EX-10.16.5 5 y46196ex10-16_5.txt 5TH AMENDMENT TO AMENDED AND RESTATED CREDIT AGMT 1 EXHIBIT 10.16.5 EXECUTION COPY FIFTH AMENDMENT FIFTH AMENDMENT, dated as of December 15, 2000 (this "Amendment"), to and of the Amended and Restated Credit and Participation Agreement, dated as of November 14, 1997 (as amended, supplemented or otherwise modified from time to time, the "Credit Agreement"), among LORAL SPACECOM CORPORATION (the "Borrower"), SPACE SYSTEMS/LORAL, INC. ("SS/L"), the Banks from time to time parties thereto (the "Banks"), ISTITUTO BANCARIO SAN PAOLO DI TORINO S.P.A. ("San Paolo"), individually and as selling bank (in such capacity, the "Selling Bank"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION ("Bank of America"), as administrative agent (in such capacity, the "Administrative Agent") and as issuing bank, THE CHASE MANHATTAN BANK, as syndication agent and NATIONSBANK OF TEXAS, N.A., as documentation agent. W I T N E S S E T H : WHEREAS, the Borrower currently has outstanding receivables (the "Globalstar Receivables") as set forth on Schedule 1 attached hereto, in the aggregate amount at historical cost, as of December 31, 2000, of approximately $180,000,000, owed to it by Globalstar, L.P. ("Globalstar"); and WHEREAS, the Borrower has agreed to sell (the "Globalstar Receivables Sale") the Globalstar Receivables to Loral Space & Communications Corporation (the "Parent") for a purchase price of approximately $180,000,000 (provided that at least $130,000,000 of the purchase price is payable in cash and the remainder if any, of such purchase price is payable in the form of a promissory note issued by the Parent to the Borrower); and WHEREAS, on or prior to the date hereof, the Borrower paid a dividend to Parent of $70,000,000, which dividend is permitted under Subsection 9.7 of the Credit Agreement and which will be used to finance in part the cash portion of the consideration for the Globalstar Receivables Sale; and WHEREAS, in connection with the Globalstar Receivables Sale, the Borrower has requested that the Credit Agreement be amended as more fully set forth below; and WHEREAS, the Required Banks are willing to agree to such amendment upon terms and subject to the conditions set forth below; NOW, THEREFORE, in consideration of the premises and mutual agreements contained herein and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: Section 1. Defined Terms. Unless otherwise defined herein, terms defined in the Credit Agreement are used herein (including the recitals hereto) as therein defined. 2 Section 2. Amendment of Subsection 1.1 (Defined Terms). Subsection 1.1 of the Credit Agreement is hereby amended by: (i) adding a proviso at the end of the first sentence of the definition of "Consolidated EBITDA" to read in its entirety as follows: "provided that, if the Globalstar Receivables Sale occurs, any charges or write-offs associated with the Globalstar Receivables or any gains resulting from the Globalstar Receivables Sale in each case that are recorded or taken after October 1, 2000, shall be disregarded for the purpose of calculating Consolidated EBITDA." (ii) adding a proviso at the end of the definition of "Consolidated Interest Expense" to read in its entirety as follows: "provided that, if the Globalstar Receivables Sale occurs, any charges or write-offs associated with the Globalstar Receivables or any gains resulting from the Globalstar Receivables Sale in each case that are recorded or taken after October 1, 2000, shall be disregarded for the purpose of calculating Consolidated Interest Expense." (iii) adding a proviso at the end of the definition of "Excess Cash Flow" to read in its entirety as follows: "provided that, if the Globalstar Receivables Sale occurs, any cash received in connection with the Globalstar Receivables Sale, any charges or write-offs associated with the Globalstar Receivables or any gains resulting from the Globalstar Receivables Sale in each case that are recorded or taken after October 1, 2000, shall be disregarded for the purpose of calculating Excess Cash Flow." (iv) adding a proviso at the end of the definition of "Shareholders' Equity" to read in its entirety as follows: "provided that, if the Globalstar Receivables Sale occurs, any charges or write-offs associated with the Globalstar Receivables or any gains resulting from the Globalstar Receivables Sale in each case that are recorded or taken after October 1, 2000, shall be disregarded for the purpose of calculating Shareholders' Equity." (v) adding the following definition in the proper alphabetical order: "`Globalstar Receivables Sale': the sale, after the declaration and payment of the $70,000,000 dividend by the Borrower contemplated by Section 9.7, by the Borrower to Loral Space & Communications Corporation (`LSCC') of receivables having a historical cost of at least $180,000,000 owed by Globalstar L.P. to the Borrower for a purchase price equal to such historical cost of such receivables (provided that at least $130,000,000 of the purchase price is payable in cash and the remainder, if any, of such purchase price is payable in the form of a promissory note issued by LSCC to the Borrower). The Borrower shall provide notice of the completion of the Globalstar Receivables Sale (which such notice shall evidence the occurrence thereof for purposes of this Amendment) to the Administrative Agent and the Administrative Agent shall, upon request by the Borrower, acknowledge the receipt of such notice and forward such notice to the Lenders." 3 Section 3. Amendment of Subsection 9.6 (Limitation on Sale of Assets). Subsection 9.6 of the Credit Agreement is hereby amended by (i) deleting the word "or" appearing at the end of paragraph (g) thereof and (ii) deleting the period appearing at the end of paragraph (h) and adding in lieu thereof the following: "; or (i) the Globalstar Receivables Sale." Section 4. Amendment of Subsection 9.8 (Limitation on Investments, Loans and Advances). Subsection 9.8 of the Credit Agreement is hereby amended by (i) deleting the word "and" appearing at the end of paragraph (h) and (ii) deleting the period at the end of paragraph (i) and adding in lieu thereof the following: "; and (j) the promissory note issued by the Parent in connection with the Globalstar Receivables Sale." Section 5. Amendment of Subsection 9.9 (Transactions with Affiliates). Subsection 9.9 of the Credit Agreement is hereby amended by (i) deleting the word "and" at the end of clause (a) and inserting a comma in lieu thereof, (ii) deleting the word "and" at the end of clause (b) and inserting a comma in lieu thereof and (iii) deleting the period at the end of clause (c) and inserting in lieu thereof the following: " and (d) the Globalstar Receivables Sale." Section 6. Conditions Precedent. This Amendment shall become effective as of the date hereof (the "Amendment Effective Date") upon receipt by the Administrative Agent of counterparts of this Amendment, duly executed by the Borrower, SS/L, and the Required Banks. Section 7. Legal Obligation. The Borrower represents and warrants to each Bank that the Credit Agreement and this Amendment constitute legal, valid and binding obligations of the Borrower, enforceable against it in accordance with their respective terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyances, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. Section 8. Continuing Effect. Except for the amendments expressly provided herein, the Credit Agreement shall continue to be, and shall remain, in full force and effect in accordance with its terms. The amendments provided herein shall be limited precisely as drafted and shall not be construed to be an amendment or waiver of any other provision of the Credit Agreement other than as specifically provided herein. Section 9. Expenses. The Borrower agrees to pay or reimburse the Administrative Agent for all of its 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 Amendment and any other documents prepared in connection herewith, and the consummation of the transactions contemplated hereby and thereby, including, without limitation, the reasonable fees and disbursements of counsel to the Administrative Agent. 4 SECTION 10 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. 5 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the date first above written. LORAL SPACECOM CORPORATION By: /s/ Janet Yeung Title: Vice President and Assistant Secretary SPACE SYSTEMS/LORAL, INC. By: /s/ Janet Yeung Title: Vice President and Assistant Secretary BANK OF AMERICA, NATIONAL ASSOCIATION, as Administrative Agent, Issuing Bank and a Bank By: /s/ Steve A. Aronowitz Title: Managing Director SAN PAOLO IMI S.p.A., as Selling Bank and in its individual capacity By: ________________________________ Title: By: ________________________________ Title: 6 BANK OF MONTREAL By: /s/ Bruce A. Pietka Title: Director 7 THE BANK OF NEW YORK By: /s/ Ken Sneider Title: Vice President 8 THE BANK OF NOVA SCOTIA By: /s/ Philip N Adsetts Title: Director 9 BNP PARIBAS, formerly known as Banque Nationale de Paris and successor to Paribas By: /s/ Arnaud Collin du Bocage Title: Director By: /s/ Richard Pace Title: Vice President, Corporate Banking Division 10 BARCLAYS BANK PLC By: /s/ John Giannone Title: Director 11 BAYERISCHE LANDESBANK GIROZENTRALE CAYMAN ISLANDS BRANCH By: /s/ Hereward Drummund Title: Senior Vice President By: /s/ James H. Boyle Title: Vice President 12 THE CHASE MANHATTAN BANK By: /s/ William E. Rottino Title: Vice President 13 CIBC INC. By: /s/ Michele E. Roller Title: Executive Director 14 CITICORP USA, INC. By: /s/ Walter L. Larsen Title: Vice President 15 CREDIT LYONNAIS, NEW YORK BRANCH By: /s/ Mark A. Campellone Title: First Vice President 16 GE CAPITAL CORPORATION By: /s/ Karl Kieffer Title: Duly Authorized Signatory 17 THE INDUSTRIAL BANK OF JAPAN, LIMITED By: /s/ Takuya Honjo Title: Deputy General Manager 18 THE MITSUBISHI TRUST AND BANKING CORPORATION By: /s/ Scott J. Paige Title: Executive Vice President 19 PNC BANK, NATIONAL ASSOCIATION By: /s/ Steffen W. Crowther Title: Vice President 20 THE SANWA BANK, LIMITED By: /s/ Stephen C. Small Title: Senior Vice President and Area Manager 21 THE SUMITOMO BANK LIMITED By: /s/ Edward D. Henderson, Jr. Title: Senior Vice President 22 THE TOKAI BANK, LIMITED NEW YORK BRANCH By: /s/ Shinichi Nakatani Title: Assistant General Manager 23 Schedule 1 (1) Globalstar vendor financing agreed upon in SS/L contract number GF-C-94-0008, dated as of 2/16/1994 as amended (the "Satellite Contract") in the principal amount of $110,105,000. A portion of the Globalstar vendor financing was provided by SS/L, as principal, and a portion was provided by subcontractors (SS/L acts as the agent). As of 12/31/2000 $36,742,000 had been repaid. (2) Globalstar vendor financing agreed upon in the Memorandum of Understanding #5 dated 6/15/1995 (pursuant to the Satellite Contract) in the principal amount of $90,000,000. (3) Globalstar vendor financing agreed upon in the Memorandum of Understanding #18 dated 9/9/1997 (pursuant to the Satellite Contract) in the principal amount of $24,107,143. A portion of the Globalstar vendor financing was provided by SS/L, as principal, and a portion was provided by subcontractors (SS/L acts as the agent). As of 12/31/2000 $8,045,143 had been repaid. (4) Orbital performance incentives as described in the Satellite Contract and/or Memorandum of Understanding #18 referred to above. (5) Note from Globalstar dated June 30, 2000 in the principal amount of $11,650,000 acquired pursuant to guaranty agreement related to the Globalstar credit agreement with the The Chase Manhattan Bank, N.A. dated 12/15/1995 as amended. US$ IN THOUSANDS AS OF 12/31/2000
AGREEMENT ITEM AMOUNT AMOUNT ASSIGNED ------------------------------------------------------------------------------------------------------------- 1. Portion provided by SS/L as principal $ 32,619 $ 32,619 Accrued interest on SS/L portion 3,536 3,536 Portion provided by subcontractors (SS/L acts as agent) 40,744 - Accrued interest on subcontractor portion 2,222 - 2. Portion provided by SS/L 90,000 90,000 Accrued interest on SS/L portion 42,416 42,416 3. Portion provided by SS/L as principal 7,031 7,031 Accrued interest on SS/L portion 773 773 Portion provided by subcontractors (SS/L acts as agent) 9,031 - Accrued interest on subcontractor portion 488 - 4. Remaining orbital performance incentives 9,900 9,900 Accrued interest 83 83 5. Outstanding Principal Amount 11,650 11,650 Accrued interest 584 584 ---------- -------- TOTAL $ 251,077 $ 198,592