in a manner reasonably
acceptable to
the Collateral Agent and the title company), (y) 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 (z) sufficient for the title company to
remove all
standard survey exceptions from the Mortgage Policy relating to
such
Mortgaged Property and issue the endorsements required pursuant
to the
provisions of subsection (iii) above;
(ix) to the extent requested by the Administrative Agent, copies
of
all leases in which the Borrower or any Subsidiary Guarantor
holds the
lessor's interest or other agreements relating to possessory
interests, if
any; provided that, to the extent any of the foregoing affect
such
Mortgaged Property, to the extent obtainable using commercially
reasonably
efforts, such agreements shall be subordinate to the Liens of
the Mortgage
to be recorded against such Mortgaged Property, either expressly
by its
terms or pursuant to a subordination, non-disturbance and
attornment
agreement (with any such agreement being reasonably acceptable
to the
Collateral Agent); and
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(x) to the extent requested by the Administrative Agent and
obtainable using commercially reasonable efforts, fully executed
landlord
waivers and/or bailee agreements in respect of those Leaseholds
of the
Credit Parties designated as "Leaseholds Subject to Landlord
Waivers" on
Schedule 7.18, each of which landlord waivers and/or bailee
agreements
shall be in form and substance reasonably satisfactory to the
Collateral
Agent.
(b) The Borrower will, and will cause its Subsidiaries which
are
Credit Parties to, upon the written request of the Collateral
Agent, grant to
the Collateral Agent for the benefit of the Secured Creditors
security interests
and mortgages (each, an "ADDITIONAL MORTGAGE") in such fee-owned
(or the
equivalent) Real Property in the United States acquired by such
Person after the
Initial Borrowing Date and having a Fair Market Value in excess
of the
$15,000,000 (unless, with respect to any such Real Property,
same is subject to
one or more Permitted Liens which prohibit the granting of an
Additional
Mortgage thereon as contemplated by this clause (b), in which
case the actions
otherwise required by this Section 8.11(b) with respect to such
Real Property
shall not be required to be taken until such prohibitions cease
to be
applicable) which is not covered by the original Mortgages or
other Security
Documents, as appropriate (each such Real Property an
"ADDITIONAL MORTGAGED
PROPERTY"). All such Additional Mortgages shall be granted
pursuant to
documentation substantially in the form of the Mortgages or in
such other form
as is reasonably satisfactory to the Administrative Agent and
shall constitute
valid and enforceable first priority perfected Liens, superior
to and prior to
the rights of all third Persons and subject to no other Liens
(other than
Permitted Liens), in favor of the Collateral Agent for the
benefit of the
Secured Creditors (or such other trustee or sub-agent as may be
required or
desired under local law). The Additional Mortgages or
instruments related
thereto shall be duly recorded or filed in such manner and in
such places as are
required by law to create, maintain, effect, perfect, preserve,
and protect the
Liens in favor of the Collateral Agent for the benefit of the
Secured Creditors
required to be granted pursuant to the Additional Mortgages and
all taxes, fees
and other charges payable in connection therewith shall be paid
in full. In
addition, the Borrower will, and will cause its Subsidiaries
which are Credit
Parties to, comply with the provisions of Section 8.11(a) with
respect to such
Additional Mortgaged Property.
(c) The Borrower will, and will cause each of its Subsidiaries
to,
at its own expense, make, execute, endorse, acknowledge, file
and/or deliver to
the Collateral Agent from time to time such vouchers, invoices,
schedules,
confirmatory assignments, confirmatory conveyances, financing
statements,
transfer endorsements, confirmatory powers of attorney,
certificates, reports
and other assurances or confirmatory instruments and take such
further steps
relating to the Collateral covered by any of the Security
Documents as the
Collateral Agent may reasonably require pursuant to this Section
8.11.
Furthermore, the Borrower will cause to be delivered to the
Collateral Agent
such customary opinions of counsel and other related documents
as may be
reasonably requested by the Collateral Agent to assure itself
that this Section
8.11 has been complied with.
(d) Subject to the provisions of clause (i) of this Section
8.11, if
at any time any Person becomes a Material Subsidiary of the
Borrower (whether as
a result of creation, formation, acquisition or growth in the
assets or revenues
of such Person), such Material Subsidiary shall be required to
execute and
deliver counterparts of (or, if requested by the Administrative
Agent or the
Collateral Agent, a Joinder Agreement in respect of) the
Initial
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Subsidiaries Guaranty and, in each case, unless the
Administrative Agent
otherwise agrees based on advice of local counsel, such Security
Documents as
would have been entered into by the respective Material
Subsidiary if same had
been a Subsidiary Guarantor on the Initial Borrowing Date
(determined in
accordance with the criteria described in Sections 5.08, 5.09,
5.10 and
8.11(a)), and in each case shall take all action in connection
therewith as
would otherwise have been required to be taken pursuant to
Section 5 if such
Material Subsidiary had been a Credit Party on the Initial
Borrowing Date;
PROVIDED, HOWEVER, that no Non-U.S. Subsidiary shall be required
to take such
actions if, and to the extent that, based upon written advice of
local counsel
satisfactory to the Administrative Agent, the Borrower and/or
such Non-U.S.
Subsidiary concludes that the taking of such actions would
violate the laws of
the jurisdiction in which the respective Subsidiary is
organized, PROVIDED
FURTHER, that if steps (such as limiting the amount guaranteed)
can be taken so
that such violation would not exist, then, if requested by the
Administrative
Agent, the respective Non-U.S. Subsidiary shall enter into a
modified
Subsidiaries Guaranty, and/or such Security Documents which
provides, to the
maximum extent permissible under applicable law, as many of the
benefits as are
provided pursuant to the Subsidiaries Guaranties and/or such
Security Documents
executed and delivered on the Initial Borrowing Date as is
possible.
(e) In addition to the requirements contained in the Pledge
Agreements, the Borrower agrees to pledge and deliver, or cause
to be pledged
and delivered, all of the capital stock or other Equity
Interests owned by any
Credit Party of each new Material Subsidiary established or
created after the
Initial Borrowing Date to the Collateral Agent for the benefit
of the Secured
Creditors pursuant to the Pledge Agreements.
(f) The Borrower will cause each Material Subsidiary which,
after
the Initial Borrowing Date, is required to become a Subsidiary
Guarantor in
accordance with the requirements of Section 8.11(d) or Section
9.15 to (i)
execute and deliver counterparts of (or, if requested by the
Administrative
Agent or the Collateral Agent, a Joinder Agreement in respect
of) the applicable
Security Documents (as contemplated by Section 8.11(d) and
Section 9.15), in
each case in form and substance reasonably satisfactory to the
Administrative
Agent or the Collateral Agent, as the case may be; PROVIDED that
to the extent,
and only to the extent, any security interest purported to be
granted under any
Security Document is expressly prohibited pursuant to a
Permitted Lien
previously incurred by such Material Subsidiary, the granting of
such Lien
pursuant to any such Security Document shall not be required
until such
prohibition no longer exists, and (ii) in connection therewith,
to furnish such
updated or additional schedules as may be requested by the
Administrative Agent
or the Collateral Agent. Furthermore, each Credit Agreement
Party will cause
each Subsidiary described in the first sentence of this Section
8.11(f), at
their own expense, to execute, acknowledge and deliver, or cause
the execution,
acknowledgment and delivery of, and thereafter register, file or
record in any
appropriate governmental office, any document or instrument
reasonably deemed by
the Collateral Agent to be necessary or desirable for the
creation and
perfection of the Liens on its assets intended to be created
pursuant to the
relevant Security Documents. The Borrower will take, and cause
each Subsidiary
described above in this clause (f) to take, all actions
reasonably requested by
the Administrative Agent (including, without limitation, the
filing of UCC-1's
(or the appropriate equivalent filings under the laws of any
relevant foreign
jurisdiction), the furnishing of legal opinions, etc.) in
connection with the
granting of such security interests.
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(g) The security interests required to be granted pursuant to
this
Section 8.11 shall be granted pursuant to the respective
Security Documents
previously executed and delivered by the Credit Parties (or
other security
documentation substantially similar to such Security Documents
or otherwise
satisfactory in form and substance to the Collateral Agent) for
the benefit of
the Secured Creditors and shall constitute valid and enforceable
first priority
perfected security interests on all of the Collateral subject
thereto prior to
the rights of all third Persons and subject to no other Liens
except Permitted
Liens and with such exceptions, conditions and qualifications,
as shall be
contained in the respective Security Documents. The Additional
Security
Documents and other instruments related thereto shall be duly
recorded or filed
in such manner and in such places and at such times as are
required by law to
create, maintain, effect, perfect, preserve, maintain and
protect the Liens, in
favor of the Collateral Agent for the benefit of the respective
Secured
Creditors, required to be granted pursuant to the Additional
Security Documents
and all taxes, fees and other charges payable in connection
therewith shall be
paid in full by the Borrower. At the time of the execution and
delivery of any
Security Documents or Additional Security Documents, the
Borrower will cause to
be delivered to the Collateral Agent such customary opinions of
counsel and
other related documents as may be reasonably requested by the
Collateral Agent
to assure themselves that this Section 8.11 has been complied
with.
(h) The Borrower agrees that each action required above by
Section
8.11(b) or (c) shall be completed as promptly as reasonably
practicable after
such action is requested to be taken by the Administrative Agent
or the
Collateral Agent. The Borrower further agrees that (x) each
action required
above by Sections 8.11(d), (e), (f) and (g) with respect to a
newly formed,
created or acquired Subsidiary (or a Subsidiary that becomes a
Material
Subsidiary as a result of a growth in its assets or revenues)
shall be completed
as promptly as practicable following the formation, creation or
acquisition (or,
in the case of a new Material Subsidiary, growth) of such
Subsidiary, and (y)
all other actions required to be taken pursuant to Sections
8.11(d), (e), (f)
and (g) shall be taken as promptly as reasonably practicable
after such action
is requested to be taken by the Administrative Agent or the
Collateral Agent.
(i) Notwithstanding anything to the contrary contained in
this
Section 8.11, to the extent the taking of any action as
described above by a new
Material Subsidiary acquired pursuant to a Permitted
Acquisition, which is
subject to Permitted Acquired Debt which at such time remains in
existence as
permitted by Section 9.04(d), then to the extent that the terms
of the
respective Permitted Acquired Debt prohibit the taking of any
actions which
would otherwise be required of such Subsidiary by this Section
8.11, then the
time for taking the respective actions (to the extent prohibited
by the terms of
the respective Permitted Acquired Debt) shall be extended until
15 Business Days
after the earlier of (i) the date of repayment of such Permitted
Acquired Debt
and (ii) the first date on which the taking of such actions
would not violate
the terms of the respective issue of Permitted Acquired Debt. To
the extent the
terms of any Permitted Acquired Debt prohibits the taking of
actions otherwise
required by this Section 8.11, upon the request of the
Administrative Agent, the
Borrower shall, or shall cause the respective Subsidiaries to,
use reasonable
efforts to obtain such consents or approvals as are needed so
that the taking of
the actions otherwise specified in this Section 8.11 would not
violate the terms
of the respective issue of Permitted Acquired Debt. Furthermore,
to the extent
any Subsidiary which is not a Wholly-Owned Subsidiary is
acquired pursuant to a
Permitted Acquisition (in accordance with the limitations
contained in the
definition thereof) or as a result of Investments
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made pursuant to Section 9.05(k), then for so long as such
Subsidiary is not a
Wholly-Owned Subsidiary, to the extent the Borrower in good
faith determines
that the respective Subsidiary is not able, under applicable
requirements of law
(whether because of fiduciary duties under applicable law or
other requirements
of applicable law) to execute and deliver a Subsidiaries
Guaranty or one or more
Security Documents, the respective such Subsidiary shall not be
required to
become a Subsidiary Guarantor or execute and deliver such
Security Documents as
otherwise required above.
(j) At all times on and after the 15th day following the
Initial
Borrowing Date (or such later date as the Administrative Agent
shall agree in
its reasonable discretion), the Borrower will cause each obligor
and obligee of
any loan or advance (including, without limitation, pursuant to
guarantees
thereof or security thereof) which are (x) made to the Borrower
by Holdings or
any of the Borrower's Subsidiaries or (y) made to any Credit
Party by a
Subsidiary of the Borrower that is not a Credit Party prior to
the extension or
incurrence of such loan or advance, to execute and deliver to
the Administrative
Agent an Intercompany Subordination Agreement substantially in
the form of
Exhibit I (as modified, amended or supplemented from time to
time, the
"INTERCOMPANY SUBORDINATION AGREEMENT") or, to the extent the
Intercompany
Subordination Agreement has previously come into effect, a
joinder agreement in
respect of the Intercompany Subordination Agreement and, in
connection
therewith, promptly execute and deliver all further instruments,
and take all
further action, that the Administrative Agent may reasonably
require; provided,
that no such Intercompany Subordination Agreement is required to
be entered into
in respect of intercompany loans and advances in the aggregate
not exceeding
$20,000,000, and with such further exceptions as the
Administrative Agent may
agree.
(k) On or prior to ten days after the Initial Borrowing
Date,
Intelsat Global shall execute and deliver to White & Case
LLP a copy of a share
pledge agreement in notarial form (together with a notarial
reference deed
containing this Agreement and the U.S. Security Agreement)
substantially in the
form of Exhibit F-4 (as amended, modified, restated and/or
supplemented from
time to time, the "German Pledge Agreement") with respect to the
Equity
Interests in Intelsat Kommunikations GmbH held by Intelsat
Global.
(l) Notwithstanding anything to the contrary contained above in
this
Section 8.11, elsewhere in this Agreement or any other Credit
Document, no
License Subsidiary shall be required to (i) be a Subsidiary
Guarantor or (ii)
enter into any Credit Document.
(m) The Borrower shall use, and shall cause each of its
Subsidiaries
to use, its best efforts to deliver (to the extent not delivered
on or prior to
the Initial Borrowing Date) evidence of insurance complying with
the
requirements of Section 8.03 as soon as practicable following
the Initial
Borrowing Date.
8.12 ACCESS AND COMMAND CODES. (a) At any time upon an accel
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