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Exhibit 99.7
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$75,000,000
SECOND LIEN CREDIT AGREEMENT
Dated as of April 22, 2005,
Among
HUGHES NETWORK SYSTEMS, LLC,
as Borrower,
THE LENDERS PARTY HERETO,
BEAR STEARNS CORPORATE LENDING INC.,
as Administrative Agent,
JPMORGAN CHASE BANK, N.A.,
as Syndication Agent
-----------------
J.P. MORGAN SECURITIES INC.
and
BEAR, STEARNS & CO. INC.,
as Joint Lead Arrangers and Joint Bookrunners
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<PAGE>
TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.01. Defined
Terms...................................................1
SECTION 1.02. Terms
Generally................................................37
SECTION 1.03. Effectuation of
Transfers......................................37
ARTICLE II
The Credits
SECTION 2.01.
Commitments....................................................38
SECTION 2.02. Loans and
Borrowings...........................................38
SECTION 2.03. Requests for
Borrowings........................................38
SECTION 2.04.
[Reserved].....................................................39
SECTION 2.05.
[Reserved].....................................................39
SECTION 2.06. Funding of
Borrowings..........................................39
SECTION 2.07. Interest
Elections.............................................39
SECTION 2.08.
[Reserved].....................................................40
SECTION 2.09. Repayment of Loans; Evidence of
Debt...........................40
SECTION 2.10. Repayment of
Loans.............................................41
SECTION 2.11. Prepayment of
Loans............................................42
SECTION 2.12. Administrative Agent
Fees......................................43
SECTION 2.13.
Interest.......................................................43
SECTION 2.14. Alternate Rate of
Interest.....................................43
SECTION 2.15. Increased
Costs................................................44
SECTION 2.16. Break Funding
Payments.........................................44
SECTION 2.17.
Taxes..........................................................45
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs....46
SECTION 2.19. Mitigation Obligations; Replacement of
Lenders.................47
SECTION 2.20.
[Reserved].....................................................48
SECTION 2.21.
Illegality.....................................................48
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization;
Powers...........................................48
SECTION 3.02.
Authorization..................................................49
SECTION 3.03.
Enforceability.................................................49
SECTION 3.04. Governmental
Approvals.........................................49
SECTION 3.05. Financial
Statements...........................................50
SECTION 3.06. No Material Adverse Change or Material Adverse
Effect..........50
SECTION 3.07. Title to Properties; Possession Under
Leases...................51
SECTION 3.08.
Subsidiaries...................................................51
SECTION 3.09. Litigation; Compliance with
Laws...............................51
SECTION 3.10. Federal Reserve
Regulations....................................52
SECTION 3.11. Investment Company Act: Public Utility Holding
Company Act.....52
SECTION 3.12. Use of
Proceeds................................................52
SECTION 3.13. Tax
Returns....................................................52
SECTION 3.14. No Material
Misstatements......................................53
SECTION 3.15. Employee Benefit
Plans.........................................53
SECTION 3.16. Environmental
Matters..........................................54
SECTION 3.17. Security
Documents.............................................54
SECTION 3.18. Location of Real
Property......................................55
SECTION 3.19.
Solvency.......................................................55
SECTION 3.20. Labor
Matters..................................................56
SECTION 3.21.
Insurance......................................................56
SECTION 3.22. Representations and Warranties in Transaction
Agreement........56
SECTION 3.23. Communications Licenses,
etc...................................56
ARTICLE IV
Conditions of Lending
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and
Properties..........................60
SECTION 5.02.
Insurance.....................................................61
SECTION 5.03.
Taxes.........................................................62
SECTION 5.04. Financial Statements, Reports,
etc............................63
SECTION 5.05. Litigation and Other
Notices..................................65
SECTION 5.06. Compliance with
Laws..........................................65
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections.....65
SECTION 5.08. Use of
Proceeds...............................................65
SECTION 5.09. Compliance with Environmental
Laws............................65
SECTION 5.10. Further Assurances; Additional
Mortgages......................66
SECTION 5.11. Fiscal Year;
Accounting.......................................68
SECTION 5.12.
Rating........................................................68
ARTICLE VI
Negative Covenants
SECTION 6.01.
Indebtedness..................................................68
SECTION 6.02.
Liens.........................................................71
SECTION 6.03. Sale and Lease-Back
Transactions..............................74
SECTION 6.04. Investments, Loans and
Advances...............................74
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions.....76
SECTION 6.06. Dividends and
Distributions...................................78
SECTION 6.07. Transactions with
Affiliates..................................80
SECTION 6.08. Business of the Borrower and the
Subsidiaries.................82
SECTION 6.09. Limitation on Modifications of Indebtedness;
Modifications
of Certificate of Incorporation, By-Laws and Certain Other
Agreements;
etc...............................................82
SECTION 6.10.
[Reserved]....................................................83
SECTION 6.11.
[Reserved]....................................................83
SECTION 6.12. First Lien Leverage
Ratio.....................................84
SECTION 6.13. Debt to Adjusted EBITDA
Ratio.................................84
SECTION 6.14. Swap
Agreements...............................................85
ARTICLE VII
Events of Default
SECTION 7.01. Events of
Default.............................................85
SECTION 7.02. Exclusion of Immaterial
Subsidiaries..........................87
SECTION 7.03. Borrower's Right to
Cure......................................87
ARTICLE VIII
The Agents
SECTION 8.01. Appointment of the Administrative
Agent........................88
SECTION 8.02. Delegation of
Duties...........................................88
SECTION 8.03. Exculpatory
Provisions.........................................88
SECTION 8.04. Reliance by Administrative
Agent...............................89
SECTION 8.05. Notice of
Default..............................................89
SECTION 8.06. Non-Reliance on Agents and Other
Lenders.......................89
SECTION 8.07.
Indemnification................................................90
SECTION 8.08. Agent in Its Individual
Capacity...............................90
SECTION 8.09. Successor Administrative
Agent.................................90
SECTION 8.10. Syndication
Agent..............................................91
ARTICLE IX
Miscellaneous
SECTION 9.01.
Notices........................................................91
SECTION 9.02. Survival of
Agreement..........................................91
SECTION 9.03. Binding
Effect.................................................92
SECTION 9.04. Successors and
Assigns.........................................92
SECTION 9.05. Expenses;
Indemnity............................................94
SECTION 9.06. Right of
Set-off...............................................95
SECTION 9.07. Applicable
Law.................................................96
SECTION 9.08. Waivers;
Amendment.............................................96
SECTION 9.09. Interest Rate
Limitation.......................................97
SECTION 9.10. Entire
Agreement...............................................98
SECTION 9.11. WAIVER OF JURY
TRIAL...........................................98
SECTION 9.12.
Severability...................................................98
SECTION 9.13.
Counterparts...................................................98
SECTION 9.14.
Headings.......................................................98
SECTION 9.15. Jurisdiction; Consent to Service of
Process....................98
SECTION 9.16.
Confidentiality................................................99
SECTION 9.17. Direct Website
Communications..................................99
SECTION 9.18. Release of Liens and
Guarantees...............................100
SECTION 9.19. USA PATRIOT
ACT...............................................101
SECTION 9.20. Regulatory
Matters............................................101
<PAGE>
Exhibits and Schedules
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Administrative Questionnaire
Exhibit C Form of Borrowing Request
Exhibit D Form of Mortgage
Exhibit E Form of Second Lien Collateral Agreement
Exhibit F Form of Solvency Certificate
Exhibit G Form of Real Property Officers' Certificate
Exhibit H Form of Parent Pledge Agreement
Exhibit I Form of Intercreditor Agreement
Schedule 1.01(a) Certain U.S. Subsidiaries
Schedule 1.01(b) Mortgaged Properties
Schedule 1.01(c) Closing Date First Tier Foreign
Subsidiaries
Schedule 2.01 Commitments
Schedule 3.01 Organization and Good Standing
Schedule 3.04 Governmental Approvals
Schedule 3.07(b) Possession under Leases
Schedule 3.07(c) Intellectual Property
Schedule 3.08(a) Subsidiaries
Schedule 3.08(b) Subscriptions
Schedule 3.09 Litigation
Schedule 3.13 Taxes
Schedule 3.16 Environmental Matters
Schedule 3.20 Labor Matters
Schedule 3.21 Insurance
Schedule 3.23 Communications Licenses
Schedule 4.02(e) Local U.S. and/or Foreign Counsel
Schedule 5.10(h) Post-Closing First Tier Foreign
Subsidiaries
Schedule 6.01 Indebtedness
Schedule 6.02(a) Liens
Schedule 6.04 Investments
Schedule 6.05 Asset Sales
Schedule 6.07 Transactions with Affiliates
<PAGE>
SECOND LIEN CREDIT AGREEMENT dated as of April 22, 2005
(this "Agreement"), among HUGHES NETWORK SYSTEMS LLC, a Delaware
limited
liability company (the "Borrower"), the LENDERS party hereto
from time to
time, BEAR, STEARNS CORPORATE LENDING INC., as administrative
agent (in such
capacity, the "Administrative Agent") for the Lenders, JPMORGAN
CHASE BANK,
N.A., as syndication agent (in such capacity, the "Syndication
Agent"), and
JPMORGAN SECURITIES INC. and BEAR, STEARNS & CO. INC., as
joint lead arrangers
and joint book managers (in such capacity, the "Joint Lead
Arrangers").
WHEREAS, Hughes Network Systems, Inc., a Delaware
corporation ("HNS"), has indirectly formed the Borrower, to be
jointly owned
as of the date hereof by HNS and SkyTerra Communications, Inc.,
a Delaware
corporation ("SkyTerra"; and together with HNS and their
successors and
assigns, the "Parents") (it being understood that if, after the
date hereof,
SkyTerra assigns or otherwise transfers its interests in the
Borrower to any
of its Subsidiaries, "SkyTerra" shall thereafter mean such
Subsidiary), for
the purpose of entering into that certain Contribution and
Membership Interest
Purchase Agreement (the "Transaction Agreement") dated December
3, 2004, as
amended on January 28, 2005, with SkyTerra, The DIRECTV Group,
Inc., a
Delaware corporation ("DIRECTV"), and HNS (HNS and DIRECTV
collectively, the
"Sellers") as amended, supplemented or otherwise modified from
time to time in
accordance with the provisions hereof, pursuant to which the
Borrower will
acquire (the "Acquisition") certain businesses and assets of the
Sellers
(including the Contributed SPACEWAY Assets which relate to
Ka-band satellites
identified as SPACEWAY ("SPACEWAY")) (collectively, the
"Acquired Business");
and
WHEREAS, the Borrower is entering into the Credit Agreement,
dated as of the date hereof (the "First Lien Credit Agreement"),
with the
several banks and other financial institutions or entities
parties thereto and
JPMorgan Chase Bank, N.A., as administrative agent, Bear Stearns
Corporate
Lending Inc., as syndication agent, and J.P. Morgan Securities
Inc. and Bear,
Stearns & Co. Inc., as joint lead arrangers and
bookrunners;
WHEREAS, in connection with the consummation of the
Acquisition, the Borrower has requested the Lenders to extend
credit in the
form of Loans on the Closing Date, in an aggregate principal
amount not in
excess of $75 million;
NOW, THEREFORE, the Lenders are willing to extend such
credit to the Borrower on the terms and subject to the
conditions set forth
herein. Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR" shall mean for any day, a rate per annum equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the
Base CD Rate in
effect on such day plus 1% and (c) the Federal Funds Effective
Rate in effect
on such day plus 1/2 of 1%. For purposes hereof: "Prime Rate"
shall mean the
rate of interest per annum publicly announced from time to time
by JPMorgan
Chase Bank, N.A. as its prime rate in effect at its principal
office in New
York City (the Prime Rate not being intended to be the lowest
rate of interest
charged by JPMorgan Chase Bank, N.A. in connection with
extensions of credit
to debtors); "Base CD Rate" shall mean the sum of (a) the
product of (i) the
Three-Month Secondary CD Rate and (ii) a fraction, the numerator
of which is
one and the denominator of which is one minus the CD Reserve
Percentage and
(b) the CD Assessment Rate; and "Three-Month Secondary CD Rate"
shall mean,
for any day, the secondary market rate for three-month
certificates of deposit
reported as being in effect on such day (or, if such day shall
not be a
Business Day, the next preceding Business Day) by the Board
through the public
information telephone line of the Federal Reserve Bank of New
York (which rate
will, under the current practices of the Board, be published in
Federal
Reserve Statistical Release H.15(519) during the week following
such day), or,
if such rate shall not be so reported on such day or such next
preceding
Business Day, the average of the secondary market quotations for
three-month
certificates of deposit of major money center banks in New York
City received
at approximately 10:00 A.M., New York City time, on such day
(or, if such day
shall not be a Business Day, on the next preceding Business Day)
by JPMorgan
Chase Bank, N.A. from three New York City negotiable certificate
of deposit
dealers of recognized standing selected by it. Any change in the
ABR due to a
change in the Prime Rate, the Three-Month Secondary CD Rate or
the Federal
Funds Effective Rate shall be effective as of the opening of
business on the
effective day of such change in the Prime Rate, the Three-Month
Secondary CD
Rate or the Federal Funds Effective Rate, respectively.
"ABR Borrowing" shall mean a Borrowing comprised of ABR
Loans.
"ABR Loan" shall mean any Loan bearing interest at a rate
determined by reference to the ABR in accordance with the
provisions of
Article II.
"Acceptable Exclusions" shall mean
(a) war, invasion or hostile or warlike action in time
of peace or war, including action in hindering, combating or
defending against
an actual, impending or expected attack by:
(i) any government or sovereign power (de jure or de
facto),
(ii) any authority maintaining or using a military,
naval or air force,
(iii) a military, naval or air force, or
(iv) any agent of any such government, power, authority
or force;
(b) any anti-satellite device, or device employing
atomic or nuclear fission or fusion, or device employing laser
or directed
energy beams;
(c) insurrection, strikes, labor disturbances, riots,
civil commotion, rebellion, revolution, civil war, usurpation,
or action taken
by a government authority in hindering, combating or defending
against such an
occurrence, whether there be declaration of war or not;
(d) confiscation, nationalization, seizure, restraint,
detention, appropriation, requisition for title or use by or
under the order
of any government or governmental authority or agent (whether
secret or
otherwise or whether civil, military or de facto) or public or
local authority
or agency;
(e). nuclear reaction, nuclear radiation, or radioactive
contamination of any nature, whether such loss or damage be
direct or
indirect, except for radiation naturally occurring in the space
environment;
(f) electromagnetic or radio frequency interference,
except for physical damage to the Satellite directly resulting
from such
interference;
(g) willful or intentional acts of the directors or
officers of the named insured, acting within the scope of their
duties,
designed to cause loss or failure of the Satellite;
(h) an act of one or more individuals, whether or not
agents of a sovereign power, for political or terrorist purposes
and whether
the loss, damage or failure resulting therefrom is accidental or
intentional;
(i) any unlawful seizure or wrongful exercise of
control of the Satellite made by any individual or individuals
acting for
political or terrorist purposes;
(j) loss of revenue, incidental damages or consequential
loss;
(k) extra expenses, other than the expenses insured
under such policy;
(l) third party liability;
(m) loss of a redundant component(s) that does not cause
a transponder failure; and
(n) such other similar exclusions or modifications to
the foregoing exclusions as may be customary for policies of
such type as of
the date of issuance or renewal of such coverage.
"Acquired Assets" shall mean (a) the total purchase price
of assets acquired pursuant to a Permitted Business Acquisition
during any
fiscal year determined in accordance with GAAP (the "Specified
Amount"),
provided that if such Permitted Business Acquisition is not
consummated during
the first quarter of a fiscal year, Acquired Assets for such
fiscal year shall
be determined by multiplying the Specified Amount by (i) 0.75 if
such
Permitted Business Acquisition is consummated during the second
quarter of
such fiscal year, (ii) 0.50 if such Permitted Business
Acquisition is
consummated during the third quarter of such fiscal year and
(iii) 0.25 if
such Permitted Business Acquisition is consummated during the
fourth quarter
of such fiscal year and (b) with respect to any fiscal year
occurring after
such Permitted Business Acquisition, the Specified Amount.
"Acquired Assets Amount" shall have the meaning assigned to
such term in Section 6.10(a).
"Acquired Business" shall have the meaning assigned to such
term in the first recital hereto.
"Acquisition" shall have the meaning assigned to such term
in the first recital hereto.
"Added Historical Adjustment" shall mean the writeoff of
certain accounts receivable and capitalized software and the
elimination of
payroll and benefits reflective of headcount reductions for
purposes of
calculating Adjusted EBITDA, in an aggregate amount not to
exceed $24,866,000
and as further described in the Offering Memorandum, but only to
the extent
such writeoff and/or elimination occurred in the consecutive
four quarter
period referred to in the definition of Debt to Adjusted EBITDA
Ratio.
"Added Projected Adjustment" shall mean with respect to any
Person, without duplication and solely to the extent the
calculation of
Adjusted EBITDA includes any period commencing on April 1, 2004
and ending on
the Closing Date, the sum of (a) payroll and benefits costs
associated with
employees terminated (voluntarily or involuntarily) in
connection with the
SPACEWAY program realignment and other restructuring initiatives
as if such
employees had been terminated on April 1, 2004, plus (b) the sum
of (i) an
assumed rate of cost recovery to the Borrower and its
Subsidiaries equal to
$3.0 million per calendar quarter (to be calculated on a pro
rata basis for
any period less than one quarter) from DIRECTV for services
performed under
the SPACEWAY Services Agreement and (ii) the reduction in
non-labor costs from
realignment of the SPACEWAY program, in each case as if the
SPACEWAY Services
Agreement had been executed and the realignment of the SPACEWAY
program had
been implemented on April 1, 2004; provided that in the event
the definition
of Debt to Adjusted EBITDA Ratio requires a calculation of
Adjusted EBITDA for
the consecutive four quarter period commencing January 1, 2004,
the Added
Projected Adjustment shall equal $16,042,000. The calculation of
the Added
Projected Adjustment shall be performed in good faith by a
Financial Officer
of the Borrower in a manner consistent with the presentation of
"Projected net
reduction of SPACEWAY operating costs" set forth in the Offering
Memorandum
and such calculation shall be set forth in an officers'
certificate signed by
a Financial Officer.
"Additional Mortgage" shall have the meaning assigned to
such term in Section 5.10(c).
"Adjusted EBITDA" shall mean, with respect to any Person for
any period, the Consolidated Net Income of such Person for such
period plus,
without duplication, to the extent the same was deducted in
calculating
Consolidated Net Income:
(a) Consolidated Taxes; plus
(b) Consolidated Interest Expense; plus
(c) Consolidated Non-cash Charges; plus
(d) the amount of any restructuring charges or expenses
(which, for the avoidance of doubt, shall include retention,
severance,
systems establishment costs or excess pension charges); plus
(e) the amount of management, monitoring, consulting
and advisory fees and related expenses paid to the Permitted
Holders (or any
accruals relating to such fees and related expenses) during such
period;
provided that such amount shall not exceed in any four quarter
period $1.0
million; plus
(f) Added Historical Adjustment; plus
(g) Added Projected Adjustment;
less, without duplication,
(h) non-cash items increasing Consolidated Net Income
for such period (excluding any items which represent the
reversal of any
accrual of, or cash reserve for, anticipated cash charges in any
prior period
and any items for which cash was received in any prior period);
less
(i) Subtracted Historical Adjustment.
For purposes of determining Adjusted EBITDA for determining
compliance with Sections 6.12 and 6.13 for any period that
includes any of the
fiscal quarters ended in 2004, Adjusted EBITDA shall be
calculated on a
quarterly basis in good faith by management of the Borrower in a
manner
consistent with the calculation in the Offering Memorandum.
"Adjusted LIBO Rate" shall mean, with respect to any
Eurocurrency Borrowing for any Interest Period, an interest rate
per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to
(a) the LIBO
Rate in effect for such Interest Period divided by (b) one minus
the Statutory
Reserves applicable to such Eurocurrency Borrowing, if any.
"Administrative Agent" shall have the meaning assigned to
such term in the introductory paragraph of this Agreement.
"Administrative Agent Fees" shall have the meaning assigned
to such term in Section 2.12.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit B.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or
indirect common control with such specified Person. For purposes
of this
definition, "control" (including, with correlative meanings, the
terms
"controlling," "controlled by" and "under common control with"),
as used with
respect to any Person, means the possession, directly or
indirectly, of the
power to direct or cause the direction of the management or
policies of such
Person, whether through the ownership of voting securities, by
agreement or
otherwise.
"Agent Parties" shall have the meaning assigned to such term
in Section 9.17(c).
"Agents" shall mean the Administrative Agent and the
Syndication Agent.
"Agreement" shall have the meaning assigned to such term in
the introductory paragraph of this Agreement and shall include
all Exhibits
and Schedules hereto.
"Alpine" shall mean Alpine Capital Corporation and any
successor.
"Apollo" shall mean Apollo Management, L.P. and its
Affiliates.
"Applicable Margin" shall mean for any day with respect to
any Loan, 5.50% per annum in the case of any Eurocurrency Loan
and 4.50% per
annum in the case of any ABR Loan.
"Approved Fund" shall have the meaning assigned to such term
in Section 9.04(b).
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee, and
accepted by the
Administrative Agent and the Borrower (if required by such
assignment and
acceptance), in the form of Exhibit A or such other form as
shall be approved
by the Administrative Agent.
"Available Cumulative Credit Amount" shall mean, on any date
of determination, an amount not less than zero in the aggregate
equal to (a)
the Cumulative Credit, minus (b) 2.0 times Cumulative Interest
Expense, minus
(c) any amounts thereof used to make Investments pursuant to
Section
6.04(i)(ii) after the Closing Date and on or prior to such date,
minus (d) the
cumulative amount of dividends paid and distributions made
pursuant to Section
6.06(f)(ii), minus (e) any amounts thereof used to redeem or
repay
Indebtedness pursuant to Section 6.09(b).
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States of America.
"Board of Directors" shall mean as to any Person, the board
of directors or managers, as applicable, of such Person (or, if
such Person is
a partnership, the board of directors or other governing body of
the general
partner of such Person) or any duly authorized committee
thereof.
"Borrower" shall have the meaning assigned to such term in
the preamble hereto.
"Borrowing" shall mean a group of Loans made on a single
date and, in the case of Eurocurrency Loans, as to which a
single Interest
Period is in effect.
"Borrowing Minimum" shall mean $500,000.
"Borrowing Multiple" shall mean $100,000.
"Borrowing Request" shall mean a request by a Borrower in
accordance with the terms of Section 2.03 and substantially in
the form of
Exhibit C.
"Business Day" shall mean any day that is not a Saturday,
Sunday or other day on which commercial banks in New York City
are authorized
or required by law to remain closed; provided that when used in
connection
with a Eurocurrency Loan, the term "Business Day" shall also
exclude any day
on which banks are not open for dealings in deposits in the
applicable
currency in the London interbank market.
"Capital Expenditures" shall mean, for any person in respect
of any period, the aggregate of all expenditures incurred by
such person
during such period that, in accordance with GAAP, are or should
be included in
"additions to property, plant or equipment" or similar items
reflected in the
statement of cash flows of such person, provided, however, that
Capital
Expenditures for the Borrower and the Subsidiaries shall not
include:
(a) expenditures to the extent they are made with funds
that would have constituted Net Proceeds under clause (a) of the
definition of
the term "Net Proceeds" (but that will not constitute Net
Proceeds as a result
of the first proviso to such clause (a)),
(b) expenditures of proceeds of insurance settlements,
condemnation awards and other settlements in respect of lost,
destroyed,
damaged or condemned assets, equipment or other property to the
extent such
expenditures are made to replace or repair such lost, destroyed,
damaged or
condemned assets, equipment or other property or otherwise to
acquire,
maintain, develop, construct, improve, upgrade or repair assets
or properties
useful in the business of the Borrower and the Subsidiaries
within 12 months
of receipt of such proceeds,
(c) interest capitalized during such period,
(d) expenditures that are accounted for as capital
expenditures of such person and that actually are paid for by a
third party
(excluding the Borrower or any Subsidiary thereof) and for which
neither the
Borrower nor any Subsidiary thereof has provided or is required
to provide or
incur, directly or indirectly, any consideration or obligation
to such third
party or any other person (whether before, during or after such
period),
(e) the book value of any asset owned by such person
prior to or during such period to the extent that such book
value is included
as a capital expenditure during such period as a result of such
person reusing
or beginning to reuse such asset during such period without a
corresponding
expenditure actually having been made in such period, provided
that (i) any
expenditure necessary in order to permit such asset to be reused
shall be
included as a Capital Expenditure during the period that such
expenditure
actually is made and (ii) such book value shall have been
included in Capital
Expenditures when such asset was originally acquired,
(f) the purchase price of equipment purchased during
such period to the extent the consideration therefor consists of
any
combination of (i) used or surplus equipment traded in at the
time of such
purchase and (ii) the proceeds of a concurrent sale of used or
surplus
equipment, in each case, in the ordinary course of business,
(g) Investments in respect of a Permitted Business
Acquisition, or
(h) the Acquisition (including, without limitation,
such transactions contemplated by the Transaction Agreement to
be consummated
after the Closing Date).
"Capital Stock" shall mean:
(a) in the case of a corporation or a company, corporate
stock or shares;
(b) in the case of an association or business entity,
any and all shares, interests, participations, rights or other
equivalents
(however designated) of corporate stock;
(c) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or
limited); and
(d) any other interest or participation that confers on
a Person the right to receive a share of the profits and losses
of, or
distributions of assets of, the issuing Person.
"Capitalized Lease Obligation" shall mean, at the time any
determination thereof is to be made, the amount of the liability
in respect of
a capital lease that would at such time be required to be
capitalized and
reflected as a liability on a balance sheet (excluding the
footnotes thereto)
in accordance with GAAP.
"Cash Interest Expense" shall mean, with respect to the
Borrower and the Subsidiaries on a consolidated basis for any
period,
Consolidated Interest Expense for such period, less the sum of
(a) pay-in-kind
Consolidated Interest Expense or other noncash Consolidated
Interest Expense
(including as a result of the effects of purchase accounting),
(b) to the
extent included in Consolidated Interest Expense, the
amortization of any
financing fees paid by, or on behalf of, the Borrower or any
Subsidiary,
including such fees paid in connection with the Transactions,
(c) the
amortization of debt discounts, if any, or fees in respect of
Swap Agreements
and (d) to the extent not deducted from Consolidated Interest,
cash interest
income of the Borrower and its Subsidiaries for such period;
provided that
Cash Interest Expense shall exclude any one-time financing fees,
including
those paid in connection with the Transactions or any amendment
of this
Agreement.
"CD Assessment Rate" shall mean for any day as applied to
any ABR Loan, the annual assessment rate in effect on such day
that is payable
by a member of the Bank Insurance Fund maintained by the Federal
Deposit
Insurance Corporation (the "FDIC") classified as
well-capitalized and within
supervisory subgroup "B" (or a comparable successor assessment
risk
classification) within the meaning of 12 C.F.R. ss. 327.4 (or
any successor
provision) to the FDIC (or any successor) for the FDIC's (or
such successor's)
insuring time deposits at offices of such institution in the
United States.
"CD Reserve Percentage" shall mean for any day as applied to
any ABR Loan, that percentage (expressed as a decimal) which is
in effect on
such day, as prescribed by the Board, for determining the
maximum reserve
requirement for a Depositary Institution (as defined in
Regulation D of the
Board as in effect from time to time) in respect of new
non-personal time
deposits in Dollars having a maturity of 30 days or more.
A "Change in Control" shall be deemed to occur if:
(a) at any time prior to a Qualified IPO, (i) any
combination of Permitted Holders shall fail to own beneficially
(within the
meaning of Rule 13d-5 of the Exchange Act as in effect on the
Closing Date),
directly or indirectly, in the aggregate Equity Interests
representing at
least 51% of (x) the aggregate ordinary voting power represented
by the issued
and outstanding Equity Interests of the Borrower or (y) the
common economic
interest represented by the issued and outstanding Equity
Interests of the
Borrower or (ii) any Person, other than a Permitted Holder,
shall become the
managing member of the Borrower; or
(b) at any time after a Qualified IPO, any Person or
"group" (within the meaning of Rules 13d-3 and 13d-5 under the
Securities
Exchange Act of 1934, as in effect on the Closing Date), other
than any
combination of the Permitted Holders, shall have acquired
beneficial ownership
of 25% or more on a fully diluted basis of the voting or
economic interest in
the Borrower's capital stock and the Permitted Holders shall
own, directly or
indirectly, less than such Person or "group" on a fully diluted
basis of the
economic and voting interest in Borrower's capital stock.
"Change in Law" shall mean (a) the adoption of any law, rule
or regulation after the Closing Date, (b) any change in law,
rule or
regulation or in the interpretation or application thereof by
any Governmental
Authority after the Closing Date or (c) compliance by any Lender
(or, for
purposes of Section 2.15(b), by any Lending Office of such
Lender or by such
Lender's holding company, if any) with any written request,
guideline or
directive (whether or not having the force of law) of any
Governmental
Authority made or issued after the Closing Date.
"Charges" shall have the meaning assigned to such term in
Section 9.09.
"Closing Date" shall mean the date on which the conditions
precedent set forth in Section 4 shall have been satisfied,
which date shall
be not later than June 30, 2005.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral" shall mean all the "Collateral" as defined in
any Second Lien Security Document and shall also include the
Mortgaged
Properties.
"Collateral and Guarantee Requirement" shall mean the
requirement that:
(a) on the Closing Date, the Administrative Agent shall
have received (I) from the Borrower and each Subsidiary Loan
Party, a
counterpart of the Second Lien Collateral Agreement duly
executed and
delivered on behalf of such person, (II) from each Parent, a
counterpart of
the Parent Pledge Agreement duly executed and delivered on
behalf of such
person and (III) from each Loan Party listed on Schedule
1.01(c), a
counterpart of a Foreign Pledge Agreement duly executed and
delivered by such
Loan Party with respect to the amount of Equity Interests of
each "first tier"
Foreign Subsidiary directly owned by such Loan Party and
included on Schedule
1.01(c);
(b) on the Closing Date, the Administrative Agent shall
have received (I) a pledge of all the issued and outstanding
Equity Interests
of (A) the Borrower and (B) each Domestic Subsidiary owned on
the Closing Date
directly by or on behalf of the Borrower or any Subsidiary Loan
Party and (II)
a pledge of 65% of the outstanding Equity Interests of each
"first tier"
Foreign Subsidiary directly owned by the Borrower or a
Subsidiary Loan Party;
and the Administrative Agent shall have received all
certificates or other
instruments (if any) representing such Equity Interests,
together with stock
powers or other instruments of transfer with respect thereto
endorsed in
blank;
(c) on the Closing Date, all Indebtedness of the
Borrower and each Subsidiary having, in the case of each
instance of
Indebtedness, an aggregate principal amount in excess of
$500,000 (other than
(i) intercompany current liabilities incurred in the ordinary
course of
business in connection with the cash management operations of
the Borrower and
its Subsidiaries or (ii) to the extent that a pledge of such
promissory note
or instrument would violate applicable law) that is owing to any
Loan Party
and evidenced by a promissory note or an instrument shall have
been pledged
pursuant to the Second Lien Collateral Agreement, and the First
Lien
Administrative Agent shall have received all such promissory
notes or
instruments, together with note powers or other instruments of
transfer with
respect thereto endorsed in blank;
(d) in the case of any person that becomes a Subsidiary
Loan Party after the Closing Date, the Administrative Agent
shall have
received a supplement to the Second Lien Collateral Agreement,
in the form
specified therein, duly executed and delivered on behalf of such
Subsidiary
Loan Party;
(e) in the case of any person that becomes a "first
tier" Material Foreign Subsidiary directly owned by the Borrower
or a
Subsidiary Loan Party after the Closing Date, the Administrative
Agent shall
have received, as promptly as practicable following a request by
the
Administrative Agent, a Foreign Pledge Agreement, duly executed
and delivered
by the direct parent company of such Foreign Subsidiary on
behalf of such
Foreign Subsidiary;
(f) after the Closing Date, all the outstanding Equity
Interests of (A) any person that becomes a Subsidiary Loan Party
after the
Closing Date and (B) subject to Section 5.10(g), all the Equity
Interests that
are acquired by a Loan Party after the Closing Date, shall have
been pledged
pursuant to the Second Lien Collateral Agreement (provided that
with respect
to any Foreign Subsidiary in no event shall more than 65% of the
issued and
outstanding Equity Interests thereof be pledged to secure Second
Lien Credit
Agreement Obligations of the Borrower and only if such Foreign
Subsidiary is
or becomes a Material Foreign Subsidiary), and the
Administrative Agent (or,
to the extent provided in the Second Lien Collateral Agreement,
the First Lien
Administrative Agent) shall have received all certificates or
other
instruments (if any) representing such Equity Interests,
together with stock
powers or other instruments of transfer with respect thereto
endorsed in
blank;
(g) except as set forth pursuant to Section 3.04 or as
otherwise contemplated by any Second Lien Security Document, all
documents and
instruments, including Uniform Commercial Code financing
statements, required
by law or reasonably requested by the Administrative Agent to be
filed,
registered or recorded to create the Liens intended to be
created by the
Second Lien Security Documents (in each case, including any
supplements
thereto) and perfect such Liens to the extent required by, and
with the
priority required by, the Second Lien Security Documents, shall
have been
filed, registered or recorded or delivered to the Administrative
Agent for
filing, registration or the recording concurrently with, or
promptly
following, the execution and delivery of each such Second Lien
Security
Document;
(h) on the Closing Date, the Administrative Agent shall
have received (i) counterparts of each Mortgage to be entered
into with
respect to each Mortgaged Property set forth on Schedule 1.01(b)
duly executed
and delivered by the record owner of such Mortgaged Property,
(ii) such other
documents as the Administrative Agent may reasonably request
with respect to
any such Mortgage or Mortgaged Property and (iii) a Real
Property Officers'
Certificate substantially in the form of Exhibit G attached
hereto with
respect to each Mortgaged Property;
(i) on the Closing Date, or as soon as is practicable
not to exceed 60 days from the Closing Date, the Administrative
Agent shall
have received (i) a policy or policies or marked-up
unconditional binder of
title insurance or foreign equivalent thereof, as applicable,
paid for by the
Borrower, issued by a nationally recognized title insurance
company insuring
the Lien of each Mortgage to be entered into on the Closing Date
as a valid
second Lien on the Mortgaged Property described therein, free of
any other
Liens except as permitted by Section 6.02 and Liens arising by
operation of
law, together with such endorsements, coinsurance and
reinsurance as the
Administrative Agent may reasonably request and (ii) a survey of
any Mortgaged
Property (and all improvements thereon), or foreign equivalent
thereof, as
applicable, which is (1) dated (or redated) not earlier than six
months prior
to the date of delivery thereof unless there shall have occurred
within six
months prior to such date of delivery any exterior construction
on the site of
such Mortgaged Property, in which event such survey shall be
dated (or
redated) after the completion of such construction or if such
construction
shall not have been completed as of such date of delivery, not
earlier than 20
days prior to such date of delivery, (2) certified by the
surveyor (in a
manner reasonably acceptable to the Administrative Agent) to
the
Administrative Agent and the title insurance company insuring
the Mortgage,
(3) complying in all respects with the minimum detail
requirements of the
American Land Title Association as such requirements are in
effect on the date
of preparation of such survey and (4) sufficient for such title
insurance
company to remove all standard survey exceptions from the title
insurance
policy relating to such Mortgaged Property or otherwise
reasonably acceptable
to the Administrative Agent; and
(j) except as disclosed on Schedule 3.04 or as
otherwise contemplated by any Second Lien Security Document,
each Loan Party
shall have obtained all consents and approvals required to be
obtained by it
in connection with (i) the execution and delivery of all Second
Lien Security
Documents (or supplements thereto) to which it is a party and
the granting by
it of the Liens thereunder and (ii) the performance of its
obligations
thereunder.
"Commitment" shall mean with respect to each Lender, the
commitment of such Lender to make Loans on the Closing Date as
set forth in
Section 2.01. The aggregate amount of the Commitments on the
Closing Date is
$75 million.
"Communications Licenses" shall mean, collectively, all FCC
Licenses and all Foreign Licenses.
"Conduit Lender" shall mean any special purpose corporation
organized and administered by any Lender for the purpose of
making Loans
otherwise required to be made by such Lender and designated by
such Lender in
a written instrument; provided, that the designation by any
Lender of a
Conduit Lender shall not relieve the designating Lender of any
of its
obligations to fund a Loan under this Agreement if, for any
reason, its
Conduit Lender fails to fund any such Loan, and the designating
Lender (and
not the Conduit Lender) shall have the sole right and
responsibility to
deliver all consents and waivers required or requested under
this Agreement
with respect to its Conduit Lender, and provided, further, that
no Conduit
Lender shall (a) be entitled to receive any greater amount
pursuant to Section
2.15, 2.16, 2.17 or 9.05 than the designating Lender would have
been entitled
to receive in respect of the extensions of credit made by such
Conduit Lender
or (b) be deemed to have any Commitment.
"Consolidated Interest Expense" shall mean, with respect to
any Person for any period, the sum, without duplication, of:
(a) consolidated interest expense of such Person and
its Subsidiaries for such period, to the extent such expense was
deducted in
computing Consolidated Net Income (including amortization of
original issue
discount, the interest component of Capitalized Lease
Obligations (and, to the
extent not included therein, the Indebtedness under Equipment
Financing
Agreements), and net payments and receipts (if any) pursuant to
interest rate
Hedging Obligations and excluding amortization of deferred
financing fees,
expensing of any bridge or other financing fees and any interest
under
Satellite Purchase Agreements);
(b) consolidated capitalized interest of such Person and
its Subsidiaries for such period, whether paid or accrued;
and
(c) commissions, discounts, yield and other fees and
charges Incurred in connection with any Receivables Financing
which are
payable to Persons other than the Borrower and its
Subsidiaries;
less interest income for such period;
provided, that for purposes of calculating Consolidated Interest
Expense, no
effect shall be given to the discount and/or premium resulting
from the
bifurcation of derivatives under Statement of Financial
Accounting Standards
No. 133 and related interpretations as a result of the terms of
the
Indebtedness to which such Consolidated Interest Expense
relates.
"Consolidated Net Income" shall mean, with respect to any
Person for any period, the aggregate of the Net Income of such
Person and its
Subsidiaries for such period, on a consolidated basis; provided,
that:
(a) any net after-tax extraordinary or nonrecurring or
unusual gains or losses (less all fees and expenses relating
thereto), or
income or expense or charge (including, without limitation, any
severance,
relocation or other restructuring costs and transition expenses
Incurred as a
direct result of the transition of the Borrower to an
independent operating
company in connection with the Transactions) and fees, expenses
or charges
related to any offering of equity interests of such Person,
Investment,
acquisition or Indebtedness permitted to be incurred by this
Agreement (in
each case, whether or not successful), including any such fees,
expenses or
charges related to the Transactions, in each case, shall be
excluded;
(b) any increase in amortization or depreciation or any
one-time non-cash charges resulting from purchase accounting in
connection
with any acquisition that is consummated after the Closing Date
shall be
excluded;
(c) the cumulative effect of a change in accounting
principles during such period shall be excluded;
(d) any net after-tax income or loss from discontinued
operations and any net after-tax gains or losses on disposal of
discontinued
operations shall be excluded;
(e) any net after-tax gains or losses (less all fees
and expenses or charges relating thereto) attributable to
business
dispositions or asset dispositions other than in the ordinary
course of
business (as determined in good faith by senior management or
the Board of
Directors of the Borrower, except that no such determination
shall be required
for asset dispositions reflected as an adjustment in the
calculation of
Adjusted EBITDA set forth in the Offering Memorandum) shall be
excluded;
(f) any net after-tax gains or losses (less all fees
and expenses or charges relating thereto) attributable to the
early
extinguishment of Indebtedness shall be excluded;
(g) the Net Income for such period of any Person that
is not a Subsidiary of such Person or that is accounted for by
the equity
method of accounting, shall be included only to the extent of
the amount of
dividends or distributions or other payments actually paid in
cash (or to the
extent converted into cash) to the referent Person or a
Subsidiary thereof in
respect of such period;
(h) solely for the purpose of determining compliance
with Sections 6.12 and 6.13, the Net Income for such period of
any Subsidiary
(other than any Subsidiary Loan Party) shall be excluded to the
extent that
the declaration or payment of dividends or similar distributions
by such
Subsidiary of its Net Income is not at the date of determination
permitted
without any prior governmental approval (which has not been
obtained) or,
directly or indirectly, by the operation of the terms of its
charter or any
agreement, instrument, judgment, decree, order, statute, rule or
governmental
regulation applicable to such Subsidiary or its equityholders,
unless such
restrictions with respect to the payment of dividends or similar
distributions
have been legally waived (provided that this clause (h) shall
not apply with
respect to the Net Income of Hughes Escorts Communications
Limited); provided
that the Consolidated Net Income of such Person shall be
increased by the
amount of dividends or other distributions or other payments
actually paid in
cash (or converted into cash) by any such Subsidiary to such
Person or a
Subsidiary of such Person, to the extent not already included
therein;
(i) any non-cash impairment charge or asset write-off
resulting from the application of Statement of Financial
Accounting Standards
No. 142 and 144, and the amortization of intangibles arising
pursuant to No.
141, shall be excluded;
(j) any non-cash expenses realized or resulting from
employee benefit plans or post-employment benefit plans, grants
of stock
appreciation or similar rights, stock options or other rights to
officers,
directors and employees of such Person or any of its
Subsidiaries shall be
excluded;
(k) any one-time non-cash compensation charges shall be
excluded; and
(l) non-cash gains, losses, income and expenses
resulting from fair value accounting required by Statement of
Financial
Accounting Standards No. 133 and related interpretations shall
be excluded.
"Consolidated Non-cash Charges" shall mean, with respect to
any Person for any period, the aggregate depreciation,
amortization,
impairment, non-cash compensation, non-cash rent and other
non-cash expenses
of such Person and its Subsidiaries for such period on a
consolidated basis
and otherwise determined in accordance with GAAP, but excluding
(a) any such
charge which consists of or requires an accrual of, or cash
reserve for,
anticipated cash charges for any future period and (b) the
non-cash impact of
recording the change in fair value of any embedded derivatives
under Statement
of Financial Accounting Standards No. 133 and related
interpretations as a
result of the terms of any agreement or instrument to which such
Consolidated
Non-cash Charges relate.
"Consolidated Taxes" shall mean, with respect to any Person
and its Subsidiaries on a consolidated basis for any period,
provision for
taxes based on income, profits or capital, including, without
limitation,
state franchise and similar taxes, and including an amount equal
to the amount
of tax distributions actually made to the holders of Capital
Stock of such
Person or any parent of such Person in respect of such period in
accordance
with Section 6.06(g), which shall be included as though such
amounts had been
paid as income taxes directly by such Person.
"Consolidated Total Indebtedness" shall mean, as at any date
of determination, an amount equal to the sum of (a) the
aggregate amount of
all outstanding Indebtedness of the Borrower and the
Subsidiaries (other than
letters of credit to the extent undrawn) and (b) the aggregate
amount of all
outstanding Disqualified Stock of the Borrower and all Preferred
Stock of
Subsidiaries issued to Persons that are not Loan Parties, with
the amount of
such Disqualified Stock and Preferred Stock equal to the greater
of their
respective voluntary or involuntary liquidation preferences and
maximum fixed
repurchase prices, in each case determined on a consolidated
basis in
accordance with GAAP.
For purposes hereof, the "maximum fixed repurchase price" of
any Disqualified Stock or Preferred Stock that does not have a
fixed price
shall be calculated in accordance with the terms of such
Disqualified Stock or
Preferred Stock as if such Disqualified Stock or Preferred Stock
were
purchased on any date on which Consolidated Total Indebtedness
shall be
required to be determined pursuant to this Agreement, and if
such price is
based upon, or measured by, the Fair Market Value of such
Disqualified Stock
or Preferred Stock, such Fair Market Value shall be determined
reasonably and
in good faith by senior management or the Board of Directors of
the Borrower.
"Contingent Obligations" shall mean, with respect to any
Person, any obligation of such Person guaranteeing any leases,
dividends or
other obligations that do not constitute Indebtedness ("primary
obligations")
of any other Person (the "primary obligor") in any manner,
whether directly or
indirectly, including, without limitation, any obligation of
such Person,
whether or not contingent:
(a) to purchase any such primary obligation or any
property constituting direct or indirect security therefor;
(b) to advance or supply funds:
(i) for the purchase or payment of any such primary
obligation; or
(ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or
solvency of
the primary obligor; or
(c) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such
primary obligation
of the ability of the primary obligor to make payment of such
primary
obligation against loss in respect thereof.
"Control" shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management
or policies of
a person, whether through the ownership of voting securities, by
contract or
otherwise, and "Controlling" and "Controlled" shall have
meanings correlative
thereto.
"Contributed SPACEWAY Assets" shall have the meaning
assigned to such term in the Transaction Agreement.
"Contribution Financing" shall mean, in connection with the
consummation of the Acquisition, (a) the purchase by SkyTerra
and its
Affiliates from HNS of 50% of the class A units of the Borrower
for an
aggregate amount of not less than $50.0 million in cash and
300,000 shares of
common stock of SkyTerra and (b) the equity contribution by
DIRECTV or its
Affiliates to the Borrower in an aggregate amount of not less
than $50.0
million.
"Cumulative Credit" shall mean, as of any date, the sum of
(without duplication):
(a) cumulative Adjusted EBITDA of the Borrower for the
period (taken as one accounting period) from and after the first
day of the
fiscal quarter during which the Closing Date occurs to the end
of the
Borrower's most recently ended fiscal quarter for which internal
financial
statements are available (or, in the case such Adjusted EBITDA
for such period
is a negative, minus the amount by which cumulative Adjusted
EBITDA is less
than zero), plus
(b) 100% of the aggregate net proceeds, including cash
and the Fair Market Value (as determined in accordance with the
next succeeding
sentence) of property other than cash, received by the Borrower
after the
Closing Date from the issue or sale of Equity Interests of the
Borrower
(excluding Disqualified Stock), plus
(c) 100% of the aggregate amount of contributions to the
capital of the Borrower received in cash and the Fair Market
Value (as
determined in accordance with the next succeeding sentence) of
property other
than cash after the Closing Date (other than Disqualified Stock
and
contributions by a Subsidiary).
The Fair Market Value of property other than cash covered by
clauses (b) and (c) above shall be determined in good faith by
the Board of
Directors or managing member of the Borrower and
(A) in the event of property with a Fair Market Value in
excess of $10.0 million, shall be set forth in a certificate of
a
Financial Officer of the Borrower or
(B) in the event of property with a Fair Market Value in
excess of $25.0 million, shall be set forth in a resolution
approved
by at least a majority of the Board of Directors or the
managing
member of the Borrower.
"Cumulative Interest Expense" shall mean, as of any date,
the sum of the aggregate amount of Consolidated Interest Expense
of the
Borrower and the Subsidiaries for the period from and after the
first day of
the fiscal quarter during which the Closing Date occurs to the
end of the
Borrower's most recently ended fiscal quarter for which internal
financial
statements are available.
"Cure Amount" shall have the meaning assigned to such term
in Section 7.03(a).
"Cure Right" shall have the meaning assigned to such term in
Section 7.03(a).
"Current Assets" shall mean, with respect to the Borrower
and the Subsidiaries on a consolidated basis at any date of
determination, all
assets (other than cash and Permitted Investments or other cash
equivalents)
that would, in accordance with GAAP, be classified on a
consolidated balance
sheet of the Borrower and the Subsidiaries as current assets at
such date of
determination, other than amounts related to current or deferred
Taxes based
on income or profits.
"Current Liabilities" shall mean, with respect to the
Borrower and the Subsidiaries on a consolidated basis at any
date of
determination, all liabilities that would, in accordance with
GAAP, be
classified on a consolidated balance sheet of the Borrower and
the
Subsidiaries as current liabilities at such date of
determination, other than
(a) the current portion of any Indebtedness, (b) accruals of
Consolidated
Interest Expense (excluding Consolidated Interest Expense that
is due and
unpaid), (c) accruals for current or deferred Taxes based on
income or
profits, (d) accruals, if any, of transaction costs resulting
from the
Transactions, and (e) accruals of any costs or expenses related
to (i)
severance or termination of employees prior to the Closing Date
or (ii)
bonuses, pension and other post-retirement benefit obligations,
and (f)
accruals for add-backs to Adjusted EBITDA included in clauses
(c), (d) and (e)
of the definition of such term.
"Debt to Adjusted EBITDA Ratio" shall mean, with respect to
the Borrower on any date, the ratio of (a) Consolidated Total
Indebtedness as
of such date (the "Calculation Date") to (b) Adjusted EBITDA of
the Borrower
for the four consecutive fiscal quarters immediately preceding
such
Calculation Date.
For purposes of making the computation referred to above and
for other pro forma calculations required hereunder,
Investments,
acquisitions, dispositions, mergers or consolidations (as
determined in
accordance with GAAP) that have been made by the Borrower or any
Subsidiary
during the four-quarter reference period or subsequent to such
reference
period and on or prior to or simultaneously with the Calculation
Date shall be
calculated on a pro forma basis assuming that all such
Investments,
acquisitions, dispositions, mergers or consolidations (including
the
Transactions) (and the change in any associated Consolidated
Total
Indebtedness obligations and the change in Adjusted EBITDA
resulting
therefrom) had occurred on the first day of the four-quarter
reference period.
If since the beginning of such period any Person (that
subsequently became a
Subsidiary or was merged with or into the Borrower or any
Subsidiary since the
beginning of such period) shall have made any Investment,
acquisition,
disposition, merger or consolidation that would have required
adjustment
pursuant to this definition, then the Debt to Adjusted EBITDA
Ratio shall be
calculated giving pro forma effect thereto for such period as if
such
Investment, acquisition, disposition, merger or consolidation
had occurred at
the beginning of the applicable four-quarter period. For
purposes of this
definition, whenever pro forma effect is to be given to an
Investment,
acquisition, disposition, merger or consolidation (including the
Transactions)
and the amount of income or earnings relating thereto, the pro
forma
calculations shall be determined in good faith by a Financial
Officer of the
Borrower and shall comply with the requirements of Rule 11-02 of
Regulation
S-X promulgated by the Commission, except that such pro forma
calculations may
include operating expense reductions for such period resulting
from the
transaction which is being given pro forma effect that have been
realized or
for which substantially all the steps necessary for realization
have been
taken or are reasonably expected to be taken within six months
following any
such transaction, including, but not limited to, the execution
or termination
of any contracts, the reduction of costs related to
administrative functions
or the termination of any personnel, as applicable; provided
that, in either
case, such adjustments are set forth in a certificate signed by
a Financial
Officer of the Borrower and another Responsible Officer which
states (i) the
amount of such adjustment or adjustments, (ii) that such
adjustment or
adjustments are based on the reasonable good faith beliefs of
the Responsible
Officers executing such certificate at the time of such
execution and (iii)
that any related incurrence of Indebtedness is permitted
pursuant to this
Agreement. If any Indebtedness bears a floating rate of interest
and is being
given pro forma effect, the interest on such Indebtedness shall
be calculated
as if the rate in effect on the Calculation Date had been the
applicable rate
for the entire period (taking into account any Hedging
Obligations applicable
to such Indebtedness if the related hedge has a remaining term
in excess of
twelve months). Interest on a Capitalized Lease Obligation shall
be deemed to
accrue at an interest rate reasonably determined by a Financial
Officer of the
Borrower to be the rate of interest implicit in such Capitalized
Lease
Obligation in accordance with GAAP. Interest on Indebtedness
that may
optionally be determined at an interest rate based upon a factor
of a prime or
similar rate, a eurocurrency interbank offered rate, or other
rate, shall be
deemed to have been based upon the rate actually chosen, or, if
none, then
based upon such optional rate chosen as the Borrower may
designate.
"Debt Service" shall mean, with respect to the Borrower and
the Subsidiaries on a consolidated basis for any period, Cash
Interest Expense
for such period plus scheduled principal amortization of
Consolidated Total
Indebtedness for such period.
"Default" shall mean any event or condition that upon
notice,
lapse of time or both would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to
which a Lender Default is in effect.
"DIRECTV" shall have the meaning assigned to such term in
the first recital hereto.
"Disqualified Stock" shall mean, with respect to any Person,
any Capital Stock of such Person which, by its terms (or by the
terms of any
security into which it is convertible or for which it is
redeemable, putable
or exchangeable), or upon the happening of any event:
(a) matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise,
(b) is convertible or exchangeable for Indebtedness or
Disqualified Stock of such Person, or
(c) is redeemable at the option of the holder thereof,
in whole or in part,
in each case prior to 91 days after the Maturity Date;
provided, however, that only the portion of Capital Stock
which so matures or is mandatorily redeemable, is so convertible
or
exchangeable or is so redeemable at the option of the holder
thereof prior to
such date shall be deemed to be Disqualified Stock; provided,
further,
however, that (x) if such Capital Stock is issued to any
employee or to any
plan for the benefit of employees of the Borrower or its
Subsidiaries or by
any such plan to such employees, such Capital Stock shall not
constitute
Disqualified Stock solely because it may be required to be
repurchased by the
Borrower in order to satisfy applicable statutory or regulatory
obligations or
as a result of such employee's termination, death or disability
and (y) such
Capital Stock shall not constitute Disqualified Stock if such
Capital Stock
matures or is mandatorily redeemable or is redeemable at the
option of the
holders thereof as a result of a change of control or asset
sale; provided,
further, that any class of Capital Stock of such Person that by
its terms
authorizes such Person to satisfy its obligations thereunder by
delivery of
Capital Stock that is not Disqualified Stock shall not be deemed
to be
Disqualified Stock.
"Dollars" or "$" shall mean lawful money of the United
States of America.
"Domestic Subsidiary" shall mean any Subsidiary that is not
a Foreign Subsidiary.
"Earth Station" shall mean any earth station of the Borrower
or any of its Subsidiaries that is the subject of a license
granted by the
FCC.
"environment" shall mean ambient and indoor air, surface
water and groundwater (including potable water, navigable water
and wetlands),
the land surface or subsurface strata, natural resources such as
flora and
fauna, the workplace or as otherwise defined in any
Environmental Law.
"Environmental Laws" shall mean all applicable laws
(including common law), rules, regulations, codes, ordinances,
orders,
decrees, judgments, injunctions, notices or binding agreements
issued,
promulgated or entered into by any Governmental Authority,
relating in any way
to the environment, preservation or reclamation of natural
resources, the
generation, management, Release or threatened Release of, or
exposure to, any
Hazardous Material or to health and safety matters (to the
extent relating to
the environment or Hazardous Materials).
"Equipment Financing Agreements" shall mean (a)(i) the
Master Purchase Agreement dated April 27, 1998, between the
Borrower and
Alpine, (ii) the Master Equipment Lease dated April 21, 1998,
between the
Borrower and Alpine and (iii) the Assignment Agreement dated
April 27, 1998,
between the Borrower and Alpine, (b) the equipment financing
arrangements
pursuant to the Master Performance and Counter-Indemnity between
the Borrower
and certain of its Subsidiaries and Barclays Technology Finance
Limited,
Barclays Technology Finance GmbH, Alpine Capital (Europe)
Limited and Alpine
Capital (Europe) Limited GmbH and related agreements, (c) any
and all
assignment agreements entered into by the Borrower and its
Subsidiaries in the
ordinary course of business as contemplated by clauses (a)(i)
through (iii)
and (b) of this definition, in each case, as the same may be
refinanced,
amended, modified, restated, renewed, supplemented or replaced,
and (d) any
agreements between the Borrower or any of its Subsidiaries and
any third-party
relating generally to the subject matter of the agreements set
forth in clause
(a), (b) or (c) of this definition; provided that any agreements
specified in
clauses (c) or (d) of this definition are entered into on terms
consistent
with then prevailing market conditions.
"Equity Interests" shall mean Capital Stock and all
warrants, options or other rights to acquire Capital Stock (but
excluding any
debt security that is convertible into, or exchangeable for,
Capital Stock).
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether
or not incorporated) that, together with the Borrower or a
Subsidiary, is
treated as a single employer under Section 414(b) or (c) of the
Code, or,
solely for purposes of Section 302 of ERISA and Section 412 of
the Code, is
treated as a single employer under Section 414 of the Code.
"ERISA Event" shall mean (a) any Reportable Event; (b) the
existence with respect to any Plan of an "accumulated funding
deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA),
whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or
Section
303(d) of ERISA of an application for a waiver of the minimum
funding standard
with respect to any Plan, the failure to make by its due date a
required
installment under Section 412(m) of the Code with respect to any
Plan or the
failure to make any required contribution to a Multiemployer
Plan; (d) the
incurrence by the Borrower, a Subsidiary or any ERISA Affiliate
of any
liability under Title IV of ERISA with respect to the
termination of any Plan;
(e) the receipt by the Borrower, a Subsidiary or any ERISA
Affiliate from the
PBGC or a plan administrator of any notice relating to an
intention to
terminate any Plan or to appoint a trustee to administer any
Plan under
Section 4042 of ERISA; (f) the incurrence by the Borrower, a
Subsidiary or any
ERISA Affiliate of any liability with respect to the withdrawal
or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the
Borrower, a Subsidiary or any ERISA Affiliate of any notice, or
the receipt by
any Multiemployer Plan from the Borrower, a Subsidiary or any
ERISA Affiliate
of any notice, concerning the imposition of Withdrawal Liability
or a
determination that a Multiemployer Plan is, or is expected to
be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.
"Eurocurrency Borrowing" shall mean a Borrowing comprised of
Eurocurrency Loans.
"Eurocurrency Loan" shall mean any Loan bearing interest at
a rate determined by reference to the Adjusted LIBO Rate in
accordance with
the provisions of Article II.
"Event of Default" shall have the meaning assigned to such
term in Section 7.01.
"Event of Loss" shall mean any event that results in the
Borrower or its Subsidiaries receiving proceeds from any
insurance covering
any Satellite, or in the event that the Borrower or any of its
Subsidiaries
receives proceeds from any insurance maintained for it by any
Satellite
Manufacturer or any launch provider covering any of such
Satellites.
"Event of Loss Proceeds" shall mean, with respect to any
proceeds from any Event of Loss, all Satellite insurance
proceeds received by
the Borrower or any of the Subsidiaries in connection with such
Event of Loss,
after
(1) provision for all income or other taxes measured by
or resulting from such Event of Loss,
(2) payment of all reasonable legal, accounting and other
reasonable fees and expenses related to such Event of
Loss,
(3) payment of amounts required to be applied to the
repayment of Indebtedness secured by a Lien on the Satellite
that is the
subject of such Event of Loss,
(4) provision for payments to Persons who own an
interest in the Satellite (including any transponder thereon) in
accordance
with the terms of the agreement(s) governing the ownership of
such interest by
such Person (other than provision for payments to insurance
carriers required
to be made based on projected future revenues expected to be
generated from
such Satellite in the good faith determination of the Borrower
as evidenced by
a certificate executed by a Financial Officer), and
(5) deduction of appropriate amounts to be provided by
the Borrower or such Subsidiary as a reserve, in accordance with
GAAP, against
any liabilities associated with the Satellite that was the
subject of the
Event of Loss.
"Excess Cash Flow" shall mean, with respect to the Borrower
and the Subsidiaries on a consolidated basis for any Excess Cash
Flow Period,
Adjusted EBITDA of the Borrower and the Subsidiaries on a
consolidated basis
for such Excess Cash Flow Period, minus, without
duplication,
(a) Debt Service for such Excess Cash Flow Period,
(b) (i) the amount of any permanent voluntary
reductions during such Excess Cash Flow Period of commitments
under any
revolving credit facility (including under the First Lien Credit
Agreement) to
the extent that an equal amount of Indebtedness in respect
thereof was
simultaneously repaid and (ii) the amount of any voluntary
prepayment
permitted hereunder of term Indebtedness (other than the Loans,
but including
the First Lien Term Loans) during such Excess Cash Flow Period
to the extent
not financed, or intended to be financed, using the proceeds of
the incurrence
of Indebtedness, so long as the amount of such prepayment is not
already
reflected in Debt Service,
(c) (i) Capital Expenditures by the Borrower and the
Subsidiaries on a consolidated basis during such Excess Cash
Flow Period that
are paid in cash (other than Capital Expenditures in respect of
SPACEWAY and
related assets in an aggregate amount equal to $175 million) and
(ii) the
aggregate consideration paid in cash during the Excess Cash Flow
period in
respect of Permitted Business Acquisitions and other Investments
permitted
hereunder to the extent not financed with the proceeds of
Indebtedness other
than Loans or First Lien Term Loans (less any amounts received
in respect
thereof as a return of capital).
(d) Capital Expenditures that the Borrower or any
Subsidiary shall, during such Excess Cash Flow Period, become
obligated to
make but that are not made during such Excess Cash Flow Period,
provided that
the Borrower shall deliver a certificate to the Administrative
Agent not later
than 90 days after the end of such Excess Cash Flow Period,
signed by a
Responsible Officer of the Borrower and certifying that such
Capital
Expenditures and the delivery of the related equipment will be
made in the
following Excess Cash Flow Period,
(e) Taxes paid in cash by the Borrower and its
Subsidiaries on a consolidated basis during such Excess Cash
Flow Period or
that will be paid within six months after the close of such
Excess Cash Flow
Period (provided that any amount so deducted that will be paid
after the close
of such Excess Cash Flow Period shall not be deducted again in a
subsequent
Excess Cash Flow Period) and for which reserves have been
established,
including income tax expense and withholding tax expense
incurred in
connection with cross-border transactions involving the Foreign
Subsidiaries,
(f) an amount equal to any increase in Working Capital
of the Borrower and its Subsidiaries for such Excess Cash Flow
Period,
(g) cash expenditures made in respect of Swap
Agreements during such Excess Cash Flow Period, to the extent
not reflected in
the computation of Adjusted EBITDA or Cash Interest Expense,
(h) permitted dividends or distributions or repurchases
of its Equity Interests paid in cash by the Borrower during such
Excess Cash
Flow Period and permitted dividends paid by the Borrower or by
any Subsidiary
to any person other than the Borrower or any of the Subsidiaries
during such
Excess Cash Flow Period, in each case in accordance with Section
6.06 (other
than 6.06(f)(ii)),
(i) amounts paid in cash during such Excess Cash Flow
Period on account of (x) items that were accounted for as
noncash reductions
of Net Income in determining Consolidated Net Income or as
noncash reductions
of Consolidated Net Income in determining Adjusted EBITDA of the
Borrower and
its Subsidiaries in a prior Excess Cash Flow Period and (y)
reserves or
accruals established in purchase accounting,
(j) to the extent not deducted in the computation of
Net Proceeds in respect of any asset disposition or condemnation
giving rise
thereto, the amount of any mandatory prepayment of Indebtedness
(other than
Indebtedness created hereunder or under any other Second Lien
Loan Document),
together with any interest, premium or penalties required to be
paid (and
actually paid) in connection therewith, and
(k) the amount related to items that were added to or
not deducted from Net Income in calculating Consolidated Net
Income or were
added to or not deducted from Consolidated Net Income in
calculating Adjusted
EBITDA to the extent such items represented a cash payment
(which had not
reduced Excess Cash Flow upon the accrual thereof in a prior
Excess Cash Flow
Period), or an accrual for a cash payment, by the Borrower and
its
Subsidiaries or did not represent cash received by the Borrower
and its
Subsidiaries, in each case on a consolidated basis during such
Excess Cash
Flow Period.
plus, without duplication,
----
(a) an amount equal to any decrease in Working Capital
for such Excess Cash Flow Period,
(b) all proceeds received during such Excess Cash Flow
Period of Capitalized Lease Obligations, purchase money
Indebtedness, Sale and
Lease-Back Transactions pursuant to Section 6.03 and any other
Indebtedness,
in each case to the extent used to finance any Capital
Expenditure (other than
Indebtedness under this Agreement or the First Lien Credit
Agreement to the
extent there is no corresponding deduction to Excess Cash Flow
above in
respect of the use of such borrowings),
(c) all amounts referred to in clause (c) above to the
extent funded with the proceeds of the issuance of Equity
Interests of, or
capital contributions to, the Borrower after the Closing Date
(to the extent
not previously used to prepay Indebtedness (other than
Indebtedness under any
revolving credit facility not accompanied by a permanent
reduction in
commitments under such facility), make any investment or capital
expenditure
or otherwise for any purpose resulting in a deduction to Excess
Cash Flow in
any prior Excess Cash Flow Period) or any amount that would have
constituted
Net Proceeds under clause (a) of the definition of the term "Net
Proceeds" if
not so spent, in each case to the extent there is a
corresponding deduction
from Excess Cash Flow above,
(d) to the extent any permitted Capital Expenditures
referred to in clause (d) above and the delivery of the related
equipment do
not occur in the following Excess Cash Flow Period of the
Borrower specified
in the certificate of the Borrower provided pursuant to clause
(d) above, the
amount of such Capital Expenditures that were not so made in
such following
Excess Cash Flow Period,
(e) cash payments received in respect of Swap
Agreements during such Excess Cash Flow Period to the extent (i)
not included
in the computation of Adjusted EBITDA or (ii) such payments do
not reduce Cash
Interest Expense,
(f) any extraordinary or nonrecurring gain realized in
cash during such Excess Cash Flow Period (except to the extent
such gain
consists of Net Proceeds subject to 2.11(b)),
(g) to the extent deducted in the computation of EBITDA,
cash interest income, and
(h) the amount related to items that were deducted from
or not added to Net Income in connection with calculating
Consolidated Net
Income or were deducted from or not added to Consolidated Net
Income in
calculating EBITDA to the extent either (x) such items
represented cash
received by the Borrower or any Subsidiary or (y) such items do
not represent
cash paid by the Borrower or any Subsidiary, in each case on a
consolidated
basis during such Excess Cash Flow Period.
"Excess Cash Flow Period" shall mean (a) the period taken as
one accounting period from the Closing Date and ending December
31, 2005 and
(b) each fiscal year of the Borrower ended thereafter.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended and the rules and regulations of the SEC
promulgated
thereunder.
"Excluded Indebtedness" shall mean all Indebtedness
permitted to be incurred under Section 6.01.
"Excluded Taxes" shall mean, with respect to the
Administrative Agent, any Lender, or any other recipient of any
payment to be
made by or on account of any obligation of the Borrower
hereunder, (a) income
or franchise taxes imposed on (or measured by) its net income by
the United
States of America (or any state thereof) or the jurisdiction
under the laws of
which such recipient is organized or in which its principal
office is located
or, in the case of any Lender, in which its applicable Lending
Office is
located, (b) any branch profits tax or any similar tax that is
imposed by any
jurisdiction described in clause (a) above and (c) in the case
of a Lender
making a Loan to the Borrower, any withholding tax imposed by
the United
States that is in effect and would apply to amounts payable
hereunder to such
Lender at the time such Lender becomes a party to such Loan to
the Borrower
(or designates a new Lending Office) or is attributable to such
Lender's
failure to comply with Section 2.17(e) with respect to such Loan
except to the
extent that such Lender (or its assignor, if any) was entitled,
at the time of
designation of a new Lending Office (or assignment), to receive
additional
amounts from a Loan Party with respect to any withholding tax
pursuant to
Section 2.17(a) or Section 2.17(c).
"Existing Letters of Credit" shall mean each letter of
credit previously issued for the account of the Borrower or any
Subsidiary by
DIRECTV or any of its Affiliates that is outstanding on the
Closing Date. The
face amount of the Existing Letters of Credit on the Closing
Date is
approximately $23.8 million.
"Facility" shall mean the Commitments and the Loans made
hereunder.
"Fair Market Value" shall mean, with respect to any asset or
property, the price that could be negotiated in an arm's-length
transaction
between a willing seller and a willing and able buyer, neither
of whom is
under undue pressure or compulsion to complete the
transaction.
"FCC" shall mean the Federal Communications Commission or
any governmental authority substituted therefor.
"FCC Licenses" shall mean all authorizations, licenses and
permits, including experimental authorizations, issued by the
FCC or any
governmental authority substituted therefor to the Borrower or
any of its
Subsidiaries, under which the Borrower or any of its
Subsidiaries is
authorized to launch and operate any of its Satellites or to
operate any of
its Earth Stations (other than authorizations, orders, licenses
or permits
that are no longer in effect).
"Federal Funds Effective Rate" shall mean, for any day, the
weighted average (rounded upward, if necessary, to the next
1/100 of 1%) of
the rates on overnight Federal funds transactions with members
of the Federal
Reserve System arranged by Federal funds brokers, as published
on the next
succeeding Business Day by the Federal Reserve Bank of New York,
or, if such
rate is not so published for any day which is a Business Day,
the average
(rounded upward, if necessary, to the next 1/100 of 1%) of the
quotations for
the day of such transactions received by the Administrative
Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" of any person shall mean the Chief
Financial Officer, principal accounting officer, Treasurer,
Assistant
Treasurer or Controller of such person.
"Financial Performance Covenants" shall mean the covenants
of the Borrower set forth in Sections 6.12 and 6.13.
"First Lien Administrative Agent" shall mean JPMorgan Chase
Bank, N.A., in its capacity as administrative agent under the
First Lien
Credit Agreement.
"First Lien Credit Agreement" shall mean the Credit
Agreement, dated as of April __, 2005, among the Borrower, the
several agents,
banks and other financial institutions or entities from time to
time parties
thereto and the First Lien Administrative Agent and any
amendment, waiver,
supplement or other modification thereto.
"First Lien Debt" shall mean at any date the sum of (a) the
aggregate outstanding principal amount of Indebtedness
outstanding under the
First Lien Credit Agreement (other than letters of credit to the
extent
undrawn) and (b) the amount then outstanding under any
Receivables Financing
(as calculated pursuant to clause (d) of the definition of
Indebtedness).
"First Lien Collateral Agreement" shall mean the First Lien
Guarantee and Collateral Agreement executed and delivered by the
First Lien
Administrative Agent, the Borrower and each Subsidiary Loan
Party and any
amendment, waiver, supplement or other modification thereto.
"First Lien Leverage Ratio" shall mean at any date the ratio
of (a) First Lien Debt as of such date of calculation to (b)
Adjusted EBITDA
of the Borrower for the four full fiscal quarters immediately
preceding such
date. The provisions applicable to pro forma transaction and
Indebtedness set
forth in the second paragraph of the definition of "Debt to
Adjusted EBITDA
Ratio" will apply for the purposes of making the computations
referred to in
this definition.
"First Lien Loan Documents" shall mean the First Lien Credit
Agreement, the First Lien Security Documents, any notes issued
pursuant to the
First Lien Credit Agreement and any amendment, waiver,
supplement or other
modification to any of the foregoing.
"First Lien Security Documents" shall mean the collective
reference to the First Lien Guarantee and Collateral Agreement,
any first lien
mortgage delivered to the administrative agent under the First
Lien Credit
Agreement as required thereunder and all other security
documents hereafter
delivered to the administrative agent under the First Lien
Credit Agreement
granting a Lien on any property of any Person to secure the
obligations and
liabilities of any Loan Party under any First Lien Loan
Document.
"First Lien Term Loans" shall mean the term loans borrowed
by the Borrower under the First Lien Credit Agreement.
"Flow Through Entity" shall mean an entity that is treated
as a partnership not taxable as a corporation, a grantor trust
or a
disregarded entity for U.S. federal income tax purposes or
subject to
treatment on a comparable basis for purposes of state, local or
foreign tax
law.
"Foreign Lender" shall mean any Lender that is organized
under the laws of a jurisdiction other than the United States of
America. For
purposes of this definition, the United States of America, each
State thereof
and the District of Columbia shall be deemed to constitute a
single
jurisdiction.
"Foreign Licenses" shall mean all authorizations, orders,
licenses, permits, approvals, consents, and rights issued to the
Borrower or
any of its Subsidiaries by any foreign Governmental Authority
pursuant to any
statute, rule, regulation or policy regarding the operation of
channels of
radio communications and/or the provisions of communications
or
telecommunications services (other than authorizations, orders,
licenses or
permits that are no longer in effect).
"Foreign Pledge Agreement" shall mean a pledge agreement
with respect to the Pledged Collateral that constitutes Equity
Interests of a
first-tier Foreign Subsidiary, in form and substance reasonably
satisfactory
to the Administrative Agent; provided that in no event shall
more than 65% of
the issued and outstanding Equity Interests of such Foreign
Subsidiary be
pledged to secure Second Lien Credit Agreement Obligations of
the Borrower.
"Foreign Subsidiary" shall mean a Subsidiary not organized
or existing under the laws of the United States of America or
any state or
territory thereof or the District of Columbia and any direct or
indirect
subsidiary of such Subsidiary.
"GAAP" shall mean generally accepted accounting principles
in effect from time to time in the United States, applied on a
consistent
basis, subject to the provisions of Section 1.02; provided that
any reference
to the application of GAAP to a Foreign Subsidiary (and not as a
consolidated
Subsidiary of the Borrower) shall mean generally accepted
accounting
principles in effect from time to time in the jurisdiction of
organization of
such Foreign Subsidiary.
"Governmental Authority" shall mean any federal, state,
local or foreign court or governmental agency, authority,
instrumentality or
regulatory or legislative body.
"guarantee" or "Guarantee" shall mean a guarantee (other
than by endorsement of negotiable instruments for collection in
the ordinary
course of business or customary and reasonable indemnity
obligations in effect
on the Closing Date or entered into in connection with an
acquisition or
disposition of assets permitted under this Agreement), direct or
indirect, in
any manner (including, without limitation, letters of credit and
reimbursement
agreements in respect thereof), of all or any part of any
Indebtedness or
other obligations, and "guarantor" and "Guarantor" shall have
meanings
correlative thereto.
"Hazardous Materials" shall mean all pollutants,
contaminants, wastes, chemicals, materials, substances and
constituents,
including, without limitation, explosive or radioactive
substances or
petroleum or petroleum distillates, asbestos or asbestos
containing materials,
polychlorinated biphenyls or radon gas, of any nature subject to
regulation or
which can give rise to liability under any Environmental
Law.
"HNS" shall have the meaning assigned to such term in the
first recital hereto.
"Hedging Obligations" shall mean, with respect to any
Person, the obligations of such Person under:
(a) currency exchange or interest rate swap agreements,
cap agreements and collar agreements; and
(b) other agreements or arrangements designed to manage
exposure or protect such Person against fluctuations in currency
exchange or
interest rates.
"Incur" or "incur" shall mean issue, assume, guarantee,
incur or otherwise become liable for; provided, however, that
any Indebtedness
or Capital Stock of a Person existing at the time such Person
becomes a
Subsidiary (whether by merger, amalgamation, consolidation,
acquisition or
otherwise) shall be deemed to be Incurred by such Person at the
time it
becomes a Subsidiary.
"Indebtedness" shall mean, with respect to any Person,
without duplication:
(a) the principal and premium (if any) of any
indebtedness of such Person, whether or not contingent, (i) in
respect of
borrowed money, (ii) evidenced by bonds, notes, debentures or
similar
instruments or letters of credit or bankers' acceptances (or,
without
duplication, reimbursement agreements in respect thereof), (iii)
representing
the deferred and unpaid purchase price of any property, except
any such
balance that constitutes a current account payable, trade
payable or similar
obligation Incurred, (iv) in respect of Capitalized Lease
Obligations, or (v)
representing any Hedging Obligations, if and to the extent that
any of the
foregoing indebtedness (other than letters of credit and Hedging
Obligations)
would appear as a liability on a balance sheet (excluding the
footnotes
thereto) of such Person prepared in accordance with GAAP;
(b) to the extent not otherwise included, any
obligation of such Person to be liable for, or to pay, as
obligor, guarantor
or otherwise, the Indebtedness of another Person (other than by
endorsement of
negotiable instruments for collection in the ordinary course of
business);
(c) to the extent not otherwise included, Indebtedness
of another Person secured by a Lien on any asset owned by such
Person (whether
or not such Indebtedness is assumed by such Person); provided,
however, that
the amount of such Indebtedness will be the lesser of: (i) the
Fair Market
Value of such asset at such date of determination and (ii) the
amount of such
Indebtedness of such other Person; and
(d) to the extent not otherwise included, with respect
to the Borrower and its Subsidiaries, the amount then
outstanding (i) (i.e.,
advanced, and received by, and available for use by, the
Borrower or any of
its Subsidiaries) under any Receivables Financing (as confirmed
by the agent,
trustee or other representative of the institution or group
providing such
Receivables Financing) or (ii) under any Equipment Financing
Agreement;
provided, however, that notwithstanding the foregoing,
Indebtedness shall be
deemed not to include (1) Contingent Obligations incurred in the
ordinary
course of business and not in respect of borrowed money; (2)
deferred or
prepaid revenues; (3) purchase price holdbacks in respect of a
portion of the
purchase price of an asset to satisfy warranty or other
unperformed
obligations of the respective seller; (4) obligations to make
payments to one
or more insurers under satellite insurance policies in respect
of premiums or
the requirement to remit to such insurer(s) a portion of the
future revenue
generated by a satellite which has been declared a constructive
total loss, in
each case in accordance with the terms of the insurance policies
relating
thereto; (5) any obligations to make progress or incentive
payments or risk
money payments under any satellite manufacturing contract or to
make payments
under satellite launch contracts in respect of launch services
provided
thereunder, in each case, to the extent not overdue by more than
90 days; or
(6) the financing of insurance premiums with the carrier of such
insurance or
take or pay obligations contained in supply agreements, in each
case entered
into in the ordinary course of business.
Notwithstanding anything in this Agreement, Indebtedness
shall not include, and shall be calculated without giving effect
to, the
effects of Statement of Financial Accounting Standards No. 133
and related
interpretations to the extent such effects would otherwise
increase or
decrease an amount of Indebtedness for any purpose under this
Agreement as a
result of accounting for any embedded derivatives created by the
terms of such
Indebtedness; and any such amounts that would have constituted
Indebtedness
under this Agreement but for the application of this sentence
shall not be
deemed an Incurrence of Indebtedness under this Agreement.
"Indemnified Taxes" shall mean all Taxes other than Excluded
Taxes.
"Indemnitee" shall have the meaning assigned to such term in
Section 9.05(b).
"Initial Lender" shall mean JPMorgan Chase Bank, N.A. and
Bear
Stearns Corporate Lending Inc., each in their capacity as a
Lender hereunder.
"In-Orbit Insurance" shall mean, with respect to any
Satellite (or, if the entire Satellite is not owned by the
Borrower or any
Subsidiary, as the case may be, the portion of the Satellite it
owns or for
which it has risk of loss), insurance or other contractual
arrangement
providing for coverage against the risk of loss of or damage to
such Satellite
(or portion, as applicable) attaching upon the expiration of the
launch
insurance therefor (or, if launch insurance is not procured,
upon the initial
completion of in-orbit testing) and attaching, during the
commercial in-orbit
service of such Satellite (or portion, as applicable), upon the
expiration of
the immediately preceding corresponding policy or other
contractual
arrangement, as the case may be, subject to the terms and
conditions set forth
in this Agreement.
"Intercreditor Agreement" shall mean the Intercreditor
Agreement, as amended, supplemented or otherwise modified from
time to time,
in the form of Exhibit I, between the Administrative Agent and
the First Lien
Administrative Agent.
"Interest Election Request" shall mean a request by the
Borrower to convert or continue a Borrowing in accordance with
Section 2.07.
"Interest Payment Date" shall mean, (a) with respect to any
Eurocurrency Loan, the last day of the Interest Period
applicable to the
Borrowing of which such Loan is a part and, in the case of a
Eurocurrency
Borrowing with an Interest Period of more than three months'
duration, each
day that would have been an Interest Payment Date had successive
Interest
Periods of three months' duration been applicable to such
Borrowing and, in
addition, the date of any refinancing or conversion of such
Borrowing with or
to a Borrowing of a different Type and (b) with respect to any
ABR Loan, the
last day of each calendar quarter.
"Interest Period" shall mean, as to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing
or on the last
day of the immediately preceding Interest Period applicable to
such Borrowing,
as applicable, and ending on the numerically corresponding day
(or, if there
is no numerically corresponding day, on the last day) in the
calendar month
that is 1, 2, 3 or 6 months thereafter (or 9 or 12 months, if at
the time of
the relevant Borrowing, all Lenders make interest periods of
such length
available), as the Borrower may elect, or the date any
Eurocurrency Borrowing
is converted to an ABR Borrowing in accordance with Section 2.07
or repaid or
prepaid in accordance with Section 2.09, 2.10 or 2.11; provided,
unless the
Administrative Agent shall otherwise agree, that with respect to
periods
commencing prior to the 31st day after the Closing Date, the
Borrower shall
only be permitted to request Interest Periods of seven days;
provided,
however, that if any Interest Period would end on a day other
than a Business
Day, such Interest Period shall be extended to the next
succeeding Business
Day unless such next succeeding Business Day would fall in the
next calendar
month, in which case such Interest Period shall end on the next
preceding
Business Day. Interest shall accrue from and including the first
day of an
Interest Period to but excluding the last day of such Interest
Period.
"Investment" shall have the meaning assigned to such term in
Section 6.04.
"Joint Lead Arrangers" shall have the meaning assigned to
such term in the introductory paragraph of this Agreement.
"Law" shall mean any treaty, intergovernmental arrangement,
multinational, national, federal, state, provincial or local
law, statute,
ordinance, rule, regulation, judgment, order, injunction,
decree,
determination or arbitration award, of any Governmental
Authority.
"Lender" shall mean each financial institution listed on
Schedule 2.01, as well as any person that becomes a "Lender"
hereunder
pursuant to Section 9.04.
"Lender Default" shall mean (a) the refusal (which has not
been retracted) of a Lender to make available its portion of any
Borrowing, or
(b) a Lender having notified in writing the Borrower and/or the
Administrative
Agent that it does not intend to comply with its obligations
under Section
2.06.
"Lending Office" shall mean, as to any Lender, the
applicable branch, office or Affiliate of such Lender designated
by such
Lender to make Loans.
"LIBO Rate" shall mean, with respect to any Eurocurrency
Borrowing for any Interest Period, the rate per annum determined
by the
Administrative Agent at approximately 11:00 a.m., London time,
on the
Quotation Day for such Interest Period by reference to the
British Bankers'
Association Interest Settlement Rates for deposits in the
currency of such
Borrowing (as reflected on the applicable Telerate screen page),
for a period
equal to such Interest Period; provided that, to the extent that
an interest
rate is not ascertainable pursuant to the foregoing provisions
of this
definition, the "LIBO Rate" shall be the average (rounded
upward, if
necessary, to the next 1/100 of 1%) of the respective interest
rates per annum
at which deposits in the currency of such Borrowing are offered
for such
Interest Period to major banks in the London interbank market by
JPMorgan
Chase Bank, N.A. at approximately 11:00 a.m., London time, on
the Quotation
Day for such Interest Period.
"License Subsidiary" shall mean one or more Wholly Owned
Subsidiaries of the Borrower (i) that holds, was formed for the
purpose of
holding or is designated to hold FCC Licenses and (ii) all of
the shares of
Capital Stock and other ownership interests of which are held
directly by the
Borrower or a Subsidiary Loan Party.
"Lien" shall mean, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any
kind in respect
of such asset, whether or not filed, recorded or otherwise
perfected under
applicable law (including any conditional sale or other title
retention
agreement, any lease in the nature thereof, any other agreement
to give a
security interest and, except in connection with any Qualified
Receivables
Financing, any filing of or agreement to give any financing
statement under
the Uniform Commercial Code or equivalent statutes of any
jurisdiction);
provided that in no event shall an operating lease or an
agreement to sell be
deemed to constitute a Lien.
"Loan Installment Date" shall have the meaning assigned to
such term in Section 2.10.
"Loan Parties" shall mean the Borrower and the Subsidiary
Loan Parties.
"Loans" shall mean the term loans made by the Lenders to the
Borrower pursuant to Section 2.01.
"Local Time" shall mean New York City time.
"Margin Stock" shall have the meaning assigned to such term
in Regulation U.
"Material Adverse Effect" shall mean the existence of any
event, development or circumstance that has had or could
reasonably be
expected to have a material adverse effect on (a) the
Transactions, (b) the
business, property, operations or condition (financial or
otherwise) of the
Borrower and its Subsidiaries, taken as a whole, or (c) the
validity or
enforceability of any of the Second Lien Loan Documents or the
rights and
remedies of the Administrative Agent and the Lenders
thereunder.
"Material Foreign Subsidiary" shall mean a Foreign
Subsidiary that is a Material Subsidiary.
"Material Indebtedness" shall mean Indebtedness (other than
Loans) of any one or more of the Borrower or any Subsidiary in
an aggregate
principal amount exceeding $25.0 million.
"Material Subsidiary" shall have the meaning assigned to
such term in Section 7.02.
"Maturity Date" shall mean April 22, 2013.
"Maximum Rate" shall have the meaning assigned to such term
in Section 9.09.
"Moody's" shall mean Moody's Investors Service, Inc. or any
successor to the rating agency business thereof.
"Mortgaged Properties" shall mean the owned real properties
of the Loan Parties set forth on Schedule 1.01(c) and each
additional real
property encumbered by a Mortgage pursuant to Section 5.10.
"Mortgages" shall mean the mortgages, deeds of trust, deeds
to secure debt, assignments of leases and rents, and other
security documents
delivered pursuant to Section 5.10 and clause (h) of the
definition of
Collateral and Guarantee Requirement, as amended, supplemented
or otherwise
modified from time to time, with respect to Mortgaged
Properties, each
substantially in the form of Exhibit D, with such changes as
consented to by
the Administrative Agent as evidenced by its execution of any
Mortgage
containing any such change.
"Multiemployer Plan" shall mean a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which the Borrower or
any Subsidiary
or any ERISA Affiliate (other than one considered an ERISA
Affiliate only
pursuant to subsection (m) or (o) of Code Section 414) is making
or accruing
an obligation to make contributions, or has within any of the
preceding six
plan years made or accrued an obligation to make
contributions.
"Net Income" shall mean, with respect to any person, the net
income (loss) of such person, determined in accordance with GAAP
and before
any reduction in respect of preferred stock dividends.
"Net Proceeds" shall mean:
(a) 100% of (i) any Event of Loss Proceeds and (ii) the
cash proceeds actually received by the Borrower or any of their
Subsidiaries
(including any cash payments received by way of deferred payment
of principal
pursuant to a note or installment receivable or purchase price
adjustment
receivable or otherwise and including casualty insurance
settlements and
condemnation awards, but only as and when received) from any
loss, damage,
destruction or condemnation of, or any sale, transfer or other
disposition
(including any sale and leaseback of assets and any mortgage or
lease of real
property) to any person of any asset or assets of the Borrower
or any
Subsidiary (other than pursuant to Section 6.05 (a) through (j),
(l) and (m),
net of (A) attorneys' fees, accountants' fees, investment
banking fees, survey
costs, title insurance premiums, and related search and
recording charges,
transfer taxes, deed or mortgage recording taxes, required debt
payments and
required payments of other obligations relating to the
applicable asset (other
than pursuant hereto, or pursuant to any Permitted Debt
Securities or any
Permitted Refinancing Indebtedness in respect thereof), other
customary
expenses and brokerage, consultant and other customary fees
actually incurred
in connection therewith and (B) Taxes paid or payable as a
result thereof
provided that, in each case, if no Event of Default exists and
Borrower shall
deliver a certificate of a Responsible Officer to the
Administrative Agent
promptly following receipt of any such proceeds setting forth
the Borrower's
intention to use (or enter into a binding commitment to use) any
portion of
such proceeds, to acquire, maintain, develop, construct,
improve, upgrade or
repair assets useful in the business of the Borrower and the
Subsidiaries or
to make investments in Permitted Business Acquisitions or
Investments
permitted by Section 6.04(i), in each case within 12 months of
such receipt,
such portion of such proceeds shall not constitute Net Proceeds
except to the
extent not so used (or entered into) within such 12-month period
or not used
in accordance with the terms of such binding commitment, and
provided,
further, that (x) no proceeds realized in a single transaction
or series of
related transactions shall constitute Net Proceeds unless such
proceeds shall
exceed $1.0 million and (y) no proceeds shall constitute Net
Proceeds in any
fiscal year until the aggregate amount of all such proceeds in
such fiscal
year shall exceed $4.0 million,
(b) 100% of the cash proceeds from the incurrence,
issuance or sale by the Borrower or any Subsidiary of any
Indebtedness (other
than Excluded Indebtedness), net of all taxes and fees
(including investment
banking fees), commissions, costs and other expenses, in each
case incurred in
connection with such issuance or sale, and
(c) 50% of the cash proceeds from the issuance or sale
of any Equity Interest of the Borrower or any Subsidiary at any
time after
SPACEWAY has entered commercial operation (other than Equity
Interests (i) of
the Borrower issued to the then existing holders of the Equity
Interests of
the Borrower, (ii) Equity Interests of any Subsidiary issued to
the then
existing owners of such Subsidiary and (iii) Equity Interests
issued to
finance a Permitted Business Acquisition, an Investment
permitted by Section
6.04(i) or a permitted Capital Expenditure) net of all taxes and
fees
(including investment banking fees), commissions, costs and
other expenses, in
each case incurred in connection with such issuance or sale.
For purposes of calculating the amount of Net Proceeds,
fees, commissions and other costs and expenses payable to the
Borrower or any
Affiliate thereof shall be disregarded, except for financial
advisory fees
customary in type and amount paid to Affiliates of SkyTerra.
"Non-Consenting Lender" shall have the meaning assigned to
such term in Section 2.19(c).
"Note" shall have the meaning assigned to such term in
Section 2.09(e).
"Offering Memorandum" shall mean the certain preliminary
offering memorandum dated April 5, 2005 relating to the
Borrower's proposed
offering of senior notes.
"Other Taxes" shall mean any and all present or future stamp
or documentary taxes or any other excise or property taxes,
charges or similar
levies arising from any payment made hereunder or from the
execution, delivery
or enforcement of, or otherwise with respect to, the Second Lien
Loan
Documents, and any and all interest and penalties related
thereto.
"Parents" shall have the meaning assigned to such term in
the first recital hereto.
"Parent Pledge Agreement" shall mean the Second Lien Parent
Pledge Agreement, as amended, supplemented or otherwise modified
from time to
time, in the form of Exhibit H, to be made by the Parents in
favor of the
Administrative Agent, for the ratable benefit of the
Lenders.
"Participant" shall have the meaning assigned to such term
in Section 9.04(c).
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
"Perfection Certificate" shall mean a certificate in the
form of Annex I to the Second Lien Collateral Agreement or any
other form
approved by the Administrative Agent.
"Permitted Business Acquisition" shall mean any acquisition
of all or substantially all the assets of, or all the Equity
Interests (other
than directors' qualifying shares) in, a person or division or
line of
business of a person (or any subsequent investment made in a
person, division
or line of business previously acquired in a Permitted Business
Acquisition)
if (a) such acquisition was not preceded by, or effected
pursuant to, an
unsolicited or hostile offer by the acquirer or an Affiliate of
the acquirer
and (b) immediately after giving effect thereto: (i) no Event of
Default shall
have occurred and be continuing or would result therefrom; (ii)
all
transactions related thereto shall be consummated in accordance
with
applicable laws; and (iii) (A) the Borrower and its Subsidiaries
shall be in
compliance, on a pro forma basis after giving effect to such
acquisition or
formation, with the covenants contained in Sections 6.12 and
6.13 recomputed
as at the last day of the most recently ended fiscal quarter of
the Borrower
and its Subsidiaries, and the Borrower shall have delivered to
the
Administrative Agent a certificate of a Responsible Officer of
the Borrower to
such effect, together with all relevant financial information
for such
Subsidiary or assets, and (B) any acquired or newly formed
Subsidiary shall
not be liable for any Indebtedness (except for Indebtedness
permitted by
Section 6.01).
"Permitted Cure Security" shall mean an equity security of
the Borrower having no mandatory redemption, repurchase or
similar
requirements prior to 91 days after the Maturity Date, and upon
which all
dividends or distributions (if any) shall, prior to 91 days
after the Maturity
Date, be payable solely in additional shares of such equity
security.
"Permitted Debt Securities" shall mean unsecured senior or
senior subordinated notes issued by the Borrower (a) the terms
of which do not
provide for any scheduled repayment, mandatory redemption or
sinking fund
obligation prior to the date that is six months after the
Maturity Date
(except that any such obligations in the nature of "bridge"
notes or loans (i)
may be subject to prepayment with the proceeds of Permitted
Refinancing
Indebtedness in respect thereof or the issuance of Equity
Interests or asset
sales permitted to be issued or made hereunder and the proceeds
of which are
permitted hereunder to be used for such purpose and (ii) may be
subject to
scheduled repayment or mandatory redemption, in each case to the
extent that
the Borrower has the right to cause such obligations to be
exchanged for, or
redeemed with, Permitted Refinancing Indebtedness in respect
thereof), (b) the
covenants, events of default, Subsidiary guarantees and other
terms of which
(other than interest rate and redemption premiums), taken as a
whole, are, in
the reasonable judgment of the Administrative Agent, generally
consistent with
those applicable to similar securities issued by companies with
credit
characteristics similar to those of the Borrower, (c) in respect
of which no
Subsidiary of the Borrower that is not an obligor under the
Second Lien Loan
Documents is an obligor and (d) the proceeds of which are used
to pay or
prepay Loans, to pay or prepay term loans or reduce revolving
commitments
under the First Lien Credit Agreement or to finance a Permitted
Business
Acquisition or any Investment permitted pursuant to Section
6.04(i); provided
that any Permitted Debt Securities used to finance a Permitted
Business
Acquisition or Investment shall provide for subordination of
payments in
respect of such notes to the Second Lien Credit Agreement
Obligations and
guarantees thereof under the Second Lien Loan Documents in a
manner reasonably
satisfactory to the Administrative Agent.
"Permitted Holders" shall mean each of DirecTV, Apollo and
SkyTerra and their Affiliates.
"Permitted Investments" shall mean:
(a) U.S. dollars, pounds sterling, euros, national
currency of any participating member state in the European Union
or, in the
case of any Foreign Subsidiary, such local currencies held by it
from time to
time in the ordinary course of business;
(b) securities issued or directly and fully guaranteed
or insured by the government of the United States or any country
that is a
member of the European Union or any agency or instrumentality
thereof, in each
case with maturities not exceeding two years from the date of
acquisition;
(c) certificates of deposit, time deposits and
eurodollar time deposits with maturities of one year or less
from the date of
acquisition, bankers' acceptances, in each case with maturities
not exceeding
one year, and overnight bank deposits, in each case with any
commercial bank
having capital and surplus in excess of $250.0 million, or the
foreign
currency equivalent thereof, and whose long-term debt is rated
"A" or the
equivalent thereof by Moody's or S&P (or reasonably
equivalent ratings of
another internationally recognized ratings agency);
(d) repurchase obligations for underlying securities of
the types described in clauses (b) and (c) above entered into
with any
financial institution meeting the qualifications specified in
clause (c)
above;
(e) commercial paper issued by a corporation (other
than an Affiliate of the Borrower) rated at least "A-1" or the
equivalent
thereof by Moody's or S&P (or reasonably equivalent ratings
of another
internationally recognized ratings agency) and in each case
maturing within
one year after the date of acquisition;
(f) readily marketable direct obligations issued by any
state of the United States of America or any political
subdivision thereof
having one of the two highest rating categories obtainable from
either Moody's
or S&P (or reasonably equivalent ratings of another
internationally recognized
ratings agency) in each case with maturities not exceeding two
years from the
date of acquisition;
(g) Indebtedness issued by Persons (other than the
Permitted Holders or any of their Affiliates) with a rating of
"A" or higher
from S&P or "A-2" or higher from Moody's (or reasonably
equivalent ratings of
another internationally recognized ratings agency) in each case
with
maturities not exceeding two years from the date of
acquisition;
(h) investment funds investing at least 95% of their
assets in securities of the types described in clauses (a)
through (g) above;
"Permitted Refinancing Indebtedness" shall mean any
Indebtedness issued in exchange for, or the net proceeds of
which are used to
extend, refinance, renew, replace, defease or refund
(collectively, to
"Refinance"), the Indebtedness being Refinanced (or previous
refinancings
thereof constituting Permitted Refinancing Indebtedness);
provided that (a)
the principal amount (or accreted value, if applicable) of such
Permitted
Refinancing Indebtedness (including the principal amount of
commitments under
any revolving credit facility) does not exceed the principal
amount (or
accreted value, if applicable) of the Indebtedness so Refinanced
(including
the principal amount of commitments under any revolving credit
facility) (plus
unpaid accrued interest and premium thereon and underwriting
discounts, fees,
commissions and expenses), (b) the average life to maturity of
such Permitted
Refinancing Indebtedness is greater than or equal to that of the
Indebtedness
being Refinanced, (c) if the Indebtedness being Refinanced is
subordinated in
right of payment to the Second Lien Credit Agreement
Obligations, such
Permitted Refinancing Indebtedness shall be subordinated in
right of payment
to such Second Lien Credit Agreement Obligations on terms at
least as
favorable to the Lenders as those contained in the documentation
governing the
Indebtedness being Refinanced, (d) no Permitted Refinancing
Indebtedness shall
have obligors that are not Loan Parties, or greater guarantees
or security,
than the Indebtedness being Refinanced and (e) if the
Indebtedness being
Refinanced is secured by any collateral (whether equally and
ratably with, or
junior to, the Secured Parties or otherwise), such Permitted
Refinancing
Indebtedness may be secured by such collateral (including in
respect of
working capital facilities of Foreign Subsidiaries otherwise
permitted under
this Agreement only, any collateral pursuant to after-acquired
property
clauses to the extent any such collateral secured the
Indebtedness being
Refinanced) on terms no less favorable to the Secured Parties
than those
contained in the documentation (including any intercreditor
agreement)
governing the Indebtedness being Refinanced; and provided
further, that with
respect to a Refinancing of Permitted Debt Securities, such
Permitted
Refinancing Indebtedness shall meet the requirements of clauses
(a), (b) and
(c) of the definition of "Permitted Debt Securities."
"Person" or "person" shall mean any individual, corporation,
partnership, limited liability company, Joint Venture,
association,
joint-stock company, trust, unincorporated organization,
government or any
agency or political subdivision thereof or any other entity.
"Plan" shall mean any employee pension benefit plan (other
than a Multiemployer Plan) subject to the provisions of Title IV
of ERISA or
Section 412 of the Code and in respect of which the Borrower,
any Subsidiary
or any ERISA Affiliate is (or, if such plan were terminated,
would under
Section 4069 of ERISA be deemed to be) an "employer" as defined
in Section
3(5) of ERISA.
"Platform" shall have the meaning assigned to such term in
Section 9.17(b).
"Pledged Collateral" shall have the meaning assigned to such
term in the Second Lien Collateral Agreement.
"Preferred Stock" means any Equity Interest with
preferential right of payment of dividends or upon liquidation,
dissolution or
winding up.
"Projections" shall mean any projections and any
forward-looking statements (including statements with respect to
booked
business) of such entities furnished to the Lenders or the
Administrative
Agent by or on behalf of the Borrower or any of the Subsidiaries
prior to the
Closing Date.
"Presumed Tax Rate" shall mean the highest effective
marginal statutory combined U.S. federal, state and local income
tax rate
prescribed for an individual residing in New York City (taking
into account
(a) the deductibility of state and local income taxes for U.S.
federal income
tax purposes, assuming the limitation of Section 68(a)(2) of the
Code applies
and taking into account any impact of Section 68(f) of the Code,
and (b) the
character (long-term or short-term capital gain, dividend income
or other
ordinary income) of the applicable income).
"Purchase Money Note" shall mean a promissory note of a
Receivables Subsidiary evidencing a line of credit, which may be
irrevocable,
from the Borrower or any Subsidiary of the Borrower to a
Receivables
Subsidiary in connection with a Qualified Receivables Financing,
which note is
intended to finance that portion of the purchase price that is
not paid by
cash or a contribution of equity.
"Qualified IPO" shall mean an underwritten public offering
of the Equity Interests of the Borrower, which generates cash
proceeds to the
Borrower of at least $100.0 million.
"Qualified Receivables Financing" shall mean any Receivables
Financing of a Receivables Subsidiary that meets the following
conditions:
(a) senior management or the Board of Directors of the
Borrower shall have determined in good faith that such Qualified
Receivables
Financing (including financing terms, covenants, termination
events and other
provisions) is in the aggregate economically fair and reasonable
to the
Borrower and the Receivables Subsidiary,
(b) all sales of accounts receivable and related assets
to the Receivables Subsidiary (or valid capital contributions
made to the
Receivables Subsidiary) are made at Fair Market Value (as
determined in good
faith by senior management or the Board of Directors of the
Borrower), and
(c) the financing terms, covenants, termination events
and other provisions thereof shall be market terms (as
determined in good
faith by senior management or the Board of Directors of the
Borrower) and may
include Standard Securitization Undertakings.
"Quotation Day" shall mean, with respect to any Eurocurrency
Borrowing and any Interest Period, the day on which it is market
practice in
the relevant interbank market for prime banks to give quotations
for deposits
in the currency of such Borrowing for delivery on the first day
of such
Interest Period. If such quotations would normally be given by
prime banks on
more than one day, the Quotation Day will be the last of such
days.
"Receivables Fees" shall mean distributions or payments made
directly or by means of discounts with respect to any
participation interest
issued or sold in connection with, and other fees paid to a
Person that is not
a Subsidiary in connection with any Receivables Financing.
"Receivables Financing" shall mean any transaction or series
of transactions that may be entered into by the Borrower or any
of its
Subsidiaries pursuant to which the Borrower or any of its
Subsidiaries may (a)
sell, convey or otherwise transfer to (i) a Receivables
Subsidiary (in the
case of a transfer by the Borrower or any of its Subsidiaries),
(ii) any other
Person (in the case of a transfer by a Receivables Subsidiary),
or (iii) a
third party that is financing the same in a customary repurchase
arrangement
in contemplation of a subsequent transfer to a Receivables
Subsidiary in a
Receivables Financing or (b) may grant a security interest in,
any accounts
receivable (whether now existing or arising in the future) of
the Borrower or
any of its Subsidiaries, and any assets related thereto
including, without
limitation, all collateral securing such accounts receivable,
all contracts
and all guarantees or other obligations in respect of such
accounts
receivable, proceeds of such accounts receivable and other
assets which are
customarily transferred or in respect of which security
interests are
customarily granted in connection with asset securitization
transactions
involving accounts receivable and any Hedging Obligations
entered into by the
Borrower or any such Subsidiary in connection with such accounts
receivable.
"Receivables Repurchase Obligation" shall mean any
obligation of a seller of receivables in a Qualified Receivables
Financing to
repurchase receivables arising as a result of a breach of a
representation,
warranty or covenant or otherwise, including as a result of a
receivable or
portion thereof becoming subject to any asserted defense,
dispute, off-set or
counterclaim of any kind as a result of any action taken by, any
failure to
take action by or any other event relating to the seller.
"Receivables Subsidiary" means a Wholly Owned Subsidiary of
the Borrower (or another Person formed for the purposes of
engaging in a
Qualified Receivables Financing with the Borrower in which the
Borrower or any
Subsidiary of the Borrower makes an Investment and to which the
Borrower or
any Subsidiary of the Borrower transfers accounts receivable and
related
assets) which engages in no activities other than in connection
with the
financing of accounts receivable of the Borrower and its
Subsidiaries, all
proceeds thereof and all rights (contractual or other),
collateral and other
assets relating thereto, and any business or activities
incidental or related
to such business, and which is designated by the Board of
Directors of the
Borrower (as provided below) as a Receivables Subsidiary
and:
(a) no portion of the Indebtedness or any other
obligations (contingent or otherwise) of which (i) is guaranteed
by the
Borrower or any other Subsidiary of the Borrower (excluding
guarantees of
obligations (other than the principal of, and interest on,
Indebtedness)
pursuant to Standard Securitization Undertakings), (ii) is
recourse to or
obligates the Borrower or any other Subsidiary of the Borrower
in any way
other than pursuant to Standard Securitization Undertakings or
(iii) subjects
any property or asset of the Borrower or any other Subsidiary of
the Borrower,
directly or indirectly, contingently or otherwise, to the
satisfaction
thereof, other than pursuant to Standard Securitization
Undertakings,
(b) with which neither the Borrower nor any other
Subsidiary of the Borrower has any material contract, agreement,
arrangement
or understanding other than on terms which the Borrower
reasonably believes to
be, on the whole, no less favorable to the Borrower or such
Subsidiary than
those that might be obtained at the time from Persons that are
not Affiliates
of the Borrower, and
(c) to which neither the Borrower nor any other
Subsidiary of the Borrower has any obligation to maintain or
preserve such
entity's financial condition or cause such entity to achieve
certain levels of
operating results.
Any such designation by the Board of Directors of the
Borrower shall be evidenced to the Administrative Agent by
delivery to the
Administrative Agent a certified copy of the resolution of the
Board of
Directors of the Borrower giving effect to such designation and
a certificate
of a Responsible Officer certifying that such designation
complied with the
foregoing conditions.
"Reference Date" shall have the meaning assigned to such
term in Section 2.11(a).
"Refinance" shall have the meaning assigned to such term in
the definition of the term "Permitted Refinancing Indebtedness,"
and
"Refinanced" shall have a meaning correlative thereto.
"Register" shall have the meaning assigned to such term in
Section 9.04(b).
"Regulation U" shall mean Regulation U of the Board as from
time to time in effect and all official rulings and
interpretations thereunder
or thereof.
"Regulation X" shall mean Regulation X of the Board as from
time to time in effect and all official rulings and
interpretations thereunder
or thereof.
"Related Parties" shall mean, with respect to any specified
person, such person's Affiliates and the respective directors,
officers,
employees, agents and advisors of such person and such person's
Affiliates.
"Release" shall mean any spilling, leaking, seepage,
pumping, pouring, emitting, emptying, discharging, injecting,
escaping,
leaching, dumping, disposing, depositing, emanating or migrating
in, into,
onto or through the environment.
"Remaining Present Value" shall mean, as of any date with
respect to any lease, the present value as of such date of the
scheduled
future lease payments with respect to such lease, determined
with a discount
rate equal to a market rate of interest for such lease
reasonably determined
at the time such lease was entered into.
"Reportable Event" shall mean any reportable event as
defined in Section 4043(c) of ERISA or the regulations issued
thereunder,
other than those events as to which the 30-day notice period
referred to in
Section 4043(c) of ERISA has been waived, with respect to a Plan
(other than a
Plan maintained by an ERISA Affiliate that is considered an
ERISA Affiliate
only pursuant to subsection (m) or (o) of Section 414 of the
Code).
"Required Lenders" shall mean, at any time, Lenders having
Loans outstanding, that taken together, represent more than 50%
of the sum of
all Loans outstanding at such time. The Loans of any Defaulting
Lender shall
be disregarded in determining Required Lenders at any time.
"Required Percentage" shall mean, with respect to an Excess
Cash Flow Period, 75%, provided that if the Debt to Adjusted
EBITDA Ratio at
the end of any Excess Cash Flow Period is (a) less than or equal
to 3.00 to
1.00 but greater than 2.50 to 1.00, such percentage shall be
reduced to 50%
and (b) less than or equal to 2.50 to 1.00, such percentage
shall be reduced
to 25%.
"Responsible Officer" of any person shall mean any executive
officer or Financial Officer of such person and any other
officer or similar
official thereof responsible for the administration of the
obligations of such
person in respect of this Agreement.
"S&P" shall mean Standard & Poor's Ratings Group,
Inc.
"Sale and Lease-Back Transaction" shall have the meaning
assigned to such term in Section 6.03.
"Satellite" shall mean any satellite owned by the Borrower
or any of its Subsidiaries and any satellite purchased by the
Borrower or any
of its Subsidiaries pursuant to the terms of a Satellite
Purchase Agreement,
whether such satellite is in the process of manufacture, has
been delivered
for launch or is in orbit (whether or not in operational
service).
"Satellite Manufacturer" shall mean, with respect to any
Satellite, the prime contractor and manufacturer of such
Satellite.
"Satellite Purchase Agreement" shall mean, with respect to
any Satellite, the agreement between the applicable Satellite
Purchaser and
the applicable Satellite Manufacturer relating to the
manufacture, testing and
delivery of such Satellite.
"Satellite Purchaser" shall mean the Borrower or Subsidiary
that is a party to a Satellite Purchase Agreement.
"SEC" shall mean the Securities and Exchange Commission or
any successor thereto.
"Second Lien Collateral Agreement" shall mean the Second
Lien Guarantee and Collateral Agreement, as amended,
supplemented or otherwise
modified from time to time, in the form of Exhibit E, among, the
Borrower,
each Subsidiary Loan Party and the Administrative Agent.
"Second Lien Credit Agreement Obligations" shall mean all
amounts owing to the Administrative Agent or any Lender pursuant
to the terms
of this Agreement or any other Second Lien Loan Document.
"Second Lien Loan Documents" shall mean this Agreement, the
Second Lien Security Documents, the Intercreditor Agreement and
any promissory
note issued under Section 2.09(e), and solely for the purposes
of paragraph
(r) of Article IV and Section 7.01(c), the Fee Letter, dated
December 2, 2004,
as amended on January 27, 2005, by and among the Parents, the
Administrative
Agent, JPMorgan Chase Bank, N.A. and the Joint Lead
Arrangers.
"Second Lien Security Documents" shall mean the Mortgages,
the Second Lien Collateral Agreement, the Foreign Pledge
Agreements, the
Parent Pledge Agreement and each of the security agreements,
mortgages and
other instruments and documents executed and delivered pursuant
to any of the
foregoing or pursuant to Section 5.10.
"Secured Parties" shall mean the "Secured Parties" as
defined in the Second Lien Collateral Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the SEC promulgated
thereunder..
"Sellers" shall have the meaning assigned to such term in
the first recital hereto.
"SkyTerra" shall have the meaning assigned to such term in
the first recital hereto.
"SPACEWAY" shall have the meaning assigned to such term in
the first recital hereto.
"SPACEWAY Services Agreement" shall mean the SPACEWAY
Services Agreement to be executed by the Borrower and DIRECTV on
the Closing
Date for the provision of technical services to each other in
connection with
SPACEWAY assets, as such agreement may be amended, modified or
otherwise
supplemented from time to time.
"Standard Securitization Undertakings" means
representations, warranties, covenants, indemnities and
guarantees of
performance entered into by the Borrower or any Subsidiary of
the Borrower
which senior management or the Board of Directors of the
Borrower has
determined in good faith to be either customary in a Receivables
Financing or,
when taken as a whole, to be more favorable to the Borrower than
in a
customary Receivables Financing including, without limitation,
those relating
to the servicing of the assets of a Receivables Subsidiary, it
being
understood that any Receivables Repurchase Obligation shall be
deemed to be a
Standard Securitization Undertaking.
"Statutory Reserves" shall mean, with respect to any
currency, any reserve, liquid asset or similar requirements
established by any
Governmental Authority of the United States of America or of the
jurisdiction
of such currency or any jurisdiction in which Loans in such
currency are made
to which banks in such jurisdiction are subject for any category
of deposits
or liabilities customarily used to fund loans in such currency
or by reference
to which interest rates applicable to Loans in such currency are
determined.
"Subsidiary" shall mean, with respect to any Person, (a) any
corporation, association or other business entity (other than a
partnership,
joint venture or limited liability company) of which more than
50% of the
total voting power of shares of Capital Stock entitled (without
regard to the
occurrence of any contingency) to vote in the election of
directors, managers
or trustees thereof is at the time of determination owned or
controlled,
directly or indirectly, by such Person or one or more of the
other
Subsidiaries of such Person or a combination thereof, (b) any
partnership,
joint venture or limited liability company of which (i) more
than 50% of the
capital accounts, distribution rights, total equity and voting
interests or
general and limited partnership interests, as applicable, are
owned or
controlled, directly or indirectly, by such Person or one or
more of the other
Subsidiaries of that Person or a combination thereof, whether in
the form of
membership, general, special or limited partnership interests or
otherwise,
and (ii) such Person or any Wholly Owned Subsidiary of such
Person is a
controlling general partner or otherwise controls such entity
and (c) any
Person that is consolidated in the consolidated financial
statements of the
specified Person in accordance with GAAP.
"Subsidiary Loan Party" shall mean (a) each Wholly Owned
Subsidiary of the Borrower that is at any time a Material
Subsidiary and not
(i) a Foreign Subsidiary, (ii) a License Subsidiary, (iii) a
Receivables
Subsidiary or (iv) listed on Schedule 1.01(a) and (b) each
Domestic Subsidiary
of the Borrower or the Subsidiaries that guarantees the
obligations under the
First Lien Credit Agreement.
"Subtracted Historical Adjustment" shall mean the gain on
sale of real estate for purposes of calculating Adjusted EBITDA,
in the amount
set forth in and as further described in the Offering
Memorandum, but only to
the extent the adjustment for such gain occurred in the
consecutive four
quarter period referred to in the definition of Debt to Adjusted
EBITDA Ratio.
"Swap Agreement" shall mean any agreement with respect to
any swap, forward, future or derivative transaction or option or
similar
agreement involving, or settled by reference to, one or more
rates,
currencies, commodities, equity or debt instruments or
securities, or
economic, financial or pricing indices or measures of economic,
financial or
pricing risk or value or any similar transaction or any
combination of these
transactions, provided that no phantom stock or similar plan
providing for
payments only on account of services provided by current or
former directors,
officers, employees or consultants of the Borrower or any of its
Subsidiaries
shall be a Swap Agreement.
"Syndication Agent" shall have the meaning assigned to such
term in the introductory paragraph of this Agreement.
"Taxes" shall mean any and all present or future taxes,
levies, imposts, duties (including stamp duties), deductions,
charges
(including ad valorem charges) or withholdings imposed by any
Governmental
Authority and any and all interest and penalties related
thereto.
"Total Assets" shall mean, with respect to any Person, the
total consolidated assets of such Person and its Subsidiaries,
as shown on the
most recent balance sheet.
"Transaction Agreement" shall have the meaning given such
term in the recitals hereto.
"Transaction Documents" shall mean the Transaction
Agreement, the First Lien Loan Documents, the Second Lien Loan
Documents and,
in each case, any other document entered into in connection
therewith, in each
case as amended, supplemented or modified from time to time.
"Transactions" shall mean, collectively, the transactions to
occur pursuant to the Transaction Documents, including (a) the
consummation of
the Acquisition and the execution and delivery of the
Transaction Agreement;
(b) the execution and delivery of the Second Lien Loan Documents
and the
borrowings hereunder; (c) the Contribution Financing; (d) the
borrowing of
First Lien Term Loans and the execution and delivery of the
First Lien Loan
Documents; and (e) the payment of all fees and expenses to be
paid on or prior
to the Closing Date and owing in connection with the
foregoing.
"Type", when used in respect of any Loan or Borrowing, shall
refer to the Rate by reference to which interest on such Loan or
on the Loans
comprising such Borrowing is determined. For purposes hereof,
the term "Rate"
shall include the Adjusted LIBO Rate and the ABR.
"U.S. Bankruptcy Code" shall mean Title 11 of the United
States Code, as amended, or any similar federal or state law for
the relief of
debtors.
"Wholly Owned Subsidiary" of any Person shall mean a
Subsidiary of such Person 100% of the outstanding Capital Stock
or other
ownership interests of which (other than directors' qualifying
shares or
shares or interests required to be held by foreign nationals)
shall at the
time be owned by such Person or by one or more Wholly Owned
Subsidiaries of
such Person and one or more Wholly Owned Subsidiaries of such
Person.
"Withdrawal Liability" shall mean liability to a
Multiemployer Plan as a result of a complete or partial
withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title
IV of ERISA.
"Working Capital" shall mean, with respect to the Borrower
and the Subsidiaries on a consolidated basis at any date of
determination,
Current Assets at such date of determination minus Current
Liabilities at such
date of determination; provided that, for purposes of
calculating Excess Cash
Flow, increases or decreases in Working Capital shall be
calculated without
regard to any changes in Current Assets or Current Liabilities
as a result of
(a) any reclassification in accordance with GAAP of assets or
liabilities, as
applicable, between current and noncurrent or (b) the effects of
purchase
accounting.
SECTION 1.02. Terms Generally. The definitions set forth or
referred to in Section 1.01 shall apply equally to both the
singular and
plural forms of the terms defined. Whenever the context may
require, any
pronoun shall include the corresponding masculine, feminine and
neuter forms.
The words "include," "includes" and "including" shall be deemed
to be followed
by the phrase "without limitation." All references herein to
Articles,
Sections, Exhibits and Schedules shall be deemed references to
Articles and
Sections of, and Exhibits and Schedules to, this Agreement
unless the context
shall otherwise require. Except as otherwise expressly provided
herein, any
reference in this Agreement to any Second Lien Loan Document
shall mean such
document as amended, restated, supplemented or otherwise
modified from time to
time. Except as otherwise expressly provided herein, all terms
of an
accounting or financial nature shall be construed in accordance
with GAAP, as
in effect from time to time; provided that, if the Borrower
notifies the
Administrative Agent that the Borrower requests an amendment to
any provision
hereof to eliminate the effect of any change occurring after the
Closing Date
in GAAP or in the application thereof on the operation of such
provision (or
if the Administrative Agent notifies the Borrower that the
Required Lenders
request an amendment to any provision hereof for such purpose),
regardless of
whether any such notice is given before or after such change in
GAAP or in the
application thereof, then such provision shall be interpreted on
the basis of
GAAP as in effect and applied immediately before such change
shall have become
effective until such notice shall have been withdrawn or such
provision
amended in accordance herewith.
SECTION 1.03. Effectuation of Transfers. Each of the
representations and warranties of the Borrower contained in this
Agreement
(and all corresponding definitions) are made after giving effect
to the
Transactions (or such portion thereof as shall have been
consummated as of the
date of the applicable representation or warranty), unless the
context
otherwise requires.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and
conditions set forth herein, each Lender agrees to make Loans to
the Borrower
on the Closing Date in a principal amount not to exceed its
Commitment;
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be
made as part of a Borrowing consisting of Loans of the same Type
made by the
Lenders ratably in accordance with their respective Commitments.
The failure
of any Lender to make any Loan required to be made by it shall
not relieve any
other Lender of its obligations hereunder; provided that the
Commitments of
the Lenders are several and no Lender shall be responsible for
any other
Lender's failure to make Loans as required.
(b) Subject to Section 2.14, each Borrowing shall be
comprised entirely of ABR Loans or Eurocurrency Loans as the
Borrower may
request in accordance herewith. Each Lender at its option may
make any ABR
Loan or Eurocurrency Loan by causing any domestic or foreign
branch or
Affiliate of such Lender to make such Loan; provided that any
exercise of such
option shall not affect the obligation of the Borrower to repay
such Loan in
accordance with the terms of this Agreement and such Lender
shall not be
entitled to any amounts payable under Section 2.15 or 2.17
solely in respect
of increased costs resulting from such exercise and existing at
the time of
such exercise.
(c) At the commencement of each Interest Period for any
Eurocurrency Borrowing, such Borrowing shall be in an aggregate
amount that is
an integral of the Borrowing Multiple and not less than the
Borrowing Minimum.
There shall not at any time be more than a total of 5
Eurocurrency Borrowings
outstanding.
(d) Notwithstanding any other provision of this Agreement,
no Borrower shall be entitled to request, or to elect to convert
or continue,
any Borrowing if the Interest Period requested with respect
thereto would end
after the Maturity Date.
SECTION 2.03. Requests for Borrowings. To request a
Borrowing, the Borrower shall notify the Administrative Agent of
such request
by telephone (a) in the case of a Eurocurrency Borrowing, not
later than 11:00
a.m., Local Time, three Business Days before the date of the
proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than
12:00 noon,
Local Time, one Business Day before the date of the proposed
Borrowing. Each
such telephonic Borrowing Request shall be irrevocable and shall
be confirmed
promptly by hand delivery or telecopy to the Administrative
Agent of a written
Borrowing Request in a form approved by the Administrative Agent
and signed by
the Borrower. Each such telephonic and written Borrowing Request
shall specify
the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing (provided that the initial Borrowing on
the
Closing Date shall be an ABR Borrowing);
(iv) in the case of a Eurocurrency Borrowing, the initial
Interest Period to be applicable thereto, which shall be a
period
contemplated by clause (a) of the definition of the term
"Interest
Period"; and
(v) the location and number of the Borrower's account to
which funds are to be disbursed.
If no Interest Period is specified with respect to any requested
Eurocurrency
Borrowing, then the Borrower shall be deemed to have selected an
Interest
Period of one month's duration. Promptly following receipt of a
Borrowing
Request in accordance with this Section, the Administrative
Agent shall advise
each Lender of the details thereof and of the amount of such
Lender's Loan to
be made as part of the requested Borrowing.
SECTION 2.04. [Reserved]
SECTION 2.05. [Reserved]
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date
thereof by wire
transfer of immediately available funds by 12:00 noon, Local
Time, to the
account of the Administrative Agent most recently designated by
it for such
purpose by notice to the Lenders. The Administrative Agent will
make such
Loans available to the Borrower by promptly crediting the
amounts so received,
in like funds, to an account of the Borrower maintained with
the
Administrative Agent in New York City.
(b) Unless the Administrative Agent shall have received
notice from a Lender prior to the proposed date of any Borrowing
that such
Lender will not make available to the Administrative Agent such
Lender's share
of such Borrowing, the Administrative Agent may assume that such
Lender has
made such share available on such date in accordance with
paragraph (a) of
this Section and may, in reliance upon such assumption, make
available to the
Borrower a corresponding amount. In such event, if a Lender has
not in fact
made its share of the applicable Borrowing available to the
Administrative
Agent, then the applicable Lender and the Borrower severally
agree to pay to
the Administrative Agent forthwith on demand (without
duplication) such
corresponding amount with interest thereon, for each day from
and including
the date such amount is made available to the Borrower to but
excluding the
date of payment to the Administrative Agent, at (i) in the case
of such
Lender, the Federal Funds Rate and a rate determined by the
Administrative
Agent in accordance with banking industry rules on interbank
compensation or
(ii) in the case of the Borrower, the interest rate applicable
to ABR Loans.
If such Lender pays such amount to the Administrative Agent,
then such amount
shall constitute such Lender's Loan included in such Borrowing.
If such
Borrower pays such amount to the Administrative Agent, then such
amount shall
constitute a reduction of such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Borrowing
initially shall be of the Type specified in the applicable
Borrowing Request
and, in the case of a Eurocurrency Borrowing, shall have an
initial Interest
Period as specified in such Borrowing Request. Thereafter, the
Borrower may
elect to convert such Borrowing to a different Type or to
continue such
Borrowing and, in the case of a Eurocurrency Borrowing, may
elect Interest
Periods therefor, all as provided in this Section. The Borrower
may elect
different options with respect to different portions of the
affected
Borrowing, in which case each such portion shall be allocated
ratably among
the Lenders holding the Loans comprising such Borrowing, and the
Loans
comprising each such portion shall be considered a separate
Borrowing.
(b) To make an election pursuant to this Section, the
Borrower shall notify the Administrative Agent of such election
by telephone
by the time that a Borrowing Request would be required under
Section 2.03 if
such Borrower were requesting a Borrowing of the Type resulting
from such
election to be made on the effective date of such election. Each
such
telephonic Interest Election Request shall be irrevocable and
shall be
confirmed promptly by hand delivery or telecopy to the
Administrative Agent of
a written Interest Election Request in a form approved by the
Administrative
Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with
Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect
to
different portions thereof, the portions thereof to be allocated
to each
resulting Borrowing (in which case the information to be
specified
pursuant to clauses (iii) and (iv) below shall be specified for
each
resulting Borrowing);
(ii) the effective date of the election made pursuant to
such Interest Election Request, which shall be a Business
Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing,
the Interest Period to be applicable thereto after giving effect
to such
election, which shall be a period contemplated by clause (a) of
the
definition of the term "Interest Period."
If any such Interest Election Request requests a Eurocurrency
Borrowing but
does not specify an Interest Period, then the Borrower shall be
deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender to
which such
Interest Election Request relates of the details thereof and of
such Lender's
portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurocurrency Borrowing prior
to the end of
the Interest Period applicable thereto, then, unless such
Borrowing is repaid
as provided herein, at the end of such Interest Period such
Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary
provision hereof,
if an Event of Default has occurred and is continuing and the
Administrative
Agent, at the written request (including a request through
electronic means)
of the Required Lenders, so notifies the Borrower, then, so long
as an Event
of Default is continuing (i) no outstanding Borrowing may be
converted to or
continued as a Eurocurrency Borrowing and (ii) unless repaid,
each
Eurocurrency Borrowing shall be converted to an ABR Borrowing at
the end of
the Interest Period applicable thereto.
SECTION 2.08. [Reserved]
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay to the
Administrative Agent
for the account of each Lender the then unpaid principal amount
of each Loan
of such Lender as provided in Section 2.10.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of
the Borrower to
such Lender resulting from each Loan made by such Lender,
including the
amounts of principal and interest payable and paid to such
Lender from time to
time hereunder.
(c) The Administrative Agent shall maintain accounts in
which it shall record (i) the amount of each Loan made
hereunder, the Type
thereof and the Interest Period (if any) applicable thereto,
(ii) the amount
of any principal or interest due and payable or to become due
and payable from
the Borrower to each Lender hereunder and (iii) any amount
received by the
Administrative Agent hereunder for the account of the Lenders
and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie
evidence of the
existence and amounts of the obligations recorded therein;
provided that the
failure of any Lender or the Administrative Agent to maintain
such accounts or
any error therein shall not in any manner affect the obligation
of the
Borrower to repay the Loans in accordance with the terms of this
Agreement.
(e) Any Lender may request that Loans made by it be
evidenced by a promissory note (a "Note"). In such event, the
Borrower shall
prepare, execute and deliver to such Lender a promissory note
payable to the
order of such Lender (or, if requested by such Lender, to such
Lender and its
registered assigns) and in a form approved by the Administrative
Agent.
Thereafter, the Loans evidenced by such promissory note and
interest thereon
shall at all times (including after assignment pursuant to
Section 9.04) be
represented by one or more promissory notes in such form payable
to the order
of the payee named therein (or, if such promissory note is a
registered note,
to such payee and its registered assigns).
SECTION 2.10. Repayment of Loans. (a) Subject to the other
paragraphs of this Section, the Borrower shall repay Borrowings
on each date
set forth below in the aggregate principal amount set forth
opposite such date
(each such date being referred to as a "Loan Installment
Date"):
Amount of
Date Borrowings to Be Repaid
------------------ -----------------------
June 30, 2007 $187,500
September 30, 2007 $187,500
December 31, 2007 $187,500
March 31, 2008 $187,500
June 30, 2008 $187,500
September 30, 2008 $187,500
December 31, 2008 $187,500
March 31, 2009 $187,500
June 30, 2009 $187,500
September 30, 2009 $187,500
December 31, 2009 $187,500
March 31, 2010 $187,500
June 30, 2010 $187,500
September 30, 2010 $187,500
December 31, 2010 $187,500
March 31, 2011 $187,500
June 30, 2011 $187,500
September 30, 2011 $187,500
December 31, 2011 $187,500
March 31, 2012 $187,500
June 30, 2012 $187,500
September 30, 2012 $187,500
December 31, 2012 $187,500
April 22, 2013 $70,687,500
(b) [Reserved]
(c) Prepayments of the Borrowings from:
(i) all Net Proceeds pursuant to Section 2.11(b) and Excess
Cash Flow pursuant to Section 2.11(c) shall be applied:
(A) first to reduce in direct order of maturity the
scheduled installments of the Loans occurring within the
12-month
period after the date of such payment; and
(B) second to reduce the remaining scheduled
installments of the Loans ratably in accordance with the
principal
amount thereof.
Notwithstanding anything to the contrary in this clause (c)(i)
or in
Section 2.11, no prepayment of the Loans shall be required
hereunder
unless or until (1) such prepayment of the Loans is required by
the
terms of Section 2.11 of the First Lien Credit Agreement or (2)
all
commitments under the First Lien Credit Agreement have been
terminated, no letters or credit are outstanding thereunder and
all
loans and other amounts payable thereunder have been paid in
full in
cash.
(ii) any optional prepayments of the Loans pursuant to
Section 2.11(a) shall be applied to the remaining installments
thereof
as directed by the Borrower.
(d) Prior to any repayment of any Borrowing, the Borrower
shall select the Borrowing or Borrowings to be prepaid or repaid
and shall
notify the Administrative Agent by telephone (confirmed by
telecopy) of such
selection not later than 2:00 P.M., Local Time, (i) in the case
of an ABR
Borrowing, one Business Day before the scheduled date of such
repayment and
(ii) in the case of a Eurocurrency Borrowing, three Business
Days before the
scheduled date of such repayment. Each repayment of a Borrowing
shall be
applied ratably to the Loans included in the repaid Borrowing.
Repayments of
Borrowings shall be accompanied by accrued interest on the
amount repaid.
SECTION 2.11. Prepayment of Loans. (a) The Borrower shall
have the right at any time and from time to time to prepay any
Borrowing in
whole or in part (but subject to Section 2.16), in an aggregate
principal
amount that is an integral multiple of the Borrowing Multiple
and not less
than the Borrowing Minimum or, if less, the amount outstanding,
subject to
prior notice in accordance with Secti
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