Exhibit
10.1




 





 


 


CREDIT AGREEMENT


 


Dated as of November 2, 2004,


 


among


 


NEW SKIES HOLDING B.V.,


 


NEW SKIES SATELLITES B.V.


 


and


 


THE SUBSIDIARY REVOLVING BORROWERS,


 


THE LENDERS PARTY HERETO,


 


DEUTSCHE BANK AG, NEW YORK BRANCH,

as Administrative Agent


 


and


 


ABN AMRO BANK N.V.,

as Syndication Agent


 


 


DEUTSCHE BANK SECURITIES INC.


and

ABN AMRO INCORPORATED,

as Joint Lead Arrangers and Joint Book Running Managers


 


and


 


BNP PARIBAS SA


and


ING BANK N.V.,


as Co-Documentation Agents


 




 





 





















 


TABLE OF
CONTENTS


 


	
  ARTICLE I Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 1.01
  Defined Terms

  	
   

  
	
   

  	
  SECTION 1.02 Terms Generally

  	
   

  
	
   

  	
  SECTION 1.03 Exchange Rates

  	
   

  
	
   

  	
  SECTION 1.04 Effectuation of Transaction

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II
  The Credits

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.01 Commitments

  	
   

  
	
   

  	
  SECTION 2.02 Loans and Borrowings

  	
   

  
	
   

  	
  SECTION 2.03 Requests for Borrowings

  	
   

  
	
   

  	
  SECTION 2.04 Swingline Loans

  	
   

  
	
   

  	
  SECTION 2.05 Letters of Credit.

  	
   

  
	
   

  	
  SECTION 2.06 Funding of Borrowings

  	
   

  
	
   

  	
  SECTION 2.07 Interest Elections

  	
   

  
	
   

  	
  SECTION 2.08 Termination and Reduction
  of Commitments

  	
   

  
	
   

  	
  SECTION 2.09 Repayment of Loans;
  Evidence of Debt, etc.

  	
   

  
	
   

  	
  SECTION 2.10 Repayment of Loans

  	
   

  
	
   

  	
  SECTION 2.11 Prepayments, etc.

  	
   

  
	
   

  	
  SECTION 2.12 Fees

  	
   

  
	
   

  	
  SECTION 2.13 Interest

  	
   

  
	
   

  	
  SECTION 2.14 Alternate Rate of
  Interest

  	
   

  
	
   

  	
  SECTION 2.15 Increased Costs

  	
   

  
	
   

  	
  SECTION 2.16 Break Funding Payments

  	
   

  
	
   

  	
  SECTION 2.17 Taxes

  	
   

  
	
   

  	
  SECTION 2.18 Payments Generally; Pro
  Rata Treatment; Sharing of Set-offs

  	
   

  
	
   

  	
  SECTION 2.19 Mitigation Obligations;
  Replacement of Lenders

  	
   

  
	
   

  	
  SECTION 2.20 Revolving Borrowers

  	
   

  
	
   

  	
  SECTION 2.21 Additional Reserve Costs

  	
   

  
	
   

  	
  SECTION 2.22 Illegality

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III
  Representations and Warranties

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 3.01 Organization; Powers

  	
   

  
	
   

  	
  SECTION 3.02 Authorization

  	
   

  
	
   

  	
  SECTION 3.03 Enforceability

  	
   

  
	
   

  	
  SECTION 3.04 Governmental Approvals

  	
   

  
	
   

  	
  SECTION 3.05 Financial Statements

  	
   

  
	
   

  	
  SECTION 3.06 No Material Adverse
  Effect

  	
   

  
	
   

  	
  SECTION 3.07 Title to Properties;
  Possession Under Leases

  	
   

  
	
   

  	
  SECTION 3.08 Subsidiaries

  	
   

  
	
   

  	
  SECTION 3.09 Litigation; Compliance
  with Laws

  	
   

  



 


i





















 


	
   

  	
  SECTION 3.10 Federal Reserve
  Regulations

  	
   

  
	
   

  	
  SECTION 3.11 Investment Company Act;
  Public Utility Holding Company Act

  	
   

  
	
   

  	
  SECTION 3.12 Use of Proceeds

  	
   

  
	
   

  	
  SECTION 3.13 Tax Returns

  	
   

  
	
   

  	
  SECTION 3.14 No Material Misstatements

  	
   

  
	
   

  	
  SECTION 3.15 Employee Benefit Plans

  	
   

  
	
   

  	
  SECTION 3.16 Environmental Matters

  	
   

  
	
   

  	
  SECTION 3.17 Security Documents

  	
   

  
	
   

  	
  SECTION 3.18 Location of Real Property
  and Leased Premises

  	
   

  
	
   

  	
  SECTION 3.19 Solvency

  	
   

  
	
   

  	
  SECTION 3.20 Labor Matters

  	
   

  
	
   

  	
  SECTION 3.21 Insurance

  	
   

  
	
   

  	
  SECTION 3.22 Satellite Licenses and
  other Authorizations, etc.

  	
   

  
	
   

  	
  SECTION 3.23 Earth Station Licenses,
  etc.

  	
   

  
	
   

  	
  SECTION 3.24 Satellites

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV
  Conditions of Lending

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 4.01 All Credit Events

  	
   

  
	
   

  	
  SECTION 4.02 First Credit Event

  	
   

  
	
   

  	
  SECTION 4.03 Credit Events Relating to
  Revolving Borrowers

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V
  Affirmative Covenants

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.01 Existence; Businesses and
  Properties

  	
   

  
	
   

  	
  SECTION 5.02 Insurance

  	
   

  
	
   

  	
  SECTION 5.03 Taxes

  	
   

  
	
   

  	
  SECTION 5.04 Financial Statements,
  Reports, etc.

  	
   

  
	
   

  	
  SECTION 5.05 Litigation and Other
  Notices

  	
   

  
	
   

  	
  SECTION 5.06 Compliance with Laws

  	
   

  
	
   

  	
  SECTION 5.07 Maintaining Records;
  Access to Properties and Inspections

  	
   

  
	
   

  	
  SECTION 5.08 Use of Proceeds

  	
   

  
	
   

  	
  SECTION 5.09 Compliance with
  Environmental Laws

  	
   

  
	
   

  	
  SECTION 5.10 Further Assurances;
  Additional Mortgages

  	
   

  
	
   

  	
  SECTION 5.11 Fiscal Year; Accounting

  	
   

  
	
   

  	
  SECTION 5.12 Interest Rate Protection
  Agreements

  	
   

  
	
   

  	
  SECTION 5.13 Proceeds of Certain
  Dispositions

  	
   

  
	
   

  	
  SECTION 5.14 Access and Command Codes

  	
   

  
	
   

  	
  SECTION 5.15 License Subsidiary

  	
   

  
	
   

  	
  SECTION 5.16 Post-Closing Matters

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI
  Negative Covenants

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 6.01 Indebtedness

  	
   

  
	
   

  	
  SECTION 6.02 Liens

  	
   

  



 


ii





















 


	
   

  	
  SECTION 6.03 Sale and Lease-Back
  Transactions

  	
   

  
	
   

  	
  SECTION 6.04 Investments, Loans and
  Advances

  	
   

  
	
   

  	
  SECTION 6.05 Mergers, Consolidations,
  Sales of Assets and Acquisitions

  	
   

  
	
   

  	
  SECTION 6.06 Dividends and
  Distributions

  	
   

  
	
   

  	
  SECTION 6.07 Transactions with
  Affiliates

  	
   

  
	
   

  	
  SECTION 6.08 Business of Holdings and
  the Subsidiaries

  	
   

  
	
   

  	
  SECTION 6.09 Limitation on
  Modifications and Prepayments

  	
   

  
	
   

  	
  SECTION 6.10 Capital Expenditures

  	
   

  
	
   

  	
  SECTION 6.11 Interest Coverage Ratio

  	
   

  
	
   

  	
  SECTION 6.12 Total Leverage Ratio

  	
   

  
	
   

  	
  SECTION 6.13 Swap Agreements

  	
   

  
	
   

  	
  SECTION 6.14 No Other “Designated
  Senior Indebtedness”

  	
   

  
	
   

  	
  SECTION 6.15 Non-Material Subsidiaries

  	
   

  
	
   

  	
  SECTION 6.16 Interest on Investor
  Financing

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII
  Events of Default

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 7.01 Events of Default

  	
   

  
	
   

  	
  SECTION 7.02 Holdings’ Right to Cure

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII
  The Agents

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 8.01 Appointment

  	
   

  
	
   

  	
  SECTION 8.02 Nature of Duties

  	
   

  
	
   

  	
  SECTION 8.03 Resignation by the Agents

  	
   

  
	
   

  	
  SECTION 8.04 The Agents in their
  Individual Capacity

  	
   

  
	
   

  	
  SECTION 8.05 Indemnification

  	
   

  
	
   

  	
  SECTION 8.06 Lack of Reliance on
  Agents

  	
   

  
	
   

  	
  SECTION 8.07 Designation of Affiliates
  for Loans Denominated in Euros

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX
  Miscellaneous

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.01 Notices

  	
   

  
	
   

  	
  SECTION 9.02 Survival of Agreement

  	
   

  
	
   

  	
  SECTION 9.03 Binding Effect

  	
   

  
	
   

  	
  SECTION 9.04 Successors and Assigns

  	
   

  
	
   

  	
  SECTION 9.05 Expenses; Indemnity

  	
   

  
	
   

  	
  SECTION 9.06 Right of Set-off

  	
   

  
	
   

  	
  SECTION 9.07 Applicable Law

  	
   

  
	
   

  	
  SECTION 9.08 Waivers; Amendment

  	
   

  
	
   

  	
  SECTION 9.09 Interest Rate Limitation

  	
   

  
	
   

  	
  SECTION 9.10 Entire Agreement

  	
   

  
	
   

  	
  SECTION 9.11 WAIVER OF JURY TRIAL

  	
   

  
	
   

  	
  SECTION 9.12 Severability

  	
   

  
	
   

  	
  SECTION 9.13 Counterparts

  	
   

  



 


iii





















 


	
   

  	
  SECTION 9.14 Headings

  	
   

  
	
   

  	
  SECTION 9.15 Jurisdiction; Consent to
  Service of Process

  	
   

  
	
   

  	
  SECTION 9.16 Confidentiality

  	
   

  
	
   

  	
  SECTION 9.17 Conversion of Currencies

  	
   

  
	
   

  	
  SECTION 9.18 Release of Liens and
  Guarantees

  	
   

  
	
   

  	
  SECTION 9.19 Parallel Debt

  	
   

  
	
   

  	
  SECTION 9.20 U.S.A. Patriot Act

  	
   

  
	
   

  	
  SECTION 9.21 Professional Market Party
  Representation

  	
   

  
	
   

  	
  SECTION 9.22 Regulatory Matters

  	
   

  
	
   

  	
  SECTION 9.23 Application of Proceeds

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X
  Collection Allocation Mechanism

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 10.01 Implementation of CAM

  	
   

  
	
   

  	
  SECTION 10.02 Letters of Credit

  	
   

  



 


	
  Exhibits and Schedules

  
	
   

  	
   

  
	
  Exhibit A

  	
  Form of
  Assignment and Acceptance

  
	
  Exhibit B-1

  	
  Form of
  Borrowing Request

  
	
  Exhibit B-2

  	
  Form of
  Request to Issue

  
	
  Exhibit C

  	
  Form of
  Swingline Borrowing Request

  
	
  Exhibit D-1

  	
  Form of
  Agreement of Undisclosed Pledge of Third Party Accounts Receivable

  
	
  Exhibit D-2

  	
  Form of
  Agreement of Disclosed Pledge of Intercompany Accounts Receivable

  
	
  Exhibit D-3

  	
  Form of
  Agreement of Disclosed Pledge of Bank Accounts

  
	
  Exhibit D-4

  	
  Form of
  Agreement of Non-Possessory Pledge of Assets

  
	
  Exhibit D-5

  	
  Form of
  Agreement of Disclosed Pledge of Insurance Receivables

  
	
  Exhibit D-6

  	
  Form of
  Agreement of Pledge of Intellectual Property Rights

  
	
  Exhibit D-7

  	
  Form of
  Agreement and Deed of Mortgage and Pledge

  
	
  Exhibit D-8

  	
  Form of
  Agreement and Deed of Pledge of Shares in New Skies Satellites MAR B.V.

  
	
  Exhibit D-9

  	
  Form of
  Agreement and Deed of Pledge of Shares in Morharras B.V.

  
	
  Exhibit E

  	
  Form of U.K.
  Equitable Charge of Shares

  
	
  Exhibit F-1

  	
  Form of
  Holdings Guarantee

  
	
  Exhibit F-2

  	
  Form of
  Agreement of Disclosed Pledge of Intercompany Loan Agreement

  
	
  Exhibit F-3

  	
  Form of
  Agreement and Deed of Pledge of Shares in New Skies Satellites B.V.

  
	
  Exhibit G

  	
  Form of
  Parent Guarantee and U.S. Pledge Agreement

  
	
  Exhibit H

  	
  Form of
  Subordinated Intercompany Debt

  
	
  Exhibit I-1

  	
  Form of
  Revolving Borrower Agreement

  
	
  Exhibit I-2

  	
  Form of
  Revolving Borrower Termination

  
	
  Exhibit J

  	
  Reserve
  Costs for Mandatory Costs Rate

  



 


iv





















 


	
  Exhibit K

  	
  Form of
  Investor Financing Documents

  
	
  Exhibit L

  	
  Form of
  Parent Investor Financing Documents

  
	
   

  	
   

  
	
  Schedule
  1.01(a)

  	
  Collateral
  and Guarantee Requirements

  
	
  Schedule
  2.01

  	
  Commitments

  
	
  Schedule
  2.04(a)

  	
  Swingline
  Commitments

  
	
  Schedule
  2.05(a)

  	
  Existing
  Letters of Credit

  
	
  Schedule 3.01

  	
  Organization

  
	
  Schedule 3.04

  	
  Governmental
  Approvals

  
	
  Schedule 3.07

  	
  Title to
  Properties; Possession Under Leases

  
	
  Schedule 3.08(a)

  	
  Closing Date
  Structure

  
	
  Schedule 3.08(b)

  	
  Subsidiaries

  
	
  Schedule 3.08(c)

  	
  Subscriptions

  
	
  Schedule 3.13

  	
  Taxes

  
	
  Schedule 3.18(a)

  	
  Owned Real
  Property

  
	
  Schedule 3.18(b)

  	
  Leased Real
  Property

  
	
  Schedule 3.20

  	
  Labor
  Matters

  
	
  Schedule 3.21

  	
  Insurance

  
	
  Schedule 3.22

  	
  Satellite
  Licenses and other Authorizations

  
	
  Schedule 3.23

  	
  Earth
  Station Licenses

  
	
  Schedule 3.24

  	
  Satellites

  
	
  Schedule
  5.16

  	
  Post-Closing
  Matters

  
	
  Schedule 6.01(a)

  	
  Indebtedness

  
	
  Schedule 6.01(b)

  	
  Letters of
  Credit

  
	
  Schedule 6.02(a)

  	
  Liens

  
	
  Schedule 6.04

  	
  Existing
  Investments

  
	
  Schedule 6.07

  	
  Transactions
  with Affiliates

  



 


v





















 


CREDIT
AGREEMENT dated as of November 2, 2004 (this “Agreement”), among
NEW SKIES HOLDING B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid)
organized under the laws of The Netherlands (“Holdings”), New Skies
Satellites B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid)
organized under the laws of The Netherlands (“Parent”), certain
subsidiaries of Parent from time to time party hereto as a borrower under the
Revolving Facility provided for herein (in such capacity, the “Subsidiary
Revolving Borrowers”), the LENDERS party hereto from time to time, DEUTSCHE
BANK AG, NEW YORK BRANCH (“DBAG”), as administrative agent (in such
capacity, the “Administrative Agent”) and as collateral agent (in such
capacity, the “Collateral Agent”) for the Lenders, ABN AMRO BANK N.V.,
as syndication agent (in such capacity, the “Syndication Agent”) and
DEUTSCHE BANK SECURITIES INC. and ABN AMRO INCORPORATED, as joint lead
arrangers and joint book running managers (in such capacities, the “Joint
Lead Arrangers”).


 


W I
T  N  E  S  S  E  T  H :


 


WHEREAS,
Blackstone Capital Partners IV L.P. and its affiliates or any other investment
vehicle controlled by any of them (collectively “Blackstone”) and
certain other investors (together with Blackstone, the “Equity Investors”)
have directly or indirectly formed or acquired (i) New Skies Investments
S.àr.l., a société a responsibilité limitée incorporated
under the laws of Luxembourg (“New Skies Investments”),
(ii) Holdings, all of the Equity Interests (as hereinafter defined) of
which are owned directly or indirectly by New Skies Investments, and (iii)
Parent, all of the Equity Interests of which are owned directly by Holdings;


 


WHEREAS,
Neptune One Holdings Ltd., a Cayman Islands exempted company (“Neptune”)
and Parent have entered into an Acquisition Agreement, pursuant to which Parent
intends to purchase substantially all of the assets (including the equity of
subsidiaries) and assume substantially all of the liabilities of New Skies
Satellites N.V. (the “Company”), a public limited liability company (naamloze vennootschap) organized under
the laws of The Netherlands (the “Acquisition”);


 


WHEREAS,
Neptune and Holdings have entered into a notarial deed of transfer pursuant to
which Neptune transferred any and all of its interests in Parent to Holdings;
and


 


WHEREAS,
to finance (in part) the purchase price for the Acquisition, to pay fees and
expenses in connection therewith and to provide for the ongoing working capital
and general corporate requirements of Parent and its subsidiaries, Holdings and
the Parent desire to enter into this Agreement.


 


NOW, THEREFORE, the
Lenders are willing to extend senior secured credit to Borrowers on the terms
and subject to the conditions set forth herein. 
Accordingly, the parties hereto agree as follows:


 





















 


ARTICLE I


 


Definitions


 


SECTION 1.01  Defined Terms.  As used in this Agreement, the following
terms shall have the meanings specified below:


 


“ABN”
shall mean ABN AMRO Bank N.V.


 


“ABR
Borrowing” shall mean a Borrowing comprised of ABR Loans.


 


“ABR
Loan” shall mean any ABR Term Loan, ABR Revolving Loan or Swingline Dollar
Loan.


 


“ABR
Revolving Borrowing” shall mean a Borrowing comprised of ABR Revolving
Loans.


 


“ABR
Revolving Loan” shall mean any Revolving Facility Loan denominated in
Dollars bearing interest at a rate determined by reference to the Alternate
Base Rate in accordance with the provisions of Article II.


 


“ABR
Term Loan” shall mean any Dollar Term Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.


 


“Acceptable
Exclusions” shall mean:


 


(a)                                  war,
invasion, hostile or warlike action in time of peace or war, including action
in hindering, combating or defending against an actual, impending or expected
attack by:


 


(ii)                                  any government or
sovereign power (de jure or de facto),


 


(iii)                               any authority
maintaining or using a military, naval or air force,


 


(iv)                              a military, naval, or air
force, or


 


(v)                                 any agent of any such
government, power, authority or force;


 


(b)                                 any
anti-satellite device, or device employing atomic or nuclear fission or fusion,
or device employing laser or directed energy beams;


 


(c)                                  insurrection,
strikes, labor disturbances, riots, civil commotion, rebellion, revolution,
civil war, usurpation, or action taken by a government authority in hindering,
combating or defending against such an occurrence, whether there be declaration
of war or not;


 


(d)                                 confiscation,
nationalization, seizure, restraint, detention, appropriation, requisition for
title or use by or under the order of any government or governmental


 


2





















 


authority or agent (whether
secret or otherwise or whether civil, military or de facto) or public or local
authority or agency);


 


(e)                                  nuclear
reaction, nuclear radiation, or radioactive contamination of any nature,
whether such loss or damage be direct or indirect, except for radiation
naturally occurring in the space environment;


 


(f)                                    electromagnetic
or radio frequency interference, except for physical damage to the Satellite
directly resulting from such interference;


 


(g)                                 willful
or intentional acts of the directors or officers of the named insured, acting
within the scope of their duties, designed to cause loss or failure of the
Satellite;


 


(h)                                 an
act of one or more Persons, whether or not agents of a sovereign power, for
political or terrorist purposes and whether the loss, damage or failure resulting
therefrom is accidental or intentional;


 


(i)                                     any
unlawful seizure or wrongful exercise of control of the Satellite made by any
individual or individuals acting for political or terrorist purposes;


 


(j)                                     loss
of revenue, incidental damages or consequential loss;


 


(k)                                  extra
expenses, other than the expenses insured under the respective policy;


 


(l)                                     third
party liability;


 


(m)                               loss
of a redundant component(s) that does not cause a transponder failure; and


 


(n)                                 such
other similar exclusions as may be customary for policies of such type as of
the date of issuance or renewal of such coverage.


 


“Acquisition”
shall have the meaning assigned to such term in the recitals to this Agreement.


 


“Acquisition
Agreement” shall mean the Acquisition Agreement, dated as of June 5,
2004 among Neptune, Parent and the Company.


 


“Acquisition
Documents” shall mean the Acquisition Agreement and all other material
agreements and documents governing or relating to the Acquisition.


 


“Additional
Mortgage” shall have the meaning assigned to such term in Section 5.10(c).


 


“Adjusted
LIBO Rate” shall mean, with respect to any Eurocurrency Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to
the next


 


3





















 


1/16 of 1%) equal to the result of dividing (a) the
LIBO Rate in effect for such Interest Period by (b) 1.00 minus the Statutory
Reserves applicable to such Eurocurrency Borrowing, if any.


 


“Administrative
Agent” shall have the meaning assigned to such term in the introductory
paragraph of this Agreement.


 


“Affiliate”
shall mean, when used with respect to a specified person, another person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the person specified.


 


“Agent
Fees” shall have the meaning assigned to such term in Section 2.12(c).


 


“Agents”
shall mean the Administrative Agent, the Collateral Agent and the Syndication
Agent.


 


“Agreement”
shall have the meaning assigned to such term in the introductory paragraph of
this Agreement.


 


“Agreement
Currency” shall have the meaning assigned to such term in Section 9.17(b).


 


“Alternate
Base Rate” shall mean, for any day, a rate per annum equal to the greater
of (a) the Prime Rate and (b) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%.  If for any
reason the Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to ascertain the
Federal Funds Effective Rate, including the failure of the Federal Reserve Bank
of New York to publish rates or the inability of the Administrative Agent to
obtain quotations in accordance with the terms thereof, the Alternate Base Rate
shall be determined without regard to clause (b) of the preceding sentence
until the circumstances giving rise to such inability no longer exist.  Any change in the Alternate Base Rate due to
a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.


 


“Applicable
Creditor” shall have the meaning assigned to such term in Section 9.17(b).


 


“Applicable
Margin” shall mean:


 


(a)                                  in
the case of Term Loans, (i) maintained as Alternative Base Rate Loans, a
percentage per annum equal to 1.50%, and (ii) maintained as Eurocurrency Loans,
a percentage per annum equal to 2.75%; and 


 


(b)                                 in
the case of Revolving Facility Loans, for any Margin Adjustment Period, from
and after any Start Date to and including the corresponding End Date, the
respective percentage per annum set forth below opposite the respective Level (i.e.,
Level 1, Level 2, Level 3 or Level 4, as the case may be) indicated to have
been achieved on the applicable Test Date for such Start Date (as shown in the
respective officer’s certificate delivered pursuant to Section 5.04(c)):


 


4





















 


	
  Total

  Leverage

  Ratio

  	
   

  	
  Level 1:

  less than or

  equal to

  3.50:1.00

  	
   

  	
  Level 2:

  greater than

  3.50:1.00 and less

  than or equal to

  4.50:1.00

  	
   

  	
  Level 3:

  greater than

  4.50:1.00 and less

  than or equal to

  5.25:1.00

  	
   

  	
  Level 4:

  greater than

  5.25:1.00

  	
   

  
	
  Applicable
  Margin for Eurocurrency Loans

  	
   

  	
  2.00

  	
  %

  	
  2.25

  	
  %

  	
  2.50

  	
  %

  	
  2.75

  	
  %

  
	
  Applicable
  Margin for Alternate Base Rate Loans

  	
   

  	
  0.75

  	
  %

  	
  1.00

  	
  %

  	
  1.25

  	
  %

  	
  1.50

  	
  %

  



 


Notwithstanding
the foregoing, (i) if Parent fails to deliver the financial statements required
to be delivered pursuant to Section 5.04(a) or (b) (accompanied by the
officer’s certificate required to be delivered pursuant to Section 5.04(c)
showing the applicable Total Leverage Ratio on the relevant Test Date) on or
prior to the respective date required by such Sections, then Level 4
pricing shall apply from the day following the most recent End Date until such
time, if any, as the financial statements required as set forth above and the
accompanying officer’s certificate have been delivered showing the pricing for
the respective Margin Adjustment Period is at a level below Level 4 (it being
understood that, in the case of any late delivery of the financial statements
and officer’s certificate as so required, any reduction in the Applicable
Margin shall apply only from and after the date of the delivery of the
complying financial statements and officer’s certificate); and (ii) Level 4
pricing shall apply for the period from the Closing Date to the date of the
delivery of the Parent’s consolidated financial statements (and related officer’s
certificate) in respect of the first fiscal quarter to end at least six months
after the Closing Date.


 


“Applicant
Party” shall mean, with respect to a Letter of Credit, the Borrower for
whose account such Letter of Credit is being issued.


 


“Approved
Fund” shall mean any person (other than a natural person) that is engaged
in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course and that is administered, managed
or advised by a Lender, an Affiliate of a Lender or an entity (including an
investment advisor) or an Affiliate of such entity that administers, manages or
advises a Lender.


 


“Asset
Acquisition” shall mean any Permitted Business Acquisition, the aggregate
consideration for which exceeds $5.0 million.


 


“Asset
Disposition” shall mean any sale, transfer or other disposition by Holdings
or any of the Subsidiaries to any person other than Holdings or any Subsidiary
to the extent otherwise permitted hereunder of any asset or group of related
assets (other than inventory or other assets sold, transferred or otherwise
disposed of in the ordinary course of business) in one or a series of related
transactions, the Net Proceeds from which exceed $5.0 million.


 


“Assignment
and Acceptance” shall mean an assignment and acceptance entered into by a
Lender and an assignee, and accepted by the Administrative Agent and Parent (if


 


5





















 


required by such assignment and acceptance),
substantially in the form of Exhibit A or such other form as shall be
approved by the Administrative Agent.


 


“Available
Investment Basket Amount” shall mean, on any date of determination, an
amount equal to (a) the Cumulative Retained Excess Cash Flow Amount on such
date plus the aggregate amount of proceeds received after the Closing Date and
prior to such date that would have constituted Net Proceeds pursuant to clause
(a) of the definition thereof except for the operation of clause (x) or (y) of
the second proviso thereof, minus (b) any amounts thereof used to make
Investments pursuant to Section 6.04(b) and/or clause (ii) of Section 6.04(l)
after the Closing Date and on or prior to such date, minus (c) the aggregate
amount of Capital Expenditures made after the Closing Date and on or prior to
such date pursuant to Section 6.10(c).


 


“Available
Revolving Unused Commitment” shall mean, with respect to a Revolving
Facility Lender at any time, an amount equal to the amount by which (a) the
Revolving Facility Commitment of such Revolving Facility Lender at such time
exceeds (b) the Revolving Facility Credit Exposure of such Revolving Facility
Lender at such time.


 


“Blackstone”
shall have the meaning assigned to such term in the recitals to this Agreement.


 


“Board”
shall mean the Board of Governors of the Federal Reserve System of the United
States of America.


 


“Boeing”
shall mean Boeing Satellite Systems, Inc. and its affiliates.


 


“Borrower”
shall mean and include (i) Parent and (ii) each other subsidiary that is a
Subsidiary Revolving Borrower.


 


“Borrowing”
shall mean a group of Loans of a single Type under a single Facility and made
on a single date and, in the case of Eurocurrency Loans, as to which a single
Interest Period is in effect.


 


“Borrowing
Minimum” shall mean (a) in the case of a Term Loan Borrowing and/or a
Revolving Facility Borrowing denominated in Dollars, $5.0 million, (b) in the
case of a Revolving Facility Borrowing denominated in Euros, €3.0 million, (c)
in the case of a Swingline Dollar Borrowing, $500,000 and (d) in the case of a
Swingline Euro Borrowing, €500,000.


 


“Borrowing
Multiple” shall mean (a) in the case of a Term Loan Borrowing or a
Revolving Facility Borrowing denominated in Dollars, $1.0 million, (b) in the
case of a Revolving Facility Borrowing denominated in Euros, €600,000, (c) in
the case of a Swingline Dollar Borrowing, $500,000 and (d) in the case of a
Swingline Euro Borrowing, €500,000.


 


“Borrowing
Request” shall mean a request by a Borrower in accordance with the terms of
Section 2.03 and substantially in the form of Exhibit B-1.


 


“Business
Day” shall mean any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
remain closed; provided that (a) when used in connection with a
Eurocurrency Loan, the term “Business Day”


 


6





















 


shall also exclude any day on which banks are not open
for dealings in deposits in the applicable currency in the London interbank
market and (b) when used in connection with a Loan denominated in Euros, the
term “Business Day” shall also exclude any day on which the TARGET payment
system is not open for the settlement of payments in Euros.


 


“Calculation
Date” shall mean (a) the last Business Day of each calendar month, (b) each
date (with such date to be reasonably determined by the Administrative Agent)
that is on or about the date of (i) a Borrowing Request or an Interest Election
Request with respect to any Revolving Facility Loan denominated in Euros, (ii)
the issuance of a Euro Letter of Credit or (iii) a request for a Swingline Euro
Borrowing and (c) if an Event of Default under Section 7.01(b) or (c) has
occurred and is continuing, any Business Day as determined by the
Administrative Agent in its sole discretion.


 


“CAM”
shall mean the mechanism for the allocation and exchange of interests in the
Loans, participations in Letters of Credit and collections thereunder
established under Article X.


 


“CAM
Exchange” shall mean the exchange of the Lenders’ interests provided for in
Section 10.01.


 


“CAM
Exchange Date” shall mean the first date after the Closing Date on which
there shall occur (a) any event described in paragraph (h) or (i) of Section 7.01
with respect to any Borrower or (b) an acceleration of Loans pursuant to Section 7.01.


 


“CAM
Percentage” shall mean, as to each Lender, a fraction, expressed as a
decimal, of which (a) the numerator shall be the sum of (i) the Dollar
Equivalent, determined using the Exchange Rates calculated as of the CAM
Exchange Date, of the aggregate Obligations owed to such Lender, (ii) the
Revolving L/C Exposure, if any, of such Lender (less unreimbursed L/C
Disbursements included therein) and (iii) the Swingline Exposure, if any, of
such Lender, in each case immediately prior to the CAM Exchange Date, and (b)
the denominator shall be the sum of (i) the Dollar Equivalent, determined using
the Exchange Rates calculated as of the CAM Exchange Date, of the aggregate
Obligations owed to all the Lenders and (ii) the aggregate Revolving L/C
Exposure of all the Lenders (less unreimbursed L/C Disbursements included
therein); provided that, for purposes of clause (a) above, the
Obligations owed to a Swingline Lender will be deemed not to include any
Swingline Loans except to the extent provided in clause (a)(iii) above.


 


“Capital
Expenditures” shall mean, for any person in respect of any period, the
aggregate of all expenditures incurred by such person during such period that,
in accordance with US GAAP, are or should be included in “additions to
property, plant or equipment” or similar items reflected in the statement of
cash flows of such person, provided, however, that Capital
Expenditures for Holdings and the Subsidiaries shall not include:


 


(a)                                  expenditures
to the extent they are made with proceeds of the issuance of Equity Interests
of Holdings after the Closing Date to Blackstone or any other Permitted
Investor or with funds that would have constituted Net Proceeds under clause
(a) of the


 


7





















 


definition of the term “Net Proceeds” (but that will
not constitute Net Proceeds as a result of the first proviso to such clause
(a)),


 


(b)                                 expenditures
of proceeds of insurance settlements, condemnation awards and other settlements
in respect of lost, destroyed, damaged or condemned assets, equipment or other
property to the extent such expenditures are made, or a binding contract is or
has been entered into to make such expenditures, to replace or repair such
lost, destroyed, damaged or condemned assets, equipment or other property or
otherwise to acquire, maintain, develop, construct, improve, upgrade or repair
assets or properties useful in the business of Parent and the Subsidiaries
within 12 months of receipt of such proceeds,


 


(c)                                  interest
capitalized during such period,


 


(d)                                 expenditures
that are accounted for as capital expenditures of such person and that actually
are paid for by a third party (excluding Holdings or any Subsidiary thereof)
and for which neither Holdings nor any Subsidiary thereof has provided or is
required to provide or incur, directly or indirectly, any consideration or
obligation to such third party or any other person (whether before, during or
after such period),


 


(e)                                  the
book value of any asset owned by such person prior to or during such period to
the extent that such book value is included as a capital expenditure during
such period as a result of such person reusing or beginning to reuse such asset
during such period without a corresponding expenditure actually having been
made in such period, provided that any expenditure necessary in order to
permit such asset to be reused shall be included as a Capital Expenditure
during the period that such expenditure actually is made,


 


(f)                                    the
purchase price of equipment purchased during such period to the extent the
consideration therefor consists of any combination of (i) used or surplus
equipment traded in at the time of such purchase and (ii) the proceeds of a
concurrent sale of used or surplus equipment, in each case, in the ordinary
course of business,


 


(g)                                 Investments
in respect of a Permitted Business Acquisition, or


 


(h)                                 the
purchase price of equipment that is purchased substantially contemporaneously
with the trade-in of existing equipment to the extent that the gross amount of
such purchase price is reduced by the credit granted by the seller of such
equipment for the equipment being traded in at such time.


 


“Capital
Lease Obligations” of any person shall mean the obligations of such person
to pay rent or other amounts under any lease of (or other arrangement conveying
the right to use) real or personal property, or a combination thereof, which
obligations are required to be classified and accounted for as capital leases
on a balance sheet of such person under US GAAP and, for purposes hereof, the
amount of such obligations at any time shall be the capitalized amount thereof
at such time determined in accordance with US GAAP.


 


8





















 


“Cash
Interest Expense” shall mean, with respect to Holdings and the Subsidiaries
on a consolidated basis for any period, Interest Expense for such period, less
the sum of (a) pay-in-kind Interest Expense or other noncash Interest Expense
(including as a result of the effects of purchase accounting), (b) to the
extent included in Interest Expense, the amortization of any financing fees
paid by, or on behalf of, Holdings or any Subsidiary, including such fees paid
in connection with the Transactions, (c) the amortization of debt discounts, if
any, or fees in respect of Swap Agreements and (d) cash interest income of
Holdings and its Subsidiaries for such period; provided that (i) Cash
Interest Expense shall exclude any financing fees paid in connection with the
Transactions (or any refinancing of any Indebtedness incurred in connection
therewith to the extent that such financing fees are paid with the proceeds
from such refinancing Indebtedness) or any amendment of this Agreement or upon
entering into a Permitted Receivables Financing and (ii) historical Cash
Interest Expense shall be deemed to be (x) for each of the fiscal quarters
ended March 31, 2004, June 30, 2004 and September 30, 2004,
$12.0 million and (y) for the period beginning October 1, 2004 through to
and excluding the Closing Date, the amount equal to (A) the quotient of $12.0
million, divided by 91, (B) multiplied by the number of days from and including
October 1, 2004 to and excluding the Closing Date.


 


A “Change
in Control” shall be deemed to occur if:


 


(a)                                  at
any time, (i) Holdings shall fail to own, directly or indirectly, beneficially
and of record, 100% of the issued and outstanding Equity Interests of Parent,
(ii) Parent shall fail to own directly or indirectly, beneficially and of
record, 100% of the issued and outstanding Equity Interests of each Revolving
Borrower (other than Parent), (iii) a majority of the seats (other than vacant
seats) on the management board of Holdings shall at any time be occupied by
persons who were neither (A) nominated by a Permitted Holder (directly or
indirectly) nor (B) appointed by a Permitted Holder (directly or indirectly),
(iv) Holdings shall fail to own, directly, beneficially and of record, 100% of
the aggregate outstanding principal amount of the Parent Investor Financing, or
(v) a “Change in Control” shall occur under the Senior Note Indenture, the
Senior Subordinated Note Indenture or any Permitted Senior Subordinated Debt
Securities;


 


(b)                                 at
any time prior to an initial public offering of Equity Interests of Holdings or
any person who, directly or indirectly, owns 100% of the issued and outstanding
Equity Interests of Holdings (a “Parent Company”), any combination of
Permitted Holders shall fail to own beneficially (within the meaning of Rule
13d-5 of the Exchange Act as in effect on the Closing Date), directly or
indirectly, in the aggregate (x) Equity Interests representing at least 51% of (i)
the aggregate ordinary voting power represented by the issued and outstanding
Equity Interests of Holdings, or (ii) the common economic interest represented
by the issued and outstanding Equity Interests of Holdings or (y) a principal
amount of the outstanding Investor Financing representing at least 51% of the
aggregate principal amount of the Investor Financing; or


 


(c)                                  at
any time from and after an initial public offering of Equity Interests of
Holdings or any Parent Company, (i) any person or group (within the meaning of
Rule 13d-5 of the Exchange Act as in effect on the Closing Date), other than
any combination of the Permitted Holders, shall own beneficially (as defined
above), directly or indirectly,


 


9





















 


in the aggregate Equity Interests representing 35% or
more of the aggregate ordinary voting power represented by the issued and
outstanding Equity Interests of Holdings or such Parent Company, as applicable,
and the Permitted Holders own beneficially (as defined above), directly or
indirectly, a smaller percentage of such ordinary voting power at such time
than the Equity Interests owned by such other person or group or (ii) any
person or group (within the meaning of Rule 13d-5 of the Exchange Act as in
effect on the Closing Date), other than any combination of the Permitted
Holders, shall own beneficially (as defined above), directly or indirectly, in
the aggregate a principal amount of the outstanding Investor Financing
representing 35% or more of the aggregate outstanding principal amount of the
Investor Financing, and the Permitted Holders own beneficially (as defined
above), directly or indirectly, a smaller percentage of such principal amount
of the Investor Financing than that owned by such other person or group.


 


“Change
in Law” shall mean (a) the adoption of any law, rule or regulation after
the Closing Date, (b) any change in law, rule or regulation or in the official
interpretation or application thereof by any Governmental Authority after the Closing
Date or (c) compliance by any Lender or Issuing Bank (or, for purposes of Section 2.15(b),
by any lending office of such Lender or by such Lender’s or Issuing Bank’s
holding company, if any) with any written request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the Closing Date.


 


“Charges”
shall have the meaning assigned to such term in Section 9.09.


 


“Closing
Date” shall mean the date on which all of the conditions precedent required
to effectuate the Transaction have been satisfied.


 


“Code”
shall mean the Internal Revenue Code of 1986, as amended from time to time.


 


“Co-Documentation
Agents” shall mean BNP Paribas SA and ING Bank N.V., in their capacities as
a co-documentation agents under this Agreement.


 


“Collateral”
shall mean all property and assets (including Equity Interests) subject to a
lien created under any Security Document and shall also include the Mortgaged
Properties.


 


“Collateral
Agent” shall have the meaning given such term in the introductory paragraph
of this Agreement.


 


“Collateral
and Guarantee Requirements” shall mean the requirements that:


 


(a)                                  as of the Closing Date, all
of the Loan Documents described in Schedule 1.01(a) shall have been
executed and delivered by the parties thereto, and, to the extent
applicable under the relevant governing law, all Liens created by the pledging
of securities and/or other instruments shall have been perfected (by the pledging of
such securities and/or instruments or otherwise);


 


10





















 


(b)                                 in the case of each Dutch
Subsidiary that becomes a Subsidiary Loan Party after the Closing Date, the
Administrative Agent shall have received, unless it has waived such requirement
for such Subsidiary Loan Party (for reasons of cost, legal limitations, tax
consequences or such other matters as deemed appropriate by the Administrative
Agent, acting reasonably), a counterpart of a guaranty and of each Dutch
Security Document duly authorized, executed and delivered by such Subsidiary
Loan Party;


 


(c)                                  in
the case of any Material Subsidiary (other than a Material Subsidiary organized
under the laws of The Netherlands) that becomes a Subsidiary Loan Party after
the Closing Date, the Administrative Agent shall have received, unless it has
waived such requirement for such Subsidiary Loan Party (for reasons of cost,
legal limitations, tax consequences or such other matters as deemed appropriate
by the Administrative Agent, acting reasonably), a counterpart of a guaranty
and agreements or documents in a form and to the extent agreed between Parent
and the Administrative Agent (but in any event to be substantially consistent
(taking into account the scope of customary collateral arrangements in the
applicable jurisdiction or jurisdictions) with the scope of the Dutch Security
Documents entered into by Parent;


 


(d)                                 subject
to Section 5.10(g), all the Equity Interests that are acquired by a Loan
Party after the Closing Date shall be pledged pursuant to the Dutch Security
Documents, the Parent Guarantee and U.S. Pledge Agreement, the U.K. Equitable
Charge of Shares, an Other Pledge Agreement or the Holdings Agreements, as the
case may be (it being agreed that an Other Pledge Agreement shall not be
required in respect of the Equity Interests of entities which are not required
to satisfy the requirements of clause (c) above);


 


(e)                                  the
Collateral Agent shall have received all certificates or other instruments (if
any) representing all Equity Interests required to be pledged pursuant to any
of the foregoing paragraphs, together with stock powers or other instruments of
transfer with respect thereto endorsed in blank, in each case to the extent
reasonably requested by counsel to the Lenders, or such other action shall have
been taken as required under applicable law to perfect a security interest in
such Equity Interests as reasonably requested by counsel to the Lenders;


 


(f)                                    all
Indebtedness of Holdings and each Subsidiary having an aggregate principal
amount that has a Dollar Equivalent in excess of $2.5 million (other than
intercompany current liabilities incurred in the ordinary course of business)
that is owing to Holdings, Parent or any Subsidiary Loan Party shall have been
pledged pursuant to a Security Document and shall, if requested by the
Administrative Agent and if relevant under the applicable governing law of such
Security Document, be evidenced by a promissory note or an instrument and the
Collateral Agent shall have received all such promissory notes or instruments,
together with note powers or other instruments of transfer with respect thereto
endorsed in blank;


 


(g)                                 all
documents and instruments required by law or reasonably requested by the
Collateral Agent to be filed, registered or recorded to create the Liens
intended to be created by the Security Documents (in each case, including any
supplements thereto) and


 


11





















 


perfect such Liens to the extent required by, and with
the priority required by, the Security Documents, shall have been filed,
registered or recorded or delivered to the Collateral Agent for filing,
registration or the recording concurrently with, or promptly following, the
execution and delivery of each such Security Document;


 


(h)                                 in
the case of each Mortgaged Property located in The Netherlands, the Collateral
Agent shall have received a copy of a notarial deed of Mortgage with respect to
such Mortgaged Property duly executed and delivered by the record owner of such
Mortgaged Property; and


 


(i)                                     each
Loan Party shall have obtained all material consents and approvals required to
be obtained by it in connection with (A) the execution, delivery and
performance of all Security Documents (or supplements thereto) to which it is a
party and (B) the granting by it of the Liens under each Security Document to
which it is party.


 


“Commitments”
shall mean (a) with respect to any Lender, such Lender’s Revolving Facility
Commitment and Term Loan Commitment and (b) with respect to any Swingline
Lender, its Swingline Dollar Commitment or Swingline Euro Commitment, as
applicable.


 


“Company”
shall have the meaning assigned to such term in the recitals to this Agreement.


 


“Consolidated
Debt” at any date shall mean the sum of (without duplication) (i) all
Indebtedness consisting of Capital Lease Obligations, Indebtedness for borrowed
money (but not including Indebtedness in respect of the Investor Financing and
the Parent Investor Financing) and Indebtedness in respect of the deferred
purchase price of property or services (and not including any indebtedness
under letters of credit (x) to the extent undrawn or (y) if drawn, to the
extent reimbursed within 10 Business Days after such drawing) of Holdings and
its Subsidiaries determined on a consolidated basis on such date plus (ii) any
Receivables Net Investment.


 


“Consolidated
Net Debt” at any date shall mean (A) Consolidated Debt on such date less
(B) unrestricted cash or marketable securities (determined in accordance with
US GAAP) of Holdings and its Subsidiaries on such date.


 


“Consolidated
Net Income” shall mean, with respect to any person for any period, the
aggregate of the Net Income of such person and its subsidiaries for such
period, on a consolidated basis; provided, however, that


 


(i)                                     any
net after-tax extraordinary, special (to the extent reflected as a separate
line item on a consolidated income statement prepared in accordance with US
GAAP on a basis consistent with historical practices) or non-recurring gain or
loss (less all fees and expenses relating thereto) or income or expense or
charge including, without limitation, any severance expense, and fees, expenses
or charges related to any offering of Equity Interests of Holdings, any
Investment, acquisition or Indebtedness permitted to be incurred hereunder (in
each case, whether or not successful), including all fees, expenses, charges or
change in control payments related to the Transactions (including,


 


12





















 


without limitation, all Transaction Costs), in each
case shall be excluded; provided that, with respect to each
non-recurring item, Holdings shall have delivered to the Administrative Agent
an officers’ certificate specifying and quantifying such item and stating that
such item is a non-recurring item,


 


(ii)                                  any
net after-tax income or loss from discontinued operations and any net after-tax
gain or loss on disposal of discontinued operations shall be excluded,


 


(iii)                               any
net after-tax gain or loss (less all fees and expenses or charges relating
thereto) attributable to business dispositions or asset dispositions other than
in the ordinary course of business (as determined in good faith by the Board of
Directors of Holdings) shall be excluded,


 


(iv)                              any
net after-tax income or loss (less all fees and expenses or charges relating
thereto) attributable to the early extinguishment of indebtedness shall be
excluded,


 


(v)                                 (A)
the Net Income for such period of any person that is not a subsidiary of such
person, or that is accounted for by the equity method of accounting, shall be
included only to the extent of the amount of dividends or distributions or
other payments in respect of equity paid in cash (or to the extent converted
into cash) to such person or a subsidiary thereof in respect of such period,
but excluding any such dividend, distribution or payment in respect of equity
that funds a JV Reinvestment, and (B) the Net Income for such period shall
include any dividend, distribution or other payment in respect of equity in
cash received from any person in excess of the amounts included in clause (A),
but excluding any such dividend, distribution or payment that funds a JV
Reinvestment,


 


(vi)                              the
Net Income for such period of any subsidiary of such person that is not a Loan
Party shall be excluded to the extent that the declaration or payment of
dividends or similar distributions by such subsidiary of its Net Income is not
at the date of determination permitted without any prior governmental approval
(which has not been obtained) or, directly or indirectly, by the operation of
the terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule, or governmental regulation applicable to that subsidiary or its
stockholders, unless such restriction with respect to the payment of dividends
or in similar distributions has been legally waived (provided that the
net loss of any such subsidiary shall be included), provided that such Net
Income shall be included to the extent (and only to the extent) such subsidiary
may (without violation of law or binding contractual arrangements) make loans
and/or advances to its parent corporation (which corporation may in turn
dividend, loan and/or advance the proceeds of such loans or advances to its
parent corporation and so on for all parents until reaching Parent) and/or to
Parent,


 


(vii)                           Consolidated
Net Income for such period shall not include the cumulative effect of a change
in accounting principles during such period,


 


(viii)                        an
amount equal to the amount of Tax Distributions actually made to the holders of
capital stock of Holdings in respect of the net taxable income allocated by
such


 


13





















 


person to such holders for such period to the extent
funded by Parent shall be included as though such amounts had been paid as
income taxes directly by such person,


 


(ix)                                any
increase in amortization or depreciation or any one-time noncash charges (such
as purchased in-process research and development or capitalized manufacturing
profit in inventory) resulting from purchase accounting in connection with the
Transaction or any acquisition that is consummated prior to or after the
Closing Date shall be excluded,


 


(x)                                   accruals
and reserves that are established within twelve months after the Closing Date
and that are so required to be established in accordance with US GAAP shall be
excluded; and


 


(xi) any long-term incentive plan accruals and any non-cash
compensation expense realized from grants of stock appreciation or similar
rights, stock options or other rights to officers, directors and employees of
such person or any of its subsidiaries shall be excluded.


 


“Consolidated
Total Assets” shall mean, as of any date, the total assets of Holdings and
the consolidated Subsidiaries, determined in accordance with US GAAP, as set
forth on the consolidated balance sheet of Holdings as of such date.


 


“Control”
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a person, whether through
the ownership of voting securities, by contract or otherwise, and “Controlling”
and “Controlled” shall have meanings correlative thereto.


 


“Corresponding Obligation” shall mean any obligation to pay an
amount to any one or more of the Administrative Agent, the Collateral Agent, any
Issuing Bank or any Lender (or any of their affiliates), whether for principal,
interest, costs, any overdraft or otherwise (including, without limitation,
pursuant to any Guarantee) and whether present or future (i) under or in
connection with the Loan Documents, (ii) under or in connection with any Swap
Agreement to which any Loan Party and any Lender (or any of its affiliates) is
a party from time to time or (iii) in connection with any other Indebtedness as
the Lenders (or any of their affiliates) and any Loan Party may agree from time
to time.


 


“Credit
Event” shall have the meaning assigned to such term in Article IV.


 


“Cumulative
Retained Excess Cash Flow Amount” shall mean, at any date, an amount, not
less than zero, determined on a cumulative basis equal to the amount of Excess
Cash Flow for all Excess Cash Flow Periods ending after the Closing Date that
is not (and, in the case of any Excess Cash Flow Period where the respective
required date of prepayment has not yet occurred pursuant to Section 2.11(d),
will not on such date of required prepayment be) required to be applied in
accordance with Section 2.11(d).


 


“Cure
Amount” shall have the meaning assigned to such term in Section 7.02.


 


“Cure
Right” shall have the meaning assigned to such term in Section 7.02.


 


14





















 


“Current
Assets” shall mean, with respect to Holdings and the Subsidiaries on a
consolidated basis at any date of determination, the sum of (a) all assets
(other than cash and Permitted Investments or other cash equivalents) that
would, in accordance with US GAAP, be classified on a consolidated balance
sheet of Holdings and the Subsidiaries as current assets at such date of
determination, other than amounts related to current or deferred Taxes based on
income or profits and (b) in the event that a Permitted Receivables Financing
is accounted for off-balance sheet, (x) gross accounts receivable comprising
part of the Receivables Assets subject to such Permitted Receivables Financing
less (y) collections against the amounts sold pursuant to clause (x).


 


“Current
Liabilities” shall mean, with respect to Holdings and the Subsidiaries on a
consolidated basis at any date of determination, all liabilities that would, in
accordance with US GAAP, be classified on a consolidated balance sheet of
Holdings and the Subsidiaries as current liabilities at such date of
determination, other than (a) the current portion of any debt or Capital Lease
Obligations, (b) accruals of Interest Expense (excluding Interest Expense that
is due and unpaid), (c) accruals for current or deferred Taxes based on income,
profits or capital, (d) accruals, if any, of transaction costs resulting from
the Transactions, (e) accruals of any costs or expenses related to (i)
severance or termination of employees prior to the Closing Date or
(ii) bonuses, pension and other post-retirement benefit obligations, and
(f) accruals for add-backs to EBITDA included in clauses (a)(iv) through
(a)(ix) of the definition of such term.


 


“DBAG”
shall mean Deutsche Bank AG, New York Branch, including any successor thereto
by merger.


 


“Debt
Service” shall mean, with respect to Holdings and the Subsidiaries on a
consolidated basis for any period, Cash Interest Expense for such period plus
scheduled principal amortization of Consolidated Debt for such period.


 


“Default”
shall mean any event or condition that upon notice, lapse of time or both would
constitute an Event of Default.


 


“Defaulting
Lender” shall mean any Lender with respect to which a Lender Default is in
effect.


 


“Dollar
Equivalent” shall mean, on any date of determination (a) with respect to
any amount in Dollars, such amount, and (b) with respect to any amount in
Euros, the equivalent in Dollars of such amount, determined by the
Administrative Agent pursuant to Section 1.03(b) using the Exchange Rate
with respect to Euros at the time in effect under the provisions of such
Section.


 


“Dollar
Letter of Credit” shall mean a Letter of Credit denominated in Dollars.


 


“Dollar
Term Loan” shall mean each Term Loan denominated in Dollars.


 


“Dollars”
or “$” shall mean lawful money of the United States of America.


 


“Dutch
Borrower” shall mean the Parent and any Subsidiary Revolving Borrower that
is a Dutch Subsidiary.


 


15





















 


“Dutch
Security Documents” shall mean (i) an Agreement of Undisclosed Pledge of
Third Party Accounts Receivable substantially in the form of Exhibit D-1; (ii)
an Agreement of Disclosed Pledge of Intercompany Accounts Receivable
substantially in the form of Exhibit D-2; (iii) an Agreement of Disclosed
Pledge of Bank Accounts substantially in the form of Exhibit D-3; (iv) an
Agreement of Non-Possessory Pledge of Assets substantially in the form of
Exhibit D-4; (v) an Agreement of Disclosed Pledge of Insurance Receivables
substantially in the form of Exhibit D-5; (vi) an Agreement of Pledge of
Intellectual Property Rights substantially in the form of Exhibit D-6; (vii) an
Agreement and Deed of Mortgage and Pledge substantially in the form of Exhibit
D-7; (viii) an Agreement and Deed of Pledge of Shares in New Skies Satellites
MAR B.V. substantially in the form of Exhibit D-8; (ix) an Agreement and Deed
of Pledge of Shares in Morharras B.V. substantially in the form of Exhibit D-9
and (xi) the agreements referred to in clauses (ii) and (iii) of the definition
of “Holdings Agreements”.


 


“Dutch
Subsidiary” shall mean any Subsidiary that is incorporated and organized
under the laws of The Netherlands.


 


“Earth
Station” shall mean any earth station licensed for operation by the FCC or
by any Governmental authority outside of the United States that is owned and
operated by Holdings or any of its Subsidiaries.


 


“EBITDA”
shall mean, with respect to Holdings and the Subsidiaries on a consolidated
basis for any period, the Consolidated Net Income of Holdings and the
Subsidiaries for such period plus (a) the sum of (in each case without
duplication and to the extent the respective amounts described in subclauses
(i) through (xi) of this clause (a) reduced such Consolidated Net Income for
the respective period for which EBITDA is being determined):


 


(i)                                     provision
for Taxes based on income, profits or capital of Holdings and the Subsidiaries
for such period, including, without limitation, state, franchise and similar
taxes (such as the Texas franchise tax and Michigan single business tax)
(including any Tax Distribution taken into account in calculating Consolidated
Net Income),


 


(ii)                                  Interest
Expense of Holdings and the Subsidiaries for such period (net of interest income
for such period of Holdings and its Subsidiaries),


 


(iii)                               depreciation
and amortization (including amortization of goodwill and other intangibles,
deferred financing fees and any amortization included in pension, OPEB or other
employee benefit expenses, but excluding amortization of prepaid cash expenses
that were paid in a prior period) and other non-cash expenses (including,
without limitation, write-downs and impairment of property, plant, equipment
and intangibles and other long-lived assets and the impact of purchase
accounting but excluding any such non-cash expense to the extent that it
represents an accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense that was paid in a prior period), in
each case of Holdings and the Subsidiaries for such period,


 


(iv)                              restructuring
charges; provided that with respect to each such restructuring charge,
Holdings shall have delivered to the Administrative Agent an officer’s
certificate


 


16





















 


specifying and quantifying such charge and stating
that such charge is a restructuring charge,


 


(v)                                 any
other noncash charges (but excluding any such charge which requires an accrual
of, or a cash reserve for, anticipated cash charges for any future period); provided
that, for purposes of this subclause (v) of this clause (a), any noncash
charges or losses shall be treated as cash charges or losses in any subsequent
period during which cash disbursements attributable thereto are made,


 


(vi)                              the
minority interest expense consisting of the subsidiary income attributable to
minority equity interests of third parties in any non-Wholly Owned Subsidiary
in such period or any prior period, except to the extent of dividends declared
or paid on Equity Interests held by third parties,


 


(vii)                           the
noncash portion of “straight-line” rent expense,


 


(viii)                        the
amount of any expense to the extent a corresponding amount is received in cash
by any Loan Party from a Person other than Holdings or any Subsidiary of
Holdings under any agreement providing for reimbursement of any such expense
provided such reimbursement payment has not been included in determining EBITDA
(it being understood that if the amounts received in cash under any such
agreement in any period exceed the amount of expense in respect of such period,
such excess amounts received may be carried forward and applied against expense
in future periods),


 


(ix)                                turnaround
costs and expenses to the extent treated as, and included in computing for the
period expended, Capital Expenditures,


 


(x)                                   the
amount of management, consulting, monitoring and advisory fees and related
expenses paid to Blackstone or any other Permitted Investor (or any accruals
related to such fees and related expenses) during such period; provided
that such amount shall not exceed in any four quarter period the greater of (x)
$2.5 million and (y) 2% of EBITDA of Holdings and the Subsidiaries
(assuming for purposes of this clause (y) that the amount to be added to
Consolidated Net Income under this clause (x) is $2.5 million), and


 


(xi)                                except
for purposes of calculating Excess Cash Flow to the extent consisting of any
net cash loss, any net losses resulting from currency Swap Agreements entered
into in the ordinary course of business relating to intercompany loans among or
between Holdings and/or any of its Subsidiaries to the extent that the nominal
amount of the related Swap Agreement does not exceed the principal amount of
the related intercompany loan;


 


minus
(b) the sum of (in each case without duplication and to the extent the
respective amounts described in subclauses (i) to (iv) of this clause (b)
increased such Consolidated Net Income for the respective period for which
EBITDA is being determined):


 


(i)                                     the
minority interest income consisting of subsidiary losses attributable to the
minority equity interests of third parties in any non-Wholly Owned Subsidiary,


 


17





















 


(ii)                                  noncash
items increasing Consolidated Net Income of Holdings and the Subsidiaries for
such period (but excluding any such items (A) in respect of which cash was
received in a prior period or will be received in a future period or (B) which
represent the reversal of any accrual of, or cash reserve for, anticipated cash
charges in any prior period),


 


(iii)                               the
cash portion of “straight-line” rent expense which exceeds the amount expensed
in respect of such rent expense, and


 


(iv)                              except
for purposes of calculating Excess Cash Flow to the extent consisting of a net
cash gain, any net gains resulting from currency Swap Agreements entered into
in the ordinary course of business relating to intercompany loans among or
between Holdings and/or any of its Subsidiaries to the extent that the nominal
amount of the related Swap Agreement does not exceed the principal amount of
the related intercompany loan.


 


Notwithstanding the foregoing, EBITDA shall be deemed
to be (x) for each of the fiscal quarters ended March 31, 2004, June 30,
2004 and September 30, 2004, $30.0 million and (y) for the period
beginning October 1, 2004 through to and excluding the Closing Date, the
amount equal to (A) the quotient of $30.0 million, divided by 91, (B)
multiplied by the number of days from and including October 1, 2004 to and
excluding the Closing Date.


 


“EMU
Legislation” shall mean the legislative measures of the European Union for
the introduction of, changeover to or operation of the Euro in one or more
member states of the European Union.


 


“End
Date” shall mean, with respect to any Margin Adjustment Period, the last
day of such Margin Adjustment Period.


 


“Environment”
shall mean ambient and indoor air, surface water and groundwater (including
potable water, navigable water and wetlands), the land surface or subsurface
strata, natural resources such as flora and fauna, the workplace or as
otherwise defined in any Environmental Law.


 


“Environmental
Claims” shall mean any and all administrative, regulatory or judicial
actions, suits, formal demands, demand letters, claims, liens, notices of non-compliance
or violation, investigations or proceedings relating in any way to any
Environmental Law or any permit issued, or any approval given, under any such
law (hereafter “Claims”), including, without limitation, (a) any and all Claims
by governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief in connection with alleged injury or threat of injury to
health, safety or the environment due to the presence of Hazardous Materials.


 


“Environmental
Laws” shall mean all applicable laws (including common law), rules,
regulations, codes, ordinances, orders, decrees, judgments, injunctions, or
binding agreements issued, promulgated or entered into by any Governmental
Authority, relating in any way


 


18





















 


to the protection of the Environment, preservation or
reclamation of natural resources, the generation, management, Release or
threatened Release of, or exposure to, any Hazardous Material or to health and
safety matters (to the extent relating to the Environment or exposure to
Hazardous Materials).


 


“Equity
Interests” of any person shall mean any and all shares, interests, rights
to purchase, warrants, options, participation or other equivalents of or
interests in (however designated) equity of such person, including any preferred
stock, convertible preferred equity certificate (whether or not equity under
local law), any limited or general partnership interest and any limited
liability company membership interest.


 


“Equity
Investors” shall have the meaning assigned to such term in the recitals to
this Agreement


 


“Equity
Percentage” shall mean 50%; provided that if at the time of any prepayment
required by Section 2.11(c) hereof, (a) the Total Leverage Ratio as of the
last day of the most recent fiscal quarter for which financial statements have
been delivered pursuant to Section 5.04(a) or (b) (together with the
corresponding officer’s certificate pursuant to Section 5.04(c)) is less
than or equal to 4.50 to 1.00 but greater than 3.50:1.00, then the percentage
set forth above shall be deemed to be 25% and (b) the Total Leverage Ratio as
of the last day of the most recent fiscal quarter for which financial
statements have been delivered pursuant to Section 5.04(a) or (b)
(together with the corresponding officer’s certificate pursuant to Section 5.04(c))
is less than or equal to 3.50:1.00, then the percentage set forth above shall
be deemed to be 0%.


 


“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as the same may
be amended from time to time.


 


“ERISA
Affiliate” shall mean any trade or business (whether or not incorporated)
that, together with Holdings, Parent or a Subsidiary, is treated as a single
employer under Section 414(b) or (c) of the Code, or, solely for purposes
of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.


 


“ERISA
Event” shall mean (a) any Reportable Event; (b) the existence with respect
to any Plan of an “accumulated funding deficiency” (as defined in Section 412
of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan, the failure to make by its due date a required installment
under Section 412(m) of the Code with respect to any Plan or the failure
to make any required contribution to a Multiemployer Plan; (d) the incurrence
by Holdings, Parent, a Subsidiary or any ERISA Affiliate of any liability under
Title IV of ERISA with respect to the termination of any Plan; (e) the receipt
by Holdings, Parent, a Subsidiary or any ERISA Affiliate from the PBGC or a
plan administrator of any notice relating to an intention to terminate any Plan
or to appoint a trustee to administer any Plan under Section 4042 of
ERISA; (f) the incurrence by Holdings, Parent, a Subsidiary or any ERISA
Affiliate of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (g) the receipt by Holdings, Parent, a
Subsidiary or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from Holdings, Parent, a Subsidiary or any ERISA Affiliate
of any notice, concerning the imposition


 


19





















 


of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.


 


“Euro”
or “€” shall mean the single currency of the European Union as
constituted by the treaty establishing the European Community being the Treaty
of Rome, as amended from time to time and as referred to in the EMU
Legislation.


 


“Euro
Equivalent” shall mean, on any date of determination, (a) with respect to
any amount in Euros, such amount and (b) with respect to any amount in Dollars,
the equivalent in Euros of such amount or determined by the Administrative
Agent pursuant to Section 1.03(b) using the Exchange Rate with respect to
such currency of the time in effect under the provisions of such Section.


 


“Euro
Letter of Credit” shall mean a Letter of Credit denominated in Euros.


 


“Eurocurrency
Borrowing” shall mean a Borrowing comprised of Eurocurrency Loans.


 


“Eurocurrency
Loan” shall mean any Eurocurrency Term Loan or Eurocurrency Revolving Loan.


 


“Eurocurrency
Revolving Borrowing” shall mean a Borrowing comprised of Eurocurrency
Revolving Loans.


 


“Eurocurrency
Revolving Loan” shall mean any Revolving Facility Loan bearing interest at
a rate determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.


 


“Eurocurrency
Term Loan” shall mean any Term Loan bearing interest at a rate determined
by reference to the Adjusted LIBO Rate in accordance with the provisions of Article II.


 


“Event
of Default” shall have the meaning assigned to such term in Section 7.01.


 


“Event
of Loss” shall mean any event that results in Parent or any of its
subsidiaries receiving proceeds from any insurance covering any Satellite owned
by Parent or any of its subsidiaries or in the event that Parent or any of its
subsidiaries receives proceeds from any insurance maintained for it by any
Satellite Manufacturer or any launch provider covering any of such Satellites.


 


“Event
of Loss Proceeds” shall mean, with respect to any Event of Loss, all
Satellite insurance proceeds received by Parent or any of its subsidiaries in
connection with such Event of Loss, after


 


(a)                                  provision
for all income or other taxes measured by or resulting from such Event of Loss;


 


20





















 


(b)                                 payment
of all reasonable legal, accounting and other reasonable fees and expenses
related to such Event of Loss;


 


(c)                                  payment
of amounts required to be applied to the repayment of Indebtedness secured by a
Lien on the Satellite that is the subject of such Event of Loss;


 


(d)                                 provision
for payments to Persons who own an interest in the Satellite (including any
transponder thereon) in accordance with terms of the agreement(s) governing the
ownership of such interest by such Person (other than payments to insurance
carriers required to be made based on the future revenues generated from such
Satellite), and


 


(e)                                  deduction
of appropriate amounts to be provided by Parent or such subsidiary as a
reserve, in accordance with GAAP, against any liabilities associated with the
Satellite that was the subject of the Event of Loss.


 


“Excess
Cash Flow” shall mean, with respect to Holdings and the Subsidiaries on a
consolidated basis for any Excess Cash Flow Period, EBITDA of Holdings and the
Subsidiaries on a consolidated basis for such Excess Cash Flow Period, minus,
without duplication,


 


(a)                                  Debt
Service for such Excess Cash Flow Period,


 


(b)                                 (i)
any voluntary prepayments of Term Loans during such Excess Cash Flow Period,
(ii) any permanent voluntary reductions during such Excess Cash Flow Period of
Revolving Facility Commitments to the extent that an equal amount of Revolving
Facility Loans was simultaneously repaid and (iii) any voluntary prepayment
permitted hereunder of term Indebtedness during such Excess Cash Flow Period to
the extent not financed, or intended to be financed, using the proceeds of the
incurrence of Indebtedness, so long as the amount of such prepayment is not
already reflected in Debt Service,


 


(c)                                  the
aggregate consideration paid in cash during such Excess Cash Flow Period in
respect of Permitted Business Acquisitions and other Investments permitted
hereunder (less any amounts received in respect thereof as a return of
capital),


 


(d)                                 an
amount in respect of Capital Expenditures designated by Parent for such Excess
Cash Flow Period (which amount may be more or less than the actual amount of
Capital Expenditures made by Holdings and its Subsidiaries during such Excess
Cash Flow Period), provided that (i) the amount designated by Parent for
any Excess Cash Flow Period shall not exceed the greater of (x) the actual
amount of Capital Expenditures by Holdings and the Subsidiaries on a
consolidated basis during such Excess Cash Flow Period that are paid in cash
pursuant to Section 6.10(a) or (b), as applicable, and (y) $75.0 million,
and (ii) the aggregate amount designated by Parent for purposes of this
paragraph (d) shall not exceed (x) during the period from 2005 through 2009,
$175.0 million and (y) during the period from 2010 through 2011, an amount
equal to the sum of (A) $150.0 million plus (B) $175.0 million minus the
aggregate amount


 


21





















 


designated by Parent for purposes of this paragraph
(d) during the period referred to in clause (x) above,


 


(e)                                  Taxes
paid in cash by Holdings and its Subsidiaries on a consolidated basis during
such Excess Cash Flow Period or that will be paid within six months after the
close of such Excess Cash Flow Period (provided that any amount so
deducted that will be paid after the close of such Excess Cash Flow Period
shall not be deducted again in a subsequent Excess Cash Flow Period) and for
which reserves have been established, including income tax expense and
withholding tax expense incurred in connection with cross-border transactions
involving the Non-Dutch Subsidiaries,


 


(f)                                    an
amount equal to any increase in Working Capital of Holdings and its
Subsidiaries for such Excess Cash Flow Period,


 


(g)                                 cash
expenditures made in respect of Swap Agreements during such Excess Cash Flow
Period, to the extent not reflected in the computation of EBITDA or Interest
Expense,


 


(h)                                 permitted
dividends or distributions or repurchases of its Equity Interests paid in cash
by Holdings during such Excess Cash Flow Period and permitted dividends paid by
any Subsidiary to any person other than Holdings, Parent or any of the
Subsidiaries during such Excess Cash Flow Period, in each case in accordance
with Section 6.06,


 


(i)                                     amounts
paid in cash during such Excess Cash Flow Period on account of (x) items that
were accounted for as noncash reductions of Net Income in determining
Consolidated Net Income or as non-cash reductions of Consolidated Net Income in
determining EBITDA of Holdings and its Subsidiaries in a prior Excess Cash Flow
Period, (y) reserves or accruals established in purchase accounting and (z) any
other long-term reserves existing on the Closing Date as reflected in the pro
forma balance sheet referred to in Section 3.05(b),


 


(j)                                     to
the extent not deducted in the computation of Net Proceeds in respect of any
asset disposition or condemnation giving rise thereto, the amount of any
mandatory prepayment of Indebtedness (other than Indebtedness created hereunder
or under any other Loan Document), together with any interest, premium or
penalties required to be paid (and actually paid) in connection therewith,


 


(k)                                  the
amount related to items that were added to or not deducted from Net Income in
calculating Consolidated Net Income or were added to or not deducted from
Consolidated Net Income in calculating EBITDA to the extent such items
represented a cash payment (which had not reduced Excess Cash Flow upon the
accrual thereof in a prior Excess Cash Flow Period), or an accrual for a cash
payment, by Holdings and its Subsidiaries or did not represent cash received by
Holdings and its Subsidiaries, in each case on a consolidated basis during such
Excess Cash Flow Period, and


 


(l)                                     Tax
Distributions which are paid during the respective Excess Cash Flow Period or
will be paid within six months after the close of such Excess Cash Flow Period


 


22





















 


(as reasonably determined in good faith by Holdings)
to the extent, in each case, funded by Parent, provided that to the
extent such Tax Distributions are not actually paid within such six month
period such amounts shall be added to Excess Cash Flow the next succeeding
Excess Cash Flow Period,


 


plus,
without duplication,


 


(a)                                  an
amount equal to any decrease in Working Capital for such Excess Cash Flow
Period,


 


(b)                                 all
proceeds received during such Excess Cash Flow Period in respect of Capital
Lease Obligations, purchase money Indebtedness, Sale and Lease-Back
Transactions pursuant to Section 6.03 and any other Indebtedness, in each
case to the extent used to finance any Capital Expenditure (other than
Indebtedness under this Agreement to the extent there is no corresponding
deduction to Excess Cash Flow above in respect of the use of such Borrowings),


 


(c)                                  all
amounts referred to in clause (c) above to the extent funded with the proceeds
of the issuance of Equity Interests of, or capital contributions to, Holdings
after the Closing Date (to the extent not previously used to prepay
Indebtedness (other than Revolving Facility Loans or Swingline Loans), make any
investment or capital expenditure or otherwise for any purpose resulting in a
deduction to Excess Cash Flow in any prior Excess Cash Flow Period) or any
amount that would have constituted Net Proceeds under clause (a) of the
definition of the term “Net Proceeds” if not so spent, in each case to the
extent there is a corresponding deduction from Excess Cash Flow above,


 


(d)                                 to
the extent any permitted Capital Expenditures and the corresponding delivery of
equipment referred to in clause (d) above do not occur in the Excess Cash Flow
Period of Holdings specified in the certificate of Holdings provided pursuant
to clause (d) above, the amount of such Capital Expenditures that were not so
made in the Excess Cash Flow Period of Holdings specified in such certificates,


 


(e)                                  cash
payments received in respect of Swap Agreements during such Excess Cash Flow
Period to the extent (i) not included in the computation of EBITDA or (ii) such
payments do not reduce Cash Interest Expense,


 


(f)                                    any
extraordinary or nonrecurring gain realized in cash during such Excess Cash
Flow Period (except to the extent such gain consists of Net Proceeds subject to
Section 2.11(c)),


 


(g)                                 to
the extent deducted in the computation of EBITDA, cash interest income, and


 


(h)                                 the
amount related to items that were deducted from or not added to Net Income in
connection with calculating Consolidated Net Income or were deducted from or
not added to Consolidated Net Income in calculating EBITDA to the extent either
(x) such items represented cash received by Holdings or any Subsidiary or
(y) does not


 


23





















 


represent cash paid by Holdings or any Subsidiary, in
each case on a consolidated basis during such Excess Cash Flow Period.


 


“Excess
Cash Flow Period” shall mean (i) the period taken as one accounting period
beginning on January 1, 2005 and ending on June 30, 2005 and (ii)
each fiscal year of Holdings ending thereafter.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


“Exchange
Rate” shall mean on any day, for purposes of determining the Dollar
Equivalent or Euro Equivalent of any other currency, the rate at which such
other currency may be exchanged into Dollars or Euros (as applicable), as set
forth in the Wall Street Journal published on such date for such currency.  In the event that such rate does not appear
in such copy of the Wall Street Journal, the Exchange Rate shall be determined
by reference to such other publicly available service for displaying exchange
rates as may be agreed upon by the Administrative Agent and Parent, or, in the
absence of such an agreement, such Exchange Rate shall instead be the
arithmetic average of the spot rates of exchange of the Administrative Agent in
the market where its foreign currency exchange operations in respect of such
currency are then being conducted, at or about 10:00 a.m., Local Time, on such
date for the purchase of Dollars or Euros (as applicable) for delivery two
Business Days later; provided that if at the time of any such
determination, for any reason, no such spot rate is being quoted, the
Administrative Agent may, in consultation with Parent, use any reasonable
method it deems appropriate to determine such rate, and such determination
shall be prima facie evidence thereof.


 


“Excluded
Equity Issuances” shall mean (i) the issuance of Equity Interests by
Holdings to Blackstone or any other Permitted Investor, (ii) the issuance of
Equity Interests by Holdings the proceeds of which are used to fund Investments
permitted by Section 6.04, (iii) Equity Interests issued by Holdings
(x) as compensation to employees of Holdings or any of its Subsidiaries or (y)
to members of management of Holdings or any Subsidiary within one year of the
Closing Date, in each case in the ordinary course of business and (iv)
Permitted Cure Securities.


 


“Excluded
Indebtedness” shall mean all Indebtedness permitted to be incurred under Section 6.01
(other than (a) Section 6.01(o) and (b) Section 6.01(s) unless the
proceeds thereof are used to finance a Permitted Business Acquisition as and to
the extent permitted by such Section 6.01(s)).


 


“Excluded
Payload” shall mean, for any Satellite, any C-band, Ku-band or Ka-band
payload that is not expected or intended, in the good faith determination of
the Management Board of Parent and evidenced by a resolution of the Management
Board delivered to the Administrative Agent, to earn revenues from the
operation of such payload in excess of $10.0 million for the immediately
succeeding 12-month period.


 


“Excluded
Satellite” shall mean any Satellite (i) that is not expected or intended,
in the good faith determination of the Management Board of Parent and evidenced
by a resolution of the Management Board delivered to the Administrative Agent,
to earn revenues from the operation of such Satellite in excess of $20.0
million for the immediately succeeding


 


24


















 


12-month period or
(ii) that has a net book value not in excess of $50.0 million or (iii) that due
to failures or anomalies affecting the Satellite or affecting other Satellites
of the same model or series or that employ the same or similar systems or components
(1) the procurement of In-Orbit Insurance therefor in the amount and on the
terms required by this Agreement would not be available for a price that is,
and on other terms and conditions that are, commercially reasonable or (2) such
In-Orbit Insurance would be subject to exclusions or limitations of coverage
that would make the terms of the insurance commercially unreasonable, in either
case, as determined in good faith by the Management Board of Parent and
evidenced by a resolution of the Management Board delivered to the
Administrative Agent or (iv) for which In-Orbit Spare Capacity is available or
(v) whose primary purpose is to provide In-Orbit Spare Capacity for Parent’s
other Satellites and otherwise that is not expected or intended, in the good
faith determination of the Management Board of Parent and evidenced by a
resolution of the Management Board delivered to the Administrative Agent, to
earn revenues from the operation of such Satellite in excess of $20.0 million
for the immediately succeeding 12-month period.


 


“Excluded Taxes”
shall mean, with respect to the Administrative Agent, any Lender, any Issuing
Bank or any other recipient of any payment to be made by or on account of any
obligation of a Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income by the jurisdiction under the laws of which
such recipient is organized or in which its principal office is located or, in
the case of any Lender, in which its applicable lending office is located, (b)
any branch profits tax or any similar tax that is imposed by any jurisdiction
described in clause (a) above and (c) in the case of a Lender (other than an
assignee pursuant to a request by a Borrower under Section 2.19(b)), any
withholding tax imposed by the United States (other than a withholding tax
levied upon any amounts payable to such Lender in respect of any interest in
any Loan acquired by such Lender pursuant to Section 10.01) that is in
effect and would apply to amounts payable hereunder to such Lender at the time
such Lender becomes a party to this Agreement (or designates a new lending
office) or is attributable to such Lender’s failure to comply with Section 2.17(e)
with respect to such Loans except to the extent that such Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from a Borrower with
respect to any withholding tax pursuant to Section 2.17(a).


 


“Exemption Regulation”
shall mean the Exemption Regulation of the Ministry of Finance of The
Netherlands dated June 26, 2002, as promulgated in connection with the
Dutch Act on the Supervision of Credit Institutions 1992 (wet toezicht kredietwezen 1992), as
amended from time to time.


 


“Existing Letter of
Credit” shall mean each letter of credit previously issued for the account
of Parent or any of its subsidiaries by a Person that is a Lender on the
Closing Date (or an Affiliate of such Person) to the extent such letter of
credit (a) was outstanding on the Closing Date and (b) is listed on Schedule 2.05(a).


 


“Facility” shall
mean the respective facility and commitments utilized in making Loans and
credit extensions hereunder, it being understood that as of the date of this
Agreement there are two Facilities, i.e., the Term Loan Facility and the
Revolving Facility.


 


25





















 


“FCC” means the
Federal Communications Commission or any governmental authority in the United
States substituted therefor.


 


“FCC Licenses”
shall mean all authorizations, orders, licenses and permits issued by the FCC
to Holdings or any of its Subsidiaries, under which Holdings or any of its
Subsidiaries is authorized to launch and operate any of its Satellites or to
operate any of its transmit only, receive only or transmit and receive earth
stations.


 


“Federal Funds
Effective Rate” shall mean, for any day, the weighted average (rounded
upward, if necessary, to the next 1/100 of 1%) of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day which is a Business Day, the average (rounded upward, if necessary, to
the next 1/100 of 1%) of the quotations for the day of such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.


 


“Fee Letter” shall
mean that certain Fee Letter dated May 24, 2004, as amended by those certain
letter agreements dated as of May 27, 2004 and June 4, 2004, by and among
Neptune, the Administrative Agent, the Syndication Agent and the Joint Lead
Arrangers.


 


“Fees” shall mean
the Revolving Facility Commitment Fees, the L/C Participation Fees, the Issuing
Bank Fees and the Administrative Agent Fees.


 


“Financial Officer”
of any person shall mean the Chief Financial Officer, principal accounting
officer, Treasurer, Assistant Treasurer or Controller of such person.


 


“Financial Performance
Covenants” shall mean the covenants of Holdings set forth in Sections 6.11
and 6.12.


 


“Flow Through Entity”
shall mean an entity that is treated as a partnership not taxable as a
corporation, a grantor trust or a disregarded entity for United States federal
income tax purposes or subject to treatment on a comparable basis for purposes
of state, local or foreign tax law.


 


“FSS Operators”
shall mean each of (i) PanAmSat Corporation, (ii) Intelsat, Ltd., (iii) SES
Global, (iv) Eutelsat S.A. and (v) any successor entities of each of the
foregoing.


 


“Governmental
Authority” shall mean any federal, state, local or foreign court or
governmental agency, authority, instrumentality or regulatory or legislative
body.


 


“Guarantee” of or
by any person (the “guarantor”) shall mean (a) any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other person
(the “primary obligor”) in any manner, whether directly or indirectly,
and including any obligation of the guarantor, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep well, to purchase assets, goods, securities
or services, to take or pay or


 


26





















 


otherwise) or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (iii) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation, (iv) entered into for the purpose of
assuring in any other manner the holders of such Indebtedness or other
obligation of the payment thereof or to protect such holders against loss in
respect thereof (in whole or in part) or (v) as an account party in respect of
any letter of credit or letter of guaranty issued to support such Indebtedness
or other obligation, or (b) any Lien on any assets of the guarantor securing
any Indebtedness (or any existing right, contingent or otherwise, of the holder
of Indebtedness to be secured by such a Lien) of any other person, whether or
not such Indebtedness or other obligation is assumed by the guarantor; provided,
however, that the term “Guarantee” shall not include endorsements for
collection or deposit, in either case in the ordinary course of business, or
customary and reasonable indemnity obligations.


 


“Hazardous Materials”
shall mean all pollutants, contaminants, wastes, chemicals, materials,
substances and constituents, including, without limitation, explosive or
radioactive substances or petroleum or petroleum distillates, asbestos or
asbestos containing materials, polychlorinated biphenyls or radon gas, of any
nature subject to regulation or which could reasonably be expected to give rise
to liability under any Environmental Law.


 


“HC Activities”
shall mean such activities to be undertaken by Holdings as reasonably
determined by Holdings to be required to enable Holdings to satisfy the
requirements of Dutch tax law regarding the head of a fiscal unity.


 


“HC Investments”
shall mean investments made by Holdings to satisfy the requirements of Dutch tax
law fiscal unity requirements.


 


“Holdings” shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.


 


“Holdings Agreements”
shall mean (i) the Holdings Guarantee, as amended, supplemented or otherwise
modified from time to time, substantially in the form of Exhibit F-1 between
Holdings and the Collateral Agent pursuant to which Holdings guarantees the
Obligations, (ii) an Agreement of Disclosed Pledge of Intercompany Loan
Agreement between Holdings and the Collateral Agent, as amended, supplemented
or otherwise modified from time to time, substantially in the form of Exhibit
F-2 and (iii) an Agreement and Deed of Pledge of Shares in New Skies
Satellites B.V., between Holdings and the Collateral Agent, as amended, supplemented
or otherwise modified from time to time, substantially in the form of Exhibit
F-3.


 


“In-Orbit Insurance”
shall mean, with respect to any Satellite, insurance or other contractual
arrangement providing for coverage against the risk of loss of or damage to
such Satellite attaching upon the expiration of the launch insurance therefor
and renewing, during the commercial in-orbit service of such Satellite, prior
to the expiration of the immediately preceding corresponding In-Orbit Insurance
policy.


 


27





















 


“In-Orbit Spare
Capacity” shall mean transponder capacity that in the good faith judgment
of the Management Board of Parent and evidenced by a resolution of the
Management Board of Parent as set forth in an officers’ certificate:


 


(a)                                  is available at all times in the event of
a Satellite loss or failure to restore service for at least 25% of the
revenue-generating capacity on the Satellite;


 


(b)                                 meets or exceeds the contractual
performance specifications for the transponders being protected; and


 


(c)                                  may be provided directly by Parent or by
another FSS Operator or another Satellite operator pursuant to a contractual
arrangement;


 


provided that if such “In-Orbit Spare Capacity”
is available with respect to less than 100% of the revenue-generating
transponder capacity on a Satellite, that Satellite shall be deemed to be
insured for the percentage of the Satellite’s net book value for which In-Orbit
Spare Capacity is available.


 


“Indebtedness” of
any person shall mean, without duplication, (a) all obligations of such person
for borrowed money, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
under conditional sale or other title retention agreements relating to property
or assets purchased by such person, (d) all obligations of such person issued
or assumed as the deferred purchase price of property or services (other than
current trade liabilities and current intercompany liabilities (but not any
refinancings, extensions, renewals or replacements thereof) incurred in the
ordinary course of business and maturing within 365 days after the incurrence
thereof and reimbursement obligations in respect of trade letters of credit
obtained in the ordinary course of business with expiration dates not in excess
of 365 days from the date of issuance (x) to the extent undrawn or (y) if
drawn, to the extent repaid in full within 10 Business Days of any such
drawing), (e) all Guarantees by such person of Indebtedness of others, (f) all
Capital Lease Obligations of such person, (g) all payments that such person
would have to make in the event of an early termination, on the date
Indebtedness of such person is being determined, in respect of outstanding Swap
Agreements, (h) except as provided in clause (d) above, the principal component
of all obligations, contingent or otherwise, of such person as an account party
in respect of letters of credit and (i) the principal component of all
obligations of such person in respect of bankers’ acceptances; provided,
that Indebtedness shall be deemed not to include (x) obligations to make
payments to one or more insurers under satellite insurance policies in respect
of premiums or the requirement to remit to such insurer(s) a portion of the
future revenues generated by a Satellite which has been declared a constructive
total loss, in each case in accordance with the terms of the insurance policies
relating thereto or (y) any obligations to make progress or incentive payments
under any satellite manufacturing contract or to make payments under satellite
launch contracts in respect of launch services provided thereunder, in each
case, to the extent not overdue by more than 90 days.  The Indebtedness of any person shall include
the Indebtedness of any partnership in which such person is a general partner,
other than to the extent that the instrument or agreement evidencing such
Indebtedness expressly limits the liability of such person in respect thereof.


 


28





















 


“Indemnified Taxes”
shall mean all Taxes other than Excluded Taxes.


 


“Indemnitee” shall
have the meaning assigned to such term in Section 9.05(b).


 


“Information
Memorandum” shall mean the Confidential Information Memorandum to be
provided to prospective Lenders, as modified or supplemented.


 


“Initial Lenders”
shall mean DBAG and ABN.


 


“Installment Date”
shall have the meaning assigned to such term in Section 2.10(a).


 


“Intercreditor
Agreement” shall mean an intercreditor agreement entered into in connection
with a Permitted Receivables Financing in form and substance reasonably
satisfactory to the Administrative Agent.


 


“Interest Coverage
Ratio” shall have the meaning assigned to such term in Section 6.11.


 


“Interest Election
Request” shall mean a request by a Borrower to convert or continue a Term
Loan Borrowing or Revolving Facility Borrowing in accordance with Section 2.07.


 


“Interest Expense”
shall mean, with respect to any person for any period, the sum of (a) gross
interest expense of such person for such period on a consolidated basis,
including (i) the amortization of debt discounts, (ii) the amortization of
all fees (including fees with respect to Swap Agreements) payable in connection
with the incurrence of Indebtedness to the extent included in interest expense,
(iii) the portion of any payments or accruals with respect to Capital Lease
Obligations allocable to interest expense and (iv) commissions, discounts,
yield and other fees and charges incurred in connection with any Permitted
Receivables Financing which are payable to any person other than Holdings,
Parent or a Subsidiary Loan Party and (b) capitalized interest expense of such
person for such period, but in any event excluding interest expense in respect
of performance incentive payments.  For
purposes of the foregoing, gross interest expense shall be determined after
giving effect to any net payments made or received and costs incurred by
Holdings and the Subsidiaries with respect to Swap Agreements.


 


“Interest Payment Date”
shall mean (a) with respect to any Eurocurrency Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and,
in the case of a Eurocurrency Borrowing with an Interest Period of more than
three months’ duration, each day that would have been an Interest Payment Date
had successive Interest Periods of three months’ duration been applicable to
such Borrowing and, in addition, the date of any refinancing or conversion of
such Borrowing with or to a Borrowing of a different Type, (b) with
respect to any ABR Loan, the last day of each calendar quarter, (c) with
respect to any Swingline Dollar Loan, the day that such Swingline Dollar Loan
is required to be repaid pursuant to Sections 2.09(a) and (d) with respect to
any Swingline Euro Loan, the last day of the Interest Period applicable to such
Swingline Euro Loan or any day otherwise agreed to by the Swingline Euro
Lenders.


 


29





















 


“Interest Period”
shall mean (a) as to any Eurocurrency Borrowing, the period commencing on the
date of such Borrowing or on the last day of the immediately preceding Interest
Period applicable to such Borrowing, as applicable, and ending on the
numerically corresponding day (or, if there is no numerically corresponding
day, on the last day) in the calendar month that is 1, 2, 3 or 6 months
thereafter (or 9 or 12 months, if at the time of the relevant Borrowing, all
relevant Lenders make interest periods of such length available), as the applicable
Borrower may elect, or the date any Eurocurrency Borrowing is converted to an
ABR Borrowing in accordance with Section 2.07 or repaid or prepaid in
accordance with Section 2.09, 2.10 or 2.11 and (b) as to any Swingline
Euro Borrowing, the period commencing on the date of such Borrowing and ending
on the day that is designated in the notice delivered pursuant to Section 2.04
with respect to such Swingline Euro Borrowing, which shall not be later than
the seventh day thereafter; provided, however, that if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day.  Interest shall accrue from and including the
first day of an Interest Period to but excluding the last day of such Interest
Period.


 


“Investor Financing”
shall mean subordinated Indebtedness of Holdings owed to the Equity Investors
as evidenced by the Investor Financing Document.


 


“Investor Financing
Document” shall mean the Subordinated Intercompany Loan Agreement dated as
of November 2, 2004, between New Skies Investments and Holdings,
substantially in the form of Exhibit K, as amended, modified or
supplemented from time to time in accordance with the terms thereof and hereof.


 


“Issuing Bank”
shall mean DBAG and each other Issuing Bank designated pursuant to Section 2.05(k),
in each case in its capacity as an issuer of Letters of Credit hereunder, and
its successors in such capacity as provided in Section 2.05(i) and, solely
with respect to an Existing Letter of Credit (and any amendment, renewal or
extension thereof in accordance with this Agreement), the Lender that issued
such Existing Letter of Credit.  An
Issuing Bank may, in its discretion, arrange for one or more Letters of Credit
to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing
Bank” shall include any such Affiliate with respect to Letters of Credit issued
by such Affiliate.


 


“Issuing Bank Fees”
shall have the meaning assigned to such term in Section 2.12(b).


 


“Joint Lead Arrangers”
shall have the meaning assigned to such term in the introductory paragraph of
this Agreement.


 


“Judgment Currency”
shall have the meaning assigned to such term in Section 9.17(b).


 


“JV Reinvestment”
shall mean any investment by Parent or any Subsidiary in a joint venture to the
extent funded with the proceeds of a reasonably concurrent dividend or other
distribution made by such joint venture.


 


30





















 


“L/C Disbursement”
shall mean a payment or disbursement made by an Issuing Bank pursuant to a
Letter of Credit.


 


“L/C Participation Fee”
shall have the meaning assigned such term in Section 2.12(b).


 


“Lender” shall
mean each financial institution listed on Schedule 2.01, as well as
any person that becomes a “Lender” hereunder pursuant to Section 9.04.


 


“Lender Default”
shall mean (i) the refusal (which has not been retracted) of a Lender to make
available its portion of any Borrowing, to acquire participations in a
Swingline Loan pursuant to Section 2.04 or to fund its portion of any
unreimbursed payment under Section 2.05(e), or (ii) a Lender having notified
in writing the applicable Borrower and/or the Administrative Agent that it does
not intend to comply with its obligations under Section 2.04, 2.05 or
2.06.


 


“Letter of Credit”
shall mean any letter of credit (including each Existing Letter of Credit)
issued pursuant to Section 2.05.


 


“LIBO Rate” shall
mean, with respect to any Eurocurrency Borrowing for any Interest Period, the
rate per annum determined by the Administrative Agent at approximately 11:00
a.m., London time, on the Quotation Day for such Interest Period by reference
to the applicable Screen Rate, for a period equal to such Interest Period; provided
that, to the extent that an interest rate is not ascertainable pursuant to the
foregoing provisions of this definition, the “LIBO Rate” shall be the average
(rounded upward, if necessary, to the next 1/100 of 1%) of the respective
interest rates per annum at which deposits in the currency of such Borrowing
are offered for such Interest Period to major banks in the London interbank
market by DBAG at approximately 11:00 a.m., London time, on the Quotation Day
for such Interest Period.


 


“License Subsidiary”
shall mean a wholly owned subsidiary of Parent formed for the purpose of
holding Subject Licenses to be issued to Parent or any of its Subsidiaries in
the operation of their respective businesses and all of the shares of capital
stock and other ownership interest of which are held directly by Parent.


 


“Lien” shall mean,
with respect to any asset, (a) any mortgage, deed of trust, lien, hypothecation,
pledge, encumbrance, charge or security interest in or on such asset and (b)
the interest of a vendor or a lessor under any conditional sale agreement,
capital lease or title retention agreement (or any financing lease having
substantially the same economic effect as any of the foregoing) relating to
such asset.


 


“Loan Documents”
shall mean this Agreement, the Letters of Credit, the Security Documents, the
Intercreditor Agreement and any promissory note issued under Section 2.09(e),
and solely for the purposes of Section 7.01(c) hereof, the Fee Letter.


 


“Loan Participant”
shall have the meaning assigned to such term in Section 9.04(c).


 


“Loan Parties”
shall mean Holdings, Parent and each Subsidiary Loan Party.


 


31





















 


“Loans” shall mean
the Term Loans, the Revolving Facility Loans and the Swingline Loans (and shall
include any Replacement Term Loans).


 


“Local Time” shall
mean (a) with respect to a Loan or Borrowing denominated in Dollars, New York
City time and (b) with respect to a Loan or Borrowing denominated in Euros,
London time.


 


“Majority Lenders”
(i) for the Revolving Facility, shall mean, at any time, Lenders under such
Facility having Revolving Facility Loans and unused Revolving Facility
Commitments representing more than 50% of the sum of all Revolving Facility
Loans outstanding under the Revolving Facility and unused Revolving Facility
Commitments at such time and (ii) for the Term Loan Facility, Lenders having
Term Loans and Term Loan Commitments representing more than 50% of the sum of
all Term Loans and Term Loan Commitments.


 


“Management Group”
shall mean the group consisting of the directors, executive officers and other
management personnel of Parent and Holdings, as the case may be, on the Closing
Date together with (1) any new directors whose election or whose nomination for
election was approved by a vote of a majority of the directors of Parent or
Holdings, as the case may be, then still in office who were either directors on
the Closing Date or whose election or nomination was previously so approved and
(2) executive officers and other management personnel of Parent or Holdings, as
the case may be, hired at a time when the directors on the Closing Date
together with the directors so appointed constituted a majority of the
directors of Parent or Holdings, as the case may be.


 


“Mandatory Costs Rate”
shall have the meaning provided in Exhibit J.


 


“Margin Adjustment
Period” shall mean each period which shall commence on the date upon which
the respective officer’s certificate is delivered pursuant to Section 5.04(c)
(together with the related financial statements pursuant to Section 5.04(a)
or (b), as the case may be) and which shall end on the earlier of the date of
actual delivery of the next officer’s certificate pursuant to Section 5.04(c)
(and related financial statements) and the latest date on which such next
officer’s certificate (and related financial statements) is required to be so
delivered.


 


“Margin Stock”
shall have the meaning assigned to such term in Regulation U.


 


“Material Adverse
Effect” shall mean the existence of events, conditions and/or contingencies
that have had or are reasonably likely to have (a) a materially adverse
effect on the business, operations, properties, assets or financial condition
of Holdings and the Subsidiaries, taken as a whole, or (b) a material
impairment of the validity or enforceability of, or a material impairment of
the material rights, remedies or benefits available to the Lenders, any Issuing
Bank, the Administrative Agent or the Collateral Agent under any Loan Document.


 


“Material Indebtedness”
shall mean Indebtedness (other than Loans and Letters of Credit) of any one or
more of Holdings or any Subsidiary in an aggregate principal amount exceeding $10.0
million.


 


32





















 


“Material Subsidiary”
shall mean, at any date of determination, any Subsidiary (a) whose total assets
at the last day of the Test Period ending on the last day of the most recent
fiscal period for which financial statements have been delivered pursuant to Section 5.04(a)
or (b) were equal to or greater than 2.5% of the consolidated total assets of
Holdings and its consolidated subsidiaries at such date or (b) whose gross
revenues for such Test Period were equal to or greater than 2.5% of the
consolidated gross revenues of Holdings and its consolidated subsidiaries for
such period, in each case determined in accordance with US GAAP or (c) that is
a Loan Party; provided that for purposes of clause (ii) of the
definition of “Subsidiary Loan Party”, New Skies Networks Pty Ltd. shall
not be deemed to be a Material Subsidiary so long as such Person is restricted
by applicable law from becoming a Subsidiary Loan Party or material adverse tax
consequences for Holdings and its Subsidiaries taken as a whole are reasonably
likely (as reasonably determined by Parent) to result if such Person became a
Subsidiary Loan Party.


 


“Maximum Credit Limit”
shall mean, with respect to any Revolving Facility Borrower (other than
Parent), an amount that the aggregate outstanding principal amount (or the
Dollar Equivalent thereof if not denominated in Dollars) of its Revolving
Facility Loans and Swingline Loans (if any) plus the maximum stated amount (or
the Dollar Equivalent thereof if not denominated in Dollars) of outstanding
Letters of Credit issued for its account may not exceed (as set forth in the
respective Revolving Borrower Agreement in the case of Persons that become
Revolving Facility Borrowers after the Closing Date).


 


“Maximum Rate”
shall have the meaning assigned to such term in Section 9.09.


 


“Moody’s” shall
mean Moody’s Investors Service, Inc.


 


“Mortgaged Properties”
shall mean the owned real properties of Parent set forth on Schedule 3.18(a)
and designated therein as “Mortgaged Properties” and such additional real
property (if any) of Loan Parties encumbered by a Mortgage pursuant to Section 5.10.


 


“Mortgages” shall
mean the mortgages, deeds of trust, assignments of leases and rents and other
security documents delivered pursuant to Sections 4.02(e) or 5.10, as amended,
supplemented or otherwise modified from time to time, with respect to Mortgaged
Properties each in a form reasonably satisfactory to the Administrative Agent.


 


“Multiemployer Plan”
shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA
to which Holdings, Parent, the Company or any ERISA Affiliate (other than one
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Code Section 414) is making or accruing an obligation to make
contributions, or has within any of the preceding six plan years made or
accrued an obligation to make contributions.


 


“Neptune” shall
have the meaning assigned to such term in the second recital to this Agreement.


 


“Net Income” shall
mean, with respect to any person, the net income (loss) of such person,
determined in accordance with US GAAP and before any reduction in respect of
preferred stock dividends.


 


33





















 


“Net Proceeds”
shall mean:


 


(a)                                  100% of the cash proceeds actually
received by Holdings, Parent or any of their Subsidiaries (including any cash
payments received by way of deferred payment of principal pursuant to a note or
installment receivable or purchase price adjustment receivable or otherwise and
including casualty insurance settlements and condemnation awards, but only as
and when received) from any loss, damage, destruction or condemnation of, or
any sale, transfer or other disposition (including any sale and leaseback of assets
and any mortgage or lease of real property) to any person of any asset or
assets of Holdings or any Subsidiary (other than those pursuant to Section 6.05(a),
(b), (c), (e), (f), (g), (i), (j), (k), (l) or (p)), net of (i) attorneys’
fees, accountants’ fees, investment banking fees, survey costs, title insurance
premiums, and related search and recording charges, transfer taxes, deed or
mortgage recording taxes, required debt payments and required payments of other
obligations relating to the applicable asset (other than pursuant hereto or
pursuant to the Senior Notes, the Senior Subordinated Notes or any Permitted
Senior Subordinated Debt Securities), other customary expenses and brokerage,
consultant and other customary fees actually incurred in connection therewith,
(ii) Taxes or Tax Distributions paid or payable as a result thereof and (iii)
appropriate amounts set up as a reserve against liabilities associated with the
assets or business so disposed of and retained by the selling entity after such
sale, transfer or other disposition, as reasonably determined by Holdings,
including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters, liabilities related
to post-closing purchase price adjustments and liabilities related to any other
indemnification obligation associated with the assets or business so disposed
of, provided that, upon any termination of such reserve, all amounts not
paid-out in connection therewith shall be deemed to be “Net Proceeds” of such
sale, transfer or other disposition, provided that, if no Event of
Default exists and Holdings shall deliver a certificate of a Responsible
Officer of Holdings to the Administrative Agent promptly following receipt of
any such proceeds setting forth Holdings’ intention to use or contractually
commit to use any portion of such proceeds to acquire, maintain, develop,
construct, improve, upgrade or repair assets useful in the business of Holdings
and the Subsidiaries, or make investments pursuant to Section 6.04(m), in
each case within 12 months of such receipt such portion of such proceeds shall
not constitute Net Proceeds except to the extent not so used (or contractually
committed to be used) within such 12-month period (provided that if
contractually committed to be used within such 12-month period and the
respective contract is thereafter terminated or otherwise cancelled, any unused
amount shall constitute Net Proceeds unless such amounts are again
contractually committed to be used within nine months following such
termination or cancellation), and provided, further, that no
proceeds realized in a single transaction or series of related transactions
shall constitute Net Proceeds unless such proceeds shall exceed $5.0 million,


 


(b)                                 100% of the cash proceeds from the
incurrence, issuance or sale by Holdings or any Subsidiary of any Indebtedness
(other than Excluded Indebtedness), net of all taxes and fees (including
investment banking fees), commissions, costs and other expenses, in each case
incurred in connection with such issuance or sale, and


 


34





















 


(c)                                  the Equity Percentage of the cash
proceeds from the issuance or sale by Holdings of any Equity Interests (other
than Excluded Equity Issuances), net of all taxes and fees (including
investment banking fees), commissions, costs and other expenses, in each case
incurred in connection with such issuance or sale.


 


For
purposes of calculating the amount of Net Proceeds, fees, commissions and other
costs and expenses payable to Holdings or Parent or any Affiliate of either of
them shall be disregarded, except for financial advisory fees customary in type
and amount paid to Blackstone.


 


“New Skies Investments” shall have the meaning assigned to such
term in the first recital to this Agreement.


 


“Non-Consenting Lender”
shall have the meaning assigned to such term in Section 2.19(c).


 


“Non-Dutch Subsidiary”
shall mean any Subsidiary that is incorporated or organized under the laws of
any jurisdiction other than The Netherlands.


 


“Non-Subsidiary Loan
Party” shall mean any Subsidiary that is not a Subsidiary Loan Party.


 


“Non-U.S. Lender”
shall mean any Lender that is organized under the laws of a jurisdiction other
than the United States of America.  For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.


 


“Non-U.S. Pension Plan” shall mean any plan,
fund (including, without limitation, any superannuation fund) or other similar
program established or maintained outside the United States of America by New
Skies Investments, Parent, Holdings, the Company or any Subsidiary primarily
for the benefit of employees of New Skies Investments, Parent, Holdings, the
Company or any Subsidiary residing outside the United States of America, which
plan, fund or other similar program provides, or results in, retirement income,
a deferral of income in contemplation of retirement or payments to be made upon
termination of employment, and which plan is not subject to ERISA or the Code.


 


“Non-U.S. Subsidiary”
shall mean any Subsidiary that is incorporated or organized under the laws of
any jurisdiction other than the United States of America, any State thereof or
the District of Columbia.


 


“NSS-8” shall mean
a Satellite being or to be constructed by Boeing pursuant to a contract with
Parent, and designated by Parent as “NSS-8.”


 


“NSS-8 Asset Sale
Proceeds” shall mean any proceeds received by Holdings, Parent or any of
their subsidiaries from any NSS-8 Asset Sale or Termination.


 


“NSS-8 Asset Sale or
Termination” shall mean any sale, transfer, conveyance or other disposition
of NSS-8, or any sale, transfer, conveyance or other disposition of rights
related


 


35





















 


to NSS-8, or any
termination or satisfaction of any obligations pursuant to the construction
contract with Boeing related to NSS-8.


 


“NSS-8 Proceeds
Reinvestment Option” shall mean the option of Parent to retain the NSS-8
Asset Sale Proceeds for reinvestment in the business of Parent and its
Subsidiaries instead of applying such NSS-8 Asset Sale Proceeds as provided in
Sections 2.11(c) and 6.06(f); provided that (i) as to any NSS-8 Asset
Sale Proceeds, such option shall lapse unless exercised by Parent by written
notice thereof to the Administrative Agent within 30 days following receipt of
such NSS-8 Asset Sale Proceeds, (ii) in the event that any NSS-8 Asset Sale
Proceeds are not used (or contractually committed to be used) within twelve
months following the date of receipt, then at the end of such twelve month
period any portion of such NSS-8 Asset Sale Proceeds which has not been so used
(or contractually committed to be used) shall be applied to prepay Term Loan
Borrowings and/or Revolving Facility Borrowings in accordance with paragraph
(c) of Section 2.10 and to make the dividend described in Section 6.06(f)
and (iii) in the event that any NSS-8 Asset Sale Proceeds are contractually
committed to be used within twelve months following the date of receipt and the
respective contract is thereafter terminated or otherwise cancelled, then,
unless such amounts are again contractually committed to be used within nine
months following the date of such termination or cancellation, any unused
portion of such NSS-8 Asset Sale Proceeds shall be applied to prepay Term Loan
Borrowings and/or Revolving Facility Borrowings in accordance with paragraph
(c) of Section 2.10 and to make the dividend described in Section 6.06(f)
at the end of such nine month period.


 


“Obligations”
shall mean all amounts owing to the Administrative Agent, any Issuing Bank or
any Lender pursuant to the terms of this Agreement or any other Loan Document.


 


“Other Pledge
Agreement” shall mean a pledge agreement entered into by a Loan Party
(other than any Loan Party organized under the laws of the Netherlands)
pursuant to clause (d) of the definition of Collateral and Guarantee
Requirements.


 


“Other Taxes”
shall mean any and all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any
payment made hereunder or from the execution, delivery or enforcement of, or
otherwise with respect to, the Loan Documents, and any and all interest and
penalties related thereto.


 


“Parallel Debt
Obligation” shall have the meaning assigned to such term in Section 9.19(a).


 


“Parent” shall
have the meaning assigned to such term in the introductory paragraph of this
Agreement.


 


“Parent Company”
shall have the meaning assigned to such term in the definition of “Change of
Control” in this Agreement.


 


“Parent Guarantee and
U.S. Pledge Agreement” shall mean the Parent Guarantee and U.S. Pledge
Agreement, as amended, supplemented or otherwise modified from time to time,
substantially in the form of Exhibit G between Parent and the
Collateral Agent, pursuant to which Parent guarantees the Obligations of the
Subsidiary Revolving Borrowers (if any) and


 


36





















 


pledges all Equity
Interests it directly owns of U.S. Subsidiaries to secure its Obligations and
its guarantee of the Obligations of the Subsidiary Revolving Borrowers (if
any).


 


“Parent Investor
Financing” shall mean any Indebtedness of Parent referred to in Section 6.01(l)(iv).


 


“Parent Investor
Financing Document” shall mean the Subordinated Intercompany Loan Agreement
dated as of November 2, 2004, between Holdings and Parent, substantially
in the form of Exhibit L, as amended, modified or supplemented from time to
time in accordance with the terms thereof and hereof.


 


“Participant”
shall have the meaning assigned to such term in Section 2.05(d).


 


“PBGC” shall mean
the Pension Benefit Guaranty Corporation referred to and defined in ERISA.


 


“Permitted Business
Acquisition” shall mean any acquisition of all or any portion of the assets
of, or all the Equity Interests (other than directors’ qualifying shares) in, a
Person or division or line of business of a Person (or any subsequent
investment made in a Person, division or line of business previously acquired
in a Permitted Business Acquisition) if (a) such acquisition was not preceded
by, or effected pursuant to, an unsolicited or hostile offer and (b)
immediately after giving effect thereto: 
(i) no Event of Default shall have occurred and be continuing or would
result therefrom; (ii) all transactions related thereto shall be consummated in
accordance with all material applicable laws; and (iii) (A) Holdings and the
Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect
to such acquisition or formation, with the Financial Performance Covenants
recomputed as at the last day of the most recently ended fiscal quarter of
Holdings and the Subsidiaries, and Holdings shall have delivered to the
Administrative Agent a certificate of a Responsible Officer of Holdings to such
effect, together with all relevant financial information for such Subsidiary or
assets, (B) any acquired or newly formed Subsidiary shall not be liable for any
Indebtedness (except for Indebtedness permitted by Section 6.01) and (C)
all actions required to be taken, if any, with respect to such acquired or
newly formed Subsidiary under Section 5.10 shall have been taken.


 


“Permitted Cure
Securities” shall mean (i) any common equity securities of Holdings and/or
(ii) any other equity securities of Holdings having no mandatory redemption,
repurchase or similar requirements prior to 91 days after the Term Loan
Maturity Date, and upon which all dividends or distributions (if any) shall be
payable solely in additional shares of such equity securities.


 


“Permitted Holder”
shall mean each of (i) Blackstone, (ii) any other Permitted Investor and (iii)
the Management Group, with respect to not more than 15% of the total voting
power of the Equity Interests of Holdings or, after an initial public offering
of its stock, any Parent Company of Holdings, as the case may be.


 


“Permitted Investments”
shall mean:


 


(a)                                  direct obligations of the United States
of America or any member of the European Union or any agency thereof or
obligations guaranteed by the United States of


 


37





















 


America or any
member of the European Union or any agency thereof, in each case with
maturities not exceeding two years;


 


(b)                                 time deposit accounts, certificates of
deposit and money market deposits maturing within 180 days of the date of
acquisition thereof issued by a bank or trust company that is organized under
the laws of the United States of America, any state thereof or any foreign
country recognized by the United States of America having capital, surplus and
undivided profits having a Dollar Equivalent that is in excess of $500 million
and whose long-term debt, or whose parent holding company’s long-term debt, is
rated A by S&P (or such similar equivalent rating or higher by at least one
nationally recognized statistical rating organization (as defined in Rule 436
under the Securities Act));


 


(c)                                  repurchase obligations with a term of not
more than 180 days for underlying securities of the types described in clause
(a) above entered into with a bank meeting the qualifications described in
clause (b) above;


 


(d)                                 commercial paper, maturing not more than
one year after the date of acquisition, issued by a corporation (other than an
Affiliate of any Borrower) organized and in existence under the laws of the
United States of America or any foreign country recognized by the United States
of America with a rating at the time as of which any investment therein is made
of P-1 (or higher) according to Moody’s or A-1 (or higher) according to
S&P;


 


(e)                                  securities with maturities of two years
or less from the date of acquisition issued or fully guaranteed by any State,
commonwealth or territory of the United States of America, or by any political
subdivision or taxing authority thereof, and rated at least A by S&P or A2
by Moody’s;


 


(f)                                    shares of mutual funds whose investment
guidelines restrict 95% of such funds’ investments to those satisfying the
provisions of clauses (a) through (e) above;


 


(g)                                 money market funds that (i) comply with
the criteria set forth in Rule 2a-7 under the Investment Company Act of 1940,
(ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio
assets of at least $5,000.0 million; and


 


(h)                                 time deposit accounts, certificates of
deposit and money market deposits in an aggregate face amount not in excess of
1/2 of 1% of the total assets of Parent and the Subsidiaries, on a consolidated
basis, as of the end of Parent’s most recently completed fiscal year.


 


“Permitted Investors”
shall mean (x) Blackstone and (y) other investors that provide a portion of the
Equity Financing provided that (i) all such other investors shall be reasonably
satisfactory to the Initial Lenders and (ii) the majority of the Equity
Financing shall be provided by Blackstone.


 


“Permitted Receivables
Documents” shall mean all documents and agreements evidencing, relating to
or otherwise governing a Permitted Receivables Financing.


 


38





















 


“Permitted Receivables
Financing” shall mean one or more transactions pursuant to which (i)
Receivables Assets or interests therein are sold to or financed by one or more
Special Purpose Receivables Subsidiaries, and (ii) such Special Purpose
Receivables Subsidiaries finance their acquisition of such Receivables Assets
or interests therein, or the financing thereof, by selling or borrowing against
such Receivables Assets; provided that (A) recourse to Holdings or any
Subsidiary (other than Special Purpose Receivables Subsidiaries) in connection
with such transactions shall be limited to the extent customary for similar
transactions in the applicable jurisdictions (including, to the extent
applicable, in a manner consistent with the delivery of a “true sale”/”absolute
transfer” opinion with respect to any transfer by Holdings or any Subsidiary
(other than a Special Purpose Receivables Subsidiary) and purchase price
percentages being reasonably satisfactory to the Administrative Agent) and (B)
the aggregate Receivables Net Investment since the Closing Date shall not
exceed $10.0 million at any time.


 


“Permitted Refinancing
Indebtedness” shall mean any Indebtedness issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease or
refund (collectively, to “Refinance”), the Indebtedness being Refinanced
(or previous refinancings thereof constituting Permitted Refinancing
Indebtedness); provided that (a) the principal amount (or accreted
value, if applicable) of such Permitted Refinancing Indebtedness does not
exceed the principal amount (or accreted value, if applicable) of the
Indebtedness so Refinanced (plus unpaid accrued interest and premium thereon),
(b) the average life to maturity of such Permitted Refinancing Indebtedness is
greater than or equal to that of the Indebtedness being Refinanced, (c) if the
Indebtedness being Refinanced is subordinated in right of payment to the
Obligations under this Agreement, such Permitted Refinancing Indebtedness shall
be subordinated in right of payment to such Obligations on terms at least as
favorable to the Lenders as those contained in the documentation governing the
Indebtedness being Refinanced, (d) no Permitted Refinancing Indebtedness shall
have different obligors, or greater guarantees or security, than the
Indebtedness being Refinanced and (e) if the Indebtedness being Refinanced is
secured by any collateral (whether equally and ratably with, or junior to, the
Secured Creditors or otherwise), such Permitted Refinancing Indebtedness may be
secured by such collateral (including, in respect of working capital facilities
of Non-Dutch or Non-U.S. Subsidiaries otherwise permitted under this Agreement
only, any collateral pursuant to after-acquired property clauses to the extent
any such collateral secured the Indebtedness being Refinanced) on terms no less
favorable to the Secured Creditors than those contained in the documentation
governing the Indebtedness being Refinanced.


 


“Permitted Senior Debt
Securities” shall mean (x) Senior Notes and (y) unsecured senior notes
issued by Parent (i) the terms of which do not provide for any scheduled
repayment, mandatory redemption or sinking fund obligation prior to the date on
which the final maturity of the Senior Notes occurs (as in effect on the
Closing Date) (other than customary offers to purchase upon a change of
control, asset sale or event of loss and customary acceleration rights after an
event of default), (ii) the covenants, events of default, guarantees and
other terms of which (other than interest rate and redemption premiums), taken
as a whole, are not more restrictive to Holdings and the Subsidiaries than
those in the Senior Notes and (iii) as to which no Subsidiary of Parent is an
obligor that is not an obligor under the Senior Notes.


 


“Permitted Senior Subordinated
Debt Securities” shall mean (x) Senior Subordinated Notes and (y) unsecured
senior subordinated notes issued by Parent (i) the terms of


 


39





















 


which (1) do not
provide for any scheduled repayment, mandatory redemption or sinking fund
obligation prior to the date on which the final maturity of the Senior
Subordinated Notes occurs (as in effect on the Closing Date) (other than
customary offers to purchase upon a change of control, asset sale or event of
loss and customary acceleration rights after an event of default) and (2)
provide for subordination to the Obligations under the Loan Documents to
substantially the same extent as the Senior Subordinated Note Indenture,
(ii) the covenants, events of default, guarantees and other terms of which
(other than interest rate and redemption premiums), taken as a whole, are not
more restrictive to Holdings and the Subsidiaries than those in the Senior
Subordinated Notes and (iii) as to which no Subsidiary of Parent is an obligor
that is not an obligor under the Senior Subordinated Notes.


 


“Person” shall
mean any natural person, corporation, business trust, joint venture,
association, company, partnership, limited liability company or government,
individual or family trusts, or any agency or political subdivision thereof.


 


“Plan” shall mean
any employee pension benefit plan (other than a Multiemployer Plan) subject to
the provisions of Title IV of ERISA or Section 412 of the Code and in
respect of which Holdings, Parent, any Subsidiary (including the Company) or
any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069
of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.


 


“Pledged Collateral”
shall have the meaning assigned to such term in the Dutch Security Documents,
the Parent Guarantee and U.S. Pledge Agreement, the Holdings Agreements, the
U.K. Equitable Charge over Shares or any Other Pledge Agreement, as applicable.


 


“Presumed Tax Rate”
shall mean the highest effective marginal statutory combined U.S. federal,
state and local income tax rate prescribed for an individual residing in New
York City (taking into account (i) the deductibility of state and local income
taxes for U.S. federal income tax purposes, assuming the limitation of Section 68(a)(2)
of the Code applies and taking into account any impact of the Code, and (ii)
the character (long-term or short-term capital gain, dividend income or other
ordinary income) of the applicable income).


 


“Primary Obligations”
shall mean (i) in the case of the Lenders, all principal of, premium, fees and
interest on, all Loans, all unreimbursed L/C Disbursements, the maximum amount
available to be drawn under all outstanding Letters of Credit and all Fees and
(ii) in the case of the Swap Counterparties, all amounts due under each Swap
Agreement with a Swap Counterparty (other than indemnities, fees (including,
without limitation, attorneys’ fees) and similar obligations and liabilities).


 


“Primary obligor”
shall have the meaning given such term in the definition of the term “Guarantee.”


 


“Prime Rate” shall
mean the rate of interest per annum announced from time to time by DBAG as its
prime rate in effect at its principal office in New York City; each change in
the Prime Rate shall be effective on the date such change is publicly announced
as being effective.


 


40





















 


“Pro Rata Share”
shall mean, when calculating a Secured Creditor’s portion of any distribution
or amount, that amount (expressed as a percentage) equal to a fraction the
numerator of which is the then unpaid amount of such Secured Creditor’s Primary
Obligations or Secondary Obligations, as the case may be, and the denominator
of which is the then outstanding amount of all Primary Obligations or Secondary
Obligations, as the case may be.


 


“Professional Market
Party” shall mean a professional market party (professionele marktpartij) as defined in the Exemption
Regulation, which currently includes, among others, (i) credit institutions,
insurance companies, pension funds, securities intermediaries, asset managers
and investment institutions that are registered and subject to government
supervision in The Netherlands, any other Member State of the European Economic
Area, Hungary, Monaco, Poland, Puerto Rico, Saudi Arabia, Slovakia, the Czech
Republic, Turkey, South Korea, the United States, Japan, Australia, Canada,
Mexico, New Zealand or Switzerland and subsidiaries thereof which are subject
to government supervision, (ii) central governments, international treaty
organizations and supranational public institutions, (iii) companies which have
assets with a book value of €500,000,000 or more, according to their annual
accounts as per the end of the year preceding the year in which they grant or
obtain the relevant loan or a portion thereof, (iv) companies or natural
persons with net assets of €10,000,000 or more as per the end of the preceding
year and which have been active on the financial markets with an average of at
least two transactions per month during the preceding two consecutive years,
and (v) companies with, and companies that issue securities with, a rating
assigned by a rating agency recognized by the Dutch Central Bank (De
Nederlandsche Bank).


 


“Pro Forma Basis”
shall mean, as to any person, for any events as described in clauses (i) and
(ii) below that occur subsequent to the commencement of a period for which the
financial effect of such events is being calculated, and giving effect to the
events for which such calculation is being made, such calculation as will give pro forma effect to such events as if such
events occurred on the first day of the four consecutive fiscal quarter period
ended on or before the occurrence of such event (the “Reference Period”):


 


(i)                                     in making any determination of EBITDA, pro forma effect shall be given to any Asset
Disposition and to any Asset Acquisition (or any similar transaction or
transactions that require a waiver or consent of the Required Lenders pursuant
to Section 6.04 or 6.05), in each case that occurred during the Reference
Period (or, in the case of determinations made pursuant to the definition of
the term “Asset Acquisition,” occurring during the Reference Period or
thereafter and through and including the date upon which the respective Asset
Acquisition is consummated); and


 


(ii)                                  in making any determination on a Pro
Forma Basis, (x) all Indebtedness (including Indebtedness incurred or assumed
and for which the financial effect is being calculated, whether incurred under
this Agreement or otherwise, but excluding normal fluctuations in revolving
Indebtedness incurred for working capital purposes and amounts outstanding
under any Permitted Receivables Financing, in each case not to finance any
acquisition) incurred or permanently repaid during the Reference Period (or, in
the case of determinations made pursuant to the definition of the term “Asset
Acquisition,” occurring during the Reference Period or thereafter and through
and including the date upon which the respective Asset Acquisition is
consummated) shall be deemed to have been


 


41





















 


incurred or repaid
at the beginning of such period and (y) Interest Expense of such person
attributable to interest on any Indebtedness, for which pro forma effect is being given as provided in preceding clause (x),
bearing floating interest rates shall be computed on a pro forma basis as if the rates that would have been in effect
during the period for which pro forma
effect is being given had been actually in effect during such periods.


 


Pro
forma
calculations made pursuant to the definition of the term “Pro Forma Basis”
shall be determined in good faith by a Responsible Officer of Parent and (x)
for any fiscal period ending on or prior to the first anniversary of an Asset
Acquisition or Asset Disposition (or any similar transaction or transactions
that require a waiver or consent of the Required Lenders pursuant to Section 6.04
or 6.05), may include adjustments to reflect operating expense reductions and
other operating improvements or synergies reasonably expected to result from
such Asset Acquisition, Asset Disposition or other similar transaction, to the
extent that Parent delivers to the Administrative Agent (i) a certificate of a
Financial Officer of Parent setting forth such operating expense reductions and
other operating improvements or synergies and (ii) information and
calculations supporting in reasonable detail such estimated operating expense
reductions and other operating improvements or synergies, and (y) for any
fiscal period ending prior to the first anniversary of the Closing Date, pro
forma effect shall be given to the Transaction in determining EBITDA so
long as the required certifications described in preceding clause (x) are specifically
included in reasonable detail in the respective officer’s certificate and
related information and calculations.


 


“Projections”
shall mean the projections of Holdings and the Subsidiaries included in the
Information Memorandum and any other projections and any forward-looking
statements (including statements with respect to booked business) of such
entities furnished to the Lenders or the Administrative Agent by or on behalf
of Holdings, Parent or any of the Subsidiaries prior to the Closing Date.


 


“Quotation Day”
shall mean, with respect to any Eurocurrency Borrowing or Swingline Euro
Borrowing and any Interest Period, the day on which it is market practice in
the relevant interbank market for prime banks to give quotations for deposits
in the currency of such Borrowing for delivery on the first day of such
Interest Period.  If such quotations
would normally be given by prime banks on more than one day, the Quotation Day
will be the last of such days.


 


“Receivables Assets”
shall mean accounts receivable (including any bills of exchange) and related
assets and property from time to time originated, acquired or otherwise owned
by Holdings or any Subsidiary.


 


“Receivables Net
Investment” shall mean the aggregate cash amount paid by the lenders or
purchasers under any Permitted Receivables Financing in connection with their
purchase of, or the making of loans secured by, Receivables Assets or interests
therein, as the same may be reduced from time to time by collections with
respect to such Receivables Assets or otherwise in accordance with the terms of
the Permitted Receivables Documents; provided, however, that if
all or any part of such Receivables Net Investment shall have been reduced by
application of any distribution and thereafter such distribution is rescinded
or must otherwise be


 


42





















 


returned for any
reason, such Receivables Net Investment shall be increased by the amount of
such distribution, all as though such distribution had not been made.


 


“Reference Period”
shall have the meaning assigned to such term in the definition of the term “Pro
Forma Basis.”


 


“Refinance” shall
have the meaning assigned to such term in the definition of the term “Permitted
Refinancing Indebtedness,” and “Refinanced” shall have a meaning
correlative thereto.


 


“Refinanced Term Loans”
shall have the meaning assigned to such term in Section 9.08(e).


 


“Register” shall
have the meaning assigned to such term in Section 9.04(b).


 


“Regulation U”
shall mean Regulation U of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.


 


“Regulation X”
shall mean Regulation X of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.


 


“Related Parties”
shall mean, with respect to any specified person, such person’s Affiliates and
the respective directors, officers, employees, agents and advisors of such
person and such person’s Affiliates.


 


“Release” shall
mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, disposing, depositing,
emanating or migrating in, into, onto or through the Environment.


 


“Remaining Present
Value” shall mean, as of any date with respect to any lease, the present
value as of such date of the scheduled future lease payments with respect to
such lease, determined with a discount rate equal to a market rate of interest
for such lease reasonably determined at the time such lease was entered into.


 


“Replacement Term
Loans” shall have the meaning assigned to such term in Section 9.08(e).


 


“Reportable Event”
shall mean any reportable event as defined in Section 4043(c) of ERISA or
the regulations issued thereunder, other than those events as to which the
30-day notice period referred to in Section 4043(c) of ERISA has been
waived, with respect to a Plan (other than a Plan maintained by an ERISA
Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m)
or (o) of Section 414 of the Code).


 


“Representative”
shall have the meaning assigned such term in Section 9.23(d).


 


“Request to Issue”
shall have the meaning assigned to such term in Section 2.05(b).


 


43





















 


“Required Insurance
Percentage” shall mean (a) any time when the Total Leverage Ratio is less
than or equal to 3:00:1:00, 50% and (b) at all other times, 60%.


 


“Required Lenders”
shall mean, at any time, Lenders having (a) Term Loan Exposures, (b) Revolving
Facility Credit Exposures and (c) Available Revolving Unused Commitments (if
prior to the termination thereof) that taken together, represent more than 50%
of the sum of (w) all Term Loan Exposures, (x) all Revolving Facility Credit
Exposures and (y) the total Available Revolving Unused Commitments (if
prior to the termination thereof) at such time. 
The Term Loan Exposure, Revolving Facility Credit Exposure and Available
Revolving Unused Commitment of any Defaulting Lender shall be disregarded in
determining Required Lenders at any time.


 


“Required NSS-8
Proceeds Percentage” shall mean (i) with respect to the first $100.0
million of NSS-8 Asset Sale Proceeds, 82%, (ii) with respect to any remaining
NSS-8 Asset Sale Proceeds (but subject to clause (iii) below), (x) if the
Senior Secured Leverage Ratio at the time of application of such remaining
NSS-8 Asset Sale Proceeds is less than or equal to 3.0:1.0 (calculated on a pro
forma basis after giving effect to the application of such NSS-8 Asset
Sale Proceeds), 18% or (y) if the requirements of the preceding clause (x) have
not been satisfied, such percentage of such remaining NSS-8 Asset Sale Proceeds
as is required to cause the Senior Secured Leveraged Ratio (calculated on a pro
forma basis after giving effect to the application of such NSS-8 Asset Sale
Proceeds) at the time of application of such remaining NSS-8 Asset Sale
Proceeds to be equal to 3.0:1.0; provided that in no event shall such
percentage be less than 18% or greater than 82%; and provided, further,
that in no event shall the amount of NSS-8 Asset Sale Proceeds permitted to be
paid as a dividend under Section 6.06(f) exceed $95.0 million, and (iii)
with respect to any additional portion of the NSS-8 Asset Sale Proceeds not
paid as a dividend pursuant to Section 6.06(f) because of the operation of
the second proviso in clause (ii)(y) above, 100%.


 


“Required Percentage”
shall mean, with respect to an Excess Cash Flow Period, 75%; provided, that if
at the time of any prepayment required by Section 2.11(d) in respect of
such Excess Cash Flow Period (a) (i), the Total Leverage Ratio as of the last
day of the most recent fiscal quarter for which financial statements have been
delivered pursuant to Section 5.04(a) or (b) (together with the
corresponding officer’s certificate pursuant to Section 5.04(c)) is less
than or equal to 5.25:1.00 but greater than 4.50:1.00 and (ii) no Event of
Default has occurred and is continuing, such percentage shall be 50% and (b)
(i) the Total Leverage Ratio  as of the
last day of the most recent fiscal quarter for which financial statements have
been delivered pursuant to Section 5.04(a) or (b) (together with the
corresponding officer’s certificate pursuant to Section 5.04(c), is less
than or equal to 4.50:1.00 and (ii) no Event of Default has occurred and is
continuing, such percentage shall be 25%.


 


“Required Secured
Creditors” or “Required Secured Parties” shall mean (i) at any time
when any Obligations under this Agreement are outstanding or any Commitments
under this Agreement exist, the Required Lenders (or, to the extent provided in
Section 9.08, each of the Lenders) and (ii) at any time after all of the
Obligations under this Agreement have been paid in full and all Commitments
under this Agreement have been terminated and no further Commitments may be
provided hereunder, the holders of a majority of the obligations under any then
existing Swap Agreements.


 


44





















 


“Reserve Account”
shall have the meaning assigned to such term in Section 10.02(a).


 


“Reset Date” shall
have the meaning assigned to such term in Section 1.03(a).


 


“Responsible Officer”
of any person shall mean any executive officer or Financial Officer of such
person and any other officer or similar official thereof responsible for the
administration of the obligations of such person in respect of this Agreement.


 


“Revolving
Availability Period” shall mean the period from and including the Closing
Date to but excluding the earlier of the Revolving Facility Maturity Date and
in the case of each of the Revolving Facility Loans, Revolving Facility
Borrowings, Swingline Dollar Loans, Swingline Dollar Borrowings, Swingline Euro
Loans and Swingline Euro Borrowings and Letters of Credit, the date of
termination of the Revolving Facility Commitments.


 


“Revolving Borrower
Agreement” shall mean a Revolving Borrower Agreement substantially in the
form of Exhibit I-1.


 


“Revolving Borrower
Termination” shall mean a Revolving Borrower Termination substantially in
the form of Exhibit I-2.


 


“Revolving Borrowers” shall mean (x)
Parent and (y) from the date of the execution and delivery to the
Administrative Agent by it of a Revolving Borrower Agreement to but not
including the date of the execution and delivery to the Administrative Agent by
it of a Revolving Borrower Termination, each Subsidiary of Parent designated as
a Revolving Borrower by Parent pursuant to Section 2.20.


 


“Revolving Facility”
shall mean the Revolving Facility Commitments and the extensions of credit made
hereunder by the Revolving Facility Lenders.


 


“Revolving Facility
Borrowing” shall mean a Borrowing comprised of Revolving Facility Loans.


 


“Revolving Facility
Commitment” shall mean, with respect to each Revolving Facility Lender, the
commitment of such Revolving Facility Lender to make Revolving Facility Loans
pursuant to Section 2.01, expressed as an amount representing the maximum
aggregate permitted amount of such Revolving Facility Lender’s Revolving
Facility Credit Exposure hereunder, as such commitment may be (a) reduced from
time to time pursuant to Section 2.08 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender under Section 9.04.  The initial amount of each Revolving Facility
Lender’s Revolving Facility Commitment is the amount set forth opposite such
Lender’s name on Schedule 2.01 directly below the column entitled “Revolving
Facility Commitment” or in the Assignment and Acceptance pursuant to which such
Revolving Facility Lender shall have assumed its Revolving Facility Commitment,
as applicable.  The aggregate amount of
the Revolving Facility Commitments on the Closing Date is $75.0 million.


 


“Revolving Facility
Commitment Fee” shall have the meaning assigned to such term in Section 2.12(a).


 


45





















 


“Revolving Facility
Credit Exposure” shall mean, at any time, the sum of (a) the aggregate
principal amount of the Revolving Facility Loans denominated in Dollars
outstanding at such time, (b) the Dollar Equivalent of the aggregate principal
amount of the Revolving Facility Loans denominated in Euros outstanding at such
time, (c) the Swingline Dollar Exposure at such time, (d) the Swingline Euro
Exposure at such time and (e) the Revolving L/C Exposure at such time.  The Revolving Facility Credit Exposure of any
Revolving Facility Lender at any time shall be the sum of (a) the aggregate
principal amount of such Revolving Facility Lender’s Revolving Facility Loans
denominated in Dollars outstanding at such time, (b) the Dollar Equivalent of
the aggregate principal amount of Revolving Facility Lender’s Revolving
Facility Loans denominated in Euros outstanding at such time and (c) such
Revolving Facility Lender’s Revolving Facility Percentage of the Swingline
Dollar Exposure, Swingline Euro Exposure and Revolving L/C Exposure at such
time.


 


“Revolving Facility
Lender” shall mean a Lender with a Revolving Facility Commitment or with
outstanding Revolving Facility Loans.


 


“Revolving Facility
Loan” shall mean a Loan made by a Revolving Facility Lender pursuant to Section 2.01(b).  Each Revolving Facility Loan denominated in
Dollars shall be a Eurocurrency Loan or an ABR Loan, and each Revolving
Facility Loan denominated in Euros shall be a Eurocurrency Loan.


 


“Revolving Facility
Maturity Date” shall mean the sixth anniversary of the Closing Date.


 


“Revolving Facility
Percentage” shall mean, with respect to any Revolving Facility Lender, the
percentage of the total Revolving Facility Commitments represented by such
Lender’s Revolving Facility Commitment. 
If the Revolving Facility Commitments have terminated or expired, the
Revolving Facility Percentages shall be determined based upon the Revolving
Facility Commitments most recently in effect, giving effect to any assignments
pursuant to Section 9.04.


 


“Revolving L/C Exposure”
shall mean at any time the sum of (a) the aggregate undrawn amount of all
Letters of Credit denominated in Dollars outstanding at such time, (b) the
Dollar Equivalent of the aggregate undrawn amount of all Letters of Credit
denominated in Euros outstanding at such time, (c) the aggregate principal
amount of all Dollar denominated L/C Disbursements made in respect of Letters
of Credit that have not yet been reimbursed at such time and (d) the Dollar
Equivalent of the aggregate principal amount of Euro denominated L/C
Disbursements made in respect of Letters of Credit that have not yet been
reimbursed at such time.  The Revolving
L/C Exposure of any Revolving Facility Lender at any time shall mean its
Revolving Facility Percentage of the aggregate Revolving L/C Exposure at such
time.


 


“S&P” shall
mean Standard & Poor’s Ratings Group, Inc.


 


“Sale and Lease-Back
Transaction” shall have the meaning assigned to such term in Section 6.03.


 


“Satellite” shall
mean any satellite owned by, leased to or for which a contract to purchase has
been entered into by, Holdings or any of its Subsidiaries, whether such
satellite is in


 


46





















 


the process of
manufacture, has been delivered for launch or is in orbit (whether or not in
operational service).


 


“Satellite
Manufacturer” shall mean, with respect to any Satellite, the prime
contractor and manufacturer of such Satellite and it successors or assignees.


 


“Screen Rate”
shall mean:


 


(a)                                  for Loans denominated in Dollars, the
British Bankers Association Interest Settlement Rate; and


 


(b)                                 for Loans denominated in Euros, the
percentage rate per annum determined by the Banking Federation of the European
Union


 


for the applicable
Interest Period displayed on the appropriate page of the Telerate screen
selected by the Administrative Agent.  If
the relevant page is replaced or the service ceases to be available, the
Administrative Agent (after consultation with Parent and the Lenders) may
specify another page or service displaying the appropriate rate.


 


“SEC” shall mean
the Securities and Exchange Commission or any successor thereto.


 


“Secondary Obligations”
shall mean all Obligations other than Primary Obligations.


 


“Secured Creditors”
or “Secured Parties” shall mean (a) the Lenders (and any Affiliate
of a Lender to which any obligation in respect of any overdraft or related
liabilities arising from cash management services (including treasury,
depository, overdraft, credit or debit card, electronic funds transfer and
other cash management arrangements) is owed, (b) the Administrative Agent
and the Collateral Agent, (c) each Issuing Bank, (d) each
counterparty to any Swap Agreement entered into with Parent to the extent that
such counterparty is a Lender or an Affiliate of a Lender at the time such Swap
Agreement is entered into, (e) the Lenders (and any Affiliates thereof)
that are beneficiaries of indemnification obligations undertaken by Parent
under any Loan Document and (f) the successors and permitted assigns of
each of the foregoing.


 


“Securities Act”
shall mean the Securities Act of 1933, as amended.


 


“Security Documents”
shall mean, at any time, each of the Mortgages, the Dutch Security Documents,
the Holdings Agreements, any Other Pledge Agreement then in effect, the Parent
Guarantee and U.S. Pledge Agreement, the U.K. Equitable Charge of Shares and
each of the security agreements, mortgages and other instruments and documents
executed and delivered pursuant to any of the foregoing or pursuant to Section 5.10.


 


“Senior Note Documents”
shall mean the Senior Notes and the Senior Note Indenture.


 


47





















 


“Senior Note Indenture”
shall mean the Indenture dated as of November 2, 2004 between Parent and
the trustee named therein from time to time, as in effect on the Closing Date
and as thereafter amended from time to time in accordance with this Agreement.


 


“Senior Note
Intercreditor Arrangement” shall mean an acknowledgement and agreement to
be entered into on or about the Closing Date by the trustee in respect of the
Senior Notes (which acknowledgement and agreement may be set forth in the
Senior Note Indenture or in a separate agreement) for the benefit of the
Collateral Agent’s security interest in the Satellites.


 


“Senior Notes”
shall mean Parent’s Senior Floating Rate Notes due 2011 issued pursuant to the
Senior Note Indenture and any notes issued by Parent in exchange for, and as
contemplated by, the Senior Notes with substantially identical terms as the
Senior Notes.


 


“Senior Secured
Leverage Ratio” shall mean, on any date, the ratio of (a) the sum of (i)
the aggregate principal amount of all outstanding Obligations at such time plus
(ii) the aggregate principal amount of all outstanding Indebtedness at such
time secured by a Lien pursuant to Section 6.02(a), (c), (i), (j) or (l)
to (b) EBITDA for the period of four consecutive fiscal quarters of Holdings
most recently ended as of such date, all determined on a consolidated basis in
accordance with US GAAP; provided that any Asset Disposition or any
Asset Acquisition (or any similar transaction or transactions that require a
waiver or consent by the Required Lenders pursuant to Section 6.04 or
6.05) or incurrence or repayment of Indebtedness (excluding normal fluctuations
in revolving Indebtedness incurred for working capital purposes) has occurred
during the relevant Test Period, EBITDA shall be determined for the respective
Test Period on a Pro Forma Basis for such occurrences.


 


Senior
Subordinated Note Documents” shall mean the Senior Subordinated Notes and the
Senior Subordinated Note Indenture.


 


“Senior Subordinated Note Indenture”
shall mean the Indenture dated as of November 2, 2004 between Parent and
the trustee named therein from time to time, as in effect on the Closing Date
and as thereafter amended from time to time in accordance with the requirements
thereof and of this Agreement.


 


“Senior Subordinated Notes” shall
mean Parent’s 9.125% Senior Subordinated Notes due 2012 issued pursuant to
Senior Subordinated Note Indenture and any notes issued by Parent in exchange
for, and as contemplated by, the Senior Subordinated Notes with substantially
identical terms as the Senior Subordinated Notes.


 


“Special Purpose
Receivables Subsidiary” shall mean a direct or indirect Subsidiary of
Parent established in connection with a Permitted Receivables Financing for the
acquisition of Receivables Assets or interests therein, and which is organized
in a manner intended to reduce the likelihood that it would be substantively
consolidated with Holdings or any of the Subsidiaries (other than Special
Purpose Receivables Subsidiaries) in the event Holdings or any such Subsidiary
becomes subject to a proceeding under the U.S. Bankruptcy Code (or other
insolvency law).


 


48





















 


“Specified Loan Party”
shall mean at any time a Loan Party at such time if the Obligations owing by it
(directly or by guarantee) are unsecured by a Lien on its assets.


 


“Start Date” shall
mean, with respect to any Margin Adjustment Period, the first day of such
Margin Adjustment Period.


 


“Statutory Reserves”
shall mean, with respect to any currency, any reserve, liquid asset or similar
requirements established by any Governmental Authority of the United States of
America or of the jurisdiction of such currency or any jurisdiction in which
Loans in such currency are made to which banks in such jurisdiction are subject
for any category of deposits or liabilities customarily used to fund loans in
such currency or by reference to which interest rates applicable to Loans in
such currency are determined.


 


“Subject Licenses”
shall mean (a) all licenses for the launch and operation of satellites at any
orbital location in connection with Satellites with C-band or Ku-band
transponders, (b) all other Netherlands authorizations for the launch and
operation of Satellites with C-band or Ku-band transponders, and (c) from and
after the launch of any Satellites other than those that have C-band or Ku-band
transponders, (i) all licenses for the launch and operation of Satellites at
any orbital location in connection with such Satellites and (ii) all other
Netherlands licenses for the launch and operation of such Satellites.


 


“Subordinated
Intercompany Debt” shall have the meaning assigned to such term in Section 6.01(e).


 


“subsidiary” shall
mean, with respect to any person (herein referred to as the “parent”),
any corporation, partnership, association or other business entity of which
securities or other ownership interests representing more than 50% of the
equity or more than 50% of the ordinary voting power or more than 50% of the
general partnership interests are, at the time any determination is being made,
directly or indirectly, owned, Controlled, or held (or that is, at the time any
determination is made, otherwise Controlled) by the parent or one or more
subsidiaries of the parent.


 


“Subsidiary” shall
mean, unless the context otherwise requires, a subsidiary of Holdings.


 


“Subsidiary Loan Party”
shall mean (i) each Subsidiary Revolving Borrower (if any) and (ii) each Person
that becomes a Material Subsidiary after the Closing Date (whether as a result
of creation, formation, acquisition or growth in the assets or revenues of such
Person), it being understood and agreed that a Person acquired after the
Closing Date shall be considered a Material Subsidiary as of the date of such
acquisition if such Person would have been a Material Subsidiary as of the end
of the most recently ended fiscal quarter if such Person had been a Subsidiary
at such time.


 


“Subsidiary Revolving
Borrower” shall have the meaning assigned to that term in the introductory
paragraph of this Agreement.


 


“Swap Agreement”
shall mean any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by
reference


 


49





















 


to, one or more
rates, currencies, commodities, equity or debt instruments or securities, or
economic, financial or pricing indices or measures of economic, financial or pricing
risk or value or any similar transaction or any combination of these
transactions, provided that no phantom stock or similar plan providing
for payments only on account of services provided by current or former
directors, officers, employees or consultants of Holdings or any of its
Subsidiaries shall be a Swap Agreement.


 


“Swap Counterparty”
shall mean each Lender (even if the respective Lender subsequently ceases to be
a Lender under this Agreement) or any affiliate of any Lender that enters into
a Swap Agreement with the Parent or any of its Subsidiaries.


 


“Swingline Borrower”
shall mean each Revolving Borrower that has been designated to the
Administrative Agent in writing by Parent as a Swingline Borrower, provided
that (x) its Maximum Credit Limit will remain unchanged and (y) there shall not
be more than two Swingline Borrowers at any time and provided, further,
that Parent may revoke any such designation as to any such person at a time
when no Swingline Loans are outstanding to such person.


 


“Swingline Borrowing
Request” shall mean a request substantially in the form of Exhibit C.


 


“Swingline Dollar
Borrowing” shall mean a Borrowing comprised of Swingline Dollar Loans.


 


“Swingline Dollar
Commitment” shall mean, with respect to each Swingline Dollar Lender, the
commitment of such Swingline Dollar Lender to make Swingline Dollar Loans
pursuant to Section 2.04.  The
amount of each Swingline Dollar Lender’s Swingline Dollar Commitment on the
Closing Date is set forth on Schedule 2.04 as the same may be
modified at the request of Parent with the consent of any Revolving Facility
Lender being added as a Swingline Dollar Lender and the Administrative
Agent.  The aggregate amount of the
Swingline Dollar Commitments on the Closing Date is $15.0 million.


 


“Swingline Dollar
Exposure” shall mean at any time the aggregate principal amount of all
outstanding Swingline Dollar Borrowings at such time.  The Swingline Dollar Exposure of any
Revolving Facility Lender at any time shall mean its Revolving Facility Percentage
of the aggregate Swingline Dollar Exposure at such time.


 


“Swingline Dollar
Lender” shall mean a Lender with a Swingline Dollar Commitment or
outstanding Swingline Dollar Loans.


 


“Swingline Dollar
Loans” shall mean the swingline loans denominated in Dollars and made to a
Swingline Borrower pursuant to Section 2.04.


 


“Swingline Euro
Borrowing” shall mean a Borrowing comprised of Swingline Euro Loans.


 


“Swingline Euro
Commitment” shall mean, with respect to each Swingline Euro Lender, the
commitment of such Swingline Euro Lender to make Swingline Euro Loans pursuant


 


50





















 


to Section 2.04.  The amount of each Swingline Euro Lender’s
Swingline Euro Commitment on the Closing Date is set forth on Schedule 2.04
as the same may be modified at the request of Parent with the consent of any
Revolving Facility Lender being added as a Swingline Euro Lender and the
Administrative Agent.  The aggregate
amount of the Swingline Euro Commitments on the Closing Date is €5.0 million.


 


“Swingline Euro
Exposure” shall mean at any time the Dollar Equivalent of the aggregate
principal amount of all outstanding Swingline Euro Loans at such time.  The Swingline Euro Exposure of any Revolving
Facility Lender at any time shall mean its Revolving Facility Percentage of the
aggregate Swingline Euro Exposure at such time.


 


“Swingline Euro Lender”
shall mean a Lender with a Swingline Euro Commitment or outstanding Swingline
Euro Loans.


 


“Swingline Euro Loans”
shall mean the swingline loans denominated in Euros and made to a Swingline
Borrower pursuant to Section 2.04.


 


“Swingline Exposure”
shall mean at any time the sum of the Swingline Dollar Exposure and the
Swingline Euro Exposure.


 


“Swingline Lender”
shall mean (i) the Swingline Dollar Lenders, in their respective capacities as
Lenders of Swingline Dollar Loans, and (ii) the Swingline Euro Lenders, in
their respective capacities as Lenders of Swingline Euro Loans.


 


“Swingline Loans”
shall mean the Swingline Dollar Loans and the Swingline Euro Loans.


 


“Syndication Agent”
shall mean ABN in its capacity as such.


 


“Tax Distribution”
shall mean any distribution described in Section 6.06(e).


 


“Taxes” shall mean
any and all present or future taxes, levies, imposts, duties (including stamp
duties), deductions, charges (including ad  valorem charges) or
withholdings imposed by any Governmental Authority and any and all interest and
penalties related thereto.


 


“Term Lender”
shall mean a Lender with a Term Loan Commitment or with outstanding Term Loans.


 


“Term Loan” shall
mean each of the term loans made to Parent pursuant to Section 2.01(a).  Each Term Loan shall be a Eurocurrency Loan
or an ABR Loan.


 


“Term Loan Borrowing”
shall mean a borrowing of Term Loans.


 


“Term Loan Commitment”
shall mean, with respect to each Lender, the Commitment (if any) of such Lender
to make term loans under Section 2.01(a) in the amount set forth opposite
such Lender’s name on Schedule 2.01 directly below the column
entitled “Term Loan Commitment” or in the Assignment and Acceptance pursuant to
which such Lender shall


 


51





















 


have assumed its
Term Loan Commitment, as applicable, in each case as the same may be reduced
from time to time pursuant to Section 2.08.


 


“Term Loan Exposure”
shall mean, at any time, the aggregate principal amount of the Term Loans
outstanding at such time, provided that if the Closing Date shall not have
occurred at such time, “Term Loan Exposure” shall mean the aggregate
Term Loan Commitments at such time.  The
Term Loan Exposure of any Lender at any time shall be the aggregate principal
amount of such Lender’s Term Loans outstanding at such time, provided that if
the Closing Date shall not have occurred the Term Loan Exposure of such Lender
shall be the Term Loan Commitment of such Lender at such time.


 


“Term Loan Facility”
shall mean the Term Loan Commitments and the Term Loans made hereunder.


 


“Term Loan Maturity
Date” shall mean the date occurring 6-1/2 years following the Closing Date.


 


“Test Date” shall
mean, with respect to any Start Date, the last day of the most recent fiscal
quarter of Parent ended immediately prior to such Start Date.


 


“Test Period”
shall mean, on any date of determination, the period of four consecutive fiscal
quarters of Holdings then most recently ended (taken as one accounting period).


 


“Total Leverage Ratio”
shall mean, on any date, the ratio of (a) Consolidated Net Debt as of such date
to (b) EBITDA for the period of four consecutive fiscal quarters of Holdings
most recently ended as of such date, all determined on a consolidated basis in
accordance with US GAAP; provided that any Asset Disposition or any
Asset Acquisition (or any similar transaction or transactions that require a waiver
or consent by the Required Lenders pursuant to Section 6.04 or 6.05) or
incurrence or repayment of Indebtedness (excluding normal fluctuations in
revolving Indebtedness incurred for working capital purposes) has occurred
during the relevant Test Period, EBITDA shall be determined for the respective
Test Period on a Pro Forma Basis for such occurrences.


 


“Transaction”
shall mean, collectively, the transactions to occur on or prior to the Closing
Date pursuant to the Transaction Documents, including (a) the consummation of
the Acquisition; (b) the execution and delivery of the Loan Documents and the
initial borrowings hereunder; (c) the Investor Financing and the Parent
Investor Financing; (d) the issuance of the Senior Notes; (e) the issuance of
the Senior Subordinated Notes; and (f) the payment of all fees and
expenses to be paid on or prior to the Closing Date and owing in connection
with the foregoing.


 


 “Transaction Costs” shall mean the
out-of-pocket costs and expenses incurred by Holdings or any Subsidiary in
connection with the Transaction, the financing of the Transaction and any
refinancing of such financing (including fees paid to the Initial Lenders and
other Lenders and fees and expenses of the Permitted Investors and their
counsel and advisors).


 


52





















 


“Transaction Documents”
shall mean the Acquisition Documents, the Loan Documents, the Investor
Financing Document, the Parent Investor Financing Document, the Senior Note
Documents and the Senior Subordinated Note Documents.


 


“Type”, when used
in respect of any Loan or Borrowing, shall refer to the Rate by reference to
which interest on such Loan or on the Loans comprising such Borrowing is
determined.  For purposes hereof, the
term “Rate” shall include the Adjusted LIBO Rate and the Alternate Base
Rate.


 


“U.K. Equitable Charge
of Shares” shall mean the U.K. Equitable Charge of Shares, as amended,
supplemented or otherwise modified from time to time, substantially in the form
of Exhibit E, between Parent and the Collateral Agent.


 


“U.S. Bankruptcy Code”
shall mean Title 11 of the United States Code, as amended, or any similar
federal or state law for the relief of debtors.


 


“US GAAP” shall
mean generally accepted accounting principles in effect from time to time in
the United States, applied on a consistent basis, subject to the provisions of Section 1.02.


 


“U.S. Subsidiary”
shall mean any Subsidiary that is incorporated or organized under the laws of
any jurisdiction of the United States of America, any State thereof or the
District of Columbia.


 


“Wholly Owned
Subsidiary” of any person shall mean a subsidiary of such person, all of
the Equity Interests of which (other than directors’ qualifying shares or
nominee or other similar shares required pursuant to applicable law) are owned
by such person or another Wholly Owned Subsidiary of such person.


 


“Withdrawal Liability”
shall mean liability to a Multiemployer Plan as a result of a complete or
partial withdrawal from such Multiemployer Plan, as such terms are defined in
Part I of Subtitle E of Title IV of ERISA.


 


“Working Capital”
shall mean, with respect to Holdings and the Subsidiaries on a consolidated
basis at any date of determination, Current Assets at such date of
determination minus Current Liabilities at such date of determination; provided
that, for purposes of calculating Excess Cash Flow, increases or decreases in
Working Capital shall be calculated without regard to any changes in Current
Assets or Current Liabilities as a result of (a) any reclassification in
accordance with US GAAP of assets or liabilities, as applicable, between
current and noncurrent or (b) the effects of purchase accounting.


 


SECTION 1.02  Terms Generally.  The definitions set forth or referred to in Section 1.01
shall apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. 
The words “include,” “includes” and “including” shall be deemed to be
followed by the phrase “without limitation.” 
All references herein to Articles, Sections, Exhibits and Schedules
shall be deemed references to Articles and Sections of, and Exhibits and
Schedules to, this Agreement unless the context shall otherwise require.  Except as otherwise


 


53





















 


expressly provided herein, any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time. 
Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with US GAAP,
as in effect from time to time; provided that, if Holdings notifies the
Administrative Agent that Holdings requests an amendment to any provision
hereof to eliminate the effect of any change occurring after the Closing Date
in US GAAP or in the application thereof on the operation of such provision (or
if the Administrative Agent notifies Holdings that the Required Lenders request
an amendment to any provision hereof for such purpose), regardless of whether
any such notice is given before or after such change in US GAAP or in the
application thereof, then such provision shall be interpreted on the basis of
US GAAP as in effect and applied immediately before such change shall have
become effective until such notice shall have been withdrawn or such provision
amended in accordance herewith.  For the
purposes of determining compliance with Section 6.01 through Section 6.10
with respect to any amount in a currency other than Dollars, amounts shall be
deemed to equal the Dollar Equivalent thereof determined using the Exchange
Rate calculated as of the Business Day on which such amounts were incurred or
expended, as applicable.


 


SECTION 1.03  Exchange Rates.  (a) 
Not later than 1:00 p.m., New York City time, on each Calculation Date,
the Administrative Agent shall (i) determine the Exchange Rate as of such
Calculation Date and (ii) give notice thereof to Parent.  The Exchange Rates so determined shall become
effective on the first Business Day immediately following the relevant
Calculation Date (a “Reset Date”), shall remain effective until the next
succeeding Reset Date, and shall for all purposes of this Agreement (other than
any other provision expressly requiring the use of an Exchange Rate calculated
as of a specified date) be the Exchange Rates employed in converting any
amounts between Dollars and Euros.


 


(b)                                 Not later than 5:00 p.m., New
York City time, on each Reset Date, the Administrative Agent shall (i)
determine the aggregate amount of the Dollar Equivalents of the principal
amounts of the Revolving Facility Loans and Swingline Loans denominated in
Euros then outstanding (after giving effect to any Revolving Facility Loans and
Swingline Loans denominated in Euros made or repaid on such date) and the
Revolving L/C Exposure and (ii) notify the Lenders, each Issuing Bank and
Parent of the results of such determination.


 


SECTION 1.04
 Effectuation
of Transaction.  Each of the
representations and warranties of Holdings and the Borrowers contained in this
Agreement (and all corresponding definitions) are made after giving effect to
the Transaction, unless the context otherwise requires.


 


ARTICLE II


 


The Credits


 


SECTION 2.01  Commitments.  Subject to the terms and conditions set forth
herein, each Lender agrees


 


(a)                                  severally,
and not jointly, to make term loans to Parent in
Dollars in an amount not to exceed its Term Loan Commitment; provided
that (i) all such Term Loans


 


54


















 


shall be incurred by Parent pursuant to a
single drawing on the Closing Date and (ii) any Term Loan that is repaid may
not be reborrowed; and


 


(b)           severally, and not jointly, to make
revolving loans to the Revolving Borrowers from time to time during the Revolving
Availability Period in an aggregate principal amount that will not result in
(A) such Lender’s Revolving Facility Credit Exposure exceeding such Lender’s
Revolving Facility Commitment or (B) the Revolving Facility Credit Exposure
exceeding the total Revolving Facility Commitments, such Revolving Facility
Loans to be made in Euros or Dollars, at the election of the applicable
Borrower, provided that the aggregate Revolving Facility Credit Exposure with
respect to any Revolving Borrower shall not exceed such Revolving Borrower’s
Maximum Credit Limit; within the foregoing limits and subject to the terms and
conditions set forth herein, the Revolving Borrowers may borrow, prepay and
reborrow Revolving Facility Loans.


 


SECTION 2.02  Loans and Borrowings.  (a) 
Each Loan shall be made as part of a Borrowing consisting of Loans under
the same Facility and of the same Type made by the Lenders ratably in
accordance with their respective Commitments under the applicable Facility (or,
in the case of Swingline Loans, in accordance with their respective Swingline
Dollar Commitments or Swingline Euro Commitments, as applicable); provided,
however, that Revolving Facility Loans shall be made by the Revolving
Facility Lenders ratably in accordance with their respective Revolving Facility
Percentages on the date such Loans are made hereunder.  The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and
no Lender shall be responsible for any other Lender’s failure to make Loans as
required.


 


(b)           Subject
to Section 2.14, (i) each Borrowing denominated in Dollars (other than a
Swingline Dollar Borrowing) shall be comprised entirely of ABR Loans or
Eurocurrency Loans as the applicable Borrower may request in accordance
herewith and (ii) each Borrowing denominated in Euros shall be comprised
entirely of Eurocurrency Loans.  Each
Swingline Dollar Borrowing shall be an ABR Borrowing.  Each Swingline Euro Borrowing shall be
comprised entirely of Swingline Euro Loans. 
Each Lender at its option may make any ABR Loan or Eurocurrency Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the
obligation of the applicable Borrower to repay such Loan in accordance with the
terms of this Agreement and such Lender shall not be entitled to any amounts
payable under Section 2.15, 2.17 or 2.21 solely in respect of increased costs
resulting from such exercise and existing at the time of such exercise.


 


(c)           At
the commencement of each Interest Period for any Eurocurrency Revolving
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of the Borrowing Multiple and not less than the Borrowing
Minimum.  At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate amount
that is an integral multiple of the Borrowing Multiple and not less than the
Borrowing Minimum; provided that an ABR Revolving Borrowing may be in an
aggregate amount that is equal to the entire unused balance of the Revolving
Facility Commitments or that is required to finance the reimbursement of an L/C
Disbursement as contemplated by Section 2.05(e).  Each Swingline Dollar Borrowing and Swingline
Euro Borrowing shall be in an amount that is an integral multiple


 


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of the Borrowing
Multiple and not less than the Borrowing Minimum.  Borrowings of more than one Type and under
more than one Facility may be outstanding at the same time; provided
that there shall not at any time be more than a total of (i) five Eurocurrency
Borrowings outstanding under the Term Loan Facility and (ii) 10 Eurocurrency
Borrowings outstanding under the Revolving Facility.


 


(d)           Notwithstanding
any other provision of this Agreement, no Borrower shall be entitled to
request, or to elect to convert or continue, any Borrowing if the Interest
Period requested with respect thereto would end after the Revolving Facility
Maturity Date or Term Loan Maturity Date, as applicable.


 


SECTION 2.03  Requests for Borrowings.  To request any Borrowing, the applicable
Borrower shall notify the Administrative Agent of such request by telephone (a)
in the case of a Eurocurrency Borrowing, not later than 11:00 a.m., Local Time,
three Business Days before the date of the proposed Borrowing or (b) in the
case of an ABR Borrowing, not later than 12:00 noon, Local Time, one Business
Day before the date of the proposed Borrowing; provided that any such
notice of an ABR Revolving Borrowing to finance the reimbursement of an L/C
Disbursement as contemplated by Section 2.05(e) may be given not later than
11:00 a.m., Local Time, on the date of the proposed Borrowing.  Each such telephonic Borrowing Request shall
be irrevocable and shall be confirmed promptly by hand delivery or telecopy to
the Administrative Agent of a written Borrowing Request in a form approved by
the Administrative Agent and signed by the applicable Borrower.  Each such telephonic and written Borrowing
Request shall specify the following information in compliance with Section
2.02:


 


(i)            the Borrower requesting such
Borrowing;


 


(ii)           whether the requested Borrowing is to
be a Revolving Facility Borrowing or Term Loan Borrowing;


 


(iii)          the aggregate amount of the requested
Borrowing (expressed in Dollars or, if permitted to be borrowed in Euros, in
Euros);


 


(iv)          the date of such Borrowing, which
shall be a Business Day;


 


(v)           in the case of a Borrowing
denominated in Dollars, whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing;


 


(vi)          in the case of a Eurocurrency
Borrowing, the initial Interest Period to be applicable thereto, which shall be
a period contemplated by clause (a) of the definition of the term “Interest
Period”; and


 


(vii)         the location and number of the
applicable Borrower’s account to which funds are to be disbursed.


 


If no election as to the
Type of Borrowing is specified, then the requested Borrowing shall be an ABR
Borrowing, unless such Borrowing is denominated in Euros, in which case such
Borrowing shall be a Eurocurrency Borrowing. 
If no Interest Period is specified with respect to any requested Eurocurrency
Borrowing, then the applicable Borrower shall be deemed to have


 


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selected an Interest
Period of one month’s duration.  Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender’s Loan to be made as part of the requested Borrowing.


 


SECTION 2.04  Swingline Loans.  (a) 
Subject to the terms and conditions set forth herein, (i) each Swingline
Dollar Lender agrees to make Swingline Dollar Loans to any Swingline Borrower
from time to time during the Revolving Availability Period, in an aggregate
principal amount at any time outstanding for all Swingline Dollar Loans that
will not result in (x) the aggregate principal amount of outstanding Swingline
Dollar Loans made by such Swingline Dollar Lender exceeding such Swingline
Dollar Lender’s Swingline Dollar Commitment or (y) the Revolving Facility
Credit Exposure exceeding the total Revolving Facility Commitments and (ii)
each Swingline Euro Lender agrees to make Swingline Euro Loans to any Swingline
Borrower from time to time during the Revolving Availability Period, in an
aggregate principal amount at any time outstanding for all Swingline Euro Loans
that will not result in (x) the aggregate principal amount of outstanding
Swingline Euro Loans made by such Swingline Euro Lender exceeding such
Swingline Euro Lender’s Swingline Euro Commitment or (y) the sum of the
Revolving Facility Credit Exposure exceeding the total Revolving Facility
Commitments; provided that no Swingline Lender shall be required to make
a Swingline Loan to refinance an outstanding Swingline Dollar Borrowing or
Swingline Euro Borrowing.  Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrowers may borrow, prepay and reborrow Swingline Loans.


 


(b)           To
request a Swingline Dollar Borrowing or Swingline Euro Borrowing, the
applicable Borrower shall notify the Administrative Agent and the applicable
Swingline Lender of such request by telephone (confirmed by a Swingline
Borrowing Request by telecopy), not later than 11:00 a.m., Local Time, on the
day of a proposed Swingline Borrowing (or in the case of a Swingline Euro
Borrowing, 10:00 a.m. New York time, on the Business Day preceding the date of
the proposed Swingline Euro Borrowing). 
Each such notice and Swingline Borrowing Request shall be irrevocable
and shall specify (i) the Borrower requesting such Borrowing, (ii) the requested
date (which shall be a Business Day), (iii) the amount of the requested
Swingline Dollar Borrowing (expressed in Dollars) or Swingline Euro Borrowing
(expressed in Euros), as applicable, and (iv) in the case of a Swingline Euro
Borrowing, the Interest Period to be applicable thereto, which shall be a
period contemplated by clause (b) of the definition of the term “Interest
Period.”  The Administrative Agent shall
promptly advise each Swingline Dollar Lender (in the case of a notice relating
to a Swingline Dollar Borrowing) or each Swingline Euro Lender (in the case of
a notice relating to a Swingline Euro Borrowing) of any such notice received
from a Borrower and the amount of such Swingline Lender’s Swingline Loan to be
made as part of the requested Swingline Dollar Borrowing or Swingline Euro
Borrowing, as applicable.  Each Swingline
Dollar Lender shall make each Swingline Dollar Loan to be made by it hereunder
in accordance with Section 2.04(a) on the proposed date thereof by wire
transfer of immediately available funds by 3:00 p.m., Local Time, to the
account of the Administrative Agent by notice to the Swingline Dollar
Lenders.  The Administrative Agent will
make such Swingline Dollar Loans available to the applicable Swingline Borrower
by promptly crediting the amounts so received, in like funds, to the general
deposit account of the applicable Swingline Borrower with the Administrative
Agent (or, in the case of a Swingline Dollar Borrowing made to finance the
reimbursement of an L/C Disbursement as provided in Section


 


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2.05(e), by
remittance to the applicable Issuing Bank). 
Each Swingline Euro Lender shall make each Swingline Euro Loan to be
made by it hereunder in accordance with Section 2.04(a) on the proposed date
thereof by wire transfer of immediately available funds by 3:00 p.m., Local
Time, to the account of the Administrative Agent most recently designated by it
for such purpose by notice to the Swingline Euro Lenders.  The Administrative Agent will make such
Swingline Euro Loans available to the applicable Swingline Borrower by
(i) promptly crediting the amounts so received, in like funds, to the
general deposit account with the Administrative Agent of the applicable
Swingline Borrower most recently designated to the Administrative Agent or (ii)
by wire transfer of the amounts received in immediately available funds to the
general deposit account of the applicable Swingline Borrower most recently
designated to the Administrative Agent.


 


(c)           A
Swingline Lender may by written notice given to the Administrative Agent (and
to the other Swingline Dollar Lenders or Swingline Euro Lenders, as applicable)
not later than 10:00 a.m., Local Time, on any Business Day require the
Revolving Facility Lenders to acquire participations on such Business Day in
all or a portion of the outstanding Swingline Loans made by it.  Such notice shall specify the aggregate
amount of such Swingline Loans in which the Revolving Facility Lenders will
participate.  Promptly upon receipt of
such notice, the Administrative Agent will give notice thereof to each such
Lender, specifying in such notice such Lender’s Revolving Facility Percentage
of such Swingline Loan or Loans.  Each
Revolving Facility Lender hereby absolutely and unconditionally agrees, upon
receipt of notice as provided above, to pay to the Administrative Agent, for
the account of the applicable Swingline Lender, such Revolving Facility Lender’s
Revolving Facility Percentage of such Swingline Loan or Loans.  Each Revolving Facility Lender acknowledges
and agrees that its respective obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. 
Each Revolving Facility Lender shall comply with its obligation under
this paragraph by wire transfer of immediately available funds, in the same
manner as provided in Section 2.06 with respect to Loans made by such Revolving
Facility Lender (and Section 2.06 shall apply, mutatis  mutandis, to the payment obligations of
the Lenders), and the Administrative Agent shall promptly pay to the applicable
Swingline Lender the amounts so received by it from the Revolving Facility
Lenders.  The Administrative Agent shall
notify the applicable Borrower of any participations in any Swingline Loan
acquired pursuant to this paragraph (c), and thereafter payments in respect of
such Swingline Loan shall be made to the Administrative Agent and not to the
applicable Swingline Lender.  Any amounts
received by a Swingline Lender from the applicable Borrower (or other party on
behalf of such Borrower) in respect of a Swingline Loan after receipt by such
Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Revolving Facility Lenders that shall have made their payments pursuant to
this paragraph and to such Swingline Lender, as their interests may appear; provided
that any such payment so remitted shall be repaid to such Swingline Lender or
to the Administrative Agent, as applicable, if and to the extent such payment
is required to be refunded to the applicable Borrower for any reason.  The purchase of participations in a Swingline
Loan pursuant to this paragraph shall not relieve the applicable Borrower of
any default in the payment thereof.


 


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SECTION 2.05  Letters of Credit.


 


(a)           General.  Each Existing Letter of Credit shall, on and
after the Closing Date (if the issuer thereof is a Lender on the Closing Date)
constitute a Letter of Credit issued hereunder for all purposes of this
Agreement and the other Loan Documents. 
In addition, subject to the terms and conditions set forth herein,
Parent may request the issuance of Dollar Letters of Credit and Euro Letters of
Credit for its own account or for the account of any of the other Revolving
Borrowers in a form reasonably acceptable to the applicable Issuing Bank, at
any time and from time to time during the Revolving Availability Period and
prior to the date that is five Business Days prior to the Revolving Facility
Maturity Date.  All Letters of Credit
shall be issued on a sight basis only.


 


(b)           Notice
of Issuance, Amendment, Renewal, Extension; Certain Conditions.  To request the issuance of a Letter of
Credit, Parent shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the
applicable Issuing Bank) to the applicable Issuing Bank, with a copy to the
Administrative Agent at least two Business Days (or such shorter period agreed
to by the Issuing Bank) in advance of the requested date of issuance a request
in the form of Exhibit B-2 (a “Request to Issue”) for the
issuance of a Letter of Credit.  If
requested by the applicable Issuing Bank, Parent also shall submit a letter of
credit application on such Issuing Bank’s standard form in connection with any
request for a Letter of Credit and in the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any such
form of letter of credit application, the terms and conditions of this
Agreement shall control.  A Letter of
Credit shall be issued, amended, renewed or extended only if after giving
effect thereto (i) the Revolving L/C Exposure shall not exceed $25.0 million,
(ii) the Revolving Facility Credit Exposure shall not exceed the total
Revolving Facility Commitments and (iii) the aggregate Revolving Facility
Credit Exposure with respect to any Revolving Borrower shall not exceed the
Maximum Credit Limit for such Revolving Borrower.  No Letter of Credit shall be issued,
increased in stated amount, or renewed or extended without the prior consent of
the Administrative Agent, such consent to be limited to the question of whether
such issuance, increase, renewal or extension is being effected on the terms
and conditions of this Agreement.


 


(c)           Expiration
Date.  Each Letter of Credit shall
expire at or prior to the close of business on the earlier of (i) in the case
of standby Letters of Credit, (x) the date one year after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (y) the date that is
five Business Days prior to the Revolving Facility Maturity Date and (ii) in
the case of trade Letters of Credit, (x) the date 180 days after the issuance
of such Letter of Credit and (y) the date that is 30 days prior to the
Revolving Facility Maturity Date; provided that any standby Letter of
Credit may provide for the automatic renewal thereof for additional one-year
periods (which, in no event, shall extend beyond the date referred to in clause
(i)(y) of this paragraph (c)).


 


(d)           Participations.  By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or any Lenders, such
Issuing Bank hereby grants to each Revolving Facility Lender (such Revolving
Facility Lender in its capacity under this Section 2.05(d), a “Participant”)
and each such Participant hereby acquires from such Issuing Bank, a
participation


 


59





















 


in such Letter of
Credit equal to such Revolving Facility Lender’s Revolving Facility Percentage
as in effect from time to time of the aggregate amount available to be drawn
under such Letter of Credit.  In
consideration and in furtherance of the foregoing, each Revolving Facility
Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent in Dollars or Euros, as the case may be, for the account
of the applicable Issuing Bank, such Lender’s Revolving Facility Percentage of
each L/C Disbursement made in respect of a Letter of Credit and not reimbursed
by the Applicant Party on the date due as provided in paragraph (e) of this
Section, or of any reimbursement payment required to be refunded to the
Applicant Party for any reason.  Each
Participant acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and, in the case of a Revolving Facility
Lender, that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.


 


(e)           Reimbursement.  If the applicable Issuing Bank shall make any
L/C Disbursement in respect of a Letter of Credit, the applicable Applicant
Party shall reimburse such L/C Disbursement by paying to the Administrative
Agent an amount equal to such L/C Disbursement in Dollars or Euros, as the case
may be, not later than 5:00 p.m., New York City time, on the Business Day
immediately following the date the applicable Applicant Party receives notice
under paragraph (g) of this Section of such L/C Disbursement, provided
that in the case of any L/C Disbursement under a Letter of Credit issued for
the account of a Revolving Borrower, such Revolving Borrower may, subject to
the conditions to borrowing set forth herein, request in accordance with Section
2.03 or 2.04 that such payment be financed (x) if a Dollar Letter of Credit,
with an ABR Revolving Borrowing or Swingline Dollar Borrowing, as applicable,
or (y) if a Euro Letter of Credit, with a Swingline Euro Borrowing in each
case, in an equivalent amount and, to the extent so financed, such Revolving
Borrower’s obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Borrowing, Swingline Dollar Borrowing or Swingline
Euro Borrowing, as the case may be.  If
the applicable Applicant Party fails to reimburse any L/C Disbursement under a
Letter of Credit when due, then the Administrative Agent shall promptly notify
the applicable Issuing Bank and each relevant Participant of the applicable L/C
Disbursement, the payment then due in respect thereof and, in the case of each
such Participant, such Participant’s Revolving Facility Percentage
thereof.  Promptly following receipt of
such notice, each Participant shall pay to the Administrative Agent in Dollars
or Euros, as applicable, its Revolving Facility Percentage of the payment then
due from the applicable Applicant Party, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall
apply, mutatis  mutandis, to the payment obligations of the
Participants), and the Administrative Agent shall promptly pay to the
applicable Issuing Bank in Dollars or Euros, as applicable, the amounts so
received by it from such Participants. 
All reimbursements of Issuing Banks by Revolving Facility Lenders shall
be made as provided herein notwithstanding the occurrence of a CAM Exchange
Date after the L/C Disbursement and prior to such reimbursement.  Promptly following receipt by the
Administrative Agent of any payment from the applicable Applicant Party
pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the applicable Issuing Bank or, to the extent that Participants have
made payments pursuant to this paragraph to reimburse such Issuing Bank, then
to such Lenders and such Issuing Bank as their interests may appear.  Any payment made by a Revolving Facility
Lender pursuant to this paragraph to reimburse an Issuing Bank for


 


60





















 


any L/C Disbursement
(other than the funding of an ABR Revolving Loan or a Swingline Dollar
Borrowing as contemplated above) shall constitute a Loan and no payment shall
relieve the Applicant Party of its obligation to reimburse each L/C
Disbursement.


 


(f)            Obligations
Absolute.  The obligation of the
applicable Applicant Party to reimburse L/C Disbursements as provided in
paragraph (e) of this Section shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of this Agreement
under any and all circumstances whatsoever and irrespective of (i) any lack of
validity or enforceability of any Letter of Credit or this Agreement, or any
term or provision therein, (ii) any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid in any respect or
any statement therein being untrue or inaccurate in any respect, (iii) payment
by the applicable Issuing Bank under a Letter of Credit against presentation of
a draft or other document that does not comply with the terms of such Letter of
Credit or (iv) any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of this
Section, constitute a legal or equitable discharge of, or provide a right of
setoff against, the Applicant Party’s obligations hereunder; provided
that, in each case, payment by the Issuing Bank shall not have constituted
gross negligence or willful misconduct as determined by a final and
nonappealable decision of court of competent jurisdiction.  Neither the Administrative Agent, the Lenders
nor any Issuing Bank, nor any of their Related Parties, shall have any
liability or responsibility by reason of or in connection with the issuance or
transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of such Issuing Bank; provided
that the foregoing shall not be construed to excuse the applicable Issuing Bank
from liability to an Applicant Party to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby waived
by each Applicant Party to the extent permitted by applicable law) suffered by
such Applicant Party that are determined by a court having jurisdiction to have
been caused by (i) such Issuing Bank’s failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof or (ii) such Issuing Bank’s refusal to
issue a Letter of Credit in accordance with the terms of this Agreement.  The parties hereto expressly agree that, in
the absence of gross negligence or willful misconduct as determined by a final
and nonappealable decision of court of competent jurisdiction on the part of
the applicable Issuing Bank, such Issuing Bank shall be deemed to have
exercised care in each such determination and each refusal to issue a Letter of
Credit.  In furtherance of the foregoing
and without limiting the generality thereof, the parties agree that, with
respect to documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the applicable Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.


 


(g)           Disbursement
Procedures.  The applicable Issuing
Bank shall, promptly following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of Credit.  Such Issuing Bank shall promptly notify the
Administrative


 


61





















 


Agent, the Applicant
Party and Parent (if Parent is not the Applicant Party) by telephone (confirmed
by telecopy) of such demand for payment and whether such Issuing Bank has made
or will make a L/C Disbursement thereunder; provided that any failure to
give or delay in giving such notice shall not relieve the Applicant Party of
its obligation to reimburse such Issuing Bank and the Revolving Facility
Lenders with respect to any such L/C Disbursement.


 


(h)           Interim
Interest.  If an Issuing Bank shall
make any L/C Disbursement, then, unless the applicable Applicant Party shall
reimburse such L/C Disbursement in full on the date such L/C Disbursement is
made, the unpaid amount thereof shall bear interest, for each day from and
including the date such L/C Disbursement is made to but excluding the date that
the applicable Applicant Party reimburses such L/C Disbursement, at the rate
per annum then applicable to ABR Revolving Loans provided that, in the
case of a L/C Disbursement made in respect of a Euro Letter of Credit, the
amount of interest due with respect thereto shall (A) be payable in Euros and
(B) bear interest at a rate equal to the rate reasonably determined by the
applicable Issuing Bank to be the cost to such Issuing Bank of funding such L/C
Disbursement plus the Applicable Margin applicable to Eurocurrency Revolving
Loans at such time; and provided, further, that, if such L/C
Disbursement is not reimbursed by the applicable Applicant Party when due
pursuant to paragraph (e) of this Section, then Section 2.13(c) shall
apply.  Interest accrued pursuant to this
paragraph shall be for the account of the applicable Issuing Bank, except that
interest accrued on and after the date of payment by any Revolving Facility
Lender pursuant to paragraph (e) of this Section to reimburse such Issuing Bank
shall be for the account of such Revolving Facility Lender to the extent of
such payment.


 


(i)            Replacement
of an Issuing Bank.  An Issuing Bank
may be replaced at any time by written agreement among Parent, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing
Bank.  The Administrative Agent shall
notify the Lenders of any such replacement of an Issuing Bank.  At the time any such replacement shall become
effective, Parent shall pay all unpaid fees accrued for the account of the
replaced Issuing Bank pursuant to Section 2.12. 
From and after the effective date of any such replacement, (i) the
successor Issuing Bank shall have all the rights and obligations of the
replaced Issuing Bank under this Agreement with respect to Letters of Credit to
be issued thereafter and (ii) references herein to the term “Issuing Bank”
shall be deemed to refer to such successor or to any previous Issuing Bank, or
to such successor and all previous Issuing Banks, as the context shall
require.  After the replacement of an
Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto
and shall continue to have all the rights and obligations of such Issuing Bank
under this Agreement with respect to Letters of Credit issued by it prior to
such replacement but shall not be required to issue additional Letters of Credit.


 


(j)            Cash
Collateralization.  If any Event of
Default shall occur and be continuing, (i) in the case of an Event of Default
described in Section 7.01(h) or (i), on the Business Day or (ii) in the case of
any other Event of Default, on the fifth Business Day, following the date on
which Parent receives notice from the Administrative Agent (or, if the maturity
of the Loans has been accelerated, Revolving Facility Lenders with Revolving
L/C Exposure representing greater than 50% of the total Revolving L/C Exposure)
demanding the deposit of cash collateral pursuant to this paragraph, Parent
agrees to deposit in an account with the Administrative Agent, in the name of
the Administrative Agent and for the benefit of the Revolving Facility Lenders,
an amount in Dollars in cash equal to the Revolving L/C Exposure


 


62





















 


as of such date plus
any accrued and unpaid interest thereon; provided that the portion of
such amount attributable to undrawn Euro Letters of Credit or L/C Disbursements
in Euros shall be deposited with the Administrative Agent in Euros in the
actual amounts of such undrawn Letters of Credit and L/C Disbursements.  The obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall become
immediately due and payable in Dollars or Euros, as applicable, without demand
or other notice of any kind.  The
applicable Applicant Party also shall deposit cash collateral pursuant to this
paragraph as and to the extent required by Section 2.11(b).  Each such deposit pursuant to this paragraph
or pursuant to Section 2.11(b) shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Borrowers
under this Section 2.05.  The Administrative
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account.  Other
than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of (i) for so long as an Event
of Default shall be continuing, the Administrative Agent and (ii) at any other
time, Parent, in each case, in Permitted Investments and at the risk and
expense of Parent, such deposits shall not bear interest.  Interest or profits, if any, on such
investments shall accumulate in such account. 
Moneys in such account shall be applied by the Administrative Agent to
reimburse each Issuing Bank for L/C Disbursements for which such Issuing Bank
has not been reimbursed and, to the extent not so applied, shall be held for
the satisfaction of the reimbursement obligations of the Borrowers for the
Revolving L/C Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Facility Lenders with
Revolving L/C Exposure representing greater than 50% of the total Revolving L/C
Exposure), be applied to satisfy other obligations of the Borrowers under this
Agreement.  If an Applicant Party is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to such Applicant Party within three Business Days
after all Events of Default have been cured or waived.  If a Borrower is required to provide an
amount of cash collateral hereunder pursuant to Section 2.11(b), such amount
(to the extent not applied as aforesaid) shall be returned to such Borrower as
and to the extent that, after giving effect to such return, the Borrowers would
remain in compliance with Section 2.11(b) and no Event of Default shall have
occurred and be continuing.


 


(k)           Additional
Issuing Banks.  From time to time,
Parent may by notice to the Administrative Agent designate up to two Lenders
(in addition to DBAG and any Lender that is an issuer of Existing Letters of
Credit) that agree (in their sole discretion) to act in such capacity and are
reasonably satisfactory to the Administrative Agent as Issuing Banks.  Each such additional Issuing Bank shall
execute a counterpart of this Agreement upon the approval of the Administrative
Agent (which approval shall not be unreasonably withheld) and shall thereafter
be an Issuing Bank hereunder for all purposes.


 


(l)            Reporting.  Promptly upon the issuance or amendment by it
of a standby Letter of Credit, an Issuing Bank shall notify Parent and the
Administrative Agent, in writing, of such issuance or amendment and such notice
shall be accompanied by a copy of such issuance or amendment.  Upon receipt of such notice, the
Administrative Agent shall notify each Lender, in writing, of such issuance or
amendment, and if so requested by a Lender the Administrative Agent shall
provide such Lender with a copy of such issuance or amendment.  Each Issuing Bank shall on the first Business
Day of each calendar week during which any Letters of Credit issued by such
Issuing Bank are outstanding provide the Administrative Agent, by facsimile,


 


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with a report
detailing the aggregated daily outstandings of each such Letter of Credit
issued by it.


 


(m)          Change
in Law.  Notwithstanding any other
provision of this Agreement, if, after the Closing Date, any Change in Law
shall make it unlawful for an Issuing Bank to issue Letters of Credit denominated
in Euros, then by prompt written notice thereof to Parent and to the
Administrative Agent (which notice shall be withdrawn whenever such
circumstances no longer exist), such Issuing Bank may declare that Letters of
Credit will not thereafter (for the duration of such declaration) be issued by
it in Euros.


 


SECTION 2.06  Funding of Borrowings.  (a) 
Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds by 12:00
noon, Local Time, to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders; provided
that Swingline Loans shall be made as provided in Section 2.04.  The Administrative Agent will make the
proceeds of funds made available to it pursuant to the preceding sentence
available to the applicable Borrower by promptly crediting the amounts so
received, in like funds, to an account of the applicable Borrower maintained
with the Administrative Agent (i) in New York City, in the case of Loans
denominated in Dollars, or (ii) in London, in the case of Loans denominated in
Euros and designated by the applicable Borrower in the applicable Borrowing
Request; provided that ABR Revolving Loans, Swingline Dollar Borrowings
and Swingline Euro Borrowings made to finance the reimbursement of a L/C
Disbursement as provided in Section 2.05(e) shall be remitted by the
Administrative Agent to the applicable Issuing Bank.


 


(b)           Unless
the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing of Revolving Facility Loans and/or Term Loans
that such Lender will not make available to the Administrative Agent such
Lender’s share of such Borrowing, the Administrative Agent may assume that such
Lender has made such share available on such date in accordance with paragraph
(a) of this Section and may, in reliance upon such assumption, make available
to the applicable Borrower a corresponding amount.  In such event, if a Lender has not in fact made
its share of the applicable Borrowing of Revolving Facility Loans or Term Loans
available to the Administrative Agent, then the applicable Lender and the
applicable Borrower severally agree to pay to the Administrative Agent
forthwith on demand (without duplication) such corresponding amount (with
demand to be first made on such Lender if legally possible) with interest
thereon, for each day from and including the date such amount is made available
to the applicable Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Lender, (x) the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation (in the case
of a Borrowing denominated in Dollars) or (y) the rate reasonably determined by
the Administrative Agent to be the cost to it of funding such amount (in the
case of a Borrowing denominated in Euros) or (ii) in the case of the applicable
Borrower, the interest rate applicable to ABR Loans (in the case of a Borrowing
denominated in Dollars) or the rate reasonably determined by the Administrative
Agent to be the cost to it of funding such amount (in the case of a Borrowing
denominated in Euros).  If such Lender
pays such amount to the Administrative Agent, then such amount shall constitute
such Lender’s Loan included in such Borrowing.


 


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SECTION 2.07  Interest Elections.  (a) 
Each Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a Eurocurrency Borrowing,
shall have an initial Interest Period as specified in such Borrowing
Request.  Thereafter, the applicable
Borrower may elect to convert such Borrowing to a different Type, in the case
of Borrowings denominated in Dollars, or to continue such Borrowing and, in the
case of a Eurocurrency Borrowing, may elect Interest Periods therefor, all as
provided in this Section.  The applicable
Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing.  This Section shall not apply to Swingline
Euro Borrowings or Swingline Dollar Borrowings, which may not be converted or
continued.


 


(b)           To
make an election pursuant to this Section, the applicable Borrower shall notify
the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if such Borrower were
requesting a Borrowing of the Type and denominated in Euros resulting from such
election to be made on the effective date of such election.  Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery
or telecopy to the Administrative Agent of a written Interest Election Request
in a form approved by the Administrative Agent and signed by the applicable
Borrower.


 


(c)           Each
telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:


 


(i)            the Borrowing to which such Interest
Election Request applies and, if different options are being elected with
respect to different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);


 


(ii)           the effective date of the election
made pursuant to such Interest Election Request, which shall be a Business Day;


 


(iii)          whether the resulting Borrowing is to
be an ABR Borrowing or a Eurocurrency Borrowing; provided that the
resulting Borrowing is required to be a Eurocurrency Borrowing in the case of a
Borrowing denominated in Euros; and


 


(iv)          if the resulting Borrowing is a
Eurocurrency Borrowing, the Interest Period to be applicable thereto after
giving effect to such election, which shall be a period contemplated by clause
(a) of the definition of the term “Interest Period.”


 


If any such Interest Election
Request requests a Eurocurrency Borrowing but does not specify an Interest
Period, then the applicable Borrower shall be deemed to have selected an
Interest Period of one month’s duration.


 


(d)           Promptly
following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender to which such Interest Election Request relates of the
details thereof and of such Lender’s portion of each resulting Borrowing.


 


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(e)           If
the applicable Borrower fails to deliver a timely Interest Election Request
with respect to a Eurocurrency Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be continued as
a Eurocurrency Borrowing with an Interest Period of one month’s duration
commencing on the last day of such Interest Period.  Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the written request (including a request through
electronic means) of the Required Lenders, so notifies the applicable Borrower,
then, so long as an Event of Default is continuing (i) except as provided in
clause (iii) below, no outstanding Borrowing may be converted to or continued
as a Eurocurrency Borrowing, (ii) unless repaid, each Eurocurrency Borrowing
denominated in Dollars shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto and (iii) unless repaid, each Eurocurrency
Borrowing denominated in Euros shall be continued as a Eurocurrency Borrowing
with an Interest Period of one month’s duration.


 


SECTION 2.08  Termination and Reduction of Commitments.  (a) 
Unless previously terminated, the Revolving Facility Commitments shall
terminate on the Revolving Facility Maturity Date.  The Term Loan Commitment of each Term Lender
shall terminate at 5 p.m. New York City time on the Closing Date.


 


(b)           Parent
(on behalf of itself and, in connection with reductions to the Revolving
Facility Commitments, all other Revolving Borrowers) may at any time terminate,
or from time to time reduce, the Revolving Facility Commitments or the Term
Loan Commitments, as the case may be; provided that (i) each such
reduction of an amount denominated in Dollars shall be in an amount that is an
integral multiple of $1.0 million and not less than $5.0 million (or, if less,
the remaining amount of the Revolving Facility Commitments or Term Loan
Commitments, as the case may be), and (ii) Parent shall not terminate or reduce
the Revolving Facility Commitments if, after giving effect to any concurrent
prepayment of the Revolving Facility Loans in accordance with Section 2.11, the
Revolving Facility Credit Exposure would exceed the total Revolving Facility
Commitments.


 


(c)           Parent
shall notify the Administrative Agent of any election to terminate or reduce
the Revolving Facility Commitments and/or Term Loan Commitments under paragraph
(b) of this Section at least three Business Days prior to the effective date of
such termination or reduction, specifying such election and the effective date
thereof.  Promptly following receipt of
any notice, the Administrative Agent shall advise the applicable Lenders of the
contents thereof.  Each notice delivered
by Parent pursuant to this Section shall be irrevocable; provided that a
notice of termination of the Revolving Facility Commitments and/or Term Loan
Commitments delivered by Parent may state that such notice is conditioned upon
the effectiveness of other credit facilities, in which case such notice may be
revoked by Parent (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied.  Any termination or reduction of Commitments
shall be permanent.  Each reduction of
the Commitments under any Facility shall be made ratably among the Lenders in
accordance with their respective Commitments under such Facility.


 


SECTION 2.09  Repayment of Loans; Evidence of Debt, etc.  (a) 
Parent hereby unconditionally promises to pay (i) on the Revolving
Facility Maturity Date in Euros or Dollars,


 


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as applicable, to the
Administrative Agent for the account of each Revolving Facility Lender the then
unpaid principal amount of each Revolving Facility Loan made to Parent and (ii)
in Dollars, to the Administrative Agent for the account of each Lender the then
unpaid principal amount of each Term Loan of such Lender as provided in Section
2.10.  Each Swingline Borrower hereby
unconditionally promises to pay in Dollars to each Swingline Lender the then
unpaid principal amount of each Swingline Dollar Loan made to such Borrower on
the earlier of the Revolving Facility Maturity Date and the first date after
such Swingline Dollar Loan is made that is the 15th or last day of a calendar
month and is at least five Business Days after such Swingline Dollar Loan is
made; provided that on each date that a Revolving Facility Borrowing is
made by such Borrower, then such Borrower shall repay all its Swingline Dollar
Loans then outstanding.  Each Revolving
Borrower hereby unconditionally promises to pay in Dollars (or in Euros if the
Revolving Facility Borrowing was made in Euros) to the Administrative Agent for
the account of each Revolving Facility Lender the then unpaid principal amount
of each Revolving Facility Loan to such Borrower on the Revolving Facility
Maturity Date.  Each Swingline Borrower
hereby unconditionally promises to pay in Euros to each Swingline Euro Lender
the then unpaid principal amount of each Swingline Euro Loan made by such
Lender to such Borrower on the earlier of the Revolving Facility Maturity Date
and the last day of the Interest Period applicable to such Swingline Euro Loan.


 


(b)           Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of each Borrower to such Lender resulting
from each Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.


 


(c)           The
Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, the Facility and Type thereof and the
Interest Period (if any) applicable thereto, (ii) the amount of any principal
or interest due and payable or to become due and payable from each Borrower to
each Lender hereunder and (iii) any amount received by the Administrative Agent
hereunder for the account of the Lenders and each Lender’s share thereof.


 


(d)           The
entries made in the accounts maintained pursuant to paragraph (b) or (c) of
this Section shall be prima  facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure
of any Lender or the Administrative Agent to maintain such accounts or any
error therein shall not in any manner affect the obligation of any Borrower to
repay the Loans in accordance with the terms of this Agreement.


 


(e)           Any
Lender may request that Loans made by it be evidenced by a promissory
note.  In such event, the applicable
Borrower shall prepare, execute and deliver to such Lender a promissory note
payable to the order of such Lender (or, if requested by such Lender, to such
Lender and its registered assigns) and in a form approved by the Administrative
Agent.  Thereafter, the Loans evidenced
by such promissory note and interest thereon shall at all times (including
after assignment pursuant to Section 9.04) be represented by one or more
promissory notes in such form payable to the order of the payee named therein
(or, if such promissory note is a registered note, to such payee and its registered
assigns).


 


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SECTION 2.10  Repayment of Loans.  (a) 
Subject to adjustment pursuant to paragraph (c) of this Section, Parent
shall repay Term Loans on (x) the last day of each of June and December of each
year (each such date being referred to as an “Installment Date”)
following the six month anniversary of the Closing Date and prior to the Term
Loan Maturity Date in an amount equal to 1/2 of 1% of the original aggregate
principal amount of Term Loans incurred on the Closing Date, and (y) the Term
Loan Maturity Date in an amount equal to the remaining principal amount of the
Term Loans.


 


(b)           To
the extent not previously paid, all Term Loans shall be due and payable on the
Term Loan Maturity Date.


 


(c)           Prepayment
from Net Proceeds of the types described in clauses (a) and (b) of the
definition of Net Proceeds and the Required NSS-8 Proceeds Percentage of NSS-8
Asset Sale Proceeds pursuant to Section 2.11(c) shall be made with respect to
the Term Loans and shall be applied (i) first, to reduce scheduled
amortization payments pursuant to Section 2.10(a) above on Installment Dates
occurring within the 12-month period after the date of any such prepayment and
(ii) second to reduce on a pro  rata  basis (based on the amount of
such amortization payments) the remaining scheduled amortization payments in
respect of the Term Loans.  Prepayment
from Net Proceeds of the type described in clause (c) of the definition of Net
Proceeds pursuant to Section 2.11(c) or from Excess Cash Flow pursuant to
Section 2.11(d) shall be applied to the Term Loans and shall be applied to
reduce scheduled amortization payments in respect of the Term Loans as directed
by Parent (it being understood and agreed that if no such direction is made by
Parent within 30 days following such prepayment, then such prepayment shall be
applied (i) first, to reduce scheduled amortization payments pursuant to
Section 2.10(a) above on Installment Dates occurring within the 12-month period
after the date of any such prepayment and (ii) second to reduce on a pro
rata basis (based on the amount of such amortization payments) the
remaining scheduled amortization payments in respect of the Term Loans).  To the extent the amount of any required
prepayment of Term Loans pursuant to Section 2.11(c) or 2.11(d) exceeds the
aggregate principal amount of Term Loans then outstanding, such excess (which
may be the entire amount of such required prepayment if no Term Loans were
outstanding immediately prior to such required prepayment) shall be applied to
repay outstanding Revolving Facility Loans (with no corresponding reduction to
the Revolving Facility Commitments).


 


(d)           Any
Lender holding Term Loans may elect, on not less than two Business Days’ prior
written notice to the Administrative Agent with respect to any mandatory
prepayment made pursuant to Section 2.11(c) or 2.11(d), not to have such
prepayment applied to such Lender’s Term Loans, in which case the amount not so
applied shall be retained by Parent (and applied as it elects).


 


(e)           Prior
to any repayment of any Borrowing under any Facility hereunder, the applicable
Borrower shall select the Borrowing or Borrowings under such Facility to be
repaid and shall notify the Administrative Agent by telephone (confirmed by
telecopy) of such selection not later than 2:00 p.m., Local Time, (i) in the
case of an ABR Borrowing, one Business Day before the scheduled date of such
repayment and (ii) in the case of a Eurocurrency Borrowing, three Business Days
before the scheduled date of such repayment. 
Each repayment of a Borrowing (x) in the case of the Revolving Facility,
shall be applied to the Revolving


 


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Facility Loans
included in the repaid Borrowing such that each Revolving Facility Lender
receives its ratable share of such repayment (based upon the respective
Revolving Facility Credit Exposures of the Revolving Facility Lenders at the
time of such repayment) and (y) in all other cases, shall be applied ratably to
the Loans included in the repaid Borrowing. 
Notwithstanding anything to the contrary in the immediately preceding
sentence, prior to any repayment of a Swingline Dollar Borrowing or a Swingline
Euro Borrowing hereunder, the applicable Swingline Borrower shall select the
Borrowing or Borrowings to be repaid and shall notify the Administrative Agent
by telephone (confirmed by telecopy) of such selection not later than 1:00
p.m., Local Time, on the scheduled date of such repayment.  Except as provided in Section 2.13(d),
repayments of Borrowings shall be accompanied by accrued interest on the amount
repaid.


 


SECTION 2.11  Prepayments, etc.  (a)  The applicable Borrower shall
have the right at any time and from time to time to prepay any Borrowing in
whole or in part, without premium or penalty (but subject to Section 2.16), in
an aggregate principal amount that is an integral multiple of the Borrowing
Multiple and not less than the Borrowing Minimum or, if less, the amount
outstanding, subject to prior notice in accordance with Section 2.10(e), provided
that such optional prepayments of the Term Loans shall be applied to reduce the
remaining scheduled amortization payments in respect of the Term Loans as
directed by Parent (it being understood and agreed that if no such direction is
made by Parent within 30 days following such prepayment, then such prepayment
shall be applied (i) first, to reduce scheduled amortization payments
pursuant to Section 2.10(a) above on Installment Dates occurring within the
12-month period after the date of any such prepayment and (ii) second,
to reduce on a pro  rata basis (based on the amount of such
amortization payments) the remaining scheduled amortization payments in respect
of the Term Loans).


 


(b)           In
the event and on such occasion that the Revolving Facility Credit Exposure
exceeds (x) 105% of the total Revolving Facility Commitments solely as a result
of currency fluctuations or (y) the total Revolving Facility Commitments (other
than as a result of currency fluctuations), the Borrowers under the Revolving
Facility shall prepay Revolving Facility Borrowings, Swingline Dollar
Borrowings and/or Swingline Euro Borrowings (or, if no such Borrowings are
outstanding, deposit cash collateral in an account with the Administrative
Agent pursuant to Section 2.05(j)) made to such Borrowers, in an aggregate
amount equal to the amount by which the Revolving Facility Credit Exposure
exceeds the total Revolving Facility Commitments.


 


(c)           Holdings
and Parent shall apply (i) all Net Proceeds (excluding any NSS-8 Asset Sale
Proceeds, to the extent constituting Net Proceeds) and (ii) the Required NSS-8
Proceeds Percentage of all NSS-8 Asset Sale Proceeds, in each case promptly
upon receipt thereof to prepay Term Loan Borrowings and/or Revolving Facility
Borrowings in accordance with paragraph (c) of Section 2.10; provided
that if Parent exercises the NSS-8 Proceeds Reinvestment Option in accordance
with its terms, then all NSS-8 Asset Sale Proceeds shall be applied as provided
in the definition of “NSS-8 Proceeds Reinvestment Option.”


 


(d)           Not
later than 90 days after the end of each Excess Cash Flow Period, Holdings
shall calculate Excess Cash Flow for such Excess Cash Flow Period and shall
apply an amount equal to the Required Percentage of such Excess Cash Flow to
prepay Term Loan Borrowings in accordance with paragraph (c) of Section
2.10.  Not later than the date on which


 


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Holdings is required
to deliver financial statements with respect to the end of each Excess Cash
Flow Period under Section 5.04(a), Holdings will deliver to the Administrative
Agent a certificate signed by a Financial Officer of Holdings setting forth the
amount, if any, of Excess Cash Flow for such fiscal year and the calculation
thereof in reasonable detail.


 


SECTION 2.12  Fees. 
(a)  Parent (on behalf of itself
and the other Revolving Borrowers) agrees to pay to each Revolving Facility
Lender (other than any Defaulting Lender), through the Administrative Agent, 10
Business Days after the last day of March, June, September and December in each
year, and three Business Days after the date on which the Revolving Facility
Commitments of all the Lenders shall be terminated as provided herein, a
commitment fee (a “Revolving Facility Commitment Fee”) in Dollars on the
daily amount of the Available Revolving Unused Commitment of such Lender during
the preceding quarter (or other period commencing with the Closing Date or
ending with the date on which the last of the Revolving Facility Commitment of
such Lender shall be terminated) at a rate equal to 0.50% per annum.  All Revolving Facility Commitment Fees shall
be computed on the basis of the actual number of days elapsed in a year of 360
days.  For the purpose of calculating any
Lender’s Revolving Facility Commitment Fee, the outstanding Swingline Loans
during the period for which such Lender’s Revolving Facility Commitment Fee is
calculated shall be deemed to be zero. 
The Revolving Facility Commitment Fee due to each Lender shall commence
to accrue on the Closing Date and shall cease to accrue on the date on which
the last of the Revolving Facility Commitments of such Lender shall be
terminated as provided herein.


 


(b)           Parent
(on behalf of itself and the other Revolving Borrowers) from time to time
agrees to pay (i) to each Revolving Facility Lender (other than any Defaulting
Lender), through the Administrative Agent, 10 Business Days after the last day
of March, June, September and December of each year and three Business Days
after the date on which the Revolving Facility Commitments of all the Lenders
shall be terminated as provided herein, a fee (an “L/C Participation Fee”)
in Dollars on such Lender’s Revolving Facility Percentage of the daily
aggregate Revolving L/C Exposure (excluding the portion thereof attributable to
unreimbursed L/C Disbursements), during the preceding quarter (or shorter
period commencing with the Closing Date or ending with the date on which the
Revolving Facility Commitments shall be terminated) at the rate per annum equal
to the Applicable Margin for Eurocurrency Revolving Borrowings effective for
each day in such period, and (ii) to each Issuing Bank, for its own account,
(x) 10 Business Days after the last day of March, June, September and December
of each year and three Business Days after the date on which the Revolving
Facility Commitments of all the Lenders shall be terminated as provided herein,
a fronting fee in Dollars in respect of each Letter of Credit issued by such
Issuing Bank for the period from and including the date of issuance of such
Letter of Credit to and including the termination of such Letter of Credit,
computed at a rate equal to 1/8 of 1% per annum of the daily stated amount of
such Letter of Credit) (with the minimum annual fronting fee for each Letter of
Credit to be not less than $500) plus (y) in connection with the issuance,
amendment or transfer of any such Letter of Credit or any L/C Disbursement
thereunder, such Issuing Bank’s customary documentary and processing charges
(collectively, “Issuing Bank Fees”). 
All L/C Participation Fees and Issuing Bank Fees that are payable on a
per annum basis shall be computed on the basis of the actual number of days
elapsed in a year of 360 days.


 


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(c)           Parent
agrees to pay to the Administrative Agent and the Syndication Agent, for the
account of the Administrative Agent, the fees set forth in the Fee Letter, as
amended, restated, supplemented or otherwise modified from time to time, at the
times specified therein (the “Agent Fees”).


 


(d)           All
Fees shall be paid on the dates due, in immediately available funds, to the
Administrative Agent for distribution, if and as appropriate, among the
Lenders, except that Issuing Bank Fees shall be paid directly to the applicable
Issuing Banks.  Once paid, none of the
Fees shall be refundable under any circumstances.


 


SECTION 2.13  Interest.  (a) 
The Loans comprising each ABR Borrowing (including each Swingline Dollar
Loan) shall bear interest at the Alternate Base Rate plus the Applicable
Margin.


 


(b)           The
Loans comprising each Eurocurrency Borrowing shall bear interest at the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus
the Applicable Margin.


 


(c)           Notwithstanding
the foregoing, if any principal of or interest on any Loan or any Fees or other
amount payable by the applicable Borrower hereunder is not paid when due,
whether at stated maturity, upon acceleration or otherwise, such overdue
principal amount shall bear interest, and each such other overdue amount shall,
to the extent permitted by law, bear interest, in each case after as well as
before judgment, at a rate per annum equal to (i) in the case of overdue
principal of any Loan, 2% plus the rate otherwise applicable to such Loan as provided
in the preceding paragraphs of this Section or (ii) in the case of any other
amount (x) payable in Dollars, 2% plus the rate applicable to Revolving
Facility Loans that are ABR Loans as provided in paragraph (a) of this Section
or (y) payable in Euros, 2% plus the rate otherwise applicable to a Revolving
Facility Loan denominated in Euros with a one-month Interest Period made on
such date; provided that this paragraph (c) shall not apply to any payment
default that has been waived by the Lenders pursuant to Section 9.08.


 


(d)           Accrued
interest on each Loan shall be payable in arrears (i) on each Interest Payment
Date for such Loan, (ii) in the case of Revolving Facility Loans, upon
termination of the Revolving Facility Commitments and (iii) in the case of the
Term Loans, on the Term Loan Maturity Date; provided that (i) interest
accrued pursuant to paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan or Swingline Dollar Loan prior to the end
of the Revolving Availability Period), accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment or prepayment
and (iii) in the event of any conversion of any Eurocurrency Loan prior to the
end of the current Interest Period therefor, accrued interest on such Loan
shall be payable on the effective date of such conversion.


 


(e)           All
interest hereunder shall be computed on the basis of a year of 360 days, except
that interest computed by reference to the Alternate Base Rate at times when
the Alternate Base Rate is based on the Prime Rate shall be computed on the
basis of a year of 365 days (or 366 days in a leap year), and in each case
shall be payable for the actual number of days elapsed (including the first day
but excluding the last day).  The
applicable Alternate Base Rate,


 


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Adjusted LIBO Rate
or LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be prima facie evidence thereof.


 


SECTION 2.14  Alternate Rate of Interest.  If prior to the commencement of any Interest
Period for a Eurocurrency Borrowing denominated in any currency:


 


(a)           the Administrative Agent determines (which
determination shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the
LIBO Rate, as applicable, for such Interest Period; or


 


(b)           the Administrative Agent is advised
by the Majority Lenders under a Facility that the Adjusted LIBO Rate or the
LIBO Rate, as applicable, for such Interest Period will not adequately and
fairly reflect the cost to such Lenders of making or maintaining their Loans
included in such Borrowing for such Interest Period;


 


then the Administrative
Agent shall give notice thereof to the Borrowers and the Lenders by telephone
or telecopy as promptly as practicable thereafter and, until the Administrative
Agent notifies the Borrowers and the Lenders that the circumstances giving rise
to such notice no longer exist, (i) any Interest Election Request that requests
the conversion of any Borrowing to, or continuation of any Borrowing as, a
Eurocurrency Borrowing denominated in such currency shall be ineffective and
such Borrowing shall be converted to or continued as on the last day of the
Interest Period applicable thereto (A) if such Borrowing is denominated in
Dollars, an ABR Borrowing or (B) if such Borrowing is denominated in Euros, as
a Borrowing bearing interest at such rate as the Majority Lenders under the
Revolving Facility and the applicable Borrower shall agree adequately reflects
the costs to the Revolving Facility Lenders of making or maintaining their
Loans, and (ii) if any Borrowing Request requests a Eurocurrency Borrowing in
such currency, such Borrowing shall be made as an ABR Borrowing (if such
Borrowing is requested to be made in Dollars) or shall be made as a Borrowing
bearing interest at such rate as the Majority Lenders under the Revolving
Facility shall agree adequately reflects the costs to the Revolving Facility
Lenders of making the Loans comprising such Borrowing.


 


SECTION 2.15  Increased Costs.  (a)  If
any Change in Law shall:


 


(i)            impose, modify or deem applicable
any reserve, special deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate or those for which
payment has been requested pursuant to Section 2.21) or Issuing Bank; or


 


(ii)           impose on any Lender or Issuing Bank
or the London interbank market any other condition affecting this Agreement,
Eurocurrency Loans or Swingline Euro Loans made by such Lender or any Letter of
Credit or participation therein (except those for which payment has been
requested pursuant to Section 2.21);


 


and the result of any of
the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Loan or Swingline Euro Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or
Issuing Bank of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received or


 


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receivable by such Lender
or Issuing Bank hereunder (whether of principal, interest or otherwise), in
each case determined to be material by such Lender, then the applicable
Borrower (in the case of a Loan) or the applicable Applicant Party (in the case
of a Letter of Credit) will pay to such Lender or Issuing Bank, as applicable,
such additional amount or amounts as will compensate such Lender or Issuing
Bank, as applicable, for such additional costs incurred or reduction suffered.


 


(b)           If
any Lender or Issuing Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on
such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or
Issuing Bank’s holding company, if any, as a consequence of this Agreement or
the Loans made by, or participations in Letters of Credit held by, such Lender,
or the Letters of Credit issued by such Issuing Bank, to a level below that
which such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s
holding company could have achieved but for such Change in Law (taking into
consideration such Lender’s or such Issuing Bank’s policies and the policies of
such Lender’s or such Issuing Bank’s holding company with respect to capital
adequacy) and determined to be material by such Lender, then from time to time
the applicable Borrower (in the case of a Loan) or the applicable Applicant
Party (in the case of a Letter of Credit) shall pay to such Lender or such
Issuing Bank, as applicable, such additional amount or amounts as will
compensate such Lender or such Issuing Bank or such Lender’s or such Issuing
Bank’s holding company for any such reduction suffered.


 


(c)           A
certificate of a Lender or an Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or Issuing Bank or its holding company, as
applicable, as specified in paragraph (a) or (b) of this Section (as well as
reasonably detailed calculations thereof) shall be delivered to the applicable
Borrower (in the case of a Loan) or the applicable Applicant Party (in the case
of a Letter of Credit) and shall be prima facie evidence of the amounts
thereof.  The applicable Borrower (in the
case of a Loan) or the applicable Applicant Party (in the case of a Letter of
Credit) shall pay such Lender or Issuing Bank, as applicable, the amount shown
as due on any such certificate within 10 days after receipt thereof.


 


(d)           Promptly
after any Lender or any Issuing Bank has determined that it will make a request
for increased compensation pursuant to this Section 2.15, such Lender or
issuing Bank shall notify the applicable Borrower thereof.  Failure or delay on the part of any Lender or
Issuing Bank to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender’s or Issuing Bank’s right to demand such
compensation; provided that a Borrower shall not be required to
compensate a Lender or an Issuing Bank pursuant to this Section for any
increased costs or reductions incurred more than 180 days prior to the date
that such Lender or Issuing Bank, as applicable, notifies such Borrower of the
Change in Law giving rise to such increased costs or reductions and of such
Lender’s or issuing Bank’s intention to claim compensation therefor; provided,
further, that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 180-day period referred to above shall
be extended to include the period of retroactive effect thereof.


 


SECTION 2.16  Break Funding Payments.  In the event of (a) the payment of any
principal of any Eurocurrency Loan or Swingline Euro Loan other than on the
last day of an Interest Period applicable thereto (including as a result of an
Event of Default), (b) the


 


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conversion of any Eurocurrency
Loan other than on the last day of the Interest Period applicable thereto, (c)
the failure to borrow, convert, continue or prepay any Eurocurrency Loan on the
date specified in any notice delivered pursuant hereto or (d) the assignment of
any Eurocurrency Loan other than on the last day of the Interest Period
applicable thereto as a result of a request by a Borrower pursuant to Section
2.19, then, in any such event, such Borrower shall compensate each Lender for the
loss, cost and expense attributable to such event.  In the case of a Eurocurrency Loan or
Swingline Euro Loan, such loss, cost or expense to any Lender shall be deemed
to be the amount reasonably determined by such Lender to be the excess, if any,
of (i) the amount of interest which would have accrued on the principal amount
of such Loan had such event not occurred, at the Adjusted LIBO Rate that would
have been applicable to such Loan, for the period from the date of such event
to the last day of the then current Interest Period therefor (or, in the case
of a failure to borrow, convert or continue a Eurocurrency Loan, for the period
that would have been the Interest Period for such Loan), over (ii) the amount
of interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement
of such period, for deposits in Euros of a comparable amount and period from
other banks in the Eurodollar market.  A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to such
Borrower and shall be prima facie evidence of the amounts thereof.  Such Borrower shall pay such Lender the
amount shown as due on any such certificate within 10 days after receipt
thereof.


 


SECTION 2.17  Taxes. 
(a)  Any and all payments by or on
account of any obligation of any Loan Party hereunder shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes; provided
that if a Loan Party shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) any Agent, Lender or
Issuing Bank, as applicable, receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Loan Party shall make such
deductions and (iii) such Loan Party shall timely pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.


 


(b)           In
addition, the Loan Parties shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.


 


(c)           Each
Loan Party shall indemnify the Agents, each Lender and each Issuing Bank,
within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by such Agent, Lender or Issuing Bank, as
applicable, on or with respect to any payment by or on account of any
obligation of such Loan Party hereunder (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority.


 


(d)           As
soon as reasonably practicable after any payment of Indemnified Taxes or Other
Taxes by a Loan Party to a Governmental Authority, such Loan Party shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such


 


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Governmental
Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative
Agent.


 


(e)           Any
Lender that is entitled to an exemption from or reduction of withholding Tax
under the law of the jurisdiction in which a Borrower is located, or any treaty
to which such jurisdiction is a party, with respect to payments under this
Agreement shall deliver to such Borrower (with a copy to the Administrative
Agent), to the extent such Lender is legally entitled to do so, such properly
completed and executed documentation prescribed by applicable law at the time
or times prescribed by applicable law and at such times as may reasonably be
requested by such Borrower, in either case to permit such payments to be made
without such withholding tax or at a reduced rate; provided that no
Lender shall have any obligation under this paragraph (e) with respect to any
withholding Tax imposed by any jurisdiction other than the United States if in
the reasonable judgment of such Lender such compliance would subject such
Lender to any material unreimbursed cost or expense or to the extent it would
otherwise be disadvantageous to such Lender in any material respect.


 


(f)            If
an Agent or a Lender determines, in good faith and in its sole discretion, that
it has received a refund of any Indemnified Taxes or Other Taxes as to which it
has been indemnified by a Loan Party or with respect to which such Loan Party
has paid additional amounts pursuant to this Section 2.17, it shall pay over
such refund to such Loan Party (but only to the extent of indemnity payments
made, or additional amounts paid, by such Loan Party under this Section 2.17
with respect to the Taxes or Other Taxes giving rise to such refund), net of
all out-of-pocket expenses of such Agent or such Lender (including any Taxes
imposed with respect to such refund) as is determined by the Agent or Lender in
good faith and in its sole discretion and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund); provided that such Loan Party, upon the request of such Agent
or such Lender, agrees to repay as soon as reasonably practicable the amount
paid over to such Loan Party (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to such Agent or such Lender in
the event such Agent or such Lender is required to repay such refund to such
Governmental Authority.  This Section
shall not be construed to require any Agent or any Lender to make available its
Tax returns (or any other information relating to its Taxes which it deems
confidential) to the Loan Parties or any other Person.


 


SECTION 2.18  Payments Generally; Pro Rata Treatment;
Sharing of Set-offs.  (a)  Unless otherwise specified, each Borrower
shall make each payment required to be made by it hereunder (whether of
principal, interest, fees or reimbursement of L/C Disbursements, or of amounts
payable under Section 2.15, 2.16, 2.17 or 2.21, or otherwise) prior to 2:00 p.m.,
Local Time, on the date when due, in immediately available funds, without
condition or deduction for any defense, recoupment, set-off or
counterclaim.  Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day for purposes
of calculating interest thereon.  All
such payments shall be made to the Administrative Agent to the applicable
account designated to Parent by the Administrative Agent, except payments to be
made directly to the applicable Issuing Bank or the applicable Swingline Lender
as expressly provided herein and except that payments pursuant to Sections
2.15, 2.16, 2.17, 2.21 and 9.05 shall be made directly to the persons entitled
thereto.  The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof.  If any payment


 


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hereunder shall be due on a day
that is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension.  All payments hereunder of (i) principal or
interest in respect of any Loan shall be made in the currency in which such
Loan is denominated, (ii) reimbursement obligations shall, subject to Sections
2.05(e) and 2.05(j), be made in the currency in which the Letter of Credit in
respect of which such reimbursement obligation exists is denominated or (iii)
any other amount due hereunder or under another Loan Document shall be made in
Dollars.  Any payment required to be made
by the Administrative Agent hereunder shall be deemed to have been made by the
time required if the Administrative Agent shall, at or before such time, have
taken the necessary steps to make such payment in accordance with the
regulations or operating procedures of the clearing or settlement system used
by the Administrative Agent to make such payment.  Any amount payable by the Administrative
Agent to one or more Lenders in the national currency of a member state of the
European Union that has adopted the Euro as its lawful currency shall be paid
in Euros.


 


(b)           If
at any time insufficient funds are received by and available to the
Administrative Agent from any Borrower to pay fully all amounts of principal,
unreimbursed L/C Disbursements, interest and fees then due from such Borrower
hereunder, such funds shall be applied (i) first, towards payment of
interest and fees then due from such Borrower hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, towards payment of principal
and unreimbursed L/C Disbursements then due from such Borrower hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed L/C Disbursements then due to such parties.


 


(c)           If
any Lender shall, by exercising any right of set-off or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of
its Term Loans, Revolving Facility Loans or participations in L/C Disbursements
or Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Term Loans, Revolving Facility Loans
and participations in L/C Disbursements and Swingline Loans and accrued
interest thereon than the proportion received by any other Lender, then the
Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Term Loans, Revolving Facility Loans and
participations in L/C Disbursements and Swingline Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by
the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Term Loans, Revolving Facility Loans and
participations in L/C Disbursements and Swingline Loans; provided that
(i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph (c) shall not be construed
to apply to any payment made by a Borrower pursuant to and in accordance with
the express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in L/C Disbursements to any assignee or participant,
other than to such Borrower or any Subsidiary or Affiliate thereof (as to which
the provisions of this paragraph (c) shall apply).


 


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(d)           Unless
the Administrative Agent shall have received notice from a Borrower prior to
the date on which any payment is due to the Administrative Agent for the
account of the Lenders or the applicable Issuing Bank hereunder that such
Borrower will not make such payment, the Administrative Agent may assume that
such Borrower has made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to the Lenders or the
applicable Issuing Bank, as applicable, the amount due.  In such event, if such Borrower has not in
fact made such payment, then each of the Lenders or the applicable Issuing
Bank, as applicable, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at (i) the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation (in the case of an amount denominated in
Dollars) and (ii) the rate reasonably determined by the Administrative Agent to
be the cost to it of funding such amount (in the case of an amount denominated
in Euros).


 


(e)           If
any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then the Administrative
Agent may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender’s obligations under such Sections
until all such unsatisfied obligations are fully paid.


 


SECTION 2.19  Mitigation Obligations; Replacement of
Lenders.  (a)  If any Lender requests compensation under
Section 2.15 or 2.21, or if a Borrower is required to pay any additional amount
to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.17, then such Lender shall use reasonable efforts to
designate a different lending office for funding or booking its Loans hereunder
or to assign its rights and obligations hereunder to another of its offices,
branches or Affiliates, if, in the reasonable judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 2.15, 2.17 or 2.21, as applicable, in the future and (ii)
would not subject such Lender to any material unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender in any material
respect.  Each Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment.


 


(b)           If
any Lender requests compensation under Section 2.15 or 2.21, or if a Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, or is a
Defaulting Lender, then such Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) such Lender shall have received payment
of an amount equal to the outstanding principal of its Loans and participations
in L/C Disbursements and Swingline Loans, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder, from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or such
Borrower (in the case of all other amounts) and (ii) in the case of any such
assignment resulting from a claim for compensation under Section 2.15 or 2.21


 


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or payments required
to be made pursuant to Section 2.17, such assignment will result in a reduction
in such compensation or payments. 
Nothing in this Section 2.19 shall be deemed to prejudice any rights
that any Borrower may have against any Lender that is a Defaulting Lender.


 


(c)           If
any Lender (such Lender, a “Non-Consenting Lender”) has failed to
consent to a proposed amendment, waiver, discharge or termination which
pursuant to the terms of Section 9.08 requires the consent of all of the
Lenders affected and with respect to which the Required Lenders shall have
granted their consent, then provided no Event of Default then exists, Parent
shall have the right (unless such Non-Consenting Lender grants such consent) to
replace such Non-Consenting Lender by requiring such Non-Consenting Lender to
assign its Loans, and its Commitments hereunder to one or more assignees
reasonably acceptable to the Administrative Agent, provided that:  (a) all Obligations of Borrowers owing to
such Non- Consenting Lender being replaced shall be paid in full to such
Non-Consenting Lender concurrently with such assignment, and (b) the
replacement Lender shall purchase the foregoing by paying to such
Non-Consenting Lender a price equal to the principal amount thereof plus
accrued and unpaid interest thereon. In connection with any such assignment
Parent, Administrative Agent, such Non-Consenting Lender and the replacement
Lender shall otherwise comply with Section 9.04.


 


SECTION 2.20  Revolving Borrowers.  Parent may designate after the Closing Date
any Dutch Subsidiary of Parent that is party to the Dutch Security Documents
and/or any other Subsidiary of Parent that complies with the requirements
described in Section 5.10(f) as an additional Revolving Borrower, with a
specified Maximum Credit Limit, by delivery to the Administrative Agent of a
Revolving Borrower Agreement executed by such Subsidiary and Parent.  Each such designation shall specify whether
such Subsidiary shall be entitled to make Borrowings under and/or request
Letters of Credit under the Revolving Facility, and each such designation and
specified Maximum Credit Limit shall be subject to the consent of the
Administrative Agent (which consent shall not unreasonably be withheld).  Upon the execution by Parent and delivery to
the Administrative Agent of a Revolving Borrower Termination with respect to
any Revolving Borrower, such Subsidiary shall cease to be a Revolving Borrower
and a party to this Agreement as a Revolving Borrower; provided that no
Revolving Borrower Termination will become effective as to any Revolving
Borrower (other than to terminate such Revolving Borrower’s right to make
further Borrowings under this Agreement) at a time when any principal of or
interest on any Loan to such Revolving Borrower or any Letter of Credit for the
account of such Revolving Borrower shall be outstanding hereunder.  Promptly following receipt of any Revolving
Borrower Agreement or Revolving Borrower Termination, the Administrative Agent
shall send a copy thereof to each Revolving Facility Lender.


 


SECTION 2.21  Additional Reserve Costs.  (a) 
For so long as any Lender is required to make special deposits with the
Bank of England and/or the Financial Services Authority (or, in either case any
other authority which replaced all or any of its functions) and/or the European
Central Bank or comply with reserve assets, liquidity, cash margin or other
requirements of the Bank of England and/or the Financial Services Authority (or,
in either case any other authority which replaced all or any of its functions)
and/or the European Central Bank, to maintain reserve asset ratios or to pay
fees, in each case in respect of such Lender’s Eurocurrency Loans or Swingline
Euro Loans, such Lender shall be entitled to require the applicable Borrower to
pay, contemporaneously with each payment of interest on each of such


 


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Loans, additional interest on
such Loan at a percentage rate per annum equal to the Mandatory Costs Rate
calculated in accordance with the formulae and in the manner set forth in Exhibit
J hereto.


 


(b)           Any
additional interest owed pursuant to paragraph (a) above shall be determined by
the applicable Lender, which determination shall be prima facie evidence of the
amount thereof, and notified to the applicable Borrower (with a copy to the
Administrative Agent) at least 10 days before each date on which interest is
payable for the applicable Loan, and such additional interest so notified to
the applicable Borrower by such Lender shall be payable to the Administrative
Agent for the account of such Lender on each date on which interest is payable
for such Loan.


 


SECTION 2.22  Illegality.  (a)  If
any Lender reasonably determines that it is unlawful, or that any Governmental
Authority has asserted that it is unlawful, for any Lender or its applicable
lending office to make or maintain any Revolving Facility Loan denominated in
Euros or any Swingline Euro Loan, then, on notice thereof by such Lender to the
applicable Borrower through the Administrative Agent, any obligations of such
Lender to make or continue Revolving Facility Loans denominated in Euros or
Swingline Euro Loans shall be suspended until such Lender notifies the Administrative
Agent and the applicable Borrower that the circumstances giving rise to such
determination no longer exist.  Upon any
of such notice, the applicable Borrower shall upon demand from such Lender
(with a copy to the Administrative Agent) prepay such Revolving Facility Loan
denominated in Euros or Swingline Euro Loan. 
Upon any such prepayment, such Borrower shall also pay accrued interest
on the amount so prepaid.


 


(b)           If
any Lender reasonably determines that any change in law has made it unlawful,
or that any Governmental Authority has asserted after the Closing Date that it
is unlawful, for any Lender or its applicable lending office to make or
maintain any Eurocurrency Loans (other than as set forth in paragraph (a)
above), then, on notice thereof by such Lender to the applicable Borrower
through the Administrative Agent, any obligations of such Lender to make or
continue Eurocurrency Loans or to convert ABR Borrowings to Eurocurrency
Borrowings shall be suspended until such Lender notifies the Administrative
Agent and the applicable Borrower that the circumstances giving rise to such
determination no longer exist.  Upon
receipt of such notice, the applicable Borrower shall upon demand from such
Lender (with a copy to the Administrative Agent), either (i) for Loans
denominated in Euros (A) prepay each Loan denominated in Euros or (B) keep such
Loan denominated in Euros outstanding, in which case the Adjusted LIBO Rate
with respect to such Loan shall be deemed to be the rate determined by such
Lender as the all-in-cost of funds to fund such Loan with maturities comparable
to the Interest Period applicable thereto, or (ii) for Loans denominated in
Dollars, convert all Eurocurrency Borrowings of such Lender to ABR Borrowings,
either on the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such Eurocurrency Borrowings to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Loans.  Upon any such prepayment or
conversion, such Borrower shall also pay accrued interest on the amount so
prepaid or converted.


 


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ARTICLE III


 


Representations and Warranties


 


Each of Holdings and Parent represents and warrants to
each of the Lenders that:


 


SECTION 3.01  Organization; Powers.  Except as set forth on Schedule 3.01,
each of Holdings, Parent and each of the Material Subsidiaries (a) is a
partnership, limited liability company, exempted company or corporation duly
organized, validly existing and in good standing (or, if applicable in a
foreign jurisdiction, enjoys the equivalent status under the laws of any
jurisdiction of organization outside the United States) under the laws of the
jurisdiction of its organization, (b) has all requisite power and authority to
own its property and assets and to carry on its business as now conducted, (c)
is qualified to do business in each jurisdiction where such qualification is
required, except where the failure so to qualify could not reasonably be
expected to have a Material Adverse Effect, and (d) has the power and authority
to execute, deliver and perform its obligations under each of the Loan
Documents and each other agreement or instrument contemplated thereby to which
it is or will be a party and, in the case of each Borrower, to borrow and
otherwise obtain credit hereunder.


 


SECTION 3.02  Authorization.  The execution, delivery and performance by
Holdings, Parent, and each of their Subsidiaries of each of the Loan Documents
to which it is a party, and the borrowings hereunder (a) have been duly
authorized by all corporate, stockholder, shareholder, limited liability
company or partnership action required to be obtained by Holdings, Parent and
such Subsidiaries and (b) will not (i) violate (A) any provision of law, statute,
rule or regulation, or of the certificate or articles of incorporation or other
constitutive documents or by-laws of Holdings, Parent or any such Subsidiary,
(B) any applicable order of any court or any rule, regulation or order of any
Governmental Authority or (C) any provision of any indenture, certificate of
designation for preferred stock, agreement or other instrument to which
Holdings, Parent or any such Subsidiary is a party or by which any of them or
any of their property is or may be bound, (ii) be in conflict with, result in a
breach of or constitute (alone or with notice or lapse of time or both) a
default under, give rise to a right of or result in any cancellation or
acceleration of any right or obligation (including any payment) or to a loss of
a material benefit under any such indenture, certificate of designation for
preferred stock, agreement or other instrument, where any such conflict,
violation, breach or default referred to in clause (i) or (ii) of this Section
3.02, could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, or (iii) result in the creation or imposition of any
Lien upon or with respect to any material property or assets now owned or
hereafter acquired by Holdings, Parent or any such Subsidiary, other than the
Liens created by the Loan Documents.


 


SECTION 3.03  Enforceability.  This Agreement has been duly executed and
delivered by Holdings and each Borrower and constitutes, and each other Loan
Document when executed and delivered by each Loan Party that is party thereto
will constitute, a legal, valid and binding obligation of such Loan Party
enforceable against each such Loan Party in accordance with its terms, subject
to (i) the effects of bankruptcy, insolvency, moratorium, reorganization,
fraudulent conveyance or other similar laws affecting creditors’ rights
generally, (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and (iii)
implied covenants of good faith and fair dealing.


 


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SECTION 3.04  Governmental Approvals.  No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority
is or will be required in connection with the Transactions, except for (a) the
filing of Uniform Commercial Code financing statements, (b) recordation of the
Mortgages (and, if necessary, the other Dutch Security Documents), (c) such
consents, approvals, registrations and filings with or by the FCC or any
Governmental Authority outside of the United States of America as may be
required in connection with the Acquisition, (d) such consents, approvals,
registrations, and filings with or by the FCC or any Governmental Authority outside
of the United States of America as may be required in connection with the
exercise of rights under the Security Documents following an Event of Default,
(e) such consents, approvals, registrations, and filings with or by the FCC or
any Governmental Authority outside of the United States of America as may be
required in the ordinary course of business of Holdings and its Subsidiaries in
connection with the use of proceeds of the Loans hereunder, (f) such licenses,
approvals, authorizations and consents as may be required by the U.S.
Department of State pursuant to the International Traffic in Arms Regulations
and the U.S. Department of Commerce pursuant to the Export Administration
Regulations in connection with the Transactions and exercise of rights hereunder
and under the Security Documents following an Event of Default or in the
ordinary course of business of Holdings and its Subsidiaries in connection with
the use of proceeds of the Loans hereunder, (g) such approvals of or agreements
with the U.S. Department of Justice, Federal Bureau of Investigation an the
U.S. Department of Homeland Security regarding potential national security, law
enforcement and public safety issues, (h) such as have been made or obtained
and are in full force and effect, (i) such actions, consents and approvals
the failure to be obtained or made which could not reasonably be expected to
have a Material Adverse Effect and (j) filings or other actions listed on Schedule
3.04.


 


SECTION 3.05  Financial Statements.  (a) 
Holdings has heretofore furnished to the Lenders the audited
consolidated balance sheets and the related audited consolidated statements of
income and cash flows of the Company and its subsidiaries for the fiscal years
ended December 31, 2001, December 31, 2002 and December 31, 2003 and the
unaudited interim consolidated balance sheet as of June 30, 2004 and the
related unaudited interim consolidated statements of income and cash flows of
the Company and its subsidiaries for the period ended June 30, 2004.  The consolidated balance sheets of the
Company and subsidiaries as of December 31, 2003 and 2002, and the related
consolidated statements of operations, shareholders’ equity, and cash flows for
each of the three years in the period ended December 31, 2003, as audited by
Deloitte Accountants B.V., an independent registered public accounting firm,
present fairly in all material respects the financial position of the Company
and subsidiaries as of December 31, 2003 and 2002, and the results of their
operations and cash flows for each of the three years in the period ended
December 31, 2003 is in conformity with US GAAP.


 


(b)           Holdings
has heretofore furnished to the Lenders an unaudited pro  forma condensed consolidated balance
sheet as of June 30, 2004.  The unaudited
pro  forma condensed consolidated balance sheet as of June 30,
2004 (i) complies as to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulations S-X, promulgated under the
Exchange Act, except for the omission of purchase accounting allocation
adjustments to reflect Parent’s acquisition of the satellite business of the
Company, in conformity with US GAAP and (ii) have been properly computed on the
bases described therein; the assumptions used in the preparation of the pro
forma financial data and other pro  forma financial
information


 


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are reasonable and
the adjustments used therein are appropriate to give effect to the transactions
or circumstances referred to therein. 
Such pro  forma consolidated balance sheet has been
prepared in good faith based on the assumptions believed by Holdings and Parent
to have been reasonable at the time made and to be reasonable as of the Closing
Date (it being understood that such assumptions are based on good faith
estimates with respect to certain items and that the actual amounts of such
items on the Closing Date is subject to variation and that purchase accounting
will not have been applied).


 


SECTION 3.06  No Material Adverse Effect.  Since December 31, 2003 (but after giving
effect to the Transaction) no Material Adverse Effect has occurred.


 


SECTION 3.07  Title to Properties; Possession Under
Leases.  (a)  Each of Holdings, Parent and the Material
Subsidiaries has good and marketable title to all real property and good title
to all personal property owned by it and good and marketable title to a
leasehold estate in the real and personal property leased by it, free and clear
of all liens, charges, encumbrances or restrictions, except (i) as set forth in
Schedule 3.07 and (ii) as created or expressly permitted by Section 6.02,
except where the failure to have such title could not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.


 


(b)           Each
of Holdings, Parent and the Material Subsidiaries has complied with all
obligations under all leases to which it is a party, except where the failure
to comply would not have a Material Adverse Effect, and all such leases are in
full force and effect, except leases in respect of which the failure to be in
full force and effect could not reasonably be expected to have a Material
Adverse Effect.  Each of Holdings, Parent
and each of the Material Subsidiaries enjoys peaceful and undisturbed
possession under all such leases, other than leases in respect of which the
failure to enjoy peaceful and undisturbed possession could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.


 


(c)           Each
of Holdings, Parent and the Material Subsidiaries owns or possesses, or could
obtain ownership or possession of, on terms not materially adverse to it, all
patents, trademarks, service marks, trade names, copyrights, licenses and
rights with respect thereto necessary for the present conduct of its business,
without any known conflict with the rights of others, and free from any
burdensome restrictions, except where such conflicts and restrictions could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.


 


(d)           As
of the Closing Date, none of Holdings, Parent and the Material Subsidiaries has
received any notice of any pending or contemplated condemnation proceeding
affecting any of the Mortgaged Properties or any sale or disposition thereof in
lieu of condemnation that remains unresolved as of the Closing Date.


 


(e)           None
of Holdings, Parent and the Material Subsidiaries is obligated on the Closing
Date under any right of first refusal, option or other contractual right to
sell, assign or otherwise dispose of any Mortgaged Property or any interest
therein, except as permitted under Section 6.02 or 6.05.


 


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SECTION 3.08  Subsidiaries.  (a)  On
the Closing Date, after giving effect to the Transaction, the corporate
structure of Holdings and its Subsidiaries is in all material respects as set
forth on Schedule 3.08(a).


 


(b)           Schedule
3.08(b) sets forth as of the Closing Date the name and jurisdiction of
incorporation, formation or organization of each Material Subsidiary and, as to
each such Material Subsidiary, the percentage of each class of Equity Interests
owned by Holdings or by any such Material Subsidiary, subject to such changes
as are reasonably satisfactory to the Administrative Agent.


 


(c)           As
of the Closing Date, there are no outstanding subscriptions, options, warrants,
calls, rights or other similar agreements or commitments (other than stock
options granted to employees or directors and directors’ qualifying shares) of
any nature relating to any Equity Interests of Holdings, Parent, the Company or
any of the Material Subsidiaries, except as set forth on Schedule 3.08(c).


 


SECTION 3.09  Litigation; Compliance with Laws.  (a) 
There are no actions, suits, investigations or proceedings at law or in
equity or by or on behalf of any Governmental Authority or in arbitration now
pending, or, to the knowledge of Holdings or Parent, threatened in writing
against or affecting Holdings or Parent or any of their Subsidiaries or any
business, property or rights of any such person which could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect
or materially adversely affect the Transaction.


 


(b)           None
of Holdings, Parent, the Material Subsidiaries and their respective properties
or assets is in violation of (nor will the continued operation of their
material properties and assets as currently conducted violate) any law, rule or
regulation (including any zoning, building, Environmental Law, ordinance, code
or approval or any building permit) or any restriction of record or agreement
affecting any Mortgaged Property, or is in default with respect to any
judgment, writ, injunction or decree of any Governmental Authority, where such
violation or default could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect.


 


SECTION 3.10  Federal Reserve Regulations.  (a) 
None of Holdings, Parent and their Subsidiaries is engaged principally,
or as one of its important activities, in the business of extending credit for
the purpose of purchasing or carrying Margin Stock.


 


(b)           No
part of the proceeds of any Loan will be used, whether directly or indirectly,
and whether immediately, incidentally or ultimately, for any purpose that
entails a violation of, or that is inconsistent with, the provisions of the
Regulations of the Board, including Regulation U or Regulation X.


 


SECTION 3.11  Investment Company Act; Public Utility
Holding Company Act.  None of
Holdings, Parent and their Subsidiaries is (a) an “investment company” as
defined in, or subject to regulation under, the Investment Company Act of 1940,
as amended, or (b) a “holding company” as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935, as amended.


 


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SECTION 3.12  Use of Proceeds.  The Revolving Borrowers will use the proceeds
of Revolving Facility Loans, Swingline Loans and the issuance of Letters of
Credit solely for general corporate purposes; provided that Letters of Credit
may not be issued in support of Indebtedness permitted under Section 6.01(l) or
(s).  Parent will use the proceeds of
Term Loans incurred on the Closing Date solely to finance, in part, the
Acquisition and to pay fees and expenses incurred in connection with the
Transaction.  Parent may only incur Term
Loans on the Closing Date.


 


SECTION 3.13  Tax Returns.  Except as set forth on Schedule 3.13:


 


(a)           each of Holdings, Parent and the
Material Subsidiaries (i) has timely filed or caused to be timely filed all
federal, state, local and non-U.S. Tax returns required to have been filed by
it that are material to such companies taken as a whole and each such Tax
return is true and correct in all material respects and (ii) has timely paid or
caused to be timely paid all material Taxes shown thereon to be due and payable
by it and all other material Taxes or assessments, except Taxes or assessments
that are being contested in good faith by appropriate proceedings in accordance
with Section 5.03 and for which Holdings, Parent or any of the Material
Subsidiaries (as the case may be) has set aside on its books adequate reserves;


 


(b)           each of Holdings, Parent and the
Material Subsidiaries has paid in full or made adequate provision (in
accordance with US GAAP) for the payment of all Taxes due with respect to all
periods or portions thereof ending on or before the Closing Date, which Taxes,
if not paid or adequately provided for, could reasonably be expected to have a
Material Adverse Effect; and


 


(c)           as of the Closing Date, with respect
to each of Holdings, Parent and their Material Subsidiaries, (i) there are no
material audits, investigations or claims being asserted in writing with
respect to any Taxes, (ii) no presently effective waivers or extensions of statutes
of limitation with respect to Taxes have been given or requested and (iii) no
material Tax returns are being examined by, and no written notification of
intention to examine has been received from, the Internal Revenue Service or,
with respect to any material potential Tax liability, any other Taxing
authority.


 


SECTION 3.14  No Material Misstatements.  (a) 
All written information (other than the Projections, estimates and
information of a general economic nature) (the “Information”) concerning
Holdings, Parent, their Subsidiaries, the Transaction and any other
transactions contemplated hereby included in the Acquisition Agreement and/or
(after the preparation and delivery thereof) the Information Memorandum or
otherwise prepared by or on behalf of the foregoing or their representatives
and made available to any Lenders or the Administrative Agent in connection
with the Transaction (as such information may have been supplemented in writing
prior to the Closing Date) or the other transactions contemplated hereby, when
taken as a whole, were true and correct in all material respects, as of the
date such Information was furnished to the Lenders and (in the case of such
Information delivered prior to the Closing Date) as of the Closing Date and did
not contain any untrue statement of a material fact as of any such date or omit
to state a material fact necessary in order to make the statements


 


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contained therein
not materially misleading in light of the circumstances under which such
statements were made.


 


(b)                                 The Projections and estimates
and information of a general economic nature prepared by or on behalf of Parent
or any of its representatives and that have been made available to any Lenders
or the Administrative Agent in connection with the Transactions or the other
transactions contemplated hereby (i) have been prepared in good faith based
upon assumptions believed by Parent to be reasonable as of the date thereof and
as of the Closing Date, and (ii) as of the Closing Date, have not been modified
in any material respect by Parent.


 


SECTION 3.15  Employee Benefit Plans.  (a) 
Each of Holdings, Parent, the Subsidiaries and the ERISA Affiliates is
in compliance with the applicable provisions of ERISA and the provisions of the
Code relating to Plans and the regulations and published interpretations
thereunder and any similar applicable non-U.S. law, except for such
noncompliance that could not reasonably be expected to have a Material Adverse
Effect.  No Reportable Event has occurred
during the past five years as to which Parent, Holdings, any of the
Subsidiaries or any ERISA Affiliate was required to file a report with the
PBGC, other than reports that have been filed and reports the failure of which
to file could not reasonably be expected to have a Material Adverse
Effect.  As of the Closing Date, the
excess of the present value of all benefit liabilities under each Plan of
Parent, Holdings, the Subsidiaries and the ERISA Affiliates (based on those
assumptions used to fund such Plan), as of the last annual valuation date
applicable thereto for which a valuation is available, over the value of the
assets of such Plan could not reasonably be expected to have a Material Adverse
Effect, and the excess of the present value of all benefit liabilities of all
underfunded Plans (based on those assumptions used to fund each such Plan) as
of the last annual valuation dates applicable thereto for which valuations are
available, over the value of the assets of all such under funded Plans could
not reasonably be expected to have a Material Adverse Effect.  No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events
which have occurred or for which liability is reasonably expected to occur,
could reasonably be expected to result in a Material Adverse Effect.  None of Parent, Holdings, the Subsidiaries
and the ERISA Affiliates has received any written notification that any
Multiemployer Plan is in reorganization or has been terminated within the
meaning of Title IV of ERISA, or has knowledge that any Multiemployer Plan is
reasonably expected to be in reorganization or to be terminated, where such
reorganization or termination has had or could reasonably be expected to have,
through increases in the contributions required to be made to such
Multiemployer Plan or otherwise, a Material Adverse Effect.


 


(b)                                 Except as would not reasonably
be expected to have a Material Adverse Effect, each Non-U.S. Pension Plan has
been maintained in compliance with its terms and with the requirements of any
and all applicable laws, statutes, rules, regulations, orders and published
interpretations thereunder and has been maintained, where required, in good
standing with applicable regulatory authorities.  All contributions required to be made with
respect to a Non-U.S. Pension Plan have been timely made.  None of New Skies Investments, Holdings,
Parent, the Company or any Subsidiary has incurred any obligation in connection
with the termination of, or withdrawal from, any Non-U.S. Pension Plan.  The present value of the accrued benefit
liabilities (whether or not vested) under each Non-U.S. Pension Plan,
determined as of the end of the Company’s most recently ended fiscal year on
the basis of actuarial assumptions, each of


 


85





















 


which is reasonable, did not exceed the current value of the assets of
such Non-U.S. Pension Plan allocable to such benefit liabilities.


 


SECTION 3.16  Environmental Matters.  Except as to matters that could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect (i) no written notice, request for information, order, complaint
or penalty has been received by Parent or any of the Material Subsidiaries
relating to Parent or any of the Material Subsidiaries, and there are no
judicial, administrative or other actions, suits or proceedings relating to
Parent or any of the Material Subsidiaries pending or, to the knowledge of
Parent, threatened which allege a violation of or liability under any
Environmental Laws, (ii) each of Parent and the Material Subsidiaries has all
environmental permits necessary for its current operations to comply with all
applicable Environmental Laws and is in compliance with the terms of such
permits and with all other applicable Environmental Laws, (iii) there has been
no written environmental audit conducted since January 1, 2001 by Parent
or any of the Material Subsidiaries of any property currently owned or leased
by Parent or any of the Material Subsidiaries which has not been made available
to the Administrative Agent prior to the date hereof, (iv) no Hazardous
Material is located at any property currently owned, operated or leased by
Parent or any of the Material Subsidiaries that would reasonably be expected to
give rise to any cost, liability or obligation of Parent or any of the Material
Subsidiaries under any Environmental Laws, and no Hazardous Material has been
generated, owned or controlled by Parent or any of the Material Subsidiaries
and transported to or released at any location in a manner that would
reasonably be expected to give rise to any cost, liability or obligation of
Parent or any of the Material Subsidiaries under any Environmental Laws, and
(v) there are no acquisition agreements entered into after January 1, 2001
in which Parent or any of the Material Subsidiaries has expressly assumed or
undertaken responsibility for any liability or obligation of any other Person
arising under or relating to Environmental Laws, which in any such case has not
been made available to the Administrative Agent prior to the date hereof.


 


SECTION 3.17  Security
Documents.  (a)  Each of the Security Documents entered into
on the Closing Date is effective to create in favor of the Collateral Agent
(for the benefit of the Secured Creditors) a legal, valid and enforceable
security interest in the Collateral described therein (subject to any limitations
specified therein).  In the case of the
Pledged Collateral described in any of such Security Documents the security
interest in which is perfected by delivery thereof, when certificates or
promissory notes, as applicable, representing such Pledged Collateral are
delivered to the Collateral Agent, and in the case of the other Collateral
described in any such Security Document, when financing statements and other
filings specified in each Security Document in appropriate form are filed in
the offices specified in each such Security Document, the Collateral Agent (for
the benefit of the Secured Creditors) shall have a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in such
Collateral, as security for the Obligations secured thereby, in each case prior
and superior in right to any other person (except, Liens expressly permitted by
Section 6.02 and Liens having priority by operation of law).


 


(b)                                 When (i) in the case of the
non-notarial Dutch Security Documents, such documents have been registered with
the Belastingdienst Amsterdam Afdeling
Registratie Unit (and, in the case of the Agreement of Pledge of
Intellectual Property Rights, with the relevant registration agency or
agencies) and/or the debtors of the receivables purported to be


 


86





















 


encumbered with a disclosed right of pledge have been notified of such
right of pledge, and (ii) in the case of the Agreement and Deed of Mortgage and
Pledge, such document has been registered with the Land Registry (Kadaster), the Collateral Agent (for the
benefit of the Secured Creditors) shall have a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in the
relevant Pledge Collateral.


 


SECTION 3.18  Location of Real
Property and Leased Premises.   (a)   Schedule 3.18(a)
lists completely and correctly as of the Closing Date all material real
property owned by Parent and the addresses thereof.  As of the Closing Date, Parent owns in fee
all the real property set forth as being owned by them on such Schedule.


 


(b)                                 Schedule 3.18(b) lists completely and correctly
as of the Closing Date all material real property leased by Parent and the
addresses thereof.  As of the Closing
Date, Parent has valid leases in all the real property set forth as being
leased by them on such Schedule.


 


SECTION 3.19  Solvency.  (a) 
(A)  Immediately after giving
effect to the Transaction (i) the fair value of the assets of Holdings and its
Subsidiaries taken as a whole, at a fair valuation, will exceed the debts and
liabilities, direct, subordinated, contingent or otherwise, of Holdings and its
Subsidiaries taken as a whole; (ii) the present fair saleable value of the
property of Holdings and its Subsidiaries taken as a whole will be greater than
the amount that will be required to pay the probable liability of Holdings and
its Subsidiaries taken as a whole on their debts and other liabilities, direct,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (iii) Holdings and its Subsidiaries on a
consolidated basis will be able to pay their debts and liabilities, direct,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (iv) Holdings and its Subsidiaries on a consolidated
basis will not have unreasonably small capital with which to conduct the
businesses in which they are engaged as such businesses are now conducted and
are proposed to be conducted following the Closing Date and (B) after giving
effect to the Transaction, Parent (x) has not ceased, and does not expect that
it will cease, making payments on its liabilities when due and (y) can, and
expects that it can, obtain credit in the ordinary course of business.


 


(b)                                 Neither Holdings nor Parent
intends to, and does not believe that it or any of the Material Subsidiaries
will, incur debts beyond its ability to pay such debts as they mature, taking
into account the timing and amounts of cash to be received by it or any such
subsidiary and the timing and amounts of cash to be payable on or in respect of
its Indebtedness or the Indebtedness of any such subsidiary.


 


SECTION 3.20  Labor Matters.  There are no strikes pending or threatened
against Holdings, Parent or any of the Material Subsidiaries that, individually
or in the aggregate, could reasonably be expected to have a Material Adverse
Effect.  The hours worked and payments
made to employees of Holdings, Parent and the Material Subsidiaries have not
been in violation in any material respect of the Fair Labor Standards Act or
any other applicable law dealing with such matters.  All material payments due from Holdings,
Parent or any of the Material Subsidiaries or for which any claim may be made
against Holdings, Parent or any of the Material Subsidiaries, on account of
wages and employee health and welfare insurance and other benefits have been
paid or accrued as a liability on the books of Holdings, Parent or such


 


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Material Subsidiary to the extent required by US GAAP.  Except as set forth on Schedule 3.20,
consummation of the Transaction will not give rise to a right of termination or
right of renegotiation on the part of any union under any collective bargaining
agreement to which Holdings, Parent or any of the Material Subsidiaries (or any
predecessor) is a party or by which Holdings, Parent or any of the Material
Subsidiaries (or any predecessor) is bound, other than collective bargaining
agreements that, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.


 


SECTION 3.21  Insurance.  Schedule 3.21 sets forth a true,
complete and correct description of all material insurance maintained by or on
behalf of Holdings, Parent or the Material Subsidiaries as of the Closing
Date.  As of the Closing Date, such
insurance is in full force and effect, subject to the exclusions and
limitations contained in such policies. 
Parent believes that the insurance maintained by or on behalf of
Holdings, Parent and the Material Subsidiaries is adequate.


 


SECTION 3.22  Satellite
Licenses and other Authorizations, etc. 
As of the Closing Date, Schedule 3.22 accurately and
completely lists for each Satellite (a) all space station licenses or
authorizations, including placement on the FCC’s “Permitted Space Station List”,
for operation of Satellites with C-band or Ku-band transponders issued or
granted by the FCC to Holdings or any of its Subsidiaries and (b) all licenses
and all other approvals, orders or authorizations issued or granted by any
Governmental Authority outside of the United States of America to launch and
operate any such Satellite.  As of the
Closing Date, the FCC Licenses and the other licenses, approvals or
authorizations listed on Schedule 3.22 with respect to any
Satellite include all material authorizations, licenses and permits issued by
the FCC or any other Governmental Authority that are required or necessary to
launch or operate such Satellite, as applicable.  Except as could not reasonably be expected to
have a Material Adverse Effect, each such license is held in the name of
Holdings or one of its Subsidiaries and is validly issued and in full force and
effect, and Holdings and its subsidiaries have fulfilled and performed in all
material respects all of their obligations with respect thereto and have full
power and authority to operate thereunder.


 


SECTION 3.23  Earth Station
Licenses, etc. As of the Closing Date, Schedule 3.23 accurately
and completely lists for each Earth Station all material licenses or
authorizations issued or granted by the FCC or by any Governmental Authority
outside of the United States of America to Holdings or any of its
Subsidiaries.  As of the Closing Date,
the Earth Station licenses and authorizations listed on Schedule 3.23
include all material authorizations, licenses and permits issued by the FCC or
any other Governmental Authority outside of the United States that are required
or necessary to operate such Earth Station, as applicable.  Except as could not reasonably be expected to
have a Material Adverse Effect, each such license is held in the name of
Holdings or one of its Subsidiaries and is validly issued and in full force and
effect, and Holdings and its subsidiaries have fulfilled and performed in all
material respects all of their obligations with respect thereto and have full
power and authority to operate thereunder.


 


SECTION 3.24  Satellites.  Schedule 3.24 accurately and
completely lists as of the Closing Date each of the Satellites owned by
Holdings and its Subsidiaries on the date hereof, and setting forth for each
such Satellite that is in orbit, the orbital slot and number and


 


88





















 


frequency band of the transponders on such Satellite (based on
Satellite design capabilities and measured in 36 MHz equivalents).


 


ARTICLE IV


 


Conditions of
Lending


 


The obligations of (a)
the Lenders (including the Swingline Lenders) to make Loans and (b) any Issuing
Bank to issue Letters of Credit or increase the stated amounts of Letters of
Credit hereunder (each, a “Credit Event”) are subject to the
satisfaction of the following conditions:


 


SECTION 4.01  All Credit Events.  On the date of the making of each Loan and on
the date of each issuance of, or amendment that increases the stated amount of,
a Letter of Credit:


 


(a)                                  The
Administrative Agent shall have received, in the case of a Borrowing, a
Borrowing Request as required by Section 2.03 (or a Borrowing Request
shall have been deemed given in accordance with the last paragraph of Section 2.03)
or, in the case of the issuance of a Letter of Credit, the applicable Issuing
Bank and the Administrative Agent shall have received a Request to Issue such
Letter of Credit as required by Section 2.05(b).


 


(b)                                 The
representations and warranties set forth in Article III hereof shall be
true and correct in all material respects on and as of the date of such
Borrowing or issuance or amendment that increases the stated amount of such
Letter of Credit, as applicable, with the same effect as though made on and as
of such date, except to the extent such representations and warranties
expressly relate to an earlier date (in which case such representations and
warranties shall be true and correct in all material respects as of such
earlier date).


 


(c)                                  At
the time of and immediately after such Borrowing or issuance or amendment that
increases the stated amount of such Letter of Credit, as applicable, no Event
of Default or Default shall have occurred and be continuing.


 


(d)                                 All
of the conditions specified in Section 4.02 shall have been satisfied or
waived on the Closing Date.


 


Each Borrowing and
each issuance of, or amendment that increases the stated amount of, a Letter of
Credit shall be deemed to constitute a representation and warranty by the
applicable Borrower (in the case of a Borrowing) and each Applicant Party (in
the case of a Letter of Credit) on the date of such Borrowing, issuance or
amendment as applicable, as to the matters specified in paragraphs (b) and (c)
of this Section 4.01.


 


SECTION 4.02  First Credit
Event.  On the Closing Date:


 


(a)                                  The
Administrative Agent (or its counsel) shall have received from each party
hereto either (i) a counterpart of this Agreement signed on behalf of such
party or


 


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(ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such party has
signed a counterpart of this Agreement.


 


(b)                                 The
Administrative Agent shall have received, on behalf of itself, the Syndication
Agent, the Collateral Agent, the Lenders and each Issuing Bank on the Closing
Date, a favorable written opinion of (i) Simpson Thacher & Bartlett LLP,
special New York counsel for Holdings and Parent, in form and substance
reasonably satisfactory to the Administrative Agent, (ii) NautaDutilh, special
Dutch counsel for Holdings and Parent, in form and substance reasonably
satisfactory to the Administrative Agent, (iii) White & Case LLP, special
U.K. counsel for the Administrative Agent, in form and substance reasonably
satisfactory to the Administrative Agent and (iv) Stibbe, special Dutch counsel
to the Administrative Agent, in form and substance reasonably satisfactory to
the Administrative Agent, in each case (A) dated the Closing Date, (B)
addressed to each Issuing Bank on the Closing Date, the Administrative Agent,
the Syndication Agent, the Collateral Agent and the Lenders on the Closing Date
and (C) in form and substance reasonably satisfactory to the Administrative
Agent and covering such other matters relating to the Loan Documents and the
Transaction as the Administrative Agent shall reasonably request, and each of
Holdings and Parent hereby instructs its counsel to deliver such opinions.


 


(c)                                  All
legal matters incident to this Agreement, the borrowings and extensions of
credit hereunder and the other Loan Documents shall be reasonably satisfactory
to the Administrative Agent.


 


(d)                                 (i)  The Administrative Agent shall have received
in the case of each person that is a Loan Party on the Closing Date each of the
items referred to in clauses (ii), (iii), (iv) and (v) below:


 


(ii)                                  (A)  a copy of the certificate or articles of
incorporation, memorandum and articles of association, partnership agreement or
limited liability agreement, including all amendments thereto, of each Loan
Party, (x) in the case of a corporation, certified as of a recent date by the
Secretary of State (or other similar official) of the jurisdiction of its
organization, and a certificate as to the good standing under the jurisdiction
of its organization (to the extent such concept or a similar concept exists
under the laws of such jurisdiction) of each such Loan Party as of a recent
date from such Secretary of State (or other similar official), or (y) in the
case of a partnership or limited liability company, certified by the manager,
Secretary or Assistant Secretary or other appropriate officer of each such Loan
Party or (B) in the case of a company incorporated under the laws of The
Netherlands, a copy of the deed of incorporation, the current articles of
association and a current original extract (in both Dutch and English) from the
relevant commercial register;


 


(iii)                               a certificate of the
manager, director, Secretary or Assistant Secretary or similar officer of each
Loan Party dated the Closing Date and certifying


 


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(A)                              that
attached thereto is a true and complete copy of the by-laws (or partnership agreement,
limited liability company agreement or other equivalent governing documents) of
such Loan Party as in effect on the Closing Date and at all times since a date
prior to the date of the resolutions described in clause (B) below,


 


(B)                                that
attached thereto is a true and complete copy of resolutions duly adopted by the
Board of Directors (or equivalent governing body) of such Loan Party (or its
managing general partner or managing member) authorizing the execution,
delivery and performance of the Loan Documents to which such person is a party
and, in the case of a Borrower, the borrowings hereunder, and that such
resolutions have not been modified, rescinded or amended and are in full force
and effect on the Closing Date,


 


(C)                                that
the certificate or articles of incorporation, memorandum and articles of
association, partnership agreement or limited liability agreement of such Loan
Party have not been amended since the date of the last amendment thereto
disclosed pursuant to clause (i) above,


 


(D)                               as
to the incumbency and specimen signature of each officer or director executing
any Loan Document or any other document delivered in connection herewith on
behalf of such Loan Party and


 


(E)                                 as
to the absence of any pending proceeding for the dissolution or liquidation of
such Loan Party or, to the knowledge of such person, threatening the existence
of such Loan Party;


 


(iv)                              a certificate of another
officer, director or attorney-in-fact as to the incumbency and specimen
signature of the Secretary or Assistant Secretary or similar officer executing
the certificate pursuant to clause (iii) above; and


 


(v)                                 such other documents
as the Administrative Agent may reasonably request (including, without
limitation, tax identification numbers and addresses).


 


(e)                                  The Collateral and Guarantee Requirements
shall have been satisfied or waived by the Administrative Agent.


 


(f)                                    The Acquisition Agreement (together with
all exhibits and schedules thereto), shall be in the form executed on June 5,
2004 (without amendment or modification thereof which is materially adverse to
the Lenders (as reasonably determined by the Administrative Agent) without the
prior written consent of the Administrative Agent).  There shall have been delivered to the
Administrative Agent true and correct copies certified as such by the Secretary
or Assistant Secretary of Parent of the Acquisition Documents.  The Acquisition shall have been consummated
(or shall be consummated concurrently with the closing under this Agreement) in
accordance in all material respects with the terms and conditions of the
Acquisition Agreement (without amendment, modification or waiver thereof which
is materially adverse to the Lenders (as reasonably


 


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determined by the
Administrative Agent) without the prior written consent of the Administrative
Agent) and all applicable laws.


 


(g)                                 Holdings shall have received net cash
proceeds of at least $163.0 million from the Investor Financing, and Holdings
shall have contributed and/or on-loaned on a subordinated basis all such net
proceeds from the Investor Financing to Parent.


 


(h)                                 Parent shall have received gross cash
proceeds (calculated before underwriting fees) of (i) at least $160.0 million
from the issuance of the Senior Subordinated Notes and (ii) at least $125.0
million from the issuance of the Senior Subordinated Notes.  There shall have been delivered to the
Administrative Agent true and correct copies certified as such by the Secretary
or Assistant Secretary of Parent of the Senior Note Documents and the Senior
Subordinated Note Documents.


 


(i)                                     After giving effect to the Transaction
and the other transactions contemplated hereby, Holdings and its Subsidiaries
shall have outstanding no Indebtedness other than (i) the Loans and other
extensions of credit under this Agreement, (ii) the Senior Notes, (iii) the
Senior Subordinated Notes, (iv) the Investor Financing and the Parent Investor
Financing and (v) other Indebtedness permitted pursuant to Section 6.01.


 


(j)                                     All stock of Parent shall be owned by
Holdings free and clear of Liens other than those securing the Obligations
under the Loan Documents.


 


(k)                                  The Lenders shall have received the
financial statements referred to in Section 3.05(a).


 


(l)                                     The Lenders shall have received the Projections
referred to in Section 3.14(b).


 


(m)                               No provision of any applicable law or
regulation and no judgment or order shall prohibit the consummation of the
Transaction except for laws, regulations, judgments or orders which do not and
would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.  All material
actions by or in respect of or material filings with any Governmental Authority
required to permit the consummation of the Transaction shall have been taken,
made or obtained, except for any such actions or filings the failure of which
to take, make or obtain would not and would not be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect.


 


(n)                                 The Administrative Agent shall have
received all fees payable to it, the Syndication Agent or any other Lender on
or prior to the Closing Date and, to the extent invoiced, all other amounts due
and payable pursuant to the Loan Documents on or prior to the Closing Date,
including, to the extent invoiced, reimbursement or payment of all reasonable
out-of-pocket expenses (including reasonable fees, charges and disbursements of
White & Case LLP and Stibbe) required to be reimbursed or paid by the Loan
Parties hereunder or under any Loan Document.


 


SECTION 4.03  Credit Events
Relating to Revolving Borrowers.  The
obligations of (x) the Lenders to make any Loans to any Revolving Borrower
designated after the Closing


 


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Date in accordance with Section 2.20 and (y) any Issuing Bank to
issue Letters of Credit for the account of any such Revolving Borrower, are
subject to the satisfaction of the following conditions (which are in addition
to the conditions contained in Section 4.01):


 


(a)                                  With
respect to the initial Loan made to or the initial Letter of Credit issued at
the request of, such Revolving Borrower, whichever comes first,


 


(ii)                                  the Administrative Agent (or its counsel)
shall have received a Revolving Borrower Agreement with respect to such
Revolving Borrower duly executed by all parties thereto; and


 


(iii)                               the Administrative Agent shall have
received such documents (including legal opinions) and certificates as the
Administrative Agent or its counsel may reasonably request relating to the formation,
existence and good standing of such Revolving Borrower, the authorization of
Borrowings as they relate to such Revolving Borrower and any other legal
matters relating to such Revolving Borrower or its Revolving Borrower
Agreement, all in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.


 


(b)                                 The
Administrative Agent shall be reasonably satisfied that Section 5.10(f)
shall have been complied with in respect of each Subsidiary that becomes a
Revolving Borrower and that the Collateral and Guarantee Requirement shall have
been satisfied or waived with respect to such Revolving Borrower.


 


ARTICLE V


 


Affirmative
Covenants


 


Each of Holdings and
Parent covenants and agrees with each Lender that so long as this Agreement
shall remain in effect and until the Commitments have been terminated and the
principal of and interest on each Loan, all Fees and all other expenses or
amounts payable under any Loan Document shall have been paid in full and all
Letters of Credit have been canceled or have expired and all amounts drawn
thereunder have been reimbursed in full, unless the Required Lenders shall
otherwise consent in writing, each of Holdings and Parent will, and (other than
Sections 5.04 and 5.05) will cause each of the Material Subsidiaries to:


 


SECTION 5.01
 Existence;
Businesses and Properties.  (a)  Do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its legal existence,
except as otherwise expressly permitted under Section 6.05, and except for
the liquidation or dissolution of Subsidiaries if the assets of such
Subsidiaries to the extent they exceed estimated liabilities are acquired by a
Borrower or a Wholly Owned Subsidiary of a Borrower in such liquidation or
dissolution; provided that Subsidiary Loan Parties may not be liquidated into
Non-Subsidiary Loan Parties.


 


(b)                                 Do or cause to be done all
things reasonably necessary to (i) obtain, preserve, renew, extend and keep in
full force and effect the permits, franchises, authorizations, patents,
trademarks, service marks, trade names, copyrights, licenses and rights with
respect thereto necessary to the normal conduct of its business, (ii) comply in
all material respects with


 


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all material applicable laws, rules, regulations (including any zoning,
building, ordinance, code or approval or any building permits or any
restrictions of record or agreements affecting the Mortgaged Properties) and
material judgments, writs, injunctions, decrees and orders of any Governmental
Authority, whether now in effect or hereafter enacted, and (iii) at all times
maintain and preserve all property necessary to the normal conduct of its
business and keep such property in good repair, working order and condition and
from time to time make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto necessary in order
that the business carried on in connection therewith, if any, may be properly
conducted at all times (in each case except as expressly permitted by this
Agreement).


 


SECTION 5.02  Insurance.  (a) 
Obtain, maintain and keep in full force and effect at all times (i) with
respect to each Satellite to be launched by Parent or any Subsidiary, launch
insurance with respect to each such Satellite covering the launch of such
Satellite and a period thereafter, but only to the extent, if at all, and on
such terms (including period, exclusions, limitations on coverage and coverage
amount) as is determined by the Management Board of Parent to be in the best
interests of Parent and evidenced by a resolution of the Management Board
delivered to the Administrative Agent, (ii) with respect to each Satellite it
currently owns or has risk of loss for, other than any Excluded Satellite,
In-Orbit Insurance and (iii) at all times subsequent to the coverage period of
the launch insurance described in clause (i) above, if any, or if launch
insurance is not procured, at all times subsequent to the initial completion of
in-orbit testing, in each case other than in the case of any such Satellite
that is an Excluded Satellite, In-Orbit Insurance; provided, however,
that at any time with respect to a Satellite that is not an Excluded Satellite,
Parent shall not be required to maintain In-Orbit Insurance in excess of the
Required Insurance Percentage of the net book value of each such Satellite (it
being understood that any Satellite protected by In-Orbit Spare Capacity shall
be deemed to be insured for a percentage of its net book value as set forth in
the definition of “In-Orbit Spare Capacity”).  In the event of any loss, damage or failure
affecting a Satellite insured pursuant to clauses (i), (ii) or (iii) above or
the expiration and non-renewal of an insurance policy for such a Satellite
resulting from a claim of loss under such policy causes a failure to comply
with this provision, Parent shall be deemed to be in compliance with this
proviso for the 120 days immediately following such loss, damage or failure or
policy expiration, provided that Parent procures such insurance or
In-Orbit Spare Capacity as necessary to comply with the preceding proviso
within such 120 day period.


 


(b)                                 The insurance policies required
by clause (a) of this Section 5.02 shall (i) contain no exclusions other
than (A) Acceptable Exclusions and such other exclusions or limitations of
coverage as may be applicable to a substantial portion of Satellites of the
same model or relating to systemic failures or anomalies as are then customary
in the Satellite insurance market and (B) such specific exclusions applicable
to the performance of the Satellite being insured as are reasonably accepted by
the Management Board of Parent in order to obtain insurance for a price that
is, and on other terms and conditions that are, commercially reasonable and
(ii) provide coverage for all risks of loss of and damage to the Satellite
including for partial loss, constructive total loss and total loss.  The insurance required by this Section 5.02
shall name the Parent or the applicable Subsidiary as the named insured.


 


(c)                                  In the event of the
unavailability of In-Orbit Spare Capacity for any reason, Parent shall, subject
to the proviso to Section 5.02(a) above, within 120 days of such loss


 


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or unavailability, be required to have in
effect In-Orbit Insurance complying with clauses (a)(ii) or (a)(iii) of this Section 5.02,
as applicable, with respect to all Satellites that the In-Orbit Spare Capacity
was intended to protect so long as In-Orbit Spare Capacity is unavailable,
provided that Parent and its subsidiaries shall be considered in compliance
with this Section 5.02 for the 120 days immediately following such loss or
unavailability as the case may be.


 


(d)                                 In the event that Parent or its
subsidiaries receive proceeds from any Satellite insurance covering any
Satellite owned by Parent or any of its Subsidiaries, or in the event that
Parent or any of its Subsidiaries receives proceeds from any insurance
maintained for it by a Satellite Manufacturer or any launch provider covering
any of such Satellites (the event resulting in the payment of such proceeds, an
“Event of Loss”), all Event of Loss Proceeds in respect of such Event of
Loss shall be applied in the manner provided for in Section 2.11(c).


 


(e)                                  Without prejudice to the other
provisions of this Section 5.02, maintain insurance on and in relation to
its Mortgaged Properties with reputable underwriters or insurance companies of
such type, to such extent, against such risks and in such amounts as are
customarily insured against by companies in a similar business such as that
carried on by the relevant Loan Party.


 


(f)                                    Notify the Administrative Agent
and the Collateral Agent promptly whenever any separate insurance concurrent in
form or contributing in the event of loss with that required to be maintained
under this Section 5.02 is taken out by Holdings, Parent or any of the
Subsidiaries; and promptly deliver to the Administrative Agent and the
Collateral Agent a duplicate original copy of such policy or policies, or an
insurance certificate with respect thereto.


 


(g)                                 In connection with the covenants
set forth in this Section 5.02, it is understood and agreed that:


 


(i)                                     none
of the Agents, the Lenders, the Issuing Bank and their respective agents or
employees shall be liable for any loss or damage insured by the insurance
policies required to be maintained under this Section 5.02, it being
understood that (A) Parent and the other Loan Parties shall look solely to
their insurance companies or any other parties other than the aforesaid parties
for the recovery of such loss or damage and (B) such insurance companies shall
have no rights of subrogation against the Agents, the Lenders, any Issuing Bank
or their agents or employees.  If,
however, the insurance policies do not provide waiver of subrogation rights
against such parties, as required above, then each of Holdings and Parent
hereby agree, to the extent permitted by law, to waive, and to cause each of
their Subsidiaries to waive, its right of recovery, if any, against the Agents,
the Lenders, any Issuing Bank and their agents and employees; and


 


(ii)                                  the
designation of any form, type or amount of insurance coverage by the
Administrative Agent, the Collateral Agent under this Section 5.02 shall
in no event be deemed a representation, warranty or advice by the
Administrative Agent, the Collateral Agent or the Lenders that such insurance
is adequate for the purposes of the business of Holdings, Parent and their
Subsidiaries or the protection of their properties.


 


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SECTION 5.03  Taxes.  Pay and discharge promptly when due all
material Taxes, assessments and governmental charges or levies imposed upon it
or upon its income or profits or in respect of its property, before the same
shall become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise that, if unpaid, might give rise to a Lien
upon such properties or any part thereof; provided, however, that
such payment and discharge shall not be required with respect to any such Tax,
assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings, and Holdings,
Parent or the affected Subsidiary, as applicable, shall have set aside on its
books reserves in accordance with US GAAP with respect thereto.


 


SECTION 5.04  Financial Statements, Reports, etc.  Furnish
to the Administrative Agent (which will promptly furnish such information to
the Lenders):


 


(a)                                  within
90 days after the end of each fiscal year, a consolidated balance sheet and
related consolidated statements of operations, cash flows and owners’ equity
showing the financial position of Holdings and the Subsidiaries as of the close
of such fiscal year and the consolidated results of their operations during
such year, with all consolidated statements audited by independent public
accountants of recognized national standing reasonably acceptable to the
Administrative Agent and accompanied by an opinion of such accountants (which
shall not be qualified in any material respect) to the effect that such
consolidated financial statements fairly present, in all material respects, the
financial position and results of operations of Holdings and the Subsidiaries
on a consolidated basis in accordance with US GAAP (it being understood that
the delivery by Holdings of (i) financial information for such fiscal year that
would be required to be contained in a filing with the SEC on Forms 6-K and
20-F if Holdings were required to file such forms, (ii) whether or not required
by the forms referred to in clause (i) above, a “Management’s Discussion and
Analysis of Financial Condition and Results of Operations” and (iii) the
opinion of accountants referred to above, shall satisfy the requirements of
this Section 5.04(a));


 


(b)                                 within
45 days after the end of each of the first three fiscal quarters of each fiscal
year commencing with the fiscal quarter ending December 31, 2004, a
consolidated balance sheet and related consolidated statements of operations
and cash flows showing the financial position of Holdings and its Subsidiaries
as of the close of such fiscal quarter and the consolidated results of their
operations during such fiscal quarter and the then-elapsed portion of the
fiscal year, all certified by a Financial Officer of Holdings, on behalf of
Holdings, as fairly presenting, in all material respects, the financial
position and results of operations of Holdings and its Subsidiaries on a
consolidated basis in accordance with US GAAP (subject to normal year-end
adjustments and the absence of footnotes) (it being understood that the
delivery by Holdings of (i) financial information for such period that would be
required to be contained in a filing with the SEC on Forms 6-K and 20-F if
Holdings were required to file such forms, (ii) whether or not required by the
forms referred to above, a “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” and (iii) the officer’s certificate
referred to above, shall satisfy the requirements of this Section 5.04(b));


 


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(c)                                  (x)
concurrently with any delivery of financial statements under (a) or (b) above,
a certificate of a Financial Officer of Holdings (i) certifying that no Event
of Default or Default has occurred or, if such an Event of Default or Default
has occurred, specifying the nature and extent thereof and any corrective
action taken or proposed to be taken with respect thereto and (ii) commencing
with the fiscal period ending December 31, 2004, setting forth
computations in reasonable detail satisfactory to the Administrative Agent
demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and
6.12 and (y) concurrently with any delivery of financial statements under (a)
above, a certificate of the accounting firm opining on or certifying such
statements stating whether they obtained knowledge during the course of their
examination of such statements of any Default or Event of Default (which
certificate may be limited to accounting matters and disclaims responsibility
for legal interpretations);


 


(d)                                 promptly
after the same become publicly available, copies of all periodic and other
publicly available reports, proxy statements and, to the extent requested by
the Administrative Agent, other materials filed by Holdings, Parent or any of
the Subsidiaries with the SEC, or after an initial public offering, distributed
to its stockholders generally, as applicable;


 


(e)                                  if,
as a result of any change in accounting principles and policies from those as
in effect on the Closing Date, the consolidated financial statements of
Holdings and the Subsidiaries delivered pursuant to paragraphs (a) or (b) above
will differ in any material respect from the consolidated financial statements
that would have been delivered pursuant to such clauses had no such change in
accounting principles and policies been made, then, together with the first
delivery of financial statements pursuant to paragraph (a) and (b) above
following such change, a schedule prepared by a Financial Officer on
behalf of Holdings reconciling such changes to what the financial statements
would have been without such changes;


 


(f)                                    within
90 days after the beginning of each fiscal year, an operating and capital
expenditure budget, in form reasonably satisfactory to the Administrative Agent
prepared by Holdings for such fiscal year prepared in reasonable detail, of
Holdings and the Subsidiaries, accompanied by the statement of a Financial
Officer of Holdings to the effect that, to the best of his knowledge, the
budget is a reasonable estimate for the period covered thereby;


 


(g)                                 upon
the reasonable request of the Administrative Agent (which request shall not be
made more than once in any 12-month period unless specifically provided
otherwise in any of the Dutch Security Documents), deliver updated information
reflecting all changes since the date of the information most recently received
pursuant to this paragraph (g) or Section 5.10(e);


 


(h)                                 promptly,
a copy of all reports submitted to the Management Board (or any committee
thereof) of any of Holdings, Parent or any Material Subsidiary in connection
with any interim or special audit that is material made by independent
accountants of the books of Holdings, Parent or any Subsidiary;


 


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(i)                                     promptly,
from time to time, such other information regarding the operations, business
affairs and financial condition of Holdings, Parent or any of the Subsidiaries,
or compliance with the terms of any Loan Document, as in each case the
Administrative Agent may reasonably request; and


 


(j)                                     promptly
upon request by the Administrative Agent, copies of:  (i) each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) filed with the Internal
Revenue Service with respect to a Plan; (ii) the most recent actuarial
valuation report for any Plan; (iii) all notices received from a Multiemployer
Plan sponsor or any governmental agency concerning an ERISA Event; and (iv)
such other documents or governmental reports or filings relating to any
Non-U.S. Pension Plan, Plan or Multiemployer Plan as the Administrative Agent
shall reasonably request.


 


SECTION 5.05  Litigation and
Other Notices.  Furnish to the
Administrative Agent written notice of the following promptly after any
Responsible Officer of Holdings or Parent obtains actual knowledge thereof:


 


(a)                                  any
Event of Default or Default, specifying the nature and extent thereof and the corrective action (if any) proposed to be
taken with respect thereto;


 


(b)                                 the
filing or commencement of, or any written threat or notice of intention of any
person to file or commence, any action, suit or proceeding, whether at law or
in equity or by or before any Governmental Authority or in arbitration, against
Holdings, Parent or any of the Subsidiaries as to which an adverse
determination is reasonably probable and which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect;


 


(c)                                  any
other development specific to Holdings, Parent or any of the Subsidiaries that
is not a matter of general public knowledge and that has had, or could
reasonably be expected to have, a Material Adverse Effect; and


 


(d)                                 the
occurrence of any ERISA Event, that together with all other ERISA Events that
have occurred, could reasonably be expected to have a Material Adverse Effect.


 


SECTION 5.06  Compliance with
Laws.  Comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect; provided
that this Section 5.06 shall not apply to Environmental Laws, which are
the subject of Section 5.09, or to laws related to Taxes, which are the
subject of Section 5.03.


 


SECTION 5.07  Maintaining
Records; Access to Properties and Inspections.  Maintain all financial records in accordance
with US GAAP and permit any persons designated by the Agents or, upon the
occurrence and during the continuance of an Event of Default, any Lender to
visit and inspect the financial records and the properties of Holdings, Parent
or any of the Subsidiaries at reasonable times, upon reasonable prior notice to
Holdings or Parent, and as often as reasonably requested and to make extracts
from and copies of such financial records,


 


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and permit any persons designated by the Agents or, upon the occurrence
and during the continuance of an Event of Default, any Lender upon reasonable
prior notice to Holdings or Parent to discuss the affairs, finances and
condition of Holdings, Parent or any of the Subsidiaries with the officers thereof
and (subject to a senior officer of the respective company or a parent thereof
being present) independent accountants therefor (subject to reasonable
requirements of confidentiality, including requirements imposed by law or by
contract).


 


SECTION 5.08  Use of Proceeds.  Use the proceeds of Loans and request
issuances of Letters of Credit only in compliance with the representation
contained in Section 3.12.


 


SECTION 5.09  Compliance with
Environmental Laws.  Comply, and make
reasonable efforts to cause all lessees and other persons occupying its
properties to comply, with all Environmental Laws applicable to its operations
and properties; and obtain and renew all material authorizations and permits
required pursuant to Environmental Law for its operations and properties, in
each case in accordance with Environmental Laws, except, in each case with
respect to this Section 5.09, to the extent the failure to do so could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.


 


SECTION 5.10  Further
Assurances; Additional Mortgages. 
(a)  Execute any and all further
documents, financing statements, agreements and instruments, and take all such
further actions (including the filing and recording of financing statements,
fixture filings, Mortgages and other documents and recordings of Liens in stock
registries), that may be required under any applicable law (including the
Convention on International Interests in Mobile Equipment of November 16,
2001), or that the Administrative Agent may reasonably request, to cause the
Collateral and Guarantee Requirements to be and remain satisfied, all at the
expense of the Loan Parties and provide to the Administrative Agent, from time
to time upon reasonable request, evidence reasonably satisfactory to the
Administrative Agent as to the perfection and priority of the Liens created or
intended to be created by the Security Documents.


 


(b)                                 If any asset (including any real
property (other than real property covered by Section 5.10(c) below) or
improvements thereto or any interest therein) that has an individual fair
market value in an amount having a Dollar Equivalent greater than $2.5 million
is acquired by Holdings, Parent or any Subsidiary Loan Party after the Closing
Date or owned by an entity at the time it first becomes a Subsidiary Loan Party
(in each case other than assets constituting Collateral under a Security
Document that become subject to the Lien of such Security Document upon
acquisition thereof), cause such asset to be subjected to a Lien securing the
Obligations and take, and cause the Subsidiary Loan Parties to take, such
actions as shall be necessary or reasonably requested by the Administrative
Agent to grant and perfect such Liens, including actions described in paragraph
(a) of this Section, all at the expense of the Loan Parties, subject to
paragraph (g) below.


 


(c)                                  Grant, and cause each of the
Subsidiary Loan Parties to grant, to the Collateral Agent security interests
and mortgages in such real property of Parent or any such Subsidiary Loan
Parties as are not covered by the original Mortgages, to the extent acquired
after the Closing Date and having a fair market value (as determined in good
faith by Holdings) at the time of acquisition in excess of $2.5 million
pursuant to documentation substantially in the form of the Mortgages delivered
to the Collateral Agent on the Closing Date or in such other form as


 


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is reasonably satisfactory to the Collateral
Agent (each, an “Additional Mortgage”) and constituting valid and
enforceable perfected Liens superior to and prior to the rights of all third
persons subject to no other Liens except as are permitted by Section 6.02
or arising by operation of law, at the time of perfection thereof, record or
file, and cause each such Subsidiary to record or file, the Additional Mortgage
or instruments related thereto in such manner and in such places as is required
by law to establish, perfect, preserve and protect the Liens in favor of the Collateral
Agent required to be granted pursuant to the Additional Mortgages and pay, and
cause each such Subsidiary to pay, in full, all Taxes, fees and other charges
payable in connection therewith, in each case subject to paragraph (g) below.


 


(d)                                 If any additional direct or
indirect Subsidiary of Holdings is formed or acquired after the Closing Date
and if such Subsidiary is a Subsidiary Loan Party, or if any Subsidiary becomes
a Subsidiary Loan Party after the Closing Date, within 10 Business Days after
the date such Subsidiary is formed or acquired or becomes a Subsidiary Loan
Party, notify the Administrative Agent and the Lenders thereof and, within 25
Business Days (or, in the case of any Mortgages required to be granted, 90
days) after the date such Subsidiary is formed or acquired or becomes a
Subsidiary Loan Party, cause the Collateral and Guarantee Requirements to be
satisfied with respect to such Subsidiary and with respect to any Equity
Interest in or Indebtedness of such Subsidiary owned by or on behalf of any
Loan Party.


 


(e)                                  In the case of Parent, (i)
furnish to the Collateral Agent prompt written notice of any change (A) in any
Loan Party’s corporate or organization name, (B) in any Loan Party’s identity
or organizational structure or (C) in any Loan Party’s organizational
identification number; provided that Parent shall not effect or permit
any such change unless all filings have been made, or will have been made
within any statutory period, under the Uniform Commercial Code or otherwise
that are required in order for the Collateral Agent to continue at all times
following such change to have a valid, legal and perfected security interest in
all the Collateral for the benefit of the Secured Creditors and (ii) promptly
notify the Administrative Agent if any material portion of the Collateral is
damaged or destroyed.


 


(f)                                    Prior to any Subsidiary becoming
a Revolving Borrower, cause the Collateral and Guarantee Requirements to be
satisfied with respect to such Subsidiary.


 


(g)                                 The Collateral and Guarantee
Requirements and the other provisions of this Section 5.10 need not be
satisfied with respect to (i) any real property held by Parent or any of its
Subsidiaries as a lessee under a lease, (ii) any Equity Interests acquired
after the Closing Date in accordance with this Agreement if, and to the extent
that, and for so long as (A) doing so would violate applicable law or a
contractual obligation binding on such Equity Interests and (B) such law
or obligation existed at the time of the acquisition thereof and was not
created or made binding on such Equity Interests in contemplation of or in
connection with the acquisition of such Subsidiary (provided that the
foregoing clause (B) shall not apply in the case of a joint venture, including
a joint venture that is a Subsidiary) or (iii) any assets acquired after the
Closing Date, to the extent that, and for so long as, taking such actions would
violate a contractual obligation binding on such assets that existed at the
time of the acquisition thereof and was not created or made binding on such
assets in contemplation or in connection with the acquisition of such assets
(except in the case of assets acquired with Indebtedness permitted pursuant to Section 6.01(i)
that is secured by a Lien permitted pursuant to Section 6.02(i)).


 


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SECTION 5.11  Fiscal Year;
Accounting.  In the case of Holdings
and Parent, cause its fiscal year to end on June 30 or on such other date
as is consented to by the Administrative Agent (which consent shall not be
unreasonably withheld or delayed).


 


SECTION 5.12  Interest Rate
Protection Agreements.  In the case
of Parent, as promptly as practicable and in any event within 180 days after
the Closing Date, enter into, and for a period of not less than three years
after the Closing Date maintain in effect, one or more Swap Agreements, the
effect of which is that at least 50% of Consolidated Net Debt will bear
interest at a fixed or capped rate or the interest cost in respect of which will
be fixed or capped, in each case on terms and conditions reasonably acceptable,
taking into account current market conditions, to the Administrative Agent.


 


SECTION 5.13  Proceeds of
Certain Dispositions.  If, as a
result of the receipt of any cash proceeds by Parent or any Subsidiary in
connection with any sale, transfer, lease or other disposition of any asset,
including any Equity Interest, Parent would be required by the terms of the
Senior Subordinated Note Indenture to make an offer to purchase any Senior
Subordinated Notes, then, in the case of Parent or a Subsidiary, prior to the
first day on which Parent would be required to commence such an offer to
purchase, (i) prepay Loans in accordance with Section 2.11 or (ii) acquire
assets, Equity Interests or other securities in a manner that is permitted by Section 6.04
or Section 6.05, in each case in a manner that will eliminate any such
requirement to make such an offer to purchase.


 


SECTION 5.14  Access and
Command Codes.  (a)  At the request of the Administrative Agent:


 


(i)                                     use
commercially reasonable efforts to obtain promptly from each provider (other
than Holdings or any of its subsidiaries) of tracking, telemetry, control and
monitoring services for any Satellite, consents and agreements with the Collateral
Agent to:


 


(A)                              deliver expeditiously to the Collateral
Agent, upon notification by the Administrative Agent that an acceleration
pursuant to Section 7.01 has occurred, subject to having obtained any
consent or approval of, or registration or filing with, any Governmental
Authority for such delivery, all access codes, command codes and command
encryption necessary to establish access to and perform tracking, telemetry,
control and monitoring of any such Satellite, including activation and control of
any spacecraft subsystems and payload components and the transponders thereon;


 


(B)                                take commercially reasonable steps
necessary, upon notification by the Administrative Agent that an acceleration
pursuant to Section 7.01 has occurred, to obtain any consent or approval
of, or registration or filing with, any Governmental Authority required to
effect any transfer of operational control over any such Satellite and related
technical data (including any license approving the export or re-export of such
Satellite to any Person or Persons as designated by the Administrative Agent);
and


 


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(C)                                deliver to the Collateral Agent written
evidence of the issuance of any such consent, approval, registration or filing
once such consent, approval, registration or filing has been obtained;


 


(ii)                                  if,
after having used its commercially reasonable efforts to obtain the consents
and agreements referred to in clause (i) above, any such consents or agreements
shall not have been so obtained, instruct each such provider of tracking,
telemetry, control and monitoring services (and each manufacturer or primary
contractor in respect of Satellites that have yet to be launched, to the extent
that Holdings or any of its Subsidiaries does not have in its possession all
items referred to in clause (iii) below) to cooperate in providing the access
codes, command codes and command encryption referred to in said clause (i), in
each case subject to having obtained any consent or approval of, or
registration or filing with, any Governmental Authority for such delivery; and


 


(iii)                               at
any time upon an acceleration pursuant to Section 7.01, and upon
notification thereof by the Administrative Agent, to promptly deliver to the
Collateral Agent, subject to having obtained any requisite consent or approval
of, or registration or filing with, any Governmental Authority for such
delivery, all access codes, command codes and command encryption necessary, in
the sole judgment of the Administrative Agent, to establish access to and
perform tracking, telemetry, control and monitoring of any Satellite, including
activation and control of any spacecraft subsystems and payload components and
the transponders thereon and any changes to or modifications of such codes and
encryption.


 


(b)                                 Not, and will use its
commercially reasonable efforts to cause each provider (other than Holdings or
its subsidiaries) of tracking, telemetry, control and monitoring services for
any Satellite to agree not to, change any access codes, command codes or
command encryption necessary to establish access to and perform tracking,
telemetry, control and monitoring of each Satellite at any time that an Event
of Default has occurred and is continuing and such provider of tracking,
telemetry, control and monitoring services, as the case may be, has been
notified by Holdings or the Administrative Agent thereof, without promptly
furnishing to the Administrative Agent the new access codes, command codes and
command encryption necessary to establish access to and perform tracking,
telemetry, control and monitoring of such Satellite, once such access codes,
command codes and command encryption have been delivered to the Administrative
Agent pursuant to this Section 5.14.


 


SECTION 5.15
 License
Subsidiary.  As soon as practicable
following the Closing Date (and, in any event, within 120 days thereafter), to
the extent permitted by applicable law, (a) Parent shall create one or more
License Subsidiaries and pledge 100% of the Equity Interests of such License
Subsidiary or Subsidiaries to the Collateral Agent pursuant to the respective
Dutch Security Document and (b) Parent shall transfer to a License Subsidiary
all Subject Licenses held by Parent as of the Closing Date, subject to the
receipt of all necessary approvals of Governmental Authorities (which approvals
Parent hereby agrees to use commercially reasonable efforts to obtain as soon
as practicable following the Closing Date). 
Following the date referred to in the immediately preceding sentence, Parent
will cause all Subject Licenses at all times (whether in existence on the
Closing Date or obtained thereafter) to


 


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be held in the name of a License Subsidiary to the extent permitted by
applicable law and subject to the receipt of all necessary approvals of
Governmental Authorities.


 


SECTION 5.16  Post-Closing Matters.  To the extent not executed and delivered on
the Closing Date, execute and deliver the documents and complete the tasks set
forth on Schedule 5.16, in each case within the time limits
specified on such schedule.


 


ARTICLE VI


 


Negative
Covenants


 


Each of Holdings and
Parent covenants and agrees with each Lender that, so long as this Agreement
shall remain in effect and until the Commitments have been terminated and the
principal of and interest on each Loan, all Fees and all other expenses or
amounts payable under any Loan Document have been paid in full and all Letters
of Credit have been canceled or have expired and all amounts drawn thereunder
have been reimbursed in full, unless the Required Lenders shall otherwise
consent in writing, neither Holdings nor Parent will, or will cause or permit
any of the Subsidiaries to:


 


SECTION 6.01  Indebtedness.  Incur, create, assume or permit to exist any
Indebtedness (other than intercompany Indebtedness incurred in the ordinary
course of business and consistent with past practices of Parent and its
subsidiaries), except:


 


(a)                                  (i)  Indebtedness (other than under letters of
credit) existing on the Closing Date and set forth on Schedule 6.01(a)
and any Permitted Refinancing Indebtedness incurred to Refinance such
Indebtedness and (ii) Indebtedness under letters of credit existing on the
Closing Date and set forth on Schedule 6.01(b), without giving effect
to any extension, renewal or replacement thereof;


 


(b)                                 Indebtedness
created hereunder and under the other Loan Documents;


 


(c)                                  Indebtedness
of Holdings and the Subsidiaries pursuant to Swap Agreements permitted by Section 6.13;


 


(d)                                 Indebtedness
owed to (including obligations in respect of letters of credit or bank
guarantees or similar instruments for the benefit of) any person providing
workers’ compensation, health, disability or other employee benefits or
property, casualty or liability insurance to Holdings or any Subsidiary,
pursuant to reimbursement or indemnification obligations to such person, provided
that upon the incurrence of Indebtedness with respect to reimbursement
obligations regarding workers’ compensation claims, such obligations are reimbursed
not later than 30 days following such incurrence;


 


(e)                                  Indebtedness
of any Borrower to any Subsidiary or other Borrower and of any Subsidiary to
any Borrower or any other Subsidiary, provided that (i) Indebtedness of
any Subsidiary that is not a Subsidiary Loan Party to the Loan Parties shall be
subject to Section 6.04(b) and (ii) Indebtedness (the “Subordinated
Intercompany Debt”) of any Specified Loan Party to any Subsidiary that is
not a Loan Party shall be subordinated to the Obligations in the manner set
forth in Exhibit H (it being agreed that such


 


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subordination provisions will
not restrict the repayment of any such Subordinated Intercompany Debt other
than when an Event of Default exists);


 


(f)                                    Indebtedness
in respect of performance bonds, bid bonds, appeal bonds, surety bonds and
completion guarantees and similar obligations, in each case provided in the
ordinary course of business, including those incurred to secure health, safety
and environmental obligations in the ordinary course of business;


 


(g)                                 Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument drawn against insufficient funds in the ordinary
course of business or other cash management services in the ordinary course of
business, provided that (x) such Indebtedness (other than credit or
purchase cards) is extinguished within three Business Days of its incurrence
and (y) such Indebtedness in respect of credit or purchase cards is
extinguished within 60 days from its incurrence;


 


(h)                                 (i)
Indebtedness of a Subsidiary acquired after the Closing Date or a corporation
merged into or consolidated with Parent or any Subsidiary after the Closing
Date and Indebtedness assumed in connection with the acquisition of assets,
which Indebtedness in each case, exists at the time of such acquisition, merger
or consolidation and is not created in contemplation of such event and where
such acquisition, merger or consolidation is permitted by this Agreement and
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such
Indebtedness, provided that the aggregate principal amount of such
Indebtedness at the time of, and after giving effect to, such acquisition,
merger or consolidation, such assumption or such incurrence, as applicable
(together with Indebtedness outstanding pursuant to this paragraph (h),
paragraph (i) of this Section 6.01 and the Remaining Present Value of
outstanding leases permitted under Section 6.03), would not exceed the
greater of $25.0 million and 4.0% of Consolidated Total Assets as of the end of
the fiscal quarter immediately prior to the date of such acquisition, merger or
consolidation, such assumption or such incurrence, as applicable, for which
financial statements have been delivered pursuant to Section 5.04;


 


(i)                                     Capital
Lease Obligations, mortgage financings and purchase money Indebtedness incurred
by Holdings or any Subsidiary prior to or within 270 days after the
acquisition, lease or improvement of the respective asset permitted under this
Agreement in order to finance such acquisition or improvement, and any
Permitted Refinancing Indebtedness in respect thereof, in an aggregate
principal amount that at the time of, and after giving effect to, the incurrence
thereof (together with Indebtedness outstanding pursuant to paragraph (h) of
this Section 6.01, this paragraph (i) and the Remaining Present Value of
leases permitted under Section 6.03) would not exceed the greater of $25.0
million and 4.0% of Consolidated Total Assets as of the end of the fiscal
quarter immediately prior to the date of such incurrence for which financial
statements have been delivered pursuant to Section 5.04;


 


(j)                                     Capital
Lease Obligations incurred by Parent or any Subsidiary in respect of any Sale
and Lease-Back Transaction that is permitted under Section 6.03;


 


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(k)                                  other
Indebtedness of Parent or any Subsidiary, in an aggregate principal amount at
any time outstanding pursuant to this paragraph (k) not in excess of $40.0
million, so long as the holders of any such Indebtedness shall have entered
into an intercreditor agreement substantially in the same form as the Senior
Note Intercreditor Arrangement;


 


(l)                                     Indebtedness
(i) of Parent under the Senior Notes and the Senior Note Documents in an
aggregate principal amount not to exceed $160.0 million and Indebtedness of
Parent pursuant to the Permitted Senior Debt Securities issued to refinance
same, (ii) of Parent under the Senior Subordinated Notes and the Senior
Subordinated Note Documents in an aggregate principal amount not to exceed
$125.0 million and Indebtedness of Parent pursuant to the Permitted Senior
Subordinated Debt Securities issued to refinance same, (iii) of Holdings under
the Investor Financing in aggregate principal amount not to exceed $163.0
million plus the amount of all interest thereon which is paid in kind or paid
through accretion or accrual and (iv) of Parent to Holdings resulting from
Holdings’ contribution and/or on-lending to Parent of the net proceeds from the
Investor Financing, so long as (x) the aggregate principal amount thereof shall
not exceed $163.0 million plus the amount of all interest thereon which is paid
in kind or paid through accretion or accrual and (y) such Indebtedness is
governed by the Parent Investor Financing Documents;


 


(m)                               Guarantees
(i) by the Subsidiary Loan Parties of the Indebtedness of Parent described in
paragraph (l)(i) and (l)(ii), so long as, in the case of any such Guarantees of
the Indebtedness referred to or clause (l)(ii), such Guarantees are
subordinated on terms substantially the same as those on which the Senior
Subordinated Notes are subordinated to the Obligations as set forth in the
Senior Subordinated Note Indenture, (ii) by Parent or any Subsidiary Loan Party
of any other Indebtedness of Parent or any Subsidiary Loan Party expressly
permitted to be incurred under this Agreement (other than the Investor
Financing and the Parent Investor Financing), (iii) by Parent or any Subsidiary
Loan Party of Indebtedness otherwise expressly permitted hereunder of any
Non-Subsidiary Loan Party to the extent permitted by Section 6.04(b), (iv)
by any Non-Subsidiary Loan Party of Indebtedness of any other Non-Subsidiary
Loan Party subject, however, to Section 6.04(b); provided that all
Non-Subsidiary Loan Parties may guarantee obligations of other Non-Subsidiary
Loan Parties under ordinary course cash management obligations, and (v) by
Parent of Indebtedness of Subsidiaries incurred for working capital purposes in
the ordinary course of business on ordinary business terms so long as such
Indebtedness is permitted to be incurred under Section 6.01(a) or (k); provided
that Guarantees by Holdings or any Subsidiary Loan Party under this Section 6.01(m)
of any other Indebtedness of a person that is subordinated to other
Indebtedness of such Person shall be expressly subordinated to the Obligations
on terms substantially the same as those on which the Senior Subordinated Notes
are subordinated under the Senior Subordinated Note Indenture to the
Obligations;


 


(n)                                 Indebtedness
arising from agreements of Holdings or any Subsidiary providing for
indemnification, adjustment of purchase price or similar obligations, in each
case, incurred or assumed in connection with the Transaction or the disposition
of any business, assets or a Subsidiary, other than Guarantees of Indebtedness
incurred by


 


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any person acquiring all or any
portion of such business, assets or a Subsidiary for the purpose of financing
such acquisition;


 


(o)                                 Indebtedness
in connection with Permitted Receivables Financings; provided that the
net proceeds thereof are applied in accordance with Section 2.11(c);


 


(p)                                 letters
of credit or bank guarantees (other than Letters of Credit issued pursuant to Section 2.05)
having an aggregate face amount not in excess of $10.0 million, so long as the
issuers of such letters of credit or bank guarantees shall have entered into an
intercreditor agreement substantially in the same form as the Senior Note
Intercreditor Arrangement;


 


(q)                                 Indebtedness
supported by a Letter of Credit, in a principal amount not in excess of the
stated amount of such Letter of Credit;


 


(r)                                    Indebtedness
consisting of (x) the financing of insurance premiums or (y) take or pay or
similar obligations contained in supply arrangements, in each case in the
ordinary course of business;


 


(s)                                  Indebtedness
consisting of Permitted Senior Subordinated Debt Securities (as provided for in
clause (y) of the definition thereof) to the extent the Net Proceeds in respect
thereof are actually utilized to repay Term Loan Borrowings, provided
that the Net Proceeds of any Permitted Senior Subordinated Debt Securities may
be used to finance (in whole or in part) a Permitted Business Acquisition
instead of being used to repay Term Loan Borrowings (provided, further,
that the aggregate outstanding principal amount of Permitted Senior
Subordinated Debt Securities used as set forth in the immediately preceding
proviso shall not exceed $50.0 million unless, at the time of consummation of
any Permitted Business Acquisition, the Total Leverage Ratio is equal to or
less than 5.0:1.0 determined on a Pro Forma Basis after giving effect to such
Permitted Business Acquisition and the incurrence of all Permitted Senior
Subordinated Debt Securities (and all other Indebtedness) the proceeds of which
are used to finance such Permitted Business Acquisition;


 


(t)                                    all
premium (if any), interest (including post-petition interest), fees, expenses,
charges and additional or contingent interest on obligations described in
paragraphs (a) through (s) above;


 


(u)                                 Indebtedness
incurred on behalf of or representing Guarantees of Indebtedness of joint
ventures not in excess of, when added to the amount of all Investments in joint
ventures made pursuant to Section 6.04(s), $20.0 million at any time
outstanding, so long as the holders of any such Indebtedness shall have entered
into an intercreditor agreement substantially in the same form as the Senior
Note Intercreditor Arrangement; and


 


(v)                                 Indebtedness of Subsidiaries which are
not Loan Parties for working capital purposes incurred in the ordinary course
of business on ordinary business terms in an aggregate principal amount not to
exceed $10.0 million, so long as the holders of any


 


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such Indebtedness shall have entered into an
intercreditor agreement substantially in the same form as the Senior Note
Intercreditor Arrangement.


 


Notwithstanding
anything to the contrary herein, Holdings shall not be permitted to incur any
Indebtedness other than Indebtedness under Sections 6.01(b), (l)(iii) and (m).


 


SECTION 6.02  Liens.  Create, incur, assume or permit to exist any
Lien on any property or assets (including stock or other securities of any
person, including any Subsidiary) at the time owned by it or on any income or
revenues or rights in respect of any thereof, except:


 


(a)                                  Liens
on property or assets of the Company and its Subsidiaries existing on the
Closing Date and set forth on Schedule 6.02(a); provided
that such Liens shall secure only those obligations that they secure on the
Closing Date (and extensions, renewals and refinancings of such obligations
permitted by Section 6.01(a)) and shall not subsequently apply to any
other property or assets of Holdings or any of its Subsidiaries;


 


(b)                                 any
Lien created under the Loan Documents or permitted in respect of any Mortgaged
Property by the terms of the applicable Mortgage;


 


(c)                                  any
Lien on any property or asset of Parent or any Subsidiary securing Indebtedness
or Permitted Refinancing Indebtedness permitted by Section 6.01(h), provided
that such Lien (i) does not apply to any other property or assets of Parent or
any of the Subsidiaries not securing such Indebtedness at the date of the
acquisition of such property or asset (other than after acquired property
subjected to a Lien securing Indebtedness and other obligations incurred prior
to such date and which Indebtedness and other obligations are permitted
hereunder that require a pledge of after acquired property, it being understood
that such requirement shall not be permitted to apply to any property to which
such requirement would not have applied but for such acquisition), (ii) such
Lien is not created in contemplation of or in connection with such acquisition
and (iii) in the case of a Lien securing Permitted Refinancing Indebtedness,
any such Lien is permitted, subject to compliance with clause (e) of the
definition of the term “Permitted Refinancing Indebtedness”;


 


(d)                                 Liens
for Taxes, assessments or other governmental charges or levies not yet
delinquent or that are being contested in compliance with Section 5.03;


 


(e)                                  landlord’s,
carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, construction
or other like Liens arising in the ordinary course of business and securing
obligations that are not overdue by more than 45 days or that are being
contested in good faith by appropriate proceedings and in respect of which, if
applicable, Holdings or any Subsidiary shall have set aside on its books
reserves in accordance with US GAAP;


 


(f)                                    (i)
pledges and deposits made in the ordinary course of business in compliance with
the Federal Employers Liability Act or any other workers’ compensation,
unemployment insurance and other social security laws or regulations and
deposits securing liability to insurance carriers under insurance or
self-insurance arrangements in respect of such obligations and (ii) pledges and
deposits securing liability for reimbursement


 


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or indemnification obligations
of (including obligations in respect of letters of credit or bank guarantees
for the benefit of) insurance carriers providing property, casualty or
liability insurance to Holdings or any Subsidiary;


 


(g)                                 pledges
and deposits to secure the performance of bids, trade contracts (other than for
Indebtedness), leases (other than Capital Lease Obligations), statutory
obligations, surety and appeal bonds, performance and return of money bonds,
bids, leases, government contracts, trade contracts, and other obligations of a
like nature incurred in the ordinary course of business, including those
incurred to secure health, safety and environmental obligations in the ordinary
course of business;


 


(h)                                 zoning
restrictions, easements, trackage rights, leases (other than Capital Lease
Obligations), licenses, special assessments, rights-of-way, restrictions on use
of real property and other similar encumbrances incurred in the ordinary course
of business that, in the aggregate, do not interfere in any material respect
with the ordinary conduct of the business of Holdings or any Subsidiary;


 


(i)                                     purchase
money security interests in equipment or other property or improvements thereto
hereafter acquired (or, in the case of improvements, constructed) by Holdings
or any Subsidiary (including the interests of vendors and lessors under
conditional sale and title retention agreements); provided that (i) such
security interests secure Indebtedness permitted by Section 6.01(i)
(including any Permitted Refinancing Indebtedness in respect thereof), (ii)
such security interests are incurred, and the Indebtedness secured thereby is
created, within 270 days after such acquisition (or construction), (iii) the
Indebtedness secured thereby does not exceed 100% of the cost of such equipment
or other property or improvements at the time of such acquisition (or
construction), including transaction costs incurred by Holdings or any Subsidiary
in connection with such acquisition (or construction) and (iv) such security
interests do not apply to any other property or assets of Holdings or any
Subsidiary (other than to accessions to such equipment or other property or
improvements); provided, further, that individual financings of
equipment provided by a single lender may be cross-collateralized to other
financings of equipment provided solely by such lender;


 


(j)                                     Liens
arising out of capitalized lease transactions permitted under Section 6.03,
so long as such Liens attach only to the property sold and being leased in such
transaction and any accessions thereto or proceeds thereof and related
property;


 


(k)                                  Liens
securing judgments that do not constitute an Event of Default under Section 7.01(j);


 


(l)                                     other
Liens with respect to property or assets of Holdings or any Subsidiary with an
aggregate fair market value (valued at the time of creation thereof) of not
more than $20.0 million at any time;


 


(m)                               Liens
disclosed by the title insurance policies (if any) delivered pursuant to Section 5.10
and any replacement, extension or renewal of any such Lien; provided
that such replacement, extension or renewal Lien shall not cover any property
other than


 


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the property that was subject
to such Lien prior to such replacement, extension or renewal; provided, further,
that the Indebtedness and other obligations secured by such replacement,
extension or renewal Lien are permitted by this Agreement;


 


(n)                                 Liens
in respect of Permitted Receivables Financings;


 


(o)                                 any
interest or title of a lessor under any leases or subleases entered into by
Holdings or any Subsidiary in the ordinary course of business;


 


(p)                                 Liens
that are contractual rights of set-off (i) relating to the establishment of
depository relations with banks not given in connection with the issuance of
Indebtedness, (ii) relating to pooled deposit or sweep accounts of Holdings or
any Subsidiary to permit satisfaction of overdraft or similar obligations
incurred in the ordinary course of business of Holdings and the Subsidiaries,
(iii) relating to purchase orders and other agreements entered into with
customers of Holdings or any Subsidiary in the ordinary course of business or
(iv) arising under or pursuant to general banking conditions;


 


(q)                                 Liens
arising solely by virtue of any statutory or common law provision relating to
banker’s liens, rights of set-off or similar rights;


 


(r)                                    Liens
securing obligations in respect of trade-related letters of credit permitted
under Section 6.01(f) or (p) and covering the goods (or the documents of
title in respect of such goods) financed by such letters of credit and the
proceeds and products thereof;


 


(s)                                  licenses
of intellectual property granted in a manner consistent with past practice;


 


(t)                                    Liens
in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;


 


(u)                                 Liens
on the assets of a Non-Subsidiary Loan Party that do not constitute Collateral
and which secure Indebtedness of such Non-Subsidiary Loan Party (or of another
Non-Subsidiary Loan Party) that is not otherwise secured by a Lien on the
Collateral under the Loan Documents and that is permitted to be incurred under Section 6.01(a)
or (k);


 


(v)                                 Liens
upon specific items of inventory or other goods and proceeds of Holdings or any
of the Subsidiaries securing such person’s obligations in respect of bankers’
acceptances issued or created for the account of such person to facilitate the
purchase, shipment or storage of such inventory or other goods; and


 


(w)                               Liens
solely on any cash earnest money deposits made by Holdings or any of the
Subsidiaries in connection with any letter of intent or purchase agreement
permitted hereunder.


 


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Notwithstanding
the foregoing, no Liens shall be permitted to exist, directly or indirectly, on
Pledged Collateral, other than Liens in favor of the Collateral Agent and Liens
permitted by Section 6.02(b), (d), (e) or (q).


 


SECTION 6.03  Sale and
Lease-Back Transactions.  Enter into
any arrangement, directly or indirectly, with any person whereby it shall sell
or transfer any property, real or personal, used or useful in its business,
whether now owned or hereafter acquired, and thereafter rent or lease such
property or other property that it intends to use for substantially the same
purpose or purposes as the property being sold or transferred (a “Sale and
Lease-Back Transaction”), provided that a Sale and Lease-Back
Transaction shall be permitted so long as at the time the lease in connection
therewith is entered into, and after giving effect to the entering into of such
Lease, the Remaining Present Value of such lease (together with Indebtedness
outstanding pursuant to paragraphs (h) and (i) of Section 6.01 and the
Remaining Present Value of outstanding leases previously entered into under
this Section 6.03) would not exceed the greater of $25.0 million and 4.0%
of Consolidated Total Assets as of the end of the fiscal quarter immediately
prior to the date such lease is entered into for which financial statements
have been delivered pursuant to Section 5.04.


 


SECTION 6.04  Investments,
Loans and Advances.  Purchase, hold
or acquire (including pursuant to any merger with a person that is not a Wholly
Owned Subsidiary immediately prior to such merger) any Equity Interests,
evidences of Indebtedness or other securities of, make or permit to exist any
loans or advances (other than intercompany investments, loans or advances
incurred in the ordinary course of business and consistent with past practices
of Holdings and the Subsidiaries) to or Guarantees of the obligations of, or
make or permit to exist any investment in (each, an “Investment”), any
other person, except:


 


(a)                                  Guarantees
by Parent or any Subsidiary of operating leases (other than Capital Lease
Obligations) or of other obligations that do not constitute Indebtedness, in
each case entered into by Parent or any Subsidiary in the ordinary course of
business;


 


(b)                                 (i)  Investments by Parent or any Subsidiary in
the Equity Interests, evidence of Indebtedness or other securities of Parent or
any Subsidiary; (ii) intercompany loans from Parent or any Subsidiary to Parent
or any Subsidiary; and (iii) Guarantees by Parent or any Subsidiary of
Indebtedness otherwise expressly permitted hereunder of Parent or any
Subsidiary; provided that the sum of (A) Investments (valued at the time
of the making thereof and without giving effect to any write-downs or write-offs
thereof) after the Closing Date by the Loan Parties pursuant to clause (i) in
Subsidiaries (other than Parent) that are Non-Subsidiary Loan Parties, plus
(B) intercompany loans after the Closing Date to Subsidiaries (other than
Parent) that are Non-Subsidiary Loan Parties pursuant to clause (ii), plus
(C) Guarantees of Indebtedness after the Closing Date of Subsidiaries (other
than Parent) that are Non-Subsidiary Loan Parties pursuant to clause (iii)
(other than, in each case, to the extent such Investments, Loans or Guarantees
are made (1) by any subsidiary of Parent that is a Non-Subsidiary Loan Party or
(2) by a Non-Subsidiary Loan Party in or to another Non-Subsidiary Loan Party)
shall not exceed an aggregate amount equal to the greater of $50.0 million and
5.0% of Consolidated Total Assets (plus any return of capital actually
received by the respective investors in respect of investments theretofore made
by them pursuant to this


 


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paragraph (b)), plus (y)
the portion, if any, of the Available Investment Basket Amount on the date of
such election that Holdings elects to apply to this Section 6.04(b));


 


(c)                                  Permitted
Investments and investments that were Permitted Investments when made;


 


(d)                                 Investments
received in connection with the bankruptcy or reorganization of, or settlement
of delinquent accounts and disputes with or judgments against, customers and
suppliers, in each case in the ordinary course of business;


 


(e)                                  Investments
of a Subsidiary acquired after the Closing Date or of a corporation merged into
Parent or merged into or consolidated with a Subsidiary in accordance with Section 6.05
after the Closing Date to the extent that such Investments were not made in
contemplation of or in connection with such acquisition, merger or
consolidation and were in existence on the date of such acquisition, merger or
consolidation;


 


(f)                                    Investments
arising out of the receipt by Holdings or any Subsidiary of noncash
consideration for the sale of assets permitted under Section 6.05;


 


(g)                                 (i)
loans and advances to employees of Holdings or any Subsidiary in the ordinary
course of business not to exceed $3.0 million in the aggregate at any time
outstanding (calculated without regard to write-downs or write-offs thereof)
and (ii) advances of payroll payments and expenses to employees in the
ordinary course of business;


 


(h)                                 accounts
receivable arising and trade credit granted in the ordinary course of business
and any securities received in satisfaction or partial satisfaction thereof
from financially troubled account debtors to the extent reasonably necessary in
order to prevent or limit loss and any prepayments and other credits to
suppliers made in the ordinary course of business;


 


(i)                                     Swap
Agreements permitted pursuant to Section 6.13;


 


(j)                                     Investments
existing on the Closing Date and Investments made pursuant to binding
commitments in effect on the Closing Date, in each case to the extent set forth
on Schedule 6.04;


 


(k)                                  Investments
resulting from pledges and deposits referred to in Sections 6.02(f) and (g);


 


(l)                                     other
Investments by Holdings or any Subsidiary in an aggregate amount (valued at the
time of the making thereof, and without giving effect to any write-downs or
write-offs thereof) not to exceed (i) $25.0 million (plus any returns of
capital actually received by the respective investor in respect of investments
theretofore made by it pursuant to this paragraph (l)), plus (ii) the
portion, if any, of the Available Investment Basket Amount on the date such
election is made that Parent elects to apply to this paragraph (l);


 


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(m)                               Investments
constituting Permitted Business Acquisitions; provided that if assets
acquired in a Permitted Business Acquisition are not acquired by Parent or a
Subsidiary Loan Party (or a Person that upon such acquisition becomes a
Subsidiary Loan Party) or if any Person acquired in a Permitted Business
Acquisition is not merged into Parent or a Subsidiary Loan Party or does not become
upon consummation of such Permitted Business Acquisition a Subsidiary Loan
Party, the aggregate amount expended in respect thereof and for all such
similar Permitted Business Acquisitions consummated after the Closing Date
shall not exceed the greater of $50.0 million and 5.0% of Consolidated Total
Assets;


 


(n)                                 additional
Investments may be made from time to time to the extent made with proceeds of
Equity Interests (excluding proceeds received as a result of the exercise of
Cure Rights pursuant to Section 7.02) of Holdings, which proceeds or
Investments in turn are contributed (as common equity) to Parent;


 


(o)                                 intercompany loans
between Non-Subsidiary Loan Parties and Guarantees permitted by Sections
6.01(m)(i), (ii), (iv) and (v);


 


(p)                                 Investments
arising as a result of Permitted Receivables Financings;


 


(q)                                 the
Investor Financing and the Parent Investor Financing;


 


(r)                                    HC Investments by Holdings;


 


(s)                                  Investments
(including by the transfer of assets) in joint ventures in an aggregate amount
(with assets transferred valued at the fair market value thereof) for all such
Investments made after the Closing Date, when added to the principal amount of
all Indebtedness incurred under Section 6.01(u), not to exceed $20.0
million;


 


(t)                                    JV
Reinvestments;


 


(u)                                 the
Transaction; and


 


(v)                                 to
the extent constituting Investments, any payments under any contracts to
construct, launch, operate or insure Satellites which contracts are entered
into in the ordinary course of business.


 


SECTION 6.05  Mergers,
Consolidations, Sales of Assets and Acquisitions.  Merge into or consolidate with any other
person, or permit any other person to merge into or consolidate with it, or
sell, transfer, lease or otherwise dispose of (in one transaction or in a
series of transactions) all or any part of its assets (whether now owned or
hereafter acquired), or issue, sell, transfer or otherwise dispose of any
Equity Interests of Parent or any Subsidiary or preferred equity interests of
Holdings, or purchase, lease or otherwise acquire (in one transaction or a
series of transactions) all or any substantial part of the assets of any other
person, except that this Section shall not prohibit:


 


(a)                                  (i)  the purchase and sale of inventory (including
the sale of transponder capacity) in the ordinary course of business by
Holdings or any Subsidiary, (ii) the


 


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acquisition of any other asset
in the ordinary course of business by Holdings or any Subsidiary, (iii) the
sale of surplus, obsolete or worn out equipment or other property in the
ordinary course of business by Holdings or any Subsidiary, (iv) leases and
subleases (including leases (including by way of sales-type leases) of
transponder capacity and the leasing or licensing of teleports) in the ordinary
course of business by Holdings or any Subsidiary or (v) the sale of Permitted
Investments in the ordinary course of business;


 


(b)                                 if
at the time thereof and immediately after giving effect thereto no Event of
Default shall have occurred and be continuing, (i) the merger of any Subsidiary
into a Borrower in a transaction in which such Borrower is the surviving
corporation, (ii) the merger or consolidation of any Subsidiary into or with
any Subsidiary Loan Party in a transaction in which the surviving or resulting
entity is a Subsidiary Loan Party and, in the case of each of clauses (i) and
(ii), no person other than a Borrower or Subsidiary Loan Party receives any
consideration, (iii) the merger or consolidation of any Subsidiary that is not
a Subsidiary Loan Party into or with any other Subsidiary that is not a
Subsidiary Loan Party or (iv) the liquidation or dissolution or change in form
of entity of any Subsidiary (other than a Borrower) if Holdings determines in
good faith that such liquidation or dissolution is in the best interests of
Holdings and is not materially disadvantageous to the Lenders;


 


(c)                                  sales,
transfers, leases, issuances or other dispositions to Holdings or a Subsidiary
(upon voluntary liquidation or otherwise); provided that any sales,
transfers, leases, issuances or other dispositions by a Loan Party to a
Non-Subsidiary Loan Party shall be made in compliance with Section 6.07; provided,
further, that the aggregate gross proceeds of all sales, transfers,
leases, issuances or other dispositions by Loan Parties to Non-Subsidiary Loan
Parties in reliance upon this paragraph (c) shall not exceed the greater of
$50.0 million and 5.0% of Consolidated Total Assets;


 


(d)                                 Sale
and Lease-Back Transactions permitted by Section 6.03;


 


(e)                                  Investments
permitted by Section 6.04, Liens permitted by Section 6.02 and
dividends and distributions permitted by Section 6.06;


 


(f)                                    the
purchase and sale or other transfer (including by capital contribution) of
Receivables Assets pursuant to Permitted Receivables Financings;


 


(g)                                 the
sale of defaulted receivables in the ordinary course of business and not as
part of an accounts receivables financing transaction;


 


(h)                                 sales,
transfers, leases, issuances (to the extent of all of the Equity Interests in a
Person then owned by Holdings and its Subsidiaries) or other dispositions not
otherwise permitted by this Section 6.05; provided that (i) the Net
Proceeds thereof are applied in accordance with Section 2.11(c) and (ii)
the aggregate gross proceeds (including noncash proceeds) of any or all such
sales, transfers, leases, issuances or dispositions made in reliance upon this
paragraph (h) shall not exceed, in any fiscal year of Holdings, the greater of
$15.0 million and 1.5% of Consolidated Total Assets as of the end of the
immediately preceding fiscal year;


 


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(i)                                     any
merger or consolidation in connection with a Permitted Business Acquisition, provided
that following any such merger or consolidation (i) involving a Borrower, such
Borrower is the surviving corporation and (ii) involving a Subsidiary Loan
Party, the surviving or resulting entity shall be a Subsidiary Loan Party;


 


(j)                                     the
Transactions;


 


(k)                                  licensing
and cross-licensing arrangements involving any technology or other intellectual
property of Parent or any Subsidiary in the ordinary course of business;


 


(l)                                     any
NSS-8 Asset Sale or Termination, provided that the NSS-8 Asset Sale
Proceeds are applied in accordance with Section 2.11(c);


 


(m)                               sales,
leases or other dispositions of inventory of Holdings and its Subsidiaries
determined by the management of Holdings or Parent to be no longer useful or
necessary in the operation of the business of Holdings or any of the
Subsidiaries; provided that the Net Proceeds thereof are applied in
accordance with Section 2.11(c);


 


(n)                                 the
sale of Excluded Payload on a Satellite; provided that the Net Proceeds shall
be applied as set forth in Section 2.11(c);


 


(o)                                 the
sale or other disposition of a Satellite; provided that (i) after giving
effect to such sale or other disposition, Parent shall continue to have a
satellite with substantially comparable or better performance and reliability
specifications (as compared to the period immediately prior to such sale)
operating at each of the following orbital locations: 319.5 degrees East, 338
degrees East, 57 East, and 95 East; (ii) after giving effect to any such sale
or disposition, the projected Total Leverage Ratio, projected on a Pro Forma
Basis for the first period of four consecutive fiscal quarters ending after the
first anniversary of such sale or other disposition shall be equal to or less
than the projected Total Leverage Ratio without giving pro forma effect to such
transaction, as determined in good faith by Parent and as set forth in a
resolution approved in good faith by at least a majority of the Management
Board of Parent; (iii) the Net Proceeds thereof shall be applied as set forth
in Section 2.11(c); (iv) at the time of any such sale or disposition, the
Senior Secured Leverage Ratio for the then most recently ended Test Period for
which financial statements have been delivered pursuant to Section 5.04(a)
or (b) (determined on a pro forma basis giving effect only to the principal
amount of Term Loans to be repaid pursuant to Section 2.11(c) immediately
upon receipt of the Net Proceeds of such sale or disposition) shall be equal to
or less than 3.00:1.00; and (v) in no event shall Satellite NSS-7 be sold or
disposed of pursuant to this paragraph (o);


 


(p)                                 the
exchange of a Satellite for one or more satellites operated by another FSS
Operator, in one or a series of related transactions (which need not be with
the same party); provided that (i) after giving effect to such exchange,
Parent shall continue to have a satellite with substantially comparable or
better performance and reliability specifications (as compared to the period
immediately prior to such sale) operating at each of the following orbital
locations 319.5 degrees East, 338 degrees East, 57 East, and


 


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95 East; (ii) after giving
effect to any such exchange, the projected Total Leverage Ratio, projected on a
Pro Forma Basis for the first period of four consecutive fiscal quarters ending
after the first anniversary of such exchange shall be equal to or less than the
projected Total Leverage Ratio without giving pro forma effect to such
transaction, as determined in good faith by Parent and as set forth in a
resolution approved in good faith by at least a majority of the Management
Board of the Parent; (iii) any Net Proceeds from the exchange shall be applied
as set forth in Section 2.11(c); (iv) at the time of any such exchange,
the Senior Secured Leverage Ratio for the then most recently ended Test Period
for which financial statements have been delivered pursuant to Section 5.04(a)
or (b) (determined on a pro forma basis giving effect only to any principal
amount of Term Loans to be repaid pursuant to Section 2.11(c) immediately
upon receipt of the Net Proceeds (if any) of such exchange) shall be equal to or
less than 3.00:1.00; and (v) in no event shall Satellite NSS-7 be exchanged
pursuant to this paragraph (p); and


 


(q)                                 (i)
sales, leases, transfers or other dispositions of (x) any orbital location or
rights to use any orbital location which, in each case, is not being used by
Parent or a Subsidiary of Parent on the Closing Date or (y) any RF frequencies
or rights to use any RF frequencies which, in each case, are not being used by
Parent or a Subsidiary of Parent on the Closing Date at any orbital location,
and (ii) any coordination or other agreement pursuant to which Parent or a
Subsidiary of Parent, as applicable, agrees to restrict its use of any orbital
location or frequencies, or agrees not to place into use any orbital location
or frequencies; provided that the Net Proceeds from any such sale,
lease, transfer, disposition or other agreement shall be applied as set forth
in Section 2.11(c).


 


Notwithstanding
anything to the contrary contained in Section 6.05 above, (i) no action
shall be permitted which results in a Change of Control under clause (a) of the
definition thereof, (ii) Holdings shall at all times own directly 100% of
the Equity Interests of Parent free and clear of any Liens (other than Liens
created by the Security Documents or arising by operation of law), (iii) each
Subsidiary that is a Revolving Borrower shall be a Wholly Owned Subsidiary and
its Equity Interests shall be held free and clear of any Liens (other than
Liens created by the Security Documents or arising by operation of law), (iv)
no sale, transfer, lease, issuance or other disposition shall be permitted by
this Section 6.05 (other than sales, transfers, leases, issuances or other
dispositions to Loan Parties pursuant to paragraph (c) hereof and purchases, or
sales or transfers pursuant to paragraph (f) hereof) unless such disposition is
for fair market value, (v) no sale, transfer or other disposition of assets
shall be permitted by paragraph (a), (d), (m) or (o) of this Section 6.05
unless such disposition is for at least 75% cash consideration, (vi) no sale,
transfer or other disposition of assets in excess of $5.0 million shall be
permitted by paragraph (h) of this Section 6.05 unless such disposition is
for at least 75% cash consideration and (vii) no sale, transfer or other
disposition of assets in excess of $5.0 million shall be permitted by paragraph
(n) or (q) of this Section 6.05 unless such disposition is for at least
50% cash consideration; provided that (x) for purposes of clauses (v),
(vi) and (vii), the amount of any secured Indebtedness or other Indebtedness of
a Subsidiary that is not a Loan Party (as shown on Holdings’ or such Subsidiary’s
most recent balance sheet or in the notes thereto) of Holdings or any
Subsidiary of Holdings that is assumed by the transferee of any such assets
shall be deemed cash and (y) for purposes of clause (vii), any future
non-contingent cash payments required to be made to Parent or any Subsidiary as
consideration for any transaction referred to in Section 6.05(n) or (q)
shall be deemed cash.


 


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SECTION 6.06  Dividends and Distributions.  Declare or pay, directly or indirectly, any
dividend or make any other distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, with respect to
any of its Equity Interests (other than dividends and distributions on Equity
Interests payable solely by the issuance of additional shares of Equity
Interests of the Person paying such dividends or distributions) or directly or
indirectly redeem, purchase, retire or otherwise acquire for value (or permit
any Subsidiary to purchase or acquire) any shares of any class of its Equity
Interests or set aside any amount for any such purpose; provided, however,
that:


 


(a)                                  any
subsidiary of Parent may declare and pay dividends to, repurchase its Equity
Interests from or make other distributions to Parent or to any Wholly Owned
Subsidiary of Parent (or, in the case of non-Wholly Owned Subsidiaries, to
Parent or any subsidiary that is a direct or indirect parent of such subsidiary
and to each other owner of Equity Interests of such subsidiary on a pro rata basis (or more favorable basis from
the perspective of Parent or such subsidiary) based on their relative ownership
interests);


 


(b)                                 Parent
may declare and pay dividends or make other distributions to Holdings and
Holdings may declare dividends or make other distributions to any Parent
Company, (A) in respect of (i) overhead and tax liabilities of Holdings or such
Parent Company (including Tax Distributions necessary to allow Holdings or such
Parent Company to make a Tax Distribution in accordance with Section 6.06(e)),
legal, accounting and other professional fees and expenses, (ii) fees and
expenses related to any equity offering, investment or acquisition permitted
hereunder (whether or not successful) and (iii) other fees and expenses in
connection with the maintenance of the existence and ownership of Holdings, and
(B) in order to permit Holdings to make payments permitted by Sections 6.07(b)
and (c);


 


(c)                                  Holdings
may purchase or redeem (and Parent may declare and pay dividends or make other
distributions to Holdings, the proceeds of which are used so to purchase or
redeem) Equity Interests of Holdings (including related stock appreciation
rights or similar securities) held by then present or former directors,
consultants, officers or employees of Holdings or any of the Subsidiaries or by
any Plan upon such person’s death, disability, retirement or termination of
employment or under the terms of any such Plan or any other agreement under
which such shares of stock or related rights were issued, provided that
the aggregate amount of such purchases or redemptions under this paragraph (c)
shall not exceed in any fiscal year $2.0 million plus the amount of net
proceeds (x) received by Holdings during such calendar year from sales of
Equity Interests of Holdings to directors, consultants, officers or employees
of Holdings or any Subsidiary in connection with permitted employee
compensation and incentive arrangements, which, if not used in any year, may be
carried forward to any subsequent calendar year and (y) of any key-man life
insurance policies recorded during such calendar year;


 


(d)                                 noncash
repurchases of Equity Interests deemed to occur upon exercise of stock options
if such Equity Interests represent a portion of the exercise price of such
options shall be permitted;


 


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(e)                                  (i)                                     with
respect to each tax year (or portion thereof) that Holdings qualifies as a Flow
Through Entity, the distribution by Holdings to the holders of the Equity
Interests of Holdings of an amount equal to the product of (A) the amount of
aggregate net taxable income allocated by Holdings to the direct or indirect
holders of the Equity Interests of Holdings for such period and (B) the
Presumed Tax Rate for such period and (ii) with respect to any tax year (or
portion thereof) that Holdings does not qualify as a Flow Through Entity, the payment
of dividends or other distributions to any direct or indirect holders of Equity
Interests of Holdings in amounts required for such holder to pay federal, state
or local income taxes (as the case may be) imposed directly on such holder to
the extent such income taxes are attributable to the income of Holdings and its
Subsidiaries; provided, however, that in each case the amount of
such payments in respect of any tax year does not exceed the amount that
Holdings and its Subsidiaries would have been required to pay in respect of
federal, state or local taxes (as the case may be) in respect of such year if
Holdings and its Subsidiaries paid such taxes directly as a stand-alone
taxpayer (or stand-alone group);


 


(f)                                    Parent
may pay a cash dividend to Holdings and Holdings may in turn pay a cash
dividend in a like amount to the Equity Investors with any portion of the NSS-8
Asset Sale Proceeds that is not required to be used to prepay Term Loans or
Revolving Facility Loans pursuant to Section 2.11(c), provided that
(i) no Event of Default exists at the time of any such dividend or would exist
immediately after giving effect thereto, (ii) the aggregate amount of
dividends paid pursuant to this Section 6.06(f) shall not exceed $95.0
million and (iii) if Parent exercises the NSS-8 Proceeds Reinvestment Option in
accordance with its terms, then all NSS-8 Asset Sale Proceeds shall be applied
as provided in the definition of “NSS-8 Proceeds Reinvestment Option”;


 


(g)                                 payments
may be made in connection with the consummation of the Transaction or as
contemplated by the Acquisition Documents (whether on the Closing Date or
thereafter), including the distribution of any cash that remains on the balance
sheet of the Parent on the Closing Date after giving effect to the consummation
of the Transaction; provided, however, that after giving effect
to any such payment or distribution, in no event shall the aggregate
contribution from the Equity Investors (including the Investor Financing and
any additional equity contribution) necessary to consummate the Acquisition be
less than $163.0 million; and


 


(h)                                 Parent
may declare and pay dividends or make other distributions to Holdings, and
Holdings may in turn declare and pay dividends or make other distributions in a
like amount, provided that (i) no Default or Event of Default exists at
the time of any such dividend or distribution or would exist immediately after
giving effect thereto and (ii) the aggregate amount of dividends and other
distributions made pursuant to this paragraph (h) after the Closing Date shall
not exceed $10.0 million (which amount shall be increased to $30.0 million if
at the time of any such dividend or other distribution the Total Leverage Ratio
is equal to or less than 5.0:1.0).


 


SECTION 6.07  Transactions with Affiliates.  (a) 
Sell or transfer any property or assets to, or purchase or acquire any
property or assets from, or otherwise engage in any other transaction with, any
of its Affiliates or any known direct or indirect holder of 10% or more of


 


117





















 


any class of capital stock of Holdings, unless such transaction is (i)
otherwise permitted (or required) under this Agreement (including in connection
with any Permitted Receivables Financing) or (ii) upon terms no less favorable
to Holdings or such Subsidiary, as applicable, than would be obtained in a
comparable arm’s-length transaction with a Person that is not an Affiliate; provided
that this clause (ii) shall not apply to (A) the payment to Blackstone and/or
any other Permitted Investor of monitoring and management fees referred to in
paragraph (c) below or fees payable on the Closing Date or (B) the
indemnification of directors of Holdings and the Subsidiaries in accordance
with customary practice.


 


(b)                                 The foregoing paragraph (a)
shall not prohibit, to the extent otherwise permitted under this Agreement,


 


(i)                                     any
issuance of securities, or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, stock
options and stock ownership plans approved by the Board of Directors of
Holdings,


 


(ii)                                  loans
or advances to employees of Holdings or any of the Subsidiaries in accordance
with Section 6.04(g),


 


(iii)                               transactions
among Holdings and any Subsidiaries and transactions among Subsidiaries
otherwise permitted by this Agreement,


 


(iv)                              the
payment of fees and indemnities to directors, officers and employees of
Holdings and the Subsidiaries in the ordinary course of business,


 


(v)                                 transactions
pursuant to permitted agreements in existence on the Closing Date and set forth
on Schedule 6.07 or any amendment thereto to the extent such
amendment is not adverse to the Lenders in any material respect,


 


(vi)                              any
employment agreements entered into by Holdings or any of the Subsidiaries in
the ordinary course of business,


 


(vii)                           dividends,
redemptions and repurchases permitted under Section 6.06,


 


(viii)                        any
purchase by a Permitted Investor of Equity Interests of Holdings or any
contribution by Holdings to, or purchase by Holdings of, the equity capital of
Parent; provided that any Equity Interests of Parent purchased by
Holdings shall be pledged to the Collateral Agent on behalf of the Lenders
pursuant to the Holdings Agreements,


 


(ix)                                payments
by Holdings or any of the Subsidiaries to Blackstone made for any financial
advisory, financing, underwriting or placement services or in respect of other
investment banking activities, including in connection with acquisitions or
divestitures, which payments are approved by the majority of the board of
directors of Holdings, in good faith,


 


(x)                                   subject
to paragraph (c) below, the existence of, or the performance by Holdings,
Parent or any of the Subsidiaries of its obligations under the terms of, the
Transaction Documents; provided, however, that the existence of,
or the performance by


 


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Holdings, Parent or any of its
subsidiaries of obligations under any future amendment to any such existing
agreement or under any similar agreement entered into after the Closing Date
shall only be permitted by this clause (x) to the extent that such amendment or
new agreement is permitted by Section 6.09(c),


 


(xi)                                transactions
with Subsidiaries for the purchase or sale of goods, products, parts and
services entered into in the ordinary course of business in a manner consistent
with past practice,


 


(xii)                             any
transaction in respect of which Holdings delivers to the Administrative Agent
(for delivery to the Lenders) a letter addressed to the Management Board of
Holdings from an accounting, appraisal or investment banking firm, in each case
of nationally recognized standing that is (A) in the good faith determination
of Holdings qualified to render such letter and (B) reasonably satisfactory to
the Administrative Agent, which letter states that such transaction is on terms
that are no less favorable to Holdings or such Subsidiary, as applicable, than
would be obtained in a comparable arm’s-length transaction with a person that
is not an Affiliate,


 


(xiii)                          subject
to paragraph (c) below, the payment of all fees, expenses, bonuses and awards
related to the Transaction, including fees to Blackstone,


 


(xiv)                         transactions
pursuant to any Permitted Receivables Financings, and


 


(xv)                            transactions
with joint ventures for the purchase or sale of equipment or services entered
into in the ordinary cause of business and in a manner consistent with past
practice.


 


(c)                                  Make any payment of or on
account of monitoring or management or similar fees payable to Blackstone and all
other Permitted Investors in an aggregate amount in any fiscal year in excess
of the greater of (x) $2.5 million and (y) 2% of EBITDA of Holdings for the
immediately preceding fiscal year, plus reasonable out-of-pocket costs and
expenses in connection therewith and unpaid amounts accrued for prior periods.


 


SECTION 6.08  Business of Holdings and the Subsidiaries.  Notwithstanding any of the provisions hereof,
neither Holdings nor Parent will, or will cause or permit any of the
Subsidiaries to engage at any time in any business or business activity other
than:


 


(a)                                  in
the case of Parent and any Subsidiary (other than any License Subsidiary), (i)
any business or business activity conducted by it on the Closing Date and any
business or business activities incidental or related thereto, or any business
or activity that is reasonably similar thereto or a reasonable extension,
development or expansion thereof or ancillary thereto, including the
consummation of the Transaction and (ii) performance of its obligations under
and in connection with the Loan Documents, the Senior Note Indenture, the
Senior Subordinated Note Indenture and the Parent Investor Financing Documents,


 


(b)                                 in
the case of Holdings, (i) ownership of the Equity Interests in Parent, together
with activities directly related thereto, (ii) performance of its obligations
under


 


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and in connection with the Loan
Documents and/or the Investor Financing Documents, (iii) actions incidental to
the consummation of the Transaction, (iv) the Guarantees permitted pursuant to Section 6.01(m),
(v) actions required by law to maintain its existence, (vi) the holding of cash
in amounts reasonably required to pay for its own costs and expenses, (vii)
owing and paying legal, registered office and auditing fees, (viii) the
issuance of common Equity Interests and (ix) HC Activities, or


 


(c)                                  in
the case of each License Subsidiary, engage in holding licenses issued to it by
The Netherlands and entering into arrangements with Parent or other
Subsidiaries to manage and operate such licenses under its direction and
control, in each case to the maximum extent permitted by applicable law.


 


SECTION 6.09
 Limitation
on Modifications and Prepayments. 
(a)  Amend or modify in any manner
materially adverse to the Lenders, or grant any waiver or release under or
terminate in any manner (if such granting or termination shall be materially
adverse to the Lenders), the articles or certificate of incorporation or
by-laws or partnership agreement or limited liability company operating
agreement of Holdings, Parent or any of the Subsidiaries.


 


(b)                                 (i) Make (or give any notice in
respect of) any voluntary or optional payment or prepayment on or redemption or
acquisition for value (including, without limitation, by way of depositing with
the trustee with respect thereto money or securities before due for the
purposes of paying when due) of any of (w) the Senior Notes or any Permitted
Senior Debt Securities (except for refinancings thereof with Permitted Senior
Debt Securities as permitted by Section 6.01(l)(i)), (x) the Senior
Subordinated Notes or any Permitted Senior Subordinated Debt Securities (except
for refinancings thereof with Permitted Senior Subordinated Debt Securities as
permitted by Section 6.01(l)(ii), (y) the Investor Financing or (z) the
Parent Investor Financing; or


 


(ii)                                  Amend or modify, or permit the amendment
or modification of, any provision of the Senior Note Indenture, the Senior Note
Documents, any other Permitted Senior Debt Securities, the Senior Subordinated
Note Indenture, the Senior Subordinated Note Documents, any other Permitted
Senior Subordinated Debt Securities, the Investor Financing Document, the
Parent Investor Financing Document or any agreement relating thereto, other
than amendments or modifications that are not in any manner materially adverse
to the Lenders and that do not affect the subordination provisions thereof (if
any) in a manner adverse to the Lenders.


 


(c)                                  Permit any Subsidiary to enter
into any agreement or instrument that by its terms restricts (i) the payment of
dividends or distributions or the making of cash advances by such Subsidiary to
Holdings or any Subsidiary that is a direct or indirect parent of such
Subsidiary or (ii) the granting of Liens by such Subsidiary pursuant to the
Security Documents, in each case other than those arising under any Loan
Document, except, in each case, restrictions existing by reason of:


 


(A)                              restrictions imposed by applicable law;


 


(B)                                restrictions contained in any Permitted
Receivables Document with respect to any Special Purpose Receivables
Subsidiary;


 


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(C)                                contractual encumbrances or restrictions
(x) in effect on the Closing Date under the Senior Note Indenture or the
Senior Subordinated Note Indenture or (y) any agreements related to any
permitted renewal, extension or refinancing of any Indebtedness existing on the
Closing Date that does not expand the scope of any such encumbrance or
restriction;


 


(D)                               any restriction on a Subsidiary imposed
pursuant to an agreement entered into for the sale or disposition of all or
substantially all the Equity Interests or assets of a Subsidiary pending the
closing of such sale or disposition;


 


(E)                                 customary provisions in joint venture
agreements and other similar agreements applicable to joint ventures entered
into in the ordinary course of business;


 


(F)                                 any restrictions imposed by any agreement
relating to secured Indebtedness permitted by this Agreement to the extent that
such restrictions apply only to the property or assets securing such
Indebtedness;


 


(G)                                customary provisions contained in leases
or licenses of intellectual property and other similar agreements entered into
in the ordinary course of business;


 


(H)                               customary provisions restricting
subletting or assignment of any lease governing a leasehold interest;


 


(I)                                    customary provisions restricting
assignment of any agreement entered into in the ordinary course of business;


 


(J)                                   customary restrictions and conditions
contained in any agreement relating to the sale of any asset permitted under Section 6.05
pending the consummation of such sale; or


 


(K)                               any agreement in effect at the time such
subsidiary becomes a Subsidiary, so long as such agreement was not entered into
in contemplation of such person becoming a Subsidiary.


 


SECTION 6.10  Capital
Expenditures.  Permit Holdings or the
Subsidiaries to make any Capital Expenditure, except that:


 


(a)                                  During
the period from the Closing Date to and including December 31, 2009,
Holdings and the Subsidiaries may make Capital Expenditures so long as (i) the
aggregate amount thereof during such period does not exceed $175.0 million and
(ii) the aggregate amount thereof during any single fiscal year occurring
within such period does not exceed $125.0 million.


 


(b)                                 During
the period from January 1, 2010 to and including the Term Loan Maturity
Date, Holdings and the Subsidiaries may make Capital Expenditures so long as
(i) the aggregate amount thereof during such period does not exceed the sum of
(x) $150.0 million plus (y) the amount (if any) by which aggregate Capital
Expenditures made pursuant to paragraph (a) above during the period referred to
therein are less than


 


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$175.0 million, and (ii) the
aggregate amount thereof during any single fiscal year occurring during such
period does not exceed $175.0 million.


 


(c)                                  In
addition to the Capital Expenditures permitted pursuant to the preceding
paragraphs (a) and (b) or paragraph (d) below, Holdings and the Subsidiaries
may make additional Capital Expenditures at any time in an amount not to exceed
the portion, if any, of the Available Investment Basket Amount on the date of
such Capital Expenditure that Parent elects to apply to this Section 6.10(c).


 


(d)                                 In
addition to the Capital Expenditures permitted pursuant to the preceding
paragraphs (a)-(c), if Parent exercises the NSS-8 Proceeds Reinvestment Option
in accordance with its terms, then Holdings may make additional Capital Expenditures
at any time in an amount not to exceed the NSS-8 Asset Sale Proceeds as to
which the NSS-8 Proceeds Reinvestment Option was validly exercised, provided
that Capital Expenditures may only be made pursuant to this paragraph (d) if
the NSS-8 Asset Sale Proceeds are so used, or contractually committed to be
used, within the time period set forth in the definition of the NSS-8 Proceeds
Reinvestment Option.


 


SECTION 6.11
 Interest
Coverage Ratio.  Permit the ratio
(the “Interest Coverage Ratio”) on the last day of any fiscal quarter
occurring in any period set forth below, for the four quarter period ended as
of such day of (a) EBITDA to (b) Cash Interest Expense to be less than the
ratio set forth below for such period; provided that to the extent any
Asset Disposition or any Asset Acquisition (or any similar transaction or
transactions for which a waiver or a consent of the Required Lenders pursuant
to Section 6.05 has been obtained) or any incurrence or repayment of
Indebtedness (excluding normal fluctuations of revolving Indebtedness incurred
for working capital purposes) has occurred during the relevant Test Period, the
Interest Coverage Ratio shall be determined for the respective Test Period on a
Pro Forma Basis for such occurrences:


 


	
  Period

  	
   

  	
  Ratio

  	
   

  
	
  December 31,
  2004 – December 31, 2007

  	
   

  	
  1.75:1.00

  	
   

  
	
  January 1,
  2008 – March 31, 2009

  	
   

  	
  2.00:1.00

  	
   

  
	
  April 1,
  2009 – September 30, 2010

  	
   

  	
  2.25:1.00

  	
   

  
	
  Thereafter

  	
   

  	
  2.50:1.00

  	
   

  



 


SECTION 6.12  Total Leverage Ratio.  Permit the Total Leverage Ratio on the last
day of any fiscal quarter occurring in any period set forth below, to be in
excess of the ratio set forth below for such period:


 


	
  Period

  	
   

  	
  Ratio

  	
   

  
	
  December 31,
  2004 – December 31, 2006

  	
   

  	
  7.00:1.00

  	
   

  
	
  January 1,
  2007 – June 30, 2007

  	
   

  	
  6.75:100

  	
   

  
	
  July 1,
  2007 – September 30, 2007

  	
   

  	
  6.50:1.00

  	
   

  



 


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  October 1,
  2007 – December 31, 2007

  	
   

  	
  6.25:1.00

  	
   

  
	
  January 1,
  2008 – March 31, 2008

  	
   

  	
  6.00:1.00

  	
   

  
	
  April 1,
  2008 – June 30, 2008

  	
   

  	
  5.75:1.00

  	
   

  
	
  July 1,
  2008 – September 30, 2008

  	
   

  	
  5.50:1.00

  	
   

  
	
  October 1,
  2008 – September 30, 2009

  	
   

  	
  5.25:1.00

  	
   

  
	
  October 1,
  2009 – September 30, 2010

  	
   

  	
  4.75:1.00

  	
   

  
	
  Thereafter

  	
   

  	
  4.25:1.00

  	
   

  



 


SECTION 6.13  Swap Agreements.  Enter into any Swap Agreement, other than (a)
Swap Agreements required by Section 5.12 or any Permitted Receivables
Financing, (b) Swap Agreements entered into in the ordinary course of business
to hedge or mitigate risks to which Holdings or any Subsidiary is exposed in
the conduct of its business or the management of its liabilities and (c) Swap
Agreements entered into not for speculative purposes but in order to
effectively cap, collar or exchange interest rates (from fixed to floating
rates, from one floating rate to another floating rate or otherwise) with
respect to any interest bearing liability or investment of Holdings or any
Subsidiary.


 


SECTION 6.14  No Other “Designated
Senior Indebtedness”.  None of
Holdings or any Borrower shall designate, or permit the designation of, any
Indebtedness (other than under this Agreement or the other Loan Documents) as “Designated
Senior Indebtedness” or any other similar term for the purpose of the
definition of the same or the subordination provisions contained in the Senior
Subordinated Note Indenture or any indenture governing any Permitted Senior
Subordinated Debt Securities.


 


SECTION 6.15
 Non-Material
Subsidiaries.  Permit, at any time,
(a) the total assets of all Subsidiaries which are not Material Subsidiaries at
the last day of the Test Period ending on the last day of the most recent
fiscal period for which financial statements have been delivered pursuant to Section 5.04(a)
or (b) to exceed 20% of the consolidated total assets of Holdings and its
consolidated subsidiaries at such date or (b) gross revenues of all
Subsidiaries which are not Material Subsidiaries for such Test Period to exceed
20% of the consolidated gross revenues of Holdings and its consolidated
subsidiaries for such period, in each case determined in accordance with US
GAAP.


 


SECTION 6.16  Interest on Investor Financing.  Pay any interest on any Investor Financing or
Parent Investor Financing in cash.


 


ARTICLE VII


 


Events of
Default


 


SECTION 7.01  Events of Default.  In case of the happening of any of the
following events (“Events of Default”):


 


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(a)                                  any
representation or warranty made or deemed made by Holdings, Parent or any other
Loan Party in any Loan Document, or any representation, warranty or material
statement contained in any report, certificate, financial statement or other
instrument furnished in connection with or pursuant to any Loan Document, shall
prove to have been false or misleading in any material respect when so made,
deemed made or furnished by Holdings, Parent or any other Loan Party;


 


(b)                                 default
shall be made in the payment of any principal of any Loan or the reimbursement
with respect to any L/C Disbursement when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment
thereof or by acceleration thereof or otherwise;


 


(c)                                  default
shall be made in the payment of any interest on any Loan or on any L/C
Disbursement or in the payment of any Fee (other than an amount referred to in
(b) above) due under any Loan Document, when and as the same shall become due
and payable, and such default shall continue unremedied for a period of five
Business Days;


 


(d)                                 default
shall be made in the due observance or performance by Holdings, Parent or any
of the Subsidiaries of any covenant, condition or agreement contained in Section 5.01(a)
(with respect to Holdings or a Borrower), 5.05(a), 5.08, 5.10(d) or in Article VI;


 


(e)                                  default
shall be made in the due observance or performance by Holdings, Parent or any
of the Subsidiaries of any covenant, condition or agreement contained in any
Loan Document (other than those specified in paragraphs (b), (c) and (d) above)
and such default shall continue unremedied for a period of 30 days after
written notice thereof from the Administrative Agent to Parent;


 


(f)                                    (i)
any event or condition occurs that (A) results in any Material Indebtedness
becoming due prior to its scheduled maturity or (B) enables or permits (with
all applicable grace periods having expired) the holder or holders of any
Material Indebtedness or any trustee or agent on its or their behalf to cause
any Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled maturity
or (ii) Holdings, any Borrower or any of the Subsidiaries shall fail to pay the
principal of any Material Indebtedness at the stated final maturity thereof; provided
that this clause (f) shall not apply to secured Indebtedness that becomes due
as a result of the voluntary sale or transfer of the property or assets securing
such Indebtedness if such sale or transfer is permitted hereunder and under the
documents providing for such Indebtedness;


 


(g)                                 there
shall have occurred a Change in Control;


 


(h)                                 an
involuntary proceeding shall be commenced or an involuntary petition shall be
filed in a court of competent jurisdiction seeking (i) relief in respect of
Holdings, any Borrower or any of the Material Subsidiaries, or of a substantial
part of the property or assets of Holdings, any Borrower or any Material
Subsidiary, under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other federal, state


 


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or foreign bankruptcy,
insolvency, receivership or similar law, (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for Holdings,
any Borrower or any of the Material Subsidiaries or for a substantial part of
the property or assets of Holdings, any Borrower or any of the Material
Subsidiaries or (iii) the winding-up or liquidation of Holdings, any Borrower
or any Material Subsidiary (except, in the case of any Material Subsidiary
(other than any Borrower), in a transaction permitted by Section 6.05) or
(iv) in the case of a Person organized under the laws of The Netherlands, the
commencement of any proceedings regarding the bankruptcy (faillissement), suspension of payments (surséance van betaling) or dissolution (ontbinding) of such Person; and such
proceeding or petition shall continue undismissed for 60 days or an order or
decree approving or ordering any of the foregoing shall be entered;


 


(i)                                     Holdings,
any Borrower or any Material Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking relief under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other federal,
state or foreign bankruptcy, insolvency, receivership or similar law, (ii)
seek, or consent to, the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition described in
paragraph (h) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for
Holdings, any Borrower or any of the Material Subsidiaries or for a substantial
part of the property or assets of Holdings, any Borrower or any Material
Subsidiary, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general assignment
for the benefit of creditors or (vi) become unable, admit in writing its
inability or fail generally to pay its debts as they become due;


 


(j)                                     the
failure by Holdings, Parent or any Material Subsidiary to pay one or more final
judgments (not covered by insurance) aggregating in excess of $10.0 million,
which judgments are not discharged or effectively waived or stayed for a period
of 30 consecutive days, or any action shall be legally taken by a judgment
creditor to levy upon any material assets or properties of Holdings, Parent or
any Material Subsidiary to enforce any such judgment;


 


(k)                                  (i)
a Reportable Event or Reportable Events shall have occurred with respect to any
Plan or a trustee shall be appointed by a United States district court to
administer any Plan, (ii) the PBGC shall institute proceedings (including
giving notice of intent thereof) to terminate any Plan or Plans, (iii)
Holdings, Parent or any Subsidiary or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred or will be
assessed Withdrawal Liability to such Multiemployer Plan and such person does
not have reasonable grounds for contesting such Withdrawal Liability or is not
contesting such Withdrawal Liability in a timely and appropriate manner,
(iv) Holdings, Parent or any Subsidiary or any ERISA Affiliate shall have
been notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of Title
IV of ERISA, (v) Holdings, Parent or any Subsidiary or any ERISA Affiliate
shall engage in any “prohibited transaction” (as defined in Section 406 of
ERISA or Section 4975 of the Code) involving any Plan or (vi) any other
similar event or condition shall occur or exist with respect to a Plan, a
Non-U.S. Pension Plan or a Multiemployer Plan; and in each case in clauses (i)
through (vi)


 


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above, such event or condition,
together with all other such events or conditions, if any, could reasonably be
expected to have a Material Adverse Effect;


 


(l)                                     (i)
any Loan Document shall for any reason be asserted in writing by Holdings, any
Borrower or any Material Subsidiary not to be a legal, valid and binding
obligation of any party thereto, (ii) any security interest purported to be
created by any Security Document and to extend to assets that are not
immaterial to Holdings, any Borrower and the Subsidiaries on a consolidated
basis shall cease to be, or shall be asserted in writing by Parent or any other
Loan Party not to be, a valid and perfected security interest (having the
priority required by this Agreement or the relevant Security Document) in the
securities, assets or properties covered thereby, except to the extent that any
such loss of perfection or priority results from the failure of the Collateral
Agent to maintain possession of certificates actually delivered to it
representing securities pledged under the Collateral Agreements or to file
Uniform Commercial Code continuation statements and except to the extent that
such loss is covered by a lender’s title insurance policy and the
Administrative Agent shall be reasonably satisfied with the credit of such
insurer, (iii) the Guarantees pursuant to the Security Documents by Holdings,
Parent or the Subsidiary Loan Parties of any of the Obligations shall cease to
be in full force and effect (other than in accordance with the terms thereof),
or shall be asserted in writing by Holdings or Parent or any Subsidiary Loan
Party not to be in effect or not to be legal, valid and binding obligations or
(iv) the Obligations of the Borrowers or the Guarantees thereof by Holdings,
Parent and the Subsidiary Loan Parties pursuant to the Security Documents shall
cease to constitute senior indebtedness under the subordination provisions of
the Senior Subordinated Note Documents, the Permitted Senior Subordinated Debt
Securities, the Investor Financing Documents or the Parent Investor Financing
Documents or the respective such subordination provisions shall be invalidated
or otherwise cease, or shall be asserted in writing by Holdings, Parent or any
Material Subsidiary to be invalid or to cease, to be legal, valid and binding
obligations of the parties thereto, enforceable in accordance with their terms;


 


then, subject to
Sections 7.02, and in every such event (other than an event with respect to a
Borrower described in paragraph (h) or (i) above), and at any time thereafter
during the continuance of such event, the Administrative Agent, at the request
of the Required Lenders, shall, by notice to the Borrowers, take any or all of
the following actions, at the same or different times:  (i) terminate forthwith the Commitments, (ii)
declare the Loans then outstanding to be forthwith due and payable in whole or
in part, whereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and any unpaid accrued Fees and
all other liabilities of the Borrowers accrued hereunder and under any other
Loan Document, shall become forthwith due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by the Borrowers, anything contained herein or in any other
Loan Document to the contrary notwithstanding, (iii) demand cash
collateral pursuant to Section 2.05(j) and (iv) exercise, or direct the
Collateral Agent to exercise, any or all rights and remedies under the Security
Documents; and in any event with respect to a Borrower described in paragraph
(h) or (i) above, the Commitments shall automatically terminate, the principal
of the Loans then outstanding, together with accrued interest thereon and any
unpaid accrued Fees and all other liabilities of the Borrowers accrued
hereunder and under any other Loan Document, shall automatically become due and
payable and the


 


126





















 


Administrative
Agent shall be deemed to have made a demand for cash collateral to the full
extent permitted under Section 2.05(j), without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived by the Borrowers, anything contained herein or in any other Loan
Document to the contrary notwithstanding.


 


SECTION 7.02  Holdings’ Right to Cure.


 


(a)                                  Financial Performance Covenants.  Notwithstanding anything to the contrary
contained in Section 7.01, in the event that Holdings fails to comply with
the requirements of any Financial Performance Covenant, until the expiration of
the 10th day subsequent to the date the certificate calculating such Financial
Performance Covenant is required to be delivered pursuant to Section 5.04(c),
Holdings shall have the right to issue Permitted Cure Securities for cash or
otherwise receive cash contributions to the capital of Holdings, and, in each
case, to contribute any such cash to the capital of Parent (collectively, the “Cure
Right”), and upon the receipt by Parent of such cash (the “Cure Amount”)
pursuant to the exercise by Holdings of such Cure Right and request to the
Administrative Agent to effect such recalculation, such Financial Performance
Covenant shall be recalculated giving effect to the following pro  forma
adjustments:


 


(i)                                     EBITDA
shall be increased, solely for the purpose of measuring the Financial
Performance Covenants and not for any other purpose under this Agreement, by an
amount equal to the Cure Amount; and


 


(ii)                                  if,
after giving effect to the foregoing recalculations, Holdings shall then be in
compliance with the requirements of all Financial Performance Covenants, Holdings
shall be deemed to have satisfied the requirements of the Financial Performance
Covenants as of the relevant date of determination with the same effect as
though there had been no failure to comply therewith at such date, and the
applicable breach or default of the Financial Performance Covenants that had
occurred shall be deemed cured for the purposes of the Agreement.


 


(b)                                 Limitation on Exercise of Cure
Right.  Notwithstanding anything herein to the
contrary, (a) in each four-fiscal-quarter period there shall be at least one
fiscal quarter in which the Cure Right is not exercised, (b) in each
eight-fiscal-quarter period, there shall be a period of at least four
consecutive fiscal quarters during which the Cure Right is not exercised, and
(c) the Cure Amount shall be no greater than the amount required for purposes
of complying with the Financial Performance Covenants.


 


ARTICLE VIII


 


The Agents


 


SECTION 8.01  Appointment.  (a)  In
order to expedite the transactions contemplated by this Agreement, (i) DBAG
is hereby appointed to act as Administrative Agent (with each reference in this
Article to Administrative Agent to include DBAG in its capacity as
Collateral Agent) and (ii) ABN is hereby appointed to act as Syndication
Agent.  Each of the Lenders and each
assignee of any such Lender hereby irrevocably authorizes each Agent to take


 


127





















 


such actions on behalf of such Lender or assignee and to exercise such
powers as are specifically delegated to such Agent by the terms and provisions
hereof and of the other Loan Documents, together with such actions and powers
as are reasonably incidental thereto. 
The Administrative Agent is hereby expressly authorized by the Lenders
and each Issuing Bank, without hereby limiting any implied authority, (a) to
receive on behalf of the Lenders and such Issuing Bank all payments of
principal of and interest on the Loans, all payments in respect of L/C
Disbursements and all other amounts due to the Lenders and such Issuing Bank
hereunder, and promptly to distribute to each Lender or such Issuing Bank its
proper share of each payment so received; (b) to give notice on behalf of each
of the Lenders of any Event of Default specified in this Agreement of which the
Administrative Agent has actual knowledge acquired in connection with the
performance of its duties as Administrative Agent hereunder; and (c) to
distribute to each Lender copies of all notices, financial statements and other
materials delivered by any Borrower pursuant to this Agreement as received by
the Administrative Agent.  Without
limiting the generality of the foregoing, the Administrative Agent is hereby
expressly authorized to execute any and all documents (including releases) with
respect to the Collateral and the rights of the Secured Creditors with respect
thereto, as contemplated by and in accordance with the provisions of this
Agreement and the Security Documents.  In
the event that any party other than the Lenders and the Agents shall
participate in all or any portion of the Collateral pursuant to the Security
Documents, all rights and remedies in respect of such Collateral shall be
controlled by the Administrative Agent. 
No Joint Lead Arranger, documentation agent or senior managing agent
shall have any duties or responsibilities under this Agreement or any other
Loan Document.


 


(b)                                 Neither the Agents nor any of
their respective directors, officers, employees or agents shall be liable as
such for any action taken or omitted by any of them except for its or his own
gross negligence or willful misconduct, or be responsible for any statement,
warranty or representation herein or the contents of any document delivered in
connection herewith, or be required to ascertain or to make any inquiry
concerning the performance or observance by the Borrowers or any other Loan
Party of any of the terms, conditions, covenants or agreements contained in any
Loan Document.  The Agents shall not be
responsible to the Lenders for the due execution, genuineness, validity,
enforceability or effectiveness of this Agreement or any other Loan Documents
or other instruments or agreements.  The
Agents shall in all cases be fully protected in acting, or refraining from
acting, in accordance with written instructions signed by the Required Lenders
and, except as otherwise specifically provided herein, such instructions and
any action or inaction pursuant thereto shall be binding on all the
Lenders.  Each Agent shall, in the
absence of knowledge to the contrary, be entitled to rely on any instrument or
document believed by it in good faith to be genuine and correct and to have
been signed or sent by the proper person or persons.  Neither the Agents nor any of their
respective directors, officers, employees or agents shall have any responsibility
to any Borrower or any other Loan Party or any other party hereto on account of
the failure, delay in performance or breach by, or as a result of information
provided by, any Lender or Issuing Bank of any of its obligations hereunder or
to any Lender or Issuing Bank on account of the failure of or delay in
performance or breach by any other Lender or Issuing Bank or any Borrower or
any other Loan Party of any of their respective obligations hereunder or under
any other Loan Document or in connection herewith or therewith. Each Agent may
execute any and all duties hereunder by or through agents or employees and
shall be entitled to rely upon the advice of legal counsel


 


128





















 


selected by it with respect to all matters
arising hereunder and shall not be liable for any action taken or suffered in
good faith by it in accordance with the advice of such counsel.


 


SECTION 8.02
 Nature of
Duties.  The Lenders hereby
acknowledge that no Agent shall be under any duty to take any discretionary
action permitted to be taken by it pursuant to the provisions of this Agreement
unless it shall be requested in writing to do so by the Required Lenders.  The Lenders further acknowledge and agree
that so long as an Agent shall make any determination to be made by it
hereunder or under any other Loan Document in good faith, such Agent shall have
no liability in respect of such determination to any person.  Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Agent shall have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into the
Loan Documents or otherwise exist against any Agent.


 


SECTION 8.03  Resignation by the Agents.  (a)  Subject to the appointment and
acceptance of a successor Administrative Agent, as provided below, the
Administrative Agent may resign at any time by notifying the Lenders and
Parent.  Upon any such resignation, the
Required Lenders shall have the right to appoint a successor with the consent
of Parent (not to be unreasonably withheld or delayed).  If no successor shall have been so appointed
by the Required Lenders and approved by Parent and shall have accepted such
appointment within 45 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of
the Lenders with the consent of Parent (not to be unreasonably withheld or
delayed), appoint a successor Administrative Agent which shall be a bank with
an office in New York, New York and an office in London, England (or a bank
having an Affiliate with such an office) having a combined capital and surplus
having a Dollar Equivalent that is not less than $500.0 million or an Affiliate
of any such bank.  Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder.


 


(b)                                 The Syndication Agent may resign
at any time by notifying the Lenders and Parent.


 


(c)                                  After the resignation by the
Administrative Agent or the Syndication Agent hereunder, the provisions of this
Article and Section 9.05 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting
as Administrative Agent or Syndication Agent, as the case may be.


 


SECTION 8.04  The Agents in their Individual Capacity.  With respect to the Loans made by it
hereunder, each Agent in its individual capacity and not as Agent shall have
the same rights and powers as any other Lender and may exercise the same as
though it were not an Agent, and each Agent and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
Holdings, any Borrower or any of the Subsidiaries or other Affiliates thereof
as if it were not an Agent.


 


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SECTION 8.05  Indemnification.  Each Lender agrees (a) to reimburse each
Agent, on demand, in the amount of its pro  rata share (based on
its Commitments hereunder (or if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of its
applicable outstanding Loans or participations in L/C Disbursements, as
applicable)) of any reasonable expenses incurred for the benefit of the Lenders
by such Agent, including counsel fees and compensation of agents and employees
paid for services rendered on behalf of the Lenders, which shall not have been
reimbursed by Parent or any other Loan Party and (b) to indemnify and hold
harmless each Agent and any of its directors, officers, employees or agents, on
demand, in the amount of such pro  rata share, from and against
any and all liabilities, Taxes, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against it in its
capacity as Agent or any of them in any way relating to or arising out of this
Agreement or any other Loan Document or any action taken or omitted by it or
any of them under this Agreement or any other Loan Document, to the extent the
same shall not have been reimbursed by Parent or any other Loan Party, provided
that no Lender shall be liable to an Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of such Agent or any of its directors, officers, employees or
agents.


 


SECTION 8.06  Lack of Reliance on Agents.  Each Lender acknowledges that it has,
independently and without reliance upon any Agent and any Lender and based on
such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement.  Each Lender also acknowledges that it will,
independently and without reliance upon any Agent or any other Lender and based
on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.  The
Co-Documentation Agents shall not have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such.  Without limiting the
foregoing, the Co-Documentation Agents shall not have or be deemed to have a
fiduciary relationship with any Lender.


 


SECTION 8.07  Designation of Affiliates for Loans
Denominated in Euros.  The
Administrative Agent shall be permitted from time to time to designate one of
its Affiliates to perform the duties to be performed by the Administrative
Agent hereunder with respect to Loans, Borrowings and Letters of Credit
denominated in Euros.  The provisions of
this Article VIII shall apply to any such Affiliate, mutatis  mutandis.


 


ARTICLE IX


 


Miscellaneous


 


SECTION 9.01  Notices.  (a) 
Notices and other communications provided for herein shall be in writing
and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:


 


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(i)                                     if
to any Loan Party, to it, c/o Blackstone Capital Partners IV L.P., 345 Park
Avenue, New York, New York 10154;


 


(ii)                                  if
to the Administrative Agent or the Collateral Agent, to Deutsche Bank AG, New
York Branch, 60 Wall Street, New York, New York 10005, attention:  Catherine Madigan (telecopy: (212) 797-4872)
(e-mail: catherine.a.madigan@db.com), with a copy to White & Case LLP, 1155 Avenue of the Americas, New
York, New York 10036, attention:  David
Koschik, Esq. (telecopy: (212) 354-8113);


 


(iii)                               if
to an Issuing Bank, to it at the address or telecopy number set forth
separately in writing; and


 


(iv)                              if
such notice relates to a Revolving Facility Borrowing denominated in Euros, to
the Administrative Agent.


 


(b)                                 Notices and other communications
to the Lenders hereunder may be delivered or furnished by electronic
communications pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices pursuant to Article II
unless otherwise agreed by the Administrative Agent and the applicable
Lender.  Each of the Administrative
Agent, the Collateral Agent and Parent (on behalf of itself and the Subsidiary
Loan Parties) may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided, further, that approval of
such procedures may be limited to particular notices or communications.


 


(c)                                  All notices and other
communications given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given on the date of receipt if
delivered by hand or overnight courier service, sent by telecopy or (to the
extent permitted by paragraph (b) above) electronic means or on the date five
Business Days after dispatch by certified or registered mail if mailed, in each
case delivered, sent or mailed (properly addressed) to such party as provided
in this Section 9.01 or in accordance with the latest unrevoked direction
from such party given in accordance with this Section 9.01.


 


(d)                                 Any party hereto may change its
address or telecopy number for notices and other communications hereunder by
notice to the other parties hereto.


 


SECTION 9.02  Survival of Agreement.  All covenants, agreements, representations
and warranties made by the Loan Parties herein, in the other Loan Documents and
in the certificates or other instruments prepared or delivered in connection
with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the Lenders and each Issuing Bank and
shall survive the making by the Lenders of the Loans, the execution and
delivery of the Loan Documents and the issuance of the Letters of Credit,
regardless of any investigation made by such persons or on their behalf, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or L/C Disbursement or any Fee or any other amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not been terminated.  Without
prejudice to the survival of any other agreements contained herein,
indemnification and reimbursement obligations contained herein


 


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(including pursuant to Sections 2.15, 2.16, 2.17 and 9.05) shall
survive the payment in full of the principal and interest hereunder, the
expiration of the Letters of Credit and the termination of the Commitments or
this Agreement.


 


SECTION 9.03  Binding Effect.  This Agreement shall become effective when it
shall have been executed by Holdings, Parent and the Administrative Agent and
when the Administrative Agent shall have received copies hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of Holdings, the
Borrowers, each Issuing Bank, the Administrative Agent and each Lender and
their respective permitted successors and assigns.


 


SECTION 9.04  Successors and Assigns.  (a) 
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby (including any Affiliate of any Issuing Bank that issues any
Letter of Credit), except that (i) other than pursuant to a merger permitted by
Section 6.05(b) or 6.05(i), no Borrower may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by a Borrower without
such consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with this
Section.  Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any person (other than
the parties hereto, their respective successors and assigns permitted hereby
(including any Affiliate of any Issuing Bank that issues any Letter of Credit),
Participants (to the extent provided in paragraph (c) of this Section) and, to
the extent expressly contemplated hereby, the Related Parties of each of the
Agents, each Issuing Bank and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.


 


(b)                                 (i) Subject to the conditions
set forth in paragraph (b)(ii) below, any Lender may assign to one or more
assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans at the time owing
to it) with the prior written consent (such consent not to be unreasonably
withheld or delayed) of:


 


(A)                              Parent
(such consent not to be unreasonably withheld or delayed); provided that
no consent of Parent shall be required for an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund or, if an Event of Default has
occurred and is continuing or during the period of primary syndication of the
Facilities (as determined pursuant to the Fee Letter), any other assignee (provided
that any liability of the Borrowers to an assignee that is an Approved Fund or
Affiliate of the assigning Lender under Section 2.15, 2.16, 2.17 or 2.21
shall be limited to the amount, if any, that would have been payable hereunder
by such Borrower in the absence of such assignment); and


 


(B)                                the
Administrative Agent; provided that no consent of the Administrative
Agent shall be required for an assignment of (i) a Revolving Facility
Commitment to an assignee that is a Lender with a Revolving Facility
Commitment, immediately prior to giving effect to such assignment, or (ii) a
Term Loan to a Lender, an Affiliate of a Lender or Approved Fund immediately
prior to giving effect to such assignment.


 


(ii)                                  Assignments
shall be subject to the following additional conditions:


 


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(A)                              except
in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning
Lender’s Commitment, the amount of the commitment of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than (x) $5.0 million (or the Euro Equivalent in the
case of Revolving Facility Loans denominated in Euros), in the case of
Revolving Facility Commitments and Revolving Facility Loans, and (y) $1.0
million, in the case of Term Loans and Term Loan Commitments, unless each of
Parent and the Administrative Agent otherwise consent; provided that
multiple contemporaneous assignments by Approved Funds may be aggregated for
the purpose of compliance with clauses (x) and (y) above; and further  provided
that no such consent of Parent shall be required if an Event of Default under
paragraph (b), (c), (h) or (i) of Section 7.01 has occurred and is
continuing;


 


(B)                                each
partial assignment shall be made as an assignment of a proportionate part of
the assigning Lender’s rights and obligations being so assigned under this
Agreement;


 


(C)                                the
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a processing and recordation
fee of $3,500; provided that no such recordation fee shall be due in
connection with an assignment to an existing Lender or Affiliate or Approved
Fund of a Lender or an assignment by the Administrative Agent;


 


(D)                               no
assignment of Revolving Facility Loans or Revolving Facility Commitments shall
be permitted to be made to an assignee that cannot make Revolving Facility
Loans in Dollars and Euros; and


 


(E)                                 at
any time when it is a requirement of Netherlands law that each Lender to the
Parent or any other Dutch Borrower be a Professional Market Party, no
assignment may be made to a Person that is not a Professional Market Party.


 


(iii)                               Subject
to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and
Acceptance the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
hereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections
2.15, 2.16, 2.17 and 9.05).  Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 9.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (c) of this Section.


 


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(iv)                              The
Administrative Agent, acting for this purpose as an agent of Parent, shall
maintain at one of its offices a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses
of the Lenders, and the Commitment of, and principal amount of the Loans and
L/C Disbursements owing to, each Lender pursuant to the terms hereof from time
to time (the “Register”).  The
entries in the Register shall be conclusive, and Parent, the Agents, each
Issuing Bank and the Lenders may treat each person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by Parent, any Issuing Bank and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.


 


(v)                                 Upon
its receipt of a duly completed Assignment and Acceptance executed by an
assigning Lender and an assignee, the processing and recordation fee referred
to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent
acting for itself and, in any situation wherein the consent of Parent is not
required, Parent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. 
No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.


 


(c)                                  (i)  Any Lender may,
without the consent of Parent, the Administrative Agent, any Issuing Bank or
any Swingline Lender, sell participations to one or more banks or other
entities (provided, that at any time when it is a requirement of
Netherlands law that any participations in Loans made to the Parent or any
other Dutch Borrower may only be owned by a Professional Market Party, such
bank or other entity must be a Professional Market Party) (a “Loan
Participant”) in all or a portion of such Lender’s rights and obligations
under this Agreement (including all or a portion of its Commitment and the
Loans owing to it); provided that (A) such Lender’s obligations under
this Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (C) the Borrowers, the Agents, each Issuing Bank and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations under this Agreement.  Any agreement or instrument (oral or written)
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and the other Loan
Documents and to approve any amendment, modification or waiver of any provision
of this Agreement and the other Loan Documents; provided that (x) such
agreement or instrument may provide that such Lender will not, without the
consent of the Loan Participant, agree to any amendment, modification or waiver
described in Section 9.04(a)(i) or clauses (i), (ii), (iii), (iv), (v) or
(vi) of the first proviso to Section 9.08(b) that affects such Loan
Participant and (y) no other agreement (oral or written) with respect to such
participation may exist between such Lender and such Loan Participant.  Subject to paragraph (c)(ii) of this Section,
each of the Borrowers agrees that each Loan Participant shall be entitled to
the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section.  To the extent permitted by
law, each Loan Participant also shall be entitled to the benefits of Section 9.06
as though it were a Lender, provided such Loan Participant agrees to be
subject to Section 2.18(c) as though it were a Lender.


 


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(ii)                                  A
Loan Participant shall not be entitled to receive any greater payment under Section 2.15,
2.16 or 2.17 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Loan Participant, unless the
sale of the participation to such Loan Participant is made with Parent’s prior
written consent.  A Loan Participant that
would be a Non-U.S. Lender if it were a Lender shall not be entitled to the
benefits of Section 2.17 to the extent such Loan Participant fails to
comply with Section 2.17(e) as though it were a Lender.


 


(d)                                 Any Lender may at any time
pledge or assign a security interest in all or any portion of its rights under
this Agreement to secure obligations of such Lender, including (i) any pledge
or assignment to secure obligations to a Federal Reserve Bank and (ii) in the
case of any Lender that is an Approved Fund, any pledge or assignment to any
holders of obligations owed, or securities issued, by such Lender including to
any trustee for, or any other representative of, such holders, and this Section shall
not apply to any such pledge or assignment of a security interest; provided
that no such pledge or assignment of a security interest shall release a Lender
from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.


 


SECTION 9.05  Expenses; Indemnity.  (a) 
Parent agrees to pay all reasonable out-of-pocket expenses (including
Other Taxes) incurred by the Administrative Agent in connection with the
preparation of this Agreement and the other Loan Documents or the
administration of this Agreement and by the Initial Lenders in connection with
the syndication of the Commitments (including expenses incurred prior to the
Closing Date in connection with due diligence and the reasonable fees,
disbursements and the charges for no more than one counsel in each jurisdiction
where Collateral is located) or in connection with any amendments, modifications
or waivers of the provisions hereof or thereof (whether or not the Transactions
hereby contemplated shall be consummated) or incurred by the Agents or any
Lender in connection with the enforcement or protection of their rights in
connection with this Agreement and the other Loan Documents, in connection with
the Loans made or the Letters of Credit issued hereunder, including the
reasonable fees, charges and disbursements of White & Case LLP, counsel for the Administration
Agent and the Joint Lead Arrangers and Stibbe, special Dutch counsel to the
Administrative Agent and the Joint Lead Arrangers, and, in connection with any
such enforcement or protection, the reasonable fees, charges and disbursements
of any other counsel (including the reasonable allocated costs of internal
counsel if a Lender elects to use internal counsel in lieu of outside counsel)
for the Agents, the Joint Lead Arrangers, any Issuing Bank or all Lenders (but
no more than one such counsel for all Lenders).


 


(b)                                 Parent agrees to indemnify the
Agents, the Joint Lead Arrangers, each Issuing Bank, each Lender and each of
their respective directors, trustees, officers, employees and agents (each such
person being called an “Indemnitee”) against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees, charges and disbursements,
incurred by or asserted against any Indemnitee arising out of, in any way
connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto and
thereto of their respective obligations thereunder or the consummation of the
Transactions and the other transactions contemplated hereby, (ii) the use of
the proceeds of the Loans or the use of any Letter of Credit


 


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or (iii) any claim, litigation, investigation
or proceeding relating to any of the foregoing, whether or not any Indemnitee
is a party thereto, provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses result primarily from the gross negligence or
willful misconduct (as determined in a final and non-appealable judgement of a
court of competent jurisdiction) of such Indemnitee (treating, for this purpose
only, any Agent, any Joint Lead Arranger, any Issuing Bank, any Lender and any
of their respective Related Parties as a single Indemnitee).  Subject to and without limiting the
generality of the foregoing sentence, Parent agrees to indemnify each
Indemnitee against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses, including reasonable counsel
or consultant fees, charges and disbursements, incurred by or asserted against
any Indemnitee arising out of, in any way connected with, or as a result of (A)
any Environmental Claim related in any way to Holdings, Parent or any of their
Subsidiaries, or (B) any actual or alleged presence, Release or threatened
Release of Hazardous Materials at, under, on or from any Mortgaged Property or
any property owned, leased or operated by any predecessor of Holdings, Parent
or any of their Subsidiaries, provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee or any of its Related
Parties.  The provisions of this Section 9.05
shall remain operative and in full force and effect regardless of the
expiration of the term of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Obligations, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of any Agent, any Issuing
Bank or any Lender.  All amounts due
under this Section 9.05 shall be payable on written demand therefor
accompanied by reasonable documentation with respect to any reimbursement,
indemnification or other amount requested.


 


(c)                                  Unless an Event of Default shall
have occurred and be continuing, Parent shall be entitled to assume the defense
of any action for which indemnification is sought hereunder with counsel of its
choice at its expense (in which case Parent shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by an Indemnitee
except as set forth below); provided, however, that such counsel
shall be reasonably satisfactory to each such Indemnitee.  Notwithstanding Parent’s election to assume
the defense of such action, each Indemnitee shall have the right to employ
separate counsel and to participate in the defense of such action, and Parent
shall bear the reasonable fees, costs and expenses of such separate counsel, if
(i) the use of counsel chosen by Parent to represent such Indemnitee would
present such counsel with a conflict of interest; (ii) the actual or potential
defendants in, or targets of, any such action include both Parent and such
Indemnitee and such Indemnitee shall have reasonably concluded that there may
be legal defenses available to it that are different from or additional to
those available to Parent (in which case Parent shall not have the right to
assume the defense or such action on behalf of such Indemnitee); (iii) Parent
shall not have employed counsel reasonably satisfactory to such Indemnitee to
represent it within a reasonable time after notice of the institution of such
action; or (iv) Parent shall authorize in writing such Indemnitee to employ
separate counsel at Parent’s expense. 
Parent will not be liable under this Agreement for any amount paid by an
Indemnitee to settle any claims or actions if the settlement is entered into
without Parent’s consent, which consent may not be withheld or delayed unless
such settlement


 


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is unreasonable in light of such claims or
actions against, and defenses available to, such Indemnitee.


 


(d)                                 Except as expressly provided in Section 9.05(a)
with respect to Other Taxes, which shall not be duplicative with any amounts
paid pursuant to Section 2.17, this Section 9.05 shall not apply to
Taxes.


 


SECTION 9.06
 Right of
Set-off.  If an Event of Default
shall have occurred and be continuing, each Lender and each Issuing Bank is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other indebtedness
at any time owing by such Lender or such Issuing Bank to or for the credit or
the account of Holdings, Parent or any Subsidiary against any of and all the
obligations of Holdings or Parent now or hereafter existing under this
Agreement or any other Loan Document held by such Lender or such Issuing Bank,
irrespective of whether or not such Lender or such Issuing Bank shall have made
any demand under this Agreement or such other Loan Document and although the
obligations may be unmatured.  The rights
of each Lender and each Issuing Bank under this Section 9.06 are in
addition to other rights and remedies (including other rights of set-off) that
such Lender or such Issuing Bank may have.


 


SECTION 9.07  Applicable Law.  THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.


 


SECTION 9.08  Waivers; Amendment.  (a)  No
failure or delay of the Administrative Agent, any Issuing Bank or any Lender in
exercising any right or power hereunder or under any Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. 
The rights and remedies of the Administrative Agent, each Issuing Bank
and the Lenders hereunder and under the other Loan Documents are cumulative and
are not exclusive of any rights or remedies that they would otherwise
have.  No waiver of any provision of this
Agreement or any other Loan Document or consent to any departure by Holdings,
any Borrower or any other Loan Party therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) below, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given.  No notice or demand on
Holdings, any Borrower or any other Loan Party in any case shall entitle such
person to any other or further notice or demand in similar or other
circumstances.


 


(b)                                 Neither this Agreement nor any
other Loan Document nor any provision hereof or thereof may be waived, amended
or modified except (x) in the case of this Agreement, pursuant to an agreement
or agreements in writing entered into by Parent and the Required Lenders and
(y) in the case of any other Loan Document, pursuant to an agreement or
agreements as provided for therein; provided, however, that no
such agreement shall


 


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(i)                                     decrease
or forgive the principal amount of, or extend the final maturity of, or
decrease the rate of interest on, any Loan or any L/C Disbursement, without the
prior written consent of each Lender directly affected thereby; provided
that any amendment to the financial covenant definitions in this Agreement
shall not constitute a reduction in the rate of interest for purposes of this
clause (i),


 


(ii)                                  increase
or extend the Commitment of any Lender or decrease the Fees or other fees of
any Lender without the prior written consent of such Lender (it being
understood that waivers or modifications of conditions precedent, covenants,
Defaults or Events of Default or of a mandatory reduction in the aggregate
Commitments shall not constitute an increase of the Commitments of any Lender),


 


(iii)                               extend
or waive any Installment Date or extend any date on which payment of interest
on any Loan or any L/C Disbursement is due, without the prior written consent
of each Lender adversely affected thereby,


 


(iv)                              amend
or modify the provisions of Section 2.18(c) in a manner that would by its
terms alter the pro  rata sharing of payments required thereby,
without the prior written consent of each Lender adversely affected thereby,


 


(v)                                 amend
or modify the provisions of this Section or the definition of the terms “Required
Lenders,” “Majority Lenders” or any other provision hereof specifying the
number or percentage of Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the
prior written consent of each Lender adversely affected thereby (it being
understood that, with the consent of the Required Lenders, additional
extensions of credit pursuant to this Agreement may be included in the
determination of the Required Lenders on substantially the same basis as the
Loans and Commitments are included on the Closing Date),


 


(vi)                              release
all or substantially all the Collateral or release Holdings, Parent or all or
substantially all of the Subsidiary Loan Parties from its Guarantee under the
applicable Security Document, unless, in the case of a Subsidiary Loan Party,
all or substantially all the Equity Interests of such Subsidiary Loan Party is
sold or otherwise disposed of in a transaction permitted by this Agreement,
without the prior written consent of each Lender adversely affected thereby, or


 


(vii)                           effect
any waiver, amendment or modification that by its terms directly adversely
affects the rights in respect of payments or collateral of Lenders
participating in any Facility differently from those of Lenders participating
in other Facilities, without the consent of the Majority Lenders participating
in the adversely affected Facility (it being agreed that the Required Lenders
may waive, in whole or in part, any prepayment or Commitment reduction required
by Section 2.11 so long as the application of any prepayment or Commitment
reduction still required to be made is not changed);


 


provided, further, that no such agreement
shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent or an Issuing Bank hereunder without the prior written
consent of the Administrative Agent or such Issuing Bank acting as such at the
effective date of


 


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such agreement, as
applicable.  Each Lender shall be bound
by any waiver, amendment or modification authorized by this Section 9.08
and any consent by any Lender pursuant to this Section 9.08 shall bind any
assignee of such Lender.


 


(c)                                  Without the consent of any Joint
Lead Arranger or any Lender, the Loan Parties and the Administrative Agent
and/or Collateral Agent may (in their respective sole discretion, or shall, to
the extent required by any Loan Document) enter into any amendment,
modification or waiver of any Loan Document, or enter into any new agreement or
instrument, to effect the granting, perfection, protection, expansion or enhancement
of any security interest in any Collateral or additional property to become
Collateral for the benefit of the Secured Creditors, or as required by local
law to give effect to, or protect any security interest for the benefit of the
Secured Creditors, in any property or so that the security interests therein
comply with applicable law.


 


(d)                                 Notwithstanding the foregoing,
this Agreement may be amended (or amended and restated) with the written
consent of the Required Lenders, the Administrative Agent, Holdings and the
Borrowers (a) to add one or more additional credit facilities to this Agreement
and to permit the extensions of credit from time to time outstanding thereunder
and the accrued interest and fees in respect thereof to share ratably in the benefits
of this Agreement and the other Loan Documents with the Term Loans and the
Revolving Facility Loans and the accrued interest and fees in respect thereof
and (b) to include appropriately the Lenders holding such credit facilities in
any determination of the Required Lenders.


 


(e)                                  In addition, notwithstanding the
foregoing, this Agreement may be amended with the written consent of the
Administrative Agent, Holdings, the Borrowers and the Lenders providing the
relevant Replacement Term Loans (as defined below) to permit the refinancing of
all outstanding Term Loans (“Refinanced Term Loans”) with a replacement “B”
term loan tranche hereunder which shall be Loans hereunder (“Replacement
Term Loans”); provided that (a) the aggregate principal amount of such
Replacement Term Loans shall not exceed the aggregate principal amount of such
Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term
Loans shall not be higher than the Applicable Margin for such Refinanced Term
Loans, (c) the weighted average life to maturity of such Replacement Term Loans
shall not be shorter than the weighted average life to maturity of such
Refinanced Term Loans at the time of such refinancing and (d) all other terms
applicable to such Replacement Term Loans shall be substantially identical to,
or less favorable to the Lenders providing such Replacement Term Loans than,
those applicable to such Refinanced Term Loans, except to the extent necessary
to provide for covenants and other terms applicable to any period after the
latest final maturity of the Term Loans in effect immediately prior to such
refinancing.


 


SECTION 9.09
 Interest
Rate Limitation.  Notwithstanding
anything herein to the contrary, if at any time the applicable interest rate,
together with all fees and charges that are treated as interest under
applicable law (collectively, the “Charges”), as provided for herein or
in any other document executed in connection herewith, or otherwise contracted
for, charged, received, taken or reserved by any Lender or any Issuing Bank,
shall exceed the maximum lawful rate (the “Maximum Rate”) that may be
contracted for, charged, taken, received or reserved by such Lender in
accordance with applicable law, the rate of interest payable hereunder,
together with all Charges payable to such Lender or such Issuing Bank, shall be


 


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limited to the Maximum Rate, provided that such excess amount
shall be paid to such Lender or such Issuing Bank on subsequent payment dates
to the extent not exceeding the legal limitation.


 


SECTION 9.10  Entire Agreement.  This Agreement, the other Loan Documents and
the agreements regarding certain Fees referred to herein constitute the entire
contract between the parties relative to the subject matter hereof.  Any previous agreement among or
representations from the parties or their Affiliates with respect to the
subject matter hereof is superseded by this Agreement and the other Loan
Documents.  Notwithstanding the
foregoing, the Fee Letter shall survive the execution and delivery of this
Agreement and remain in full force and effect. 
Nothing in this Agreement or in the other Loan Documents, expressed or
implied, is intended to confer upon any party other than the parties hereto and
thereto any rights, remedies, obligations or liabilities under or by reason of
this Agreement or the other Loan Documents.


 


SECTION 9.11  WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS.  EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.


 


SECTION 9.12
 Severability.  In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby.  The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.


 


SECTION 9.13  Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which, when
taken together, shall constitute but one contract, and shall become effective
as provided in Section 9.03. Delivery of an executed counterpart to this
Agreement by facsimile transmission shall be as effective as delivery of a
manually signed original.


 


SECTION 9.14  Headings.  Article and Section headings and
the Table of Contents used herein are for convenience of reference only, are
not part of this Agreement and are not to affect the construction of, or to be
taken into consideration in interpreting, this Agreement.


 


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SECTION 9.15  Jurisdiction; Consent to Service of
Process.  (a)  Each of Holdings and each Borrower hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to
this Agreement or the other Loan Documents, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such federal court. 
Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law.  Nothing in this Agreement shall
affect any right that any Lender or any Issuing Bank may otherwise have to
bring any action or proceeding relating to this Agreement or the other Loan
Documents against Holdings, any Borrower or any Loan Party or their properties
in the courts of any jurisdiction.


 


(b)                                 Each of Holdings and each
Borrower hereby irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or the other Loan Documents in any New York
State or federal court.  Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.


 


(c)                                  Each Loan Party party hereto
irrevocably and unconditionally appoints Blackstone Communications Advisors I
L.L.C., with an office on the date hereof at 345 Park Avenue, 31st
Floor, New York, NY 10154, and its successors hereunder (the “Process Agent”),
as its agent to receive on behalf of each such Loan Party and its property all
writs, claims, process, and summonses in any action or proceeding brought
against it in the State of New York. 
Such service may be made by mailing or delivering a copy of such process
to the respective Loan Party in care of the Process Agent at the address
specified above for the Process Agent, and such Loan Party irrevocably
authorizes and directs the Process Agent to accept such service on its
behalf.  Failure by the Process Agent to
give notice to the respective Loan Party, or failure of the respective Loan
Party, to receive notice of such service of process shall not impair or affect
the validity of such service on the Process Agent or any such Loan Party, or of
any judgment based thereon.  Each Loan
Party party hereto covenants and agrees that it shall take any and all
reasonable action, including the execution and filing of any and all documents,
that may be necessary to continue the designation of the Process Agent above in
full force and effect, and to cause the Process Agent to act as such.  Each Loan Party hereto further covenants and
agrees to maintain at all times an agent with offices in New York City to act
as its Process Agent.  Nothing herein
shall in any way be deemed to limit the ability to serve any such writs,
process or summonses in any other manner permitted by applicable law.


 


SECTION 9.16  Confidentiality.  Each of the Lenders, each Issuing Bank and
the Administrative Agent agrees that it shall maintain in confidence any
information relating to Holdings, Parent and the other Loan Parties furnished
to it by or on behalf of Holdings, Parent or the other Loan Parties (other than
information that (a) has become generally available to the public other than as
a result of a disclosure by such party, (b) has been independently developed


 


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by such Lender, such Issuing Bank or the Administrative Agent without
violating this Section 9.16 or (c) was available to such Lender, such
Issuing Bank or the Administrative Agent from a third party having, to such
person’s knowledge, no obligations of confidentiality to Holdings, Parent or
any other Loan Party) and shall not reveal the same other than to its
directors, trustees, officers, employees and advisors with a need to know or to
any person that approves or administers the Loans on behalf of such Lender (so
long as each such person shall have been instructed to keep the same
confidential in accordance with this Section 9.16), except:  (A) to the extent necessary to comply with
law or any legal process or the requirements of any Governmental Authority, the
National Association of Insurance Commissioners or of any securities exchange
on which securities of the disclosing party or any Affiliate of the disclosing
party are listed or traded, (B) as part of normal reporting or review
procedures to, or as requested in connection with the exercise of its
regulatory authority by, any Governmental Authorities or the National
Association of Insurance Commissioners, (C) to its parent companies, Affiliates
or auditors (so long as each such person shall have been instructed to keep the
same confidential in accordance with this Section 9.16), (D) in order to
enforce its rights under any Loan Document in a legal proceeding, (E) to any
prospective assignee of, or prospective Participant in, any of its rights under
this Agreement (so long as such person shall have been instructed to keep the
same confidential in accordance with this Section 9.16) and (F) to any
direct or indirect contractual counterparty in Swap Agreements or such
contractual counterparty’s professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees to
be bound by the provisions of this Section).


 


SECTION 9.17  Conversion of Currencies.  (a) 
If, for the purpose of obtaining judgment in any court, it is necessary
to convert a sum owing hereunder in one currency into another currency, each
party hereto (including any Subsidiary Revolving Borrower) agrees, to the
fullest extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the first currency could be purchased with such other
currency on the Business Day immediately preceding the day on which final
judgment is given.


 


(b)                                 The obligations of each Borrower
in respect of any sum due to any party hereto or any holder of the obligations
owing hereunder (the “Applicable Creditor”) shall, notwithstanding any
judgment in a currency (the “Judgment Currency”) other than the currency
in which such sum is stated to be due hereunder (the “Agreement Currency”),
be discharged only to the extent that, on the Business Day following receipt by
the Applicable Creditor of any sum adjudged to be so due in the Judgment
Currency, the Applicable Creditor may in accordance with normal banking
procedures in the relevant jurisdiction purchase the Agreement Currency with
the Judgment Currency; if the amount of the Agreement Currency so purchased is
less than the sum originally due to the Applicable Creditor in the Agreement
Currency, such Borrower agrees, as a separate obligation and notwithstanding
any such judgment, to indemnify the Applicable Creditor against such loss.  The obligations of the Borrowers contained in
this Section 9.17 shall survive the termination of this Agreement and the
payment of all other amounts owing hereunder.


 


SECTION 9.18  Release of Liens and Guarantees.  In the event that any Loan Party conveys,
sells, leases, assigns, transfers or otherwise disposes of all or any portion
of any of its assets (including the Equity Interests of any Subsidiary Loan
Party (other than a


 


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Borrower)) to a person that is not (and is not required to become) a
Loan Party in a transaction not prohibited by Section 6.05, the
Administrative Agent and the Collateral Agent shall promptly (and the Lenders
hereby authorize the Administrative Agent and the Collateral Agent to) take
such action and execute any such documents as may be reasonably requested by
Holdings or Parent and at Parent’s expense to release any Liens created by any
Loan Document in respect of such assets or Equity Interests, and, in the case
of a disposition of the Equity Interests of any Subsidiary Loan Party that is
not a Borrower in a transaction permitted by Section 6.05 and as a result
of which such Subsidiary Loan Party would cease to be a Subsidiary, terminate
such Subsidiary Loan Party’s obligations under its Guarantee.  In addition, the Administrative Agent and the
Collateral Agent agree to take such actions as are reasonably requested by
Holdings or Parent and at Parent’s expense to terminate the Liens and security
interests created by the Loan Documents when all the Obligations are paid in
full and all Letters of Credit and Commitments are terminated.  Any representation, warranty or covenant
contained in any Loan Document relating to any such Equity Interests, asset or
subsidiary of Holdings shall no longer be deemed to be made once such Equity
Interests or asset is so conveyed, sold, leased, assigned, transferred or
disposed of.


 


SECTION 9.19  Parallel Debt.  (a) 
Each of the Loan Parties hereby irrevocably and unconditionally
undertakes to pay to the Collateral Agent an amount equal to the aggregate
amount payable by such Loan Party in respect of its Corresponding Obligations
as they may exist from time to time (each a “Parallel Debt Obligation”).  Each Parallel Debt Obligation will be payable
in the currency or currencies of the relevant Corresponding Obligations.


 


(b)                                 Each Parallel Debt Obligation of
a Loan Party will become due and payable (opeisbaar)
as and when one or more of the Corresponding Obligations of such Loan Party
become due and payable.


 


(c)                                  Each of the parties hereto
hereby acknowledges that:


 


(i)                                     each
Parallel Debt Obligation constitutes an undertaking, obligation and liability
of the relevant Loan Party to the Collateral Agent which is separate and
independent from, and without prejudice to, the Corresponding Obligations; and


 


(ii)                                  each
Parallel Debt Obligation represents the Collateral Agent’s own separate and
independent claim (eigen en zelfstandige
vordering) to receive payment of such Parallel Debt Obligation from
the relevant Loan Party,


 


(iii)                               it
being understood, in each case, that pursuant to this Section 9.19 the
amount which may become payable by a Loan Party as its Parallel Debt Obligation
shall never exceed the total of the amounts which are payable under the
Corresponding Obligations of such Loan Party.


 


(d)                                 For the avoidance of doubt, the
parties hereto confirm that in accordance with this Section 9.19, the
claim of the Collateral Agent against a Loan Party in respect of a Parallel
Debt Obligation and the claims of anyone or more of the Lenders against such
Loan Party in respect of the Corresponding Obligations payable by such Loan
Party to such Lenders do not constitute common property (gemeenschap) within the meaning of article 3:166
of The


 


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Netherlands Civil Code (“NCC”) and that the
provisions relating to common property shall not apply.  If, however, it shall be held that such claim
of the Collateral Agent and such claims of any one or more of the Lenders do
constitute common property and the provisions relating to common property do
apply, the parties agree that this Agreement shall constitute the
administration agreement (beheersregeling)
within the meaning of article 3:168 NCC.


 


(e)                                  To the extent the Collateral Agent
irrevocably (onaantastbaar)
receives any amount in payment of the Parallel Debt Obligation of a Loan Party,
the Collateral Agent shall distribute that amount among the Lenders that are
creditors of the Corresponding Obligations of that Loan Party in accordance
with Section 9.23 of this Agreement relating to the distribution of
proceeds. Upon irrevocable receipt by the Collateral Agent of any amount so
received by it (a “Received Amount”), the Corresponding Obligations of
that Loan Party to the relevant Lender(s) shall be reduced by amounts totaling
an amount (a “Deductible Amount”) equal to the Received Amount in the
manner as if the Deductible Amount were received as a payment of the
Corresponding Obligations on the date of receipt by that Lender of the Received
Amount.


 


SECTION 9.20  U.S.A. Patriot Act.  Each Lender subject to the Act hereby
notifies the Borrowers that pursuant to the requirements of the USA PATRIOT ACT
(Title 111 of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies the
Borrower and other information that will allow such Lender to identify the
Borrower in accordance with the Act.


 


SECTION 9.21  Professional Market Party Representation.  To enable each Dutch Borrower to rely on Section 2
of the Exemption Regulation and each Dutch Borrower to avoid applicability of Section 82
of the Dutch Act on the Supervision of Credit Institutions 1992:


 


(a)                                  each
Lender listed on Schedule 2.01 represents that on the date of this
Agreement and on each date a Loan is requested to be made by it, it is a
Professional Market Party; and


 


(b)                                 each
other Lender represents that on each date a Loan is requested to be made by it,
it is a Professional Market Party.


 


SECTION 9.22  Regulatory Matters.  The Lenders hereby agree that they will not
take action pursuant to the Security Documents which would constitute or result
in an assignment or a change of control of the FCC or other governmental
permits, licenses, or other authorizations now held by or to be issued to
Parent or any of its subsidiaries, or otherwise would require prior notice to
or approval from a Governmental Authority, without first providing such notice
or obtaining such prior approval.  Parent
agrees to take any action which any Lender may reasonably request in order to
obtain from the FCC or any other relevant Governmental Authority such approval
as may be necessary to enable the Lenders to exercise the full rights and
benefits granted to the Lenders pursuant to this Agreement, including the use
of Parent’s best efforts to assist in obtaining the approval of the FCC or any
other relevant Governmental Authority for any action or transaction
contemplated by the Security Documents for which such approval is required by
law and specifically, without limitation, upon request, to prepare, sign and
file with the FCC or any other relevant Governmental Authority the assignor’s
or


 


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transferor’s and
licensee’s portions of any application or applications for consent to the
assignment or transfer of control of any FCC or other governmental construction
permit, license or other authorization that may be necessary or appropriate
under the rules of the FCC or such other Governmental Authority for approval of
any sale or transfer of control of the Collateral pursuant to the exercise of
the Lenders’ rights and remedies under the Security Documents.  Parent further consents, subject to obtaining
any necessary approvals, to the assignment or transfer of control of any FCC or
other governmental construction permit, license, or other authorization to
operate to a receiver, trustee, or similar official or to any purchaser of the
Collateral pursuant to any public or private sale, judicial sale, foreclosure,
or exercise of other remedies available to the Lenders as permitted by
applicable law.


 


SECTION 9.23  Application of Proceeds.  (a) 
All moneys collected by the Collateral Agent upon any sale or other
disposition of any Collateral, together with all other moneys received by the
Collateral Agent under any Security Document, shall be applied as follows:


 


(i)                                     first,
to the payment of all amounts owing the Collateral Agent for (x) any and all
sums advanced by the Collateral Agent in order to preserve the Collateral or
preserve its security interest in the Collateral, (y) the reasonable expenses
of retaking, holding, preparing for sale or lease, selling or otherwise
disposing of or realizing on the Collateral, or of any exercise by the
Collateral Agent of its rights under this Agreement or any Security Document,
together with reasonable attorneys’ fees and court costs, in each case, in the
event of any proceeding for the collection or enforcement of any indebtedness,
obligations, or liabilities of Holdings or its Subsidiaries and after an Event
of Default shall have occurred and be continuing and (z) all amounts paid by
the Collateral Agent for which the Collateral Agent is indemnified by Holdings
or any of its Subsidiaries and for which the Collateral Agent is entitled to
reimbursement pursuant to Section 9.05 or the indemnification provisions
contained in the Security Documents;


 


(ii)                                  second,
to the extent proceeds remain after the application pursuant to the preceding
clause (i), to the payment of all amounts owing to any Agent for (x) all
amounts paid by such Agent for which such Agent is indemnified by Holdings or
any of its Subsidiaries and for which such Agent is entitled to reimbursement
pursuant to Section 9.05 or the indemnification provisions contained in
the Security Documents and (y) all amounts owing to any Agent pursuant to any
of the Loan Documents in its capacity as such;


 


(iii)                               third,
to the extent proceeds remain after the application pursuant to the preceding
clauses (i) and (ii), an amount equal to the outstanding Primary Obligations
shall be paid to the Secured Creditors as provided in Section 9.23(d),
with each Secured Creditor receiving an amount equal to its outstanding Primary
Obligations or, if the proceeds are insufficient to pay in full all such
Primary Obligations, its Pro Rata Share of the amount remaining to be
distributed;


 


(iv)                              fourth,
to the extent proceeds remain after the application pursuant to the preceding
clauses (i) through (iii), inclusive, an amount equal to the outstanding
Secondary Obligations shall be paid to the Secured Creditors as provided in
Section


 


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9.23(d), with each Secured
Creditor receiving an amount equal to its outstanding Secondary Obligations or,
if the proceeds are insufficient to pay in full all such Secondary Obligations,
its Pro Rata Share of the amount remaining to be distributed; and


 


(v)                                 fifth,
to the extent proceeds remain after the application pursuant to the preceding
clauses (i) through (iv), inclusive, and following the termination of this
Agreement and the Security Documents, to Holdings or its relevant Subsidiary or
to whomever may be lawfully entitled to receive such surplus.


 


(b)                                 When payments to Secured
Creditors are based upon their respective Pro Rata Shares, the amounts received
by such Secured Creditors shall be applied (for purposes of making
determinations under this Section 9.23 only) (i) first, to their Primary
Obligations and (ii) second, to their Secondary Obligations.  If any payment to any Secured Creditor of its
Pro Rata Share of any distribution would result in overpayment to such Secured
Creditor, such excess amount shall instead be distributed in respect of the
unpaid Primary Obligations or Secondary Obligations, as the case may be, of the
other Secured Creditors, with each Secured Creditor whose Primary Obligations
or Secondary Obligations, as the case may be, have not been paid in full to
receive an amount equal to such excess amount multiplied by a fraction the
numerator of which is the unpaid Primary Obligations or Secondary Obligations,
as the case may be, of such Secured Creditor and the denominator of which is
the unpaid Primary Obligations or Secondary Obligations, as the case may be, of
all Secured Creditors entitled to such distribution.


 


(c)                                  Each of the Secured Creditors,
by their acceptance of the benefits of the Security Documents, agrees and
acknowledges that if the Lenders receive a distribution on account of undrawn
amounts with respect to Letters of Credit issued under this Agreement (which
shall only occur after all outstanding Revolving Facility Loans and
unreimbursed L/C Disbursements have been paid in full), such amounts shall be
paid to the Administrative Agent and held by it, for the equal and ratable
benefit of the Lenders, as cash security for the repayment of all obligations
owing to the Lenders as such.  If any
amounts are held as cash security pursuant to the immediately preceding
sentence, then upon the termination of all outstanding Letters of Credit, and
after the application of all such cash security to the repayment of all
obligations owing to the Lenders after giving effect to the termination of all
such Letters of Credit, if there remains any excess cash, such excess cash
shall be returned by the Administrative Agent to the Collateral Agent for
distribution in accordance with Section 9.23(a).


 


(d)                                 All payments required to be made
hereunder shall be made (x) if to the Lenders, to the Administrative Agent for
the account of the Lenders and (y) if to the Swap Counterparties, to the
trustee, paying agent or other similar representative (each, a “Representative”)
for the Swap Counterparties or, in the absence of such a Representative,
directly to the Swap Counterparties.


 


(e)                                  For purposes of applying
payments received in accordance with this Section 9.23, the Collateral
Agent shall be entitled to rely upon (i) the Administrative Agent and (ii) the
Representative or, in the absence of such a Representative, upon the Swap
Counterparties for a determination (which the Administrative Agent, each
Representative and the Swap Counterparties agree (or shall agree) to provide
upon request of the Collateral Agent) of the outstanding Primary Obligations and
Secondary Obligations owed to the Lenders or the Swap


 


146





















 


Counterparties, as the case may be.  Unless it has received written notice from a
Lender or a Swap Counterparty to the contrary, the Administrative Agent and
each Representative, in furnishing information pursuant to the preceding
sentence, and the Collateral Agent, in acting hereunder, shall be entitled to
assume that no Secondary Obligations are outstanding. Unless it has written
notice from a Swap Counterparty to the contrary, the Collateral Agent, in
acting hereunder, shall be entitled to assume that no Swap Agreements are in
existence.


 


(f)                                    It is understood that Holdings
and the other Loan Parties shall remain jointly and severally liable to the extent
of any deficiency between the amount of the proceeds of the Collateral and the
aggregate amount of the Secured Obligations.


 


ARTICLE X


 


Collection Allocation Mechanism


 


SECTION 10.01  Implementation of CAM.  (a)  On
the CAM Exchange Date, (i) the Commitments shall automatically and without
further act be terminated as provided in Section 7.01, (ii) each Revolving
Facility Lender shall immediately be deemed to have acquired (and shall
promptly make payment therefor to the Administrative Agent in accordance with Section 2.04(c))
participations in the Swingline Euro Loans (other than any Swingline Euro Loan
in respect of which Revolving Facility Lenders have funded their purchase of
participations pursuant to Section 2.04(c)) in an amount equal to such Lender’s
ratable share (based on the respective Revolving Facility Commitments of the
Revolving Facility Lenders immediately prior to the CAM Exchange Date) of each
Swingline Euro Loan outstanding on such date, (iii) each Revolving Facility
Lender shall immediately be deemed to have acquired (and shall promptly make
payment therefor to the Administrative Agent in accordance with Section 2.04(c))
participations in the Swingline Dollar Loans (other than any Swingline Dollar
Loan in respect of which the Revolving Facility Lenders have funded their
purchase of participations pursuant to Section 2.04(c)) in an amount equal
to such Lender’s Revolving Facility Percentage of each Swingline Dollar Loan
outstanding on such date, (iv) simultaneously with the automatic conversions
pursuant to clause (v) below, the Lenders shall automatically and without
further act (and without regard to the provisions of Section 9.04) be
deemed to have exchanged interests in the Loans (other than the Swingline
Loans), Swingline Loans and undrawn Letters of Credit, such that in lieu of the
interest of each Lender in each Loan and Letter of Credit in which it shall
participate as of such date (including such Lender’s interest in the
Obligations of each Loan Party in respect of each such Loan and undrawn Letter
of Credit), such Lender shall hold an interest in every one of the Loans (other
than the Swingline Loans) and a participation in every one of the Swingline
Loans and undrawn Letters of Credit (including the Obligations of each Loan Party
in respect of each such Loan and each Reserve Account established pursuant to Section 10.02
below), whether or not such Lender shall previously have participated therein,
equal to such Lender’s CAM Percentage thereof and (v) simultaneously with the
deemed exchange of interests pursuant to clause (iv) above, the interests in
the Loans to be received in such deemed exchange shall, automatically and with
no further action required, be converted into the Dollar Equivalent, determined
using the Exchange Rate calculated as of such date, of such amount and on and
after such date all amounts accruing and owed to the Lenders in respect of such
Obligations shall accrue and be payable in Dollars at the rate otherwise
applicable hereunder.  Each Lender and
each Loan Party hereby consents and agrees to the CAM Exchange,


 


147





















 


and each Lender agrees that the CAM Exchange shall be binding upon its
successors and assigns and any person that acquires a participation in its interests
in any Loan.  Each Loan Party agrees from
time to time to execute and deliver to the Administrative Agent all such
promissory notes and other instruments and documents as the Administrative
Agent shall reasonably request to evidence and confirm the respective interests
of the Lenders after giving effect to the CAM Exchange, and each Lender agrees
to surrender any promissory notes originally received by it in connection with
its Loans hereunder to the Administrative Agent against delivery of any promissory
notes evidencing its interests in the Loans so executed and delivered; provided,
however, that the failure of any Loan Party to execute or deliver or of
any Lender to accept any such promissory note, instrument or document shall not
affect the validity or effectiveness of the CAM Exchange.


 


(b)                                 As a result of the CAM Exchange,
upon and after the CAM Exchange Date, each payment received by the
Administrative Agent or the Collateral Agent pursuant to any Loan Document in
respect of the Obligations, and each distribution made by the Collateral Agent
pursuant to any Security Document in respect of the Obligations, shall be
distributed to the Lenders pro rata in
accordance with their respective CAM Percentages.  Any direct payment received by a Lender upon or
after the CAM Exchange Date, including by way of set-off, in respect of an
Obligation shall be paid over to the Administrative Agent for distribution to
the Lenders in accordance herewith.


 


SECTION 10.02  Letters of Credit.  (a)  In
the event that on the CAM Exchange Date any Letter of Credit shall be
outstanding and undrawn in whole or in part, each Revolving Facility Lender
shall promptly pay over to the Administrative Agent, in immediately available
funds, an amount in Dollars equal to such Lender’s Revolving Facility
Percentage of such undrawn face amount, together with interest thereon from the
CAM Exchange Date to the date on which such amount shall be paid to the
Administrative Agent at the rate that would be applicable at the time to an ABR
Revolving Loan in a principal amount equal to such undrawn face amount or
unreimbursed drawing, as applicable.  The
Administrative Agent shall establish a separate account (each, a “Reserve
Account”) or accounts for each Lender for the amounts received with respect
to each such Letter of Credit pursuant to the preceding sentence.  The Administrative Agent shall deposit in
each Lender’s Reserve Account, as the case may be, such Lender’s CAM Percentage
of the amounts received from the Revolving Facility Lenders as provided
above.  The Administrative Agent shall
have sole dominion and control over each Reserve Account, and the amounts
deposited in each Reserve Account shall be held in such Reserve Account until
withdrawn as provided in paragraph (b), (c), (d) or (e) below.  The Administrative Agent shall maintain
records enabling it to determine the amounts paid over to it and deposited in
the Reserve Accounts in respect of each Letter of Credit and the amounts on
deposit in respect of each Letter of Credit attributable to each Lender’s CAM
Percentage.  The amounts held in each
Lender’s Reserve Account shall be held as a reserve against the Revolving L/C
Exposures, shall be the property of such Lender, shall not constitute Loans to
or give rise to any claim of or against any Loan Party and shall not give rise
to any obligation on the part of any Borrower to pay interest to such Lender,
it being agreed that the reimbursement obligations in respect of Letters of
Credit shall arise only at such times as drawings are made thereunder, as
provided in Section 2.05.


 


148





















 


(b)                                 In the event that after the CAM
Exchange Date any drawing shall be made in respect of a Letter of Credit, the
Administrative Agent shall, at the request of the applicable Issuing Bank
withdraw from the Reserve Account of each Lender any amounts, up to the amount
of such Lender’s CAM Percentage of such drawing or payment, deposited in
respect of such Letter of Credit and remaining on deposit and deliver such amounts,
to such Issuing Bank in satisfaction of the reimbursement obligations of the
respective Lenders under Section 2.05(d) (but not of the Applicant Party
under Section 2.05(e)).  In the
event that any Revolving Facility Lender shall default on its obligation to pay
over any amount to the Administrative Agent as provided in this Section 10.02,
the applicable Issuing Bank shall have a claim against such Revolving Facility
Lender to the same extent as if such Lender had defaulted on its obligations
under Section 2.05(d), but shall have no claim against any other Lender in
respect of such defaulted amount, notwithstanding the exchange of interests in
the applicable Borrower’s reimbursement obligations pursuant to Section 10.01.  Each other Lender shall have a claim against
such defaulting Revolving Facility Lender for any damages sustained by it as a
result of such default, including, in the event that such Letter of Credit
shall expire undrawn, its CAM Percentage of the defaulted amount.


 


(c)                                  In the event that after the CAM
Exchange Date any Letter of Credit shall expire undrawn, the Administrative
Agent shall withdraw from the Reserve Account of each Lender the amount
remaining on deposit therein in respect of such Letter of Credit and distribute
such amount to such Lender.


 


(d)                                 Notwithstanding any provision of
any Loan Document to the contrary, with the prior written approval of the
Administrative Agent and the respective Issuing Bank (not to be unreasonably
withheld), any Lender may withdraw the amount held in its Reserve Account in
respect of the undrawn amount of any Letter of Credit.  Without limiting the generality of the
foregoing sentence, but in order to assure certainty, the Administrative Agent
and the Issuing Bank shall not withhold their consent in the case of (i) an
investment company registered under the U.S. Investment Company Act of 1940, or
(ii) an entity that asserts that it seeks to avoid being deemed to be engaged
in a U.S. trade or business.  Any Lender
making such a withdrawal shall be unconditionally obligated, in the event there
shall subsequently be a drawing under such Letter of Credit to pay over to the
Administrative Agent, for the account of the Issuing Bank on demand, its CAM
Percentage of such drawing or payment.


 


(e)                                  Pending the withdrawal by any
Lender of any amounts from either of its Reserve Accounts as contemplated by
the above paragraphs, the Administrative Agent will, at the direction of such
Lender and subject to such rules as the Administrative Agent may prescribe for
the avoidance of inconvenience, invest such amounts in Permitted
Investments.  Each Lender that has not
withdrawn all of the amounts in its Reserve Accounts as provided in paragraph
(d) above shall have the right, at intervals reasonably specified by the
Administrative Agent, to withdraw the earnings on investments so made by the
Administrative Agent with amounts remaining in its Reserve Accounts and to
retain such earnings for its own account.


 


[Signature Pages
Follow]


 


149





















 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first written above.


 


	
   

  	
  NEW SKIES
  HOLDING B.V. 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ W.N. Kamhawi

  	
   

  
	
   

  	
   

  	
  Name: W.N. Kamhawi

  
	
   

  	
   

  	
  Title: Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ JCM Verrman

  	
   

  
	
   

  	
   

  	
  Name:
  MeesPierson Intertrust B.V.

  
	
   

  	
   

  	
  Title: Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ : L.F.M.
  Heine

  	
   

  
	
   

  	
   

  	
  Name:
  MeesPierson Intertrust B.V.

  
	
   

  	
   

  	
  Title: Managing
  Director

  
	
   

  	
   

  	
   

  
					



 





















 


	
   

  	
  NEW SKIES
  SATELLITES B.V.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ W.N. Kamhawi

  	
   

  
	
   

  	
   

  	
  Name: W.N.
  Kamhawi

  
	
   

  	
   

  	
  Title: Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ JCM Verrman

  	
   

  
	
   

  	
   

  	
  Name:
  MeesPierson Intertrust B.V.

  
	
   

  	
   

  	
  Title: Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ : L.F.M.
  Heine

  	
   

  
	
   

  	
   

  	
  Name:
  MeesPierson Intertrust B.V.

  
	
   

  	
   

  	
  Title: Managing Director

  
	
   

  	
   

  	
   

  
					



 





















 


	
   

  	
  DEUTSCHE BANK AG, NEW
  YORK BRANCH,

  as Administrative Agent, as Issuing Bank 

  and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory
  Shefrin

  	
   

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Susan
  LaFevre

  	
   

  
	
   

  	
   

  	
  Title: Director

  



 





















 


	
   

  	
  ABN AMRO BANK N.V.,

  as Syndication Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Linda
  Boardman

  	
   

  
	
   

  	
   

  	
  Title: Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carol
  Goldstein

  	
   

  
	
   

  	
   

  	
  Title: Managing
  Director

  



 





















 


	
   

  	
  DEUTSCHE BANK
  SECURITIES INC.,

  as a Joint Lead Arranger and a Joint Book

  Running Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Catherine
  Madigan

  	
   

  
	
   

  	
   

  	
  Title: Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Elizabeth A.
  Chang

  	
   

  
	
   

  	
   

  	
  Title: Director

  



 





















 


	
   

  	
  ABN AMRO INCORPORATED,

  as a Joint Lead Manager and a Joint Book

  Running Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John
  Darmanin

  	
   

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Kanter

  	
   

  
	
   

  	
   

  	
  Title: Managing
  Director

  



 





















 


	
   

  	
  BNP PARIBAS SA,

  as a Co-Documentation Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Francis
  Hartiwnaw

  	
   

  
	
   

  	
   

  	
  Title: Head of
  Media Telecom Finance

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Philippe-Olivier Rousseau

  	
   

  
	
   

  	
   

  	
  Title: Managing
  Director

  BNP Paribas
  Media Telecom Finance

  



 





















 


	
   

  	
  ING BANK N.V.,

  as a Co-Documentation Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Wim
  Steenbakkers

  	
   

  
	
   

  	
   

  	
  Title: Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Boyles

  	
   

  
	
   

  	
   

  	
  Title: Managing
  Director

  



 





















 


	
   

  	
  CREDIT INDUSTRIEL ET
  COMMERCIAL,

  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Marcus
  Edward

  	
   

  
	
   

  	
   

  	
  Title: Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Anthony Rock

  	
   

  
	
   

  	
   

  	
  Title: Vice
  President