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Sample Business ContractsHome: Sample Business Contracts:
EXECUTION COPY
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ARIANESPACE CUSTOMER LOAN AGREEMENT
Dated as of July 22, 1997
between
CD RADIO INC.
and
ARIANESPACE FINANCE S.A.
Relating to Launch # 1
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS...................................................... 1
1.01 Defined Terms.................................................... 1
1.02 Other Definitional Provisions..................................... 44
SECTION 2. LOAN PROVISIONS...................................................... 45
2.01 Amounts and Terms of Commitments.................................. 45
2.02 Manner of Borrowing Tranche A Loans............................... 46
2.03 Procedure for Conversion to a Tranche B Loan...................... 47
2.04 Deconversion and Reconversion..................................... 48
2.05 Prepayments....................................................... 49
2.06 Repayment......................................................... 52
2.07 Interest.......................................................... 53
2.08 Fees.............................................................. 54
2.09 Computation of Interest and Fees.................................. 54
2.10 Payments by the Customer.......................................... 54
2.11 Security.......................................................... 55
2.12 Note.............................................................. 56
2.13 ECA Enhancement................................................... 56
2.14 ECA Additional Terms and Conditions............................... 57
SECTION 3. TAXES AND YIELD PROTECTION........................................... 57
3.01 Taxes............................................................. 57
3.02 Increased Costs and Reduction of Return........................... 61
3.03 Funding Losses.................................................... 64
3.04 Inability to Determine Rates...................................... 64
SECTION 4. CONDITIONS PRECEDENT................................................ 65
4.01 Conditions to Initial Tranche A Loan.............................. 65
4.02 Conversion Conditions............................................. 68
4.03 Tranche B Conditions Precedent.................................... 70
4.04 Conditions to All Loans........................................... 76
SECTION 5. REPRESENTATIONS AND WARRANTIES....................................... 76
5.01 Existence and Power............................................... 76
5.02 Authorizations; No Contravention.................................. 77
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5.03 Government Approvals.............................................. 77
5.04 Binding Effect.................................................... 79
5.05 Litigation........................................................ 79
5.06 No Default........................................................ 80
5.07 Use of Proceeds................................................... 80
5.08 Title to Assets................................................... 80
5.09 Taxes............................................................. 80
5.10 Financial Condition............................................... 80
5.11 Environmental Matters............................................. 81
5.12 Subsidiaries...................................................... 82
5.13 Insurance......................................................... 82
5.14 Project Compliance................................................ 82
5.15 Collateral........................................................ 82
5.16 Collateral Documents.............................................. 83
5.17 Sufficiency of Loan Documents and Satellite Contracts............. 83
5.18 Disclosure........................................................ 84
5.19 Effectiveness of Loan Documents, Satellite Contracts and
Qualified Lease Agreements........................................ 84
5.20 Employee Benefit Liabilities...................................... 84
5.21 Investment Company Act............................................ 84
SECTION 6. AFFIRMATIVE COVENANTS................................................ 85
6.01 Financial Statements.............................................. 85
6.02 Certificates; Other Information................................... 86
6.03 Notices........................................................... 87
6.04 Preservation of Existence, Etc.................................... 88
6.05 Maintenance of Assets............................................. 89
6.06 Maintenance of Insurance.......................................... 89
6.07 Payment of Obligations............................................ 95
6.08 Compliance with Laws.............................................. 96
6.09 Inspection of Property and Books and Records...................... 96
6.10 Environmental Laws................................................ 96
6.11 Use of Proceeds................................................... 97
6.12 Project Maintenance............................................... 97
6.13 Telecommunications Approvals...................................... 97
6.14 Government Approvals.............................................. 98
6.15 Rate Contracts.................................................... 98
6.16 Operational Control and Re Export................................. 98
6.17 Performance of Loan Documents..................................... 99
6.18 Performance of Satellite Contracts............................... 100
6.19 Performance of Qualified Lease Agreements........................ 100
6.20 Orbital Position. .............................................. 100
6.21 Export License................................................... 100
6.22 In-Orbit Commissioning........................................... 100
6.23 Satellite Operational Reports.................................... 101
6.24 Transponder Lease Agreements..................................... 101
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6.25 Further Assurances............................................... 101
6.26 Priorities....................................................... 102
SECTION 7. NEGATIVE COVENANTS.................................................. 103
7.01 Limitation on Liens.............................................. 103
7.02 Disposition of Collateral........................................ 104
7.03 Disposition of Assets Other Than Collateral...................... 104
7.04 Transactions with Affiliates..................................... 105
7.05 Notice of Indebtedness........................................... 105
7.06 Lease Obligations................................................ 105
7.07 Capital Expenditures............................................. 106
7.08 Change in Structure; Consolidations and Mergers.................. 106
7.09 Accounting Changes............................................... 107
7.10 Business......................................................... 107
7.11 Military Activities.............................................. 108
7.12 Loan Documents................................................... 108
7.13 Satellite Contracts; Qualified Lease Agreements.................. 108
7.14 Loans, Deposits and Investments.................................. 110
7.15 Subordinated Indebtedness........................................ 110
SECTION 8. EVENTS OF DEFAULT................................................... 111
8.01 Events of Default................................................ 111
8.02 Remedies......................................................... 118
8.03 Rights Not Exclusive............................................. 119
SECTION 9. ADDITIONAL LOAN PROVISIONS.......................................... 119
9.01 Category 3 Preview............................................... 119
9.02 Conversion Process ............................................. 123
9.03 Additional Collateral............................................ 129
9.04 Security Interest in Collateral.................................. 129
SECTION 10. MISCELLANEOUS...................................................... 133
10.01 Amendments and Waivers........................................... 133
10.02 Notices.......................................................... 133
10.03 No Waiver; Cumulative Remedies................................... 134
10.04 Costs and Expenses; Indemnification.............................. 134
10.05 Successors and Assigns........................................... 136
10.06 Assignment....................................................... 136
10.07 Currency Indemnity............................................... 137
10.08 Set-off.......................................................... 138
10.09 Counterparts..................................................... 139
10.10 Severability..................................................... 139
10.11 GOVERNING LAW AND JURISDICTION................................... 139
10.12 WAIVER OF JURY TRIAL............................................. 141
10.13 Entire Agreement................................................. 141
10.14 Confidentiality.................................................. 141
10.15 Headings......................................................... 142
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10.16 No Third Party Beneficiaries..................................... 142
10.17 Survival......................................................... 142
10.18 Language......................................................... 142
10.19 Determinations by AEF............................................ 142
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ANNEXES
ANNEX 1 CATEGORY 1 CUSTOMER
ANNEX 2 CATEGORY 2 CUSTOMER
ANNEX 3 CATEGORY 3 CUSTOMER
ANNEX 4 LIST OF COUNTRIES
ANNEX 5 ACCEPTABLE CURRENCIES
ANNEX 6 LIST OF PERMITTED LOCATIONS
SCHEDULES
SCHEDULE 5.03 GOVERNMENT APPROVALS
SCHEDULE 5.05 LITIGATION
SCHEDULE 5.10 BASE FINANCIAL STATEMENTS
SCHEDULE 5.11 ENVIRONMENTAL CLAIMS
SCHEDULE 5.12A SUBSIDIARIES
SCHEDULE 5.12B EQUITY INVESTMENTS
SCHEDULE 10.02 ADDRESSES FOR NOTICES
EXHIBITS
EXHIBIT A FORM OF NOTICE OF DRAWDOWN
EXHIBIT B FORM OF ASSIGNMENT AND ACCEPTANCE
EXHIBIT C FORM OF NOTE
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This CUSTOMER LOAN AGREEMENT is entered into as of July 22, 1997, between CD
RADIO INC., a corporation organized under the laws of Delaware (the "CUSTOMER")
and ARIANESPACE FINANCE S.A., a company organized under the laws of Luxembourg
("AEF").
WHEREAS, AEF has agreed to make available to the Customer certain loans upon the
terms and conditions set forth in this Agreement;
WHEREAS, the Lenders are providing loans to AEF for the purpose of funding the
loans contemplated by this Agreement;
WHEREAS, AE and CD Radio Inc., as the LSA Party have entered into the Launch
Services Agreement for the launch of the Satellite; and
WHEREAS, the execution and delivery of the Launch Services Agreement and the
Multiparty Agreement related thereto constitute the basis upon which AEF has
agreed to make the loans contemplated by this Agreement; and
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows:
SECTION 1. DEFINITIONS
1.011 DEFINED TERMS. Unless expressly defined otherwise herein, capitalized
terms shall have the meanings set forth in this Section 1.01:
"ACCEPTABLE CURRENCY" means a freely transferable currency of a country
listed on ANNEX 5 hereto, the Euro or the ECU, provided that the ECU
shall cease to be an Acceptable Currency upon the adoption and
implementation of the Euro and any obligation denominated in the ECU
shall provide that it is convertible into the Euro upon such
implementation.
"ACCOUNT BANK" means Credit Lyonnais as account bank in such capacity,
together with its successors in such capacity, as designated by AEF.
"AE" means Arianespace S.A., a company organized under the laws of
France.
"AE ACCOUNT" means account number 036122-43, established by AE with the
Account Bank at its office in Luxembourg as such account may be
renumbered or any successor account identified by AEF to the Customer
from time to time.
"AEF" has the meaning specified in the preamble to this Agreement.
"AFFILIATE" means, as to any Person, any other Person, directly or
indirectly, controlling, controlled by, or under common control with,
such first-named Person. A Person shall be deemed to control another
Person if the controlling Person
<PAGE> 7
possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of the other Person, whether
through the ownership of voting stock, by contract or otherwise. Without
limitation, any Person that owns directly or indirectly twenty percent
(20%) or more of the voting stock or other equity interests of a Person
shall, for the purposes of this Agreement and any other Loan Document, be
deemed to control the other Person.
"AGREEMENT" means this Customer Loan Agreement.
"APPLICABLE MARGIN" means (a) during the Tranche A Term, the percentage
amount as set forth in the Fee Letter and (b) during the Tranche B Term,
the Customer Tranche B Margin set forth in ANNEX 1, 2 OR 3, as applicable
to the Customer on and after the Conversion Date in relation to the
designation by AEF of the Customer into a Customer Category pursuant to
Section 9, provided that, if the Customer Tranche B Margin shall be as
set forth in ANNEX 1 as a result of ECA Enhancement being procured with
respect to the Customer, pursuant to Section 2.13, and such ECA
Enhancement shall at any time during the Tranche B Term cease to be in
full force and effect, the Customer Tranche B Margin shall, from and
after such date, be the Customer Tranche B Margin set forth in ANNEX 1, 2
OR 3, as would otherwise be applicable in the absence of such ECA
Enhancement.
"APPRAISAL" means a report, dated no earlier than fifteen (15) days prior
to the date of its delivery to AEF, prepared by the Appraiser, in form
and substance satisfactory to AEF, as to the matters set forth in Section
4.02(a).
"APPRAISER" means an independent appraiser selected by AEF and reasonably
acceptable to the Customer.
"ASSIGNMENT AND ACCEPTANCE" has the meaning specified in Section
10.06(a).
"ASSIGNMENT AND SECURITY AGREEMENT" means the assignment and security
agreement to be entered into between the Customer, any Affiliate thereof
contemplated by clause (g) of the definition of "Collateral" and the
Security Agent, in form and substance satisfactory to AEF, whereby the
Customer and such Affiliate (if any) grants to the Security Agent a Lien
on the Collateral in accordance with the terms hereof.
"ASSUMED DISTRESS VALUE" means an amount expressed in Dollars, as
determined by the Appraiser in the Appraisal, representing the assumed
proceeds of a sale realizable from an orderly remarketing of the
Satellite and (if and to the extent included or to be included in the
Collateral) the TTC&M Facilities, under normal market conditions
prevailing at the date of appraisal, following an assumed Event of
Default on the In-Orbit Commissioning Date.
"AVERAGE LIFE" means, with respect to the Tranche B Loan, an amount,
expressed in years, equal to: (a) the sum of the products of each Tranche
B Required Installment Amount multiplied by the number of years
(calculated to one (1) decimal place) from the Conversion Date to the
Tranche B Principal Payment Date on which such Tranche
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B Required Installment Amount is due, DIVIDED BY (b) the aggregate amount
of the Tranche B Loan outstanding as of the Conversion Date.
"BASE CASE" means, as the context may require, any Preliminary Base Case,
the Conversion Base Case or each subsequent base case updated in
accordance with the annual updated Business Plan to be provided pursuant
to Section 6.02(c) if the Customer shall have been determined to be a
Category 2 Customer or a Category 3 Customer.
"BASE DATE" means (a) prior to the Conversion Date, the date of the
latest Base Financial Statements and (b) on and after the Conversion
Date, the date of the latest Conversion Financial Statements.
"BASE FINANCIAL STATEMENTS" has the meaning specified in Section 5.10(a).
"BASLE ACCORD" means the proposals for a risk-based capital framework
described by the Basle Committee on Banking Regulations and Supervisory
Practices in its paper titled "International Convergence of Capital
Measurements and Capital Standards" dated July 1988.
"BREAK FUNDING COSTS" means any amounts required to compensate AEF for
any losses, costs or expenses (including any loss, cost or expense
incurred by reason of the liquidation or re-employment of funds acquired
by AEF to fund or maintain the extensions of credit represented by any
Loan but excluding any loss of profit or margin) that it incurs and any
amounts required by AEF to indemnify the Lenders for any of the foregoing
types of losses, costs or expenses with respect to the amounts made
available to AEF to fund the Loans and that it incurs, in either case as
a result of any unscheduled prepayment, repayment or acceleration of any
Loan on a date that is not the last day of an Interest Period.
"BUSINESS DAY" means (a) with respect to the provision of notices or the
lapse of any grace or other period, any day (other than a Saturday or a
Sunday) on which commercial banks are generally open for business in New
York City, Luxembourg, London, Paris and The District of Columbia, (b) in
the context of the definition of "Interest Period" and for purposes of
setting the date for the making of a Loan, a day that is also a day on
which dealings in Dollar deposits are carried out in the London interbank
market and (c) with respect to the making of any payment, any day (other
than a Saturday or a Sunday) on which commercial banks are generally open
for business in New York City and The District of Columbia.
"BUSINESS PLAN" means, as the context may require, the Preliminary
Business Plan, if one has been submitted pursuant to Section 9.01(a), or,
if the Customer shall have been determined to be a Category 2 Customer or
Category 3 Customer, the Conversion Business Plan prepared by the
Customer, as in effect from time to time as provided in accordance with
the terms hereof.
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"CAPEX BUDGET" means a plan for capital expenditures to be made by the
Customer Group over the Tranche B Term that a Customer determined to be a
Category 1C Customer may, at its option (but shall not be obligated to),
(a) furnish to AEF under Section 9.02(c)(i) and (b) update and furnish to
AEF within thirty (30) days before the end of any fiscal year of the
Customer to set forth a revised plan for capital expenditures for the
remainder of the Tranche B Term, such updated plan to be in form and
substance satisfactory to AEF.
"CAPITAL LEASE OBLIGATIONS" means all monetary obligations of a Person
under any leasing or similar arrangement that, in accordance with
Generally Accepted Accounting Principles, is classified as a capital
lease.
"CASH EQUIVALENTS" means the following investments, if and to the extent
they are denominated in Acceptable Currencies:
(a) securities issued or fully guaranteed or insured (i) by the
government of a country the short-term sovereign debt of which
is rated at least A-1 by S&P (or any local affiliate or
associated agency thereof) or P-1 by Moody's (or any local
affiliate or associated agency thereof) and which is a member
of the OECD, or by any agency of any such government, and
backed by the full faith and credit of such government, or (ii)
by the International Bank for Reconstruction and Development
(the World Bank), in each case having maturities of not more
than twelve (12) months from the date of acquisition;
(b) certificates of deposit, time deposits, Eurodollar time
deposits, or bankers' acceptances having in each case a tenor
of not more than six (6) months, issued by any Lender or by any
commercial bank organized under the laws of any country that is
a member of the OECD, and whose short term securities are rated
at least A-1 by S&P (or any local affiliate or associated
agency thereof) or P-1 by Moody's (or any local affiliate or
associated agency thereof);
(c) commercial paper of an issuer rated either at least A-1 by S&P
(or any local affiliate or associated agency thereof) or P-1 by
Moody's (or any local affiliate or associated agency thereof),
and in either case having a tenor of not more than three (3)
months; and
(d) repurchase agreements with any financial institution whose
short term securities are rated at least A-1 by S&P (or any
local affiliate or associated agency thereof) or P-1 by Moody's
(or any local affiliate or associated agency thereof), fully
collateralized by securities issued or fully guaranteed or
insured by the government of a country the short- term
sovereign debt of which is rated at least A-1 by S&P (or any
local affiliate or associated agency thereof) or P-1 by Moody's
(or any local affiliate or associated agency thereof) and which
is a member of the
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OECD, or by any agency of any such government, and backed by
the full faith and credit of such government.
"CATEGORY 1 CUSTOMER" means the Customer, if the Customer has satisfied
the requirements of ANNEX 1, as determined by AEF pursuant to Section
9.02(e), and to which the terms set forth in ANNEX 1, together with the
other terms herein applicable to it, shall apply during the Tranche B
Term.
"CATEGORY 1A CUSTOMER" means a Category 1 Customer that has been assigned
to the 1A subcategory of Category 1 pursuant to Section 9.02(e).
"CATEGORY 1B CUSTOMER" means a Category 1 Customer that has been assigned
to the 1B subcategory of Category 1 pursuant to Section 9.02(e).
"CATEGORY 1C CUSTOMER" means a Category 1 Customer that has been assigned
to the 1C subcategory of Category 1 pursuant to Section 9.02(e).
"CATEGORY 1C QL LOAN LIFE COVER RATIO" means the ratio, calculated as of
the Conversion Date (and, subject to Section 7.13(b), at no other time)
of (a) the aggregate of (i) the net present value (at a discount rate
reasonably acceptable to AEF) of the aggregate QL Cash Flow for the
Tranche B Term, LESS (ii) interest (at a rate reasonably acceptable to
AEF) payable during the Tranche B Term on Indebtedness secured (or
entitled to be secured) by a Lien on any of the Collateral and scheduled
to be outstanding after the Tranche B Term, PLUS (iii) the aggregate
total of any funds placed in escrow pursuant to Section 11.09(a) hereof
to (b) the aggregate of (i) the principal amount of the Tranche B Loan
then outstanding, PLUS (ii) any other Indebtedness then outstanding
secured (or entitled to be secured) by a Lien on any of the Collateral
and scheduled to be repaid during the Tranche B Term.
"CATEGORY 2 CF LOAN LIFE COVER RATIO" means, as of the date of
calculation, the ratio, calculated as of such date under the Conversion
Base Case or, for purposes of Section 12.04(b)(iv), the Base Case as
updated from time to time to reflect the updated Business Plan furnished
under Section 6.02(c)(ii), of (a) the aggregate of (i) the net present
value of Total Cash Flow for the remaining Tranche B Term (at a discount
rate reasonably acceptable to AEF, taking into account the Rate Contracts
entered into in accordance with Section 6.15), LESS (ii) interest (at a
rate reasonably acceptable to AEF, taking into account the Rate Contracts
entered into in accordance with Section 6.15) payable during such year
and each subsequent year during the then remaining Tranche B Term on (A)
Indebtedness secured (or entitled to be secured) by a Lien on any of the
Collateral and (B) the principal amount of all other Indebtedness (other
than Subordinated Indebtedness and (to the extent agreed by AEF)
Contingent Obligations) of the Customer then outstanding, and, in each
case, scheduled to be outstanding after the Tranche B Term, PLUS (iii)
the aggregate total of any funds placed in escrow pursuant to Section
12.03(a) to (b) the sum (without duplication) of (i) the then outstanding
principal amount of the Tranche B Loan, PLUS (ii) the principal amount of
any Indebtedness then outstanding and secured (or entitled to be secured)
by a Lien on any of the Collateral and scheduled to be repaid during the
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Tranche B Term, PLUS (iii) the principal amount of all other Indebtedness
(other than Subordinated Indebtedness and (to the extent agreed by AEF)
Contingent Obligations) of the Customer then outstanding and scheduled to
be repaid during the Tranche B Term.
"CATEGORY 2 CUSTOMER" means the Customer, if the Customer has satisfied
the requirements of ANNEX 2, as determined by AEF pursuant to Section
9.02(e), and to which the terms set forth in ANNEX 2, together with the
other terms herein applicable to it, shall apply during the Tranche B
Term.
"CATEGORY 2 QL LOAN LIFE COVER RATIO" means the ratio, calculated as of
the Conversion Date (and, subject to Section 7.13(b), at no other time)
under the Conversion Base Case, prospectively for each year during the
Tranche B Term, of (a) the aggregate of (i) the net present value (at a
discount rate equal to the debt interest rate used in the preparation of
the Conversion Base Case) of the QL Cash Flow for such year and each such
subsequent year during the then remaining Tranche B Term, LESS (ii)
interest (at a rate equal to the debt interest rate used in the
preparation of the Conversion Base Case) payable during such year and
each such subsequent year during the then remaining Tranche B Term on
Indebtedness secured (or entitled to be secured) by a Lien on any of the
Collateral and scheduled to be outstanding after the Tranche B Term, PLUS
(iii) the aggregate total of any funds placed in escrow pursuant to
Section 12.03(a), to (b) the aggregate of (i) the principal amount of the
Tranche B Loan then outstanding, PLUS (ii) any other Indebtedness then
outstanding and secured (or entitled to be secured) by a Lien on any of
the Collateral and scheduled to be outstanding at the beginning of such
year and each such subsequent year and scheduled to be repaid during the
Tranche B Term.
"CATEGORY 3 CUSTOMER" means the customer, if the Customer has satisfied
the requirements of ANNEX 3, as determined by AEF pursuant to Section
9.02(e), and to which the terms set forth in ANNEX 3, together with the
other terms herein applicable to it, shall apply during the Tranche B
Term.
"CATEGORY 3 LOAN LIFE COVER RATIO" means the ratio, calculated as of the
Conversion Date (and, subject to Section 7.13(b), at no other time) under
the Conversion Base Case, prospectively for each year during the Tranche
B Term, of (a) the aggregate of (i) the net present value (at a discount
rate equal to the debt interest rate used in the preparation of the
Conversion Base Case) of Total Cash Flow for such year and each such
subsequent year during the then remaining Tranche B Term, LESS (ii)
interest (at a rate equal to the debt interest rate used in preparation
of the Conversion Base Case) payable for such year and each such
subsequent year during the then remaining Tranche B Term on Indebtedness
secured (or entitled to be secured) by a Lien on any of the Collateral
and scheduled to be outstanding after the Tranche B Term, to (b) the sum
(without duplication) of (i) the then outstanding principal amount of the
Tranche B Loan, PLUS (ii) the principal amount of any Indebtedness then
outstanding and secured (or entitled to be secured) by a Lien on any of
the Collateral and scheduled to be repaid during the Tranche B Term, PLUS
(iii) the principal amount of all other Indebtedness (other than
Subordinated Indebtedness and
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(to the extent agreed by AEF) Contingent Obligations) of the Customer
then outstanding and scheduled to be repaid during the Tranche B Term.
"CATEGORY 3 PREVIEW" means the preview process described in Section 9.01.
"C-BAND TRANSPONDERS" means transponders operating in the portion of the
radio-frequency spectrum that covers approximately 4 gigahertz to 8
gigahertz.
"CLOSING DATE" means the date on which all conditions precedent set forth
in Section 4.01 are satisfied by the Customer or waived by AEF as
evidenced by a certificate to such effect executed and delivered by AEF
to the Customer.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLATERAL" means all right, title and interest in and to:
(a) the Satellite;
(b) the Satellite Purchase Agreement;
(c) the TTC&M Facilities, if at any time owned by the Customer, or
otherwise, the TTC&M Contract;
(d) any Government Approval relating to the Satellite, and any
other Government Approval relating to any other part of the
Project owned by the Customer, but excluding any such
Government Approval relating solely to the construction of any
portion of the Project if such construction has been fully
completed;
(e) any intangible rights necessary to control, operate and
transfer ownership of the Satellite;
(f) the benefits of any indemnity, warranty or guarantee in respect
of the Satellite, the TTC&M Facilities or the assets referred
to in (g) below (but only if and to the extent that the Project
Financing is also secured by a Lien on such assets);
(g) gateway, ground reception and similar facilities owned by the
Customer or any Affiliate thereof or leasehold interests in
such facilities leased by the Customer or any Affiliate
thereof, each to the extent related to the Satellite where the
Project Financing is also secured by a Lien on such gateways,
ground reception and similar facilities, and if, at any time
after the date hereof, (i) the Customer or any Affiliate
thereof acquires title to any of the foregoing items or (ii)
any of the foregoing items becomes subject to a Lien for the
benefit of the Project Lenders pursuant to any Project
Financing, such items shall thereupon form part of the
Collateral (it being understood and agreed that until such
time, if
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any, as either of the conditions referred to in the foregoing
subclauses (i) and (ii) of this clause (g) is satisfied, the
items referred to in this paragraph (g) shall not be deemed to
be Collateral for purposes of this Agreement);
(h) if the Customer shall have been determined to be a Category 1C
Customer or a Category 2 Customer, the Qualified Lease
Agreements;
(i) if the Customer shall have been determined to be a Category 1C
Customer or Category 2 Customer, the Transponder Lease
Agreements (other than Qualified Lease Agreements), PROVIDED
that the Customer shall not be in breach of its obligations
under this Agreement to the extent that the Customer has
diligently sought to effect an assignment of such agreements by
eliciting the lessee's consent to such assignment and is unable
to achieve the same;
(j) if the Customer shall have been determined to be a Category 3
Customer that is a Leased Satellite Customer, the Transponder
Lease Agreements, PROVIDED that the Customer shall not be in
breach of its obligations under this Agreement to the extent
that the Customer has diligently sought to effect an assignment
of such agreements by eliciting the lessee's consent to such
assignment and is unable to achieve the same, PROVIDED that
such agreements constituting at least fifty percent (50%) of
aggregate projected revenues reflected in the Business Plan
shall have been assigned to the Security Agent with all
required consents thereto obtained;
(k) if the Customer shall have been determined to be a Category 3
Customer that is not a Leased Satellite Customer, the
Transponder Lease Agreements;
(l) if the Customer shall have been determined to be a Category 1C
Customer, a Category 2 Customer or a Category 3 Customer, the
Revenue Accounts and all cash balances and investments held
therein;
(m) in relation to a Customer offering an equity pledge in
accordance with Section 9.04(c)(i), one hundred percent (100%)
of its stock certificates or other equity interests in such
Customer or the special purpose vehicle, as the case may be;
(n) in relation to all Customer Categories, all proceeds deriving
from the above-specified Collateral in subsections (a) through
(m) above, as the same may be supplemented pursuant to Section
9.03;
(o) rights to receive certain payments under the Launch Services
Agreement provided or to be provided for in the Multiparty
Agreement as a "delegation" under French law;
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<PAGE> 14
(p) the proceeds of insurance maintained pursuant to Section 6.06
in respect of which the Security Agent is required by Section
6.06(c) to be named as loss payee;
(q) any other rights or assets constituting additional Collateral
pursuant to Section 9.03; and
(r) any collateral provided by the Customer or an Affiliate thereof
to secure a loan by AEF to the Customer or such Affiliate
pursuant to another customer loan agreement, provided that the
Customer or such Affiliate shall have been determined to be in
the same "Customer Category" in such other customer loan
agreement as hereunder.
It is acknowledged and agreed that, solely for purposes of determining
whether the items referred to in the foregoing clauses (f) and (g)
constitute Collateral, the term "Project Financing" as used in said
clauses shall be deemed not to include any financing that is not secured
by any of the items referred to in any of the other clauses of this
definition.
"COLLATERAL DOCUMENTS" means the Assignment and Security Agreement, the
TTC&M Mortgage (if applicable), the Consents to Assignment, and other
documents to be entered into in order that a Lien is granted and
perfected on or in the Collateral in accordance with the terms hereof and
all financing statements, registrations and other filings (or comparable
documents) now or hereafter filed or to be filed in connection therewith
and (without prejudice to the provisos contained in clauses (i) and (j)
of the definition of "Collateral" in this Section 1.01) any consents
required from any Person in connection therewith.
"COMMITMENT" means, during the Tranche A Term, the Tranche A Commitment,
and, during the Tranche B Term, the Conversion Commitment.
"COMMITMENT FEE" means the fee payable quarterly in arrears by the
Customer to AEF calculated as a percentage per annum of the daily average
unused portion of the Tranche A Commitment Amount for each day during the
preceding quarterly period, in the amount and as set forth in the Fee
Letter.
"COMPARABLE FINANCING TRANSACTION" means the Customer's most recent
long-term, asset-based financing of comparable term, with comparable
security and on comparable conditions funded with debt from international
banks, if such financing was entered into not earlier than the date
falling two (2) years prior to the date hereof and not later than the
date hereof.
"CONSENTS TO ASSIGNMENT" mean the acknowledgments and consents to
assignment to be given by Lessees of Qualified Lease Agreements in
accordance with the terms hereof.
"CONSOLIDATED NET WORTH" means the aggregate, on any date of
determination, of:
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(a) the amount paid up or credited as paid up on the issued
ordinary and preference share capital of the Customer Group
(excluding any Disqualified Capital Stock); and
(b) the amount standing to the credit of the capital and revenue
reserves of the Customer Group;
but adjusted (to the extent that the following items have not already
been added, deducted or excluded in calculating (a) or (b) above) by:
(i) adding any amount standing to the credit of the profit and loss
account for members of the Customer Group since the Base Date
to the extent the amount is not attributable to any dividend or
other distribution declared, recommended or made by any member
of the Customer Group (other than to another member of the
Customer Group);
(ii) deducting any amount standing to the debit of the profit and
loss account for members of the Customer Group since the Base
Date;
(iii) deducting the sum of the following: cost of treasury shares
and the book value of all assets that should be classified as
intangibles (without duplication of deductions in respect of
items already deducted in arriving at surplus and retained
earnings) but in any event including licenses, goodwill,
minority interests, research and development costs, trademarks,
trade names, copyrights and patents and franchises;
(iv) reflecting any variation in the amount of the Customer's
issued share capital and capital and revenue reserves after the
Base Date; and
(v) reflecting any variation in the interest of the Customer in any
other member of the Customer Group since the Base Date.
"CONSTRUCTION AND PAYMENT SCHEDULE" means the construction and payment
schedule prepared and certified by a Responsible Officer of the SPA Party
setting forth the specific dates for payments to be made under the
Satellite Purchase Agreement and the TTC&M Contract, and the maximum
amount of each such payment, as such specific dates and payment amounts
may be adjusted pursuant to the terms of the Satellite Purchase Agreement
and the TTC&M Contract (as the case may be).
"CONSTRUCTIVE TOTAL FAILURE" has the meaning ascribed to that term or a
term substantially similar to such term in the launch and initial
operations insurance or in the in-orbit insurance (whichever is then in
effect) procured or caused to be procured by the Customer as required by
Section 6.06(b).
"CONTINGENT OBLIGATION" means, as applied to any Person, any direct or
indirect liability of that Person with respect to any Indebtedness,
lease, dividend, letter of credit or other obligation (for purposes of
this definition, the "PRIMARY OBLIGATIONS")
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<PAGE> 16
of another Person (for purposes of this definition, the "PRIMARY
OBLIGOR"), including any obligation of that Person, whether or not
contingent (a) to purchase, repurchase or otherwise acquire such primary
obligations or any property constituting direct or indirect security
therefor, (b) to advance or provide funds (i) for the payment or
discharge 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 or any balance sheet item, level of income or
financial condition of the primary obligor, (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, (d) otherwise to assure or hold
harmless the holder of any such primary obligation against loss in
respect thereof or (e) to purchase or otherwise acquire, or otherwise to
assure a creditor against loss in respect of, any Indebtedness. For
purposes of this definition, the amount of any Contingent Obligation
shall be deemed to be an amount equal to the maximum reasonably
anticipated liability in respect thereof, as reasonably determined by
such Person's independent auditors.
"CONTRACT" means (a) any agreement (whether bilateral, unilateral,
executory or non-executory, and whether a Person entitled to rights
thereunder is so entitled directly or as a third party beneficiary),
including an indenture, lease or license or (b) any deed or other
instrument of conveyance.
"CONVERSION" has the meaning specified in Section 2.01(b).
"CONVERSION AMOUNT" means the amount of Tranche A Outstandings actually
converted to the Tranche B Loan on the Conversion Date, the aggregate of
such amounts not to exceed the Conversion Commitment Amount.
"CONVERSION BASE CASE" means the Base Case for the Customer as described
in Section 9.02.
"CONVERSION BUSINESS PLAN" means the Business Plan of the Customer
submitted to AEF as described in Section 9.02, which shall be sufficient
to enable AEF to determine whether the applicable Conversion Conditions
will have been satisfied as of the Conversion Commitment Date in
accordance with Section 9.02(e), and containing at a minimum, and without
limitation, the following information with respect to the Project:
(a) details of the Project sponsor or Project sponsors, a general
description of the Customer's business and organization, the
then-current equity holdings therein and general biographical
information as to key management team members;
(b) projections of all capital and operating costs (including
material taxes) and revenues the Project is projected to
generate with sufficient information (including the details of
assumptions underlying such projections) in each case for AEF
and the Lenders to assess the Project;
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<PAGE> 17
(c) a general description of the target market for the Project,
which shall include a statement of the percentage of such
target market that the Customer proposes to capture;
(d) a technical description of the Project;
(e) an overview of the laws and regulations applicable to the
Project and the status of requisite governmental approvals for
the construction, launch and operation thereof;
(f) a description of the Collateral that is expected to be
available for the benefit of AEF and the Lenders and whether a
first priority, perfected Lien will and can be granted and
perfected thereon;
(g) a general description of the proposed sources of finance for
the Project, along with a description of the manner in which
such financing will be secured;
(h) a general description of risks material to the core business of
the Project to the extent not otherwise described in this
definition of Conversion Business Plan or covered by insurance;
and
(i) details of underlying economic assumptions and factors,
including inflation, interest and exchange rates.
"CONVERSION COMMITMENT" means the commitment by AEF to the Customer
issued on the Conversion Commitment Date for the Conversion (or
Reconversion, as the case may be) of the Conversion Commitment Amount
upon the terms and subject to the conditions of this Agreement, relating
to a Launch (or Reflight, as the case may be) to occur on the
then-scheduled date of Launch and extending up to ninety (90) days after
such date (to accommodate possible launch postponements).
"CONVERSION COMMITMENT AMOUNT" means the amount of Tranche A Outstandings
(including Tranche A Loans, the proceeds of which have been or will be
applied to the payment of Finance Costs) that may be converted to a
Tranche B Loan on the Conversion Date, such amount being equal to the
product of the Tranche B Advance Rate and the Launch Costs (which product
in any event shall not exceed an amount equal to the lesser of (a) sixty
percent (60%) of the Launch Costs and (b) fifty-two million eight hundred
thousand Dollars ($52,800,000)).
"CONVERSION COMMITMENT DATE" means the date, if any, on which AEF shall
deliver the Conversion Commitment Letter following the determination set
forth in Section 9.02(e).
"CONVERSION COMMITMENT LETTER" means the notice given by AEF to the
Customer on the Conversion Commitment Date, identifying the applicable
Customer Category and setting forth the terms and conditions of the
Conversion Commitment.
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<PAGE> 18
"CONVERSION CONDITIONS" means the conditions set forth in Section 4.02.
"CONVERSION DATE" means the date on which Conversion occurs.
"CONVERSION FEE" means the fee payable by the Customer on the Conversion
Date to AEF calculated as a percentage of the Conversion Amount as set
forth in the Fee Letter.
"CONVERSION FINANCIAL STATEMENTS" has the meaning specified in Section
5.10(b).
"CONVERSION REQUEST DATE" means the date that the Customer delivers to
AEF the items referred to in Section 9.02(d).
"CONVERT" means the occurrence of Conversion with respect to the Tranche
A Loans.
"COVERED PERSON" has the meaning specified in Section 10.04(b).
"COVERED PROPERTY" has the meaning specified in Section 6.06(a).
"COVERED TAXES" has the meaning specified in Section 3.01(d).
"CREDIT RATING" means, at any time, the credit rating most recently
established by a Major Rating Agency for the Customer's Relevant Debt (as
defined in the following sentence). For purposes of the preceding
sentence, "CUSTOMER'S RELEVANT DEBT" means money borrowed by the Customer
(a) the repayment of which is secured by, and only by, a satellite
comparable to the Satellite (including in respect of the intended use of
the Satellite) and other collateral comparable to the Collateral, and is
not supported by any other type of credit-enhancement, (b) on terms and
conditions comparable to the terms and conditions of this Agreement, the
Note and the Collateral Documents that are applicable after the
Conversion Date and (c) where the ratio of (i) the amount, as reasonably
determined by a qualified appraiser in a written appraisal prepared prior
to the establishment of such credit rating, representing the assumed
proceeds of a sale realizable from an orderly remarketing of such
satellite under normal market conditions prevailing at the date of
appraisal to (ii) all Indebtedness of the Customer secured by a Lien on
such satellite on the date of the establishment of such credit rating
does not exceed the ratio of (x) the Assumed Distress Value to (y) Total
Senior Debt Outstanding on the date of the establishment of such Credit
Rating; provided that if no such borrowed money of the Customer exists,
"CUSTOMER'S RELEVANT DEBT" means the Customer's senior, long-term debt
that is not secured or otherwise credit-enhanced, if any.
"CURRENCY OF OBLIGATION" has the meaning specified in Section 10.07(a).
"CURRENCY OF PAYMENT" has the meaning specified in Section 10.07(a).
"CUSTOMER" has the meaning specified in the preamble to this Agreement.
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<PAGE> 19
"CUSTOMER CATEGORY" means the category designated for the Customer with
respect to this Agreement by AEF on the Conversion Commitment Date
pursuant to Section 9.02(e) and in accordance with the criteria set forth
in the Annexes attached hereto.
"CUSTOMER GROUP" means the Customer and, if the Customer shall have been
determined to be a Category 1 Customer, the consolidated Subsidiaries of
the Customer. All financial calculations hereunder to be made for the
Customer Group shall, if the Customer shall have been determined to be a
Category 1 Customer, be made on a consolidated basis in accordance with
Generally Accepted Accounting Principles.
"DECONVERSION" has the meaning specified in Section 2.04(a).
"DEFAULT" means any event which, with the giving of notice or the lapse
of time or both of the foregoing, would constitute an Event of Default.
"DEFAULT RATE" has the meaning specified in Section 2.07(c)(ii).
"DETERMINATION" has the meaning specified in Section 10.19.
"DISQUALIFIED CAPITAL STOCK" means capital stock of the Customer that may
be redeemed, purchased or repurchased, or in respect of which sinking
fund payments may be made, other than solely at the option of the
Customer.
"DISTRESS RECOVERY VALUE" means the product of the Assumed Distress Value
multiplied by the ratio of the Conversion Amount to the Total Senior Debt
Outstanding as of the Conversion Date.
"DOLLARS" and "$" means lawful money of the United States of America.
"DOMICILED" with respect to any Person means each jurisdiction:
(a) in which such Person is incorporated or organized;
(b) that is the primary jurisdiction in which such Person is
domiciled for the purposes of calculating corporation or other
taxes on its revenues or capital; or
(c) in which, in accordance with the determination of any Lender,
consistently applied, pursuant to the policies or any decision
of a Governmental Authority or any court having jurisdiction
over such Lender, or another authority with which such Lender
customarily complies, such Person is domiciled.
"EBITDA" ("earnings before interest, tax, depreciation and amortization")
means, for any period, the net income or net loss (or the equivalent) for
the Customer Group for such period, determined in accordance with
Generally Accepted Accounting Principles
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<PAGE> 20
as follows (without duplication), using items reflected in the financial
statements of the Customer Group, to the extent applicable:
(a) after adding back (to the extent otherwise deducted) any
depreciation and amortization;
(b) after adding back (if negative and to the extent otherwise
deducted) or after deducting (if positive and to the extent
otherwise added) any extraordinary items, including without
limitation those that would be treated as "exceptional items"
under generally accepted accounting principles in the United
Kingdom in cases where such generally accepted accounting
principles are the Specified GAAP for purposes hereof;
(c) after adding back (to the extent otherwise deducted) corporate
taxes and the equivalents in any relevant jurisdiction;
(d) after adding back (if negative and to the extent otherwise
deducted) or after deducting (if positive and to the extent
otherwise added) interest expense and interest income, whether
or not paid, deferred or capitalized;
(e) before taking into account, to the extent not received by the
Customer Group in cash during such period, any income of the
Customer Group from any Affiliate or other investments (or any
such income accrued in respect of any prior period which has
not previously been paid), and before taking into account, to
the extent not received by the Customer Group in cash during
such period, any share of the profit of any Affiliate or other
investments and after taking into account dividends received in
cash during such period from any Affiliate or other
investments;
(f) after adding back (to the extent otherwise deducted) the amount
of pension contributions and vacation and health benefits
provided by the Customer Group in respect of such period but
not paid in cash, to the extent only that they are not actually
paid in cash (and, for this purpose, if such amount for any
annual accounting period is not allocated on the basis of
quarterly accounting periods, it shall be deemed allocated
equally to each of the four (4) quarters comprised in such
annual accounting period);
(g) if the Customer shall have been determined to be a Category 1C
Customer, after deducting (to the extent otherwise included)
any gain over book value arising in favor of the Customer Group
on the sale, lease or other disposal of any asset (other than
the sale of trading stock) during such period and any gain
arising on any revaluation of any asset during such period;
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<PAGE> 21
(h) after adding back (to the extent otherwise deducted) any loss
against book value incurred by the Customer Group on the sale,
lease or other disposal of any asset (other than the sale of
trading stock) during such period, or any loss on any
revaluation of any asset during such period; and
(i) if the Customer shall have been determined to be a Category 1
Customer, after deducting (to the extent otherwise included)
the amount of profit (or adding back the amount of any loss) of
the Customer Group for such period which is attributable to
minority interests in any Subsidiary of the Customer.
"ECA" means any one or more than one export credit agency as AEF may
approve that, at the request of the Customer, AEF, AE or any Lender,
provides ECA Country Risk Coverage or ECA Enhancement.
"ECA COUNTRY RISK COVERAGE" means political risk coverage, in accordance
with the statutory limitations in effect on the date hereof on such
coverage (together with changes thereto as may be acceptable to AEF)
available from the applicable ECA in an amount and on terms and
conditions satisfactory to AEF, provided by one or more ECAs in support
of the Tranche B Loan.
"ECA ENHANCEMENT" means commercial risk coverage, in accordance with the
statutory limitations in effect on the date hereof on such coverage
(together with changes thereto as may be acceptable to AEF) available
from the applicable ECA in an amount and on terms and conditions
satisfactory to AEF, provided by one or more ECAs in support of the
Tranche B Loan.
"ECA GUARANTY FEE" means the fees payable by the Customer to AEF or any
ECA in connection with ECA Country Risk Coverage or ECA Enhancement as
advised by the relevant ECAs.
"ECA PERCENTAGE" means the percentage of the Tranche B Loan guaranteed by
ECA Enhancement, expressed as a percentage of the aggregate total amount
of the Tranche B Loan then outstanding.
"ECU" means the European Currency Unit being the unit of account used by
the European Monetary System, the composition of which may from time to
time be varied by the European Union.
"ELIGIBLE ASSIGNEE" means (a) any Lender for itself or on behalf of any
other Lender or Lenders or AEF, (b) a Subsidiary of any Person described
in clause (a) above (for purposes of this definition, such Person being
herein referred to as a "PERMITTED INSTITUTION") if such Permitted
Institution enters into a legal, valid, binding and enforceable written
guaranty, providing that such Permitted Institution shall be primarily
and unconditionally liable to the Customer for all obligations of its
Subsidiary, (c) any Affiliate of AEF or (d) any private or public holder
or holders of
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any Indebtedness of AEF pursuant to any private or public offering or any
trustee or institution acting on their behalf.
"ENVIRONMENTAL CLAIM" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law or for release or
injury to the environment or threat to public health, personal injury
(including sickness, disease or death), property damage, natural
resources damage or otherwise alleging liability or responsibility for
damage (punitive or otherwise), cleanup, removal, remedial or response
costs, restitution, civil or criminal penalties, injunctive relief or
other type of relief, resulting from or based upon (a) the presence,
placement, discharge, emission or release (including intentional and
unintentional, negligent and non-negligent, sudden or non-sudden,
accidental or non-accidental placement, spills, leaks, discharges,
emissions or releases) of any Hazardous Material at, in or from property,
whether or not owned by the Customer or (b) any other circumstances
forming the basis of any violation, or alleged violation, of any
Environmental Law.
"ENVIRONMENTAL LAWS" means all national, local or foreign laws, statutes,
common law duties, rules, regulations, ordinances and codes, together
with all administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental
Authorities that are binding on, or are customarily complied with by, the
Customer, in each case relating to environment, health and safety.
"ENVIRONMENTAL PERMITS" has the meaning specified in Section 5.11.
"EQUIPMENT COST" means the aggregate of the costs for the construction
and launch of the Satellite, the insurance procured and maintained for
the Satellite and the construction of the TTC&M Facilities.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA AFFILIATE" means any Person that for purposes of Title IV of ERISA
is a member of the controlled group of the Customer, or under common
control with the Customer, within the meaning of Section 414 of the Code.
"EURO" means the unit of currency used or to be used in the European
monetary system following implementation of the European monetary union.
"EVENT OF DEFAULT" means any of the events specified in Section 8.01.
"EVENT OF LOSS" means, with respect to the Satellite, any loss of,
destruction of or damage to the Satellite resulting in a failure to
achieve its performance specifications and meet its intended purpose, any
condemnation, seizure or taking, by exercise of the power of eminent
domain by any Governmental Authority or other Person, thereof or the
requisition of the use thereof pursuant to any final judgment, order,
decree or proclamation remaining unvacated, undischarged, unstayed or
unbonded pending
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appeal for a period of ninety (90) days after the entry thereof, in all
events including any Total Failure, Constructive Total Failure or Partial
Failure.
"EXCESS CASH FLOW" means, for any period, the excess of (a) the sum of
(i) EBITDA for such period and (ii) the decrease, if any, in Non-Cash
Working Capital during such period, over (b) the sum of (i) Total
Interest for such period, (ii) income taxes of the Customer Group paid in
cash during such period, (iii) capital expenditures of the Customer Group
during such period, (iv) scheduled payments of principal of Indebtedness
made by any member of the Customer Group during such period other than
payments of Indebtedness owing to any member of the Customer Group, (v)
voluntary prepayments of principal of the Tranche B Loan made during such
period pursuant to Section 2.05(a) and (vi) the increase, if any, in
Non-Cash Working Capital during such period.
"EXPERT STUDIES" means technical, feasibility and marketing studies,
prepared in respect of a Customer that may be or has been determined to
be a Category 3 Customer, dated no earlier than fifteen (15) days prior
to the date of delivery thereof to AEF, if appropriate to the Business
Plan and required pursuant to the applicable Conversion Conditions, in
form and substance acceptable to AEF, prepared by an expert or experts
selected by AEF and acceptable to the Customer.
"EXPORT LICENSE" means any license required to be granted to the Customer
or the Satellite Manufacturer, by the government of the country of
manufacture of the Satellite and the country of any component thereof or
any other asset necessary to the Project requiring an export license,
approving the export of the Satellite and any such component or asset.
"FAIR MARKET VALUE" means the cash price in Dollars that would be
obtained for the Satellite (together with the launch services for the
Satellite, the supply of tracking, telemetry, control and monitoring
facilities, and related insurance), in an arm's length sale transaction
between an informed and willing seller and an informed and willing
purchaser or user, each unrelated to the Customer or any Affiliate
thereof and under no compulsion to effectuate the transaction and each
having knowledge of all relevant facts, as determined by the Appraiser in
the Appraisal.
"FEE LETTER" means the letter dated as of the date hereof by AEF and
acknowledged and agreed to by the Customer, specifying the fees referred
to therein, as described in Section 2.08, and the Applicable Margin
during the Tranche A Term.
"FINANCE COSTS" means any one or more of, as determined by AEF, the ECA
Guaranty Fee, the Upfront Fee and interest on the Tranche A Loans, in
each case, to the extent capitalized pursuant to Section 2.07(d), as
permitted by AEF.
"FUNDED DEBT" means, for any Person, Indebtedness of such Person having a
final maturity date more than one (1) year after the date of issuance,
incurrence or assumption thereof by such Person, including the current
portion of any such Indebtedness and including Indebtedness that is
renewable or extendable, at the option
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of the obligor, to a date more than one (1) year after the date of
issuance, incurrence or assumption thereof.
"FUNDING-RELATED TAXES" has the meaning specified in Section 3.01(c).
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means (a) at any time prior to
the Conversion Date (for all purposes hereof other than a Category 3
Preview, the determination of whether the Customer is to be a Category 1A
Customer, a Category 1B Customer, a Category 1C Customer, a Category 2
Customer or a Category 3 Customer, and the establishment of Conversion
Conditions), generally accepted accounting principles in effect at such
time in a jurisdiction in respect of which an internationally recognized
independent public accounting firm has furnished an opinion (containing
solely qualifications acceptable to AEF) in connection with its auditing
of the Customer's financial statements, (b) at any time on or after the
Conversion Date (solely for the purpose of defining the preparation and
presentation of financial statements to be delivered under Section 6.01),
generally accepted accounting principles in effect at such time in a
country listed in ANNEX 4 hereto or (c) at all times and for all purposes
not covered by the foregoing clauses (a) and (b), Specified GAAP, in each
case referred to in the foregoing clauses (a), (b) and (c), consistently
applied.
"GOVERNMENT APPROVALS" means all Telecommunications Approvals, all Export
Licenses, all foreign exchange control approvals, all Environmental
Permits and any other authorizations, consents, approvals, licenses,
rulings, permits, certifications, exemptions, filings or registrations by
or with any Telecommunications Authority or other Governmental Authority
required by applicable Requirements of Law to be obtained or held by the
Customer in connection with (a) the due execution, delivery and
performance by the Customer of its obligations, and the exercise of its
rights, under the Loan Documents, the Satellite Contracts and any other
agreement or instrument entered into from time to time relating to the
Project, (b) the construction and completion of the Project and operation
of the Project as contemplated by the Satellite Contracts and, if
applicable, the Business Plan, (c) the export of the Satellite or any of
its components and (d) the grant of the Liens created by the Collateral
Documents and the validity, enforceability and perfection thereof and the
exercise by the Security Agent of its rights and remedies thereunder.
"GOVERNMENTAL AUTHORITY" means any international body or any nation or
government, any state or other political subdivision thereof, any central
bank (or similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government and any corporation or other
entity owned or controlled, through stock or capital ownership or
otherwise, by any of the foregoing.
"GUARANTOR" or "GUARANTORS" has the meaning specified in ANNEX 1 hereto.
"HAZARDOUS MATERIAL" means all those substances that are regulated by, or
which may form the basis of liability under, any Environmental Law,
including all
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substances identified under any Environmental Law as a pollutant,
contaminant, waste, solid waste, hazardous waste, hazardous constituent,
special waste, hazardous substance, hazardous material or toxic
substance, or petroleum or petroleum derived substance or waste.
"INDEBTEDNESS" means, without duplication, any indebtedness of any Person
for or in respect of:
(a) borrowed money and any other amount raised under any other
transaction having the commercial effect of borrowing;
(b) the amount of any liability in respect of the purchase price
for any assets or services, the payment of which is deferred
(including any deferred amount payable under the Satellite
Contracts);
(c) all reimbursement obligations with respect to surety bonds,
letters of credit, bankers' acceptances and similar instruments
(in each case, whether or not matured);
(d) all obligations evidenced by notes, bonds, debentures or
similar instruments, including obligations so evidenced
incurred in connection with the acquisition of property, assets
or businesses;
(e) all indebtedness created or arising under any conditional sale
or other title retention agreement, or incurred as financing,
in either case with respect to property acquired by the Person
(even though the rights and remedies of the seller or bank
under such agreement in the event of a default are limited to
repossession or sale of such property);
(f) all Capital Lease Obligations;
(g) the aggregate amount that would be payable by such Person under
all Rate Contracts to which it is a party if such Rate
Contracts were terminated at the time of determination minus
(to the extent such aggregate amount is subject to reduction
pursuant to valid and enforceable netting arrangements (either
within such Rate Contracts or in separate agreements) with the
respective counterparties) the amounts payable by the
respective counterparties under such Rate Contracts upon such
termination at such time;
(h) indebtedness created pursuant to leveraged lease or sale and
leaseback financings intended to be repaid from the rentals
payable by the Person under such leveraged lease or sale and
leaseback financing;
(i) all Contingent Obligations;
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(j) any lease which, in accordance with any applicable tax law, is
classified as a loan or finance lease; and
(k) all Indebtedness referred to in clauses (a) through (k) above
secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any
Lien upon or in property (including accounts and contract
rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness.
In calculating the amount of any Indebtedness for all purposes hereof,
there shall be excluded any amount thereof that has been irrevocably and
unconditionally defeased by the deposit of cash or securities with the
holder or holders, or an agent or trustee for the holder or holders, of
such Indebtedness in accordance with the indenture, lease or other
agreement governing the terms and conditions of such Indebtedness.
"IN-ORBIT COMMISSIONING DATE" means the date on which initial in-orbit
tests on the Satellite have been successfully completed and the Satellite
enters commercial service, as evidenced by a certificate of a Responsible
Officer of the SPA Party bearing such date and certifying that the
results of the initial in-orbit tests either (a) comply with the required
Satellite performance specifications as set forth in the Satellite
Purchase Agreement or (b) are otherwise acceptable to the SPA Party.
"INSOLVENCY PROCEEDING" means, with respect to any Person (a) any case,
action, petition or proceeding before any court relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors or similar proceeding; or (b) any general
assignment for the benefit of creditors, composition, marshalling of
assets for creditors or other similar arrangement, which in each case
shall include any analogous proceeding or arrangement under the laws of
the jurisdiction in which such Person is incorporated or any jurisdiction
in which such Person carries on business that is recognized by a
Governmental Authority of competent jurisdiction in the jurisdiction of
incorporation of such Person.
"INSURED PARTIES" means AEF, the Security Agent, the Lenders, the Project
Agent and the Project Lenders.
"INTERCREDITOR AGREEMENT" means, if applicable, the Intercreditor
Agreement to be negotiated in good faith and entered into on the date
specified in Section 2.11 among AEF, the Lenders (or an agent acting on
their behalf), the Project Agent (on behalf of the Project Lenders), the
Security Agent and the applicable ECAs (if relevant), providing for,
among other things, the sharing among such parties of the Liens on the
Collateral and the proceeds thereof.
"INTEREST BASIS" means, with respect to any Loan or unpaid amount for any
specified period:
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(a) the rate of interest per annum that appears on page 3750 or any
successor page of the Telerate screen which displays British
Bankers Association Settlement Rates for deposits in Dollars,
of the offered quotation for deposits in Dollars for such
specified period, without rounding, at or about 11:00 a.m.
(London time) on the Quotation Date; or
(b) if the rate described in clause (a) does not so appear, the
rate per annum at which Dollar deposits are offered in the
London interbank market at such time for such specified period
as evidenced on another financial information service
publishing such rates as agreed by the Customer and AEF; or
(c) if the rates described in clauses (a) and (b) above do not
appear (including, in the case of said clause (b), by reason of
the Customer and AEF failing to agree on an alternative
financial information service), the arithmetic mean (rounded
upwards, if not already such a multiple, to the nearest whole
multiple of one-sixteenth of one percent (1/16%)) of the rates
(as notified to AEF) at which each of the Reference Banks was
offering to prime banks in the London interbank market deposits
in Dollars for the specified period at or about 11:00 a.m.
(London time) on the Quotation Date for such specified period.
For the purposes of this definition "specified period" shall mean the
Interest Period of such Loan or, as the case may be, the period in
respect of which the Interest Basis falls to be determined in relation to
such unpaid amount.
"INTEREST PAYMENT DATE" has the meaning specified in Section 2.07(b).
"INTEREST PERIOD" means, with respect to any Loan, (a) the three (3)
month period commencing on the Business Day such Loan is disbursed and
each three (3) month period thereafter ending on the Interest Payment
Date of the final whole three (3) month period immediately preceding the
Conversion Commitment Date, (b) the one (1) month period commencing on
the Interest Payment Date immediately preceding the Conversion Commitment
Date and each one (1) month period thereafter ending on the Interest
Payment Date immediately following the In-Orbit Commissioning Date, and
(c) the period from the end of the immediately preceding one (1) month
period to the date that is three (3) months after the In-Orbit
Commissioning Date and each three (3) month period thereafter ending on
the date that such Loan is repaid or prepaid in full, in each case,
subject to the following:
(i) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding
Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the immediately
preceding Business Day;
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(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period;
(iii) if any Interest Period would otherwise end after any Tranche
B Principal Payment Date, such Interest Period shall end on
such Tranche B Principal Payment Date; and
(iv) if a new Loan is disbursed on a day that falls during an
Interest Period for another Loan, the first Interest Period for
such new Loan shall end on the last day of the Interest Period
for such other Loan.
"ITU" means the International Telecommunication Union, or any successor
agency thereto.
"KU-BAND TRANSPONDERS" means transponders operating in the portion of the
radio- frequency spectrum that covers approximately 12 gigahertz to 18
gigahertz.
"L" means, as of any date of determination, the then-scheduled date of
Launch as determined pursuant to the Launch Services Agreement or, if the
Launch is then so scheduled to occur on an unspecified date during a
period that includes more than one day, the first day of such period.
"LAUNCH" means "Launch # 1", as such term is defined in paragraph 6.1 of
the Launch Services Agreement.
"LAUNCH COSTS" means all amounts payable by the LSA Party to AE for
launch and related services in respect of the Satellite pursuant to the
terms of the Launch Services Agreement.
"LAUNCH FAILURE" has the meaning ascribed to that term in the Launch
Services Agreement.
"LAUNCH SERVICES AGREEMENT" means that certain agreement, dated July 22,
1997, between AE and the LSA Party, and any attachments related thereto,
for the launching into orbit of the Satellite by a Launch Vehicle.
"LAUNCH SERVICES PRICE" means the reference price used to calculate
progress payments to AE for launch and associated services in respect of
the Satellite, as agreed on the date of the execution and delivery of the
Launch Services Agreement and provided for therein.
"LAUNCH VEHICLE" means the vehicle belonging to the Ariane family (Ariane
4 or Ariane 5) chosen to perform the Launch.
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<PAGE> 29
"LEASED SATELLITE CUSTOMER" means any Category 3 Customer whose Project
involves one or more geostationary communications satellites with ninety
percent (90%) or more of the total bandwidth capacity thereon comprising
C-Band Transponders, Ku-Band Transponders or a combination thereof being
intended, pursuant to its Business Plan, to be leased to commercial
companies or governmental agencies for communications services or
broadcasting services.
"LENDERS" means the Persons providing financing to AEF for the purpose of
funding the Loans to the Customer, including any agent appointed by such
Persons to act for and on behalf of them.
"LENDING OFFICE" means, with respect to any Lender, the office or offices
of such Lender as it may from time to time specify to AEF as such.
"LESSEE" means the party (other than the Customer) to any Qualified Lease
Agreement, which party (a) either (i) shall be a governmental or
inter-governmental agency, or a bona fide third party commercial
customer, in each case with a long-term senior unsecured debt credit
rating of at least Baa3 by Moody's or BBB- by S&P (or the equivalent
rating by another Major Rating Agency) or (ii) shall be a Person
acceptable to AEF following its good faith assessment of the risks
associated with such Person's ability to fulfill its obligations under
such Qualified Lease Agreement, (b) neither AEF nor any Lender would be
prohibited by any applicable Requirement of Law or by a Governmental
Authority with jurisdiction over AEF or such Lender, as the case may be,
or by another authority with which such Lender customarily complies, from
making loans to by reason of such Lessee's connection with a Prohibited
Country and (c) shall not be a Prohibited Person.
"LICENSED" means the primary jurisdiction in which the Customer obtained
or will obtain its licenses, permits, authorizations and consents in
connection with the operation of the Satellite.
"LIEN" means any mortgage, pledge, hypothecation, assignment, charge or
deposit arrangement, encumbrance, lien (statutory or other) or
preference, priority or other security interest or preferential
arrangement of any kind or nature whatsoever, whether fixed or floating
(whether over present or future revenues or assets and including those
created by, arising under or evidenced by any conditional sale or other
title retention agreement, the interest of a lessor under a Capital Lease
Obligation, any financing lease having substantially the same economic
effect as any of the foregoing, or the filing of any financing statement
naming the owner of the asset to which such lien relates as debtor, under
any applicable law) and any contingent or other agreement to provide any
of the foregoing.
"LOAN" or "LOANS" means any or all of the Tranche A Loans, the Tranche B
Loans or both.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Note, the
Multiparty Agreement, the Fee Letter, the Collateral Documents and the
Intercreditor Agreement
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and all executed agreements, instruments and documents delivered to AEF,
AE or by the Customer or any Affiliate of the Customer in connection
herewith and therewith.
"LONG TERM DEBT TO CAPITALIZATION" means the sum for the Customer Group
on the last day of the Relevant Period, determined without duplication in
accordance with Generally Accepted Accounting Principles, of (a) the
aggregate amount of all Funded Debt (excluding, for purposes of this
definition, Contingent Obligations) PLUS (b) the aggregate amount of all
Disqualified Capital Stock (excluding, for purposes of this definition,
any portion thereof that has been irrevocably and unconditionally
defeased by the deposit of cash or securities with the holder or holders,
or an agent or trustee for the holder or holders, of such Disqualified
Capital Stock in accordance with the instrument governing the terms and
conditions of such Disqualified Capital Stock), such sum to be expressed
as a percentage of the sum on such date for the Customer Group of (i) the
aggregate amount of Funded Debt (excluding, for purposes of this
definition, Contingent Obligations) PLUS (ii) the aggregate amount of all
Disqualified Capital Stock (excluding, for purposes of this definition,
any portion thereof that has been irrevocably and unconditionally
defeased by the deposit of cash or securities with the holder or holders,
or an agent or trustee for the holder or holders, of such Disqualified
Capital Stock in accordance with the instrument governing the terms and
conditions of such Disqualified Capital Stock) PLUS (iii) Consolidated
Net Worth.
"LOSSES" has the meaning specified in Section 10.04(b).
"LSA PARTY" means the party (other than AE) to the Launch Services
Agreement which may be the Customer (or any Affiliate thereof) or the
Satellite Manufacturer (or any Affiliate thereof) if the Satellite is to
be delivered to the Customer in-orbit.
"MAJOR RATING AGENCY" means S&P, Moody's, any other internationally
recognized credit rating agency acceptable to AEF, or any of their
respective local affiliates or associated agencies.
"MATERIAL ADVERSE EFFECT" means a material adverse change in, or a
material adverse effect upon, any of:
(a) the operation, business, assets or financial condition of the
Customer Group;
(b) the ability of the Customer to perform its obligations or
enforce its rights under any Loan Document;
(c) the value of the Collateral (including the revenues to be
generated therefrom);
(d) the legality, validity, binding effect or enforceability of any
or all of this Agreement, any other Loan Document or any of the
Satellite Contracts; or
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<PAGE> 31
(e) the perfection or priority of any Lien granted to the Security
Agent or any Lender, as the case may be, with respect to any
Collateral under any of the Collateral Documents.
"MATERIAL SUBSIDIARY" means, with respect to any Person on any date (the
"DETERMINATION DATE"), any Subsidiary of such Person (each, a "PRIMARY
MATERIAL SUBSIDIARY") that (for the relevant period or date referred to
below) accounted or accounts for ten percent (10%) or more of any of the
following items (each, a "FINANCIAL CATEGORY") for such Person and its
consolidated Subsidiaries: (a) gross revenues for the period of four (4)
fiscal quarters of such Person ending on or most recently ended prior to
the Determination Date, (b) operating profits for the period of four (4)
fiscal quarters of such Person ending on or most recently ended prior to
the Determination Date or (c) gross assets on the Determination Date;
PROVIDED that if the Subsidiaries of such Person (other than the Primary
Material Subsidiaries) that accounted or account, in the aggregate, for
more than twenty percent (20%) of any of the Financial Categories for
such Person and its consolidated Subsidiaries, then the Material
Subsidiaries of such Person shall also include each Subsidiary of such
Person that accounted or accounts for a higher percentage of a Financial
Category than any other Subsidiary of such Person (excluding Primary
Material Subsidiaries) as at the Determination Date, together with each
other Subsidiary of such Person designated from time to time by AEF,
provided that there shall not be more than five (5) Material Subsidiaries
that are not Primary Material Subsidiaries.
"MATURITY DATE" means the date being the last day of the Tranche B Term,
as set forth in the Conversion Commitment Letter in accordance with the
conditions set forth in ANNEX 1, 2 OR 3, as applicable, which in no event
shall be later than April 14, 2009.
"MAXIMUM TRANCHE B TERM" means the period set forth in ANNEX 1, 2 OR 3,
as may be applicable to the Customer on and after the Conversion Date in
relation to the designation by AEF of the Customer into a Customer
Category, which shall end, in any case, no later than the Maturity Date.
"MEASURING DATE" means, (a) so long as the Customer shall have been
determined to be a Category 1 Customer or a Category 2 Customer for which
quarterly financial statements are not required to be delivered pursuant
to Section 6.01, the last day of every semi-annual fiscal period of the
Customer for which financial statements are required to be delivered
pursuant to Section 6.01, commencing with the first such fiscal
period-end following the Conversion Date and (b) so long as the Customer
shall have been determined to be a Category 2 Customer for which
quarterly financial statements are required to be delivered pursuant to
Section 6.01 or a Category 3 Customer, the date of the last day of each
fiscal quarter of the Customer, commencing with the first fiscal
quarter-end following the Conversion Date.
"MODELLING LENDER" means a Lender identified by AEF to act pursuant to
Section 9.01(b).
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"MOODY'S" means Moody's Investors Service, Inc.
"MULTIPARTY AGREEMENT" means the agreement dated as of the date hereof,
among the Customer, AEF, AE and the LSA Party, relating, among other
things, to payment instructions and reimbursement obligations among the
parties thereto.
"NON-CASH WORKING CAPITAL" means, at any time, (a) accounts receivable
and inventory of the Customer Group at such time MINUS (b) the accounts
payable of the Customer Group at such time.
"NOTE" has the meaning specified in Section 2.12.
"NOTICE OF CONVERSION" means a notice from AEF to the Customer stating
that the Tranche A Loans have Converted to the Tranche B Loan.
"NOTICE OF DRAWDOWN" means a written notice given by the Customer to AEF,
requesting the making of a Tranche A Loan, substantially in the form of
Exhibit A hereto, pursuant to Section 2.02.
"NOTICE OF LIEN" means any "notice of lien" or similar document intended
to be filed or recorded with any court, registry, recorder's office,
central filing office or Governmental Authority for the purpose of
evidencing, creating, perfecting or preserving the priority of a Lien
securing obligations owing to a Governmental Authority.
"OECD" means the Organization for Economic Cooperation and Development,
or any successor agency thereto.
"OTHER INDEBTEDNESS FOR BORROWED MONEY" means Indebtedness of the
Customer and its Subsidiaries that is not a Loan or a Project Loan and
represents Indebtedness for borrowed money.
"OTHER TAXES" has the meaning specified in Section 3.01(b).
"P&I DEBT SERVICE" means, for any period, the sum of (a) Total Interest
with respect to P&I Indebtedness for such period PLUS (b) the aggregate
amount of principal payments of P&I Indebtedness scheduled to have been
made by the Customer Group during such period.
"P&I INDEBTEDNESS" means, without duplication, the following items for
the Customer Group, determined in accordance with Generally Accepted
Accounting Principles: (a) all indebtedness for borrowed money, (b) all
obligations issued, undertaken or assumed as the deferred purchase price
of capital assets, (c) all obligations evidenced by notes, bonds,
debentures or similar instruments, including obligations so evidenced
incurred in connection with the acquisition of property, assets or
businesses, excluding performance bonds, letters of credit and similar
undertakings in connection with the construction, development or
operation of any
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business of the Customer Group to the extent that such undertakings do
not secure an obligation for borrowed money or the deferred purchase
price of a capital asset, (d) all indebtedness created or arising under
any conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to property acquired by the
Customer Group (even though the rights and remedies of the seller or bank
under such agreement in the event of a default are limited to
repossession or sale of such property) and (e) all Indebtedness referred
to in clauses (a) through (d) above (whether or not incurred by the
Customer Group) secured by (or for which the holder of such P&I
Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in property (including accounts and contract
rights) owned by any member of the Customer Group even though such member
has not assumed or become liable for the payment of such Indebtedness.
"PARTIAL FAILURE" has the meaning ascribed to that term or a term
substantially similar to such term in the launch and initial operations
insurance the Customer is required to obtain pursuant to Section 6.06(b)
or in the in-orbit insurance the Customer is required to obtain pursuant
to Section 6.06(b), whichever is then in effect.
"PERMITTED INVESTMENTS" has the meaning specified in Section 7.14.
"PERMITTED LIENS" has the meaning specified in Section 7.01.
"PERMITTED LOCATION" means any country listed on ANNEX 6 hereto.
"PERSON" means an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
voluntary organization or Governmental Authority.
"PRELIMINARY BASE CASE" means the Base Case for the Customer as described
in Section 9.01.
"PRELIMINARY BUSINESS PLAN" means the Business Plan of the Customer
submitted to AEF as described in Section 9.01 or submitted to AEF prior
to the execution and delivery of this Agreement, which shall be in form
sufficient to allow the AEF or the Lenders to make the determinations
contemplated in Section 9.01 and containing at a minimum, and without
limitation, the following information with respect to the Project:
(a) details of the Project sponsor or Project sponsors, a general
description of the Customer's business and organization, the
then-current equity holdings therein and, if such information
is available, general biographical information as to key
management team members;
(b) projections of all capital and operating costs (including
material taxes) and revenues the Project is projected to
generate with sufficient information (including the details of
assumptions underlying such projections) in each case for AEF
and the Lenders to assess the Project;
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(c) a general description of the target market for the Project,
which shall include a statement of the percentage of such
target market that the Customer proposes to capture;
(d) a technical description of the Project;
(e) an overview of the laws and regulations applicable to the
Project and the status of requisite governmental approvals for
the construction, launch and operation thereof;
(f) if such information is available, a description of the
Collateral that is expected to be available for the benefit of
AEF and the Lenders and whether a first priority, perfected
Lien will and can be granted and perfected thereon;
(g) a general description of the proposed sources of finance for
the Project, along with a description of the manner in which
such financing will be secured; and
(h) details of underlying economic assumptions and factors,
including inflation, interest and exchange rate.
"PRE-TAX CASH INTEREST COVERAGE" means, for any Person, the lower of (a)
the arithmetic mean of the Pre-Tax Cash Interest Coverage Components for
such Person for the three (3) Relevant Sub-Periods and (b) the Pre-Tax
Cash Interest Coverage Component for such Person for the last Relevant
Sub-Period. For purposes of this definition, the "PRE-TAX CASH INTEREST
COVERAGE COMPONENT" for any Person for any period means the ratio of
EBITDA for such period to Total Interest for such Person for such period.
"PROHIBITED COUNTRY" means, as to any Lender or AEF, any country into
which bank or other financial institution lending activity is prohibited,
declared unlawful or restricted by any authority (international, national
or regional, including any regulatory authority, the regulations of which
are customarily complied with by such Lender or AEF), having jurisdiction
therefor in Luxembourg, the jurisdiction of incorporation of such Lender,
the jurisdiction of the head office of such Lender, the jurisdiction
where such Lender primarily conducts its business or the jurisdiction of
such Lender's Lending Office.
"PROHIBITED PERSON" means, as to any Lender or AEF, any Person that
appears from time to time on the listing of Specially Designated
Nationals and Blocked Persons issued by the Office of Foreign Assets
Control, United States Department of the Treasury or any list of similar
nature prohibiting, restricting or declaring unlawful lending activity to
any Person (other than any list identifying Governmental Authorities)
issued by any Governmental Authority in Luxembourg, any jurisdiction of
incorporation of such Lender, the jurisdiction of the head office of such
Lender, the jurisdiction in which such Lender primarily conducts its
business or the
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jurisdiction of such Lender's Lending Office or by any supranational body
the regulations of which are customarily or mandatorily complied with by
such Lender or AEF or a Person that is owned or controlled by, or derives
any material portion of its revenues from, a Person on such list.
"PROJECT" means, collectively, the construction, acquisition, financing,
launch and operation of the Satellite (if the Customer shall have been
determined to be a Category 2 Customer or a Category 3 Customer, as
contemplated by the Business Plan), together with any related assets
constituting Collateral.
"PROJECT AGENT" means the agent, if any, acting for and on behalf of the
Project Lenders, and any successor Project Agent appointed pursuant to
the provisions of the Project Financing Agreements.
"PROJECT FINANCING" means, if applicable, the secured debt financing for
the construction, acquisition and operation of the Satellite, the TTC&M
Facilities and other Project components other than launch services
provided by the Project Lenders and secured by a Lien on all or a portion
of the Collateral; PROVIDED that (a) solely for the purpose of the
definition of "TOTAL ADVANCE RATE" (including, without limitation, but
solely for such purpose, as used in ancillary definitions to the extent
necessary to determine the "TOTAL ADVANCE RATE"), the term "PROJECT
FINANCING" shall be deemed not to include any such secured debt financing
that is not secured by the Satellite, (b) solely for the purpose of
Section 6.06, the term "PROJECT FINANCING" shall be deemed not to include
any such secured financing that is not secured by the Satellite and the
holders of which are not entitled to share in the proceeds of any
insurance maintained pursuant to said Section 6.06 and (c) solely for the
purposes of Sections 2.11, 4.01(a)(vi), 4.02(e) and 4.03(a)(iii), the
term "PROJECT FINANCING" shall be deemed not to include any such secured
financing that is not secured by the Satellite unless otherwise directed
or agreed to by AEF.
"PROJECT FINANCING AGREEMENTS" means, if applicable, the agreements
evidencing or governing the Project Financing.
"PROJECT LENDERS" means the financial institutions party to the Project
Financing Agreements as lenders and any Person that has been assigned any
or all of the rights or obligations of a Project Lender as set forth
therein or any successor thereto.
"PROJECT LOAN" or "PROJECT LOANS" means any amount advanced by the
Project Lenders pursuant to the Project Financing Agreements.
"QL CASH FLOW" means, for any period, (a) the sum of the revenues from
rental payments due under all of the Qualified Lease Agreements of the
Customer for such period plus the decrease, if any, in Non-Cash Working
Capital for such period less (b) the sum of (i) the operating expenses of
the Customer; plus (ii) the income taxes paid in cash by the Customer;
plus (iii) the increase in Non-Cash Working Capital, where the items
described in clause (b) above have been allocated by the Customer among
its various operations and sources of revenues in a manner acceptable to
AEF
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(provided that, if such manner is not acceptable to AEF, and AEF and the
Customer do not otherwise agree to an allocation, the full amount of such
items shall be subtracted pursuant to said clause (b)).
"QL WEIGHTED AVERAGE TERM" means: (a) the sum of the products of the
revenues from rental payments under all of the Qualified Lease Agreements
multiplied by the respective numbers of years (calculated to one (1)
decimal place) from the Conversion Date to the respective dates on which
such rental payments are due, DIVIDED BY (b) the aggregate amount of all
revenues from rental payments under all Qualified Lease Agreements.
"QUALIFIED LEASE AGREEMENTS" means, if the Customer shall have been
determined to be a Category 1C Customer or a Category 2 Customer, valid,
binding and enforceable agreements for the lease of transponders or use
of the communications capacity of the Satellite, in form and substance
satisfactory to AEF, which agreements shall have, without limitation, the
features set out in ANNEX 2.
"QUOTATION DATE" means, in relation to any period for which an interest
rate is to be determined hereunder, the day on which quotations would
ordinarily be given by prime banks in the London interbank market for
deposits in Dollars for delivery on the first day of that period PROVIDED
that, if, for any such period, quotations would ordinarily be given on
more than one date, the Quotation Date for that period shall be the last
of those dates.
"RATE CONTRACTS" means any swap, option, cap, floor and collar
agreements, interest rate insurance, currency spot and forward contracts
and other derivative or hedging instruments and other agreements or
arrangements designed to provide protection against fluctuations in
interest or currency exchange rates.
"RCB" means the Radiocommunication Bureau of the ITU.
"RECONVERSION" has the meaning specified in Section 2.04(b).
"RECOVERING PERSON" has the meaning specified in Section 3.02(a).
"REFERENCE BANKS" means the principal London offices of Credit Lyonnais,
ING Bank, and Societe Generale or such other bank or banks as may from
time to time be agreed between the Customer and AEF.
"REFLIGHT" means (a) with respect to an Ariane 5 Launch Vehicle, a
"Reflight" of the Satellite or (b) with respect to an Ariane 4 Launch
Vehicle, a Replacement Launch of the Satellite that is ordered during the
Request Period and that is paid for substantially by a "Relaunch Credit
Option", as such terms are defined in the Launch Services Agreement.
"RELATED ACCOUNTING RECONCILIATION" means, with respect to any financial
statements prepared in accordance with Generally Accepted Accounting
Principles, calculations
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and explanations in reasonable detail, and certified by an
internationally-recognized independent public accounting firm,
demonstrating the derivation from such financial statements of the
results of the application in accordance with Specified GAAP of the tests
set out in ANNEX 1, 2 OR 3, or the calculations in accordance with
Specified GAAP necessary to determine compliance by the Customer with its
covenants contained herein.
"RELEVANT COMPANY" means (a) prior to the Conversion Commitment Date, the
Customer, (b) on and after the Conversion Commitment Date, (i) if the
Customer shall have been determined to be a Category 1A Customer or a
Category 1B Customer, the Customer or any Material Subsidiary of the
Customer, (ii) if the Customer shall have been determined to be a
Category 1C Customer, the Customer or any Subsidiary of the Customer and
(iii) if the Customer shall have been determined to be a Category 2
Customer or a Category 3 Customer, the Customer.
"RELEVANT PERIOD" means the period of three (3) consecutive fiscal years
of the Customer ending on or most recently ended prior to the Conversion
Commitment Date, PROVIDED that if the Conversion Commitment Date falls in
the second semi-annual fiscal period of a fiscal year of the Customer,
the "RELEVANT PERIOD" means the period of two (2) consecutive fiscal
years of the Customer ending on or most recently ended prior to the
Conversion Commitment Date and the portion of the next succeeding fiscal
year of the Customer ending on the last day of the first semi-annual
fiscal period of such fiscal year of the Customer.
"RELEVANT SUB-PERIOD" means each fiscal year of the Customer that falls
completely within the Relevant Period, and if the Conversion Commitment
Date falls in the second semi-annual fiscal period of a fiscal year of
the Customer, the period of two (2) consecutive semi-annual fiscal
periods of the Customer ending on or most recently ended prior to the
Conversion Commitment Date.
"REPAYMENT PROFILE" means a schedule determined by AEF in its sole
discretion but within the parameters set forth in ANNEX 1, 2 OR 3, as may
be applicable to the Customer in relation to the designation by AEF of
the Customer into a Customer Category, and the amortization schedule set
forth in the Fee Letter, listing:
(a) the aggregate principal amount of Tranche A Loans drawn during
the Tranche A Term;
(b) the aggregate principal amount of Tranche A Loans drawn prior
to the Conversion Commitment Date;
(c) the aggregate principal amount of Tranche A Loans that are
projected to be drawn on or after the Conversion Commitment
Date;
(d) the projected Conversion Amount;
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(e) the Tranche B Required Installment Amounts to be paid during
the Tranche B Term; and
(f) the Maturity Date.
"REPLACEMENT LAUNCH" has the meaning ascribed to that term in the Launch
Services Agreement.
"REQUEST PERIOD" means (a) with respect to an Ariane 5 Launch Vehicle,
the period as set forth in Section 4.7 of the Launch Services Agreement
and (b) with respect to an Ariane 4 Launch Vehicle, the period that is
six (6) months after the Launch, during which, in both cases, the LSA
Party may notify AE of a claimed right to a Reflight.
"REQUIRED DISTRESS RECOVERY VALUE" means the minimum required percentage
that the Distress Recovery Value is of the Conversion Commitment Amount
as of the Conversion Commitment Date and the minimum required percentage
that the Distress Recovery Value is of the Conversion Amount as of the
Conversion Date, as the case may be, as set forth in ANNEX 1, 2 OR 3, as
may be applicable to the Customer upon the designation by AEF of the
Customer into a Customer Category.
"REQUIREMENT OF LAW" means, as to any Person, any law (statutory or
common), treaty, rule, order, delegated legislation or regulation of a
Governmental Authority or determination of an arbitrator, in each case
applicable to or binding upon the Person or any of its property or to
which the Person or any of its property is subject.
"RESPONSIBLE OFFICER" means, as to the Customer or any other Person, the
chief executive officer, the director general, the secretary general, the
president or a duly authorized vice president, assistant director
general, a director or a managing director of the Customer or such other
Person.
"RESTRICTED PAYMENT" shall mean (a) dividends (in cash, property or
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any shares of
any class of stock of the Customer or of any warrants, options or other
rights to acquire the same (or to make any payments to any Person, such
as "phantom stock" payments, where the amount thereof is calculated with
reference to the fair market or equity value of the Customer or any of
its Subsidiaries), but excluding dividends payable solely in shares of
capital stock of the Customer, (b) the purchase or acquisition of, or the
entering into of any commitment for, any capital stock, equity interest,
obligations or other securities of or any interest in, or make any
advance, loan, extension of credit or capital contribution to or any
other investment in, any Affiliate of the Customer and (c) (except to the
extent included in the Business Plan if the Customer shall have been
determined to be a Category 3 Customer and except to the extent
acceptable to AEF if the Customer shall have been determined to be a
Category 1C Customer) management fees,
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payments made pursuant to cost or tax sharing arrangements, or similar
payments, in any case to the extent paid to any Affiliate of the
Customer.
"RESUBMISSION" has the meaning specified in Section 9.01(b)(v).
"REVISED SUBMISSION" has the meaning specified in Section 9.01(b)(iii).
"REVENUE ACCOUNTS" means, if the Customer shall have been determined to
be a Category 1C Customer, a Category 2 Customer or a Category 3
Customer, the account or accounts of the Customer into which all revenues
from Transponder Lease Agreements, Qualified Lease Agreements and all
other agreements between the Customer and a lessee for the lease of
transponders or use of communications capacity on the Satellite that are
excluded from the definition of Transponder Lease Agreements by virtue of
clause (a) thereof shall be paid, which account or accounts shall be held
with a bank or trust institution, and in a location acceptable to AEF.
"S&P" means Standard & Poor's Ratings Service, a division of The
McGraw-Hill Companies, Inc.
"SATELLITE" means the satellite to be launched by AE under the Launch
Services Agreement by "Launch # 1", as such term is defined in the Launch
Services Agreement, the launch and related services of which are being
financed under this Agreement.
"SATELLITE CONTRACTS" means, as of any date, collectively, the Launch
Services Agreement, the Satellite Purchase Agreement, the TTC&M Contract
and each material contract to which the Customer or an Affiliate is party
that is necessary to the construction, operation or use of the assets
referred to in clause (g) of the definition of "COLLATERAL".
"SATELLITE MANUFACTURER" means the prime contractor and manufacturer of
the Satellite that is a party to the Satellite Purchase Agreement.
"SATELLITE PURCHASE AGREEMENT" means that certain satellite purchase
agreement dated March 2, 1993, between the Satellite Manufacturer and the
SPA Party and any attachments related thereto, for the manufacture and
delivery of the Satellite and related satellite control facilities and
services if forming part of such satellite purchase agreement (including
warranties) by the Satellite Manufacturer, which agreement shall be in
form and substance satisfactory to AEF as determined on the Conversion
Commitment Date.
"SECURITY AGENT" means a Person acceptable to the Lenders, AEF, the
Customer and the Project Lenders, if any, acting as agent for and on
behalf of AEF, the Lenders and the Project Lenders, if any, and any
successor Security Agent appointed pursuant to the provisions of the
Intercreditor Agreement.
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"SPA PARTY" means the party (other than the Satellite Manufacturer) to
the Satellite Purchase Agreement which may be the Customer or any
Affiliate thereof.
"SPECIFIED GAAP" means, at any time, generally accepted accounting
principles in effect at such time in (a) the United States of America,
(b) if the Customer has theretofore customarily prepared its financial
statements in accordance with generally accepted accounting principles in
the United Kingdom, the United Kingdom, or (c) such other country as AEF
and the Customer may agree, in each case referred to in the foregoing
clauses (a), (b) and (c) consistently applied.
"SUBJECT COLLATERAL" has the meaning specified in Section 9.04.
"SUBMISSION" has the meaning specified in Section 9.01(b)(i).
"SUBORDINATED INDEBTEDNESS" means Indebtedness of the Customer (a) that
does not constitute a Contingent Obligation of any Subsidiary of the
Customer, (b) that is subordinated to the prior payment of the principal
of and interest on the Loans, all Break Funding Costs and all fees and
other amounts payable by the Customer hereunder and under the other Loan
Documents (the "SENIOR AMOUNTS"), and (c) upon terms providing that,
until payment in full of the Senior Amounts and the termination of the
Commitments, (i) the holders of such indebtedness (and any agent or
trustee acting on their behalf) may not exercise or enforce any rights or
remedies against the Customer in respect of such Indebtedness and (ii)
the holders of such indebtedness (and any agent or trustee acting on
their behalf) may not file or join in any application, complaint or
petition to cause the Customer or any of its assets or revenues to become
the subject of any Insolvency Proceeding, and upon other terms and
conditions satisfactory to AEF in form and substance.
"SUBSIDIARY" of a Person means any corporation, association, partnership,
joint venture or other business entity of which more than fifty percent
(50%) of the voting securities or other ownership interests is, or other
equity interests are, owned or controlled directly or indirectly by such
Person, or one or more of the Subs |
