Exhibit 10.6
Execution Copy
SENIOR SUBORDINATED TERM LOAN
AGREEMENT
DATED AS OF DECEMBER 11, 2000
BETWEEN
IRIDIUM SATELLITE LLC,
as Borrower,
and
MOTOROLA, INC.,
as Lender
Table of Contents
Page
1.
DEFINITIONS AND INTERPRETATION OF
AGREEMENT………………………
1
1.1
Definitions………………………………………………………………………
1
1.2
Other Definitional
Provisions…………………………………………………..
7
1.3
Interpretation of
Agreement…………………………………………………….
7
2.
COMMITMENT OF THE
LENDER…………………………………………………..
7
2.1
Commitment of the
Lender……………………………………………………..
8
2.2
Note Evidencing the
Loan……………………………………………………...
8
3.
INTEREST AND
FEES………………………………………………………………...
8
3.1
Interest…………………………………………………………………………..
8
3.2
Method of Calculating
Interest…………………………………………………
8
3.3
Commitment
Fee………………………………………………………………..
8
3.4
Loan Success
Fee……………………………………………………………….
8
4.
PAYMENTS AND
PREPAYMENTS…………………………………………………
9
4.1
Place of
Payment……………………………………………………………….
9
4.2
Prepayments……………………………………………………………………
9
5.
WARRANTIES………………………………………………………………………...
10
5.1
Existence………………………………………………………………………..
10
5.2
Authorization…………………………………………………………………...
10
5.3
No
Conflicts…………………………………………………………………….
10
5.4
Validity and Binding
Effect…………………………………………………….
11
5.5
No
Default………………………………………………………………………
11
5.6
Litigation………………………………………………………………………..
11
5.7
Liens…………………………………………………………………………….
11
5.8
Subsidiaries……………………………………………………………………..
11
5.9
Purpose………………………………………………………………………….
11
5.10
Compliance……………………………………………………………………..
11
6.
AFFIRMATIVE
COVENANTS……………………………………………………….
11
6.1
Financial
Statements……………………………………………………………
11
6.2
Certificates; Other
Information…………………………………………………
12
6.3
Maintenance of Existence and Compliance
with
Law………………………...
13
6.4
Maintenance of Property;
Insurance…………………………………………..
13
6.5
Inspection of Property: Books and
Records:
Discussions……………………..
13
6.6
Notices…………………………………………………………………………
13
6.7
Environmental
Laws…………………………………………………………..
15
i
6.8
Obligations and
Taxes………………………………………………................
15
6.9
Future
Assurances……………………………………………………………..
15
7.
NEGATIVE
COVENANTS…………………………………………………………..
16
7.1
Limitation on
Indebtedness…………………………………………………….
16
7.2
Limitation on
Liens……………………………………………………………
17
7.3
Limitation on Guarantee
Obligations…………………………………………..
18
7.4
Limitation on Fundamental
Changes…………………………………………..
18
7.5
Limitation on Sale of
Assets…………………………………………………..
18
7.6
Limitation on Restricted
Payments/Dividends…………………………………
19
7.7
Limitation on Investments, Loans and
Advances………………………………
19
7.8
Limitation on Transactions with
Affiliates…………………………………......
20
7.9
Limitation on Sales and
Leasebacks……………………………………………
20
7.10
Limitation on Equity Issuances of
Satellite or its
Subsidiaries…………………
20
7.11
Limitation on Equity Issuances of
Holdings……………………………………
21
7.12
Prepayment of Senior
Indebtedness………………………………………….....
21
7.13
Other
Agreements………………………………………………………………
21
7.14
Amendments to Other
Agreements……………………………………….........
21
8.
CONDITIONS PRECEDENT TO THE
LOAN………………………………….........
21
8.1
Note……………………………………………………………………………
21
8.2
Guaranty……………………………………………………………………….
21
8.3
Charter; Good Standings
Resolutions………………………………………….
21
8.4
Incumbency
Certificate…………………………………………………………
21
8.5
Opinion………………………………………………………………………..
21
9.
EVENTS OF DEFAULT AND
REMEDIES………………………………………….
21
9.1
Events of
Default………………………………………………………………
21
9.2
Remedies………………………………………………………………………
23
10.
GENERAL……………..………………………………………………………………
23
10.1
Waiver and
Amendments………………………………………………………
23
10.2
Notices………………………………………………………………………….
23
10.3
Expenses………………………………………………………………………
24
10.4
Information…………………………………………………………………….
24
10.5
Severability…………………………………………………………………….
24
10.6
LAW…………………………………………………………………………..
24
10.7
Successors……………………………………………………………………..
24
10.8
Forum Selection and Consent to
Jurisdiction………………………………….
24
10.9
Waiver of Jury
Trial……………………………………………………………
25
11.
SUBORDINATION……………………………………………………………………
25
11.1
Bankruptcy
Events…………………………………………………………….
25
11.2
Turnover……………………………………………………………………….
27
11.3
Subrogation…………………………………………………………………….
27
ii
11.4
Reinstatement…………………………………………………………………..
27
11.5
No Waiver of Subordination
Provisions………………………………………..
27
11.6
Benefits of
Subordination………………………………………………………
28
11.7
Provisions Solely Defining Relative
Rights……………………………………
28
11.8
Credit
Enhancements…………………………………………………………..
29
EXHIBIT A - Note
EXHIBIT B - Guaranty
iii
SENIOR SUBORDINATED TERM LOAN
AGREEMENT
THIS SENIOR SUBORDINATED TERM LOAN
AGREEMENT, dated as of December 11, 2000, is entered into between
Iridium Satellite LLC, a Delaware limited liability company
(“Satellite”), and Motorola, Inc., a Delaware
corporation (the “Lender”).
In consideration of the mutual agreements
herein contained, the parties hereto agree as follows:
1.
DEFINITIONS AND INTERPRETATION OF
AGREEMENT.
1.1
Definitions . In addition to the terms defined elsewhere in this
Agreement, the following terms shall have the meanings indicated
for purposes of this Agreement (such meanings to be equally
applicable to both the singular and plural forms of the terms
defined):
“ Affiliate ” means as
to any Person, any other Person which, directly or indirectly, is
in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, “control”
of a Person means the power, directly or indirectly, either to (a)
vote 20% or more of the securities having ordinary voting power for
the election of directors of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by
contract or otherwise.
“ Agreement ” means
this Senior Subordinated Term Loan Agreement, as it may be amended,
modified or supplemented from time to time.
“ Business Day ” means
any day other than a Saturday, Sunday or legal holiday on which
banks are authorized or required to be closed in Chicago,
Illinois.
“ Change of Control ”
means the occurrence of any of the following events: (a) any Person
who owns any Interests of Holdings at and as of the date of this
Agreement (“ Initial Investor ”), together with
such Person’s Affiliates, shall have acquired beneficial
ownership of Interests entitling the holders thereof to more than
50% of the income of, or the liquidation proceeds from, Holdings;
or (b) any Person who is not an Initial Investor, together with
such Person’s Affiliates and with other Persons constituting
a “group” (within the meaning of Section 13(d) or 14(d)
of the Securities Exchange Act of 1934, as amended) shall have
acquired beneficial ownership of Interests entitling the holders
thereof to more than 50% of the income of, or the liquidation
proceeds from, Holdings; or (c) Holdings shall cease to own 100% of
the equity interests of Satellite; provided that a Change of
Control (other than the one described in clause (c) of this
paragraph) shall not include (x) a transaction in which a Person or
“group” acquires beneficial ownership of Interests
entitling the holders thereof to more than 50% of the income of, or
liquidation proceeds from, Holdings in exchange for the transfer to
Holdings of such Person’s or group’s ownership of a
business or entity in a purchase or merger permitted hereby and
which does not involve the payment of cash to the seller or (y) a
transaction in which one of the Initial Investors, together with
such Person’s Affiliates, acquires beneficial ownership of
Interests as a result of such Person’s or Persons’
subscription to purchase from Holdings additional
Interests
included in the first $150 million of
equity securities issued by Holdings. As used in this paragraph
“ Interests ” shall mean any equity interest,
whether voting or non-voting, entitling the holder thereof to a
share of the income of, or liquidation proceeds from,
Holdings.
“ Code ” means the
Internal Revenue Code of 1986 and any successor statute of similar
import, together with the regulations thereunder, in each case as
in effect from time to time. References to sections of the Code
shall be construed to also refer to any successor
sections.
“ Commonly Controlled Entity
” means an entity, whether or not incorporated, which is
under common control with Satellite within the meaning of Section
4001 of ERISA or is part of a group which includes Satellite and
which is treated as a single employer under Section 414 of the
Code.
“ Constellation ”
means Iridium Constellation LLC, a Delaware limited liability
company.
“ Contractual Obligation
” means as to any Person, any provision of any material
security issued by such Person or of any material agreement,
instrument or other undertaking to which such Person is a party or
by which it or any of its property is bound.
“ Distribution Event ”
means the (i) direct or indirect (a) payment of any dividend or
other distribution (in the form of cash or otherwise) in respect of
the equity interests of Holdings or (b) purchase, conversion,
redemption or other acquisition for value or otherwise by Holdings
of any equity interest of Holdings or (ii) initial public offering
or any secondary public offering by Holdings or Satellite in which
any holders of equity interests of Holdings shall be afforded the
opportunity to participate as a selling equity holder in such
offering.
“ EBITDA ” shall mean,
with respect to Satellite for any fiscal year, an amount equal to
(a) consolidated net income of Satellite for such period, as
determined in accordance with GAAP, minus (b) the sum of (i) gain
from extraordinary items for such period and (ii) any other
non-cash gains which have been added in determining consolidated
net income, in each case to the extent included in the calculation
of consolidated net income of Satellite for such period in
accordance with GAAP, but without duplication, plus (c) the sum of
(i) interest expense, (ii) loss from extraordinary items for such
period, (iii) the amount of non-cash charges (including
depreciation and amortization) for such period, (iv) amortized debt
discount for such period, (v) the amount of any deduction to
consolidated net income as the result of any grant to any members
of the management of Satellite of any membership interests, and
(vi) all cash and noncash charges in accordance with GAAP for
federal and state taxes and all distributions by Satellite to
Holdings on account of federal or state taxes payable by Holdings
or its members, in each case to the extent included in the
calculation of consolidated net income of Satellite for such period
in accordance with GAAP, but without duplication.
“ Environmental Law ”
means any and all applicable foreign, federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, requirements of any Governmental Authority having
the force and effect of law or other Requirements of Law
(including, without limitation, common law) regulating, relating to
or imposing liability or
2
standards of conduct concerning
protection of the environment or space, or human health as related
to the environment or space, as now or at any relevant time
hereafter in effect.
“ ERISA ” means the
Employee Retirement Income Security Act of 1974, as amended, and
any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to
time. References to sections of ERISA shall be construed to also
refer to any successor sections.
“ Event of Default ”
means any of the events described in Section 8.1
.
“ Exchange Securities
” means any debt or equity securities (including common
stock) of Satellite or any other Person that are distributed to the
Lender in respect of the Obligations pursuant to a confirmed plan
of reorganization or readjustment and which are subordinated to the
Senior Indebtedness to at least the same extent as the Obligations
are subordinated to the Senior Indebtedness under this
Agreement.
“ Fiscal Quarter ”
means any quarter of a Fiscal Year.
“ Fiscal Year ” means
any period of 12 consecutive calendar months ending on the 31st day
of December. References to a Fiscal Year with a number
corresponding to any calendar year (e.g. “Fiscal Year
2000”) refer to the Fiscal Year ending on the 31st day of
December occurring during such calendar year.
“ Former Plan ” means
any employee benefit plan in respect of which Satellite or a
Commonly Controlled Entity has engaged in a transaction described
in Section 4069 or Section 4212(c) of ERISA.
“ GAAP ” means
generally accepted accounting principles as applied in the
preparation of the audited consolidated financial statements of
Satellite.
“ Governmental Authority
” means any nation or government, any state or other
political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
“ Guarantee Obligation
” means as to any Person (the “ guaranteeing
person ”), any obligation of (a) the guaranteeing person
or (b) another Person (including, without limitation, any bank
under any letter of credit) to induce the creation of which the
guaranteeing person has issued a reimbursement, counterindemnity or
similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other
obligations (the “ primary obligations ”) of any
other third Person (the “ primary obligor ”) in
any manner, whether directly or indirectly, including, without
limitation, any such obligation of the guaranteeing person, whether
or not contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security therefore,
(ii) to advance or supply funds (1) for the purchase or payment of
any such primary obligation or (2) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) 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 or
(iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in
3
respect thereof; provided that the
term Guarantee Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made
and (b) the maximum amount for which such guaranteeing person may
be liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are
not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person’s
maximum reasonably anticipated liability in respect thereof as
determined by Satellite in good faith.
“ Guaranty ” means,
collectively, that certain Guaranty dated as of the date hereof by
Holdings in favor of the Lender, and each other guaranty executed
by any Subsidiary in favor of the Lender, each as amended,
supplemented or modified from time to time.
“ Holdings ” means
Iridium Holdings LLC, a Delaware limited liability
company.
“ Holdings LLC Agreement
” means that certain Iridium Holdings LLC Limited Liability
Company Agreement dated as of December __, 2000.
“ Indebtedness ” means
of any Person at any date, (a) all indebtedness of such Person for
borrowed money or for the deferred purchase price of property or
services (other than trade liabilities incurred in the ordinary
course of business and payable in accordance with customary
practices), (b) any other indebtedness of such Person which is
evidenced by a note, bond, debenture or similar instrument, (c) all
obligations of such Person under any leases of property that are
required by GAAP to be capitalized on the balance sheet of such
Person, (d) all obligations of such Person in respect of
bankers’ acceptances issued or created for the account of
such Person, (e) all obligations of such Person in respect of
interest rate protection agreements, interest rate futures,
interest rate options, interest rate caps and any other interest
rate hedge arrangements, (f) all preferred stock issued by such
Person which, pursuant to its terms, is subject to mandatory
redemption, retirement or acquisition by such Person on or prior to
the Maturity Date and (g) all indebtedness or obligations of the
types referred to in the preceding clauses (a) through (f) secured
by any Lien on any property owned by such Person even though such
Person has not assumed or otherwise become liable for the payment
thereof.
“ Interest Payment Date
” has the meaning given to such term in Section 3.1
.
“ Lender ” – see
Preamble.
“ Lien ” means any
mortgage, pledge, hypothecation, assignment, security deposit
arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other
security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement and any other transaction
or agreement having substantially the same economic effect as any
of the foregoing).
“ Loan ” means,
collectively, the loans described in Section 2.1
.
4
“ Loan Documents ”
means this Agreement, the Note, the Guaranty and the other
documents and agreements contemplated hereby and executed by
Satellite, Holdings or any other Person in favor of the
Lender.
“ Material Adverse Effect
” means a material adverse effect on (a) the business,
operations, property, condition (financial or otherwise) or
prospects of Holdings and its Subsidiaries taken as a whole or (b)
the validity or enforceability of this Agreement, the Note or the
Guaranty or the rights and remedies of the Lender under this
Agreement, the Note or the Guaranty.
“ Maturity Date ”
means the earliest to occur of (a) the date on which any Change of
Control shall occur, (b) the date on which Satellite shall fail to
maintain direct and beneficial ownership, free and clear of any
Lien, of 100% of the outstanding membership interests of
Constellation or (c) May 30, 2005.
“ Multiemployer Plan ”
means a Plan which is a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
“ Note ” means
Satellite’s promissory note, substantially in the form set
forth as Exhibit A with appropriate insertions, as such promissory
note may be amended, modified or supplemented from time to time,
and the term “Note” shall include any substitutions
for, or replacements of, such promissory note.
“ Obligations ” means
all unpaid principal of and accrued and unpaid interest on the
Loan, all accrued and unpaid fees and all expenses, reimbursements,
indemnities and other obligations of Satellite to the Lender or any
indemnified party arising under the Loan Documents.
“ PBGC ” means the
Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA (or any successor
thereto).
“ Person ” means an
individual, partnership, corporation, limited liability company,
trust, joint venture, joint stock company, association,
unincorporated organization, government or agency or political
subdivision thereof, or other entity.
“ Plan ” any employee
benefit plan which is covered by ERISA and in respect of which
Satellite or a Commonly Controlled Entity is an
“employer” as defined in Section 3(5) of
ERISA.
“ Reference Rate ”
means, at any time, the latest “Prime Rate”, as
indicated in the “Money Rates” column of The Wall
Street Journal. Each change in the interest rate on the Loan shall
take effect on the effective date of the change in the Reference
Rate.
“ Reportable Event ”
means any of the events set forth in Section 4043(c) of ERISA,
other than those events as to which the thirty day notice period is
waived under subsection .22, .23, .25, .27 or .28 of PBGC Reg.
§ 4043 or any successor regulation thereto.
5
“ Requirement of Law ”
means as to any Person, the certificate of incorporation and
by-laws or other organizational or governing documents of such
Person, and any law, statute, ordinance, code, decree, treaty, rule
or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon
such Person or any of its material property or to which such Person
or any of its material property is subject; provided that the
foregoing shall not apply to any non-binding recommendation of any
Governmental Authority.
“ Responsible Officer
” means as to any Person, any of the following officers of
such Person: (a) the chief executive officer or the president of
such Person and, with respect to financial matters, the chief
financial officer, the treasurer or the controller of such Person,
(b) any vice president of such Person or, with respect to financial
matters, any assistant treasurer or assistant controller of such
Person, who has been designated in writing to the Lender as a
Responsible Officer by such chief executive officer or president of
such Person or, with respect to financial matters, such chief
financial officer of such Person, (c) with respect to Section 6.6
and without limiting the foregoing, the general counsel of such
Person and (d) with respect to ERISA related matters, the vice
president of human resources of such Person.
“ Single Employer Plan
” means any Plan which is covered by Title IV of ERISA, but
which is not a Multiemployer Plan.
“ Senior Credit Documents
” means, collectively, the Senior Note, each guaranty
executed thereunder and each other agreement or instrument executed
thereunder, in each case as the same may be amended, supplemented
or otherwise modified from time to time in accordance with its
terms, including any agreement executed in connection with any
refinancing, replacement, refunding, extension, renewal or
restructuring of all or any portion of the Senior Indebtedness
provided for under the Senior Note or any successor instrument or
agreement thereto (whether or not with the same
creditors).
“ Senior Creditor ”
means the holders of Senior Indebtedness from time to
time.
“ Senior Indebtedness
” means the following liabilities, obligations and
Indebtedness of Satellite: (a) all obligations of Satellite
incurred under or in respect of the Senior Note, whether for
principal, premium (if any), interest (including interest which
would accrue but for the filing of a petition initiating any
bankruptcy or similar proceeding and whether or not the same is
allowed as a claim in any such proceeding), expenses, indemnities,
penalties, fees, charges or other amounts or sums payable by
Satellite from time to time under the Senior Credit Documents;
provided , that the aggregate principal amount at any one
time outstanding under the Senior Note shall not exceed
$18,500,000, plus any amount of “Excess
Principal” (as defined in the Senior Note), and minus
the amount of principal amortization payments that have been made
thereunder; and (b) any and all refinancings, replacements or
refundings, extensions, renewals or restructurings of any of the
liabilities, obligations and indebtedness of Satellite referred to
in this definition.
“ Senior Note ” means
the Senior Convertible Promissory Note dated as of the date hereof
by Satellite in favor of Iridium LLC, a Delaware limited liability
company, or any subsequent holder or holders thereof, as the same
may be amended, supplemented or otherwise modified from time to
time in accordance with the terms of this Agreement.
6
“ Senior Securities ”
means the Senior Indebtedness and all securities issued in exchange
for or distributed pursuant to a confirmed plan of reorganization
or readjustment to the holders of Senior Indebtedness in respect of
the Senior Indebtedness.
“ Subsidiary ” means
as to any Person, a corporation, partnership, limited liability
company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation, partnership,
limited liability company or other entity are at the time owned, or
the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise qualified, all references to a
“Subsidiary” or to “Subsidiaries” in this
Note shall refer to a Subsidiary or Subsidiaries of
Holdings.
“ Taxes ” with respect
to any Person means taxes, assessments or other governmental
charges or levies imposed upon such Person, its income or any of
its properties, franchises or assets.
“ Trade Accounts Payable
” of any Person means trade accounts payable of such Person
with a maturity of not greater than 90 days incurred in the
ordinary course of such Person’s business.
“ Trigger Event ”
means the first to occur of (a) the occurrence of any Change of
Control, (b) the consummation of an initial public offering by
Holdings or Satellite, and (c) the sale of all or a material
portion of the assets of Holdings or Satellite.
“ Underfunding ” means
an excess of all accrued benefits under a Plan (based on those
assumptions used to fund such Plan), determined as of the most
recent annual valuation date, over the value of the assets of such
Plan allocable to such accrued benefits.
“ Unmatured Event of Default
” means any event or condition which, with the lapse of time
or giving of notice to the Company or both, would constitute an
Event of Default.
1.2
Other Definitional
Provisions . Unless otherwise
defined or the context otherwise requires, all financial and
accounting terms used herein or in any certificate or other
document made or delivered pursuant hereto shall be defined in
accordance with GAAP. Unless otherwise defined therein, all terms
defined in this Agreement shall have the defined meanings when used
in the Note or in any certificate or other document made or
delivered pursuant hereto.
1.3
Interpretation of Agreement
. A Section or an Exhibit is, unless
otherwise stated, a reference to a section hereof or an exhibit
hereto, as the case may be. Section captions used in this Agreement
are for convenience only, and shall not affect the construction of
this Agreement. The words “hereof,”
“herein,” “hereto” and
“hereunder” and words of similar purport when used in
this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement.
2.
COMMITMENT OF THE LENDER.
7
2.1
Commitment of the Lender
. Subject to the terms and conditions of
this Agreement and in reliance upon the warranties of Satellite
herein set forth, the Lender agrees to make a term loan to
Satellite in two draws in an aggregate principal amount of
$30,000,000 (collectively, the “Loan”), with the first
advance to be made on the date of this Agreement in an amount equal
to $24,155,000, and the second advance to be made in an amount
equal to $5,845,000 for the purpose set forth in Section
5.9.
2.2
Note Evidencing the Loan
. The Loan shall be evidenced by the Note
and shall be payable in full on the Maturity Date.
3.
INTEREST AND FEES.
3.1
Interest . The unpaid principal amount of the Loan shall bear
interest prior to maturity at a rate per annum equal to the
Reference Rate in effect from time to time plus 3.0% per annum.
Accrued interest shall be payable in arrears in cash on the last
day of each calendar month and at maturity (each, an “
Interest Payment Date ”), commencing with the first of
such dates to occur after the date of the Note; provided ,
that prior to the first to occur of (x) the maturity of the Loan,
whether by acceleration or otherwise, and (y) the payment in full
of the Senior Indebtedness, on each Interest Payment Date which
arises (a) from the date of this Agreement through December 31,
2001, all accrued interest on the Loan for the prior month shall
not be paid in cash, but shall instead be added to the principal
amount of the Loan, and (b) thereafter, accrued interest for the
prior month shall be in paid in cash at a rate of 6.5% per annum
and all remaining accrued interest on the Loan for the prior month
shall be added to the principal amount of the Loan. While an Event
of Default has occurred and is continuing, at the Lender’s
sole option, the unpaid principal amount of the Loan and any due
and unpaid fees shall bear interest thereafter until paid in full
at a rate per annum equal to the Reference Rate in effect from time
to time plus 5.0% per, annum After maturity, accrued interest shall
be payable in cash on demand.
3.2
Method of Calculating
Interest . Interest on the
unpaid principal amount of the Loan shall accrue from and including
the date each advance is made to, but not including, the date the
Loan is paid. Interest shall be calculated on the basis of a year
consisting of 365 (or, when applicable, 366) days and paid for
actual days elapsed.
3.3
Commitment Fee . Satellite shall pay the Lender a commitment fee of
$5,000,000, payable upon the earlier of (a) December 11, 2010 and
(b) the occurrence of the Trigger Event (in each case subject to
the provisions of Section 3.4(c) below).
3.4
Loan Success Fee
. Satellite shall pay the Lender one or
more payments of a loan success fee as follows:
(a)
Upon the occurrence of each Distribution
Event, Satellite shall pay to the Lender, concurrent with the
consummation of such Distribution Event, an amount equal to (and in
the form of the payment or distribution which is made to any equity
holder or holders of Holdings with respect to such Distribution
Event) what a person having originally received Class B Units (as
defined in the Holdings LLC Agreement) constituting 5% of the total
number of issued and outstanding Class A Units (as defined in the
Holdings LLC Agreement) and Class B Units taken together would have
received (or would have
8
been afforded the opportunity to receive
under clause (ii) of the definition of Distribution Event) as a
distribution on equity (or payment for the sale of equity into the
offering in the case of such clause (ii)) held by such person and
also having received any additional equity or other benefits or
detriments contained in or resulting from the anti-dilution
provisions and other similar protections afforded to or applicable
to holders of Class B Membership Interests in Holdings, in each
case under the Holdings LLC Agreement. Any payments under this
Section 3.4(a) shall be in addition to (but without
duplication of) any required payments under Sections 3.3 and
3.4(b) .
(b)
Upon the first to occur of (x) any Change
of Control or (y) the sale of all or a material portion of the
assets of Holdings or Satellite, Satellite shall pay to Lender a
cash amount, upon the occurrence of such event, equal to the lesser
of (a) (i) (A) the highest EBITDA for any complete fiscal year
beginning after the date of this Agreement and ending prior to the
date on which such Trigger Event occurs, times (B) 12, less (ii)
the aggregate “Capital Contributions” remaining
unreturned to “Class A Members” (each, as defined in
the Holdings LLC Agreement), times (iii) .05 and less (iv) the
amount of the commitment fee provided for in Section 3.3
which has been or is concurrently being paid and (b) the value of
the consideration which a person having originally received
Holdings’ Class B Units constituting 5% of the total number
of issued and outstanding Class A Units and Class B Units taken
together, and also having received any additional equity or other
benefits or detriments contained i
