Exhibit 10.1


 




 





[FORM OF]


 


$2,571,810,000


 


CREDIT AGREEMENT


 


Dated as of August 20, 2004,


 


as Amended and Restated as of [           ], 2005


 


among


 


PANAMSAT CORPORATION, 

as the Borrower


 


The Several Lenders

from Time to Time Parties Hereto


 


CITICORP USA, INC.,

as Administrative Agent


 


CITIGROUP GLOBAL MARKETS INC.,

as Joint Lead Arranger and Joint Bookrunner


 


MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED

as Joint Lead Arranger, Joint Bookrunner and Syndication Agent


 


and


 


MORGAN STANLEY SENIOR FUNDING,
INC., 

as Joint Lead Arranger, Joint Bookrunner and Documentation Agent


 


 


Cahill Gordon & Reindel LLP

80 Pine Street

New York, New York  10005




 





 





















 


TABLE OF CONTENTS


 


 


	
  SECTION 1.

  	
  DEFINITIONS

  	
   

  
	
   

  	
  1.1.

  	
  Defined Terms

  	
   

  
	
   

  	
  1.2.

  	
  Exchange Rates

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  AMOUNT AND TERMS OF CREDIT

  	
   

  
	
   

  	
  2.1.

  	
  Commitments

  	
   

  
	
   

  	
  2.2.

  	
  Minimum Amount of Each
  Borrowing; Maximum Number of Borrowings

  	
   

  
	
   

  	
  2.3.

  	
  Notice of Borrowing

  	
   

  
	
   

  	
  2.4.

  	
  Disbursement of Funds

  	
   

  
	
   

  	
  2.5.

  	
  Repayment of Loans;
  Evidence of Debt

  	
   

  
	
   

  	
  2.6.

  	
  Conversions and
  Continuations

  	
   

  
	
   

  	
  2.7.

  	
  Pro Rata Borrowings

  	
   

  
	
   

  	
  2.8.

  	
  Interest

  	
   

  
	
   

  	
  2.9.

  	
  Interest Periods

  	
   

  
	
   

  	
  2.10.

  	
  Increased Costs,
  Illegality, etc

  	
   

  
	
   

  	
  2.11.

  	
  Compensation

  	
   

  
	
   

  	
  2.12.

  	
  Change of Lending
  Office

  	
   

  
	
   

  	
  2.13.

  	
  Notice of Certain
  Costs

  	
   

  
	
   

  	
  2.14.

  	
  Incremental
  Facilities

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  LETTERS OF CREDIT

  	
   

  
	
   

  	
  3.1.

  	
  Letters of Credit

  	
   

  
	
   

  	
  3.2.

  	
  Letter of Credit
  Requests

  	
   

  
	
   

  	
  3.3.

  	
  Letter of Credit
  Participations

  	
   

  
	
   

  	
  3.4.

  	
  Agreement to Repay
  Letter of Credit Drawings

  	
   

  
	
   

  	
  3.5.

  	
  Increased Costs

  	
   

  
	
   

  	
  3.6.

  	
  Successor Letter of
  Credit Issuer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  FEES; COMMITMENTS

  	
   

  
	
   

  	
  4.1.

  	
  Fees

  	
   

  
	
   

  	
  4.2.

  	
  Voluntary Reduction of
  Revolving Credit Commitments

  	
   

  
	
   

  	
  4.3.

  	
  Mandatory Termination
  of Commitments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  PAYMENTS

  	
   

  
	
   

  	
  5.1.

  	
  Voluntary Prepayments

  	
   

  
	
   

  	
  5.2.

  	
  Mandatory Prepayments

  	
   

  
	
   

  	
  5.3.

  	
  Method and Place of
  Payment

  	
   

  
	
   

  	
  5.4.

  	
  Net Payments

  	
   

  
	
   

  	
  5.5.

  	
  Computations of
  Interest and Fees

  	
   

  
	
   

  	
  5.6.

  	
  Limit on Rate of
  Interest

  	
   

  
					



 


i





















 


	
  SECTION 6.

  	
  CONDITIONS
  PRECEDENT TO INITIAL BORROWING ON THE AMENDMENT EFFECTIVE DATE.

  	
   

  
	
   

  	
  6.1.

  	
  Credit Documents

  	
   

  
	
   

  	
  6.2.

  	
  Amendment Agreement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  CONDITIONS
  PRECEDENT TO ALL CREDIT EVENTS.

  	
   

  
	
   

  	
  7.1.

  	
  No Default;
  Representations and Warranties

  	
   

  
	
   

  	
  7.2.

  	
  Notice of Borrowing;
  Letter of Credit Request

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  REPRESENTATIONS,
  WARRANTIES AND AGREEMENTS

  	
   

  
	
   

  	
  8.1.

  	
  Corporate Status

  	
   

  
	
   

  	
  8.2.

  	
  Corporate Power and
  Authority

  	
   

  
	
   

  	
  8.3.

  	
  No Violation

  	
   

  
	
   

  	
  8.4.

  	
  Litigation

  	
   

  
	
   

  	
  8.5.

  	
  Margin Regulations

  	
   

  
	
   

  	
  8.6.

  	
  Governmental Approvals

  	
   

  
	
   

  	
  8.7.

  	
  Investment Company Act

  	
   

  
	
   

  	
  8.8.

  	
  True and Complete
  Disclosure

  	
   

  
	
   

  	
  8.9.

  	
  Financial Condition;
  Financial Statements

  	
   

  
	
   

  	
  8.10.

  	
  Tax Returns and
  Payments

  	
   

  
	
   

  	
  8.11.

  	
  Compliance with ERISA

  	
   

  
	
   

  	
  8.12.

  	
  Subsidiaries

  	
   

  
	
   

  	
  8.13.

  	
  Patents, etc

  	
   

  
	
   

  	
  8.14.

  	
  Environmental Laws

  	
   

  
	
   

  	
  8.15.

  	
  Properties

  	
   

  
	
   

  	
  8.16.

  	
  Solvency

  	
   

  
	
   

  	
  8.17.

  	
  Public
  Utility Holding Company Act

  	
   

  
	
   

  	
  8.18.

  	
  FCC Licenses, Etc

  	
   

  
	
   

  	
  8.19.

  	
  Satellites

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  AFFIRMATIVE COVENANTS

  	
   

  
	
   

  	
  9.1.

  	
  Information Covenants

  	
   

  
	
   

  	
  9.2.

  	
  Books, Records and
  Inspections

  	
   

  
	
   

  	
  9.3.

  	
  Maintenance of Insurance

  	
   

  
	
   

  	
  9.4.

  	
  Payment of Taxes

  	
   

  
	
   

  	
  9.5.

  	
  Consolidated Corporate
  Franchises

  	
   

  
	
   

  	
  9.6.

  	
  Compliance with
  Statutes, Regulations, etc

  	
   

  
	
   

  	
  9.7.

  	
  ERISA

  	
   

  
	
   

  	
  9.8.

  	
  Maintenance of
  Properties

  	
   

  
	
   

  	
  9.9.

  	
  Transactions with
  Affiliates

  	
   

  
	
   

  	
  9.10.

  	
  End of Fiscal Years;
  Fiscal Quarters

  	
   

  
	
   

  	
  9.11.

  	
  Additional Guarantors
  and Grantors

  	
   

  
	
   

  	
  9.12.

  	
  Pledges
  of Additional Stock and Evidence of Indebtedness

  	
   

  
	
   

  	
  9.13.

  	
  Use of Proceeds

  	
   

  
	
   

  	
  9.14.

  	
  Changes in Business

  	
   

  
	
   

  	
  9.15.

  	
  Further Assurances

  	
   

  
					



 


ii





















 


	
   

  	
  9.16.

  	
  Access and Command
  Codes

  	
   

  
	
   

  	
  9.17.

  	
  TTC&M Providers

  	
   

  
	
   

  	
  9.18.

  	
  Maintenance of Rating
  of Facilities

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  NEGATIVE COVENANTS

  	
   

  
	
   

  	
  10.1.

  	
  Limitation on
  Indebtedness

  	
   

  
	
   

  	
  10.2.

  	
  Limitation on Liens

  	
   

  
	
   

  	
  10.3.

  	
  Limitation on
  Fundamental Changes

  	
   

  
	
   

  	
  10.4.

  	
  Limitation on Sale of
  Assets

  	
   

  
	
   

  	
  10.5.

  	
  Limitation on
  Investments

  	
   

  
	
   

  	
  10.6.

  	
  Limitation on
  Dividends

  	
   

  
	
   

  	
  10.7.

  	
  Limitations on Debt
  Payments and Amendments

  	
   

  
	
   

  	
  10.8.

  	
  Limitations on Sale
  Leasebacks

  	
   

  
	
   

  	
  10.9.

  	
  Consolidated Total
  Debt to Consolidated EBITDA Ratio

  	
   

  
	
   

  	
  10.10.

  	
  Consolidated EBITDA
  to Consolidated Interest Expense Ratio

  	
   

  
	
   

  	
  10.11.

  	
  Capital
  Expenditures

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.

  	
  EVENTS OF DEFAULT

  	
   

  
	
   

  	
  11.1.

  	
  Payments

  	
   

  
	
   

  	
  11.2.

  	
  Representations, etc

  	
   

  
	
   

  	
  11.3.

  	
  Covenants

  	
   

  
	
   

  	
  11.4.

  	
  Default Under Other
  Agreements

  	
   

  
	
   

  	
  11.5.

  	
  Bankruptcy, etc

  	
   

  
	
   

  	
  11.6.

  	
  ERISA

  	
   

  
	
   

  	
  11.7.

  	
  Guarantee

  	
   

  
	
   

  	
  11.8.

  	
  Pledge Agreements

  	
   

  
	
   

  	
  11.9.

  	
  Security Agreements

  	
   

  
	
   

  	
  11.10.

  	
  Mortgages

  	
   

  
	
   

  	
  11.11.

  	
  Judgments

  	
   

  
	
   

  	
  11.12.

  	
  Change of Control

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12.

  	
  THE ADMINISTRATIVE AGENT

  	
   

  
	
   

  	
  12.1.

  	
  Appointment

  	
   

  
	
   

  	
  12.2.

  	
  Delegation of Duties

  	
   

  
	
   

  	
  12.3.

  	
  Exculpatory
  Provisions

  	
   

  
	
   

  	
  12.4.

  	
  Reliance by
  Administrative Agent

  	
   

  
	
   

  	
  12.5.

  	
  Notice of Default

  	
   

  
	
   

  	
  12.6.

  	
  Non-Reliance on
  Administrative Agent and Other Lenders

  	
   

  
	
   

  	
  12.7.

  	
  Indemnification

  	
   

  
	
   

  	
  12.8.

  	
  Administrative Agent
  in its Individual Capacity

  	
   

  
	
   

  	
  12.9.

  	
  Successor Agent

  	
   

  
	
   

  	
  12.10.

  	
  Withholding Tax

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 13.

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
  13.1.

  	
  Amendments and
  Waivers

  	
   

  
	
   

  	
  13.2.

  	
  Notices

  	
   

  
						



 


iii





















 


	
   

  	
  13.3.

  	
  No Waiver; Cumulative
  Remedies

  	
   

  
	
   

  	
  13.4.

  	
  Survival of
  Representations and Warranties

  	
   

  
	
   

  	
  13.5.

  	
  Payment of Expenses
  and Taxes

  	
   

  
	
   

  	
  13.6.

  	
  Successors and
  Assigns; Participations and Assignments

  	
   

  
	
   

  	
  13.7.

  	
  Replacements of
  Lenders under Certain Circumstances

  	
   

  
	
   

  	
  13.8.

  	
  Adjustments; Set-off

  	
   

  
	
   

  	
  13.9.

  	
  Counterparts

  	
   

  
	
   

  	
  13.10.

  	
  Severability

  	
   

  
	
   

  	
  13.11.

  	
  Integration

  	
   

  
	
   

  	
  13.12.

  	
  GOVERNING LAW

  	
   

  
	
   

  	
  13.13.

  	
  Submission to
  Jurisdiction; Waivers

  	
   

  
	
   

  	
  13.14.

  	
  Acknowledgments

  	
   

  
	
   

  	
  13.15.

  	
  WAIVERS
  OF JURY TRIAL

  	
   

  
	
   

  	
  13.16.

  	
  Confidentiality

  	
   

  
	
   

  	
  13.17.

  	
  Citigroup Direct
  Website Communications

  	
   

  
	
   

  	
  13.18.

  	
  USA PATRIOT Act

  	
   

  



 


iv





















 


	
  SCHEDULES(1)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule
  A

  	
  Satellite
  Risk Management Program

  	
   

  
	
  Schedule
  1.1 (a)

  	
  Existing
  Letters of Credit

  	
   

  
	
  Schedule
  1.1 (b)

  	
  Mortgaged
  Properties

  	
   

  
	
  Schedule 1.1
  (c)

  	
  Commitments
  and Addresses of Lenders

  	
   

  
	
  Schedule
  1.1 (d)

  	
  Excluded
  Subsidiaries

  	
   

  
	
  Schedule
  1.1 (e)

  	
  Historical
  Adjustments

  	
   

  
	
  Schedule 8.12

  	
  Subsidiaries

  	
   

  
	
  Schedule 8.18

  	
  FCC
  Licenses

  	
   

  
	
  Schedule 8.19

  	
  Satellites

  	
   

  
	
  Schedule 10.1

  	
  Closing
  Date Indebtedness

  	
   

  
	
  Schedule 10.2

  	
  Closing
  Date Liens

  	
   

  
	
  Schedule 10.5

  	
  Closing
  Date Investments

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS(1)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit
  C

  	
  Form
  of Guarantee

  	
   

  
	
  Exhibit
  D

  	
  Form
  of Mortgage (Real Property)

  	
   

  
	
  Exhibit
  E

  	
  Form
  of Perfection Certificate

  	
   

  
	
  Exhibit
  F

  	
  Form
  of Lender Pledge Agreement

  	
   

  
	
  Exhibit
  F-1

  	
  Form
  of Shared Pledge Agreement

  	
   

  
	
  Exhibit
  G

  	
  Form
  of Lender Security Agreement

  	
   

  
	
  Exhibit
  G-1

  	
  Form
  of Shared Security Agreement

  	
   

  
	
  Exhibit
  H

  	
  Form
  of Letter of Credit Request

  	
   

  
	
  Exhibit I-1

  	
  Form
  of Legal Opinion of Simpson Thacher & Bartlett LLP

  	
   

  
	
  Exhibit I-2

  	
  Form
  of Legal Opinion of General Counsel

  	
   

  
	
  Exhibit
  I-3

  	
  Form
  of Legal Opinion of Goldberg, Godles, Weiner & Wright

  	
   

  
	
  Exhibit
  I-4

  	
  Form
  of Legal Opinions of Local Counsel

  	
   

  
	
  Exhibit
  I-5

  	
  Form
  of Legal Opinion of Milbank, Tweed, Hadley & McCloy LLP

  	
   

  
	
  Exhibit J

  	
  Form
  of Closing Certificate

  	
   

  
	
  Exhibit K

  	
  Form
  of Assignment and Acceptance

  	
   

  
	
  Exhibit L-1

  	
  Form
  of Promissory Note (Tranche A Term Loans)

  	
   

  
	
  Exhibit
  L-2

  	
  Form
  of Promissory Note (Tranche B-1 Term Loans and New Tranche B-1 Term Loans)

  	
   

  
	
  Exhibit L-3

  	
  Form
  of Promissory Note (Revolving Credit and Swingline Loans)

  	
   

  
	
  Exhibit
  M

  	
  Form
  of Joinder Agreement

  	
   

  
	
  Exhibit
  N

  	
  Form
  of Intercreditor and Collateral Trust Agreement

  	
   

  
				



 










(1)                                  Schedules
(other than Schedule 8.12) and Exhibits (other than Exhibit L-2) are not being
amended or restated.


 


v





















 


CREDIT AGREEMENT, dated as of August 20,
2004, as amended and restated as of [        ],
2005 (as amended, restated, supplemented or otherwise modified from time to
time, this “Agreement”), among PANAMSAT CORPORATION (the “Borrower”),
the lending institutions from time to time parties hereto (each a “Lender”
and, collectively, the “Lenders”), CITICORP USA, INC., as Administrative
Agent, CITIGROUP GLOBAL MARKETS
INC., as Joint Lead Arranger and Joint Bookrunner, MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED, as
Joint Lead Arranger, Joint Bookrunner and Syndication Agent (such term
and each other capitalized term used but not defined in this introductory
statement having the meaning provided in Section 1), and MORGAN STANLEY
SENIOR FUNDING, INC., as Joint Lead
Arranger, Joint Bookrunner and Documentation Agent.


 


WHEREAS, the Borrower, the Lenders party thereto from time to time (the
“Original Lenders”), Citicorp USA, Inc., as administrative agent,
Citigroup Global Markets Inc., as joint lead arranger and joint bookrunner,
Credit Suisse First Boston, acting
through its Cayman Islands Branch, as joint lead arranger, joint bookrunner and
syndication agent, and Bear, Stearns & Co. Inc., Lehman Brothers
Inc. and Bank of America, N.A., as co-documentation agents, originally entered
into this Agreement on August 20, 2004 (the “Original Credit Agreement”)
and the parties hereto desire to amend and restate this Agreement on and subject
to the terms and conditions set forth herein and in the Amendment Agreement
dated as of the date hereof (the “Amendment Agreement”) among the
Agents, the Borrower, the Guarantors and Lenders party thereto;


 


WHEREAS, in connection with the Acquisition,
(a)(i) acquisition vehicles (collectively, ”Holdco”) controlled by
the Sponsors received an amount in cash as common equity from the Sponsors,
which together with equity (including rollover equity) issued to the Management
Investors (as defined below), equaled $550,000,000 (the “Equity Investments”),
(ii) PAS Merger Sub, Inc. (“PAS Merger Sub”), a wholly-owned
subsidiary of The DIRECTV Group, Inc. (“DirecTV”) merged with and into
the Borrower, with the Borrower continuing as the surviving corporation and each
share of common stock of the Borrower converted into the right to receive
$23.50 in cash (collectively, the “Merger”) and (iii) Holdco and
the Borrower purchased the remaining outstanding shares of the Borrower owned
by DirecTV (together with the Merger, the “Acquisition”); and


 


(b)                                 the
Borrower issued senior notes (the “Senior Notes”) in a Rule 144A or
other private placement (the “Senior Notes Offering”) generating,
collectively, aggregate gross proceeds of up to $1,010,000,000 (or such lesser
amount as was sufficient, together with the Equity Investments and the proceeds
generated from the Credit Facilities on the Closing Date, to consummate the
transactions contemplated by the Acquisition);


 


WHEREAS, in connection with the foregoing,
the Borrower requested the Original Lenders to extend credit in the form of (a)
Term Loans, in an aggregate principal amount of $2,460,000,000 and (b)
Revolving Credit Loans made available to the Borrower at any time and from time
to time prior to the Revolving Credit Maturity Date, in an aggregate principal
amount at any time outstanding not in excess of $250,000,000 less the sum of
(i) the aggregate Letters of Credit Outstanding at such time and
(ii) the aggregate principal amount of all Swingline Loans outstanding at
such time.  The Borrower requested (a)
the Letter of Credit Issuer to issue Letters of Credit at any time and from
time to time prior to the L/C Maturity Date, in an aggregate face


 





















 


amount at any time outstanding
not in excess of $100,000,000 and (b) to deem the letters of credit issued by
the Letter of Credit Issuer pursuant to the 364-day Facility  (the “Existing Letters of Credit”) and
identified on Schedule 1.1(a) to the Original Credit Agreement to be
Letters of Credit for all purposes under this Agreement.  The Borrower requested the Swingline Lender
to extend credit in the form of Swingline Loans at any time and from time to
time prior to the Swingline Maturity Date, in an aggregate principal amount at
any time outstanding not in excess of $25,000,000;


 


WHEREAS, the proceeds of the Term Loans and
any Revolving Credit Loans were used by the Borrower, together with
(a) the net proceeds of the Senior Notes Offering and (b) the net
proceeds of the Equity Investments, on the Closing Date solely to effect the
Acquisition and to pay Transaction Expenses, provided, that the proceeds
of the Tranche A-2 Term Loan were available to be used after the Closing Date
for any subsequent payments necessary pursuant to the Acquisition
Agreement.  Proceeds of Revolving Credit
Loans and Swingline Loans have been and will be used by the Borrower on or
after the Closing Date for general corporate purposes (including Permitted
Acquisitions).  Letters of Credit have
been and will be used by the Borrower for general corporate purposes; and


 


WHEREAS, the parties hereto intend that (a)
the Original Obligations that remain unpaid and outstanding as of the Amendment
Effective Date shall continue to exist under this Agreement on the terms set
forth therein, (b) the loans under the Original Credit Agreement (other than
the Tranche B Term Loans and the Tranche B-1 Term Loans) outstanding as of the
date hereof shall be Loans under and as defined in the Amended and Restated
Credit Agreement on the terms set forth therein, (c) any letters of credit outstanding
under the Original Credit Agreement as of the date hereof shall be Letters of
Credit under and as defined in the Amended and Restated Credit Agreement and
(d) the Original Collateral and the Credit Documents shall continue to secure,
guarantee, support and otherwise benefit the Original Obligations as well as
the other Obligations of the Borrower and the other Credit Parties under the
Amended and Restated Credit Agreement (including, without limitation,
Obligations in respect of the Tranche B-1 Term Loans) and the other Credit Documents.


 


The parties hereto hereby agree as follows:


 


SECTION 1.                                Definitions


 


1.1.                              Defined
Terms.  (a)    As
used herein, the following terms shall have the meanings specified in this Section 1.1
unless the context otherwise requires (it being understood that defined terms
in this Agreement shall include in the singular number the plural and in the
plural the singular):


 


“ABR” shall mean, for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16
of 1%) equal to the greater of (a) the Prime Rate in effect on such day or
(b) the Federal Funds Effective Rate in effect on such day plus 1⁄2 of
1%.  Any change in the ABR due to a
change in the Prime Rate or the Federal Funds Effective Rate shall be effective
as of the opening of business on the effective day of such change in the Prime
Rate or the Federal Funds Effective Rate, respectively.


 


2





















 


“ABR Loan” shall mean each Loan
bearing interest at the rate provided in Section 2.8(a) and, in any event,
shall include all Swingline Loans.


 


“Acceptable Exclusions” shall mean, in
the case of any insurance procured in accordance with Section 9.3(b), (i) 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: (a) any government or sovereign power (de jure or de facto); or (b)
any authority maintaining or using a military, navy or air force; or (c) a
military, navy, or air force; or (d) any agent of any such government, power,
authority or force, (ii) any anti-satellite device, or device employing atomic
or nuclear fission and/or fusion, or device employing laser or directed energy
beams, (iii) 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, (iv) confiscation, nationalization,
seizure, restraint, detention, appropriation, requisition for title or use by
or under the order of any government or governmental authority or agent
(whether secret or otherwise and/or whether civil, military or de facto) or
public or local authority or agency, (v) 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, (vi) electromagnetic or radio frequency interference, except for
physical damage to a Satellite directly resulting from such interference, (vii)
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 a
Satellite, (viii) 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, (ix) any
unlawful seizure or wrongful exercise of control of a Satellite made by any
person or persons acting for political or terrorist purposes, (x) loss of
revenue, incidental damages and/or consequential loss, (xi) extra expenses,
other than the expenses insured under a policy, (xii) third party liability,
(xiii) loss of a redundant component(s) that does not cause a transponder
failure, and (xiv) such other similar exclusions as may be customary for
policies of such type as of the date of issuance or renewal of such coverage.


 


“Acquired EBITDA” shall mean, with
respect to any Acquired Entity or Business, any Converted Restricted Subsidiary,
any Sold Entity or Business or any Converted Unrestricted Subsidiary (any of
the foregoing, a “Pro Forma Entity”) for any period, the amount for such
period of Consolidated EBITDA of such Pro Forma Entity (determined using such
definitions as if references to the Borrower and its Subsidiaries therein were
to such Pro Forma Entity and its Subsidiaries), all as determined on a consolidated
basis for such Pro Forma Entity in accordance with GAAP.


 


“Acquired Entity or Business” shall
have the meaning provided in the definition of the term “Consolidated EBITDA”.


 


“Acquisition” shall have the meaning
provided in the preamble hereto.


 


“Acquisition Agreement” shall mean the
Transaction Agreement, dated as of April 20, 2004, among Constellation, LLC,
the Borrower, DirecTV and PAS Merger Sub, as amended from time to time in accordance
therewith.


 


3





















 


“Adjusted Total Revolving Credit
Commitment” shall mean at any time the Total Revolving Credit Commitment
less the aggregate Revolving Credit Commitments of all Defaulting Lenders.


 


“Adjusted Total Term Loan Commitment”
shall mean at any time the Total Term Loan Commitment less the Term Loan
Commitments of all Defaulting Lenders.


 


“Administrative Agent” shall mean
Citicorp USA, Inc., as the administrative agent for the Lenders under this
Agreement and the other Credit Documents.


 


“Administrative Agent’s Office” shall
mean in respect of all Credit Events for the account of the Borrower, the office
of the Administrative Agent located at 390 Greenwich Street, New York, New York
10013, or such other office as the Administrative Agent may hereafter designate
in writing as such to the other parties hereto.


 


“Administrative Questionnaire” shall
have the meaning provided in Section 13.6(b).


 


“Affiliate” shall mean, with respect
to any Person, any other Person directly or indirectly controlling, controlled
by, or under direct or indirect common control with such Person.  A Person shall be deemed to control a
corporation if such Person possesses, directly or indirectly, the power
(a) to vote 10% or more of the securities having ordinary voting power for
the election of directors of such corporation or (b) to direct or cause
the direction of the management and policies of such corporation, whether
through the ownership of voting securities, by contract or otherwise.


 


“Agents” shall mean each Joint Lead
Arranger, the Administrative Agent, the Syndication Agent and the Documentation
Agents.


 


“Agent Parties” shall have the meaning
provided in Section 13.17(c).


 


“Aggregate Revolving Credit Outstandings”
shall have the meaning provided in Section 5.2(b).


 


“Agreement” shall mean this Credit
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time.


 


“All Risks Insurance” shall mean, with
respect to any Satellite, insurance for risks of loss of and damage to such
Satellite and the related Associated Equipment, including all components
thereof, at all times during the manufacture, testing, storage, payload processing
and transport of such Satellite and such Associated Equipment, if any, up to
the time of Launch, in the case of such Satellite, and until delivery to the
applicable Satellite Purchaser, in the case of such Associated Equipment.


 


“Amendment Agreement” shall have the
meaning provided in the preamble hereto.


 


4





















 


“Amendment Effective Date” shall have
the meaning ascribed to such term in the Amendment Agreement.


 


“Amortization Amount” shall have the
meaning provided in Section 5.2(c).


 


“Applicable ABR Margin” shall mean at
any date, (a) with respect to each ABR Loan that is a Tranche B-1 Term Loan,
(i) 1.25% per annum on or prior to the date that
is six months after the Amendment Effective Date or at any time that clause
(a)(ii) does not apply and (ii) 1.00% per annum at
any time after the date that is six months after the Amendment Effective Date
if Level V Status is in effect as of the Test Period last ended and (b) with
respect to each ABR Loan that is a Tranche A Term Loan, Revolving Credit Loan
or a Swingline Loan, the applicable percentage per annum
set forth below based upon the Status in effect on such date:


 


	
  Status

  	
   

  	
  Applicable ABR Margin for

  Tranche A Term Loans,

  Revolving Credit and Swingline Loans

  
	
   

  	
   

  	
   

  
	
  Level I Status

  	
   

  	
  1.50%

  
	
  Level II Status

  	
   

  	
  1.25%

  
	
  Level III Status

  	
   

  	
  1.00%

  
	
  Level IV Status

  	
   

  	
  0.75%

  



 


Notwithstanding the foregoing, the term “Applicable
ABR Margin” shall mean, with respect to each ABR Loan that is a Tranche A Term
Loan, Revolving Credit Loan or a Swingline Loan, 1.50% per annum,
during the period from and including the Closing Date to but excluding the Initial
Financial Statement Delivery Date.


 


“Applicable Amount” shall mean on any
date (the “Reference Date”) (A) the sum of, without duplication,
(i) (x) for purposes of Section 10.5(g) and 10.5(i), $125,000,000 and (y)
for purposes of Section 10.6(c)(i) and Section 10.7(a), $75,000,000 and
(ii) other than for purposes of Section 10.6(c), 50% of Cumulative
Consolidated Net Income Available to Stockholders (calculated after giving pro
forma effect to any Investment or prepayment, repurchase or redemption actually
made pursuant to Section 10.5(g), 10.5(i) or 10.7(a)), provided that in
the case of Section 10.7(a) only, the amount in clause (ii) shall only be
available if the Consolidated Total Debt to Consolidated EBITDA Ratio of
Borrower for the Test Period last ended is less than 5.50:1.00, determined on a
pro forma basis after giving effect to any prepayment, repurchase or redemption
actually made pursuant to Section 10.7(a), plus (B) other than for
purposes of Section 10.6(c)(i), the amount of any capital contributions
(other than the Equity Investments) made in cash to the Borrower from and
including the Business Day immediately following the Closing Date through and
including the Reference Date, including contributions with proceeds from the
issuance of equity securities of the Borrower, minus (C) the sum at
the time of determination of (i) the aggregate amount of Investments
previously made since the Closing Date pursuant to Section 10.5(g) or
10.5(i), (ii) the aggregate amount of dividends previously made since the
Closing Date pursuant to Section  10.6(c)(i) and (iii) the aggregate
amount of prepayments, repurchases and redemptions made since the Closing Date
pursuant to Section 10.7(a).


 


5





















 


“Applicable LIBOR Margin” shall mean
at any date, (a) with respect to each LIBOR Loan that is a Tranche B-1 Term
Loan, (i) 2.25% per annum on or prior to the date
that is six months after the Amendment Effective Date and at any time that
clause (a)(ii) does not apply and (ii) 2.00% per annum
at any time after the date that is six months from the Amendment Effective Date
if Level V Status is in effect as of the Test Period last ended and (b) with respect
to each LIBOR Loan that is a Tranche A Term Loan, Revolving Credit Loan or a
Swingline Loan, the applicable percentage per annum set
forth below based upon the Status in effect on such date:


 


	
  Status

  	
   

  	
  Applicable LIBOR Margin for

  Tranche A Term Loans,

  Revolving Credit and Swingline Loans

  
	
   

  	
   

  	
   

  
	
  Level I Status

  	
   

  	
  2.50%

  
	
  Level II Status

  	
   

  	
  2.25%

  
	
  Level III Status

  	
   

  	
  2.00%

  
	
  Level IV Status

  	
   

  	
  1.75%

  



 


Notwithstanding the foregoing, the term “Applicable
LIBOR Margin” shall mean, with respect to each LIBOR Loan that is a Tranche A
Term Loan, Revolving Credit Loan or a Swingline Loan, 2.50% per annum, during the period from and including the Closing
Date to but excluding the Initial Financial Statement Delivery Date.


 


“Approved Fund” shall have the meaning
provided in Section 13.6.


 


“Asset Sale Prepayment Event” shall
mean any sale, transfer or other disposition of any business units, assets or
other property of the Borrower or any of the Restricted Subsidiaries not in the
ordinary course of business (including any sale, transfer or other disposition
of any capital stock of any Subsidiary of the Borrower owned by the Borrower or
a Restricted Subsidiary, including any sale or issuance of any capital stock of
any Restricted Subsidiary). 
Notwithstanding the foregoing, the term “Asset Sale Prepayment Event”
shall not include any transaction permitted by Section 10.4, other than
transactions permitted by Sections 10.4(b) and (e).


 


“Assignment and Acceptance” shall mean
an assignment and acceptance substantially in the form of Exhibit K to
the Original Credit Agreement.


 


“Associated Equipment” shall mean, with
respect to any Satellite, the equipment to be delivered by the Satellite Manufacturer
with respect thereto pursuant to the terms of the applicable Satellite Purchase
Agreement.


 


“Authorized Officer” shall mean the
President, the Chief Financial Officer, the Treasurer or any other senior
officer of the Borrower designated as such in writing to the Administrative
Agent by the Borrower.


 


“Available Commitment” shall mean an
amount equal to the excess, if any, of (a)  the amount of the Total Revolving
Credit Commitment over (b) the sum of (i) the aggregate principal
amount of all Revolving Credit Loans (but not Swingline Loans) then outstanding
and (ii) the aggregate Letters of Credit Outstanding at such time.


 


6





















 


“Bankruptcy Code” shall have the
meaning provided in Section 11.5.


 


“Board” shall mean the Board of
Governors of the Federal Reserve System of the United States (or any
successor).


 


“Borrower” shall have the meaning
provided in the preamble to this Agreement.


 


“Borrowing” shall mean and include (a)
the incurrence of Swingline Loans from the Swingline Lender on a given date,
(b) the incurrence of one Type of Term Loan on the Closing Date (or
resulting from conversions on a given date after the Closing Date) having, in
the case of LIBOR Term Loans, the same Interest Period (provided that
ABR Loans incurred pursuant to Section 2.10(b) shall be considered part of
any related Borrowing of LIBOR Term Loans) and (c) the incurrence of one
Type of Revolving Credit Loan on a given date (or resulting from conversions on
a given date) having, in the case of LIBOR Revolving Credit Loans, the same
Interest Period (provided that ABR Loans incurred pursuant to
Section 2.10(b) shall be considered part of any related Borrowing of LIBOR
Revolving Credit Loans).


 


“Business Day” shall mean any day
excluding Saturday, Sunday and any day that shall be in The City of New York a
legal holiday or a day on which banking institutions are authorized by law or
other governmental actions to close.


 


“Capital Expenditures” shall mean, for
any period, the aggregate of all expenditures (whether paid in cash or accrued
as liabilities and including in all events all amounts expended or capitalized
under Capital Leases, but excluding any amount representing capitalized
interest) by the Borrower and the Restricted Subsidiaries during such period
that, in conformity with GAAP, are or are required to be included as additions
during such period to property, plant or equipment reflected in the consolidated
balance sheet of the Borrower and its Subsidiaries, provided that the
term “Capital Expenditures” shall not include (a) expenditures made in
connection with the replacement, substitution, restoration or repair of assets
(i) to the extent financed from insurance proceeds paid on account of the
loss of or damage to the assets being replaced, restored or repaired or
(ii) with awards of compensation arising from the taking by eminent domain
or condemnation of the assets being replaced, (b) the purchase price of
equipment that is purchased simultaneously 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, (c) the purchase of plant, property or equipment
made within two years of the sale of any asset to the extent purchased with the
proceeds of such sale, (d) expenditures that constitute any part of
Consolidated Lease Expense or (e) capitalized interest in connection with the
purchase of Satellites.


 


“Capital Lease” shall mean, as applied
to any Person, any lease of any property (whether real, personal or mixed) by
that Person as lessee that, in conformity with GAAP, is, or is required to be,
accounted for as a capital lease on the balance sheet of that Person.


 


“Capitalized Lease Obligations” shall
mean, as applied to any Person, all obligations under Capital Leases of such
Person or any of its Subsidiaries, in each case taken at the amount thereof accounted
for as liabilities in accordance with GAAP.


 


7





















 


“Carlyle” shall mean TC Group, L.L.C.
(which operates under the trade name “The Carlyle Group”).


 


“Casualty Event” shall mean, with
respect to any property (including any Satellite) of any Person, any loss of or
damage to, or any condemnation or other taking by a Governmental Authority of,
such property for which such Person or any of its Restricted Subsidiaries
receives insurance proceeds, or proceeds of a condemnation award or other compensation.


 


“Change in Law” shall mean
(a) the adoption of any law, treaty, order, policy, rule or regulation
after the Closing Date, (b) any change in any law, treaty, order, policy,
rule or regulation or in the interpretation or application thereof by any Governmental
Authority after the Closing Date or (c) compliance by the Lender with any
guideline, request or directive issued or made after the Closing Date by any
central bank or other governmental or quasi-governmental authority (whether or
not having the force of law).


 


“Change of
Control” shall mean the occurrence of any of the following: (a) the
sale, lease or transfer, in one or a series of related transactions, of all or
substantially all of the assets of the Borrower and its Subsidiaries, taken as
a whole, to any Person other than the Sponsor and/or the Management Investors;
(b) the Borrower becomes aware of (by way of a report or any other filing
pursuant Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise)
the acquisition by any Person or group (within the meaning of Section 13(d)(3)
or Section 14(d)(2) of the Exchange Act, or any successor provision), including
any group acting for the purpose of acquiring, holding or disposing of
securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act),
other than the Sponsor and/or the Management Investors, in a single transaction
or in a related series of transactions, by way of merger, consolidation or
other business combination or purchase of beneficial ownership (within the
meaning of Rule 13d-3 under the Exchange Act, or any successor provision) of
50% or more of the total voting power of the Voting Stock of the Borrower or
any of its direct or indirect parent corporations; and/or (c) a Change of Control
(as defined in the Senior Note Indenture) shall have occurred.


 


“Class”, when used in reference to any
Loan or Borrowing, refers to whether such Loan, or the Loans comprising such
Borrowing, are Revolving Credit Loans, New Revolving Loans, Tranche A Term
Loans, Tranche B-1 Term Loans, New Tranche B-1 Term Loans (of each Series) or
Swingline Loans and, when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Credit Commitment, a New Revolving
Credit Commitment, Tranche A Term Loan Commitment, Tranche B-1 Term Loan
Commitment or a New Tranche B-1 Term Loan Commitment.


 


“Closing Date” shall mean August 20,
2004.


 


“Code” shall mean the Internal Revenue
Code of 1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.  Section
references to the Code are to the Code, as in effect at the Closing Date, and
any subsequent provisions of the Code, amendatory thereof, supplemental thereto
or substituted therefor.


 


8





















 


“Collateral” shall have the meaning
provided in the Lender Pledge Agreement, the Shared Pledge Agreement, the
Lender Security Agreement, the Shared Security Agreement, the Intercreditor and
Collateral Trust Agreement or any Mortgage, as applicable.


 


“Collateral Trustee” shall have the
meaning provided in the Shared Pledge Agreement and the Shared Security
Agreement, as applicable.


 


“Commitment Fee Rate” shall mean, with
respect to the Available Commitment on any day, the rate per annum
set forth below opposite the Status in effect on such day:


 


	
  Status

  	
   

  	
  Commitment Fee Rate

  
	
   

  	
   

  	
   

  
	
  Level I Status

  	
   

  	
  0.50%

  
	
  Level II Status

  	
   

  	
  0.50%

  
	
  Level III Status

  	
   

  	
  0.375%

  
	
  Level IV Status

  	
   

  	
  0.25%

  



 


Notwithstanding
the foregoing, the term “Commitment Fee Rate” shall mean 0.50%, during the
period from and including the Closing Date to but excluding the Initial
Financial Statement Delivery Date.


 


“Commitments” shall mean, with respect
to each Lender, such Lender’s Term Loan Commitment, Revolving Credit Commitment,
New Revolving Credit Commitment or New Tranche B-1 Term Loan Commitment.


 


“Communications” shall have the
meaning provided in Section 13.17(a).


 


“Confidential Information” shall have
the meaning provided in Section 13.16.


 


“Confidential Information Memorandum”
shall mean the Confidential Information Memorandum of the Borrower dated July
2004, delivered to the Original Lenders in connection with this Agreement.


 


“Consolidated Earnings” shall mean,
for any period, “income (loss) before the deduction of income taxes” of the
Borrower and the Restricted Subsidiaries, excluding (a) extraordinary items,
for such period, determined in a manner consistent with the manner in which
such amount was determined in accordance with the audited financial statements
referred to in Section 9.1(a) and (b) the cumulative effect of a change in
accounting principles during such period.


 


“Consolidated EBITDA” shall mean, for
any period, the sum, without duplication, of the amounts for such period of:


 


(a)                                  Consolidated
Earnings plus


 


9





















 


(b)                                 to
the extent (and in the same proportion after giving effect to the exclusion in
clause (ii) in the proviso to this definition) already deducted in arriving at
Consolidated Earnings, the following:


 


(i)                                   interest
expense as used in determining such Consolidated Earnings,


 


(ii)                                depreciation
expense,


 


(iii)                             amortization
expense,


 


(iv)                            extraordinary
losses and unusual or non-recurring charges (including severance, relocation
costs and one-time compensation charges),


 


(v)                               non-cash
charges (provided that if any such non-cash charges represent an accrual
or reserve for potential cash items in any future period, the cash payment in
respect thereof in such future period shall be subtracted from Consolidated
EBITDA to such extent, and excluding amortization of a prepaid cash item that
was paid in a prior period),


 


(vi)                            losses
on asset sales,


 


(vii)                         restructuring
charges or reserves (including costs related to closure of facilities),


 


(viii)                      in
the case of any period that includes a period ending prior to or during the
fiscal year ending December 31, 2005, Transaction Expenses,


 


(ix)                              any
expenses or charges incurred in connection with any issuance of debt, equity
securities or any refinancing transaction or any amendment or other modification
of any debt instrument,


 


(x)                                 any
fees and expenses related to Permitted Acquisitions,


 


(xi)                              any
deductions attributable to minority interests,


 


(xii)                           the
amount of management, monitoring, consulting and advisory fees and related expenses
paid to the Sponsors,


 


(xiii)                        any
impairment charge or asset write-off pursuant to Financial Accounting Standards
Board Statement No. 142 or No. 144 and the amortization of intangibles arising
pursuant to No. 141,


 


(xiv)                       the
Historical Adjustments,


 


(xv)                          foreign
withholding taxes paid or accrued in such period,


 


(xvi)                       any
amounts receivable for such period in connection with contracts that are
attributable to Globo Comunicacõs e Participacöes, Ltda involvement


 


10





















 


in
arrangements with Sky Multi-Country Partners (the “Globo Receivables”),


 


(xvii)                    non-cash
charges related to stock compensation expense and


 


(xviii)                 loss
from the early extinguishment of Indebtedness or hedging obligations or other
derivative instruments; plus


 


(c)                                  to
the extent not otherwise included in arriving at Consolidated Earnings,
collections on investments in sale-type leases during such period;


 


less
to the extent included in arriving at Consolidated Earnings, the sum of the
following amounts for such period of:


 


(a)                                  extraordinary
gains and non-recurring gains,


 


(b)                                 non-cash
gains (excluding any such non-cash gain to the extent it represents the
reversal of an accrual or reserve for potential cash item in any prior period),


 


(c)                                  gains
on asset sales,


 


(d)                                 any
gross profit on sales-type leases included in Consolidated Earnings for such
period, except for collection on investments in sales-type leases during such
period, to the extent included in Consolidated Earnings for such period, and


 


(e)                                  any
income from the early extinguishment of Indebtedness or hedging obligations on
other derivative instruments,


 


in each case,
as determined on a consolidated basis for the Borrower and the Restricted
Subsidiaries in accordance with GAAP, provided that


 


(i)                                     except
as provided in clause (iv) below, there shall be excluded from
Consolidated Earnings for any period the income from continuing operations
before income taxes and extraordinary items of all Unrestricted Subsidiaries
for such period to the extent otherwise included in Consolidated Earnings,
except to the extent actually received in cash by the Borrower or its
Restricted Subsidiaries during such period through dividends or other distributions,


 


(ii)                                  there
shall be excluded from Consolidated Earnings for any period the non-cash loss
from continuing operations before income taxes and extraordinary items of each
Joint Venture for such period corresponding to the percentage of capital stock
or other equity interests in such Joint Venture owned by the Borrower or its
Restricted Subsidiaries,


 


(iii)                               there
shall be excluded in determining Consolidated EBITDA non-operating currency
transaction gains and losses (including the net loss or gain resulting from
Hedge Agreements for currency exchange risk),


 


11





















 


(iv)                              (x) there
shall be included in determining Consolidated EBITDA for any period
(A) the Acquired EBITDA of any Person, property, business or asset (other
than an Unrestricted Subsidiary) acquired to the extent not subsequently sold,
transferred or otherwise disposed of (but not including the Acquired EBITDA of
any related Person, property, business or assets to the extent not so acquired)
by the Borrower or any Restricted Subsidiary during such period (each such
Person, property, business or asset acquired and not subsequently so disposed
of, an “Acquired Entity or Business”), and the Acquired EBITDA of any
Unrestricted Subsidiary that is converted into a Restricted Subsidiary during
such period (each, a “Converted Restricted Subsidiary”), in each case
based on the actual Acquired EBITDA of such Acquired Entity or Business or
Converted Restricted Subsidiary for such period (including the portion thereof
occurring prior to such acquisition or conversion) and (B) for the
purposes of the definition of the term “Permitted Acquisition” and
Sections 10.3, 10.9 and 10.10, an adjustment in respect of each Acquired
Entity or Business equal to the amount of the Pro Forma Adjustment with respect
to such Acquired Entity or Business for such period (including the portion
thereof occurring prior to such acquisition or conversion) as specified in the
Pro Forma Adjustment Certificate delivered to the Lenders and the
Administrative Agent and (y) for purposes of determining the Consolidated
Total Debt to Consolidated EBITDA Ratio only, there shall be excluded in determining
Consolidated EBITDA for any period the Acquired EBITDA of any Person, property,
business or asset (other than an Unrestricted Subsidiary) sold, transferred or
otherwise disposed of, closed or classified as discontinued operations by the
Borrower or any Restricted Subsidiary during such period (each such Person,
property, business or asset so sold or disposed of, a “Sold Entity or Business”),
and the Acquired EBITDA of any Restricted Subsidiary that is converted into an
Unrestricted Subsidiary during such period (each, a “Converted Unrestricted
Subsidiary”), in each case based on the actual Acquired EBITDA of such Sold
Entity or Business or Converted Unrestricted Subsidiary for such period
(including the portion thereof occurring prior to such sale, transfer,
disposition or conversion) and


 


(v)                                 there
shall be excluded from Consolidated Earnings and the determination of
Consolidated EBITDA for any period the effects of adjustments in component
amounts required or permitted by the Financial Accounting Standards Board Statements
of Financial Accounting Standards Nos. 141 and 142 and related authoritative pronouncements,
as a result of the Transactions or Permitted Acquisitions or the amortization
or write-off of any amounts in connection therewith and related financings
thereof.


 


Notwithstanding
anything to the contrary contained herein, Consolidated EBITDA shall be deemed
to be $155,266,000 and $155,224,000, respectively, for the fiscal quarters
ended March 31, 2004 and June 30, 2004.


 


“Consolidated EBITDA to Consolidated
Interest Expense Ratio” shall mean, as of any date of determination, the ratio
of (a) Consolidated EBITDA for the relevant Test Period to
(b) Consolidated Interest Expense for such Test Period.


 


“Consolidated Interest Expense” shall
mean, for any period, the cash interest expense (including that attributable to
Capital Leases in accordance with GAAP), net of cash interest


 


12





















 


income, of the
Borrower and the Restricted Subsidiaries on a consolidated basis with respect
to all outstanding Indebtedness of the Borrower and the Restricted
Subsidiaries, including all commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers’ acceptance financing and
net costs under Hedge Agreements (other than currency swap agreements, currency
future or option contracts and other similar agreements) and including, without
duplication, capitalized interest in connection with the purchase of Satellites
to the extent paid in cash, but excluding, however, amortization of deferred
financing costs and any other amounts of non-cash interest, all as calculated
on a consolidated basis in accordance with GAAP and excluding, for avoidance of
any doubt, any interest in respect of items excluded from Indebtedness in the
proviso to the definition thereof, provided that (a) except as
provided in clause (b) below, there shall be excluded from Consolidated
Interest Expense for any period the cash interest expense (or cash interest
income) of all Unrestricted Subsidiaries for such period to the extent
otherwise included in Consolidated Interest Expense and (b) for purposes
of the definition of the term “Permitted Acquisition” and Sections 10.3,
10.9 and 10.10, there shall be included in determining Consolidated Interest
Expense for any period the cash interest expense (or income) of any Acquired
Entity or Business acquired during such period and of any Converted Restricted
Subsidiary converted during such period, in each case based on the cash
interest expense (or income) of such Acquired Entity or Business or Converted
Restricted Subsidiary for such period (including the portion thereof occurring
prior to such acquisition or conversion) assuming any Indebtedness incurred or
repaid in connection with any such acquisition or conversion had been incurred
or prepaid on the first day of such period. Notwithstanding anything to the contrary
contained herein, for purposes of determining Consolidated Interest Expense for
any period ending prior to the first anniversary of the Closing Date,
Consolidated Interest Expense shall be an amount equal to actual Consolidated
Interest Expense from the Closing Date through the date of determination
multiplied by a fraction the numerator of which is 365 and the denominator of
which is the number of days from the Closing Date through the date of determination.


 


“Consolidated Lease Expense” shall
mean, for any period, all rental expenses of the Borrower and the Restricted
Subsidiaries during such period under operating leases for real or personal
property (including in connection with Permitted Sale Leasebacks), excluding
real estate taxes, insurance costs and common area maintenance charges and net
of sublease income, other than (a) obligations under vehicle leases
entered into in the ordinary course of business, (b) all such rental
expenses associated with assets acquired pursuant to a Permitted Acquisition to
the extent that such rental expenses relate to operating leases in effect at
the time of (and immediately prior to) such acquisition and
(c) Capitalized Lease Obligations, all as determined on a consolidated
basis in accordance with GAAP, provided that there shall be excluded
from Consolidated Lease Expense for any period the rental expenses of all
Unrestricted Subsidiaries for such period to the extent otherwise included in
Consolidated Lease Expense.


 


“Consolidated Net Income” shall mean,
for any period, the consolidated net income (or loss) after the deduction of
income taxes of the Borrower and the Restricted Subsidiaries, determined on a
consolidated basis in accordance with GAAP.


 


“Consolidated Total Debt” shall mean,
as of any date of determination, (a) the sum of (i) all Indebtedness of
the Borrower and the Restricted Subsidiaries for borrowed money outstanding on
such date and (ii) all Capitalized Lease Obligations of the Borrower and
the Restricted


 


13





















 


Subsidiaries
outstanding on such date, all calculated on a consolidated basis in accordance
with GAAP minus (b) the aggregate amount of cash included in the cash
accounts listed on the consolidated balance sheet of the Borrower and the
Restricted Subsidiaries as at such date to the extent the use thereof for
application to payment of Indebtedness is not prohibited by law or any contract
to which the Borrower or any of the Restricted Subsidiaries is a party.


 


“Consolidated Total Debt to Consolidated
EBITDA Ratio” shall mean, as of any date of determination, the ratio of
(a) Consolidated Total Debt as of the last day of the relevant Test Period
to (b) Consolidated EBITDA for such Test Period.


 


“Converted Restricted Subsidiary”
shall have the meaning provided in the definition of the term “Consolidated
EBITDA”.


 


“Converted Unrestricted Subsidiary”
shall have the meaning provided in the definition of the term “Consolidated
EBITDA”.


 


“Covered Satellite” shall mean any
Satellite that is owned by the Borrower or any of its Restricted Subsidiaries
or for which the Borrower or any of its Restricted Subsidiaries otherwise
retains the risk of loss.


 


“Credit Documents” shall mean this
Agreement (including the Original Credit Agreement), the Security Documents,
the Intercreditor and Collateral Trust Agreement, each Letter of Credit and any
promissory notes issued by the Borrower hereunder.


 


“Credit Event” shall mean and include
the making (but not the conversion or continuation) of a Loan and the issuance
of a Letter of Credit.


 


“Credit Facility” shall mean a
category of Commitments and extensions of credit thereunder.


 


“Credit Party” shall mean each of the
Borrower, the Guarantors and each other Subsidiary of the Borrower that is a
party to a Credit Document.


 


“Cumulative Consolidated Net Income
Available to Stockholders” shall mean, as of any date of determination, Consolidated
Net Income less cash dividends paid by the Borrower with respect to its capital
stock for the period (taken as one accounting period) commencing on the Closing
Date and ending on the last day of the most recent fiscal quarter for which
Section 9.1 Financials have been delivered to the Lenders under Section 9.1.


 


“Debt Incurrence Prepayment Event”
shall mean any issuance or incurrence by the Borrower or any of the Restricted
Subsidiaries of any Indebtedness (including any issuance by the Borrower of
Permitted Additional Notes to the extent the Net Cash Proceeds are not used for
a Permitted Acquisition but excluding any other Indebtedness permitted to be
issued or incurred under Section 10.1 other than Section 10.1(A)(o)).


 


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


 


14





















 


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


 


“dividends” shall have the meaning
provided in Section 10.6.


 


“Documentation Agents” shall mean (a)
with respect to the Original Credit Agreement, Bear, Stearns & Co. Inc, together
with its affiliates, Lehman Brothers Inc., together with its affiliates and
Banc of America Securities LLC, together with its affiliates, as the
co-documentation agents for the Original Lenders and (b) with respect to this
Amended and Restated Credit Agreement, Morgan Stanley Senior Funding, Inc., in
each case, under this Agreement and the other Credit Documents.


 


“Dollars” and “$” shall mean
dollars in lawful currency of the United States of America.


 


“Dollar Equivalent” shall mean, on any
date of determination, (a) with respect to any amount denominated in Dollars,
such amount, and (b) with respect to any amount denominated in any Foreign
Currency, the equivalent in Dollars of such amount, determined by the
Administrative Agent pursuant using the applicable Exchange Rate.


 


“Domestic Subsidiary” shall mean each
Subsidiary of the Borrower that is organized under the laws of the
United States, any state or territory thereof, or the District of Columbia.


 


“Drawing” shall have the meaning
provided in Section 3.4(b).


 


“Environmental Claims” shall mean any
and all actions, suits, orders, decrees, demands, demand letters, claims,
liens, notices of noncompliance, violation or potential responsibility or
investigation (other than internal reports prepared by the Borrower or any of
the Subsidiaries (a) in the ordinary course of such Person’s business or (b) as
required in connection with a financing transaction or an acquisition or
disposition of real estate) or proceedings relating in any way to any
Environmental Law or any permit issued, or any approval given, under any such Environmental
Law (hereinafter, “Claims”), including, without limitation, (i) 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 (ii) any and all Claims by any third
party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief relating to the presence, release or
threatened release of Hazardous Materials or arising from alleged injury or
threat of injury to health or safety (to the extent relating to human exposure
to Hazardous Materials), or the environment including, without limitation, ambient
air, surface water, groundwater, land surface and subsurface strata and natural
resources such as wetlands.


 


“Environmental Law” shall mean any
applicable Federal, state, foreign or local statute, law, rule, regulation, ordinance,
code and rule of common law now or hereafter in effect and in each case as
amended, and any binding judicial or administrative interpretation thereof,
including any binding judicial or administrative order, consent decree or
judgment, relating to the protection of environment, including, without
limitation, ambient air, surface water, groundwater,


 


15





















 


land surface
and subsurface strata and natural resources such as wetlands, or human health
or safety (to the extent relating to human exposure to Hazardous Materials), or
Hazardous Materials.


 


“Equity Investments” shall have the
meaning provided in the preamble to this Agreement.


 


“ERISA” shall mean the Employee
Retirement Income Security Act of 1974, as amended from time to time.  Section references to ERISA are to ERISA as
in effect at the Closing Date and any subsequent provisions of ERISA amendatory
thereof, supplemental thereto or substituted therefor.


 


“ERISA Affiliate” shall mean each
person (as defined in Section 3(9) of ERISA) that together with the Borrower or
a Subsidiary would be deemed to be a “single employer” within the meaning of
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.


 


“Event of Default” shall have the
meaning provided in Section 11.


 


“Exchange Rate” shall mean on any day
with respect to any Foreign Currency, the rate at which such Foreign Currency
may be exchanged into Dollars, as set forth at approximately 11:00 a.m.
(London time) on such day on the Reuters World Currency Page for such Foreign
Currency; in the event that such rate does not appear on any Reuters World
Currency Page, 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 the Borrower, or, in the absence of such
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 Foreign Currency are
then being conducted, at or about 10:00 a.m. (New York City time) on such
date for the purchase of Dollars for delivery two Business Days later.


 


“Excluded Satellites” shall mean (a)
the Satellites of the Borrower and its Restricted Subsidiaries commonly
referred to as “PAS-4”, “PAS-5”, “PAS-7”, “PAS-1R”, “PAS-6B”, “SBS-6”, “Galaxy
IIIR”, “Galaxy IVR”, “Galaxy 10R” and “Galaxy 11” and (b) any other Satellite
that (i) is not expected or intended, in the good faith determination of
the board of directors and evidenced by a board resolution delivered to the
Administrative Agent, to earn future revenues from the operation of such Satellite
in excess of $25,000,000 in any fiscal year, and (ii) has suffered loss or
damage such that (1) the procurement of In-Orbit Insurance therefor in the
amount and on the terms required by Section 9.3(b)(iii) 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 board of
directors and evidenced by a board resolution delivered to the Administrative
Agent.


 


“Excluded Taxes” shall mean, with
respect to the Administrative Agent or any Lender, (a) (i) net income
taxes and franchise taxes (imposed in lieu of net income taxes) and


 


16





















 


capital taxes
imposed on the Administrative Agent or any Lender and (ii) any taxes
imposed on the Administrative Agent or any Lender as a result of any current of
former connection between the Administrative Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Administrative Agent or such Lender having
executed, delivered or performed its obligations or received a payment under,
or having been a party to or having enforced this Agreement) and (b) in
the case of a Non-U.S. Lender, (i) any U.S. federal withholding tax that
is imposed on amounts payable to such Non-U.S. Lender under the law in effect
at the time such Non-U.S. Lender becomes a party to this Agreement (or, in the
case of a Non-U.S. Participant, on the date such Non-U.S. Participant became a
Participant hereunder); provided that this clause (b)(i) shall not
apply to the extent that (x) the indemnity payments or additional amounts any
Lender (or Participant) would be entitled to receive (without regard to this
clause (b)(i)) do not exceed the indemnity payment or additional amounts that
the person making the assignment, participation or transfer to such Lender (or
Participant) would have been entitled to receive in the absence of such assignment,
participation or transfer or (y) any Tax is imposed on a Lender in
connection with an interest or participation in any Loan or other obligation
that such Lender was required to acquire pursuant to Section 13.8(a) of this
Agreement or that such Lender acquired pursuant to Section 13.7 of this
Agreement (it being understood and agreed, for the avoidance of doubt, that any
withholding tax imposed on a Non-U.S. Lender as a result of a Change in Law
occurring after the time such Non-U.S. Lender became a party to this Agreement
(or designates a new lending office) shall not be an Excluded Tax) or (ii) any
Tax to the extent attributable to such Non-U.S. Lender’s failure to comply with
Section 5.4(d).


 


“Existing Letters of Credit” shall
have the meaning provided in the preamble to this Agreement.


 


“Existing Senior Notes” shall mean the
Borrower’s 81⁄2% Senior Notes due 2012.


 


“Existing Senior Notes Indenture”
shall mean the Indenture, dated as of February 1, 2002, between the
Borrower, as Issuer, the Guarantors named therein and The Bank of New York, as
Trustee, relating to the Borrower’s Existing Senior Notes.


 


“FCC” shall mean the Federal
Communications Commission or any governmental authority substituted therefor.


 


“FCC Licenses” shall mean all
authorizations, orders, licenses and permits issued by the FCC to the Borrower
or any of its Restricted Subsidiaries, under which the Borrower or any of its
Restricted 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 of the per annum
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 that is a Business Day, the average 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.


 


17





















 


“Fees” shall mean all amounts payable
pursuant to, or referred to in, Section 4.1.


 


“Final Date” shall mean the date on
which the Revolving Credit Commitments shall have terminated, no Revolving
Credit Loans shall be outstanding and the Letters of Credit Outstanding shall
have been reduced to zero.


 


“Foreign Asset Sale” shall have the
meaning provided in Section 5.2(h).


 


“Foreign Currencies” shall mean Euro
and Sterling.


 


“Foreign Plan” shall mean any employee
benefit plan, program, policy, arrangement or agreement maintained or contributed
to by the Borrower or any of its Subsidiaries with respect to employees
employed outside the United States.


 


“Foreign Subsidiary” shall mean each
Subsidiary of the Borrower that is not a Domestic Subsidiary.


 


“Fronting Fee” shall have the meaning
provided in Section 4.1(c).


 


“Funded Debt” shall mean all
indebtedness of the Borrower and the Restricted Subsidiaries for borrowed money
that matures more than one year from the date of its creation or matures within
one year from such date that is renewable or extendable, at the option of the
Borrower or any Restricted Subsidiary, to a date more than one year from such
date or arises under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year from
such date, including all amounts of Funded Debt required to be paid or prepaid
within one year from the date of its creation and, in the case of the Borrower,
Indebtedness in respect of the Loans.


 


“GAAP” shall mean generally accepted
accounting principles in the United States of America, as in effect from time
to time; provided, however, that if there occurs after the Closing
Date any change in GAAP that affects in any respect the calculation of any
covenant contained in Section 10, the Lenders and the Borrower shall
negotiate in good faith amendments to the provisions of this Agreement that
relate to the calculation of such covenant with the intent of having the
respective positions of the Lenders and the Borrower after such change in GAAP
conform as nearly as possible to their respective positions as of the Closing
Date and, until any such amendments have been agreed upon, the covenants in Section 10
shall be calculated as if no such change in GAAP has occurred.


 


“Globo Receivables” shall have the
meaning given such term in the definition of Consolidated EBITDA.


 


“Governmental Authority” shall mean
any nation or government, any state, province, territory or other political subdivision
thereof, and any entity exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to government.


 


“Guarantee” shall mean the Guarantee,
made by each Guarantor in favor of the Administrative Agent for the benefit of
the Secured Parties, substantially in the form of Exhibit C


 


18





















 


to the
Original Credit Agreement, as the same may be amended, supplemented or otherwise
modified from time to time.


 


“Guarantee and Collateral Exception Amount”
shall mean, at any time: 
(a) $250,000,000 minus (b) the sum of (i) the aggregate
amount of Indebtedness incurred or assumed prior to such time pursuant to
Section 10.1(A)(j) or (A)(k) that is outstanding at such time and that was
used to acquire, or was assumed in connection with the acquisition of, capital
stock and/or assets in respect of which guarantees, pledges and security have
not been given pursuant to Sections 9.11 and 9.12, (ii) the aggregate
New Loan Commitments at such time and (iii) any Indebtedness incurred by
any Restricted Subsidiary that is not a Guarantor, provided that if such
amount is a negative number, the Guarantee and Collateral Exception Amount
shall be zero.


 


“Guarantee Obligations” shall mean, as
to any Person, any obligation of such Person guaranteeing or intended to guarantee
any Indebtedness of any other Person (the “primary obligor”) in any
manner, whether directly or indirectly, including any obligation of such
Person, whether or not contingent, (a) to purchase any such Indebtedness or any
property constituting direct or indirect security therefor, (b) to advance or
supply funds (i) for the purchase or payment of any such Indebtedness or (ii)
to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (c) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such Indebtedness of the ability of the primary obligor to
make payment of such Indebtedness or (d) otherwise to assure or hold harmless
the owner of such Indebtedness against loss in respect thereof; provided,
however, that the term “Guarantee Obligations” shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business.  The amount of any Guarantee
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the Indebtedness in respect of which such Guarantee Obligation is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform thereunder)
as determined by such Person in good faith.


 


“Guarantors” shall mean the Subsidiary
Guarantors, other than the immaterial Subsidiaries listed on Schedule 1.1(d)
to the Original Credit Agreement.


 


“Hazardous Materials” shall mean (a)
any petroleum or petroleum products, radioactive materials, friable asbestos,
urea formaldehyde foam insulation, transformers or other equipment that contain
dielectric fluid containing regulated levels of polychlorinated biphenyls, and
radon gas; (b) any chemicals, materials or substances defined as or included in
the definition of “hazardous substances”, “hazardous waste”, “hazardous
materials”, “extremely hazardous waste”, “restricted hazardous waste”, “toxic
substances”, “toxic pollutants”, “contaminants”, or “pollutants”, or words of
similar import, under any applicable Environmental Law; and (c) any other
chemical, material or substance, which is prohibited, limited or regulated by
any Environmental Law.


 


“Hedge Agreements” shall mean interest
rate swap, cap or collar agreements, interest rate future or option contracts,
currency swap agreements, currency future or option contracts, commodity price
protection agreements or other commodity price hedging agreements, and other
similar agreements entered into by the Borrower in the ordinary course of
business


 


19





















 


(and not for
speculative purposes) in order to protect the Borrower or any of the Restricted
Subsidiaries against fluctuations in interest rates, currency exchange rates or
commodity prices.


 


“Historical Adjustments” shall mean,
with respect to the Borrower and its Restricted Subsidiaries, without duplication,
the items set forth on Schedule 1.1(e) to the Original Credit Agreement
to the extent incurred prior to the Closing Date.


 


“Historical Financial Statements”
shall mean as of the Closing Date, the audited financial statements of the Borrower
and its Subsidiaries, for the immediately preceding three fiscal years,
consisting of balance sheets and the related consolidated statements of income,
stockholders’ equity and cash flows for such fiscal years.


 


“In-Orbit Insurance” shall mean, with
respect to any Satellite, insurance for risks of loss of and 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, subject to the terms and conditions set forth herein.


 


“In-Orbit Spare Satellite” shall mean
a Satellite that meets the qualifying requirements for in-orbit spare
satellites set out in Schedule A to the Original Credit Agreement.


 


“Increased Amount Date” shall have the
meaning provided in Section 2.14.


 


“Indebtedness” of any Person shall
mean (a) all indebtedness of such Person for borrowed money, (b) the deferred
purchase price of assets or services that in accordance with GAAP would be
included as liabilities in the balance sheet of such Person, (c) the face
amount of all letters of credit issued for the account of such Person and,
without duplication, all drafts drawn thereunder, (d) all Indebtedness of a
second Person secured by any Lien on any property owned by such first Person,
whether or not such Indebtedness has been assumed, (e) all Capitalized Lease
Obligations of such Person, (f) all obligations of such Person under
interest rate swap, cap or collar agreements, interest rate future or option contracts,
currency swap agreements, currency future or option contracts, commodity price
protection agreements or other commodity price hedging agreements and other
similar agreements and (g) without duplication, all Guarantee Obligations of
such Person, provided that Indebtedness shall not include (i) trade
payables and accrued expenses, in each case payable directly or through a bank
clearing arrangement and arising in the ordinary course of business,
(ii) obligations under Satellite Purchase Agreements, Launch Service
Agreements, in each case, not overdue by more than 90 days, (iii) deferred
or prepaid revenue, and (iv) purchase price holdbacks in respect of a
portion of the purchase price of an asset to satisfy warranty or other
unperformed obligations of the respective seller and (v) 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.


 


“Indemnified Taxes” shall mean all
Taxes (other than Excluded Taxes) and Other Taxes.


 


20





















 


“India Tax Obligations” shall mean tax
claims of the government of India related to withholding taxes assessed on revenues
for the India tax years ended March 31, 1996 through 2005 in an aggregate
amount not to exceed $60,000,000.


 


“Initial Financial Statement Delivery Date”
shall mean the date on which Section 9.1 Financials are delivered to the
Lenders under Section 9.1 for the first full fiscal quarter ending at least six
months after the Closing Date.


 


“Intercreditor and Collateral Trust
Agreement” shall mean the intercreditor and collateral trust agreement
substantially in the form of Exhibit N to the Original Credit Agreement.


 


“Interest Period” shall mean, with
respect to any Term Loan or Revolving Credit Loan, the interest period
applicable thereto, as determined pursuant to Section 2.9.


 


“Investment” shall mean, for any
Person:  (a) the acquisition
(whether for cash, property, services or securities or otherwise) of capital
stock, bonds, notes, debentures, partnership or other ownership interests or
other securities of any other Person (including any “short sale” or any sale of
any securities at a time when such securities are not owned by the Person
entering into such sale); (b) the making of any deposit with, or advance,
loan or other extension of credit to, any other Person (including the purchase
of property from another Person subject to an understanding or agreement,
contingent or otherwise, to resell such property to such Person), but excluding
any such advance, loan or extension of credit having a term not exceeding 364
days arising in the ordinary course of business and excluding also any
Investment in leases entered into in the ordinary course of business; or
(c) the entering into of any guarantee of, or other contingent obligation
with respect to, Indebtedness or other monetary liability of any other Person.


 


“IPO” shall have the meaning ascribed
to such term in the Amendment Agreement.


 


“Joinder Agreement” shall mean an
agreement substantially in the form of Exhibit M to the Original
Credit Agreement.


 


“Joint Lead Arrangers” shall mean (a)
with respect to the Original Credit Agreement, Citigroup Global Markets Inc.
and Credit Suisse First Boston and (b) with respect to this Amended and
Restated Credit Agreement, Citigroup Global Markets Inc., Merrill Lynch,
Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding, Inc.


 


“Joint Ventures” shall mean any Person
in which the Borrower or a Restricted Subsidiary maintains an equity investment
(including those formed for the purpose of selling or leasing transponders or
transponder capacity to third party customers in the ordinary course of
business of the Borrower and its Restricted Subsidiaries), but which is not a
Subsidiary of the Borrower.


 


“KKR” shall mean each of Kohlberg
Kravis Roberts & Co., L.P. and KKR Associates, L.P.


 


21





















 


“L/C Maturity Date” shall mean the
date that is five Business Days prior to the Revolving Credit Maturity Date.


 


“L/C Participant” shall have the
meaning provided in Section 3.3(a).


 


“L/C Participation” shall have the
meaning provided in Section 3.3(a).


 


“Launch” shall mean, with respect to
any Satellite, the point in time before lift-off of such Satellite at which
risk of loss of such Satellite passes to the applicable Satellite Purchaser
under the terms of the applicable Satellite Purchase Agreement, unless risk of
loss thereunder is to pass to such Satellite Purchaser after lift-off, in which
case “Launch” shall mean the intentional ignition of the first stage engines of
the launch vehicle that has been integrated with such Satellite.


 


“Launch Insurance” shall mean, with
respect to any Satellite, insurance for risks of loss of and damage to such
Satellite attaching not later than the time of Launch and continuing until the
successful or unsuccessful attempt to achieve physical separation of such
Satellite from the launch vehicle that had been integrated with such Satellite
except that with respect to any Satellite that is intended for use as an
In-Orbit Spare Satellite such insurance shall continue until the completion of
initial in-orbit testing, subject to the terms and conditions set forth herein.


 


“Launch Services Agreement” shall
mean, with respect to any Satellite, the agreement between the applicable Satellite
Purchaser and the applicable Launch Services Provider relating to the launch of
such Satellite.


 


“Launch Services Provider” shall mean,
with respect to any Satellite, the provider of launch services for such Satellite
pursuant to the terms of the Launch Services Agreement related thereto.


 


“Lender” shall have the meaning
provided in the preamble to this Agreement.


 


“Lender Default” shall mean (a) the
failure (which has not been cured) of a Lender to make available its portion of
any Borrowing or to fund its portion of any unreimbursed payment under Section
3.3 or (b) a Lender having notified the Administrative Agent and/or the
Borrower that it does not intend to comply with the obligations under Section
2.1(a), 2.1(b), 2.1(d) or 3.3, in the case of either clause (a) or
clause (b) above, as a result of the appointment of a receiver or conservator
with respect to such Lender at the direction or request of any regulatory
agency or authority.


 


“Lender Pledge Agreement” shall mean
the Lender Pledge Agreement, entered into by the Borrower, the other pledgors
party thereto and the Administrative Agent for the benefit of the Lenders,
substantially in the form of Exhibit F to the Original Credit Agreement,
as the same may be amended, supplemented or otherwise modified from time to
time.


 


“Lender Security Agreement” shall mean
the Lender Security Agreement entered into by the Borrower, the other grantors
party thereto and the Administrative Agent for the benefit


 


22





















 


of the
Lenders, substantially in the form of Exhibit G to the Original Credit
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time.


 


“Letter of Credit” shall mean each
standby letter of credit issued pursuant to Section 3.1.


 


“Letter of Credit Commitment” shall
mean $100,000,000, as the same may be reduced from time to time pursuant to
Section 3.1.


 


“Letter of Credit Exposure” shall
mean, with respect to any Lender, at any time, the sum of (a) the amount of any
Unpaid Drawings in respect of which such Lender has made (or is required to
have made) payments to the Letter of Credit Issuer pursuant to Section 3.4(a)
at such time and (b) such Lender’s Revolving Credit Commitment Percentage of
the Letters of Credit Outstanding at such time (excluding the portion thereof
consisting of Unpaid Drawings in respect of which the Lenders have made (or are
required to have made) payments to the Letter of Credit Issuer pursuant to
Section 3.4(a)).


 


“Letter of Credit Fee” shall have the
meaning provided in Section 4.1(b).


 


“Letter of Credit Issuer” shall mean
Credit Suisse First Boston, any of its Affiliates or any successor pursuant to
Section 3.6.  The Letter of Credit
Issuer may, in its discretion, arrange for one or more Letters of Credit to be
issued by Affiliates of the Letter of Credit Issuer, and in each such case the
term “Letter of Credit Issuer” shall include any such Affiliate with respect to
Letters of Credit issued by such Affiliate. 
In the event that there is more than one Letter of Credit Issuer at any
time, references herein and in the other Credit Documents to the Letter of
Credit Issuer shall be deemed to refer to the Letter of Credit Issuer in
respect of the applicable Letter of Credit or to all Letter of Credit Issuers,
as the context requires.


 


“Letters of Credit Outstanding” shall
mean, at any time, the sum of, without duplication, (a) the aggregate
Stated Amount of all outstanding Letters of Credit and (b) the aggregate
amount of all Unpaid Drawings in respect of all Letters of Credit.


 


“Letter of Credit Request” shall have
the meaning provided in Section 3.2.


 


“Level I Status” shall mean, on
any date, the Consolidated Total Debt to Consolidated EBITDA Ratio is greater
than or equal to 6.00 to 1.00 as of such date.


 


“Level II Status” shall mean, on
any date, the circumstance that Level I Status does not exist and the
Consolidated Total Debt to Consolidated EBITDA Ratio is greater than or equal
to 5.50 to 1.00 as of such date.


 


“Level III Status” shall mean, on
any date, the circumstance that neither Level I Status nor Level II
Status exists and the Consolidated Total Debt to Consolidated EBITDA Ratio (x)
with respect to the Applicable ABR Margin and Applicable LIBOR Margin, is
greater than or equal to 5.00 to 1.00 as of such date and (y) with respect to
the Commitment Fee Rate, is greater than or equal to 4.50 to 1.00 as of such
date.


 


23





















 


“Level IV Status” shall mean, on
any date, the circumstance that the Consolidated Total Debt to Consolidated
EBITDA Ratio is less than (x) with respect to the Applicable ABR Margin and
Applicable LIBOR Margin, 5.00 to 1.00 as of such date and (y) with respect to
the Commitment Fee Rate, 4.50 to 1.00 as of such date.


 


“Level V Status” shall mean, on any
date, the circumstance that the Consolidated Total Debt to Consolidated EBITDA
Ratio is less than 4.50 to 1.00 as of such date.


 


“LIBOR Loan” shall mean any LIBOR Term
Loan or LIBOR Revolving Credit Loan.


 


“LIBOR Rate” shall mean, in the case
of any LIBOR Term Loan or LIBOR Revolving Credit Loan, with respect to each day
during each Interest Period pertaining to such LIBOR Loan, (a) the rate of
interest determined on the basis of the rate for deposits in Dollars for a
period equal to such Interest Period commencing on the first day of such
Interest Period appearing on Page 3750 of the Telerate screen as of
11:00 a.m. (London time) two Business Days prior to the beginning of such
Interest Period multiplied by (b) the Statutory Reserve Rate.  In the event that any such rate does not
appear on the applicable Page of the Telerate Service (or otherwise on such
service), the “LIBOR Rate” for the purposes of this paragraph shall be
determined by reference to such other publicly available service for displaying
LIBOR rates as may be agreed upon by the Administrative Agent and the Borrower
or, in the absence of such agreement, the “LIBOR Rate” for the purposes
of this paragraph shall instead be the rate per annum
notified to the Administrative Agent by the Reference Lender as the rate at
which the Reference Lender is offered Dollar deposits at or about 11:00 a.m.
(London time) two Business Days prior to the beginning of such Interest Period
in the interbank LIBOR market where the LIBOR and foreign currency and exchange
operations in respect of its LIBOR Loans are then being conducted for delivery
on the first day of such Interest Period for the number of days comprised
therein and in an amount comparable to the amount of its LIBOR Term Loan or
LIBOR Revolving Credit Loan, as the case may be, to be outstanding during such
Interest Period.


 


“LIBOR Revolving Credit Loan” shall
mean any Revolving Credit Loan bearing interest at a rate determined by reference
to the LIBOR Rate.


 


“LIBOR Term Loan” shall mean any Term
Loan bearing interest at a rate determined by reference to the LIBOR Rate.


 


“License Subsidiary” shall mean
PanAmSat Licensee Corp., a Delaware corporation, and any other wholly owned
Subsidiary formed for the purpose of holding Subject Licenses to be used by the
Borrower or any of its Restricted Subsidiaries in the operation of their
respective businesses and all of the shares of capital stock and other
ownership interests of which are held by a Guarantor.


 


“Lien” shall mean any mortgage,
pledge, security interest, hypothecation, assignment, lien (statutory or other)
or similar encumbrance (including any agreement to give any of the foregoing,
any conditional sale or other title retention agreement or any lease in the
nature thereof).


 


24





















 


“Loan”
shall mean any Revolving Credit Loan, Swingline Loan, Term Loan, New Revolving
Loan or New Tranche B-1 Term Loan made by any Lender hereunder.


 


“Management
Investors” shall mean the directors, management officers and employees of
the Borrower and its Subsidiaries who are investors in the Borrower on the
Closing Date.


 


“Mandatory
Borrowing” shall have the meaning provided in Section 2.1(d).


 


“Material
Adverse Change” shall mean any event or circumstance which has resulted or
is reasonably likely to result in a material adverse change in the business,
assets, operations, properties or financial condition of the Borrower and its
Subsidiaries, taken as a whole or that would materially adversely affect the
ability of the Borrower and the other Credit Parties, taken as a whole, to
perform their obligations under this Agreement or any of the other Credit
Documents.


 


“Material
Adverse Effect” shall mean a circumstance or condition affecting the
business, assets, operations, properties or financial condition of the Borrower
and the Subsidiaries, taken as a whole, that would materially adversely affect
(a) the ability of the Borrower and the other Credit Parties, taken as a
whole, to perform their obligations under this Agreement or any of the other
Credit Documents or (b) the rights and remedies of the Administrative
Agent and the Lenders under this Agreement or any of the other Credit
Documents.


 


“Material
Subsidiary” shall mean, at any date of determination, (1) each License
Subsidiary and (2) each Restricted Subsidiary of the Borrower
(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 Section 9.1 Financials
have been delivered were equal to or greater than 5% of the consolidated total
assets of the Borrower and the Restricted Subsidiaries at such date or
(b) whose gross revenues for such Test Period were equal to or greater
than 5% of the consolidated gross revenues of the Borrower and the Restricted
Subsidiaries for such period, in each case determined in accordance with GAAP.


 


“Maturity Date” shall mean the Tranche
A Term Loan Maturity Date, the Tranche B-1 Term Loan Maturity Date or the Revolving
Credit Maturity Date.


 


“Merger” shall have the meaning
provided in the recitals hereto.


 


“Minimum Borrowing Amount” shall mean
(a) with respect to a Borrowing of Term Loans or Revolving Credit Loans,
$1,000,000 and (b) with respect to a Borrowing of Swingline Loans, $100,000.


 


“Minority Investment” shall mean any
Person (other than a Subsidiary) in which the Borrower or any Restricted Subsidiary
owns capital stock or other equity interests.


 


“Moody’s” shall mean Moody’s Investors
Service, Inc. or any successor by merger or consolidation to its business.


 


25





















 


“Mortgage” shall mean a Mortgage,
Assignment of Leases and Rents, Security Agreement and Financing Statement or
other security document entered into by the owner of a Mortgaged Property and
the Collateral Trustee for the benefit of the Secured Parties in respect of
that Mortgaged Property, substantially in the form of Exhibit D to the
Original Credit Agreement, as the same may be amended, supplemented or
otherwise modified from time to time.


 


“Mortgaged Property” shall mean,
initially, each parcel of real estate and the improvements thereto owned by a
Credit Party and identified on Schedule 1.1(b) to the Original
Credit Agreement, and includes each other parcel of real property and
improvements thereto with respect to which a Mortgage is granted pursuant to
Section 9.15.


 


“Net Cash Proceeds” shall mean, with
respect to any Prepayment Event, (a) the gross cash proceeds (including payments
from time to time in respect of installment obligations, if applicable)
received by or on behalf of the Borrower or any of the Restricted Subsidiaries
in respect of such Prepayment Event or issuance, as the case may be, less
(b) the sum of:


 


(i)                                     in
the case of any Prepayment Event, the amount, if any, of all taxes paid or
estimated to be payable by the Borrower or any of the Restricted Subsidiaries
in connection with such Prepayment Event,


 


(ii)                                  in
the case of any Prepayment Event, the amount of any reasonable reserve
established in accordance with GAAP against any liabilities (other than any
taxes deducted pursuant to clause (i) above) (x) associated with the
assets that are the subject of such Prepayment Event and (y) retained by
the Borrower or any of the Restricted Subsidiaries, provided
that the amount of any subsequent reduction of such reserve (other than in
connection with a payment in respect of any such liability) shall be deemed to
be Net Cash Proceeds of such a Prepayment Event occurring on the date of such
reduction,


 


(iii)                               in
the case of any Prepayment Event, the amount of any Indebtedness secured by a
Lien on the assets that are the subject of such Prepayment Event to the extent
that the instrument creating or evidencing such Indebtedness requires that such
Indebtedness be repaid upon consummation of such Prepayment Event,


 


(iv)                              in
the case of any Asset Sale Prepayment Event (other than a transaction permitted
by Section 10.4(e)(ii)), Casualty Event or Permitted Sale Leaseback, the amount
of any proceeds of such Prepayment Event that the Borrower or any Subsidiary
has reinvested (or intends to reinvest within the Reinvestment Period or has
entered into a binding commitment prior to the last day of the Reinvestment
Period to reinvest) in the business of the Borrower or any of the Restricted
Subsidiaries (subject to Section 9.14), provided
that any portion of such proceeds that has not been so reinvested within such
Reinvestment Period shall, unless the Borrower or a Subsidiary has entered into
a binding commitment prior to the last day of such Reinvestment Period to reinvest
such proceeds, (x) be deemed to be Net Cash Proceeds of an Asset Sale
Prepayment Event, Casualty Event or Permitted Sale Leaseback occurring on the
last day of such Reinvestment Period and (y) be applied to the repayment
of Term Loans in accordance with Section 5.2(a)(i); and


 


26





















 


(v)                                 in
the case of any Prepayment Event, reasonable and customary fees, commissions,
expenses, issuance costs, discounts and other costs paid by the Borrower or any
of the Restricted Subsidiaries, as applicable, in connection with such Prepayment
Event (other than those payable to the Borrower or any Subsidiary of the Borrower),
in each case only to the extent not already deducted in arriving at the amount
referred to in clause (a) above.


 


“New Loan
Commitments” shall have the meaning provided in Section 2.14.


 


“New
Revolving Credit Commitments” shall have the meaning provided in Section
2.14.


 


“New
Revolving Loan Lender” shall have the meaning provided in Section 2.14.


 


“New
Revolving Loans” shall have the meaning provided in Section 2.14.


 


“New Tranche B-1 Term Loan Commitments”
shall have the meaning provided in Section 2.14.


 


“New Tranche B-1 Term Loan Lender”
shall have the meaning provided in Section 2.14.


 


“New Tranche B-1 Term Loans” shall
have the meaning provided in Section 2.14.


 


“New Tranche B-1 Term Loan Maturity Date”
shall mean the date on which a New Tranche B-1 Term Loan matures.


 


“Non-Consenting Lender” shall have the
meaning provided in Section 13.7.


 


“Non-Defaulting Lender” shall mean and
include each Lender other than a Defaulting Lender.


 


“Non-U.S. Lender” shall mean any
Lender that is not, for United States federal income tax purposes, (a) a
citizen or resident of the United States, (b) a corporation or partnership
or entity treated as a corporation or partnership created or organized in or
under the laws of the United States, or any political subdivision thereof,
(c) an estate whose income is subject to U.S. federal income taxation regardless
of its source or (d) a trust if a court within the United States is able
to exercise primary supervision over the administration of such trust and one
or more United States persons have the authority to control all substantial decisions
of such trust or a trust that has a valid election in effect under applicable
U.S. Treasury regulations to be treated as a United States person.


 


“Non-U.S. Participant” shall mean any
Participant that if it were a Lender would qualify as a Non-U.S. Lender.


 


“Notice of Borrowing” shall have the
meaning provided in Section 2.3.


 


27





















 


“Notice of Conversion or Continuation”
shall have the meaning provided in Section 2.6.


 


“Obligations” shall have the meaning
assigned to such term in the Security Documents.


 


“Original Credit Agreement” shall have
the meaning provided in the recitals hereto.


 


“Original Lender” shall have the
meaning provided in the recitals hereto.


 


“Other Taxes” shall mean any and all
present or future stamp, documentary or any other excise, property or similar
taxes (including interest, fines, penalties, additions to tax and related
expenses with regard thereto) arising directly from any payment made or required
to be made under this Agreement or from the execution or delivery of,
registration or enforcement of, consummation or administration of, or otherwise
with respect to, this Agreement or any other Credit Document.


 


“Participant” shall have the meaning
provided in Section 13.6(c)(i).


 


“PBGC” shall mean the Pension Benefit
Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor
thereto.


 


“Perfection Certificate” shall mean a
certificate of the Borrower in the form of Exhibit E to the Original
Credit Agreement or any other form approved by the Administrative Agent.


 


“Permitted Acquisition” shall mean the
acquisition, by merger or otherwise, by the Borrower or any of the Restricted
Subsidiaries of assets or capital stock or other equity interests, so long as
(a) such acquisition and all transactions related thereto shall be consummated
in accordance with applicable law; (b) such acquisition shall result in
the issuer of such capital stock or other equity interests becoming a
Restricted Subsidiary and a Subsidiary Guarantor, to the extent required by
Section 9.11; (c) such acquisition shall result in the Administrative
Agent, for the benefit of the applicable Lenders, being granted a security
interest in any capital stock or any assets so acquired, to the extent required
by Sections 9.11, 9.12 and/or 9.15; (d) after giving effect to such acquisition,
no Default or Event of Default shall have occurred and be continuing; and
(e) the Borrower shall be in compliance, on a pro forma basis after giving
effect to such acquisition (including any Indebtedness assumed or permitted to
exist or incurred pursuant to Sections 10.1(A)(j) and 10.1(A)(k),
respectively, and any related Pro Forma Adjustment), with the covenants set
forth in Sections 10.9 and 10.10, as such covenants are recomputed as at
the last day of the most recently ended Test Period under such Section as if
such acquisition had occurred on the first day of such Test Period.


 


“Permitted Additional Notes” shall
mean senior or senior subordinated notes, issued by the Borrower, (a) the
terms of which (i) 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


 


28





















 


upon a change
of control, asset sale or event of loss and customary acceleration rights after
an event of default) and (ii) to the extent senior subordinated notes,
provide for customary subordination to the Obligations under the Credit
Documents, (b) the covenants, events of default, Subsidiary guarantees and
other terms of which (other than interest rate and redemption premiums), taken
as a whole, are not more restrictive to the Borrower and the Subsidiaries than
those in the Senior Notes and (c) of which no Subsidiary of the Borrower
(other than a Guarantor) is an obligor under such notes that is not an obligor
under the Senior Notes.


 


“Permitted Capital Expenditure Amount”
shall have the meaning provided in Section 10.11.


 


“Permitted Investments” shall mean:


 


(a)                                  securities
issued or unconditionally guaranteed by the United States government or any
agency or instrumentality thereof, in each case having maturities of not more
than 24 months from the date of acquisition thereof;


 


(b)                                 securities
issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof or any
political subdivision of any such state or any public instrumentality thereof
having maturities of not more than 24 months from the date of acquisition
thereof and, at the time of acquisition, having an investment grade rating
generally obtainable from either S&P or Moody’s (or, if at any time neither
S&P nor Moody’s shall be rating such obligations, then from another
nationally recognized rating service);


 


(c)                                  commercial
paper issued by any Lender or any bank holding company owning any Lender;


 


(d)                                 commercial
paper maturing no more than 12 months after the date of creation thereof
and, at the time of acquisition, having a rating of at least A-2 or P-2 from
either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall
be rating such obligations, an equivalent rating from another nationally recognized
rating service);


 


(e)                                  domestic
and LIBOR certificates of deposit or bankers’ acceptances maturing no more than
two years after the date of acquisition thereof issued by any Lender or any
other bank having combined capital and surplus of not less than $250,000,000 in
the case of domestic banks and $100,000,000 (or the Dollar Equivalent thereof)
in the case of foreign banks;


 


(f)                                    repurchase
agreements with a term of not more than 30 days for underlying securities
of the type described in clauses (a), (b) and (e) above entered into with any
bank meeting the qualifications specified in clause (e) above or securities dealers
of recognized national standing;


 


(g)                                 marketable
short-term money market and similar funds (x) either having assets in excess of
$250,000,000 or (y) having a rating of at least A-2 or P-2 from either


 


29





















 


S&P or
Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such
obligations, an equivalent rating from another nationally recognized rating service);


 


(h)                                 shares
of investment companies that are registered under the Investment Company Act of
1940 and substantially all the investments of which are one or more of the types
of securities described in clauses (a) through (g) above; and


 


(i)                                     in
the case of Investments by any Restricted Foreign Subsidiary or Investments
made in a country outside the United States of America, other customarily
utilized high-quality Investments in the country where such Restricted Foreign
Subsidiary is located or in which such Investment is made.


 


“Permitted Liens” shall mean (a) Liens
for taxes, assessments or governmental charges or claims not yet due or which
are being contested in good faith and by appropriate proceedings for which
appropriate reserves have been established in accordance with GAAP;


 


(b) Liens in respect of property or
assets of the Borrower or any of the Subsidiaries imposed by law, such as carriers’,
warehousemen’s and mechanics’ Liens and other similar Liens arising in the
ordinary course of business, in each case so long as such Liens arise in the
ordinary course of business and do not individually or in the aggregate have a
Material Adverse Effect;


 


(c) Liens arising from judgments or decrees
in circumstances not constituting an Event of Default under Section 11.11;


 


(d) Liens incurred or deposits made in
connection with workers’ compensation, unemployment insurance and other types
of social security legislation, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar obligations
incurred in the ordinary course of business;


 


(e) ground leases in respect of real property
on which facilities owned or leased by the Borrower or any of its Subsidiaries
are located;


 


(f) easements, rights-of-way, restrictions,
minor defects or irregularities in title and other similar charges or encumbrances
not interfering in any material respect with the business of the Borrower and
its Subsidiaries, taken as a whole;


 


(g) any interest or title of a lessor or
secured by a lessor’s interest under any lease permitted by this Agreement;


 


(h) 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;


 


(i) Liens on goods the purchase price of
which is financed by a documentary letter of credit issued for the account of
the Borrower or any of its Subsidiaries, provided that such


 


30





















 


Lien secures
only the obligations of the Borrower or such Subsidiaries in respect of such
letter of credit to the extent permitted under Section 10.1;


 


(j) leases or subleases granted to
others not interfering in any material respect with the business of the
Borrower and its Subsidiaries, taken as a whole; and


 


(k) Liens created in the ordinary course
of business in favor of banks and other financial institutions over credit balances
of any bank accounts of the Borrower and the Restricted Subsidiaries held at
such banks or financial institutions, as the case may be, to facilitate the
operation of cash pooling and/or interest set-off arrangements in respect of
such bank accounts in the ordinary course of business.


 


“Permitted Sale Leaseback” shall mean
any Sale Leaseback consummated by the Borrower or any of the Restricted Subsidiaries
after the Closing Date, provided that any such Sale Leaseback (other
than any Sale Leaseback that is between the Borrower and any Guarantor or any
Guarantor and another Guarantor) is consummated for fair value as determined at
the time of consummation in good faith by the Borrower and, in the case of any
Sale Leaseback (or series of related Sales Leasebacks) the aggregate proceeds
of which exceed $20,000,000, the board of directors of the Borrower (which such
determination may take into account any retained interest or other Investment
of the Borrower or such Restricted Subsidiary in connection with, and any other
material economic terms of, such Sale Leaseback).


 


“Person” shall mean any individual,
partnership, joint venture, firm, corporation, limited liability company,
association, trust or other enterprise or any Governmental Authority.


 


“Plan” shall mean any multiemployer or
single-employer plan, as defined in Section 4001 of ERISA and subject to Title
IV of ERISA, that is or was within any of the preceding six plan years
maintained or contributed to by (or to which there is or was an obligation to
contribute or to make payments to) the Borrower, a Subsidiary or an ERISA
Affiliate.


 


“Platform” shall have the meaning
provided in Section 13.17(b).


 


“Pledge Agreements” shall mean the
Lender Pledge Agreement and the Shared Pledge Agreement.


 


“Prepayment Event” shall mean any
Asset Sale Prepayment Event, Debt Incurrence Prepayment Event, Casualty Event
or any Permitted Sale Leaseback.


 


“Prime Rate” shall mean the rate of
interest per annum publicly announced from time
to time by the Administrative Agent as its reference rate in effect at its
principal office in New York City (the Prime Rate not being intended to be the
lowest rate of interest charged by Citibank, N.A. in connection with extensions
of credit to debtors).


 


“Pro Forma Adjustment” shall mean, for
any Test Period that includes any of the six consecutive fiscal quarters first
ending following any Permitted Acquisition, with respect to the Acquired EBITDA
of the applicable Acquired Entity or Business or the Consolidated EBITDA of the
Borrower affected by such acquisition, the pro forma increase or decrease in


 


31





















 


such Acquired
EBITDA or such Consolidated EBITDA, as the case may be, projected by the
Borrower in good faith as a result of reasonably identifiable and factually
supportable net cost savings or additional net costs, as the case may be,
realizable during such period by combining the operations of such Acquired
Entity or Business with the operations of the Borrower and its Subsidiaries, provided
that so long as such net cost savings or additional net costs will be
realizable at any time during such six-quarter period, it may be assumed, for
purposes of projecting such pro forma increase or decrease to such
Acquired EBITDA or such Consolidated EBITDA, as the case may be, that such net
cost savings or additional net costs will be realizable during the entire such
period; provided  further that any such pro forma increase or
decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may
be, shall be without duplication for net cost savings or additional net costs
actually realized during such period and already included in such Acquired
EBITDA or such Consolidated EBITDA, as the case may be.


 


“Pro Forma Adjustment Certificate”
shall mean any certificate of an Authorized Officer of the Borrower delivered
pursuant to Section 9.1(h) or setting forth the information described in
clause (iv) to Section 9.1(d).


 


“Providence” shall mean Providence
Equity Partners.


 


“Qualified PIK Securities” shall mean
(1) any preferred capital stock or preferred equity interest of the Borrower
(a) that does not provide for any cash dividend payments or other cash
distributions in respect thereof on or prior to the Tranche B-1 Term Loan Maturity
Date and (b) that by its terms (or by the terms of any security into which
it is convertible or for which it is exchangeable or exercisable) or upon the
happening of any event does not (i)(x) mature or become mandatorily
redeemable pursuant to a sinking fund obligation or otherwise, (y) become
convertible or exchangeable at the option of the holder thereof for
Indebtedness or preferred stock that is not Qualified PIK Securities or
(z) become redeemable at the option of the holder thereof (other than as a
result of a change of control), in whole or in part, in each case on or prior
to the first anniversary of the Tranche B-1 Term Loan Maturity Date and
(ii) provide holders thereunder with any rights upon the occurrence of a “change
of control” event prior to the repayment of the Obligations under the Credit
Documents and (2) any Indebtedness of the Borrower which has payments terms at
least as favorable to the Borrower and Lenders as described in clauses (1)(a)
and (b) above and is subordinated on customary terms and conditions (including
remedy standstills at all times prior to the Tranche B-1 Term Loan Maturity
Date) and has other terms, other than with respect to interest rates, at least
as favorable to the Borrower and Lenders as the Senior Notes.


 


“Real Estate” shall have the meaning
provided in Section 9.1(f).


 


“Redemption” shall mean the
redemption, defeasance or other repurchase of the 2005 Notes.


 


“Reference Lender” shall mean
Citibank, N.A.


 


“Register” shall have the meaning
provided in Section 13.6(b)(iv).


 


32





















 


“Regulation D” shall mean
Regulation D of the Board as from time to time in effect and any successor
to all or a portion thereof establishing reserve requirements.


 


“Regulation T” shall mean Regulation T
of the Board as from time to time in effect and any successor to all or a portion
thereof establishing margin requirements.


 


“Regulation U” shall mean
Regulation U of the Board as from time to time in effect and any successor to
all or a portion thereof establishing margin requirements.


 


“Regulation X” shall mean
Regulation X of the Board as from time to time in effect and any successor
to all or a portion thereof establishing margin requirements.


 


“Reinvestment Period” shall mean the
earlier of (a) 10 Business Days prior to the occurrence of an obligation
to make an offer to repurchase Senior Notes (or any Permitted Additional Notes)
pursuant to the asset sale or event of loss provisions of the Senior Note
Indenture and (b) 15 months following the date of such Asset Sale
Prepayment Event or Casualty Event.


 


“Related Parties” shall mean, with
respect to any specified Person, such Person’s Affiliates and the directors,
officers, employees, agents, trustees, advisors of such Person and any Person
that possesses, directly or indirectly, the power to direct or cause the
direction of the management or policies of such Person, whether through the
ability to exercise voting power, by contract or otherwise.


 


“Repayment Amount” shall mean the
Tranche A-1 Repayment Amount, the Tranche A-2 Repayment Amount and the Tranche
B-1 Repayment Amount, as applicable.


 


“Repayment Date” shall mean a Tranche
A-1 Repayment Date, the Tranche A-2 Repayment Date or a Tranche B-1 Repayment
Date, as applicable.


 


“Reportable Event” shall mean an event
described in Section 4043 of ERISA and the regulations thereunder.


 


“Required Lenders” shall mean, at any
date, (a) Non-Defaulting Lenders having or holding a majority of the sum
of (i) the Adjusted Total Revolving Credit Commitment at such date, (ii)
the Adjusted Total Term Loan Commitment at such date and (iii) the outstanding
principal amount of the Term Loans (excluding Term Loans held by Defaulting Lenders)
at such date or (b) if the Total Revolving Credit Commitment and the Total
Term Loan Commitment have been terminated or for the purposes of acceleration
pursuant to Section 11, the holders (excluding Defaulting Lenders) of a
majority of the outstanding principal amount of the Loans and Letter of Credit
Exposures (excluding the Loans and Letter of Credit Exposure of Defaulting
Lenders) in the aggregate at such date.


 


“Required Tranche A Term Loan Lenders”
shall mean, at any date, Non-Defaulting Lenders having or holding a majority of
the sum of (a) the portion of the Adjusted Total Term Loan Commitment that
relates to Tranche A Term Loan Commitments at such date and (b) the
outstanding principal amount of the Tranche A Term Loans (excluding
Tranche A Term Loans held by Defaulting Lenders) in the aggregate at such
date.


 


33





















 


“Required Tranche B-1 Term Loan Lenders”
shall mean, at any date, Non-Defaulting Lenders having or holding a majority of
the sum of (a) the portion of the Adjusted Total Term Loan Commitment that
relates to Tranche B-1 Term Loan Commitments at such date and (b) the
outstanding principal amount of the Tranche B-1 Term Loans (excluding Tranche
B-1 Term Loans held by Defaulting Lenders) in the aggregate at such date.


 


“Requirement of Law” shall mean, as to
any Person, the Certificate of Incorporation and by-laws or other organizational
or governing documents of such Person, and any law, treaty, rule or regulation
or determination of an arbitrator or a court or other Governmental Authority,
in each case applicable to or binding upon such Person or any of its property
or assets or to which such Person or any of its property or assets is subject.


 


“Restricted Foreign Subsidiary” shall
mean a Foreign Subsidiary that is a Restricted Subsidiary.


 


“Restricted Subsidiary” shall mean any
Subsidiary of the Borrower other than an Unrestricted Subsidiary; provided
that in any event each License Subsidiary shall be a Restricted Subsidiary.


 


“Revolving Credit Commitment” shall
mean, (a) with respect to each Original Lender that is a Lender on the Closing
Date, the amount set forth opposite such Lender’s name on Schedule 1.1(c)
to the Original Credit Agreement as such Lender’s “Revolving Credit Commitment”
and (b) in the case of any Lender that becomes a Lender after the Closing Date,
the amount specified as such Lender’s “Revolving Credit Commitment” in the
Assignment and Acceptance pursuant to which such Lender assumed a portion of
the Total Revolving Credit Commitment, in each case of the same may be changed
from time to time pursuant to terms hereof. 
The aggregate amount of the Revolving Credit Commitment as of the
Amendment Effective Date is $250,000,000.


 


“Revolving Credit Commitment Percentage”
shall mean at any time, for each Lender, the percentage obtained by dividing
(a) such Lender’s Revolving Credit Commitment by (b) the aggregate amount of
the Revolving Credit Commitments, provided that at any time when the
Total Revolving Credit Commitment shall have been terminated, each Lender’s
Revolving Credit Commitment Percentage shall be its Revolving Credit Commitment
Percentage as in effect immediately prior to such termination.


 


“Revolving Credit Exposure” shall
mean, with respect to any Lender at any time, the sum of (a) the aggregate
principal amount of the Revolving Credit Loans of such Lender then outstanding,
(b) such Lender’s Letter of Credit Exposure at such time and (c) such
Lender’s Revolving Credit Commitment Percentage of the aggregate principal
amount of all outstanding Swingline Loans.


 


“Revolving Credit Loans” shall have
the meaning provided in Section 2.1(b).


 


“Revolving Credit Maturity Date” shall
mean the date that is five years after the Closing Date, or, if such date is
not a Business Day, the next preceding Business Day.


 


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“Sale Leaseback” shall mean any
transaction or series of related transactions pursuant to which the Borrower or
any of the Restricted Subsidiaries (a) sells, transfers or otherwise disposes
of any property, real or personal, whether now owned or hereafter acquired, and
(b) as part of such transaction, thereafter rents or leases such property or
other property that it intends to use for substantially the same purpose or
purposes as the property being sold, transferred or disposed.


 


“Satellite” shall mean any satellite
owned by, or leased to, the Borrower or any of its Restricted Subsidiaries and
any satellite purchased pursuant to the terms of a Satellite Purchase
Agreement, whether such satellite is in the process of manufacture, has been
delivered for launch or is in orbit (whether or not in operational service).


 


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


 


“Satellite Purchase Agreement” shall
mean, with respect to any Satellite, the agreement between the applicable Satellite
Purchaser and the applicable Satellite Manufacturer relating to the
manufacture, testing and delivery of such Satellite.


 


“Satellite Purchaser” shall mean the
Borrower or Restricted Subsidiary that is a party to a Satellite Purchase Agreement
or Launch Services Agreement, as the case may be.


 


“Satellite Risk Management Program”
shall mean the in-orbit insurance program of the Borrower described in Schedule
A to the Original Credit Agreement.


 


“S&P” shall mean
Standard & Poor’s Ratings Services or any successor by merger or
consolidation to its business.


 


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


 


“Section 9.1 Financials” shall mean
the financial statements delivered, or required to be delivered, pursuant to Section
9.1(a) or (b) together with the accompanying officer’s certificate delivered,
or required to be delivered, pursuant to Section 9.1(d).


 


“Secured Parties” shall have the
meaning assigned to such term in the applicable Security Documents.


 


“Security Agreements” shall mean the
Lender Security Agreement and the Shared Security Agreement.


 


“Security Documents” shall mean,
collectively, (a) the Guarantee, (b) the Pledge Agreements, (c) the Security
Agreements, (d) the Mortgages, (e) the Intercreditor and Collateral
Trust Agreement and (f) each other security agreement or other instrument or
document executed and delivered pursuant to Section 9.11 or 9.12 or pursuant to
any of the Security Documents to secure any of the Obligations.


 


35





















 


“Senior Notes” shall mean (a) the
Senior Notes defined in the Recitals hereof and (b) any replacement or
refinancing thereof that constitutes Permitted Additional Notes, provided
that any such amendment, replacement or refinancing shall bear a rate of
interest determined by the board of directors of the Borrower to be a market
rate of interest at the date of such amendment, replacement or refinancing and
have other terms customary for similar issuances under similar market
conditions or otherwise be on terms reasonably acceptable to the Administrative
Agent.


 


“Senior Note Indenture” shall mean the
Indenture dated as of the Closing Date, among the Borrower, the guarantors
party thereto and The Bank of New York, as trustee, pursuant to which the
Senior Notes are issued, as the same may be amended, supplemented or otherwise
modified from time to time in accordance therewith.


 


“Senior 1998 Notes” shall mean each of
the Borrower’s 61/8% Notes due 2005 (the “2005 Notes”)
in an aggregate outstanding principal amount of $275,000,000 as of the Closing
Date, 63/8% Notes due 2008 in an aggregate outstanding
principal amount of $150,000,000 as of the Closing Date, and 67/8%
Debentures due 2028 in an aggregate outstanding principal amount of
$125,000,000 as of the Closing Date.


 


“Senior 1998 Notes Indenture” shall
mean that certain indenture dated as of January 16, 1998 made by and among
the Borrower, as issuer, and JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank), as trustee, pursuant to which the Senior 1998 Notes are
issued.


 


“Series” shall have the meaning as
provided in Section 2.14.


 


“Shared Pledge Agreement” shall mean
the Shared Pledge Agreement entered into by the Borrower, the other pledgors
party thereto and the Collateral Trustee for the benefit of the Lenders,
substantially in the form of Exhibit F-1 to the Original Credit Agreement,
as the same may be amended, supplemented or otherwise modified from time to
time.


 


“Shared Security Agreement” shall mean
the Security Agreement entered into by the Borrower, the other grantors party
thereto and the Collateral Trustee for the benefit of the Lenders,
substantially in the form of Exhibit G-1 to the Original Credit
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time.


 


“Sold Entity or Business” shall have
the meaning provided in the definition of the term “Consolidated EBITDA”.


 


“Solvent” shall mean, with respect to
the Borrower, that as of the Closing Date, both (i) (a) the sum of the Borrower’s
debt (including contingent liabilities) does not exceed the present fair
saleable value of the Borrower’s present assets; (b) the Borrower’s capital is
not unreasonably small in relation to its business as contemplated on the
Closing Date; and (c) the Borrower has not incurred and does not intend to
incur, or believe that it will incur, debts including current obligations
beyond its ability to pay such debts as they become due (whether at maturity or
otherwise); and (ii) such Person is “solvent” within the meaning given that
term and similar terms under applicable laws relating to fraudulent transfers
and conveyances.  For purposes of


 


36





















 


this
definition, the amount of any contingent liability at any time shall be
computed as the amount that, in light of all of the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability (irrespective of whether such contingent
liabilities meet the criteria for accrual under Statement of Financial Accounting
Standard No.5).


 


“Specified Subsidiary” shall mean, at
any date of determination (a) any Material Subsidiary or (b) any Unrestricted Subsidiary
(i) whose total assets at the last day of the Test Period ending on the
last day of the most recent fiscal period for which Section 9.1 Financials have
been delivered were equal to or greater than 10% of the consolidated total
assets of the Borrower and the Subsidiaries at such date, (ii) whose gross
revenues for such Test Period were equal to or greater than 10% of the
consolidated gross revenues of the Borrower and the Subsidiaries for such
period, in each case determined in accordance with GAAP and (c) each other
Subsidiary that, when combined with any other Subsidiary that is the subject of
an Event of Default under Section 11.5 would constitute a Specified Subsidiary
under clause (a) or (b) above.


 


“Sponsor” shall mean any of KKR,
Carlyle and Providence and their respective Affiliates.


 


“Stated Amount” of any Letter of
Credit shall mean the maximum amount from time to time available to be drawn
thereunder, determined without regard to whether any conditions to drawing
could then be met.


 


“Status” shall mean, as to the
Borrower as of any date, the existence of Level I Status, Level II Status,
Level III Status Level IV Status or Level V Status, as the case may be on
such date.  Changes in Status resulting
from changes in the Consolidated Total Debt to Consolidated EBITDA Ratio shall
become effective (the date of such effectiveness, the “Effective Date”)
as of the first day following the last day of the most recent fiscal year or
period for which (a) Section 9.1 Financials are delivered to the Lenders
under Section 9.1 and (b) an officer’s certificate is delivered by the
Borrower to the Lenders setting forth, with respect to such Section 9.1
Financials, the then-applicable Status, and shall remain in effect until the
next change to be effected pursuant to this definition, provided that
(i) if the Borrower shall have made any payments in respect of interest or
commitment fees during the period (the “Interim Period”) from and
including the Effective Date to but excluding the day any change in Status is determined
as provided above, then the amount of the next such payment due on or after
such day shall be increased or decreased by an amount equal to any underpayment
or overpayment so made by the Borrower during such Interim Period and
(ii) each determination of the Consolidated Total Debt to Consolidated
EBITDA Ratio pursuant to this definition shall be made with respect to the Test
Period ending at the end of the fiscal period covered by the relevant financial
statements.


 


“Statutory Reserve Rate” shall mean
for any day as applied to any LIBOR Loan, a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages that are in
effect on that day (including any marginal, special, emergency or supplemental
reserves), expressed as a decimal, as prescribed by the Board and to which the
Administrative Agent is subject, for eurocurrency funding (currently referred
to as “Eurocurrency Liabilities” in Regulation D of the Board).  Such reserve percentages shall include those
imposed pursuant to such


 


37





















 


Regulation D.  LIBOR Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation.  The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change
in any reserve percentage.


 


“Subject Licenses” shall mean all FCC
Licenses for the launch and operation of Satellites with C-band or Ku-band transponders
and the operation of TT&C Stations used to control such Satellites and,
from and after the launch of any Satellites other than those that have C-band
or Ku-band transponders, the FCC Licenses for the launch and operation of such
Satellites and for the operation of TT&C Stations used to control such
Satellites.


 


“Subsidiary” of any Person shall mean
and include (a) any corporation more than 50% of whose stock of any class or
classes having by the terms thereof ordinary voting power to elect a majority
of the directors of such corporation (irrespective of whether or not at the
time stock of any class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the time
owned by such Person directly or indirectly through Subsidiaries and (b) any
partnership, association, joint venture or other entity in which such Person
directly or indirectly through Subsidiaries has more than a 50% equity interest
at the time.  Unless otherwise expressly
provided, all references herein to a “Subsidiary” shall mean a Subsidiary of
the Borrower.


 


“Subsidiary Guarantors” shall mean (a)
each Domestic Subsidiary (other than an Unrestricted Subsidiary) on the Closing
Date and (b) each Domestic Subsidiary that becomes a party to the Guarantee
after the Closing Date pursuant to Section 9.11.


 


“Subordinated Indebtedness” shall mean
Indebtedness of Borrower or any Guarantor that is by its terms subordinated in
right of payment to the obligations of Borrower and such Guarantor, as
applicable, under this Agreement.


 


“Successor Borrower” shall have the
meaning provided in Section 10.3(a).


 


“Swingline Commitment” shall mean
$25,000,000.


 


“Swingline Lender” shall mean Citicorp
USA, Inc. in its capacity as lender of Swingline Loans hereunder.


 


“Swingline Loans” shall have the
meaning provided in Section 2.1(c).


 


“Swingline Maturity Date” shall mean,
with respect to any Swingline Loan, the date that is five Business Days prior
to the Revolving Credit Maturity Date.


 


“Syndication Agent” shall mean (a)
with respect to the Original Credit Agreement, Credit Suisse First Boston, together
with its affiliates, as the syndication agent for the Original Lenders and (b)
with respect to this Amended and Restated Credit Agreement, Merrill Lynch,
Pierce, Fenner & Smith Incorporated, in each case, under this Agreement and
the other Credit Documents.


 


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“Taxes” shall mean any and all present
or future taxes, duties, levies, imposts, assessments, deductions, withholdings
or other similar charges imposed by any Governmental Authority whether computed
on a separate, consolidated, unitary, combined or other basis and any and all
liabilities (including interest, fines, penalties or additions to tax) with
respect to the foregoing.


 


“TT&C Station” shall mean an earth
station operated by the Borrower or any of its Restricted Subsidiaries for the
purpose of providing tracking, telemetry, control and monitoring of any
Satellite.


 


“Tender Offer” shall mean,
collectively (a) the offer to purchase any and all Existing Senior Notes and
the solicitation of certain consents relating to the Existing Senior Notes Indenture
and (b) the offer to purchase any and all 2005 Notes.


 


“Term Loans” shall mean the Tranche A
Term Loans and the Tranche B-1 Term Loans, collectively.


 


“Term Loan Commitment” shall mean,
with respect to each Lender, such Lender’s Tranche A Term Loan Commitment and
Tranche B-1 Term Loan Commitment.


 


“Test Period” shall mean, for any
determination under this Agreement, the four consecutive fiscal quarters of the
Borrower then last ended; provided, however, that for any period
ending prior to one year after the end of the first fiscal quarter ending after
the Closing Date, pro forma adjustments shall be made with respect to the
relevant determination in accordance with Schedule 1.1(e) to the
Original Credit Agreement.


 


“Third Party Launch Liability Insurance”
shall mean insurance for legal liability for property loss or damage and bodily
injury caused by any Satellite or the launch vehicle used to launch such
Satellite and procured by the Launch Services Provider with respect to such
Satellite in accordance with the terms of the related Launch Services
Agreement.


 


“364-day Facility” shall mean the
364-day Revolving Credit Agreement, dated as of August 18, 2004,
between the Borrower, the Lenders party thereto and Citicorp North America,
Inc., as Administrative Agent, Citigroup Global Markets Inc., as Joint Lead
Arranger and Joint Bookrunner, Credit Suisse First Boston, acting through its
Cayman Islands Branch, as Joint Lead Arranger, Joint Bookrunner and Syndication
Agent, and Bear, Stearns & Co. Inc. and Lehman Brothers Inc., as
Co-Documentation Agents.


 


“Total Commitment” shall mean the sum
of the Total Term Loan Commitment and the Total Revolving Credit Commitment.


 


“Total Credit Exposure” shall mean, at
any date, the sum of (a) the Total Revolving Credit Commitment at such date,
(b) the Total Term Loan Commitment at such date and (c) the
outstanding principal amount of all Term Loans at such date.


 


“Total Revolving Credit Commitment”
shall mean the sum of the Revolving Credit Commitments of all the Lenders.


 


39


















 


“Total Term
Loan Commitment” shall mean the sum of the Tranche A Term Loan Commitments,
the Tranche B-1 Commitments and New Tranche B-1 Term Loan Commitments, if
applicable, of all the Lenders.


 


“Tranche A
Repayment Amount” shall have the meaning provided in Section 2.5(b).


 


“Tranche A
Repayment Date” shall have the meaning provided in Section 2.5(b).


 


“Tranche A
Term Loans” shall mean the Tranche A-1 Term Loans and the Tranche A-2 Term
Loans.


 


“Tranche A
Term Loan Commitments” shall mean the Tranche A-1 Term Loan Commitments and
the Tranche A-2 Term Loan Commitments.


 


“Tranche A
Term Loan Lender” shall mean a Lender with a Tranche A Term Loan Commitment
or an outstanding Tranche A Term Loan.


 


“Tranche
A-1 Term Loan” shall have the meaning provided in Section 2.1.


 


“Tranche
A-1 Term Loan Commitment” shall mean (a) in the case of each Original
Lender that is a Lender on the Closing Date, the amount set forth opposite such
Lender’s name on Schedule 1.1(c) as such Lender’s “Tranche A-1 Term
Loan Commitment” and (b) in the case of any Lender that becomes a Lender
after the date hereof, the amount specified as such Lender’s “Tranche A-1
Commitment” in the Assignment and Acceptance pursuant to which such Lender
assumed a portion of the Total Tranche A-1 Term Loan Commitment, in each case
as the same may be changed from time to time pursuant to the terms hereof.  The aggregate amount of the Tranche A-1 Term
Loan Commitments as of the Closing Date is $550,000,000.


 


“Tranche
A-2 Term Loan” shall have the meaning provided in Section 2.1.


 


“Tranche
A-2 Term Loan Commitment” shall mean (a) in the case of each Original
Lender that is a Lender on the Closing Date, the amount set forth opposite such
Original Lender’s name on Schedule 1.1(c) as such Lender’s “Tranche
A-2 Term Loan Commitment” on the Closing Date and (b) in the case of any
Lender that becomes a Lender after the date hereof, the amount specified as
such Lender’s “Tranche A-2 Commitment” in the Assignment and Acceptance
pursuant to which such Lender assumed a portion of the Total Tranche A-2 Term
Loan Commitment, in each case as the same may be changed from time to time
pursuant to the terms hereof.  The
aggregate amount of the Tranche A-2 Term Loan Commitments as of the Closing
Date is $250,000,000.


 


“Tranche
A-2 Term Loan Commitment Termination Date” shall mean the earlier of (a) March 31,
2005, if the Tranche A-2 Term Loan(s) have not been made on or prior to such
date, or if such date is not a Business Day, the immediately preceding Business
Day and (b) the date the Tranche A-2 Term Loan Commitment is reduced to $0.


 


40





















 


“Tranche A
Term Loan Maturity Date” shall mean the date which is five years after the
Closing Date or, if such date is not a Business Day, the first Business Day
thereafter.


 


“Tranche
B-1 Repayment Amount” shall have the meaning provided in Section 2.5(c).


 


“Tranche
B-1 Repayment Date” shall have the meaning provided in Section 2.5(c).


 


“Tranche
B-1 Term Loan” shall have the meaning provided in Section 2.1.


 


“Tranche
B-1 Term Loan Commitment” shall mean, (a) in the case of each Lender
that is a Lender on the date hereof, the amount of Tranche B-1 Term Loans that
such Lender has agreed to make on the Amendment Effective Date as set forth in
the Amendment Agreement and (b) in the case of any Lender that becomes a
Lender after the date hereof, the amount specified as such Lender’s “Tranche
B-1 Term Loan Commitment” in the Assignment and Acceptance pursuant to which
such Lender assumed a portion of the Total Tranche B-1 Commitment, in each case
as the same may be changed from time to time pursuant to the terms hereof.  The aggregate amount of the Tranche B-1
Commitments as of the Amendment Effective Date is $1,647,500,000.


 


“Tranche
B-1 Term Loan Lender” shall mean a Lender with a Tranche B-1 Term Loan
Commitment or an outstanding Tranche B-1 Term Loan.


 


“Tranche
B-1 Term Loan Maturity Date” shall mean the date which is seven years after
the Closing Date or, if such date is not a Business Day, the first Business Day
thereafter.


 


“Transactions”
shall mean, collectively, the transactions contemplated by this Agreement, the
Senior Notes Indenture, the Acquisition, the Equity Investments, the Redemption
and the Tender Offer and Consent Solicitation.


 


“Transaction
Expenses” shall mean any fees or expenses incurred or paid by the Borrower
or any of its Subsidiaries in connection with the Transactions, this Agreement
and the other Credit Documents and the transactions contemplated hereby and
thereby.


 


“Transferee”
shall have the meaning provided in Section 13.6(e).


 


“Type”
shall mean (a) as to any Term Loan, its nature as an ABR Loan or a LIBOR
Term Loan and (b) as to any Revolving Credit Loan, its nature as an ABR Loan or
a LIBOR Revolving Credit Loan.


 


“Unfunded
Current Liability” of any Plan shall mean the amount, if any, by which the
present value of the accrued benefits under the Plan as of the close of its
most recent plan year, determined in accordance with Statement of Financial
Accounting Standards No. 87 as in effect on the Closing Date, based upon the
actuarial assumptions that would be used by the Plan’s actuary in a termination
of the Plan, exceeds the fair market value of the assets allocable thereto.


 


41





















 


“Unpaid
Drawing” shall have the meaning provided in Section 3.4(a).


 


“Unrestricted
Subsidiary” shall mean (a) any Subsidiary of the Borrower that is
formed or acquired after the Closing Date, provided that at such time
(or promptly thereafter) the Borrower designates such Subsidiary an
Unrestricted Subsidiary in a written notice to the Administrative Agent,
(b) any Restricted Subsidiary subsequently re-designated as an
Unrestricted Subsidiary by the Borrower in a written notice to the
Administrative Agent, provided that in the case of (a) and (b), (x) such
designation or re-designation shall be deemed to be an Investment on the date
of such designation or re-designation in an Unrestricted Subsidiary in an
amount equal to the sum of (i) the Borrower’s direct or indirect equity
ownership percentage of the net worth of such designated or re-designated
Restricted Subsidiary immediately prior to such designation or re-designation
(such net worth to be calculated without regard to any guarantee provided by
such designated or re-designated Restricted Subsidiary) and (ii) the aggregate
principal amount of any Indebtedness owed by such designated or re-designated
Restricted Subsidiary to the Borrower or any other Restricted Subsidiary
immediately prior to such designation or re-designation, all calculated, except
as set forth in the parenthetical to clause (i), on a consolidated basis in accordance
with GAAP and (y) no Default or Event of Default would result from such
designation or re-designation and (c) each Subsidiary of an Unrestricted
Subsidiary; provided, however, that at the time of any written
designation or re-designation by the Borrower to the Administrative Agent that
any Unrestricted Subsidiary shall no longer constitute an Unrestricted
Subsidiary, such Unrestricted Subsidiary shall cease to be an Unrestricted
Subsidiary to the extent no Default or Event of Default would result from such
designation or re-designation.  On or
promptly after the date of its formation, acquisition, designation or
re-designation, as applicable, each Unrestricted Subsidiary (other than an
Unrestricted Subsidiary that is a Foreign Subsidiary) shall have entered into a
tax sharing agreement containing terms that, in the reasonable judgment of the
Administrative Agent, provide for an appropriate allocation of tax liabilities
and benefits.


 


“Voting
Stock” shall mean, with respect to any Person, shares of such Person’s
capital stock having the right to vote for the election of directors of such
Person under ordinary circumstances.


 


The words “hereof,”
“herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section references are to Sections of
this Agreement unless otherwise specified. 
The words “include,” “includes” and “including” shall be deemed to be followed
by the phrase “without limitation”.


 


1.2.                              Exchange
Rates.  For purposes of determining
compliance under Sections 10.4, 10.5, 10.6, 10.9, 10.10 and 10.11 with
respect to any amount in a Foreign Currency, such amount shall be deemed to
equal the Dollar Equivalent thereof based on the average Exchange Rate for a
Foreign Currency for the most recent twelve-month period immediately prior to
the date of determination determined in a manner consistent with that used in
calculating Consolidated EBITDA for the related period.  For purposes of determining compliance with
Sections 10.1 and 10.2, with respect to any amount of Indebtedness in a Foreign
Currency, compliance will be determined at the time of incurrence thereof using
the Dollar Equivalent thereof at the Exchange Rate in effect at the time of
such incurrence.


 


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SECTION 2.                                Amount and Terms of Credit


 


2.1.                              Commitments.  (a)    Subject to and upon the terms and conditions
herein set forth,


 


(i)                                     each Lender having
a Tranche A-1 Term Loan Commitment severally agrees to make a loan or loans
(each a “Tranche A-1 Term Loan”)
on the Closing Date to the Borrower in Dollars, which Tranche A-1 Term Loans
shall not exceed for any such Lender the Tranche A-1 Term Loan Commitment of
such Lender and in the aggregate shall not exceed $550,000,000;


 


(ii)                                  each Lender having a
Tranche A-2 Term Loan Commitment severally agrees to make a loan or loans (each
a “Tranche A-2 Term Loan”) on or after the Closing Date and on or prior
to the Tranche A-2 Term Loan Commitment Termination Date, to the Borrower in
Dollars in an amount equal to the portion of such Lender’s Tranche A-2 Term
Loan Commitment as requested by the Borrower to be made on such date, which
Tranche A-2 Term Loans shall not exceed for any such Lender the Tranche A-2
Term Loan Commitment of such Lender and in the aggregate shall not exceed
$250,000,000; and


 


(iii)                               each Lender having a
Tranche B-1 Commitment severally agrees to make a loan or loans (each a “Tranche B-1 Term Loan”) on the Amendment
Effective Date to the Borrower in Dollars, which Tranche B-1 Term Loans shall
not exceed for any such Lender the Tranche B-1 Term Loan Commitment of such
Lender and in the aggregate shall not exceed $1,647,500,000 (it being
understood that Tranche B Term Loan Lenders under the Original Credit Agreement
that execute and deliver the Amendment Agreement are converting their Tranche B
Loans under the Original Credit Agreement into Tranche B-1 Term Loans
hereunder).


 


Such Term Loans (i) shall
be made on the Closing Date or Amendment Effective Date, as applicable, or
thereafter in accordance with paragraph (ii) above, (ii) may at the option
of the Borrower be incurred and maintained as, and/or converted into, ABR Loans
or LIBOR Term Loans, provided that all such Term Loans made by each of
the Lenders pursuant to the same Borrowing shall, unless otherwise specifically
provided herein, consist entirely of Term Loans of the same Type,
(iii) may be repaid or prepaid in accordance with the provisions hereof,
but once repaid or prepaid, may not be reborrowed, (iv) shall not exceed for
any such Lender the Tranche A-1 Term Loan Commitment, Tranche A-2 Term Loan
Commitment or Tranche B-1 Term Loan Commitment, as applicable, of such Lender
and (v) shall not exceed in the aggregate the total of all Tranche A Term
Loan Commitments or Tranche B-1 Term Loan Commitments, as applicable.  On the Tranche A Term Loan Maturity Date, all
then unpaid Tranche A Term Loans shall be repaid in full.  On the Tranche B-1 Term Loan Maturity Date,
all then unpaid Tranche B-1 Term Loans shall be repaid in full.


 


(b)                                 (i)  Subject to and upon the terms and conditions
herein set forth, each Lender having a Revolving Credit Commitment severally
agrees to make a loan or loans denominated in Dollars (each a “Revolving
Credit Loan” and, collectively, the “Revolving Credit Loans”) to the
Borrower which Revolving Credit Loans (A) shall be made at any time and
from


 


43





















 


time to time on and after the
Closing Date and prior to the Revolving Credit Maturity Date, (B) may, at
the option of the Borrower be incurred and maintained as, and/or converted
into, ABR Loans or LIBOR Revolving Credit Loans, provided that all
Revolving Credit Loans made by each of the Lenders pursuant to the same
Borrowing shall, unless otherwise specifically provided herein, consist
entirely of Revolving Credit Loans of the same Type, (C) may be repaid and
reborrowed in accordance with the provisions hereof, (D) shall not, for any
such Lender at any time, after giving effect thereto and to the application of
the proceeds thereof, result in such Lender’s Revolving Credit Exposure at such
time exceeding such Lender’s Revolving Credit Commitment at such time and (E)
shall not, after giving effect thereto and to the application of the proceeds
thereof, result at any time in the aggregate amount of the Lenders’ Revolving
Credit Exposures at such time exceeding the Total Revolving Credit Commitment
then in effect.


 


(ii)                                  Each Lender may at
its option make any LIBOR Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan, provided that (A) any exercise
of such option shall not affect the obligation of the Borrower to repay such
Loan and (B) in exercising such option, such Lender shall use its
reasonable efforts to minimize any increased costs to the Borrower resulting
therefrom (which obligation of the Lender shall not require it to take, or
refrain from taking, actions that it determines would result in increased costs
for which it will not be compensated hereunder or that it determines would be
otherwise disadvantageous to it and in the event of such request for costs for
which compensation is provided under this Agreement, the provisions of Section 3.5
shall apply).  On the Revolving Credit Maturity
Date, all Revolving Credit Loans shall be repaid in full.


 


(c)                                  Subject
to and upon the terms and conditions herein set forth, the Swingline Lender in
its individual capacity agrees, at any time and from time to time on and after
the Closing Date and prior to the Swingline Maturity Date, to make a loan or
loans (each a “Swingline Loan” and, collectively, the “Swingline
Loans”) to the Borrower in Dollars, which Swingline Loans (i) shall be
ABR Loans, (ii) shall have the benefit of the provisions of Section 2.1(d),
(iii) shall not exceed at any time outstanding the Swingline Commitment,
(iv) shall not, after giving effect thereto and to the application of the
proceeds thereof, result at any time in the aggregate amount of the Lenders’
Revolving Credit Exposures at such time exceeding the Total Revolving Credit
Commitment then in effect and (v) may be repaid and reborrowed in accordance
with the provisions hereof.  On the
Swingline Maturity Date, each outstanding Swingline Loan shall be repaid in
full.  The Swingline Lender shall not
make any Swingline Loan after receiving a written notice from the Borrower or
any Lender stating that a Default or Event of Default exists and is continuing
until such time as the Swingline Lender shall have received written notice of
(i) rescission of all such notices from the party or parties originally
delivering such notice or (ii) the waiver of such Default or Event of
Default in accordance with the provisions of Section 13.1.


 


(d)                                 On
any Business Day, the Swingline Lender may, in its sole discretion, give notice
to the Lenders with a Revolving Credit Commitment that all then-outstanding
Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in
which case Revolving Credit Loans constituting ABR Loans (each such Borrowing,
a “Mandatory Borrowing”) shall be made on the immediately succeeding
Business Day by all Lenders with a Revolving Credit Commitment pro rata based on each Lender’s Revolving Credit Commitment
Percentage,


 


44





















 


and the proceeds thereof shall
be applied directly to the Swingline Lender to repay the Swingline Lender for
such outstanding Swingline Loans.  Each
Lender with a Revolving Credit Commitment hereby irrevocably agrees to make
such Revolving Credit Loans upon one Business Day’s notice pursuant to each
Mandatory Borrowing in the amount and in the manner specified in the preceding
sentence and on the date specified to it in writing by the Swingline Lender notwithstanding
(i) that the amount of the Mandatory Borrowing may not comply with the minimum
amount for each Borrowing specified in Section 2.2, (ii) whether any
conditions specified in Section 7 are then satisfied, (iii) whether a
Default or an Event of Default has occurred and is continuing, (iv) the date of
such Mandatory Borrowing or (v) any reduction in the Total Commitment after any
such Swingline Loans were made.  In the
event that, in the sole judgment of the Swingline Lender, any Mandatory
Borrowing cannot for any reason be made on the date otherwise required above
(including as a result of the commencement of a proceeding under the Bankruptcy
Code in respect of the Borrower), each Lender with a Revolving Credit
Commitment hereby agrees that it shall forthwith purchase from the Swingline
Lender (without recourse or warranty) such participation of the outstanding
Swingline Loans as shall be necessary to cause the Lenders to share in such
Swingline Loans ratably based upon their respective Revolving Credit Commitment
Percentages, provided that all principal and interest payable on such
Swingline Loans shall be for the account of the Swingline Lender until the date
the respective participation is purchased and, to the extent attributable to
the purchased participation, shall be payable to the Lender purchasing same
from and after such date of purchase.


 


2.2.                              Minimum
Amount of Each Borrowing; Maximum Number of Borrowings.  The aggregate principal amount of each
Borrowing of Term Loans or Revolving Credit Loans shall be in a multiple of
$1,000,000 and Swingline Loans shall be in a multiple of $10,000 and, in each
case, shall not be less than the Minimum Borrowing Amount with respect thereto
(except that Mandatory Borrowings shall be made in the amounts required by Section 2.1(d)).  More than one Borrowing may be incurred on
any date, provided that at no time shall there be outstanding more than
20 Borrowings of LIBOR Loans under this Agreement.


 


2.3.                              Notice
of Borrowing.  (a)    The
Borrower shall give the Administrative Agent at the Administrative Agent’s
Office (i) prior to 12:00 Noon (New York City time) at least three
Business Days’ prior written notice (or telephonic notice promptly confirmed in
writing) of the Borrowing of Term Loans if all or any of such Term Loans are to
be initially LIBOR Loans, and (ii) prior written notice (or telephonic
notice promptly confirmed in writing) prior to 10:00 a.m. (New York City
time) on the date of the Borrowing of Term Loans if all such Term Loans are to
be ABR Loans.  Such notice (together with
each notice of a Borrowing of Revolving Credit Loans pursuant to Section 2.3(b)
and each notice of a Borrowing of Swingline Loans pursuant to Section 2.3(c),
a “Notice of Borrowing”) shall be irrevocable and shall specify
(i) the aggregate principal amount of the Term Loans to be made,
(ii) the date of the Borrowing (which shall be the Closing Date) and
(iii) whether the Term Loans shall consist of ABR Loans and/or LIBOR Term
Loans and, if the Term Loans are to include LIBOR Term Loans, the Interest
Period to be initially applicable thereto. 
The Administrative Agent shall promptly give each Lender written notice (or
telephonic notice promptly confirmed in writing) of the proposed Borrowing of
Term Loans, of such Lender’s proportionate share thereof and of the other
matters covered by the related Notice of Borrowing.


 


45





















 


(b)                                 Whenever
the Borrower desires to incur Revolving Credit Loans (other than Mandatory
Borrowings or borrowings to repay Unpaid Drawings), it shall give the Administrative
Agent at the Administrative Agent’s Office, (i) prior to 12:00 Noon (New York City
Time) at least three Business Days’ prior written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing of LIBOR Revolving Credit
Loans, and (ii) prior to 12:00 Noon (New York City time) at least one
Business Day’s prior written notice (or telephonic notice promptly confirmed in
writing) of each Borrowing of ABR Loans. 
Each such Notice of Borrowing, except as otherwise expressly provided in
Section 2.10, shall be irrevocable and shall specify (i) the aggregate
principal amount of the Revolving Credit Loans to be made pursuant to such
Borrowing, (ii) the date of Borrowing (which shall be a Business Day) and (iii)
whether the respective Borrowing shall consist of ABR Loans or LIBOR Revolving
Credit Loans and, if LIBOR Revolving Credit Loans, the Interest Period to be
initially applicable thereto.  The Administrative
Agent shall promptly give each Lender written notice (or telephonic notice
promptly confirmed in writing) of each proposed Borrowing of Revolving Credit
Loans, of such Lender’s proportionate share thereof and of the other matters
covered by the related Notice of Borrowing.


 


(c)                                  Whenever
the Borrower desires to incur Swingline Loans hereunder, it shall give the
Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) of each Borrowing of Swingline Loans prior to 2:30 p.m. (New York City
time) on the date of such Borrowing. 
Each such notice shall be irrevocable and shall specify (i) the
aggregate principal amount of the Swingline Loans to be made pursuant to such
Borrowing and (ii) the date of Borrowing (which shall be a Business Day).  The Administrative Agent shall promptly give
the Swingline Lender written notice (or telephonic notice promptly confirmed in
writing) of each proposed Borrowing of Swingline Loans and of the other matters
covered by the related Notice of Borrowing.


 


(d)                                 Mandatory
Borrowings shall be made upon the notice specified in Section 2.1(d), with
the Borrower irrevocably agreeing, by its incurrence of any Swingline Loan, to
the making of Mandatory Borrowings as set forth in such Section.


 


(e)                                  Borrowings
to reimburse Unpaid Drawings shall be made upon the notice specified in Section 3.4(a).


 


(f)                                    Without
in any way limiting the obligation of the Borrower to confirm in writing any notice
it may give hereunder by telephone, the Administrative Agent may act prior to
receipt of written confirmation without liability upon the basis of such
telephonic notice believed by the Administrative Agent in good faith to be from
an Authorized Officer of the Borrower. 
In each such case, the Borrower hereby waives the right to dispute the
Administrative Agent’s record of the terms of any such telephonic notice.


 


2.4.                              Disbursement
of Funds.  (a)    No
later than 12:00 Noon (New York City time) on the date specified in each Notice
of Borrowing (including Mandatory Borrowings), each Lender will make available
its pro rata portion, if any, of each
Borrowing requested to be made on such date in the manner provided below, provided
that all Swingline Loans shall be made available in the full amount thereof by
the Swingline Lender no later than 3:00 p.m. (New York City time) on the date requested.


 


46





















 


(b)                                 Each
Lender shall make available all amounts it is to fund to the Borrower under any
Borrowing for its applicable Commitments, and in immediately available funds to
the Administrative Agent at the Administrative Agent’s Office and the
Administrative Agent will (except in the case of Mandatory Borrowings and
Borrowings to repay Unpaid Drawings) make available to the Borrower, by
depositing to the Borrower’s account at the Administrative Agent’s Office the
aggregate of the amounts so made available in Dollars.  Unless the Administrative Agent shall have
been notified by any Lender prior to the date of any such Borrowing that such
Lender does not intend to make available to the Administrative Agent its
portion of the Borrowing or Borrowings to be made on such date, the
Administrative Agent may assume that such Lender has made such amount available
to the Administrative Agent on such date of Borrowing, and the Administrative
Agent, in reliance upon such assumption, may (in its sole discretion and
without any obligation to do so) make available to the Borrower a corresponding
amount.  If such corresponding amount is
not in fact made available to the Administrative Agent by such Lender and the
Administrative Agent has made available same to the Borrower, the Administrative
Agent shall be entitled to recover such corresponding amount from such
Lender.  If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent’s demand therefor
the Administrative Agent shall promptly notify the Borrower and the Borrower
shall immediately pay such corresponding amount to the Administrative
Agent.  The Administrative Agent shall
also be entitled to recover from such Lender or the Borrower interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Administrative Agent to the Borrower to the
date such corresponding amount is recovered by the Administrative Agent, at a
rate per annum equal to (i) if paid by such
Lender, the Federal Funds Effective Rate or (ii) if paid by the Borrower, the
then-applicable rate of interest or fees, calculated in accordance with Section 2.8,
for the respective Loans.


 


(c)                                  Nothing
in this Section 2.4 shall be deemed to relieve any Lender from its
obligation to fulfill its commitments hereunder or to prejudice any rights that
the Borrower may have against any Lender as a result of any default by such
Lender hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to fulfill its commitments hereunder).


 


2.5.                              Repayment
of Loans; Evidence of Debt.  (a)    The
Borrower shall repay to the Administrative Agent, for the benefit of the
Lenders, (i) on the Tranche A Term Loan Maturity Date, the then-unpaid Tranche
A Term Loans, in Dollars and (ii) on the Tranche B-1 Term Loan Maturity Date,
the then-unpaid Tranche B-1 Term Loans, in Dollars.  The Borrower shall repay to the
Administrative Agent in Dollars, for the benefit of the applicable Lenders, on
the Revolving Credit Maturity Date, the then-unpaid Revolving Credit Loans made
to the Borrower.  The Borrower shall
repay to the Administrative Agent in Dollars, for the account of the Swingline
Lender, on the Swingline Maturity Date, the then-unpaid Swingline Loans.


 


(b)                                 (i)  The Borrower shall repay to the Administrative
Agent, in Dollars, for the benefit of the Lenders of Tranche A-1 Term Loans, on
each date set forth below (each, a “Tranche A-1 Repayment Date”), the
principal amount of the Tranche A-1 Term Loans equal to (x) the outstanding
principal amount of Tranche A-1 Term Loans immediately after closing on the
Closing Date multiplied by (y) the percentage set forth below opposite such
Tranche A-1 Repayment Date (each, a “Tranche A-1 Repayment Amount”):


 


47





















 


	
  Number of Months

  From Closing Date

  	
   

  	
  Tranche A-1

  Repayment Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6

  	
   

  	
   

  	
  2.5

  	
  %

  	
   

  
	
  9

  	
   

  	
   

  	
  2.5

  	
  %

  	
   

  
	
  12

  	
   

  	
   

  	
  2.5

  	
  %

  	
   

  
	
  15

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  18

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  21

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  24

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  27

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  30

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  33

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  36

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  39

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  42

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  45

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  48

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  51

  	
   

  	
   

  	
  8.125

  	
  %

  	
   

  
	
  54

  	
   

  	
   

  	
  8.125

  	
  %

  	
   

  
	
  57

  	
   

  	
   

  	
  8.125

  	
  %

  	
   

  
	
  Tranche A-1 Term Loan Maturity Date

  	
   

  	
   

  	
  8.125

  	
  %

  	
   

  



 


(ii)                                  The Borrower shall
repay to the Administrative Agent, in Dollars, for the benefit of the Lenders
of Tranche A-2 Term Loans, on each date set forth below (each, a “Tranche
A-2 Repayment Date”), the principal amount of the Tranche A-2 Term Loans
equal to (x) the outstanding principal amount of Tranche A-2 Term Loans after
the Closing Date multiplied by (y) the percentage set forth below opposite such
Tranche A-2 Repayment Date (each, a “Tranche A-2 Repayment Amount”):


 


	
  Number of Months

  From Closing Date

  	
   

  	
  Tranche A-2

  Repayment Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  9

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  12

  	
   

  	
   

  	
  2.5

  	
  %

  	
   

  
	
  15

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  18

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  21

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  24

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  27

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  30

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  33

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  36

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  39

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  42

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  45

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  



 


48





















 


	
  Number of Months

  From Closing Date

  	
   

  	
  Tranche A-2

  Repayment Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  48

  	
   

  	
   

  	
  5.0

  	
  %

  	
   

  
	
  51

  	
   

  	
   

  	
  8.125

  	
  %

  	
   

  
	
  54

  	
   

  	
   

  	
  8.125

  	
  %

  	
   

  
	
  57

  	
   

  	
   

  	
  8.125

  	
  %

  	
   

  
	
  Tranche A-2 Term Loan Maturity Date

  	
   

  	
   

  	
  8.125

  	
  %

  	
   

  



 


(c)                                  The
Borrower shall repay to the Administrative Agent, in Dollars, for the benefit
of the Lenders of Tranche B-1 Term Loans, on each date set forth below (each a “Tranche
B-1 Repayment Date”), the principal amount of the Tranche B-1 Term Loans
equal to (x) the outstanding principal amount of Tranche B-1 Term Loans
immediately after closing on the Amendment Effective Date multiplied by (y) the
percentage set forth below opposite such Tranche B-1 Repayment Date (each a “Tranche
B-1 Repayment Amount”):


 


	
  Number of Months

  From Closing Date

  	
   

  	
  Tranche B-1

  Repayment Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  9

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  12

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  15

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  18

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  21

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  24

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  27

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  30

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  33

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  36

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  39

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  42

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  45

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  48

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  51

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  54

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  57

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  60

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  63

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  66

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  69

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  72

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  75

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  78

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  81

  	
   

  	
   

  	
  0.25

  	
  %

  	
   

  
	
  Tranche B-1 Term Loan Maturity Date

  	
   

  	
   

  	
  93.50

  	
  %

  	
   

  



 


49





















 


; provided,
in the event any New Tranche B-1 Term Loans are made, such New Tranche B-1 Term
Loans shall be repaid on each Repayment Date occurring on or after the
applicable Increased Amount Date in an amount equal to (i) the aggregate
principal amount of New Tranche B-1 Term Loans of the applicable Series of New
Tranche B-1 Term Loans, times (ii) the ratio (expressed as a percentage) of (y)
the amount of all other Tranche B-1 Term Loans being repaid on such Repayment
Date and (z) the total aggregate principal amount of all other Tranche B-1 Term
Loans outstanding on such Increased Amount Date.


 


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


 


(e)                                  The
Administrative Agent shall maintain the Register pursuant to Section 13.6(b),
and a subaccount for each Lender, in which Register and subaccounts (taken together)
shall be recorded (i) the amount of each Loan made hereunder, whether such Loan
is a Term Loan, a Revolving Credit Loan or a Swingline Loan, the Type of each
Loan made and the Interest Period applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from the
Borrower to each Lender or the Swingline Lender hereunder and (iii) the amount
of any sum received by the Administrative Agent hereunder from the Borrower and
each Lender’s share thereof.


 


(f)                                    The
entries made in the Register and accounts and subaccounts maintained pursuant
to paragraphs (d) and (e) of this Section 2.5 shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Borrower therein recorded; provided, however,
that the failure of any Lender or the Administrative Agent to maintain such
account, such Register or such subaccount, as applicable, or any error therein,
shall not in any manner affect the obligation of the Borrower to repay (with
applicable interest) the Loans made to the Borrower by such Lender in
accordance with the terms of this Agreement.


 


2.6.                              Conversions
and Continuations.  (a)    The
Borrower shall have the option on any Business Day to convert all or a portion
equal to at least the Minimum Borrowing Amount of the outstanding principal
amount of Term Loans or Revolving Credit Loans made to the Borrower (as
applicable) of one Type into a Borrowing or Borrowings of another Type and the
Borrower shall have the option on any Business Day to continue the outstanding
principal amount of any LIBOR Term Loans or LIBOR Revolving Credit Loans as
LIBOR Term Loans or LIBOR Revolving Credit Loans, as the case may be, for an
additional Interest Period, provided that (i) no partial conversion of
LIBOR Term Loans or LIBOR Revolving Credit Loans shall reduce the outstanding
principal amount of LIBOR Term Loans or LIBOR Revolving Credit Loans made
pursuant to a single Borrowing to less than the Minimum Borrowing Amount, (ii)
ABR Loans may not be converted into LIBOR Term Loans or LIBOR Revolving Credit
Loans if a Default or Event of Default is in existence on the date of the
conversion and the Administrative Agent has or the Required Lenders have
determined in its or their sole discretion not to permit such conversion,
(iii) LIBOR Loans may not be continued as LIBOR Loans for an additional


 


50





















 


Interest
Period if a Default or Event of Default is in existence on the date of the
proposed continuation and the Administrative Agent has or the Required Lenders
have determined in its or their sole discretion not to permit such continuation
and (iv) Borrowings resulting from conversions pursuant to this Section 2.6
shall be limited in number as provided in Section 2.2.  Each such conversion or continuation shall be
effected by the Borrower by giving the Administrative Agent at the Administrative
Agent’s Office prior to 12:00 Noon (New York City time) at least three Business
Days’ (or one Business Day’s notice in the case of a conversion into ABR Loans)
prior written notice (or telephonic notice promptly confirmed in writing)
(each, a “Notice of Conversion or Continuation”) specifying the Term
Loans or Revolving Credit Loans to be so converted or continued, the Type of
Term Loans or Revolving Credit Loans to be converted or continued into and, if
such Term Loans or Revolving Credit Loans are to be converted into or continued
as LIBOR Loans, the Interest Period to be initially applicable thereto.  The Administrative Agent shall give each
Lender notice as promptly as practicable of any such proposed conversion or
continuation affecting any of its Term Loans or Revolving Credit Loans.


 


(b)                                 If
any Default or Event of Default is in existence at the time of any proposed
continuation of any LIBOR Loans and the Administrative Agent has or the
Required Lenders have determined in its or their sole discretion not to permit
such continuation, such LIBOR Loans shall be automatically converted on the
last day of the current Interest Period into ABR Loans.  If upon the expiration of any Interest Period
in respect of LIBOR Loans, the Borrower has failed to elect a new Interest
Period to be applicable thereto as provided in paragraph (a) above, the
Borrower shall be deemed to have elected to continue such Borrowing of LIBOR
Loans into a Borrowing of ABR Loans, effective as of the expiration date of
such current Interest Period.


 


2.7.                              Pro Rata Borrowings.  Each Borrowing of (i) Tranche A Term
Loans and (ii) Tranche B-1 Term Loans under this Agreement shall be granted
by the Lenders pro rata on the basis of their
then-applicable Tranche A Term Loan and Tranche B-1 Term Loan Commitments,
respectively.  Each Borrowing of
Revolving Credit Loans under this Agreement shall be granted by the Lenders pro rata on the basis of their then-applicable Revolving
Credit Commitments.  Each Borrowing of
New Tranche B-1 Term Loans under this Agreement shall be granted by the Lenders
pro rata on the basis of their
then-applicable New Tranche B-1 Term Loan Commitments.  It is understood that no Lender shall be
responsible for any default by any other Lender in its obligation to make Loans
hereunder and that each Lender shall be obligated to make the Loans provided to
be made by it hereunder, regardless of the failure of any other Lender to
fulfill its commitments hereunder.


 


2.8.                              Interest.  (a)    The unpaid principal amount of each ABR Loan
shall bear interest from the date of the Borrowing thereof until maturity
(whether by acceleration or otherwise) at a rate per annum
that shall at all times be the Applicable ABR Margin plus the ABR in effect
from time to time.


 


(b)                                 The
unpaid principal amount of each LIBOR Loan shall bear interest from the date of
the Borrowing thereof until maturity thereof (whether by acceleration or
otherwise) at a rate per annum that
shall at all times be the Applicable LIBOR Margin in effect from time to time
plus the relevant LIBOR Rate.


 


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(c)                                  If
all or a portion of (i) the principal amount of any Loan or (ii) any
interest payable thereon shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum that
is (x) in the case of overdue principal, the rate that would otherwise be
applicable thereto plus 2% or (y) in the case of any overdue
interest, to the extent permitted by applicable law, the rate described in Section 2.8(a)
plus 2% from and including the date of such non-payment to but excluding
the date on which such amount is paid in full (after as well as before
judgment).


 


(d)                                 Interest
on each Loan shall accrue from and including the date of any Borrowing to but
excluding the date of any repayment thereof and shall be payable (i) in respect
of each ABR Loan, quarterly in arrears on the last day of each March, June, September and
December, (ii) in respect of each LIBOR Loan, on the last day of each Interest
Period applicable thereto and, in the case of an Interest Period in excess of
three months, on each date occurring at three-month intervals after the first
day of such Interest Period, (iii) in respect of each Loan (except, other
than in the case of prepayments, any ABR Loan), on any prepayment (on the
amount prepaid), at maturity (whether by acceleration or otherwise) and, after
such maturity, on demand.


 


(e)                                  All
computations of interest hereunder shall be made in accordance with Section 5.5.


 


(f)                                    The
Administrative Agent, upon determining the interest rate for any Borrowing of
LIBOR Loans, shall promptly notify the Borrower and the relevant Lenders
thereof.  Each such determination shall,
absent clearly demonstrable error, be final and conclusive and binding on all
parties hereto.


 


2.9.                              Interest
Periods.  At the time the Borrower
gives a Notice of Borrowing or Notice of Conversion or Continuation in respect
of the making of, or conversion into or continuation as, a Borrowing of LIBOR
Loans (in the case of the initial Interest Period applicable thereto) or prior
to 10:00 a.m. (New York City time) on the third Business Day prior to the expiration
of an Interest Period applicable to a Borrowing of LIBOR Loans, the Borrower
shall have the right to elect by giving the Administrative Agent written notice
(or telephonic notice promptly confirmed in writing) the Interest Period applicable
to such Borrowing, which Interest Period shall, at the option of the Borrower
be a one, two, three, six or (in the case of Revolving Credit Loans, if
available to all the Lenders making such loans as determined by such Lenders in
good faith based on prevailing market conditions) a nine or twelve month
period, provided that the initial Interest Period may be for a period
less than one month if agreed upon by the Borrower and the Agents.


 


Notwithstanding
anything to the contrary contained above:


 


(a)                                  the initial Interest
Period for any Borrowing of LIBOR Loans shall commence on the date of such
Borrowing (including the date of any conversion from a Borrowing of ABR Loans
or) and each Interest Period occurring thereafter in respect of such Borrowing
shall commence on the day on which the next preceding Interest Period expires;


 


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(b)                                 if any Interest Period
relating to a Borrowing of LIBOR Revolving Credit Loans begins on the last Business
Day of a calendar month or begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period,
such Interest Period shall end on the last Business Day of the calendar month
at the end of such Interest Period;


 


(c)                                  if any Interest
Period would otherwise expire on a day that is not a Business Day, such
Interest Period shall expire on the next succeeding Business Day, provided
that if any Interest Period in respect of a LIBOR Loan would otherwise expire
on a day that is not a Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day; and


 


(d)                                 the Borrower shall not
be entitled to elect any Interest Period in respect of any LIBOR Loan if such
Interest Period would extend beyond the applicable Maturity Date of such Loan.


 


2.10.                        Increased
Costs, Illegality, etc.  (a)  In the event that (x) in the case of
clause (i) below, the Administrative Agent or (y) in the case of clauses (ii)
and (iii) below, any Lender shall have reasonably determined (which
determination shall, absent clearly demonstrable error, be final and conclusive
and binding upon all parties hereto):


 


(i)                                     on any date for
determining the LIBOR Rate for any Interest Period that (x) deposits in
the principal amounts of the Loans comprising such LIBOR Borrowing are not
generally available in the relevant market or (y) by reason of any changes
arising on or after the Closing Date affecting the interbank LIBOR market,
adequate and fair means do not exist for ascertaining the applicable interest
rate on the basis provided for in the definition of LIBOR Rate; or


 


(ii)                                  at any time, that
such Lender shall incur increased costs or reductions in the amounts received
or receivable hereunder with respect to any LIBOR Loans (other than any such
increase or reduction attributable to Taxes) because of (x) any change since
the Closing Date in any applicable law, governmental rule, regulation,
guideline or order (or in the interpretation or administration thereof and
including the introduction of any new law or governmental rule, regulation,
guideline or order), such as, for example, without limitation, a change in
official reserve requirements, and/or (y) other circumstances affecting the
interbank LIBOR market or the position of such Lender in such market; or


 


(iii)                               at any time, that the
making or continuance of any LIBOR Loan has become unlawful by compliance by
such Lender in good faith with any law, governmental rule, regulation,
guideline or order (or would conflict with any such governmental rule,
regulation, guideline or order not having the force of law even though the
failure to comply therewith would not be unlawful), or has become impracticable
as a result of a contingency occurring after the Closing Date that materially
and adversely affects the interbank LIBOR market;


 


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then, and in
any such event, such Lender (or the Administrative Agent, in the case of
clause (i) above) shall within a reasonable time thereafter give notice
(if by telephone, confirmed in writing) to the Borrower and to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Lenders).  Thereafter (x) in the case of
clause (i) above, LIBOR Term Loans and LIBOR Revolving Credit Loans shall
no longer be available until such time as the Administrative Agent notifies the
Borrower and the Lenders that the circumstances giving rise to such notice by
the Administrative Agent no longer exist (which notice the Administrative Agent
agrees to give at such time when such circumstances no longer exist), and any
Notice of Borrowing or Notice of Conversion given by the Borrower with respect
to LIBOR Term Loans or LIBOR Revolving Credit Loans that have not yet been
incurred shall be deemed rescinded by the Borrower (y) in the case of
clause (ii) above, the Borrower shall pay to such Lender, promptly after
receipt of written demand therefor such additional amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise
as such Lender in its reasonable discretion shall determine) as shall be
required to compensate such Lender for such increased costs or reductions in
amounts receivable hereunder (it being agreed that a written notice as to the
additional amounts owed to such Lender, showing in reasonable detail the basis
for the calculation thereof, submitted to the Borrower by such Lender shall,
absent clearly demonstrable error, be final and conclusive and binding upon all
parties hereto) and (z) in the case of clause (iii) above, the
Borrower shall take one of the actions specified in Section 2.10(b) as
promptly as possible and, in any event, within the time period required by law.


 


(b)                                 At
any time that any LIBOR Loan is affected by the circumstances described in Section 2.10(a)(ii)
or (iii), the Borrower may (and in the case of a LIBOR Loan affected pursuant
to Section 2.10(a)(iii) shall) either (x) if the affected LIBOR Loan is
then being made pursuant to a Borrowing, cancel said Borrowing by giving the
Administrative Agent telephonic notice (confirmed promptly in writing) thereof
on the same date that the Borrower was notified by a Lender pursuant to Section 2.10(a)(ii)
or (iii) or (y) if the affected LIBOR Loan is then outstanding, upon at
least three Business Days’ notice to the Administrative Agent, require the
affected Lender to convert each such LIBOR Revolving Credit Loan and LIBOR Term
Loan into an ABR Loan, provided that if more than one Lender is affected
at any time, then all affected Lenders must be treated in the same manner
pursuant to this Section 2.10(b).


 


(c)                                  If,
after the Closing Date, the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, the
National Association of Insurance Commissioners, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by a Lender or its parent with any request or directive made or adopted after
the Closing Date regarding capital adequacy (whether or not having the force of
law) of any such authority, association, central bank or comparable agency, has
or would have the effect of reducing the rate of return on such Lender’s or its
parent’s or its Affiliate’s capital or assets as a consequence of such Lender’s
commitments or obligations hereunder to a level below that which such Lender or
its parent or its Affiliate could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Lender’s or
its parent’s policies with respect to capital adequacy), then from time to
time, promptly after demand by such Lender (with a copy to the Administrative
Agent), the Borrower shall pay to such Lender


 


54





















 


such additional amount or
amounts as will compensate such Lender or its parent for such reduction, it
being understood and agreed, however, that a Lender shall not be entitled to
such compensation as a result of such Lender’s compliance with, or pursuant to
any request or directive to comply with, any such law, rule or regulation as in
effect on the Closing Date.  Each Lender,
upon determining in good faith that any additional amounts will be payable
pursuant to this Section 2.10(c), will give prompt written notice thereof
to the Borrower which notice shall set forth in reasonable detail the basis of
the calculation of such additional amounts, although the failure to give any
such notice shall not, subject to Section 2.13, release or diminish the
Borrower’s obligations to pay additional amounts pursuant to this Section 2.10(c)
upon receipt of such notice.


 


(d)                                 It
is understood that to the extent duplicative of Section 5.4, this Section 2.10
shall not apply to Taxes.


 


2.11.                        Compensation.  If (a) any payment of principal of any
LIBOR Loan is made by the Borrower to or for the account of a Lender other than
on the last day of the Interest Period for such LIBOR Loan as a result of a
payment or conversion pursuant to Section 2.5, 2.6, 2.10, 5.1, 5.2 or
13.7, as a result of acceleration of the maturity of the Loans pursuant to Section 11
or for any other reason, (b) any Borrowing of LIBOR Loans is not made as a
result of a withdrawn Notice of Borrowing, (c) any ABR Loan is not
converted into a LIBOR Loan as a result of a withdrawn Notice of Conversion or
Continuation, (d) any LIBOR Loan is not continued as an LIBOR Loan, as the
case may be, as a result of a withdrawn Notice of Conversion or Continuation or
(e) any prepayment of principal of any LIBOR Loan is not made as a result
of a withdrawn notice of prepayment pursuant to Section 5.1 or 5.2, the
Borrower shall, after receipt of a written request by such Lender (which
request shall set forth in reasonable detail the basis for requesting such
amount), pay to the Administrative Agent for the account of such Lender any
amounts required to compensate such Lender for any additional losses, costs or
expenses that such Lender may reasonably incur as a result of such payment,
failure to convert, failure to continue or failure to prepay, including any
loss, cost or expense (excluding loss of anticipated profits) actually incurred
by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender to fund or maintain such LIBOR Loan.


 


2.12.                        Change
of Lending Office.  Each Lender
agrees that, upon the occurrence of any event giving rise to the operation of Section 2.10(a)(ii),
2.10(a)(iii), 2.10(b), 3.5 or 5.4 with respect to such Lender, it will, if
requested by the Borrower use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any Loans
affected by such event, provided that such designation is made on such
terms that such Lender and its lending office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of any such Section.  Nothing in this Section 2.12 shall
affect or postpone any of the obligations of the Borrower or the right of any
Lender provided in Section 2.10, 3.5 or 5.4.


 


2.13.                        Notice
of Certain Costs.  Notwithstanding
anything in this Agreement to the contrary, to the extent any notice required
by Section 2.10, 2.11, 3.5 or 5.4 is given by any Lender more than
180 days after such Lender has knowledge (or should have had knowledge) of
the occurrence of the event giving rise to the additional cost, reduction in
amounts, loss, tax or other additional amounts described in such Sections, such
Lender shall not be entitled to


 


55





















 


compensation
under Section 2.10, 2.11, 3.5 or 5.4, as the case may be, for any such
amounts incurred or accruing prior to the 181st day prior to the giving of such
notice to the Borrower.


 


2.14.                        Incremental
Facilities  Borrower may by written
notice to Administrative Agent elect to request the establishment of one or
more (x) New Tranche B-1 Term Loan commitments (the “New Tranche B-1
Term Loan Commitments”) and/or (y) New Revolving Credit Commitments
(the “New Revolving Credit Commitment” and, together with the New
Tranche B-1 Term Loan Commitments, the “New Loan Commitments”), by an
aggregate amount not in excess of $600,000,000 in the aggregate and not less
than $75,000,000 individually (or such lesser amount which shall be approved by
Administrative Agent or such lesser amount that shall constitute the difference
between $600,000,000 and all such New Loan Commitments obtained prior to such
date), and integral multiples of $5,000,000 in excess of that amount.  Each such notice shall specify the date
(each, an “Increased Amount Date”) on which the Borrower proposes that
the New Loan Commitments shall be effective, which shall be a date not less
than 10 Business Days after the date on which such notice is delivered to
Administrative Agent; provided that the Borrower shall first offer the
Lenders, on a pro rata basis, the opportunity
to provide all of the New Loan Commitments prior to offering  any other Person that is an eligible assignee
pursuant to Section 13.6(b); provided, further, that any
Lender offered or approached to provide all or a portion of the New Loan
Commitments may elect or decline, in its sole discretion, to provide a New Loan
Commitment.  Such New Loan Commitments
shall become effective, as of such Increased Amount Date; provided that
(1) no Default or Event of Default shall exist on such Increased Amount
Date before or after giving effect to such New Loan Commitments, as applicable;
(2) both before and after giving effect to the making of any Series of New
Tranche B-1 Term Loans or New Revolving Loans, each of the conditions set forth
in Section 7 shall be satisfied; (3) Borrower and its Subsidiaries
shall be in pro forma compliance with each of the covenants set forth in
Sections 10.9 and 10.10 as of the last day of the most recently ended fiscal
quarter after giving effect to such New Loan Commitments and any Investment to
be consummated in connection therewith; (4) the New Loan Commitments shall
be effected pursuant to one or more Joinder Agreements executed and delivered
by the Borrower and Administrative Agent, and each of which shall be recorded
in the Register and shall be subject to the requirements set forth in Section 5.4(d);
(5) Borrower shall make any payments required pursuant to Section 2.11
in connection with the New Loan Commitments, as applicable; and (6) Borrower
shall deliver or cause to be delivered any legal opinions or other documents
reasonably requested by Administrative Agent in connection with any such transaction.
Any New Tranche B-1 Term Loans made on an Increased Amount Date shall be
designated, a separate series (a “Series”) of New Tranche B-1 Term Loans
for all purposes of this Agreement.


 


On any
Increased Amount Date on which New Revolving Loan Commitments are effected,
subject to the satisfaction of the foregoing terms and conditions, (a) each of
the Lenders with Revolving Credit Commitments shall assign to each Lender with
a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”)
and each of the New Revolving Loan Lenders shall purchase from each of the
Lenders with Revolving Credit Commitments, at the principal amount thereof
(together with accrued interest), such interests in the Revolving Credit Loans
outstanding on such Increased Amount Date as shall be necessary in order that,
after giving effect to all such assignments and purchases, such Revolving
Credit Loans will be held by existing Lenders with Revolving Credit Loans and
New Revolving Loan Lenders ratably in


 


56





















 


accordance
with their Revolving Credit Commitments after giving effect to the addition of
such New Revolving Credit Commitments to the Revolving Credit Commitments, (b)
each New Revolving Credit Commitment shall be deemed for all purposes a
Revolving Credit Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be
deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving
Loan Lender shall become a Lender with respect to the New Revolving Loan
Commitment and all matters relating thereto.


 


On any
Increased Amount Date on which any New Tranche B-1 Term Loan Commitments of any
Series are effective, subject to the satisfaction of the foregoing terms and
conditions, (i) each Lender with a New Tranche B-1 Term Loan Commitment (each,
a “New Tranche B-1 Loan Lender”) of any Series shall make a Loan to the
Borrower (a “New Tranche B-1 Term
Loan”) in an amount equal to its New Tranche B-1 Term Loan
Commitment of such Series, and (ii) each New Tranche B-1 Term Loan Lender of
any Series shall become a Lender hereunder with respect to the New Tranche B-1
Term Loan Commitment of such Series and the New Tranche B-1 Term Loans of such
Series made pursuant thereto.


 


The terms and
provisions of the New Tranche B-1 Term Loans and New Tranche B-1 Term Loan
Commitments of any Series shall be, except as otherwise set forth herein or in
the Joinder Agreement, identical to the Tranche B-1 Term Loans; provided,
however, that (i) the applicable New Tranche B-1 Term Loan Maturity
Date of each Series shall be no shorter than the final maturity of the
Revolving Credit Loans and the Tranche B-1 Term Loans and (ii) the rate of
interest applicable to the New Tranche B-1 Term Loans of each Series shall be
determined by the Borrower and the applicable new Lenders and shall be set
forth in each applicable Joinder Agreement. 
The terms and provisions of the New Revolving Loans and New Revolving
Credit Commitments shall be identical to the Revolving Credit Loans and the
Revolving Credit Commitments.


 


Each Joinder
Agreement may, without the consent of any other Lenders, effect such amendments
to this Agreement and the other Credit Documents as may be necessary or appropriate,
in the opinion of the Administrative Agent, to effect the provision of this Section 2.14.


 


SECTION 3.                                Letters of Credit


 


3.1.                              Letters
of Credit.  (a)  Subject to and upon the terms and conditions
herein set forth, at any time and from time to time after the Closing Date and
prior to the L/C Maturity Date, the Borrower, may request that the Letter of
Credit Issuer issue for the account of the Borrower a standby letter of credit
or letters of credit in Dollars (the “Letters of Credit” and each, a “Letter
of Credit”) in such form as may be approved by the Letter of Credit Issuer
in its reasonable discretion.


 


(b)                                 Notwithstanding
the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of
which, when added to the Letters of Credit Outstanding at such time, would
exceed the Letter of Credit Commitment then in effect; (ii) no Letter of
Credit shall be issued the Stated Amount of which would cause the aggregate
amount of the Lender’s Revolving Credit Exposures at such time to exceed the
Revolving Credit Commitment then in effect; (iii) each Letter of Credit shall
have an expiration date occurring no later than one year after the date of
issuance thereof, unless otherwise agreed upon by the Administrative Agent and
the Letter of


 


57





















 


Credit Issuer, provided
that in no event shall such expiration date occur later than the
L/C Maturity Date; (iv) each Letter of Credit shall be denominated in
Dollars; (v) no Letter of Credit shall be issued if it would be illegal
under any applicable law for the beneficiary of the Letter of Credit to have a
Letter of Credit issued in its favor; (vi) no Letter of Credit shall be issued
by a Letter of Credit Issuer after it has received a written notice from the
Borrower or any Lender stating that a Default or Event of Default has occurred
and is continuing until such time as the Letter of Credit Issuer shall have
received a written notice of (vii) rescission of such notice from the
party or parties originally delivering such notice or (y) the waiver of
such Default or Event of Default in accordance with the provisions of Section 13.1.  Notwithstanding anything herein to the
contrary, the issuance of Letters of Credit for the account of the Borrower
shall be deemed a utilization of the Revolving Credit Commitments allocated to
the Borrower.


 


(c)                                  Upon
at least one Business Day’s prior written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent and the Letter of Credit
Issuer (which notice the Administrative Agent shall promptly transmit to each
of the applicable Lenders), the Borrower shall have the right, on any day,
permanently to terminate or reduce the Letter of Credit Commitment in whole or
in part, provided that, after giving effect to such termination or
reduction, the Letters of Credit Outstanding shall not exceed the Letter of
Credit Commitment.


 


(d)                                 The
parties hereto agree that the Existing Letters of Credit shall be deemed Letters
of Credit for all purposes under this Agreement, without any further action by
the Borrower.


 


3.2.                              Letter
of Credit Requests.  (a)  Whenever the Borrower desires that a Letter
of Credit be issued for its account, it shall give the Administrative Agent and
the Letter of Credit Issuer at least five (or such lesser number as may be
agreed upon by the Administrative Agent and the Letter of Credit Issuer)
Business Days’ written notice thereof. 
Each notice shall be executed by the Borrower and shall be in the form
of Exhibit H to the Original Credit Agreement (each a “Letter of
Credit Request”).  The Administrative
Agent shall promptly transmit copies of each Letter of Credit Request to each
Lender.


 


(b)                                 The
making of each Letter of Credit Request shall be deemed to be a representation
and warranty by the Borrower that the Letter of Credit may be issued in
accordance with, and will not violate the requirements of, Section 3.1(b).


 


3.3.                              Letter
of Credit Participations.  (a)  Immediately upon the issuance by the Letter
of Credit Issuer of any Letter of Credit, the Letter of Credit Issuer shall be
deemed to have sold and transferred to each other Lender that has a Revolving
Credit Commitment (each such other Lender, in its capacity under this Section 3.3,
an “L/C Participant”), and each such L/C Participant shall be deemed
irrevocably and unconditionally to have purchased and received from the Letter
of Credit Issuer, without recourse or warranty, an undivided interest and participation
(each an “L/C Participation”), to the extent of such L/C Participant’s
Revolving Credit Commitment Percentage in such Letter of Credit, each
substitute letter of credit, each drawing made thereunder and the obligations
of the Borrower under this Agreement with respect thereto, and any security
therefor or guaranty pertaining thereto (although Letter of Credit Fees will be
paid directly to the Administrative Agent for the ratable account of the L/C
Participants as provided


 


58





















 


in Section 4.1(b)
and the L/C Participants shall have no right to receive any portion of any
Fronting Fees).


 


(b)                                 In
determining whether to pay under any Letter of Credit, the relevant Letter of
Credit Issuer shall have no obligation relative to the L/C Participants other
than to confirm that any documents required to be delivered under such Letter
of Credit have been delivered and that they appear to comply on their face with
the requirements of such Letter of Credit. 
Any action taken or omitted to be taken by the relevant Letter of Credit
Issuer under or in connection with any Letter of Credit issued by it, if taken
or omitted in the absence of gross negligence or willful misconduct, shall not
create for the Letter of Credit Issuer any resulting liability.


 


(c)                                  In
the event that the Letter of Credit Issuer makes any payment under any Letter
of Credit issued by it and the Borrower shall not have repaid such amount in
full to the respective Letter of Credit Issuer pursuant to Section 3.4(a),
the Letter of Credit Issuer shall promptly notify the Administrative Agent and
each applicable L/C Participant of such failure, and each such L/C Participant
shall promptly and unconditionally pay to the Administrative Agent for the
account of the Letter of Credit Issuer, the amount of such L/C Participant’s
Revolving Credit Commitment Percentage of such unreimbursed payment in Dollars
and in immediately available funds; provided, however, that no
L/C Participant shall be obligated to pay to the Administrative Agent for the
account of the respective Letter of Credit Issuer its Revolving Credit
Commitment Percentage of such unreimbursed amount arising from any wrongful
payment made by the Letter of Credit Issuer under a Letter of Credit as a
result of acts or omissions constituting willful misconduct or gross negligence
on the part of the Letter of Credit Issuer. 
If the Letter of Credit Issuer so notifies, prior to 11:00 a.m. (New
York City time) on any Business Day, any L/C Participant required to fund a
payment under a Letter of Credit, such L/C Participant shall make available to
the Administrative Agent for the account of the Letter of Credit Issuer such
L/C Participant’s Revolving Credit Commitment Percentage of the amount of such
payment on such Business Day in immediately available funds.  If and to the extent such L/C Participant
shall not have so made its Revolving Credit Commitment Percentage of the amount
of such payment available to the Administrative Agent for the account of the
Letter of Credit Issuer, such L/C Participant agrees to pay to the Administrative
Agent for the account of the Letter of Credit Issuer, forthwith on demand, such
amount, together with interest thereon for each day from such date until the
date such amount is paid to the Administrative Agent for the account of the
Letter of Credit Issuer at the Federal Funds Effective Rate.  The failure of any L/C Participant to make
available to the Administrative Agent for the account of the Letter of Credit
Issuer its Revolving Credit Commitment Percentage of any payment under any
Letter of Credit shall not relieve any other L/C Participant of its obligation
hereunder to make available to the Administrative Agent for the account of the
Letter of Credit Issuer its Revolving Credit Commitment Percentage of any
payment under such Letter of Credit on the date required, as specified above,
but no L/C Participant shall be responsible for the failure of any other L/C
Participant to make available to the Administrative Agent such other L/C
Participant’s Revolving Credit Commitment Percentage of any such payment.


 


(d)                                 Whenever
the Letter of Credit Issuer receives a payment in respect of an unpaid
reimbursement obligation as to which the Administrative Agent has received for
the account of the Letter of Credit Issuer any payments from the L/C Participants
pursuant to paragraph (c)


 


59





















 


above, the Letter of Credit
Issuer shall pay to the Administrative Agent and the Administrative Agent shall
promptly pay to each L/C Participant that has paid its Revolving Credit
Commitment Percentage of such reimbursement obligation, in Dollars and in
immediately available funds, an amount equal to such L/C Participant’s share
(based upon the proportionate aggregate amount originally funded by such L/C
Participant to the aggregate amount funded by all L/C Participants) of the
principal amount of such reimbursement obligation and interest thereon accruing
after the purchase of the respective L/C Participations.


 


(e)                                  The
obligations of the L/C Participants to make payments to the Administrative
Agent for the account of a Letter of Credit Issuer with respect to Letters of
Credit shall be irrevocable and not subject to counterclaim, set-off or other
defense or any other qualification or exception whatsoever and shall be made in
accordance with the terms and conditions of this Agreement under all
circumstances, including under any of the following circumstances:


 


(i)                                     any lack of
validity or enforceability of this Agreement or any of the other Credit Documents;


 


(ii)                                  the existence of any
claim, set-off, defense or other right that the Borrower may have at any time
against a beneficiary named in a Letter of Credit, any transferee of any Letter
of Credit (or any Person for whom any such transferee may be acting), the
Administrative Agent, the Letter of Credit Issuer, any Lender or other Person,
whether in connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions (including any
underlying transaction between the Borrower and the beneficiary named in any
such Letter of Credit);


 


(iii)                               any draft, certificate
or any other document presented under any Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect;


 


(iv)                              the surrender or
impairment of any security for the performance or observance of any of the
terms of any of the Credit Documents; or


 


(v)                                 the occurrence of any
Default or Event of Default;


 


provided,
however, that no L/C Participant shall be obligated to pay to the
Administrative Agent for the account of the Letter of Credit Issuer its
Revolving Credit Commitment Percentage of any unreimbursed amount arising from
any wrongful payment made by the Letter of Credit Issuer under a Letter of
Credit as a result of acts or omissions constituting willful misconduct or
gross negligence on the part of the Letter of Credit Issuer.


 


3.4.                              Agreement
to Repay Letter of Credit Drawings.  (a)  The Borrower hereby agrees to reimburse the
relevant Letter of Credit Issuer, by making payment in Dollars to the
Administrative Agent (in the case of reimbursement made by the Borrower) in
immediately available funds for any payment or disbursement made by the Letter
of Credit Issuer under any Letter of Credit (each such amount so paid until reimbursed,
an “Unpaid Drawing”) immediately after, and in any event on the date of,
such payment, with interest on the amount so paid or disbursed by the Letter of
Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. (New York


 


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City time) on
the date of such payment or disbursement, from and including the date paid or
disbursed to but excluding the date the Letter of Credit Issuer is reimbursed
therefor at a rate per annum that
shall at all times be the Applicable ABR Margin plus the ABR Rate as in effect
from time to time, provided that, notwithstanding anything contained in
this Agreement to the contrary, (i) unless the Borrower shall have
notified the Administrative Agent and the relevant Letter of Credit Issuer
prior to 10:00 a.m. (New York City time) on the date of such drawing that
the Borrower intends to reimburse the relevant Letter of Credit Issuer for the
amount of such drawing with funds other than the proceeds of Loans, the
Borrower shall be deemed to have given a Notice of Borrowing requesting that,
with respect to Letters of Credit, that the Lenders with Revolving Credit
Commitments make Revolving Credit Loans (which shall be ABR Loans) and
(ii) the Administrative Agent shall promptly notify each relevant L/C Participant
of such drawing and the amount of its Revolving Credit Loan to be made in
respect thereof, and each L/C Participant shall be irrevocably obligated to
make a Revolving Credit Loan to the Borrower in the manner deemed to have been
requested in the amount of its Revolving Credit Commitment Percentage of the
applicable Unpaid Drawing by 12:00 noon (New York City time) on such Business
Day by making the amount of such Revolving Credit Loan available to the Administrative
Agent.  Such Revolving Credit Loans shall
be made without regard to the Minimum Borrowing Amount.  The Administrative Agent shall use the
proceeds of such Revolving Credit Loans solely for purpose of reimbursing the
Letter of Credit Issuer for the related Unpaid Drawing.


 


(b)                                 The
obligations of the Borrower under this Section 3.4 to reimburse the Letter
of Credit Issuer with respect to Unpaid Drawings (including, in each case,
interest thereon) shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment that the Borrower or any other Person may have or have had against the
Letter of Credit Issuer, the Administrative Agent or any Lender (including in
its capacity as an L/C Participant), including any defense based upon the
failure of any drawing under a Letter of Credit (each a “Drawing”) to
conform to the terms of the Letter of Credit or any non-application or
misapplication by the beneficiary of the proceeds of such Drawing, provided
that the Borrower shall not be obligated to reimburse the Letter of Credit
Issuer for any wrongful payment made by the Letter of Credit Issuer under the
Letter of Credit issued by it as a result of acts or omissions constituting
willful misconduct or gross negligence on the part of the Letter of Credit
Issuer.


 


3.5.                              Increased
Costs.  If after the Closing Date,
the adoption of any applicable law, rule or regulation, or any change therein,
or any change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or actual compliance by the Letter of Credit Issuer or
any L/C Participant with any request or directive made or adopted after the
Closing Date (whether or not having the force of law), by any such authority,
central bank or comparable agency shall either (a) impose, modify or make
applicable any reserve, deposit, capital adequacy or similar requirement
against letters of credit issued by the Letter of Credit Issuer, or any L/C
Participant’s L/C Participation therein, or (b) impose on the Letter of Credit
Issuer or any L/C Participant any other conditions affecting its obligations
under this Agreement in respect of Letters of Credit or L/C Participations
therein or any Letter of Credit or such L/C Participant’s L/C Participation
therein, and the result of any of the foregoing is to increase the cost to the
Letter of Credit Issuer or such L/C Participant of issuing, maintaining or
participating in any Letter of


 


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Credit, or to
reduce the amount of any sum received or receivable by the Letter of Credit
Issuer or such L/C Participant hereunder (other than any such increase or
reduction attributable to taxes) in respect of Letters of Credit or L/C Participations
therein, then, promptly after receipt of written demand to the Borrower by the
Letter of Credit Issuer or such L/C Participant, as the case may be, (a copy of
which notice shall be sent by the Letter of Credit Issuer or such L/C
Participant to the Administrative Agent (with respect to Letter of Credit
issued on account of the Borrower)) the Borrower shall pay to the Letter of
Credit Issuer or such L/C Participant such additional amount or amounts as will
compensate the Letter of Credit Issuer or such L/C Participant for such
increased cost or reduction, it being understood and agreed, however, that the
Letter of Credit Issuer or a L/C Participant shall not be entitled to such
compensation as a result of such Person’s compliance with, or pursuant to any
request or directive to comply with, any such law, rule or regulation as in
effect on the Closing Date.  A certificate
submitted to the Borrower by the relevant Letter of Credit Issuer or a
L/C Participant, as the case may be, (a copy of which certificate shall be
sent by the Letter of Credit Issuer or such L/C Participant to the
Administrative Agent (with respect to Letters of Credit issued on account of
the Borrower)) setting forth in reasonable detail the basis for the
determination of such additional amount or amounts necessary to compensate the
Letter of Credit Issuer or such L/C Participant as aforesaid shall be
conclusive and binding on the Borrower absent clearly demonstrable error.


 


3.6.                              Successor
Letter of Credit Issuer.  A Letter of
Credit Issuer may resign as Letter of Credit Issuer upon 60 days’ prior written
notice to the Administrative Agent, the Lenders and the Borrower.  If the Letter of Credit Issuer shall resign
as Letter of Credit Issuer under this Agreement, then the Borrower shall
appoint from among the Lenders with Revolving Credit Commitments a successor
issuer of Letters of Credit, whereupon such successor issuer shall succeed to
the rights, powers and duties of the Letter of Credit Issuer, and the term “Letter
of Credit Issuer” shall mean such successor issuer effective upon such
appointment.  At the time such resignation
shall become effective, the Borrower shall pay to the resigning Letter of
Credit Issuer all accrued and unpaid fees pursuant to Sections 4.1(c) and
(e).  The acceptance of any appointment
as the Letter of Credit Issuer hereunder by a successor Lender shall be
evidenced by an agreement entered into by such successor, in a form
satisfactory to the Borrower and the Administrative Agent and, from and after
the effective date of such agreement, such successor Lender shall have all the
rights and obligations of the previous Letter of Credit Issuer under this Agreement
and the other Credit Documents.  At the
time such resignation shall become effective, the Borrower shall pay to the
resigning Letter of Credit Issuer all accrued and unpaid fees pursuant to
Sections 4.1(d) and (e).  After the
resignation of the Letter of Credit Issuer hereunder, the resigning Letter of
Credit Issuer shall remain a party hereto and shall continue to have all the
rights and obligations of a Letter of Credit Issuer under this Agreement and
the other Credit Documents with respect to Letters of Credit issued by it prior
to such resignation, but shall not be required to issue additional Letters of
Credit.  After any retiring Letter of
Credit Issuer’s resignation as Letter of Credit Issuer, the provisions of this
Agreement relating to the Letter of Credit Issuer shall inure to its benefit as
to any actions taken or omitted to be taken by it (a) while it was Letter of
Credit Issuer under this Agreement or (b) at any time with respect to
Letters of Credit issued by such Letter of Credit Issuer.


 


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SECTION 4.                                Fees; Commitments


 


4.1.                              Fees.  (a)  (i) 
The Borrower agrees to pay to the Administrative Agent in Dollars, for
the account of each Lender having a Revolving Credit Commitment (in each case pro rata according to the respective Revolving Credit
Commitments of all such Lenders), a commitment fee for each day from and
including the Closing Date to but excluding the Final Date.  Such commitment fee shall be payable in arrears
(x) on the last day of each March, June, September and December (for
the three-month period (or portion thereof) ended on such day for which no payment
has been received) and (y) on the Final Date (for the period ended on such
date for which no payment has been received pursuant to
clause (x) above), and shall be computed for each day during such
period at a rate per annum equal to the Commitment
Fee Rate in effect on such day on the Available Commitments in effect on such
day.


 


(ii)                                  The Borrower agrees
to pay to the Administrative Agent in Dollars, for the account of each Lender
having a Tranche A-2 Term Loan Commitment (in each case pro rata
according to the respective Tranche A-2 Term Loan Commitments of all such
Lenders), a commitment fee for each day from and including the Closing Date to
but excluding the Tranche A-2 Term Loan Commitment Termination Date.  Such commitment fee shall be payable in
arrears (x) on the last day of each March, June, September and December (for
the three-month period (or portion thereof) ended on such day for which no
payment has been received) and (y) on the Tranche A-2 Term Loan Commitment
Termination Date (for the period ended on such date for which no payment has
been received pursuant to clause (x) above), and shall be computed
for each day during such period at a rate per annum equal
to the Commitment Fee Rate in effect on such day on the remaining Tranche A-2
Term Loan Commitments in effect on such day.


 


(iii)                               Notwithstanding
the foregoing, the Borrower shall not be obligated to pay any amounts to any
Defaulting Lender pursuant to this Section 4.1.


 


(b)                                 The
Borrower agrees to pay to the Administrative Agent in Dollars for the account
of the Lenders pro rata on the basis of their
respective Letter of Credit Exposure, a fee in respect of each Letter of Credit
(the “Letter of Credit Fee”), for the period from and including the date
of issuance of such Letter of Credit to but excluding the termination date of
such Letter of Credit computed at the per annum rate
for each day equal to the Applicable LIBOR Margin for Revolving Credit Loans
minus 0.125% per annum on the average daily
Stated Amount of such Letter of Credit. 
Such Letter of Credit Fees shall be due and payable quarterly in arrears
on the last day of each March, June, September and December and on
the date upon which the Total Revolving Credit Commitment terminates and the
Letters of Credit Outstanding shall have been reduced to zero.


 


(c)                                  The
Borrower agrees to pay to the Administrative Agent in Dollars for the account
of the Letter of Credit Issuer a fee in respect of each Letter of Credit issued
by it (the “Fronting Fee”), for the period from and including the date
of issuance of such Letter of Credit to but excluding the termination date of
such Letter of Credit, computed at the rate for each day equal to 0.125% per annum on the average daily Stated Amount of such Letter
of Credit.  Such Fronting Fees shall be
due and payable quarterly in arrears on the last day of each March, June, September and
December and on the date upon which the Total Revolving Credit Commitment
terminates and the Letters of Credit Outstanding shall have been reduced to
zero.


 


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(d)                                 The
Borrower agrees to pay directly to the Letter of Credit Issuer in Dollars upon
each issuance of, drawing under, and/or amendment of, a Letter of Credit issued
by it such amount as the Letter of Credit Issuer and the Borrower shall have
agreed upon for issuances of, drawings under or amendments of, letters of
credit issued by it.


 


4.2.                              Voluntary
Reduction of Revolving Credit Commitments. 
Upon at least one Business Day’s prior written notice (or telephonic notice
promptly confirmed in writing) to the Administrative Agent at the
Administrative Agent’s Office (which notice the Administrative Agent shall
promptly transmit to each of the Lenders), the Borrower (on behalf of itself)
shall have the right, without premium or penalty, on any day, permanently to
terminate or reduce the Revolving Credit Commitments in whole or in part, provided
that (a) any such reduction shall apply proportionately and permanently to
reduce the Revolving Credit Commitment of each of the Lenders, (b) any
partial reduction pursuant to this Section 4.2 shall be in the amount of
at least $5,000,000 and (c) after giving effect to such termination or
reduction and to any prepayments of the Loans made on the date thereof in
accordance with this Agreement, the aggregate amount of the Lenders’ Revolving
Credit Exposures shall not exceed the Total Revolving Credit Commitment.


 


4.3.                              Mandatory
Termination of Commitments.  (a) (i)
(x) The Tranche A-1 Term Loan Commitments terminated on the Closing Date and
(y) the Tranche A-2 Term Loan Commitments shall terminate at 5:00 p.m.
(New York City time) on the Tranche A-2 Term Loan Commitment Termination Date.


 


(ii)                                  The
Tranche B-1 Term Loan Commitments shall terminate at 5:00 p.m. (New York
City time) on the Amendment Effective Date.


 


(b)                                 The
Total Revolving Credit Commitment shall terminate at 5:00 p.m. (New York
City time) on the Revolving Credit Maturity Date.


 


(c)                                  The
Swingline Commitment shall terminate at 5:00 p.m. (New York City time) on
the Swingline Maturity Date.


 


(d)                                 The
New Tranche B-1 Term Loan Commitment for any Series shall terminate at 5:00
p.m. (New York City time) on the Increased Amount Date for such Series.


 


(e)                                  If
any prepayment of Term Loans would otherwise be required pursuant to Section 5.2(a)
but cannot be made because there are no Term Loans outstanding, or because the
amount of the required prepayment exceeds the outstanding amount of Term Loans,
then, on the date that such prepayment is required, the Revolving Credit
Commitments shall be permanently reduced by an aggregate amount equal to the
amount of the required prepayment, or the excess of such amount over the
outstanding amount of Tranche B-1 Term Loans, as the case may be, and Borrower
shall comply with Section 5.2(b) after giving effect to such reduction.


 


SECTION 5.                                Payments


 


5.1.                              Voluntary
Prepayments.  The Borrower shall have
the right to prepay Term Loans, Revolving Credit Loans and Swingline Loans, in
each case, without premium or


 


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penalty, in
whole or in part from time to time on the following terms and conditions: (a)
the Borrower shall give the Administrative Agent and at the Administrative
Agent’s Office written notice (or telephonic notice promptly confirmed in
writing) of its intent to make such prepayment, the amount of such prepayment
and (in the case of LIBOR Loans) the specific Borrowing(s) pursuant to which
made, which notice shall be given by the Borrower no later than (i) in the case
of Term Loans or Revolving Credit Loans, 10:00 a.m. (New York City time)
one Business Day prior to, or (ii) in the case of Swingline Loans, 10:00 a.m.
(New York City time) on, the date of such prepayment and shall promptly be transmitted
by the Administrative Agent to each of the Lenders or the Swingline Lender, as
the case may be; (b) each partial prepayment of any Borrowing of Term Loans or
Revolving Credit Loans shall be in a multiple of $100,000 and in an aggregate
principal amount of at least $1,000,000 and each partial prepayment of
Swingline Loans shall be in a multiple of $10,000 and in an aggregate principal
amount of at least $100,000, provided that no partial prepayment of
LIBOR Term Loans or LIBOR Revolving Credit Loans made pursuant to a single
Borrowing shall reduce the outstanding LIBOR Term Loans or LIBOR Revolving
Credit Loans made pursuant to such Borrowing to an amount less than the Minimum
Borrowing Amount for LIBOR Term Loans or LIBOR Revolving Credit Loans and (c)
any prepayment of LIBOR Term Loans or LIBOR Revolving Credit Loans pursuant to
this Section 5.1 on any day other than the last day of an Interest Period
applicable thereto shall be subject to compliance by the Borrower with the
applicable provisions of Section 2.11. 
Each prepayment in respect of any tranche of Term Loans pursuant to this
Section 5.1 shall be (a) applied to Term Loans in such manner as the
Borrower may determine and (b) applied to reduce Tranche A Repayment
Amounts or Tranche B-1 Repayment Amounts, as the case may be, in such order as
the Borrower may determine.  At the
Borrower’s election in connection with any prepayment pursuant to this Section 5.1,
such prepayment shall not be applied to any Term Loan or Revolving Credit Loan
of a Defaulting Lender.


 


5.2.                              Mandatory
Prepayments.  (a)  Term
Loan Prepayments.  (i)  On each occasion that a Prepayment Event
occurs, the Borrower shall, within one Business Day after the occurrence of a
Debt Incurrence Prepayment Event and within five Business Days after the occurrence
of any other Prepayment Event, prepay, in accordance with paragraph (c)
below, the principal amount of Term Loans in an amount equal to 100% of the Net
Cash Proceeds from such Prepayment Event, provided that, that at the
option of the Borrower, the Net Cash Proceeds from any transaction permitted by
Section 10.4(e) (including pursuant to any securitization) may be applied
to repay Revolving Credit Loans, which repayment shall automatically result in
the reduction of the Revolving Credit Commitment of each Lender by an amount
equal to the amount of the Revolving Credit Loans prepaid to such Lender.


 


(ii)                                  [INTENTIONALLY
OMITTED].


 


(iii)                               [INTENTIONALLY OMITTED].


 


(iv)                              [INTENTIONALLY OMITTED].


 


(b)                                 Repayment
of Revolving Credit Loans.  If on any
date the aggregate amount of the Lenders’ Revolving Credit Exposures (all the
foregoing, collectively, the “Aggregate Revolving Credit Outstandings”)
exceeds 100% of the Total Revolving Credit Commitment as then in effect, the
Borrower shall forthwith repay on such date the principal amount of


 


65





















 


Swingline Loans and, after all
Swingline Loans have been paid in full, Revolving Credit Loans in an amount
equal to such excess.  If, after giving
effect to the prepayment of all outstanding Swingline Loans and Revolving
Credit Loans, the Aggregate Revolving Credit Outstandings exceed the Total
Revolving Credit Commitment then in effect, the Borrower shall pay to the Administrative
Agent an amount in cash equal to such excess and the Administrative Agent shall
hold such payment for the benefit of the Lenders as security for the obligations
of the Borrower hereunder (including obligations in respect of Letters of
Credit Outstanding) pursuant to a cash collateral agreement to be entered into
in form and substance satisfactory to the Administrative Agent (which shall
permit certain Investments in Permitted Investments satisfactory to the Administrative
Agent, until the proceeds are applied to the secured obligations).


 


(c)                                  Application
to Repayment Amounts.  Each
prepayment of Term Loans required by Section 5.2(a)(i) shall be initially
allocated pro rata among the Tranche A Term Loans
and the Tranche B-1 Term Loans and shall be applied to reduce the applicable
Repayment Amounts in such order as the Borrower may determine up to an amount
equal to the aggregate amount of the applicable Repayment Amounts required to
be made by the Borrower pursuant to Section 2.5(b) and (c) during the two
year period immediately following the date of the prepayment (such amount
being, the “Amortization Amount”), provided that to the extent
that the amount of the prepayment exceeds the Amortization Amount, such excess
shall be applied ratably to reduce the then remaining Repayment Amounts under
such Credit Facility.  With respect to
each such prepayment, (i) the Borrower will, not later than the date specified
in Section 5.2(a) for making such prepayment, give the Administrative
Agent telephonic notice (promptly confirmed in writing) requesting that the
Administrative Agent provide notice of such prepayment to each Tranche A Term
Loan Lender and Tranche B-1 Term Loan Lender, (ii) so long as any Tranche
A Term Loans are outstanding, each Tranche B-1 Term Loan Lender will have the
right to refuse any such prepayment by giving written notice of such refusal to
the Borrower within fifteen Business Days after such Lender’s receipt of notice
from the Administrative Agent of such prepayment (and the Borrower shall not
prepay any such Tranche B-1 Term Loans until the date that is specified in the
immediately following clause), (iii) the Borrower will make all such prepayments
not so refused upon the earlier of (x) such fifteenth Business Day and
(y) such time as the Borrower has received notice from each Lender that it
consents to or refuses such prepayment and (iv) any prepayment so refused
may be retained by the Borrower, provided that any prepayment so refused
that relates to Net Cash Proceeds from a Debt Incurrence Prepayment Event in
respect of the issuance of Permitted Additional Notes shall be allocated to the
then outstanding Tranche A Term Loans and shall be applied as set forth above
in this paragraph (c).


 


(d)                                 Application
to Term Loans.  With respect to each prepayment of Tranche A Term
Loans and Tranche B-1 Term Loans required by Section 5.2(a), the Borrower
may designate the Types of Loans that are to be prepaid and the specific Borrowing(s)
pursuant to which made, provided that LIBOR Term Loans made pursuant to
a single Borrowing shall reduce the outstanding Term Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount for LIBOR
Loans such Borrowing shall immediately be converted into ABR Loans.  In the absence of a designation by the
Borrower as described in the preceding sentence, the Administrative Agent
shall, subject to the above, make such designation in its reasonable discretion
with a view, but no obligation, to minimize breakage costs owing under Section 2.11.


 


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(e)                                  Application
to Revolving Credit Loans.  With
respect to each prepayment of Revolving Credit Loans elected by the Borrower
pursuant to Section 5.2(a) or required by Section 5.2(b), the
Borrower may designate (i) the Types of Loans that are to be prepaid and the
specific Borrowing(s) pursuant to which made and (ii) the Revolving Credit
Loans to be prepaid, provided that (w) LIBOR Revolving Credit Loans may
be designated for prepayment pursuant to this Section 5.2 only on the last
day of an Interest Period applicable thereto unless all LIBOR Loans with
Interest Periods ending on such date of required prepayment and all ABR Loans
have been paid in full; (x) if any prepayment by the Borrower of LIBOR
Revolving Credit Loans made pursuant to a single Borrowing shall reduce the outstanding
Revolving Credit Loans made pursuant to such Borrowing to an amount less than
the Minimum Borrowing Amount for LIBOR Revolving Credit Loans, such Borrowing
shall immediately be converted into ABR Loans; (y) each prepayment of any
Loans made pursuant to a Borrowing shall be applied pro rata
among such Loans; and (z) notwithstanding the provisions of the preceding
clause (y), no prepayment made pursuant to Section 5.2(a) or Section 5.2(b)
of Revolving Credit Loans shall be applied to the Revolving Credit Loans of any
Defaulting Lender.  In the absence of a
designation by the Borrower as described in the preceding sentence, the
Administrative Agent shall, subject to the above, make such designation in its
reasonable discretion with a view, but no obligation, to minimize breakage
costs owing under Section 2.11.


 


(f)                                    LIBOR
Interest Periods.  In lieu of making
any payment pursuant to this Section 5.2 in respect of any LIBOR Loan
other than on the last day of the Interest Period therefor so long as no
Default or Event of Default shall have occurred and be continuing, the Borrower
at its option may deposit with the Administrative Agent an amount equal to the
amount of the LIBOR Loan to be prepaid and such LIBOR Loan shall be repaid on
the last day of the Interest Period therefor in the required amount.  Such deposit shall be held by the Administrative
Agent in a corporate time deposit account established on terms reasonably
satisfactory to the Administrative Agent, earning interest at the
then-customary rate for accounts of such type. 
Such deposit shall constitute cash collateral for the Obligations, provided
that the Borrower may at any time direct that such deposit be applied to make
the applicable payment required pursuant to this Section 5.2.


 


(g)                                 Minimum
Amount.  No prepayment shall be
required pursuant to Section 5.2(a)(i) unless and until the amount at any
time of Net Cash Proceeds from Prepayment Events required to be applied at or
prior to such time pursuant to such Section and not yet applied at or
prior to such time to prepay Term Loans pursuant to such Section exceeds
$25,000,000 in the aggregate for all such Prepayment Events.


 


(h)                                 Foreign
Asset Sales.  Notwithstanding any
other provisions of this Section 5.2, (i) to the extent that any of
or all the Net Cash Proceeds of any asset sale by a Restricted Foreign
Subsidiary giving rise to an Asset Sale Prepayment Event (a “Foreign Asset
Sale”) are prohibited or delayed by applicable local law from being
repatriated to the United States, the
portion of such Net Cash Proceeds so affected will not be required to be
applied to repay Term Loans at the times provided in this Section 5.2 but
may be retained by the applicable Restricted Foreign Subsidiary so long, but
only so long, as the applicable local law will not permit repatriation to the
United States (the Borrower hereby agreeing to cause the applicable
Restricted Foreign Subsidiary to promptly take all actions required by the
applicable local law to permit such


 


67





















 


repatriation), and once such
repatriation of any of such affected Net Cash Proceeds is permitted under the
applicable local law, such repatriation will be immediately effected and such
repatriated Net Cash Proceeds will be promptly (and in any event not later than
two Business Days after such repatriation) applied (net of additional
taxes payable or reserved against as a result thereof) to the repayment of the
Term Loans pursuant to this Section 5.2 and (ii) to the extent that
the Borrower has determined in good faith that repatriation of any of or all
the Net Cash Proceeds of any Foreign Asset Sale would have a material adverse
tax cost consequence with respect to such Net Cash Proceeds, the Net Cash
Proceeds so affected may be retained by the applicable Restricted Foreign
Subsidiary, provided that, in the case of this clause (ii), on or
before the date on which any Net Cash Proceeds so retained would otherwise have
been required to be applied to reinvestments or prepayments pursuant to Section 5.2(a),
(x) the Borrower applies an amount equal to such Net Cash Proceeds to such
reinvestments or prepayments as if such Net Cash Proceeds had been received by
the Borrower rather than such Restricted Foreign Subsidiary, less the amount of
additional taxes that would have been payable or reserved against if such Net
Cash Proceeds had been repatriated (or, if less, the Net Cash Proceeds that
would be calculated if received by such Foreign Subsidiary) or (y) such
Net Cash Proceeds are applied to the repayment of Indebtedness of a Restricted
Foreign Subsidiary.


 


5.3.                              Method
and Place of Payment.  (a)  Except as otherwise specifically provided
herein, all payments under this Agreement shall be made by the Borrower,
without set-off, counterclaim or deduction of any kind, to the Administrative
Agent for the ratable account of the Lenders entitled thereto, the Letter of
Credit Issuer or the Swingline Lender, as the case may be, not later than
12:00 Noon (New York City time) on the date when due and shall be made in
immediately available funds at the Administrative Agent’s Office or at such
other office as the Administrative Agent shall specify for such purpose by
notice to the Borrower, it being understood that written or facsimile notice by
the Borrower to the Administrative Agent to make a payment from the funds in
the Borrower’s account at the Administrative Agent’s Office shall constitute
the making of such payment to the extent of such funds held in such
account.  All payments under each Credit
Document (whether of principal, interest or otherwise) shall be made in
Dollars.  The Administrative Agent will
thereafter cause to be distributed on the same day (if payment was actually
received by the Administrative Agent prior to 2:00 p.m. (New York City time) on
such day) like funds relating to the payment of principal or interest or Fees
ratably to the Lenders entitled thereto.


 


(b)                                 Any
payments under this Agreement that are made later than 2:00 p.m. (New York
City time) shall be deemed to have been made on the next succeeding Business
Day.  Whenever any payment to be made hereunder
shall be stated to be due on a day that is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and, with respect
to payments of principal, interest shall be payable during such extension at
the applicable rate in effect immediately prior to such extension.


 


5.4.                              Net
Payments.  (a)  Any and all payments made by or on behalf of
the Borrower or any Guarantor under this Agreement or any other Credit Document
shall be made free and clear of, and without deduction or withholding for or on
account of, any Indemnified Taxes; provided
that if Borrower or any Guarantor shall be required by law to deduct or
withhold any Indemnified Taxes from such payments, then (i) the sum
payable shall be increased as necessary


 


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so that after
making all required deductions and withholdings (including deductions or
withholdings applicable to additional sums payable under this Section 5.4)
the Administrative Agent or any Lender, as the case may be, receives an amount
equal to the sum it would have received had no such deductions or withholdings
been made, (ii) Borrower or any Guarantor shall make such deductions or
withholdings and (iii) Borrower or any Guarantor shall pay the full amount
deducted or withheld to the relevant Governmental Authority in accordance with
applicable law.  Whenever any Indemnified
Taxes are payable by the Borrower, as promptly as possible thereafter, the
Borrower shall send to the Administrative Agent for its own account or for the
account of such Lender, as the case may be, a certified copy of an original
official receipt (or other evidence acceptable to such Lender, acting
reasonably) received by the Borrower showing payment thereof.


 


(b)                                 Borrower
shall pay and shall indemnify and hold harmless the Administrative Agent and
each Lender (whether or not such Other Taxes were correctly or legally imposed
or asserted by the relevant Governmental Authority) with regard to any Other
Taxes.


 


(c)                                  Borrower
shall indemnify and hold harmless the Administrative Agent and each Lender
within 15 Business Days after written demand therefor, for the full amount of
any Indemnified Taxes imposed on the Administrative Agent or such Lender as the
case may be, on or with respect to any payment by or on account of any
obligation of Borrower or any Guarantor hereunder or under any other Credit
Document (including Indemnified Taxes imposed or asserted on or attributable to
amounts payable under this Section 5.4) and any reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified
Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority.  A certificate as
to the amount of such payment or liability delivered to Borrower by a Lender or
by the Administrative Agent on its own behalf or on behalf of a Lender shall be
conclusive absent manifest error.


 


(d)                                 Each
Non-U.S. Lender shall to the extent it is legally entitled to do so:


 


(i)                                     deliver to the
Borrower and the Administrative Agent two copies of either (x) in the case
of a Non-U.S. Lender claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of “portfolio
interest”, United States Internal Revenue Service Form W-8BEN (together
with a certificate representing that such Non-U.S. Lender is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder
(within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower
and is not a controlled foreign corporation related to the Borrower (within the
meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue
Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly
executed by such Non-U.S. Lender claiming complete exemption from, or reduced
rate of, U.S. Federal withholding tax on payments by the Borrower under this
Agreement; and


 


(ii)                                  deliver to the
Borrower and the Administrative Agent two further copies of any such form or
certification (or any applicable successor form) on or before the date that any
such form or certification expires or becomes obsolete and after the occurrence
of any event requiring a change in the most recent form previously delivered by
it to the Borrower;


 


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unless in any
such case any Change in Law has occurred prior to the date on which any such
delivery would otherwise be required that renders any such form inapplicable or
would prevent such Lender from duly completing and delivering any such form
with respect to it and such Lender so advises the Borrower and the Administrative
Agent.  Each Person that shall become a
Participant pursuant to Section 13.6 or a Lender pursuant to Section 13.6
shall, upon the effectiveness of the related transfer, be required to provide
all the forms and statements required pursuant to this Section 5.4(d), provided
that in the case of a Participant such Participant shall furnish all such
required forms and statements to the Lender from which the related participation
shall have been purchased.


 


(e)                                  If
the Borrower determines in good faith that a reasonable basis exists for
contesting any taxes for which indemnification has been demanded hereunder, the
relevant Lender or the Administrative Agent, as applicable, shall cooperate
with the Borrower in challenging such taxes at the Borrower’s expense if so requested
by the Borrower.  If any Lender or the
Administrative Agent, as applicable, receives a refund of a tax for which a payment
has been made by the Borrower pursuant to this Agreement, which refund in the
good faith judgment of such Lender or Administrative Agent, as the case may be,
is attributable to such payment made by the Borrower, then the Lender or the
Administrative Agent, as the case may be, shall reimburse the Borrower for such
amount (together with any interest received thereon) as the Lender or
Administrative Agent, as the case may be, determines to be the proportion of
the refund as will leave it, after such reimbursement, in no better or worse
position (taking into account expenses or any taxes imposed on the refund) than
it would have been in if the payment had not been required.  A Lender or Administrative Agent shall claim
any refund that it determines is available to it, unless it concludes in its
reasonable discretion that it would be adversely affected by making such a
claim.  Neither the Lender nor the
Administrative Agent shall be obliged to disclose any information regarding its
tax affairs or computations to the Borrower in connection with this
paragraph (e) or any other provision of this Section 5.4.


 


(f)                                    The
agreements in this Section 5.4 shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.


 


5.5.                              Computations
of Interest and Fees.  (a)  Interest on LIBOR Loans and, except as
provided in the next succeeding sentence, ABR Loans shall be calculated on the
basis of a 360-day year for the actual days elapsed.  Interest on ABR Loans in respect of which the
rate of interest is calculated on the basis of the Prime Rate and interest on
overdue interest shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed.


 


(b)                                 Fees
and Letters of Credit Outstanding shall be calculated on the basis of a 365-
(or 366-, as the case may be) day year for the actual days elapsed.


 


5.6.                              Limit
on Rate of Interest.


 


(a)                                  No
Payment shall exceed Lawful Rate. 
Notwithstanding any other term of this Agreement, the Borrower shall not
be obliged to pay any interest or other amounts under or in connection with
this Agreement in excess of the amount or rate permitted under or consistent
with any applicable law, rule or regulation.


 


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(b)                                 Payment
at Highest Lawful Rate.  If the
Borrower is not obliged to make a payment which it would otherwise be required
to make, as a result of Section 5.6(a), the Borrower shall make such
payment to the maximum extent permitted by or consistent with applicable laws,
rules and regulations.


 


(c)                                  Adjustment
if any Payment exceeds Lawful Rate. 
If any provision of this Agreement or any of the other Credit Documents
would obligate the Borrower to make any payment of interest or other amount
payable to any Lender in an amount or calculated at a rate which would be
prohibited by any applicable law, rule or regulation, then notwithstanding such
provision, such amount or rate shall be deemed to have been adjusted with
retroactive effect to the maximum amount or rate of interest, as the case may
be, as would not be so prohibited by law, such adjustment to be effected, to
the extent necessary, by reducing the amount or rate of interest required to be
paid by the Borrower to the affected Lender under Section 2.8.


 


Notwithstanding
the foregoing, and after giving effect to all adjustments contemplated thereby,
if any Lender shall have received from the Borrower an amount in excess of the
maximum permitted by any applicable law, rule or regulation, then the Borrower
shall be entitled, by notice in writing to the Administrative Agent to obtain
reimbursement from that Lender in an amount equal to such excess, and pending
such reimbursement, such amount shall be deemed to be an amount payable by that
Lender to the Borrower.


 


SECTION 6.                                Conditions Precedent to Initial
Borrowing on the Amendment Effective Date.


 


The initial
Borrowing under this Agreement was subject to the satisfaction of the following
conditions precedent, except as otherwise agreed between the Borrower and the Administrative
Agent.


 


6.1.                              Credit
Documents.  The Administrative Agent,
or Collateral Trustee (as applicable), shall have received this Agreement,
executed and delivered by a duly authorized officer of the Borrower and the
Administrative Agent.


 


6.2.                              Amendment
Agreement.  All conditions precedent
in Section 4 of the Amendment Agreement shall have been satisfied.


 


SECTION 7.                                Conditions Precedent to All
Credit Events.


 


The agreement
of each Lender to make any Loan requested to be made by it on any date
(excluding Mandatory Borrowings) and the obligation of the Letter of Credit
Issuer to issue Letters of Credit on any date is subject to the satisfaction of
the following conditions precedent:


 


7.1.                              No
Default; Representations and Warranties. 
At the time of each Credit Event and also after giving effect thereto
(a) no Default or Event of Default shall have occurred and be continuing
and (b) all representations and warranties made by any Credit Party contained
herein or in the other Credit Documents shall be true and correct in all
material respects with the same effect as though such representations and
warranties had been made on and as of the date


 


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of such Credit
Event (except where such representations and warranties expressly relate to an
earlier date, in which case such representations and warranties shall have been
true and correct in all material respects as of such earlier date).


 


7.2.                              Notice
of Borrowing; Letter of Credit Request. 
(a)  Prior to the making of each
Term Loan, each Revolving Credit Loan (other than any Revolving Credit Loan
made pursuant to Section 3.4(a)) and each Swingline Loan, the
Administrative Agent shall have received a Notice of Borrowing (whether in
writing or by telephone) meeting the requirements of Section 2.3.


 


(b)                                 Prior
to the issuance of each Letter of Credit, the Administrative Agent and the Letter
of Credit Issuer shall have received a Letter of Credit Request meeting the requirements
of Section 3.2(a).


 


The acceptance
of the benefits of each Credit Event shall constitute a representation and warranty
by each Credit Party to each of the Lenders that all the applicable conditions
specified above exist as of that time.


 


SECTION 8.                                Representations, Warranties and
Agreements


 


In order to
induce the Lenders to enter into this Agreement, to make the Loans and issue or
participate in Letters of Credit as provided for herein, the Borrower makes the
following representations and warranties to, and agreements with, the Lenders,
all of which shall survive the execution and delivery of this Agreement and the
making of the Loans and the issuance of the Letters of Credit:


 


8.1.                              Corporate
Status.  The Borrower and each
Material Subsidiary (a) is a duly organized and validly existing corporation or
other entity in good standing under the laws of the jurisdiction of its
organization and has the corporate or other organizational power and authority
to own its property and assets and to transact the business in which it is
engaged and (b) has duly qualified and is authorized to do business and is
in good standing in all jurisdictions where it is required to be so qualified,
except where the failure to be so qualified could not reasonably be expected to
result in a Material Adverse Effect.


 


8.2.                              Corporate
Power and Authority.  Each Credit
Party has the corporate or other organizational power and authority to execute,
deliver and carry out the terms and provisions of the Credit Documents to which
it is a party and has taken all necessary corporate or other organizational
action to authorize the execution, delivery and performance of the Credit
Documents to which it is a party.  Each
Credit Party has duly executed and delivered each Credit Document to which it
is a party and each such Credit Document constitutes the legal, valid and
binding obligation of such Credit Party enforceable in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors’ rights generally and subject to
general principles of equity.


 


8.3.                              No
Violation.  Neither the execution,
delivery or performance by any Credit Party of the Credit Documents to which it
is a party nor compliance with the terms and provisions thereof nor the
consummation of the Acquisition and the other transactions contemplated


 


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hereby or
thereby will (a) contravene any applicable provision of any material law,
statute, rule, regulation, order, writ, injunction or decree of any court or
governmental instrumentality, (b) result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default under,
or result in the creation or imposition of (or the obligation to create or
impose) any Lien upon any of the property or assets of the Borrower or any of
the Restricted Subsidiaries (other than Liens created under (x) the Senior
1998 Notes Indenture and (y) the Credit Documents) pursuant to, the terms of
any material indenture (including the Senior Note Indenture), loan agreement,
lease agreement, mortgage, deed of trust, agreement or other material instrument
to which the Borrower or any of the Restricted Subsidiaries is a party or by
which it or any of its property or assets is bound or (c) violate any provision
of the certificate of incorporation, by-laws or other constitutional documents
of the Borrower or any of the Restricted Subsidiaries.


 


8.4.                              Litigation.  There are no actions, suits or proceedings
(including Environmental Claims) pending or, to the knowledge of the Borrower,
threatened with respect to the Borrower or any of its Subsidiaries that could
reasonably be expected to result in a Material Adverse Effect or a Material
Adverse Change.


 


8.5.                              Margin
Regulations.  Neither the making of
any Loan hereunder nor the use of the proceeds thereof will violate the
provisions of Regulation T, U or X of the Board.


 


8.6.                              Governmental
Approvals.  The execution, delivery
and performance of the Acquisition Agreement or any Credit Document does not
require any consent or approval of, registration or filing with, or any other
action by, any Governmental Authority, except for (i) such as have been
obtained or made and are in full force and effect, (ii) filings and recordings
in respect of the Liens created pursuant to the Security Documents, (iii) such
FCC consents, approvals, registrations, and filings as may be required in
connection with the exercise of rights under the Security Documents following
an Event of Default, (iv) such FCC consents, approvals, registrations, and
filings as may be required in the ordinary course of business of the Borrower
and its Subsidiaries in connection with the use of proceeds of the Loans
hereunder, (v) such licenses, approvals, authorizations and consents as may be
required by the U.S. Department of State pursuant to the International Traffic
in Arms Regulations, the U.S. Department of Commerce pursuant to the Export
Administration Regulations and the U.S. Department of Treasury pursuant to
Foreign Asset Control Regulations in connection with the exercise of rights
hereunder and under the Security Documents following an Event of Default and
(vi) such licenses, approvals, authorizations or consents the failure to
obtain or make could not reasonably be expected to have a Material Adverse
Effect.


 


8.7.                              Investment
Company Act.  The Borrower is not an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.


 


8.8.                              True
and Complete Disclosure.  (a)  None of the factual information and data
(taken as a whole) heretofore or contemporaneously furnished by the Borrower,
any of the Subsidiaries or any of their respective authorized representatives
in writing to the Administrative Agent and/or any Lender on or before the
Closing Date (including (i) the Confidential Information Memorandum and
(ii) all information contained in the Credit Documents) for purposes of or
in connection with this Agreement or any transaction contemplated herein
contained any untrue statement or omitted to state any material fact necessary
to make such information and data


 


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(taken as a whole) not misleading at such time in light of the
circumstances under which such information or data was furnished, it being
understood and agreed that for purposes of this Section 8.8(a), such
factual information and data shall not include projections and pro forma financial
information.


 


(b)                                 The
projections and pro forma financial information contained in the information
and data referred to in paragraph (a) above were based on good faith
estimates and assumptions believed by such Persons to be reasonable at the time
made, it being recognized by the Lenders that such projections as to future
events are not to be viewed as facts and that actual results during the period
or periods covered by any such projections may differ from the projected
results.


 


8.9.                              Financial
Condition; Financial Statements.  The
(a) unaudited historical consolidated financial information of the Borrower as
set forth in the Confidential Information Memorandum, and (b) the Historical
Financial Statements, in each case present or will, when provided, present fairly
in all material respects the combined financial position of the Borrower at the
respective dates of said information, statements and results of operations for
the respective periods covered thereby. 
The financial statements referred to in clause (b) of this Section 8.9
have been prepared in accordance with GAAP consistently applied except to the
extent provided in the notes to said financial statements.  After the Closing Date, there has been no
Material Adverse Change since December 31, 2003.


 


8.10.                        Tax
Returns and Payments.  The Borrower
and each of the Subsidiaries has filed all federal income tax returns and all
other material tax returns, domestic and foreign, required to be filed by it
and has paid all material Taxes payable by it that have become due, other than
those (a) not yet delinquent or (b) contested in good faith as to
which adequate reserves have been provided in accordance with GAAP and which
could not reasonably be expected to result in a Material Adverse Effect.  The Borrower and each of the Subsidiaries
have paid, or have provided adequate reserves (in the good faith judgment of
the management of the Borrower) in accordance with GAAP for the payment of, all
material federal, state, provincial and foreign income taxes applicable for all
prior fiscal years and for the current fiscal year to the Closing Date.


 


8.11.                        Compliance
with ERISA.  (a)  Each Plan is in compliance with ERISA, the
Code and any applicable Requirement of Law; no Reportable Event has occurred
(or is reasonably likely to occur) with respect to any Plan; no Plan is
insolvent or in reorganization (or is reasonably likely to be insolvent or in
reorganization), and no written notice of any such insolvency or reorganization
has been given to the Borrower, any Subsidiary or any ERISA Affiliate; no Plan
(other than a multiemployer plan) has an accumulated or waived funding
deficiency (or is reasonably likely to have such a deficiency); none of the
Borrower, any Subsidiary or any ERISA Affiliate has incurred (or is reasonably
likely expected to incur) any liability to or on account of a Plan pursuant to Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971
or 4975 of the Code or has been notified in writing that it will incur any
liability under any of the foregoing Sections with respect to any Plan; no
proceedings have been instituted (or are reasonably likely to be instituted) to
terminate or to reorganize any Plan or to appoint a trustee to administer any
Plan, and no written notice of any such proceedings


 


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has been given
to the Borrower, any Subsidiary or any ERISA Affiliate; and no lien imposed
under the Code or ERISA on the assets of the Borrower or any Subsidiary or any
ERISA Affiliate exists (or is reasonably likely to exist) nor has the Borrower,
any Subsidiary or any ERISA Affiliate been notified in writing that such a lien
will be imposed on the assets of the Borrower, any Subsidiary or any ERISA
Affiliate on account of any Plan, except to the extent that a breach of any of
the representations, warranties or agreements in this Section 8.11 would
not result, individually or in the aggregate, in an amount of liability that
would be reasonably likely to have a Material Adverse Effect or relates to any
matter disclosed in the financial statements of the Borrower contained in the
Confidential Information Memorandum.  No
Plan (other than a multiemployer plan) has an Unfunded Current Liability that
would, individually or when taken together with any other liabilities
referenced in this Section 8.11, be reasonably likely to have a Material
Adverse Effect.  With respect to Plans
that are multiemployer plans (as defined in Section 3(37) of ERISA), the
representations and warranties in this Section 8.11(a), other than any
made with respect to (i) liability under Section 4201 or 4204 of ERISA or
(ii) liability for termination or reorganization of such Plans under ERISA, are
made to the best knowledge of the Borrower.


 


(b)                                 All
Foreign Plans are in compliance with, and have been established, administered
and operated in accordance with, the terms of such Foreign Plans and applicable
law, except for any failure to so comply, establish, administer or operate the
Foreign Plans as would not reasonably be expected to have a Material Adverse
Effect.  All contributions or other payments
which are due with respect to each Foreign Plan have been made in full and
there are no funding deficiencies thereunder, except to the extent any such
events would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.


 


8.12.                        Subsidiaries.  Schedule 8.12 lists each
Subsidiary of the Borrower (and the direct and indirect ownership interest of
the Borrower therein), in each case existing on the Amendment Effective
Date.  To the knowledge of the Borrower,
after due inquiry, each Material Subsidiary as of the Amendment Effective Date
has been so designated on Schedule 8.12.


 


8.13.                        Patents,
etc.  The Borrower and each of the
Restricted Subsidiaries have obtained all patents, trademarks, servicemarks,
trade names, copyrights, licenses and other rights, free from burdensome
restrictions, that are necessary for the operation of their respective
businesses as currently conducted and as proposed to be conducted, except where
the failure to obtain any such rights could not reasonably be expected to have
a Material Adverse Effect.


 


8.14.                        Environmental
Laws.  (a)  Except as could not reasonably be expected to
have a Material Adverse Effect:  (i) the
Borrower and each of the Subsidiaries and all Real Estate are in compliance
with all Environmental Laws; (ii) neither the Borrower, nor any of the Subsidiaries
is subject to any Environmental Claim or any other liability under any
Environmental Law; (iii) the Borrower and its Subsidiaries are not conducting
any investigation, removal, remedial or other corrective action pursuant to any
Environmental Law at any location; and (iv) no underground storage tank or
related piping, or any impoundment or other disposal area containing Hazardous
Materials is located at, on or under any Real Estate currently owned or leased
by the Borrower or any of its Subsidiaries.


 


(b)                                 Neither
the Borrower, nor any of the Subsidiaries has treated, stored, transported,
released or disposed or arranged for disposal or transport for disposal of
Hazardous


 


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Materials at, on, under or from
any currently or formerly owned or leased Real Estate or facility in a manner
that could reasonably be expected to have a Material Adverse Effect.


 


8.15.                        Properties.  (a) 
The Borrower and each of the Subsidiaries have good and marketable title
to or leasehold interest in all properties that are necessary for the operation
of their respective businesses as currently conducted and as proposed to be conducted,
free and clear of all Liens (other than any Liens permitted by this Agreement)
and except where the failure to have such good title could not reasonably be
expected to have a Material Adverse Effect and (b) no Mortgage encumbers improved
Real Estate that is located in an area that has been identified by the
Secretary of Housing and Urban Development as an area having special flood
hazards within the meaning of the National Flood Insurance Act of 1968 unless
flood insurance available under such Act has been obtained in accordance with Section 9.3.


 


8.16.                        Solvency.  On the Closing Date and the Amendment
Effective Date (after giving effect to the Transactions), immediately following
the making of each Loan and after giving effect to the application of the
proceeds of such Loans, the Borrower on a consolidated basis with its
Subsidiaries was, and will be, Solvent.


 


8.17.                        Public Utility Holding Company Act.  The Borrower is not a “holding company”, or a
“subsidiary company” of a “holding company”, or an “affiliate” of a “holding
company” or of a “subsidiary company” of a “holding company”, within the
meaning of the Public Utility Holding Company Act of 1935, as amended.


 


8.18.                        FCC
Licenses, Etc.  As of the Closing
Date, Schedule 8.18 to the Original Credit Agreement accurately and
completely lists for each Satellite (a) all space station licenses for the
launch and operation of Satellites with C-band or Ku-band transponders issued
by the FCC to the Borrower or any Restricted Subsidiary 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 8.19 to the Original Credit
Agreement 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 of the Subject
Licenses is held in the name of a License Subsidiary and is validly issued and
in full force and effect, and the Borrower and its Restricted Subsidiaries have
fulfilled and performed in all respects all of their obligations with respect
thereto and have full power and authority to operate thereunder.


 


8.19.                        Satellites.  Schedule 8.19 to the Original
Credit Agreement accurately and completely lists as of the Closing Date each of
the Satellites owned by the Borrower and its Restricted Subsidiaries on the
Closing Date, and setting forth for each such Satellite that is in orbit, the
orbital slot and number and frequency band of the transponders on such
Satellite.


 


SECTION 9.                                Affirmative Covenants


 


The Borrower
hereby covenants and agrees that on the Closing Date and thereafter, until the
Commitments, the Swingline Commitment and each Letter of Credit have terminated


 


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and the Loans
and Unpaid Drawings, together with interest, Fees and all other Obligations
incurred hereunder, are paid in full:


 


9.1.                              Information
Covenants.  The Borrower will furnish
to each Lender and the Administrative Agent:


 


(a)                                  Annual Financial
Statements.  As soon as available and
in any event on or before the date on which such financial statements are
required to be filed with the SEC or delivered to the holders of the Senior
Notes (or, if such financial statements are not required to be filed with the
SEC or delivered to the holders of the Senior Notes, on or before the date that
is 120 days after the end of each such fiscal year), the consolidated
balance sheet of the Borrower and the Restricted Subsidiaries as at the end of
such fiscal year, and the related consolidated statement of operations and cash
flows for such fiscal year, setting forth comparative consolidated figures for
the preceding fiscal year, and certified by independent certified public accountants
of recognized national standing whose opinion shall not be qualified as to the
scope of audit or as to the status of the Borrower or any of the Material
Subsidiaries (or group of Subsidiaries that together would constitute a
Material Subsidiary) as a going concern, together in any event with a
certificate of such accounting firm stating that in the course of its regular
audit of the business of the Borrower and the Material Subsidiaries, which
audit was conducted in accordance with generally accepted auditing standards,
such accounting firm has obtained no knowledge of any Default or Event of
Default relating to Section 10.9 or 10.10 that has occurred and is
continuing or, if in the opinion of such accounting firm such a Default or
Event of Default has occurred and is continuing, a statement as to the nature
thereof.  Notwithstanding the foregoing,
in the event any direct or indirect parent company of the Borrower guarantees
the Obligations on terms reasonably satisfactory to the Administrative Agent
and the Borrower, the obligations in this paragraph shall be satisfied with
respect to financial information of the Borrower and its Restricted
Subsidiaries by furnishing financial information relating to such parent, provided
that the same is accompanied by consolidating information that explains in
reasonable detail the differences between the information relating to such
parent, on the one hand, and the information relating to the Borrower and the
Restricted Subsidiaries on a standalone basis, on the other hand.


 


(b)                                 Quarterly Financial
Statements.  As soon as available and
in any event on or before the date on which such financial statements are
required to be filed with the SEC or delivered to the holders of the Senior
Notes with respect to each of the first three quarterly accounting periods in
each fiscal year of the Borrower (or, if such financial statements are not required
to be filed with the SEC or delivered to the holders of the Senior Notes, on or
before the date that is 60 days after the end of each such quarterly
accounting period), the consolidated balance sheet of (i) the Borrower and
the Restricted Subsidiaries and (ii) the Borrower and its Subsidiaries, in
each case as at the end of such quarterly period and the related consolidated
statement of operations for such quarterly accounting period and for the
elapsed portion of the fiscal year ended with the last day of such quarterly
period, and the related consolidated statement of cash flows for the elapsed
portion of the fiscal year ended with the last day of such quarterly period,
and setting forth comparative consolidated figures for the related periods in
the prior fiscal year or, in


 


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the case of such consolidated balance sheet,
for the last day of the prior fiscal year, all of which shall be certified by
an Authorized Officer of the Borrower, subject to changes resulting from audit
and normal year-end audit adjustments. 
Notwithstanding the foregoing, in the event any direct or indirect
parent company of the Borrower guarantees the Obligations on terms reasonably
satisfactory to the Administrative Agent and the Borrower, the obligations in
this paragraph shall be satisfied with respect to financial information of the
Borrower and its Restricted Subsidiaries by furnishing financial information
relating to such parent, provided that the same is accompanied by
consolidating information that explains in reasonable detail the differences
between the information relating to such parent, on the one hand, and the information
relating to the Borrower and the Restricted Subsidiaries on a standalone basis,
on the other hand.


 


(c)                                  Budgets.  Within 60 days after the commencement of
each fiscal year of the Borrower, budgets of the Borrower in reasonable detail
for such fiscal year as customarily prepared by management of the Borrower for
their internal use consistent in scope with the financial statements provided
pursuant to Section 9.1(a), setting forth the principal assumptions upon
which such budgets are based.


 


(d)                                 Officer’s
Certificates.  At the time of the
delivery of the financial statements provided for in Sections 9.1(a) and (b), a
certificate of an Authorized Officer of the Borrower to the effect that no
Default or Event of Default exists or, if any Default or Event of Default does
exist, specifying the nature and extent thereof, which certificate shall set
forth (i) the calculations required to establish whether the Borrower and the
Subsidiaries were in compliance with the provisions of Sections 10.9 and
10.10 as at the end of such fiscal year or period, as the case may be, (ii) a
specification of any change in the identity of the Restricted Subsidiaries,
Unrestricted Subsidiaries and Foreign Subsidiaries as at the end of such fiscal
year or period, as the case may be, from the Restricted Subsidiaries,
Unrestricted Subsidiaries and Foreign Subsidiaries, respectively, provided to
the Lenders on the Closing Date or the most recent fiscal year or period, as
the case may be, (iii) the then applicable Status and (iv) the amount of
any Pro Forma Adjustment not previously set forth in a Pro Forma Adjustment
Certificate or any change in the amount of a Pro Forma Adjustment set forth in
any Pro Forma Adjustment Certificate previously provided and, in either case,
in reasonable detail, the calculations and basis therefor.  At the time of the delivery of the financial
statements provided for in Section 9.1(a), (i) a certificate of an
Authorized Officer of the Borrower setting forth in reasonable detail the
Applicable Amount as at the end of the fiscal year to which such financial
statements relate and (ii) a certificate of an Authorized Officer and the chief
legal officer of the Borrower (x) setting forth the information required
pursuant to Section 1(a) of the Perfection Certificate or confirming that
there has been no change in such information since the Closing Date or the date
of the most recent certificate delivered pursuant to this subsection (d)(ii),
as the case may be, and (ii) certifying that all Uniform Commercial Code
financing statements (including fixture filings, as applicable) or other
appropriate filings, recordings or registrations, including all refilings,
rerecordings and reregistrations, containing a description of the Collateral
have been filed of record in each governmental, municipal or other appropriate
office in each jurisdiction identified pursuant to


 


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clause (x) above to the extent
necessary to protect and perfect the security interests under the Security Documents.


 


(e)                                  Notice of Default
or Litigation.  Promptly after an
Authorized Officer of the Borrower or any of the Subsidiaries obtains knowledge
thereof, notice of (i) the occurrence of any event that constitutes a Default
or Event of Default, which notice shall specify the nature thereof, the period
of existence thereof and what action the Borrower proposes to take with respect
thereto, (ii) any litigation or governmental proceeding pending against the
Borrower or any of the Subsidiaries that could reasonably be expected to result
in a Material Adverse Effect or a Material Adverse Change, and (iii) any actual
or constructive total or material partial loss event with respect to any Satellite.


 


(f)                                    Environmental
Matters.  The Borrower will promptly
advise the Lenders in writing after obtaining knowledge of any one or more of
the following environmental matters, unless such environmental matters would
not, individually or when aggregated with all other such matters, be reasonably
expected to result in a Material Adverse Effect:


 


(i)                                     Any
pending or threatened Environmental Claim against the Borrower or any of the
Subsidiaries or any Real Estate;


 


(ii)                                  Any
condition or occurrence on any Real Estate that (x) could reasonably be
expected to result in noncompliance by the Borrower or any of the Subsidiaries
with any applicable Environmental Law or (y) could reasonably be anticipated to
form the basis of an Environmental Claim against the Borrower or any of the Subsidiaries
or any Real Estate;


 


(iii)                               Any
condition or occurrence on any Real Estate that could reasonably be anticipated
to cause such Real Estate to be subject to any restrictions on the ownership,
occupancy, use or transferability of such Real Estate under any Environmental
Law; and


 


(iv)                              The
conduct of any investigation, or any removal, remedial or other corrective
action in response to the actual or alleged presence, release or threatened
release of any Hazardous Material on, at, under or from any Real Estate.


 


All such notices shall describe in reasonable
detail the nature of the claim, investigation, condition, occurrence or removal
or remedial action and the response thereto. 
The term “Real Estate” shall mean land, buildings and improvements
owned or leased by the Borrower or any of the Subsidiaries, but excluding all
operating fixtures and equipment, whether or not incorporated into
improvements.


 


(g)                                 Other Information.  Promptly upon filing thereof, copies of any
filings (including on Form 10-K, 10-Q or 8-K) or registration statements
with, and reports to, the SEC or any analogous Government Authority in any
relevant jurisdiction by the Borrower or any of the Subsidiaries (other than
amendments to any registration statement (to the extent such registration
statement, in the form it becomes effective, is delivered to the


 


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Lenders), exhibits to any registration
statement and, if applicable, any registration statements on Form S-8) and
copies of all financial statements, proxy statements, notices and reports that
the Borrower or any of the Subsidiaries shall send to the holders of any
publicly issued debt of the Borrower and/or any of the Subsidiaries (including
any Senior Notes (whether publicly issued or not)) in their capacity as such
holders (in each case to the extent not theretofore delivered to the Lenders
pursuant to this Agreement) and, with reasonable promptness, such other
information (financial or otherwise) as the Administrative Agent on its own
behalf or on behalf of any Lender may reasonably request in writing from time
to time.


 


(h)                                 Pro Forma
Adjustment Certificate.  Not later
than the consummation of the acquisition of any Acquired Entity or Business by
the Borrower or any Restricted Subsidiary for which there shall be a Pro Forma
Adjustment or not later than any date on which financial statements are
delivered with respect to any four-quarter period in which a Pro Forma
Adjustment is made as a result of the consummation of the acquisition of any
Acquired Entity or Business by the Borrower or any Restricted Subsidiary for
which there shall be a Pro Forma Adjustment, a certificate of an Authorized
Officer of the Borrower setting forth the amount of such Pro Forma Adjustment
and, in reasonable detail, the calculations and basis therefor.


 


(i)                                     FCC Reports.  Promptly upon their becoming available,
copies of any and all periodic or special reports filed by the Borrower or any
of its Restricted Subsidiaries with the FCC or with any other Federal, state or
local governmental authority, if such reports indicate any material adverse
change in the business, operations, affairs or condition of the Borrower or any
of its Restricted Subsidiaries, and copies of any and all notices and other
communications from the FCC or from any other Federal, state or local
governmental authority with respect to the Borrower, any of its Subsidiaries or
any Satellite relating to any matter that could reasonably be expected to
result in a Material Adverse Effect.


 


(j)                                     Satellite
Health Report.  No less than
annually, and at any time upon the reasonable request of the Administrative
Agent, a satellite health report prepared by the Borrower and certified by an
Authorized Officer setting forth the operational status of each Satellite
(other than Satellites yet to be launched) based on reasonable assumptions of
the Borrower made in good faith and including such information with respect to
the projected solar array life based on the total satellite power requirements,
projected battery life based on total satellite power requirements, projected
satellite life, information concerning whether any transponder spares or
preemptible transponders on such Satellite have been employed and such other
information pertinent to the operation of such Satellite and the transponders
thereon as the Administrative Agent may reasonably request, it being understood
that to the extent that any such satellite health report contains any forward
looking statements, estimates or projections, such statements, estimates or
projections are subject to significant uncertainties and contingencies, many of
which are beyond the Borrower’s control, and no assurance can be given that
such forward looking statements, estimates, projections will be realized, provided
that nothing in this clause (j) shall


 


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require the Borrower to deliver any
information to any Lender to the extent delivery of such information is
restricted by applicable law or regulation.


 


9.2.                              Books,
Records and Inspections.  The
Borrower will, and will cause each of the Subsidiaries to, permit officers and
designated representatives of the Administrative Agent or the Required Lenders
to visit and inspect any of the properties or assets the Borrower and any such
Subsidiary in whomsoever’s possession to the extent that it is within such
party’s control to permit such inspection, and to examine the books and records
of the Borrower and any such Subsidiary and discuss the affairs, finances and
accounts the Borrower and of any such Subsidiary with, and be advised as to the
same by, its and their officers and independent accountants, all at such
reasonable times and intervals and to such reasonable extent as the Administrative
Agent or the Required Lenders may desire.


 


9.3.                              Maintenance
of Insurance.  (a)  Generally.  The Borrower will, and will
cause each of the Material Subsidiaries to, at all times maintain in full force
and effect, with insurance companies that the Borrower believes (in the good
faith judgment of the management of the Borrower) are financially sound and
responsible at the time the relevant coverage is placed or renewed, insurance
in at least such amounts and against at least such risks (and with such risk
retentions) as are usually insured against in the same general area by companies
engaged in the same or a similar business; and will furnish to the Lenders, upon
written request from the Administrative Agent, information presented in
reasonable detail as to the insurance so carried.


 


(b)                                 Covered
Satellites.  The Borrower will, and
will cause each of its Restricted Subsidiaries to, maintain insurance with
respect to Satellites as follows:


 


(i)                                     All Risks
Insurance.  The Borrower will procure
or will cause each Satellite Manufacturer to procure at its own expense and
maintain in  full force and effect, at
all times prior to the Launch of any satellite 
purchased by the Borrower or any of its Restricted Subsidiaries pursuant
to the terms of a Satellite Purchase Agreement, All Risks Insurance with  such terms as are reasonably commercially
available and customary in the industry with respect to such satellite, it
being understood that if a Satellite Manufacturer procures All Risks Insurance
for satellites in accordance with the requirements of the applicable Satellite
Purchase Agreement, the Borrower’s obligations under this clause (i) with
respect to such satellites shall be satisfied. In no event shall the Borrower
be required to, or be required to cause any Satellite Manufacturer to, procure
or maintain All Risks Insurance to insure risks that may be required to be
insured by, or that covers the same risks or the same period of coverage as,
Launch Insurance.


 


(ii)                                  Launch Insurance.  The Borrower will, or will cause the relevant
Satellite Manufacturer to, obtain, maintain and keep in full force and effect
with respect to each Covered Satellite that is to be
launched, Launch Insurance (it being understood that if a Satellite
Manufacturer procures Launch Insurance for Covered Satellites in accordance
with the terms of this clause (ii), the Borrower’s obligations under this
clause (ii) with respect to such Covered Satellites shall be satisfied), to be
procured prior to the then-scheduled launch of such Covered Satellite, which
insurance shall attach not later than at Launch and continue in full force and
effect until no sooner than the completion of initial in-orbit testing, provided
that if the board of directors determines in good faith as evidenced


 


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by a board resolution delivered to the Administrative Agent not to
procure Launch Insurance for a specified Covered Satellite and the Required
Lenders approve in writing of such election, the provisions of this Section 9.3(b)(ii)
shall not apply to such Covered Satellite. 
The Launch Insurance for each Covered Satellite:


 


(A)                              shall provide coverage
for all of the risks of loss of and damage to such Covered Satellite (other
than any risks borne by the relevant Launch Services Provider pursuant to any
launch risk guarantee in accordance with the terms of the applicable Launch
Services Agreement or by the relevant Satellite Manufacturer in accordance with
the terms of the applicable Satellite Purchase Agreement), including for
partial loss, constructive total loss and total loss, subject to (x) Acceptable
Exclusions, (y) such other exclusions or limitations of coverage applicable to
all satellites of the same model or relating to systemic anomalies as are then
customary in the satellite insurance market and as are reasonably acceptable to
the Administrative Agent, and (z) such specific exclusions applicable to the
performance of such Covered Satellite as are reasonably accepted by the board
of directors in order to obtain Launch Insurance for such Covered Satellite for
a price that is, and on other terms and conditions that are, commercially
reasonable;


 


(B)                                shall be in an amount
not less than the aggregate of the purchase price of such Covered Satellite,
the purchase price of launch services therefor (other than for risks borne by
the relevant Launch Services Provider pursuant to any launch risk guarantee in
accordance with the terms of the applicable Launch Services Agreement or by the
relevant Satellite Manufacturer in accordance with the terms of the applicable
Satellite Purchase Agreement) and the premium payable for such insurance, and
subject to any then customary deductible but in no event in an amount exceeding
15% of operational capacity of such Covered Satellite, unless otherwise agreed
by the Administrative Agent;


 


(C)                                shall name the
applicable Satellite Purchaser as the named insured and the Collateral Trustee
as additional insured, provided that (x) in the case of any such
endorsement as additional insured to be delivered by the Closing Date, the
Administrative Agent may consent to such endorsement being delivered at such
later date as it deems appropriate in the circumstances (y) in the case of any
Covered Satellite that is not owned by the Borrower or any Guarantor or that is
subject to a Lien permitted by Section 10.2(c), (f) or (g) and the terms
of the Indebtedness secured by such Lien prohibit the assignment of, or granting
of a security interest in such Covered Satellite, the Collateral Trustee shall
not be named as an additional insured with respect to such Covered Satellite;


 


(D)                               shall provide that it
will not be canceled or reduced, amended or allowed to lapse without renewal,
except after not less than 30 days’ prior notice to the Administrative Agent or
not less than 15 days’ prior notice to the Administrative Agent if 30 days is
not then commercially available at a reasonable cost; and


 


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(E)                                 shall, in the case of
a Satellite a portion of which is owned by the Borrower or any of its
Restricted Subsidiaries and the balance of which is owned by any Person that is
not an Affiliate of either the Borrower or any of its Restricted Subsidiaries
(other than by reason of the Borrower or any Restricted Subsidiary holding an
equity interest in such Person), only be required with respect to that portion
of such Satellite that is owned by the Borrower or any of its Restricted Subsidiaries
or for which the Borrower or any of its Restricted Subsidiaries otherwise
retains the risk of loss.


 


(iii)                               In-Orbit Risk
Management.  Other than with respect
to (A) Excluded Satellites, (B) any In-Orbit Spare Satellite (but only to the
extent that such In-Orbit Spare Satellite is not expected or intended, in the
good faith determination of the board of directors and evidenced by a board
resolution delivered to the Administrative Agent, to earn revenues in excess of
$25,000,000 for the immediately succeeding twelve calendar months), and (C) any
other Covered Satellite as the Borrower shall designate, with the prior consent
of the Required Lenders, the Borrower either will obtain, maintain and keep in
full force and effect, with respect to each Covered Satellite, In-Orbit
Insurance or comply with the terms of the Satellite Risk Management Program,
with respect to each Covered Satellite, provided that in no event, at
any time, shall more than 47% of the aggregate number of transponders on all
Covered Satellites (other than Excluded Satellites) that are in orbit be
protected by In-Orbit Spare Satellites in accordance with the Satellite Risk
Management Program.


 


(A)                              Attachment of In-Orbit
Insurance.  Any In-Orbit Insurance
procured with respect to a Covered Satellite shall attach (A) upon the
expiration of the Launch Insurance or any In-Orbit Insurance then in effect, as
the case may be, (B) as may be required under the terms of the Satellite
Risk Management Program, or (C) upon the withdrawal of such Covered
Satellite from the Satellite Risk Management Program, and in each such case
shall continue in full force and effect until the Commitments shall have been
terminated and all amounts owing hereunder shall have been paid in full or
until such Covered Satellite is placed back into the Satellite Risk Management
Program in accordance with its terms.


 


(B)                                Terms of In-Orbit
Insurance.  Any In-Orbit Insurance
procured with respect to a Covered Satellite:


 


(1)                                  shall provide
coverage for all of the risks of loss of and damage to such Covered Satellite
(other than the risks borne by the relevant Launch Services Provider pursuant
to any launch risk guarantee in accordance with the terms of the applicable
Launch Services Agreement or by the relevant Satellite Manufacturer pursuant to
the terms of the applicable Satellite Purchase Agreement), including for
partial loss, constructive total loss and total loss, subject to (x) Acceptable
Exclusions, (y) such other exclusions or limitations of coverage applicable to
all satellites of the same model or relating to systemic anomalies as are then
customary in the satellite insurance market and as are reasonably acceptable to
the


 


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Administrative Agent, and (z) such specific exclusions applicable to
the performance of such Covered Satellite as are reasonably accepted by the
board of directors in order to obtain In-Orbit Insurance for such Covered
Satellite for a price that is, and on other terms and conditions that are,
commercially reasonable;


 


(2)                                  shall be in an amount
not less than 33% of the aggregate book value of all Covered Satellites insured
in accordance with Section 9.3(b)(iii) (it being understood that any
Covered Satellite protected by an In-Orbit Spare Satellite shall be deemed to
be insured for 100% of its book value) (with the allocation of such insurance
among such Covered Satellites being in the Borrower’s discretion); in the event
any loss, damage or failure affecting a Covered Satellite or the expiration and
non-renewal of an insurance policy for a Covered Satellite resulting from a
claim of loss under such policy that causes a failure to comply with this
clause (2), the Borrower and its Restricted Subsidiaries shall be deemed to be
in compliance with this clause (2) for the 120 days immediately following such
loss, damage or failure or policy expiration, provided
that the Borrower procures such insurance or In-Orbit Space Satellite as
necessary to comply with this clause (2) within such 120 day period;


 


(3)                                  shall name the
applicable Satellite Purchaser as the named insured and the Collateral Trustee
as additional insured, provided that (x) in the case of any such
endorsement as additional insured to be delivered by the Closing Date, the
Administrative Agent may consent to such endorsement being delivered at such
later date as it deems appropriate in the circumstances (y) in the case of any
Covered Satellite that is not owned by the Borrower or any Guarantor or that is
subject to a Lien permitted by Section 10.2(c), (f) or (g) and the terms
of the Indebtedness secured by such Lien prohibit the assignment of, or
granting of a security interest in such Covered Satellite, the Collateral
Trustee shall not be named as an additional insured with respect to such
Covered Satellite;


 


(4)                                  shall provide that it
will not be canceled or reduced, amended or allowed to lapse without renewal,
except after not less than 30 days’ prior notice to the Administrative Agent or
not less than 15 days’ prior notice to the Administrative Agent if 30 days is
not then commercially available at a reasonable cost; and


 


(5)                                  shall, in the case of
a Satellite a portion of which is owned by the Borrower or any of its
Restricted Subsidiaries and the balance of which is owned by any Person that is
not an Affiliate of either the Borrower or any of its Restricted Subsidiaries
(other than by reason of the Borrower or any Restricted Subsidiary holding an
equity interest in such Person), only be required with respect to that portion
of the Satellite that is owned by the Borrower or any of its Restricted
Subsidiaries or for which


 


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the Borrower or any of its Restricted Subsidiaries otherwise retains
the risk of loss.


 


(iv)                              Third Party Launch
Liability Insurance.  The Borrower
will cause each Launch Services Provider to procure and maintain Third Party
Launch Liability Insurance in full force and effect for the period required
under the relevant Launch Services Agreement and to name the Administrative
Agent or Collateral Trustee, as applicable, and the Lenders as additional
insureds thereunder.


 


(v)                                 Delivery of
Insurance Policies.  The Borrower
shall use commercially reasonable efforts to deliver to the Administrative
Agent, or the Collateral Trustee, as the case may be, not later than 30 days
before the then-scheduled launch of any Covered Satellite and, with respect to
In-Orbit Insurance procured, not later than 15 days before the expiration of
the relevant Launch Insurance, a preliminary copy of the Launch Insurance
policy and the In-Orbit Insurance policy, as the case may be, with respect
thereto, and not later than the date on which such insurance is required to be
procured as provided in clause (ii) or clause (iii) above, as the case may be,
shall deliver to the Administrative Agent the final copy of such policy
together with certificates of insurance with respect thereto, confirming (A)
that such insurance is in full force and effect as of such date, (B) the
names and percentages of the relevant insurance companies, (C) the amount and
expiration dates of such policy, (D) that all premiums and other amounts due
for such insurance have been paid in full, (E) that, in the relevant broker’s
opinion, such policy is in compliance with this Section 9.3, and (F) that
the Collateral Trustee (and, in the case of Third Party Launch Liability
Insurance policies, the Lenders) is named as additional insured to the extent
required hereby.


 


(c)                                  Procurement
of Insurance by Administrative Agent. 
Without limiting the obligations of the Borrower under this Section 9.3,
in the event the Borrower or any Restricted Subsidiary shall fail to maintain
in full force and effect insurance as required by this Section 9.3, then
the Administrative Agent may, but shall have no obligation to, upon reasonable
prior notice to the Borrower of its intention to do so, procure insurance
covering the interests of the Lenders and the Administrative Agent in such
amounts and against such risks as are required hereby, and the Borrower shall
reimburse the Administrative Agent in respect of any premiums paid by the
Administrative Agent in respect thereof.


 


9.4.                              Payment
of Taxes.  The Borrower will pay and
discharge, and will cause each of the Subsidiaries to pay and discharge, all
material taxes, assessments and governmental charges or levies imposed upon it
or upon its income or profits, or upon any properties belonging to it, prior to
the date on which material penalties attach thereto, and all lawful material
claims that, if unpaid, could reasonably be expected to become a material Lien
upon any properties of the Borrower or any of the Restricted Subsidiaries, provided
that neither the Borrower, nor any of the Subsidiaries shall be required to pay
any such tax, assessment, charge, levy or claim that is being contested in good
faith and by proper proceedings if it has maintained adequate reserves (in the
good faith judgment of the management of the Borrower) with respect thereto in
accordance with GAAP and the failure to pay could not reasonably be expected to
result in a Material Adverse Effect.


 


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9.5.                              Consolidated
Corporate Franchises.  The Borrower
will do, and will cause each Material Subsidiary to do, or cause to be done,
all things necessary to preserve and keep in full force and effect its
existence, corporate rights and authority, except to the extent that the
failure to do so could not reasonably be expected to have a Material Adverse
Effect; provided, however, that the
Borrower and its Subsidiaries may consummate any transaction permitted under Section 10.3,
10.4 or 10.5.


 


9.6.                              Compliance
with Statutes, Regulations, etc.  The Borrower will, and will cause each
Subsidiary to, comply with all applicable laws, rules, regulations and orders
applicable to it or its property (including all FCC Licenses and all other
governmental approvals or authorizations required to launch and operate the
Satellites and the TT&C Stations related thereto) and to transmit signals
to and receive transmissions from the Satellites, and to maintain all such FCC
Licenses and other governmental approvals or authorizations in full force and effect,
in each case except where the failure to do so could not reasonably be expected
to have a Material Adverse Effect (it being understood that any failure as it
may relate to any FCC License for a Satellite that is yet to be launched shall
not, in itself, be considered or deemed to result in a Material Adverse
Effect).


 


9.7.                              ERISA.  Promptly after the Borrower or any Subsidiary
or any ERISA Affiliate knows or has reason to know of the occurrence of any of
the following events that, individually or in the aggregate (including in the
aggregate such events previously disclosed or exempt from disclosure hereunder,
to the extent the liability therefor remains outstanding), would be reasonably
likely to have a Material Adverse Effect, the Borrower will deliver to each of
the Lenders a certificate of an Authorized Officer or any other senior officer
of the Borrower setting forth details as to such occurrence and the action, if
any, that the Borrower, such Subsidiary or such ERISA Affiliate is required or
proposes to take, together with any notices (required, proposed or otherwise)
given to or filed with or by the Borrower, such Subsidiary, such ERISA Affiliate,
the PBGC, a Plan participant (other than notices relating to an individual
participant’s benefits) or the Plan administrator with respect thereto:  that a Reportable Event has occurred; that an
accumulated funding deficiency has been incurred or an application is to be
made to the Secretary of the Treasury for a waiver or modification of the
minimum funding standard (including any required installment payments) or an
extension of any amortization period under Section 412 of the Code with
respect to a Plan; that a Plan having an Unfunded Current Liability has been or
is to be terminated, reorganized, partitioned or declared insolvent under Title
IV of ERISA (including the giving of written notice thereof); that a Plan has
an Unfunded Current Liability that has or will result in a lien under ERISA or
the Code; that proceedings will be or have been instituted to terminate a Plan
having an Unfunded Current Liability (including the giving of written notice
thereof); that a proceeding has been instituted against the Borrower, a
Subsidiary or an ERISA Affiliate pursuant to Section 515 of ERISA to
collect a delinquent contribution to a Plan; that the PBGC has notified the
Borrower, any Subsidiary or any ERISA Affiliate of its intention to appoint a
trustee to administer any Plan; that the Borrower, any Subsidiary or any ERISA
Affiliate has failed to make a required installment or other payment pursuant
to Section 412 of the Code with respect to a Plan; or that the Borrower,
any Subsidiary or any ERISA Affiliate has incurred or will incur (or has been
notified in writing that it will incur) any liability (including any contingent
or secondary liability) to or on account of a Plan pursuant to Section 409,


 


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502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971
or 4975 of the Code.


 


9.8.                              Maintenance
of Properties .  The Borrower will,
and will cause each of its Restricted Subsidiaries to, keep and maintain all
property material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, which shall include, in the case of Satellites
(other than Satellites yet to be launched), the provision of tracking,
telemetry, control and monitoring of Satellites in their designated orbital
positions in accordance with prudent and diligent standards in the commercial
satellite industry, except to the extent that the failure to do so could
reasonably be expected to have a Material Adverse Effect.


 


9.9.                              Transactions
with Affiliates.  The Borrower will
conduct, and cause each of the Restricted Subsidiaries to conduct, all
transactions with any of its Affiliates (other than Borrower or its Restricted
Subsidiaries) on terms that are substantially as favorable to the Borrower or
such Restricted Subsidiary as it would obtain in a comparable arm’s-length
transaction with a Person that is not an Affiliate, provided that the
foregoing restrictions shall not apply to (a) upon consummation of the
IPO, one-time payments to the Sponsors in an aggregate amount not to exceed $10
million in connection with the IPO and the termination of existing management,
consulting or financial or similar services agreements between the Borrower and
the Sponsors, (b) the payment of customary investment banking fees paid to the
Sponsors for services rendered to the Borrower and the Subsidiaries in
connection with divestitures, acquisitions, financings and other transactions,
(c) customary fees paid to members of the board of directors of the Borrower
and the Subsidiaries and (d) transactions permitted by Section 10.6.


 


9.10.                        End
of Fiscal Years; Fiscal Quarters.  The
Borrower will, for financial reporting purposes, cause (a) each of its, and
each of its Subsidiaries’, fiscal years to end on December 31 of each year
and (b) each of its, and each of its Subsidiaries’, fiscal quarters to end on
dates consistent with such fiscal year-end and the Borrower’s past practice; provided,
however, that the Borrower may, upon
written notice to the Administrative Agent, change the financial reporting
convention specified above to any other financial reporting convention
reasonably acceptable to the Administrative Agent, in which case the Borrower
and the Administrative Agent will, and are hereby authorized by the Lenders to,
make any adjustments to this Agreement that are necessary in order to reflect
such change in financial reporting.


 


9.11.                        Additional
Guarantors and Grantors.  Except as
set forth in Section 10.1(A)(j) or (A)(k), the Borrower will cause (i)
each direct or indirect Domestic Subsidiary (other than any Unrestricted
Subsidiary or any Domestic Subsidiary owned by a Foreign Subsidiary) formed or
otherwise purchased or acquired after the Closing Date (including pursuant to a
Permitted Acquisition), (ii) each Subsidiary (other than any Unrestricted
Subsidiary) that is not a Domestic Subsidiary on the Closing Date but subsequently
becomes a Domestic Subsidiary (other than any Unrestricted Subsidiary) and
(iii) each inactive Subsidiary listed on Schedule 1.1(d) to the
Original Credit Agreement (unless such Subsidiary is designated an Unrestricted
Subsidiary in accordance with terms of this Agreement) which acquires any
material assets or is otherwise no longer deemed inactive, in each case to
execute a supplement to each of the Guarantee and the Security Agreements,
substantially in the form of Annex B or Annex 1, as applicable, to the
respective agreement in order to become a Guarantor under the Guarantee and a
grantor


 


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under the Security Agreements (it being understood that any such
property constituting “Principal Property” under the Senior 1998 Notes
Indenture shall be subjected to Liens under the applicable Security Documents
in favor or the Collateral Trustee, and all other property shall be subject to
Liens under the applicable Security Documents in favor of the Administrative
Agent).


 


9.12.                        Pledges
of Additional Stock and Evidence of Indebtedness.  (a) 
Except as set forth in Section 10.1(A)(j) or (A)(k), the Borrower
will pledge, and, if applicable, will cause each Domestic Subsidiary to pledge,
to the Administrative Agent or the Collateral Trustee, as applicable, for the
benefit of the Secured Parties, (i) all the capital stock of each Domestic
Subsidiary (other than any Unrestricted Subsidiary or any Domestic Subsidiary
owned by a Foreign Subsidiary), Minority Investment and each Foreign Subsidiary
(other than an Unrestricted Subsidiary or any capital stock representing in
excess of 65% of the issued and outstanding capital stock in any Foreign
Subsidiary) held by the Borrower or a Domestic Subsidiary, in each case, formed
or otherwise purchased or acquired after the Closing Date, in each case
pursuant to a supplement to the Pledge Agreements in form and substance
reasonably satisfactory to the Administrative Agent, (ii) all evidences of
Indebtedness in excess of $1,000,000 received by the Borrower or any of the
Domestic Subsidiaries (other than any Unrestricted Subsidiary or any Domestic
Subsidiary wholly-owned by a Foreign Subsidiary) in connection with any
disposition of assets pursuant to Section 10.4(b), in each case pursuant
to a supplement to the Pledge Agreements, substantially in the form of Annex A
thereto and (iii) any global promissory notes executed after the Closing
Date evidencing Indebtedness of the Borrower, each Subsidiary and each Minority
Investment that is owing to the Borrower or any Domestic Subsidiary (other than
any Unrestricted Subsidiary or any Domestic Subsidiary wholly-owned by a Foreign
Subsidiary), in each case pursuant to a supplement to the Pledge Agreements,
substantially in the form of Annex A thereto (it being understood that any such
capital stock or evidence of Indebtedness described in clauses (i), (ii) or
(iii) above issued by a “Restricted Subsidiary” (as described in the Senior
1998 Notes Indenture) shall be subjected to Liens under the applicable Security
Documents in favor of the Collateral Trustee, and all other capital stock or
evidence of Indebtedness shall be subject to Liens under the applicable
Security Documents in favor of the Administrative Agent).


 


(b)                                 The
Borrower agrees that all Indebtedness in excess of $1,000,000 of the Borrower
and each Subsidiary that is owing to any Credit Party to the Pledge Agreement shall
be evidenced by one or more global promissory notes.


 


9.13.                        Use
of Proceeds.  The Borrower will use
the Letters of Credit and the proceeds of all Loans for the purposes set forth
in the introductory statement to this Agreement.


 


9.14.                        Changes
in Business.  (a)  The Borrower and the Subsidiaries, taken as a
whole, will not fundamentally and substantively alter the character of their
business, taken as a whole, from the business conducted by the Borrower and the
Subsidiaries, taken as a whole, on the Closing Date and other business activities
incidental or related to any of the foregoing.


 


(b)                                 No
License Subsidiary will engage in any line or lines of business activity other
than to hold FCC Licenses issued to it and to enter into arrangements with the
Borrower or other Restricted Subsidiaries (other than other License
Subsidiaries) to manage and operate such FCC Licenses under its direction and
control, in each case to the maximum extent permitted by applicable law.  The Borrower will cause all Subject Licenses
at all times to be held in the name


 


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of a License Subsidiary (which shall be the sole legal and beneficial
owner thereof).  Any license issued after
the Closing Date by the FCC that constitutes a Subject License shall be held in
the name of a License Subsidiary (which shall be the sole legal and beneficial
owner thereof).


 


9.15.                        Further
Assurances.  (a)  The Borrower will, and will cause each other
Credit Party to, 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, deeds
of trust and other documents), which may be required under any applicable law,
or which the Administrative Agent or the Required Lenders may reasonably
request, in order to grant, preserve, protect and perfect the validity and
priority of the security interests created or intended to be created by the
Security Agreements, the Pledge Agreements or any Mortgage, all at the expense
of the Borrower and the Restricted Subsidiaries (it being understood that any
such property constituting “Principal Property” under the Senior 1998 Notes
Indenture shall be subjected to Liens under the applicable Security Documents
in favor of the Collateral Trustee, and all other property shall be subject to
Liens under the applicable Security Documents in favor of the Administrative
Agent).


 


(b)                                 If
any assets (including any real estate or improvements thereto or any interest
therein) with a book value or fair market value in excess of $1,000,000 are
acquired by the Borrower or any other Credit Party after the Closing Date
(other than assets constituting Collateral under the Security Agreements that
become subject to the Lien of the Security Agreement upon acquisition thereof)
that are of the nature secured by the Security Agreements or any Mortgage, as
the case may be, the Borrower will notify the Administrative Agent  and the Lenders thereof, and, if requested by
the Administrative Agent or the Required Lenders, the Borrower will cause such
assets to be subjected to a Lien securing the applicable Obligations and will
take, and cause the other Credit Parties to take, such actions as shall be
necessary or reasonably requested by the Administrative Agent to grant and
perfect such Liens consistent with the applicable requirements of the Security
Documents, including actions described in paragraph (a) of this Section 9.15,
all at the expense of the Credit Parties. 
Any Mortgage delivered to the Administrative Agent in accordance with
the preceding sentence shall be accompanied by (x) a policy or policies of
title insurance issued by a nationally recognized title insurance company
insuring the Lien of each Mortgage as a valid first Lien on the Mortgaged Property
described therein, free of any other Liens except as expressly permitted by Section 10.2,
together with such endorsements, coinsurance and reinsurance as the
Administrative Agent may reasonably request and (y) an opinion of local counsel
to the Borrower (or in the event a Subsidiary of the Borrower is the mortgagor,
to such Subsidiary) substantially in the form of Exhibit I-4 to the
Original Credit Agreement (it being understood that any such property constituting
“Principal Property” under the Senior 1998 Notes Indenture shall be subjected
to Liens under the applicable Security Documents in favor of the Collateral
Trustee, and all other property shall be subject to Liens under the applicable
Security Documents in favor of the Administrative Agent).  Any provision contained herein or in the
Security Documents to the contrary notwithstanding, the Collateral shall not include
at any time any FCC License to the extent (but only to the extent) that at such
time the Administrative Agent may not validly possess a security interest
therein pursuant to the Communications Act of 1934, as amended, and the
regulations promulgated thereunder, as in effect at such time, but the
Collateral shall include, to the maximum extent permitted by law, all rights


 


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incident or appurtenant to the FCC Licenses and the right to receive
all proceeds derived from or in connection with the sale, assignment or
transfer of the FCC Licenses.


 


9.16.                        Access
and Command Codes.  (a)  The Borrower will, and will cause each of its
Restricted Subsidiaries, at the request of the Administrative Agent to use
commercially reasonable efforts to obtain promptly from each provider (other
than the Borrower) of tracking, telemetry, control and monitoring services for
any Satellite, consents and agreements with the Collateral Trustee to:


 


(i)                                     deliver
expeditiously to the Collateral Trustee, upon notification by the
Administrative Agent that an acceleration pursuant to Section Eleven 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;


 


(ii)                                  take commercially
reasonable steps necessary, upon notification by the Administrative Agent that
an acceleration pursuant to Section Eleven 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


 


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


 


(b)                                 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 Satellite Manufacturer in
respect of Satellites that have yet to be launched, to the extent that the
Borrower or a Restricted Subsidiary 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


 


(c)                                  at
any time upon an acceleration pursuant to Section Eleven, and upon
notification thereof by the Administrative Agent, to promptly deliver to the
Collateral Trustee, 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.


 


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9.17.                        TTC&M
Providers.  The Borrower will, and
will use its commercially reasonable efforts to cause each provider (other than
the Borrower) of tracking, telemetry, control and monitoring services for any
Satellite to agree to, not 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
exists and such provider of tracking, telemetry, control and monitoring
services, as the case may be, has been notified by the Borrower 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 9.17.


 


9.18.                        Maintenance
of Rating of Facilities.  Borrower will cause a senior secured credit rating
with respect to the Credit Facilities from each of S&P and Moody’s to be
available at all times thereafter until the last Maturity Date under this
Agreement.


 


SECTION 10.                          Negative Covenants


 


The Borrower
hereby covenants and agrees that on the Closing Date and thereafter, until the
Commitments, the Swingline Commitment and each Letter of Credit have terminated
and the Loans and Unpaid Drawings, together with interest, Fees and all other
Obligations incurred hereunder, are paid in full:


 


10.1.                        Limitation
on Indebtedness.  (A)  The Borrower will not, and will not permit
any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist
any Indebtedness, except:


 


(a)                                  Indebtedness arising
under the Credit Documents;


 


(b)                                 Indebtedness of
(i) the Borrower to any Subsidiary of the Borrower and (ii) subject
to compliance with Section 10.5(g), any Subsidiary to the Borrower or any
other Restricted Subsidiary of the Borrower;


 


(c)                                  Indebtedness in
respect of any bankers’ acceptance, letter of credit, warehouse receipt or
similar facilities entered into in the ordinary course of business;


 


(d)                                 except as provided in
clauses (j) and (k) below, subject to compliance with Section 10.5(g),
Guarantee Obligations (A) incurred by (i) Restricted Subsidiaries in
respect of Indebtedness of the Borrower or other Restricted Subsidiaries that
is permitted to be incurred under this Agreement and (ii) the Borrower in
respect of Indebtedness of the Restricted Subsidiaries that is permitted to be
incurred under this Agreement, provided that there shall be no Guarantee
(a) by a Restricted Foreign Subsidiary or another Restricted Subsidiary
that is not a Guarantor of any Indebtedness of the Borrower and (b) in
respect of the Senior Notes or Permitted Additional Notes, unless such
Guarantee is made by a Guarantor and such Guarantee is unsecured (and subordinated
in the case of Permitted Additional Notes that are subordinated) or (B) in
respect of any India Tax Obligations;


 


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(e)                                  Guarantee Obligations
incurred in the ordinary course of business in respect of obligations of
suppliers, customers, franchisees, lessors and licensees;


 


(f)                                    (i) Indebtedness
(including Indebtedness arising under Capital Leases) incurred within
270 days of the acquisition, construction or improvement of fixed or
capital assets to finance the acquisition, construction or improvement of such
fixed or capital assets or otherwise incurred in respect of Capital
Expenditures permitted by Section 10.11, (ii) Indebtedness arising
under Capital Leases entered into in connection with Permitted Sale Leasebacks
and (iii) Indebtedness arising under Capital Leases, other than Capital
Leases in effect on the Closing Date and Capital Leases entered into pursuant
to subclauses (i) and (ii) above, provided, that the aggregate
amount of Indebtedness incurred pursuant to this subclause (iii) shall not
exceed $75,000,000 at any time outstanding, and (iv) any refinancing,
refunding, renewal or extension of any Indebtedness specified in
subclause (i), (ii) or (iii) above, provided that the
principal amount thereof does not exceed the principal amount thereof
outstanding immediately prior to such refinancing, refunding, renewal or
extension, plus the amount of any interest, premiums or penalties
required to be paid thereon, plus reasonable fees and expenses associated
therewith;


 


(g)                                 Indebtedness
outstanding on the Closing Date (other than the Senior 1998 Notes) and listed
on Schedule 10.1 to the Original Credit Agreement and any
refinancing, refunding, renewal or extension thereof, provided that
(i) the principal amount thereof does not exceed the principal amount
thereof outstanding immediately prior to such refinancing, refunding, renewal
or extension plus the amount of any interest, premiums or penalties
required to be paid thereon, plus reasonable fees and expenses
associated therewith, except to the extent otherwise permitted hereunder and
(ii) the direct and contingent obligors with respect to such Indebtedness
are not changed;


 


(h)                                 Indebtedness in
respect of Hedge Agreements;


 


(i)                                     Indebtedness in
respect of the Senior Notes in an aggregate principal amount not to exceed
$1,010,000,000 (or such lesser aggregate principal amount as may be incurred on
the Closing Date);


 


(j)                                     (i) Indebtedness
of a Person or Indebtedness attaching to assets of a Person that, in either
case, becomes a Restricted Subsidiary or Indebtedness attaching to assets that
are acquired by the Borrower or any Restricted Subsidiary, in each case after
the Closing Date as the result of a Permitted Acquisition, provided that
(w) such Indebtedness existed at the time such Person became a Restricted
Subsidiary or at the time such assets were acquired and, in each case, was not
created in anticipation thereof, (x) such Indebtedness is not guaranteed
in any respect by the Borrower or any Restricted Subsidiary (other than by any
such person that so becomes a Restricted Subsidiary) and (y)(A) the
capital stock of such Person is pledged to the Administrative Agent or the Collateral
Trustee, as applicable, to the extent required under Section 9.12 and (B) such
Person executes a supplement to each of the Guarantee, the Security Agreements
and the Pledge Agreements (or alternative guarantee and security arrangements
in relation to the


 


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Obligations reasonably acceptable to the
Administrative Agent or the Collateral Trustee, as applicable) to the extent
required under Section 9.11 or 9.12, as applicable, provided that
the requirements of this subclause (y) shall not apply to an aggregate amount
at any time outstanding of up to (and including) the Guarantee and Collateral
Exception Amount at such time of the aggregate of (1) such Indebtedness
and (2) all Indebtedness as to which the proviso to clause (k)(i)(y) below
then applies, and (ii) any refinancing, refunding, renewal or extension of
any Indebtedness specified in subclause (i) above, provided that,
except to the extent otherwise permitted hereunder, (x) the principal
amount of any such Indebtedness does not exceed the principal amount thereof
outstanding immediately prior to such refinancing, refunding, renewal or
extension, plus the amount of any interest, premiums or penalties
required to be paid thereon, plus reasonable fees and expenses
associated therewith and (y) the direct and contingent obligors with respect
to such Indebtedness are not changed;


 


(k)                                  (i) Indebtedness
of the Borrower or any Restricted Subsidiary (including any Permitted
Additional Notes) incurred to finance a Permitted Acquisition, provided
that (x) except in the case of Permitted Additional Notes, such
Indebtedness is not guaranteed in any respect by any Restricted Subsidiary
(other than any Person acquired (the “acquired Person”) as a result of
such Permitted Acquisition or the Restricted Subsidiary so incurring such
Indebtedness) or, in the case of Indebtedness of any Restricted Subsidiary,
subject to compliance with Section 10.5(h), by the Borrower and
(y)(A) the Borrower pledges the capital stock of such acquired Person to
the Administrative Agent or the Collateral Trustee, as applicable, to the
extent required under Section 9.12 and (B) such acquired Person
executes a supplement to the Guarantee, the Security Agreements and the Pledge
Agreements (or alternative guarantee and security arrangements in relation to
the Obligations reasonably acceptable to the Administrative Agent) to the
extent required under Section 9.11 or 9.12, as applicable, provided
that the requirements of this subclause (y) shall not apply to an aggregate
amount at any time outstanding of up to (and including) the amount of the
Guarantee and Collateral Exception Amount at such time of the aggregate of
(1) such Indebtedness and (2) all Indebtedness as to which the
proviso to clause (j)(i)(y) above then applies, and (ii) any refinancing,
refunding, renewal or extension of any such Indebtedness, provided that
(x) the principal amount of any such Indebtedness does not exceed the principal
amount thereof outstanding immediately prior to such refinancing, refunding,
renewal or extension plus the amount of any interest, premiums or
penalties required to be paid thereon, plus reasonable fees and expenses
associated therewith and (y) the direct and contingent obligors with
respect to such Indebtedness are not changed, except to the extent otherwise
permitted hereunder;


 


(l)                                     Indebtedness in
respect of performance bonds, bid bonds, appeal bonds, surety bonds and
completion guarantees and similar obligations not in connection with money
borrowed, 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;


 


(m)                               (i) Indebtedness
incurred in connection with any Permitted Sale Leaseback (provided that
the Net Cash Proceeds thereof are promptly applied to the extent required


 


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by Section 5.2) and (ii) any
refinancing, refunding, renewal or extension of any Indebtedness specified in
subclause (i) above, provided that, except to the extent otherwise
permitted hereunder, (x) the principal amount of any such Indebtedness is
not increased above the principal amount thereof outstanding immediately prior
to such refinancing, refunding, renewal or extension and (y) the direct
and contingent obligors with respect to such Indebtedness are not changed;


 


(n)                                 (i) additional
Indebtedness and (ii) any refinancing, refunding, renewal or extension of
any Indebtedness specified in subclause (i) above; provided that
the aggregate amount of Indebtedness incurred and remaining outstanding
pursuant to this clause (n) shall not at any time exceed $150,000,000; provided,
however, not more than $75,000,000 in aggregate principal amount of
Indebtedness of the Borrower or any Restricted Subsidiary (other than a
Restricted Foreign Subsidiary) incurred under this clause (n) shall be secured;


 


(o)                                 Indebtedness in
respect of Permitted Additional Notes to the extent that the Net Cash Proceeds
therefrom are, immediately after the receipt thereof, applied to the prepayment
of Term Loans in accordance with Section 5.2; and


 


(p)                                 Indebtedness under the Senior 1998 Notes and
any refinancing, refunding, renewal or extension thereof, provided that
the same does not increase, other than for amounts attributable to premium and
expenses, the principal amount or shorten the maturity thereof (it being
understood that any replacement or refinancing thereof shall in any event be
unsecured), provided, further, that in connection with any such
refinancing, refunding, renewal or extension that shall require any
modifications to the Security Documents, such modifications shall be in form
and substance reasonably satisfactory to the Administrative Agent.


 


(B)                                The
Borrower will not issue any preferred stock or other preferred equity interests
other than Qualified PIK Securities.


 


10.2.                        Limitation
on Liens.  The Borrower will not, and
will not permit any of the Restricted Subsidiaries to, create, incur, assume or
suffer to exist any Lien upon any property or assets of any kind (real or
personal, tangible or intangible) of the Borrower or any Restricted Subsidiary,
whether now owned or hereafter acquired, except:


 


(a)                                  Liens arising under
the Credit Documents;


 


(b)                                 Permitted Liens;


 


(c)                                  Liens securing
Indebtedness permitted pursuant to Section 10.1(A)(f), provided
that such Liens attach at all times only to the assets so financed, and Liens
on the assets of Foreign Subsidiaries securing Indebtedness permitted pursuant
to Section 10.1(A)(n);


 


(d)                                 Liens existing on the
Closing Date and listed on Schedule 10.2 to the Original Credit
Agreement;


 


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(e)                                  the replacement,
extension or renewal of any Lien permitted by clauses (a) through (d) above and
clause (f) of this Section 10.2 upon or in the same assets theretofore
subject to such Lien or the replacement, extension or renewal (without increase
in the amount or change in any direct or contingent obligor except to the
extent otherwise permitted hereunder) of the Indebtedness secured thereby;


 


(f)                                    Liens existing on
the assets of any Person that becomes a Restricted Subsidiary, or existing on
assets acquired, pursuant to a Permitted Acquisition to the extent the Liens on
such assets secure Indebtedness permitted by Section 10.1(A)(j), provided
that such Liens attach at all times only to the same assets that such Liens
attached to, and secure only the same Indebtedness that such Liens secured,
immediately prior to such Permitted Acquisition;


 


(g)                                 (i) Liens placed upon
the capital stock of any Restricted Subsidiary acquired pursuant to a Permitted
Acquisition to secure Indebtedness of the Borrower or any other Restricted
Subsidiary in an aggregate amount at any time outstanding not to exceed the
Guarantee and Collateral Exception Amount incurred pursuant to Section 10.1(A)(k)
in connection with such Permitted Acquisition and (ii) Liens placed upon the
assets of such Restricted Subsidiary to secure a guarantee by such Restricted
Subsidiary of any such Indebtedness of the Borrower or any other Restricted
Subsidiary in an aggregate amount at any time outstanding not to exceed the
Guarantee and Collateral Exception Amount;


 


(h)                                 additional Liens so
long as the aggregate principal amount of the obligations so secured does not
exceed $75,000,000 at any time outstanding; and


 


(i)                                     Liens under the
Senior 1998 Notes, so long as the Senior 1998 Notes are required to be secured
by equal and ratable Liens; provided that such Liens are subject to the
Intercreditor and Collateral Trust Agreement.


 


10.3.                        Limitation
on Fundamental Changes.  Except as
expressly permitted by Section 10.4 or 10.5, the Borrower will not, and
will not permit any of the Restricted Subsidiaries to, enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or substantially all its business units,
assets or other properties, except that:


 


(a)                                  any Subsidiary (other
than a License Subsidiary) of the Borrower or any other Person may be merged or
consolidated with or into the Borrower, provided that (i) the
Borrower shall be the continuing or surviving corporation or the Person formed
by or surviving any such merger or consolidation (if other than the Borrower)
shall be an entity organized or existing under the laws of the United States,
any state thereof, the District of Columbia or any territory thereof (the
Borrower or such Person, as the case may be, being herein referred to as the “Successor
Borrower”), (ii) the Successor Borrower (if other than the Borrower)
shall expressly assume all the obligations of the Borrower under this Agreement
and the other Credit Documents pursuant to a supplement hereto or thereto in
form reasonably satisfactory to the Administrative Agent, (iii) no Default
or Event of Default would result from the consummation of such merger or
consolidation,


 


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(iv) the Successor Borrower shall be in
compliance, on a pro forma basis after giving effect to such merger or
consolidation, with the covenants set forth in Sections 10.9 and 10.10, as
such covenants are recomputed as at the last day of the most recently ended
Test Period under such Section as if such merger or consolidation had
occurred on the first day of such Test Period, (v) each Guarantor, unless
it is the other party to such merger or consolidation, shall have by a
supplement to the Guarantee confirmed that its Guarantee shall apply to the
Successor Borrower’s obligations under this Agreement, (vi) each
Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to
such merger or consolidation, shall have by a supplement to the Security
Agreements or the Pledge Agreements, as applicable, confirmed that its
obligations thereunder shall apply to the Successor Borrower’s obligations
under this Agreement, (vii) each mortgagor of a Mortgaged Property, unless it
is the other party to such merger or consolidation, shall have by an amendment
to or restatement of the applicable Mortgage confirmed that its obligations
thereunder shall apply to the Successor Borrower’s obligations under this
Agreement, and (viii) the Borrower shall have delivered to the Administrative
Agent an officer’s certificate and an opinion of counsel, each stating that
such merger or consolidation and such supplement to this Agreement or any
Security Document comply with this Agreement; provided, further,
that if the foregoing are satisfied, the Successor Borrower (if other than the
Borrower) will succeed to, and be substituted for, the Borrower under this Agreement;


 


(b)                                 any Subsidiary of the
Borrower (other than a License Subsidiary) or any other Person may be merged,
amalgamated or consolidated with or into any one or more Subsidiaries of the
Borrower, provided that (i) in the case of any merger, amalgamation
or consolidation involving one or more Restricted Subsidiaries, (A) a
Restricted Subsidiary shall be the continuing or surviving corporation or
(B) the Borrower shall take all steps necessary to cause the Person formed
by or surviving any such merger, amalgamation or consolidation (if other than a
Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case
of any merger, amalgamation or consolidation involving one or more Guarantors,
a Guarantor shall be the continuing or surviving corporation or the Person
formed by or surviving any such merger, amalgamation or consolidation (if other
than a Guarantor) shall execute a supplement to the Guarantee Agreement, the
Pledge Agreements and the Security Agreements and any applicable Mortgage in form
and substance reasonably satisfactory to the Administrative Agent or Collateral
Trustee, as applicable, in order to become a Guarantor and pledgor, mortgagor
and grantor of Collateral for the benefit of the Secured Parties, (iii) no
Default or Event of Default would result from the consummation of such merger,
amalgamation or consolidation, (iv) the Borrower shall be in compliance,
on a pro forma basis after giving effect to such merger, amalgamation or
consolidation, with the covenants set forth in Sections 10.9 and 10.10, as
such covenants are recomputed as at the last day of the most recently ended
Test Period under such Section as if such merger or consolidation had
occurred on the first day of such Test Period, and (v) the Borrower shall
have delivered to the Administrative Agent an officers’ certificate stating
that such merger, amalgamation or consolidation and such supplements to any
Security Document comply with this Agreement;


 


96





















 


(c)                                  any Restricted
Subsidiary (other than a License Subsidiary) that is not a Guarantor may sell,
lease, transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to the Borrower, a Guarantor or any other
Restricted Subsidiary of the Borrower;


 


(d)                                 any Guarantor may
sell, lease, transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or any other Guarantor;


 


(e)                                  any Restricted
Subsidiary (other than a License Subsidiary) may liquidate or dissolve if (x)
the Borrower determines in good faith that such liquidation or dissolution is
in the best interests of the Borrower and is not materially disadvantageous to
the Lenders and (y) to the extent such
Restricted Subsidiary is a Credit Party, any assets or business not otherwise
disposed of or transferred in accordance with Section 10.4 or 10.5, or, in
the case of any such business, discontinued, shall be transferred to, or
otherwise owned or conducted by, another Credit Party after giving effect to
such liquidation or dissolution; and


 


(f)                                    any License Subsidiary may (i) be merged
or consolidated with any other License Subsidiary, (ii) sell, lease,
transfer or otherwise dispose of any or all of its property (upon voluntary
liquidation or otherwise) only to another License Subsidiary, (iii) sell,
transfer or otherwise dispose of capital stock or other ownership interest of
such License Subsidiary only to a Credit Party.


 


10.4.                        Limitation
on Sale of Assets.  The Borrower will
not, and will not permit any of the Restricted Subsidiaries to,
(i) convey, sell, lease, assign, transfer or otherwise dispose of any of
its property, business or assets (including receivables and leasehold
interests), whether now owned or hereafter acquired (other than any such sale,
transfer, assignment or other disposition resulting from any casualty or condemnation,
of any assets of the Borrower or the Restricted Subsidiaries) or (ii) sell
to any Person (other than the Borrower or a Guarantor) any shares owned by it
of any Restricted Subsidiary’s capital stock, except that:


 


(a)                                  the Borrower and the
Restricted Subsidiaries may sell, transfer or otherwise dispose of used or
surplus equipment, vehicles, inventory and other assets in the ordinary course
of business;


 


(b)                                 the Borrower and the
Restricted Subsidiaries may sell, transfer or otherwise dispose of other assets
(other than accounts receivable) for fair value, provided that
(i) the total non-cash consideration received since the Closing Date in
respect of sales, transfers and dispositions for which less than 50% of such
consideration consisted of cash shall not exceed $250,000,000 (it being agreed
that, with respect to any one or more sale, transfer or disposition in which
such $250,000,000 limitation is exceeded, at least 50% of the portion of the
consideration in excess of the then available portion of such $250,000,000
shall consist of cash), (ii) any non-cash proceeds received are pledged to
the Administrative Agent to the extent required under Section 9.12,
(iii) with respect to any such sale, transfer or disposition (or series of
related sales, transfers or dispositions), the Borrower shall be in compliance,
on a pro forma basis after giving effect to such sale,


 


97





















 


transfer or disposition, with the covenants
set forth in Sections 10.9 and 10.10, as such covenants are recomputed as
at the last day of the most recently ended Test Period under such Sections as
if such sale, transfer or disposition had occurred on the first day of such
Test Period, (iv) to the extent applicable, the Net Cash Proceeds thereof
to the Borrower and its Restricted Subsidiaries are promptly applied to the
prepayment and/or commitment reductions as provided for in Section 5.2 and
(v) after giving effect to any such sale, transfer or disposition, no
Default or Event of Default shall have occurred and be continuing;


 


(c)                                  the Borrower and the
Restricted Subsidiaries may make sales of assets to the Borrower or to any
Restricted Subsidiary, provided that with respect to any such sales to
Restricted Subsidiaries that are not Guarantors (i) such sale, transfer or
disposition shall be for fair value, (ii) the total non-cash consideration
received since the Closing Date in respect of such sales, transfers and
dispositions for which less than 50% of such consideration consisted of cash
shall not exceed $250,000,000 (it being agreed that, with respect to any one or
more sale, transfer or disposition in which such $250,000,000 limitation is
exceeded, at least 50% of the portion of the consideration in excess of the
then available portion of such $250,000,000 shall consist of cash) and
(iii) any non-cash proceeds received are pledged to the Administrative
Agent to the extent required under Section 9.12;


 


(d)                                 any Restricted
Subsidiary may effect any transaction permitted by Section 10.3;


 


(e)                                  in addition to
selling or transferring accounts receivable pursuant to the other provisions
hereof, the Borrower and the Restricted Subsidiaries may (i) sell or discount
without recourse accounts receivable arising in the ordinary course of business
in connection with the compromise or collection thereof and (ii) sell or
transfer accounts receivable and related rights pursuant to customary
receivables financing facilities so long as, in the case of clauses (i) and
(ii), the Net Cash Proceeds thereof to the Borrower and its Restricted
Subsidiaries (except in the case of transactions permitted by Section 10.4(e)(i)
to the extent the Net Cash Proceeds of any such transaction do not exceed
$10,000) are promptly applied to the prepayment and/or commitment reductions as
provided for in Section 5.2;


 


(f)                                    the Borrower and
its Restricted Subsidiaries may lease, or sub-lease, any real property or
personal property in the ordinary course of business; and


 


(g)                                 the Borrower and its
Restricted Subsidiaries may sell or transfer Globo Receivables pursuant to the
Purchase Agreement dated as of August 20, 2004 between DirecTV and the
Borrower.


 


10.5.                        Limitation
on Investments.  The Borrower will
not, and will not permit any of the Restricted Subsidiaries to, make any
advance, loan, extensions of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets of, or
make any other Investment in, any Person, except:


 


98





















 


(a)                                  extensions of trade
credit and asset purchases in the ordinary course of business;


 


(b)                                 Permitted Investments;


 


(c)                                  loans and advances to
officers, directors and employees of the Borrower or any of its Subsidiaries in
an aggregate principal amount at any time outstanding under this
clause (c) not exceeding $25,000,000;


 


(d)                                 Investments existing
on the Closing Date and listed on Schedule 10.5 to the Original
Credit Agreement and any extensions, renewals or reinvestments thereof, so long
as the aggregate amount of all Investments pursuant to this clause (d) is
not increased at any time above the amount of such Investments existing on the
Closing Date;


 


(e)                                  Investments received
in connection with the bankruptcy or reorganization of suppliers or customers
and in settlement of delinquent obligations of, and other disputes with,
customers arising in the ordinary course of business;


 


(f)                                    Investments to the
extent that payment for such Investments is made solely with capital stock of
the Borrower;


 


(g)                                 Investments in
(i) any Guarantor or the Borrower and (ii) in Restricted Subsidiaries
that are not Guarantors, in the case of this clause (g)(ii), in an aggregate
amount not to exceed $30,000,000 plus the Applicable Amount at any one time outstanding;


 


(h)                                 Investments
constituting Permitted Acquisitions;


 


(i)                                     (i) Investments
(including Investments in Minority Investments and Unrestricted Subsidiaries)
and (ii) Investments in joint ventures or similar entities that do not
constitute Restricted Subsidiaries, in each case, as valued at the fair market
value of such Investment at the time each such Investment is made, (A) in
an amount that, at the time such Investment is made, would not exceed the sum
of (x) the Applicable Amount at such time plus (y) an amount
equal to any repayments, interest, returns, profits, distributions, income and
similar amounts actually received in cash in respect of any such Investment
(which amount shall not exceed the amount of such Investment valued at the fair
market value of such Investment at the time such Investment was made) and/or
(B) in the case of clause (ii) only, in any amount that, at the time such
Investment is made, would be permitted to be expended as a Capital Expenditure
under Section 10.11, to the extent that (x) such joint venture owns
an interest in assets the addition of which would have been a Capital
Expenditure if acquired or constructed, and owned, directly by the Borrower or
a Restricted Subsidiary, and (y) the ability of the Borrower and/or one or
more Restricted Subsidiaries to receive cash flows attributable to its interest
therein substantially as they would if they directly owned such asset or
portion thereof is not prohibited by contract, applicable law or otherwise,


 


99





















 


(j)                                     Investments
constituting non-cash proceeds of sales, transfers and other dispositions of
assets to the extent permitted by Section 10.4(b) or (c);


 


(k)                                  Investments made to
repurchase or retire common stock of the Borrower owned by any employee stock
ownership plan or key employee stock ownership plan of the Borrower;


 


(l)                                     Investments
permitted under Section 10.6; and


 


(m)                               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.


 


10.6.                        Limitation
on Dividends.  The Borrower will not
declare or pay any dividends (other than dividends payable solely in its
capital stock) or return any capital to its stockholders or make any other
distribution, payment or delivery of property or cash to its stockholders as
such, or redeem, retire, purchase or otherwise acquire, directly or indirectly,
for consideration, any shares of any class of its capital stock or the capital
stock of any direct or indirect parent now or hereafter outstanding (or any
options or warrants or stock appreciation rights issued with respect to any of
its capital stock), or set aside any funds for any of the foregoing purposes,
or permit any of the Restricted Subsidiaries to purchase or otherwise acquire
for consideration (other than in connection with an Investment permitted by Section 10.5)
any shares of any class of the capital stock of the Borrower, now or hereafter
outstanding (or any options or warrants or stock appreciation rights issued
with respect to any of its capital stock) (all of the foregoing “dividends”),
provided that, so long as no Default or Event of Default exists or would
exist after giving effect thereto, (a) the Borrower may redeem in whole or in
part any of its capital stock for another class of capital stock or rights to
acquire its capital stock or with proceeds from substantially concurrent equity
contributions or issuances of new shares of its capital stock, provided
that such other class of capital stock contains terms and provisions at least
as advantageous to the Lenders in all respects material to their interests as
those contained in the capital stock redeemed thereby, (b) the Borrower
may repurchase shares of its capital stock (or any options or warrants or stock
appreciation rights issued with respect to any of its capital stock) held by
officers, directors and employees of the Borrower and its Subsidiaries, so long
as such repurchase is pursuant to, and in accordance with the terms of,
management and/or employee stock plans, stock subscription agreements or
shareholder agreements, (c) the Borrower may declare and pay dividends on
its capital stock, provided that the amount of any such dividends
pursuant to this clause (c) shall either (i) not exceed an amount
equal to the Applicable Amount at such time or (ii) then be permitted to
be paid as a dividend pursuant to Section 1010(a)(C) of the Senior Note
Indenture as in effect on the Closing Date and whether or not the Senior Note
Indenture is then in effect and (d) the Borrower may declare and pay dividends
and/or make distributions to its parent solely to pay administrative and
similar expenses related to ownership of the Borrower, provided that the
amount of such dividends does not exceed in any fiscal year the amount of such
expenses payable for such fiscal year (it being understood that such expenses
shall in no event exceed $1,000,000 in the aggregate per fiscal year).


 


10.7.                        Limitations
on Debt Payments and Amendments. 
(a) The Borrower will not, and will not permit any Restricted
Subsidiary to, prepay, repurchase or redeem or otherwise


 


100





















 


defease any Subordinated Indebtedness; provided, however,
that so long as no Default or Event of Default has occurred and is continuing,
the Borrower or any Restricted Subsidiary may prepay, repurchase or redeem
Subordinated Indebtedness (x) for an aggregate price not in excess of the
Applicable Amount at the time of such prepayment, repurchase or redemption, or
(y) with the proceeds of Subordinated Indebtedness that (1) is
permitted by Section 10.1 (other than Section 10.1(A)(o)) and
(2) has terms material to the interests of the Lenders not materially less
advantageous to the Lenders than those of such Subordinated Indebtedness being
refinanced.


 


(b)                                 The
Borrower will not waive, amend, modify, terminate or release any Subordinated
Indebtedness to the extent that any such waiver, amendment, modification,
termination or release would be adverse to the Lenders in any material respect.


 


10.8.                        Limitations
on Sale Leasebacks.  The Borrower
will not, and will not permit any of the Restricted Subsidiaries to, enter into
or effect any Sale Leasebacks, other than Permitted Sale Leasebacks.


 


10.9.                        Consolidated
Total Debt to Consolidated EBITDA Ratio. 
The Borrower will not permit the Consolidated Total Debt to Consolidated
EBITDA Ratio for any Test Period ending during any period set forth below to be
greater than the ratio set forth below opposite such period:


 


	
  Period

  	
   

  	
  Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  October 1, 2004 to December 31,
  2004

  	
   

  	
  6.75 to 1.00

  	
   

  
	
  January 1, 2005 to March 31, 2005

  	
   

  	
  5.75 to 1.00

  	
   

  
	
  April 1, 2005 to June 30, 2005

  	
   

  	
  5.75 to 1.00

  	
   

  
	
  July 1, 2005 to September 30,
  2005

  	
   

  	
  5.75 to 1.00

  	
   

  
	
  October 1, 2005 to December 31,
  2005

  	
   

  	
  5.75 to 1.00

  	
   

  
	
  January 1, 2006 to March 31, 2006

  	
   

  	
  5.75 to 1.00

  	
   

  
	
  April 1, 2006 to June 30, 2006

  	
   

  	
  5.75 to 1.00

  	
   

  
	
  July 1, 2006 to September 30,
  2006

  	
   

  	
  5.75 to 1.00

  	
   

  
	
  October 1, 2006 to December 31,
  2006

  	
   

  	
  5.50 to 1.00

  	
   

  
	
  January 1, 2007 to March 31, 2007

  	
   

  	
  5.50 to 1.00

  	
   

  
	
  April 1, 2007 to June 30, 2007

  	
   

  	
  5.50 to 1.00

  	
   

  
	
  July 1, 2007 to September 30,
  2007

  	
   

  	
  5.50 to 1.00

  	
   

  
	
  October 1, 2007 to December 31,
  2007

  	
   

  	
  5.25 to 1.00

  	
   

  
	
  January 1, 2008 to March 31, 2008

  	
   

  	
  5.25 to 1.00

  	
   

  
	
  April 1, 2008 to June 30, 2008

  	
   

  	
  5.25 to 1.00

  	
   

  
	
  July 1, 2008 to September 30,
  2008

  	
   

  	
  5.25 to 1.00

  	
   

  
	
  October 1, 2008 to December 31,
  2008

  	
   

  	
  5.25 to 1.00

  	
   

  
	
  January 1, 2009 to March 31, 2009

  	
   

  	
  5.25 to 1.00

  	
   

  
	
  April 1, 2009 to June 30, 2009

  	
   

  	
  5.25 to 1.00

  	
   

  
	
  July 1, 2009 to September 30,
  2009

  	
   

  	
  5.25 to 1.00

  	
   

  
	
  October 1, 2009 to December 31,
  2009

  	
   

  	
  5.00 to 1.00

  	
   

  



 


101





















 


	
  Period

  	
   

  	
  Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  January 1, 2010 to March 31, 2010

  	
   

  	
  5.00 to 1.00

  	
   

  
	
  April 1, 2010 to June 30, 2010

  	
   

  	
  5.00 to 1.00

  	
   

  
	
  July 1, 2010 to September 30,
  2010

  	
   

  	
  5.00 to 1.00

  	
   

  
	
  October 1, 2010 to December 31,
  2010

  	
   

  	
  4.75 to 1.00

  	
   

  
	
  January 1, 2011 to March 31, 2011

  	
   

  	
  4.75 to 1.00

  	
   

  
	
  April 1, 2011 to June 30, 2011

  	
   

  	
  4.75 to 1.00

  	
   

  
	
  July 1, 2011 and thereafter

  	
   

  	
  4.75 to 1.00

  	
   

  



 


10.10.                  Consolidated
EBITDA to Consolidated Interest Expense Ratio.  The Borrower will not permit the Consolidated
EBITDA to Consolidated Interest Expense Ratio for any Test Period ending during
any period set forth below to be less than the ratio set forth below opposite
such period:


 


	
  Period

  	
   

  	
  Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  October 1, 2004 to December 31,
  2004

  	
   

  	
  2.00 to 1.00

  	
   

  
	
  January 1, 2005 to March 31, 2005

  	
   

  	
  2.00 to 1.00

  	
   

  
	
  April 1, 2005 to June 30, 2005

  	
   

  	
  2.00 to 1.00

  	
   

  
	
  July 1, 2005 to September 30,
  2005

  	
   

  	
  2.00 to 1.00

  	
   

  
	
  October 1, 2005 to December 31,
  2005

  	
   

  	
  2.00 to 1.00

  	
   

  
	
  January 1, 2006 to March 31, 2006

  	
   

  	
  2.00 to 1.00

  	
   

  
	
  April 1, 2006 to June 30, 2006

  	
   

  	
  2.00 to 1.00

  	
   

  
	
  July 1, 2006 to September 30,
  2006

  	
   

  	
  2.00 to 1.00

  	
   

  
	
  October 1, 2006 to December 31,
  2006

  	
   

  	
  2.00 to 1.00

  	
   

  
	
  January 1, 2007 to March 31, 2007

  	
   

  	
  2.00 to 1.00

  	
   

  
	
  April 1, 2007 to June 30, 2007

  	
   

  	
  2.00 to 1.00

  	
   

  
	
  July 1, 2007 to September 30,
  2007

  	
   

  	
  2.00 to 1.00

  	
   

  
	
  October 1, 2007 to December 31,
  2007

  	
   

  	
  2.00 to 1.00

  	
   

  
	
  January 1, 2008 to March 31, 2008

  	
   

  	
  2.10 to 1.00

  	
   

  
	
  April 1, 2008 to June 30, 2008

  	
   

  	
  2.10 to 1.00

  	
   

  
	
  July 1, 2008 to September 30,
  2008

  	
   

  	
  2.10 to 1.00

  	
   

  
	
  October 1, 2008 to December 31,
  2008

  	
   

  	
  2.10 to 1.00

  	
   

  
	
  January 1, 2009 to March 31, 2009

  	
   

  	
  2.10 to 1.00

  	
   

  
	
  April 1, 2009 to June 30, 2009

  	
   

  	
  2.10 to 1.00

  	
   

  
	
  July 1, 2009 to September 30,
  2009

  	
   

  	
  2.10 to 1.00

  	
   

  
	
  October 1, 2009 to December 31,
  2009

  	
   

  	
  2.10 to 1.00

  	
   

  
	
  January 1, 2010 and thereafter

  	
   

  	
  2.20 to 1.00

  	
   

  



 


10.11.                  Capital
Expenditures.  The Borrower will not,
and will not permit any of the Restricted Subsidiaries to, make any Capital
Expenditures (other than Permitted Acquisitions that constitute Capital
Expenditures), that would cause the aggregate amount of such Capital
Expenditures made by the Borrower and the Restricted Subsidiaries in any fiscal
year of the Borrower (including the whole fiscal year of 2004) set forth below
to exceed the amount set forth in the table below opposite such fiscal year
(such amount, together with the carry-forward amount


 


102





















 


(as defined below) for such fiscal year and subject to the last
paragraph of this Section 10.11, the “Permitted Capital Expenditure
Amount”):


 


	
  Period

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  January 1, 2004 to December 31,
  2004

  	
   

  	
  $

  	
  400,000,000

  	
   

  
	
  January 1, 2005 to December 31,
  2005

  	
   

  	
  $

  	
  300,000,000

  	
   

  
	
  January 1, 2006 to December 31,
  2006

  	
   

  	
  $

  	
  300,000,000

  	
   

  
	
  January 1, 2007 to December 31,
  2007

  	
   

  	
  $

  	
  300,000,000

  	
   

  
	
  January 1, 2008 to December 31,
  2008

  	
   

  	
  $

  	
  300,000,000

  	
   

  
	
  January 1, 2009 to December 31,
  2009

  	
   

  	
  $

  	
  300,000,000

  	
   

  
	
  January 1, 2010 to December 31,
  2010

  	
   

  	
  $

  	
  300,000,000

  	
   

  
	
  January 1, 2011 to December 31,
  2011

  	
   

  	
  $

  	
  300,000,000

  	
   

  



 


To the extent
that Capital Expenditures (other than Permitted Acquisitions that constitute
Capital Expenditures) made by the Borrower and the Restricted Subsidiaries
during any fiscal year are less than the Permitted Capital Expenditure Amount
for such fiscal year, 100% of such unused amount (each such amount, a “carry-forward
amount”) may be carried forward to the immediately succeeding fiscal year
and utilized to make such Capital Expenditures in such immediately succeeding
fiscal year; provided that no carry-forward amount may be carried
forward beyond the first two fiscal years immediately succeeding the fiscal
year in which it arose.


 


Notwithstanding
the foregoing, the Permitted Capital Expenditure Amount for any fiscal year
shall be reduced at the time of and in the amount of any Investment made
pursuant to clause (B) of Section 10.5(i) during such fiscal year.


 


SECTION 11.                          Events of Default


 


Upon the
occurrence of any of the following specified events (each an “Event of
Default”):


 


11.1.                        Payments.  The Borrower shall (a) default in the payment
when due of any principal of the Loans or (b) default, and such default shall
continue for five or more days, in the payment when due of any interest or
stamping fees on the Loans or any Fees or any Unpaid Drawings or of any other
amounts owing hereunder or under any other Credit Document; or


 


11.2.                        Representations,
etc.  Any representation, warranty or
statement made or deemed made by any Credit Party herein or in any Security
Document or any certificate delivered or required to be delivered pursuant
hereto or thereto shall prove to be untrue in any material respect on the date
as of which made or deemed made; or


 


11.3.                        Covenants.  Any Credit Party shall:


 


 (a)                               default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 9.1(e) or Section 10; or


 


103





















 


(b)                                 default
in the due performance or observance by it of any term, covenant or agreement
(other than those referred to in Section 11.1 or 11.2 or clause
(a) of this Section 11.3) contained in this Agreement, any Security
Document or the Fee Letter dated May 7, 2004 between the Borrower and the
Agents and such default shall continue unremedied for a period of at least 30
days after receipt of written notice by the Borrower from the Administrative
Agent or the Required Lenders; or


 


11.4.                        Default
Under Other Agreements.  (a) The
Borrower or any of the Restricted Subsidiaries shall (i) default in any payment
with respect to any Indebtedness (other than the Obligations) in excess of
$50,000,000 in the aggregate, for the Borrower and such Restricted
Subsidiaries, beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created or (ii) default in the
observance or performance of any agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing
or relating thereto, or any other event shall occur or condition exist (other
than, with respect to Indebtedness consisting of any Hedge Agreements,
termination events or equivalent events pursuant to the terms of such Hedge Agreements),
the effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause, any such Indebtedness to become due
prior to its stated maturity; or (b) without limiting the provisions of
clause (a) above, any such Indebtedness shall be declared to be due and
payable, or required to be prepaid other than by a regularly scheduled required
prepayment or as a mandatory prepayment (and, with respect to Indebtedness
consisting of any Hedge Agreements, other than due to a termination event or
equivalent event pursuant to the terms of such Hedge Agreements), prior to the
stated maturity thereof; or


 


11.5.                        Bankruptcy,
etc.  The Borrower or any Specified
Subsidiary shall commence a voluntary case, proceeding or action concerning
itself under (a) Title 11 of the United States Code entitled “Bankruptcy,”
or (b) in the case of any Foreign Subsidiary that is a Specified
Subsidiary, any domestic or foreign law relating to bankruptcy, insolvency
reorganization or relief of debtors legislation of its jurisdiction of
incorporation, in each case as now or hereafter in effect, or any successor
thereto (collectively, the “Bankruptcy Code”); or an involuntary case,
proceeding or action is commenced against the Borrower or any Specified
Subsidiary and the petition is not controverted within 10 days after
commencement of the case, proceeding or action; or an involuntary case,
proceeding or action is commenced against the Borrower or any Specified
Subsidiary and the petition is not dismissed within 60 days after commencement
of the case, proceeding or action; or a custodian (as defined in the Bankruptcy
Code) receiver, receiver manager, trustee or similar person is appointed for,
or takes charge of, all or substantially all of the property of the Borrower or
any Specified Subsidiary; or the Borrower or any Specified Subsidiary commences
any other proceeding or action under any reorganization, arrangement, adjustment
of debt, relief of debtors, dissolution, insolvency or liquidation or similar
law of any jurisdiction whether now or hereafter in effect relating to the
Borrower or any Specified Subsidiary; or there is commenced against the
Borrower or any Specified Subsidiary any such proceeding or action that remains
undismissed for a period of 60 days; or the Borrower or any Specified
Subsidiary is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding or action is entered; or the
Borrower or any Specified Subsidiary suffers any appointment of any custodian receiver,
receiver manager, trustee or the like for it or


 


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any substantial part of its property to continue undischarged or
unstayed for a period of 60 days; or the Borrower or any Specified Subsidiary
makes a general assignment for the benefit of creditors; or any corporate
action is taken by the Borrower or any Specified Subsidiary for the purpose of
effecting any of the foregoing; or


 


11.6.                        ERISA.  (a) Any Plan shall fail to satisfy the
minimum funding standard required for any plan year or part thereof or a waiver
of such standard or extension of any amortization period is sought or granted
under Section 412 of the Code; any Plan is or shall have been terminated
or is the subject of termination proceedings under ERISA (including the giving
of written notice thereof); an event shall have occurred or a condition shall
exist in either case entitling the PBGC to terminate any Plan or to appoint a
trustee to administer any Plan (including the giving of written notice
thereof); any Plan shall have an accumulated funding deficiency (whether or not
waived); the Borrower or any Subsidiary or any ERISA Affiliate has incurred or
is likely to incur a liability to or on account of a Plan under Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971
or 4975 of the Code (including the giving of written notice thereof); (b) there
could result from any event or events set forth in clause (a) of this Section 11.6
the imposition of a lien, the granting of a security interest, or a liability,
or the reasonable likelihood of incurring a lien, security interest or
liability; and (c) such lien, security interest or liability will or would be
reasonably likely to have a Material Adverse Effect; or


 


11.7.                        Guarantee.  The Guarantees or any material provision
thereof shall cease to be in full force or effect or any Guarantor thereunder
or any Credit Party shall deny or disaffirm in writing any Guarantor’s
obligations under the Guarantee; or


 


11.8.                        Pledge
Agreements.  The Pledge Agreements or
any material provision thereof shall cease to be in full force or effect (other
than pursuant to the terms hereof or thereof or as a result of acts or
omissions of the Administrative Agent or the Collateral Trustee, as applicable,
or any Lender) or any pledgor thereunder or any Credit Party shall deny or
disaffirm in writing any pledgor’s obligations under the Pledge Agreements; or


 


11.9.                        Security
Agreements.  The Security Agreements
or any material provision thereof shall cease to be in full force or effect
(other than pursuant to the terms hereof or thereof or as a result of acts or
omissions of the Administrative Agent or Collateral Trustee, as applicable, or
any Lender) or any grantor thereunder or any Credit Party shall deny or
disaffirm in writing any grantor’s obligations under the Security Agreements;
or


 


11.10.                  Mortgages.  Any Mortgage or any material provision of any
Mortgage relating to any material portion of the Collateral shall cease to be
in full force or effect (other than pursuant to the terms hereof or thereof or
as a result of acts or omissions of the Collateral Trustee or any Lender) or
any mortgagor thereunder or any Credit Party shall deny or disaffirm in writing
any mortgagor’s obligations under any Mortgage; or


 


11.11.                  Judgments.  One or more judgments or decrees shall be
entered against the Borrower or any of the Restricted Subsidiaries involving a
liability of $50,000,000 or more in the aggregate for all such judgments and
decrees for the Borrower and the Restricted Subsidiaries (to the extent not
paid or fully covered by insurance provided by a carrier not disputing
coverage)


 


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and any such judgments or decrees shall not have been satisfied,
vacated, discharged or stayed or bonded pending appeal within 60 days from the
entry thereof; or


 


11.12.                  Change
of Control.  A Change of Control
shall occur;


 


then, and in any such event, and at any time
thereafter, if any Event of Default shall then be continuing, the
Administrative Agent shall, upon the written request of the Required Lenders,
by written notice to the Borrower, take any or all of the following actions,
without prejudice to the rights of the Administrative Agent or any Lender to
enforce its claims against the Borrower, except as otherwise specifically
provided for in this Agreement (provided that, if an Event of Default specified
in Section 11.5 shall occur with respect to the Borrower or any Specified
Subsidiary, the result that would occur upon the giving of written notice by
the Administrative Agent as specified in clauses (i), (ii) and (iv) below shall
occur automatically without the giving of any such notice):  (i) declare the Total Revolving Credit
Commitment terminated, whereupon the Commitments and Swingline Commitment, if
any, of each Lender or the Swingline Lender, as the case may be, shall
forthwith terminate immediately and any Fees theretofore accrued shall
forthwith become due and payable without any other notice of any kind;
(ii) declare the principal of and any accrued interest and fees in respect
of all Loans and all Obligations owing hereunder and thereunder to be, whereupon
the same shall become, forthwith due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower; (iii) terminate any Letter of Credit that may be terminated in
accordance with its terms; and/or (iv) direct the Borrower to pay (and the
Borrower agrees that upon receipt of such notice, or upon the occurrence of an
Event of Default specified in Section 11.5 with respect to the Borrower or
any Specified Subsidiary, it will pay) to the Administrative Agent at the
Administrative Agent’s Office such additional amounts of cash, to be held as
security for the Borrower’s respective reimbursement obligations for Drawings
that may subsequently occur thereunder, equal to the aggregate Stated Amount of
all Letters of Credit issued and then outstanding.


 


SECTION 12.                          The
Administrative Agent


 


12.1.                        Appointment.  Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Credit Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Credit
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and the
other Credit Documents, together with such other powers as are reasonably
incidental thereto.  Notwithstanding any
provision to the contrary elsewhere in this Agreement, the Administrative Agent
shall not 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 this Agreement or any other Credit Document or otherwise
exist against the Administrative Agent. 
Neither the Syndication Agent nor the Documentation Agents, in their
respective capacities as such, shall have any obligations, duties or
responsibilities under this Agreement but shall be entitled to all benefits of
this Section 12.


 


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12.2.                        Delegation
of Duties.  The Administrative Agent
may execute any of its duties under this Agreement and the other Credit
Documents by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties.  The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.


 


12.3.                        Exculpatory
Provisions.  Neither the
Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (a) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement or any other Credit Document (except for its or such Person’s
own gross negligence or willful misconduct) or (b) responsible in any manner to
any of the Lenders for any recitals, statements, representations or warranties
made by the Borrower, any Guarantor, any other Credit Party or any officer
thereof contained in this Agreement or any other Credit Document or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Credit Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Credit Document or for any failure of the Borrower, any Guarantor or
any other Credit Party to perform its obligations hereunder or thereunder.  The Administrative Agent shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Credit Document, or to inspect the properties, books or
records of the Borrower.


 


12.4.                        Reliance
by Administrative Agent.  The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including counsel to the Borrower), independent accountants and
other experts selected by the Administrative Agent.  The Administrative Agent may deem and treat
the Lender specified in the Register with respect to any amount owing hereunder
as the owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Administrative
Agent.  The Administrative Agent shall be
fully justified in failing or refusing to take any action under this Agreement
or any other Credit Document unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense that may be incurred by it by reason of taking or continuing to
take any such action.  The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Credit Documents in accordance with
a request of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.


 


12.5.                        Notice
of Default.  The Administrative Agent
shall not be deemed to have knowledge or notice of the occurrence of any
Default or Event of Default hereunder unless the Administrative Agent has
received notice from a Lender or the Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a “notice
of default”.  In the event that the Administrative
Agent receives such a notice, the Administrative


 


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Agent shall give notice thereof to the Lenders.  The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders, provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders (except to the extent
that this Agreement requires that such action be taken only with the approval
of the Required Lenders or each of the Lenders, as applicable).


 


12.6.                        Non-Reliance
on Administrative Agent and Other Lenders. 
Each Lender expressly acknowledges that neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to it and that no act by
the Administrative Agent hereinafter taken, including any review of the affairs
of the Borrower, any Guarantor or any other Credit Party, shall be deemed to
constitute any representation or warranty by the Administrative Agent to any
Lender.  Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower, any Guarantor and any other
Credit Party and made its own decision to make its Loans hereunder and enter
into this Agreement.  Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Credit Documents, and to make such investigation
as it deems necessary to inform itself as to the business, operations,
property, financial and other condition and creditworthiness of the Borrower,
any Guarantor and any other Credit Party. 
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, assets,
operations, properties, financial condition, prospects or creditworthiness of
the Borrower, any Guarantor or any other Credit Party that may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.


 


12.7.                        Indemnification.  The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective portions of the Total Credit Exposure in
effect on the date on which indemnification is sought (or, if indemnification
is sought after the date upon which the Commitments shall have terminated and
the Loans shall have been paid in full, ratably in accordance with their
respective portions of the Total Credit Exposure in effect immediately prior to
such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever that may at any time (including at any time following
the payment of the Loans) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of, the Commitments,
this Agreement, any of the other Credit Documents or any documents contemplated
by or referred to herein or therein or the transactions


 


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contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing, provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Administrative Agent’s
gross negligence or willful misconduct. 
The agreements in this Section 12.7 shall survive the payment of
the Loans and all other amounts payable hereunder.


 


12.8.                        Administrative
Agent in its Individual Capacity.  The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower, any Guarantor,
and any other Credit Party as though the Administrative Agent were not the Administrative
Agent hereunder and under the other Credit Documents.  With respect to the Loans made by it, the
Administrative Agent shall have the same rights and powers under this Agreement
and the other Credit Documents as any Lender and may exercise the same as
though it were not the Administrative Agent, and the terms “Lender” and “Lenders”
shall include the Administrative Agent in its individual capacity.


 


12.9.                        Successor
Agent.  The Administrative Agent may
resign as Administrative Agent upon 20 days’ prior written notice to the
Lenders and the Borrower.  If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Credit Documents, then the Required Lenders shall appoint from
among the Lenders a successor agent for the Lenders, which successor agent
shall be approved by the Borrower (which approval shall not be unreasonably withheld)
so long as no Default or Event of Default is continuing, whereupon such
successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term “Administrative Agent” shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent’s rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any holders
of the Loans.  After any retiring
Administrative Agent’s resignation as Administrative Agent, the provisions of
this Section 12 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this Agreement
and the other Credit Documents.


 


12.10.                  Withholding
Tax.  To the extent required by any
applicable law, the Administrative Agent may withhold from any interest payment
to any Lender an amount equivalent to any applicable withholding tax.  If the Internal Revenue Service or any
authority of the United States or other jurisdiction asserts a claim that the
Administrative Agent did not properly withhold tax from amounts paid to or for
the account of any Lender (because the appropriate form was not delivered, was
not properly executed, or because such Lender failed to notify the
Administrative Agent of a change in circumstances which rendered the exemption
from, or reduction of, withholding tax ineffective, or for any other reason),
such Lender shall indemnify the Administrative Agent (to the extent that the
Administrative Agent has not already been reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so) fully for all amounts
paid, directly or indirectly, by the Administrative Agent as tax or otherwise,
including penalties and interest, together with all expenses incurred,
including legal expenses, allocated staff costs and any out of pocket expenses.


 


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SECTION 13.                          Miscellaneous


 


13.1.                        Amendments
and Waivers.  Neither this Agreement
nor any other Credit Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this Section 13.1.  The Required Lenders may, or, with the
written consent of the Required Lenders, the Administrative Agent may, from
time to time, (a) enter into with the relevant Credit Party or Credit
Parties written amendments, supplements or modifications hereto and to the
other Credit Documents for the purpose of adding any provisions to this
Agreement or the other Credit Documents or changing in any manner the rights of
the Lenders or of the Credit Parties hereunder or thereunder or (b) waive, on
such terms and conditions as the Required Lenders or the Administrative Agent,
as the case may be, may specify in such instrument, any of the requirements of
this Agreement or the other Credit Documents or any Default or Event of Default
and its consequences; provided, however, that no such waiver and
no such amendment, supplement or modification shall directly (i) forgive or
reduce any portion of any Loan or extend the final scheduled maturity date of
any Loan or reduce the stated rate, or forgive any portion, or extend the date
for the payment, of any interest or fee payable hereunder (other than as a
result of waiving the applicability of any post-default increase in interest
rates), or extend the final expiration date of any Lender’s Commitment or
extend the final expiration date of any Letter of Credit beyond the L/C
Maturity Date, or increase the aggregate amount of the Commitments of any
Lender, or amend or modify any provisions of Section 5.3(a) (with respect
to the ratable allocation of any payments only) and 13.8(a), in each case
without the written consent of each Lender directly and adversely affected
thereby, or (ii) amend, modify or waive any provision of this Section 13.1
or reduce the percentages specified in the definitions of the terms “Required
Lenders”, “Required Tranche A Term
Loan Lenders”, “Required Tranche B-1 Term Loan Lenders” or consent to the
assignment or transfer by the Borrower of its rights and obligations under any
Credit Document to which it is a party (except as permitted pursuant to Section 10.3),
in each case without the written consent of each Lender directly and adversely
affected thereby, or (iii) amend, modify or waive any provision of Section 12
without the written consent of the then-current Administrative Agent, or (iv)
amend, modify or waive any provision of Section 3 without the written
consent of the Letter of Credit Issuer, or (v) amend, modify or waive any
provisions hereof relating to Swingline Loans without the written consent of
the Swingline Lender, or (vi) change any Revolving Credit Commitment to a Term
Loan Commitment, or change any Term Loan Commitment to a Revolving Credit
Commitment, in each case without the prior written consent of each Lender
directly and adversely affected thereby, or (vii) release all or
substantially all of the Guarantors under the Guarantee (except as expressly
permitted by the Guarantee) or release all or substantially all of the Collateral
under the Pledge Agreements, the Security Agreements and the Mortgages, in each
case without the prior written consent of each Lender, or (viii) amend Section 2.9
so as to permit Interest Period intervals greater than six months without
regard to availability to Lenders, without the written consent of each Lender
directly and adversely affected thereby, or (ix) decrease any Tranche A
Repayment Amount, extend any scheduled Tranche A Repayment Date or decrease the
amount or allocation of any mandatory prepayment to be received by any Lender
holding any Tranche A Term Loans, in each case without the written consent of
the Required Tranche A Term Loan Lenders, or (x) decrease any Tranche B-1
Repayment Amount, extend any scheduled Tranche B-1 Repayment Date or decrease
the amount or allocation of any mandatory prepayment to be received by any
Lender holding any Tranche B-1 Term Loans, in each case without the written
consent of the


 


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Required Tranche B-1 Term Loan Lenders. 
Any such waiver and any such amendment, supplement or modification shall
apply equally to each of the affected Lenders and shall be binding upon the
Borrower, such Lenders, the Administrative Agent and all future holders of the
affected Loans.  In the case of any
waiver, the Borrower, the Lenders and the Administrative Agent shall be
restored to their former positions and rights hereunder and under the other
Credit Documents, and any Default or Event of Default waived shall be deemed to
be cured and not continuing, it being understood that no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.


 


13.2.                        Notices.  Except as set forth in Section 13.17,
all notices, requests and demands to or upon the respective parties hereto to
be effective shall be in writing (including by facsimile or electronic mail),
and, unless otherwise expressly provided herein, shall be deemed to have been
duly given or made when delivered, or three days after being deposited in the
mail, postage prepaid, or, in the case of telecopy or electronic mail notice,
when received, addressed as follows in the case of the Borrower and the Administrative
Agent, and as set forth on Schedule 1.1(c) to the Original Credit
Agreement in the case of the other parties hereto, or to such other address as
may be hereafter notified by the respective parties hereto:


 


	
   

  	
  The Borrower:

  	
   

  	
  PanAmSat Corporation

  20 Westport Road

  Wilton, Connecticut 06897

  Attention: James W. Cuminale

  Fax: 203-210-8683

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Kohlberg Kravis Roberts & Co., L.P.

  9 West 57th Street

  Suite 4200

  New York, New York 10019

  Attention: Joe Bae Fax: 212-750-0003

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  The Administrative Agent:

  	
   

  	
  Citicorp USA, Inc.

  2 Penns Way, Suite 200

  New Castle, Delaware 19720

  Attention: Betsy Weir

  Fax: (212) 994-0961

  Email: elizabeth.j.wier@citigroup.com

  



 


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  with a copy to:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Cahill Gordon & Reindel LLP

  80 Pine Street

  New York, New York 10005

  Attention: Michael E. Michetti, Esq.

  Fax: 212-269-5420

  E-mail: mmichetti@cahill.com

  



 


provided
that any notice, request or demand to or upon the Administrative Agent or the
Lenders pursuant to Sections 2.3, 2.6, 2.9, 4.2 and 5.1 shall not be
effective until received.


 


13.3.                        No
Waiver; Cumulative Remedies.  No
failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder or under the other Credit Documents shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.


 


13.4.                        Survival
of Representations and Warranties.  All
representations and warranties made hereunder, in the other Credit Documents
and in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.


 


13.5.                        Payment
of Expenses and Taxes.  The Borrower
agrees (a) to pay or reimburse the Agents for all their reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement and the other Credit Documents and any other documents prepared
in connection herewith or therewith, and the consummation and administration of
the transactions contemplated hereby and thereby, including the reasonable
fees, disbursements and other charges of counsel to the Agents, (b) to pay or
reimburse each Lender and Agent for all its reasonable and documented costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Credit Documents and any such other
documents, including the reasonable fees, disbursements and other charges of
counsel to each Lender and of counsel to the Agents, (c) to pay, indemnify, and
hold harmless each Lender and Agent from, any and all recording and filing fees
and (d) to pay, indemnify, and hold harmless each Lender and Agent and their
respective directors, officers, employees, trustees, investment advisors and
agents from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever, including reasonable and documented fees,
disbursements and other charges of counsel, with respect to the execution,
delivery, enforcement, performance and administration of this Agreement, the
other Credit Documents and any such other documents, including, without
limitation, any of the foregoing relating to the violation of, noncompliance
with or liability under, any Environmental Law or to any actual or alleged presence,
release or threatened release of


 


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Hazardous Materials involving or attributable to the operations of the
Borrower, any of its Subsidiaries or any of the Real Estate (all the foregoing
in this clause (d), collectively, the “indemnified liabilities”), provided
that the Borrower shall have no obligation hereunder to the Administrative
Agent or any Lender nor any of their respective directors, officers, employees
and agents with respect to indemnified liabilities to the extent attributable
to (i) the gross negligence or willful misconduct of the party to be
indemnified as determined in a final and non-appealable judgment by a court of
competent jurisdiction or (ii) disputes among the Administrative Agent,
the Lenders and/or their transferees. 
The agreements in this Section 13.5 shall survive repayment of the
Loans and all other amounts payable hereunder.


 


13.6.                        Successors
and Assigns; Participations and Assignments.  (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 the Letter of Credit Issuer that
issues any Letter of Credit), except that (i) the Borrower may not 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 the
Borrower or 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 13.6. 
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 the Letter
of Credit Issuer that issues any Letter of Credit), Participants (to the extent
provided in paragraph (c) of this Section 13.6) and, to the extent
expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Letter of Credit Issuer 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 Commitments and the Loans at the time owing to it) with the
prior written consent (such consent not be unreasonably withheld or delayed; it
being understood that, without limitation, the Borrower shall have the right to
withhold its consent to any assignment if, in order for such assignment to comply
with applicable law, the Borrower would be required to obtain the consent of,
or make any filing or registration with, any Governmental Authority) of:


 


(A)                              the Borrower (which
consent shall not be unreasonably withheld or delayed), provided that no
consent of the Borrower shall be required for an assignment to a Lender, an
Affiliate of a Lender (unless increased costs would result therefrom except if
an Event of Default under Section 11.1 or Section 11.5 has occurred
and is continuing), an Approved Fund or, if an Event of Default under Section 11.1
or Section 11.5 has occurred and is continuing, any other assignee; and


 


(B)                                the Administrative
Agent (which consent shall not be unreasonably withheld or delayed), and, in
the case of Revolving Credit Commitments or Revolving Credit Loans only, the
Swingline Lender and the applicable Letter of Credit Issuer, provided
that no consent of the Administrative Agent, the Swingline Lender or the Letter
of Credit Issuer, as applicable, shall be required for an assignment of (1) any
Commitment to an


 


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assignee that is a Lender with
a Commitment of the same Class immediately prior to giving effect to such
assignment or (2) any Term Loan to a Lender, an Affiliate of a Lender or an Approved
Fund.


 


(ii)                                  Assignments shall be
subject to the following additional conditions:


 


(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
or Loans of any Class, the amount of the Commitment or Loans 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 
$5,000,000 (or, in the case of a Tranche A Term Loan Commitment, Tranche
B-1 Term Loan Commitment, Tranche A Term Loan or Tranche B-1 Term Loan,  $1,000,000), and increments of $1,000,000 in
excess thereof, unless each of the Borrower and the Administrative Agent
otherwise consents (which consents shall not be unreasonably withheld or
delayed), provided that no such consent of the Borrower shall be
required if an Event of Default under Section 11.1 or Section 11.5
has occurred and is continuing; provided, further, that
contemporaneous assignments to a single assignee made by Affiliates of Lenders
and related Approved Funds shall be aggregated for purposes of meeting the
minimum assignment amount requirements stated above;


 


(B)                                each partial assignment
shall be made as an assignment of a proportionate part of all the assigning
Lender’s rights and obligations under this Agreement, provided that this
clause shall not be construed to prohibit the assignment of a proportionate
part of all the assigning Lender’s rights and obligations in respect of one
Class of Commitments or Loans;


 


(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 only one such fee shall be payable in the event of simultaneous
assignments to or from two or more Approved Funds; and


 


(D)                               the assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
administrative questionnaire in a form approved by the Administrative Agent the
“Administrative Questionnaire”.


 


For the
purpose of this Section 13.6(b), the term “Approved Fund” means 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, advised or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers, advises or manages a Lender.


 


(iii)                               Subject to acceptance
and recording thereof pursuant to paragraph (b)(v) of this Section 13.6,
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
thereunder shall, to the extent of the interest assigned by such


 


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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 2.10, 2.11, 3.5, 5.4 and 13.5).  Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this Section 13.6
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 13.6.


 


(iv)                              The Administrative Agent,
acting for this purpose as an agent of the Borrower shall maintain at the
Administrative Agent’s Office 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 Commitments of, and principal amount of the Loans and
any payment made by the Letter of Credit Issuer under any Letter of Credit
owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  Further, the Register shall contain the name
and address of the Administrative Agent and the lending office through which
each such Person acts under this Agreement. 
The entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, the Letter of Credit Issuer 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 the Borrower, the Letter of Credit Issuer 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 assignee’s completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section 13.6 and any written
consent to such assignment required by paragraph (b) of this Section 13.6,
the Administrative Agent 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 the
Borrower, the Administrative Agent, the Letter of Credit Issuer or the
Swingline Lender, sell participations to one or more banks or other entities
(each, a “Participant”) in all or a portion of such Lender’s rights and
obligations under this Agreement (including all or a portion of its Commitments
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 Borrower, the Administrative Agent, the Letter of
Credit Issuer 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 pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement or any other Credit Document, provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 13.1 that affects such Participant.  Subject to paragraph (c)(ii) of this Section 13.6,
the Borrower


 


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agrees that each Participant shall be entitled to the benefits of
Sections 2.10, 2.11 and 5.4 to the same extent as if it were a Lender (subject
to the requirements of those Sections) and had acquired its interest by
assignment pursuant to paragraph (b) of this Section 13.6.  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section  13.8(b)
as though it were a Lender, provided such Participant agrees to be
subject to Section 13.8(a) as though it were a Lender.


 


(ii)                                  A Participant shall
not be entitled to receive any greater payment under Section 2.10 or 5.4
than the applicable Lender would have been entitled to receive with respect to
the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower’s prior written
consent (which consent shall not be unreasonably withheld).


 


(d)                                 Any
Lender may, without the consent of the Borrower or the Administrative Agent, 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 any
pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section 13.6
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. 
In order to facilitate such pledge or assignment, the Borrower hereby
agrees that, upon request of any Lender at any time and from time to time after
the Borrower has made its initial borrowing hereunder, the Borrower shall
provide to such Lender, at the Borrower’s own expense, a promissory note,
substantially in the form of Exhibit L-1 , L-2 or L-3, as
the case may be, evidencing the Tranche A Term Loans, Tranche B-1 Term Loans
and New Tranche B-1 Term Loans, and Revolving Credit Loans and Swingline Loans,
respectively, owing to such Lender.


 


(e)                                  Subject
to Section 13.16, the Borrower authorizes each Lender to disclose to any
Participant, secured creditor of such Lender or assignee (each, a “Transferee”)
and any prospective Transferee any and all financial information in such Lender’s
possession concerning the Borrower and its Affiliates that has been delivered
to such Lender by or on behalf of the Borrower and its Affiliates pursuant to
this Agreement or which has been delivered to such Lender by or on behalf of
the Borrower and its Affiliates in connection with such Lender’s credit evaluation
of the Borrower and its Affiliates prior to becoming a party to this Agreement.


 


13.7.                        Replacements
of Lenders under Certain Circumstances. 
(a) The Borrower shall be permitted to replace any Lender that (a)
requests reimbursement for amounts owing pursuant to Section 2.10, 2.12,
3.5 or 5.4, (b) is affected in the manner described in Section 2.10(a)(iii)
and as a result thereof any of the actions described in such Section is
required to be taken or (c) becomes a Defaulting Lender, with a replacement
bank or other financial institution, provided that (i) such replacement
does not conflict with any Requirement of Law, (ii) no Event of Default shall
have occurred and be continuing at the time of such replacement, (iii) the
Borrower shall repay (or the replacement bank or institution shall purchase, at
par) all Loans and other amounts (other than any disputed amounts), pursuant to
Section 2.10, 2.11, 2.12, 3.5 or 5.4, as the case may be) owing to such
replaced Lender prior to the date of replacement, (iv) the replacement bank or
institution, if not already a Lender, and the terms and conditions of such
replacement,


 


116





















 


shall be reasonably satisfactory to the Administrative Agent, (v) the replaced
Lender shall be obligated to make such replacement in accordance with the
provisions of Section 13.6 (provided that the Borrower shall be
obligated to pay the registration and processing fee referred to therein) and
(vi) any such replacement shall not be deemed to be a waiver of any rights
that the Borrower, the Administrative Agent or any other Lender shall have
against the replaced Lender.


 


(b)                                 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 13.1 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, the
Borrower 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 Borrower 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, the
Borrower, Administrative Agent, such Non-Consenting Lender and the replacement
Lender shall otherwise comply with Section 13.6.


 


13.8.                        Adjustments;
Set-off.  (a)  If any Lender (a “benefited Lender”)
shall at any time receive any payment of all or part of its Loans, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 11.5, or otherwise), in a greater proportion than
any such payment to or collateral received by any other Lender, if any, in
respect of such other Lender’s Loans, or interest thereon, such benefited
Lender shall purchase for cash from the other Lenders a participating interest
in such portion of each such other Lender’s Loan, or shall provide such other
Lenders with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefited Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Lenders; provided,
however, that if all or any portion of such excess payment or benefits is
thereafter recovered from such benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.


 


(b)                                 After
the occurrence and during the continuance of an Event of Default, in addition
to any rights and remedies of the Lenders provided by law, each Lender shall
have the right, without prior notice to the Borrower, any such notice being
expressly waived by the Borrower to the extent permitted by applicable law,
upon any amount becoming due and payable by the Borrower hereunder (whether at
the stated maturity, by acceleration or otherwise) to set-off and appropriate
and apply against such amount any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or
the account of the Borrower.  Each Lender
agrees promptly to notify the Borrower and


 


117





















 


the Administrative Agent after any such set-off and application made by
such Lender, provided that the failure to give such notice shall not
affect the validity of such set-off and application.


 


13.9.                        Counterparts.  This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts
(including by facsimile or other electronic transmission), and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.  A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.


 


13.10.                  Severability.  Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


13.11.                  Integration.  This Agreement and the other Credit Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Credit Documents.


 


13.12.                  GOVERNING
LAW.  THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


13.13.                  Submission
to Jurisdiction; Waivers.  The
Borrower hereby irrevocably and unconditionally:


 


(a)                                  submits for itself
and its property in any legal action or proceeding relating to this Agreement
and the other Credit Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of the
United States of America for the Southern District of New York and
appellate courts from any thereof;


 


(b)                                 consents that any such
action or proceeding may be brought in such courts and waives any objection
that it may now or hereafter have to the venue of any such action or proceeding
in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;


 


(c)                                  agrees that service
of process in any such action or proceeding may be effected by mailing a copy
thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to the Borrower at its address set forth in Section 13.2
or at such other address of which the Administrative Agent shall have been
notified pursuant thereto;


 


118





















 


(d)                                 agrees that nothing
herein shall affect the right to effect service of process in any other manner
permitted by law or shall limit the right to sue in any other jurisdiction; and


 


(e)                                  waives, to the
maximum extent not prohibited by law, any right it may have to claim or recover
in any legal action or proceeding referred to in this Section 13.13 any
special, exemplary, punitive or consequential damages.


 


13.14.                  Acknowledgments.  The Borrower hereby acknowledges that:


 


(a)                                  it has been advised
by counsel in the negotiation, execution and delivery of this Agreement and the
other Credit Documents;


 


(b)                                 neither the
Administrative Agent nor any Lender has any fiduciary relationship with or duty
to the Borrower arising out of or in connection with this Agreement or any of
the other Credit Documents, and the relationship between Administrative Agent
and Lenders, on one hand, and the Borrower, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and


 


(c)                                  no joint venture is
created hereby or by the other Credit Documents or otherwise exists by virtue
of the transactions contemplated hereby among the Lenders or among the Borrower
and the Lenders.


 


13.15.                  WAIVERS OF JURY TRIAL.  THE BORROWER, THE ADMINISTRATIVE AGENT AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.


 


13.16.                  Confidentiality.  The Administrative Agent and each Lender
shall hold all non-public information furnished by or on behalf of the Borrower
in connection with such Lender’s evaluation of whether to become a Lender
hereunder or obtained by such Lender or the Administrative Agent pursuant to
the requirements of this Agreement (“Confidential Information”),
confidential in accordance with its customary procedure for handling
confidential information of this nature and (in the case of a Lender that is a
bank) in accordance with safe and sound banking practices and in any event may
make disclosure as required or requested by any governmental agency or
representative thereof or pursuant to legal process or to such Lender’s or the
Administrative Agent’s attorneys, professional advisors or independent auditors
or Affiliates, provided that unless specifically prohibited by
applicable law or court order, each Lender and the Administrative Agent shall
notify the Borrower of any request by any governmental agency or representative
thereof (other than any such request in connection with an examination of the
financial condition of such Lender by such governmental agency) for disclosure
of any such non-public information prior to disclosure of such information, and
provided,
further, that in no event shall any Lender or the Administrative Agent be
obligated or required to return any materials furnished by the Borrower or any
Subsidiary of the Borrower.  Each Lender
and the Administrative Agent agrees that it will not provide to prospective
Transferees or to prospective direct or indirect contractual counterparties in
swap agreements to be entered into in connection with


 


119





















 


Loans made hereunder any of the Confidential Information unless such
Person is advises of and agrees to be bound by the provisions of this Section 13.16.


 


13.17.                  Citigroup
Direct Website Communications.


 


(a)                                  Delivery.  (i)  The Borrower may, at its option, provide to
the Administrative Agent any information, documents and other materials that it
is obligated to furnish to the Administrative Agent pursuant to the Credit
Documents, including, without limitation, all notices, requests, financial
statements, financial and other reports, certificates and other information
materials, but excluding any such communication that (A) relates to a request
for a new, or a conversion of an existing, borrowing or other extension of
credit (including any election of an interest rate or interest period relating
thereto), (B) relates to the payment of any principal or other amount due under
the Credit Agreement prior to the scheduled date therefor, (C) provides notice
of any default or event of default under the Credit Agreement or (D) is
required to be delivered to satisfy any condition precedent to the
effectiveness of the Credit Agreement and/or any borrowing or other extension
of credit thereunder (all such non-excluded communications being referred to
herein collectively as “Communications”), by transmitting the
Communications in an electronic/soft medium in a format reasonably acceptable
to the Administrative Agent to oploanswebadmin@citigroup.com.  Nothing in this Section 13.17 shall
prejudice the right of the Borrower, the Administrative Agent or any Lender to
give any notice or other communication pursuant to any Credit Document in any
other manner specified in such Credit Document.


 


(ii)                                  The
Administrative Agent agrees that the receipt of the Communications by the Agent
at its e-mail address set forth above shall constitute effective delivery of the
Communications to the Agent for purposes of the Credit Documents.  Each Lender agrees that notice to it (as
provided in the next sentence) specifying that the Communications have been
posted to the Platform shall constitute effective delivery of the Communications
to such Lender for purposes of the Credit Documents.  Each Lender agrees (A) to notify the
Administrative Agent in writing (including by electronic communication) from
time to time of such Lender’s e-mail address to which the foregoing notice may
be sent by electronic transmission and (B) that the foregoing notice may be
sent to such e-mail address.


 


(b)                                 Posting.  The Borrower further agrees that the
Administrative Agent may make the Communications available to the Lenders by
posting the Communications on Intralinks or a substantially similar electronic
transmission system (the “Platform”), so long as the access to such
Platform is limited (i) to the Agents and the Lenders and (ii) remains subject
the confidentiality requirements set forth in Section 13.16.


 


(c)                                  The
Platform is provided “as is” and “as available”.  The Agent Parties do not warrant the accuracy
or completeness of the Communications, or the adequacy of the platform and
expressly disclaim liability for errors or omissions in the Communications.  No warranty of any kind, express, implied or
statutory, including, without limitation, any warranty of merchantability,
fitness for a particular purpose, non-infringement of third party rights or freedom
from viruses or other code defects, is made by the Agent Parties in connection
with the Communications or the platform. 
In no event shall the Administrative Agent or any of its affiliates or
any of their respective officers, directors, employees, agents, advisors or
representatives (collectively, “Agent Parties”) have any liability to
the Borrower, any Lender or any other person


 


120





















 


or entity for damages of any kind, including, without limitation,
direct or indirect, special, incidental or consequential damages, losses or
expenses (whether in tort, contract or otherwise) arising out of the Borrower’s
or the Administrative Agent’s transmission of Communications through the
internet, except to the extent the liability of any Agent Party is found in a
final non-appealable judgment by a court of competent jurisdiction to have
resulted primarily from such Agent Party’s gross negligence or willful
misconduct.


 


13.18.                  USA
PATRIOT Act.  Each Lender hereby
notifies the Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required
to obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender to identify the Borrower in accordance with the
Patriot Act.


 


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IN WITNESS
WHEREOF, each of the parties hereto has caused a counterpart of this Agreement
to be duly executed and delivered as of the date first above written.


 


	
   

  	
  PANAMSAT CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Signature Page to Amended and
Restated Credit Agreement


 





















 


	
   

  	
  CITICORP USA, INC.,

  
	
   

  	
   

  	
  as
  Administrative Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Signature Page to Amended and
Restated Credit Agreement


 





















 


	
   

  	
  MERRILL
  LYNCH, PIERCE, FENNER & SMITH

  
	
   

  	
   

  	
  INCORPORATED,

  
	
   

  	
   

  	
  as Joint
  Lead Arranger and Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: 

  
	
   

  	
   

  	
  Title:

  



 


Signature Page to Amended and
Restated Credit Agreement


 





















 


	
   

  	
  MERRILL
  LYNCH CAPITAL CORPORATION,

  
	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: 

  
	
   

  	
   

  	
  Title:

  



 


Signature Page to Amended and
Restated Credit Agreement


 





















 


	
   

  	
  CITIGROUP
  GLOBAL MARKETS INC.,

  
	
   

  	
   

  	
  as Joint
  Lead Arranger

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: 

  
	
   

  	
   

  	
  Title:

  



 


Signature Page to Amended and
Restated Credit Agreement


 





















 


	
   

  	
  MORGAN
  STANLEY SENIOR FUNDING, INC.,

  
	
   

  	
   

  	
  as Joint
  Lead Arranger, Documentation Agent

  
	
   

  	
   

  	
  and as a
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: 

  
	
   

  	
   

  	
  Title:

  



 


Signature Page to Amended and
Restated Credit Agreement