EXHIBIT 10.5.2
EXECUTION
FIRST AMENDMENT TO PARTICIPATION AGREEMENT
AND PURCHASE AGREEMENT [TRUST 1]
FIRST AMENDMENT to the PARTICIPATION AGREEMENT (as defined below),
dated as of December 24, 1992 (the "First Amendment"), among ▇▇▇▇▇▇
COMMUNICATIONS GALAXY, INC., a California corporation, as Seller, ORION ONE,
INC., a Delaware corporation, as Owner Participant, STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION, a national banking association,
not in its individual capacity, except as otherwise expressly set forth in the
Participation Agreement (as defined below), but solely in its capacity as Owner
Trustee under the Trust Agreement, as Owner Trustee, ▇▇▇▇▇▇ COMMUNICATIONS,
INC., a California corporation, as Initial Note Purchaser, WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as Indenture Trustee, and BT SECURITIES
CORPORATION, a Delaware corporation, not in its individual capacity, but solely
as Agent for Owner Participant and the Other Owner Participants and to the
TRANSPONDER PURCHASE AGREEMENT (as defined below), by and between HCG and Owner
Trustee.
WHEREAS, the parties hereto are parties to that certain Participation
Agreement [Trust 1] dated as of August 21, 1992 (the "Participation Agreement");
WHEREAS, Section 15.05 of the Participation Agreement provides that
the Participation Agreement may be amended by an instrument in writing;
WHEREAS, the parties hereto wish to amend the Participation Agreement
to reflect certain changes to the provisions of the Participation Agreement
needed in connection with the refinancing of the Series A Notes;
WHEREAS, HCG and Owner Trustee are parties to that certain Transponder
Purchase Agreement [Trust 1] dated as of September 9, 1992 (the "Purchase
Agreement");
WHEREAS, Section 15.01 of the Purchase Agreement provides that the
Purchase Agreement may be amended by an instrument in writing;
WHEREAS, HCG and the Owner Trustee wish to amend the Purchase
Agreement and each of the Indenture Trustee and the Initial Note Purchaser
hereby consents to such amendment as evidenced by its signature hereto; and
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WHEREAS, the entry into this First Amendment by the parties hereto is
in all respects authorized by the provisions of the Participation Agreement and
the Purchase Agreement.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements contained herein and other good and valuable consideration, receipt
of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. Amendments.
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a. Section 2.05 of the Participation Agreement is hereby
amended by inserting the clause "the Series G Noteholders," in the fourth line
thereof after "Agent," and before "Owner" and by inserting the parenthetical
clause "(and a copy of the Appraisal to the extent it has not been previously
delivered to such Person)" in the seventh line thereof after "Appraisal" and
before "to".
b. Section 2.08 of the Participation Agreement is hereby
amended by adding a paragraph (c) to the end of such section as follows:
"(c) Notwithstanding anything to the contrary contained herein or in
the Indenture, so long as any Series G Notes shall be outstanding, there
shall be no Notes outstanding other than (i) the Series G Notes, (ii) the
Series A Notes, the aggregate principal amount of each subseries of which
outstanding shall not exceed the respective aggregate principal amounts set
forth on Schedule A hereto and (iii) the Series D Notes, the aggregate
principal amount of each subseries of which outstanding shall not exceed
the respective aggregate principal amounts set forth on Schedule B hereto;
and Lessee may not Assume any Series G Notes."
c. Section 2.11 of the Participation Agreement is hereby
amended by adding a paragraph (c) to the end of such section as follows:
"(c) If Series G Notes are issued on or prior to the In-Service Date,
the principal amount issued shall be equal to the Debt Commitment as of the
then anticipated In-Service Date minus interest that is anticipated to
accrue on the Series G Notes to but not including the then anticipated In-
Service Date."
d. Section 2.12(b) of the Participation Agreement is hereby
amended by deleting the parenthetical clause
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"(without giving effect to the second sentence of Section 9.01(b))".
e. Section 4.01(g) of the Participation Agreement is hereby
amended by adding the clause "assuming the Transponders are mobile goods under
the UCC," on the seventh line after "(ii)" and by deleting the parenthetical
clause ending such section.
f. Section 5.01(p) of the Participation Agreement is hereby
amended by inserting the following text in lieu of "[Intentionally Omitted]":
"Variable Amount. Prior to the Execution Date, HCG shall pay to Owner
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Trustee an amount equal to each Variable Amount as and when such Variable
Amount shall be payable by Owner Trustee pursuant to the Indenture or any
of the Notes."
g. Section 5.01 of the Participation Agreement is hereby
amended by inserting the following at the end of such section as paragraphs (u)
through (w):
"(u) Notice of Change of Place of Business. Lessee shall promptly
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give notice of any change in or relocation of its chief executive office or
chief place of business (1) to Owner Trustee so long as Owner Trustee has
title to any Transponder and (2) to Indenture Trustee so long as any Notes
are outstanding.
"(v) Defense of Title. Lessee hereby covenants for the benefit of the
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holders of Series G Notes that, while such Series G Notes are outstanding
during the Lease Term with respect to any Transponder, it will, at its own
cost and expense, defend the Owner Trustee's title to such Transponder
against the claims of any and all Persons whomever, other than with respect
to Permitted Liens.
"(w) Method of Payment. Prior to the Execution Date, all amounts
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payable by HCG to the Owner Trustee under Sections 2.08(a), 2.09, 2.10
(second sentence), 2.12, 5.08 and 10.02(a) hereof and the ▇▇▇▇▇▇ Agreements
shall be paid to the Indenture Trustee to its account specified in writing
to the Owner Trustee on the Series G Closing Date or such other account as
the Indenture Trustee may hereafter designate in writing for distribution
in accordance with the Indenture."
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h. Section 5.05(a) of the Participation Agreement is hereby
amended by deleting clause (i) thereof in its entirety and substituting in lieu
thereof a new clause (i) to read as follows:
"(i) Assume the Notes then outstanding by giving notice of such
Assumption pursuant to Section 11.04, in accordance with, subject to the
conditions of and with the effect provided in Section 2.13 of the Indenture
or"
i. Section 5.05(m) of the Participation Agreement is hereby
amended by inserting the following text in lieu of "[Intentionally Omitted]:
"(m) For avoidance of doubt, each party hereto acknowledges and agrees
that any amount payable by the Owner Trustee under Section 2.17 of the
Indenture constitutes a Variable Amount."
j. Section 5.05 of the Participation Agreement is hereby
amended by adding a new paragraph (p) as follows:
"(p) On the In-Service Date, the Lessee shall deliver to the Indenture
Trustee and the Noteholders an Opinion of Counsel in form and substance
reasonably satisfactory to the Indenture Trustee and the Series G
Noteholders substantially to the effect that:
(i) the Lease constitutes a legal, valid and binding obligation
of the Lessee in accordance with its terms, except as the enforceability
thereof may be limited by (i) applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, or other similar laws of general
application affecting creditors' rights and remedies generally and (ii)
general principles of equity (regardless of whether such enforcement is
sought in a proceeding in equity or at law); and
(ii) if the Lease is deemed to create only a security interest in
favor of the Owner Trustee and the internal laws of the State of California
govern the perfection of such security interest and would require that an
action be taken in California to effect such perfection, then upon the due
filing of a financing statement in the form attached to said Opinion of
Counsel with the California Secretary of State, such security interest in
the collateral described in both such financing statement and the Lease
will be perfected, except to the extent that under the California Uniform
Commercial Code perfection cannot be effected by the filing
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of a financing statement in the State of California pursuant to Section
9302 or 9304 thereof or the transactions are excluded from the coverage of
the California UCC by Section 9104 thereof."
k. Section 5.08(a) of the Participation Agreement is hereby
amended by deleting clause (B) thereof in its entirety.
1. Section 5.09 of the Participation Agreement is hereby deleted
in its entirety.
m. Article V of the Participation Agreement is hereby further
amended by adding a new Section 5.10 as follows:
"5.10 Lessee's Instructions to Owner Trustee. Owner Trustee hereby
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agrees, so long as no Lease Default in respect of Section 15(a), (b) or (h)
of the Lease shall have occurred and be continuing and so long as no Lease
Event of Default shall have occurred and be continuing, to follow Lessee's
written requests as soon as practicable (and not to take any action not so
requested) with respect to (i) selecting interest periods to be applicable
to the Series G Notes under the Notes and prepayments of the Series G Notes
in connection with Sections 2.17 and 2.18 of the Indenture and (ii) giving
any and all notices under the Indenture to Indenture Trustee or the Series
G Noteholders necessary or appropriate in order to effectuate such
selection of interest periods and such prepayment of the Series G Notes,
provided that any such prepayment is effected in connection with a
refinancing pursuant to this Participation Agreement."
n. Section 7.02(a)(i) of the Participation Agreement is hereby
amended by adding the following text in the second line after "Noteholder":
"that has not provided a current Internal Revenue Service Form 1001 or Form
4224, to the extent applicable, and, in any case, a Form W-8 or W-9, to the
extent applicable."
o. Section 9.01 of the Participation Agreement is hereby
amended by (1) adding in the first line of clause (iv) of paragraph (a), after
"Date" and before "or", the parenthetical phrase "(including in respect of a
refinancing of Series A Notes which occurs on or prior to such date)" and (2) by
adding the following text after "refinancing" and before "." in the first line
of page 81:
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"and (vi) Transaction Costs in respect of a refinancing of the Series G
Notes shall be paid by Owner Trustee on or prior to July 2, 1993 with funds
to be provided by Owner Participant, to the extent invoices therefor are
received by Owner Trustee."
Section 9.01 of the Participation Agreement is hereby further amended by adding
a new paragraph (d) as follows:
"(d) On the In-Service Date, Agent shall pay, in immediately
available funds, for legal services rendered in connection with the
refinancing of Series A Notes with Series G Notes, to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, the
amount of $25,000, and to Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, the amount of
$12,500, in each case, on a pro-rata basis per Transponder, in respect of
this Participation Agreement and the Other Participation Agreements."
p. Section 10.01 of the Participation Agreement is hereby
amended (1) by deleting the heading and substituting in lieu thereof "Series A
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Notes, Series D Notes and Series G Notes", (2) by inserting "Series G
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Noteholders" after "Purchaser," and before "Owner Trustee in the second line of
clause (a)(i) of such section and by inserting "or the Series G Notes, as
applicable," after "Notes" and before "described" in the fourth line of such
clause and (3) by deleting the first two sentences of clause (a)(ii) in their
entirety and by adding the following sentence in lieu thereof:
"Any Notes issued other than Series A Notes or Series G Notes will bear
interest at a fixed rate and have a maturity date as set forth in the
principal amortization schedule attached to such Notes but not later than
the expiration date of the Basic Term of the Lease with respect to the
Transponders."
q. Section 10.01(a)(iii) of the Participation Agreement is
hereby amended by deleting the second proviso in such section beginning in the
penultimate line.
r. Section 10.01(b) of the Participation Agreement is hereby
amended by inserting "or the Series G Notes, as the context may require," after
"Series A Notes" in the fourteenth and fifteenth lines of such section and by
changing "Series B Notes and, if applicable, Series C Notes" to "other Notes or
both such dates, as the context may require,".
s. Section 10.01(g) of the Participation Agreement is hereby
amended by inserting "Series G Notes" in lieu of "Series A Notes" in the fourth
line thereof.
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t. Section 10.03 of the Participation Agreement is hereby
amended by (1) changing "Series C Notes" in the heading of such section to
"Series G Notes", (2) deleting paragraphs (a) and (b) in their entirety, (3)
changing "(c)" denoting the second full paragraph on page 87 to "(a)", (4)
adding the clause "Subject to the next succeeding sentence," at the beginning of
new paragraph "(a)", (5) changing the word "may" to "shall" in the first line of
new paragraph (a) and (6) inserting the following text at the end of such new
paragraph "(a)":
"The final maturity of any Series B Notes which refinance the Series G
Notes shall be not earlier than the fifth anniversary of the In-Service
Date. At the final maturity of the Medium Term Series B Notes (as
hereinafter defined), Lessee shall refinance such Notes with Notes issued
in accordance with this Agreement having a final maturity that is
coincident with the final maturity set forth on Exhibit C to Schedule III
hereof as then in effect. If the maturity date of any Series B Notes issued
to refinance the Series G Notes is earlier than the date that is coincident
with the final maturity set forth on Exhibit C to Schedule III hereof as
then in effect (the "Medium Term Series B Notes"), and such Medium Term
Series B Notes have not been refinanced in accordance with this Agreement
or as otherwise agreed between the parties hereto, then on the maturity
date of such Medium Term Series B Notes, Lessee shall pay to Owner Trustee
as Supplemental Rent, on an After-Tax Basis, an amount equal to the amount
necessary to redeem in full such Medium Term Series B Notes and Owner
Trustee shall effect such redemption on such date with such amount."
Section 10.03 is hereby further amended by adding a new paragraph (b) to the end
of such section as follows:
"(b) Notwithstanding anything to the contrary in this Section 10.03,
on December 24, 1992, Series G Notes will be issued in an amount equal to
the Debt Commitment as of the then anticipated In-Service Date minus
interest that is anticipated to accrue on the Series G Notes to but
excluding the then anticipated In-Service Date to refinance a
corresponding amount of the outstanding principal of and accrued interest
on the Series A Notes as of December 24, 1992, and such Series G Notes
shall have a maturity not in excess of one (1) year. The Series G Notes
shall bear interest at a floating rate based on LIBO Rate.
u. Article X of the Participation Agreement is hereby further
amended by adding a new Section 10.05 as follows:
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"Section 10.05. Certain Expenses of a Series G Note Refinancing. All
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reasonable expenses related to any refinancing or refunding of the Series G
Notes not constituting Transaction Costs shall be paid by Lessee on an
After-Tax Basis."
v. Section 11.03(d) of the Participation Agreement is hereby
amended by replacing "Exchange" or "Exchange Event", as appropriate: (1) in the
third line from the top and in the second line from the bottom with
"Assumption"; and (2) in the sixth line from the bottom with "Assume".
w. Section 11.04 of the Participation Agreement is hereby
amended by replacing "Exchange" in the heading with "Assume the Notes", and in
the text thereof with "Assumption". Section 11.04 is further amended by deleting
"8(a), or" in the fifth line of the text thereof.
x. Section 12.02 of the Participation Agreement is hereby
amended by inserting the following text at the beginning of each of paragraphs
(d) and (e) of such section:
"unless the Refunded Notes are Medium Term Series B Notes."
y. Section 12.05(a) of the Participation Agreement is hereby
amended (1) by inserting the clause "if prior to the In-Service Date," after
"(i)" and before "the Debt Refinancing Date;" and (2) by deleting "(1)" in the
second line of the last paragraph of such section.
z. Section 12.05(b) of the Participation Agreement is hereby
amended by inserting the following text prior to the final paragraph of such
section:
"In connection with any adjustment to the Factors made by Agent on
behalf of Owner Participant pursuant to Section 12.05(b), 12.05(c) or
12.05(d), a Responsible Officer of the Owner Participant will disclose
the Owner Participant's state and/or local income tax rate assumptions, and
Owner Participant and HCG shall enter into an amendment to the Tax
Indemnification Agreement in the form set forth in Exhibit A to such
agreement."
aa. Section 12.06 of the Participation Agreement is hereby
amended (1) by deleting clause (v) and substituting in lieu thereof the
following:
"(v) any change in the interest rate on the Series G Notes on and
after the Basic Term Commencement Date, and"
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; (2) by inserting the following text at the end of the penultimate paragraph to
such section:
"In the event that the Series G Notes have not been refinanced on or
prior to the Basic Term Commencement Date, upon the request of Lessee, the
Factors shall be adjusted as of the Basic Term Commencement Date to take
into account any adjustments required by clauses (i), (iii), (iv) or (v)
that have not previously been taken into account by any adjustment to the
Factors pursuant to this Section 12.06 and any adjustment that results from
changing the Assumed Interest Rate to reflect the updated estimate of the
interest rate that will become applicable upon the refinancing of the
Series G Notes."
; and (3) by deleting the last sentence of such section in its entirety and
substituting in lieu thereof the following text:
"In making any adjustment to the Factors under this Section 12.06, the Debt
Amortization Schedule shall be allowed to vary, subject to any restrictions
as may be set forth in the Indenture or the Notes, as applicable, and as
directed by HCG."
ab. Section 12.08 of the Participation Agreement is hereby
amended by adding a new paragraph "(c)" as follows:
"(c) In connection with any recalculation of the Factors pursuant to
Section 12.06 resulting from the refinancing of the Series G Notes, to the
extent necessary to satisfy the PV Minimization Requirement and if Lessee
so requests, the EBO Date may be changed, provided that the Owner
Participant's Net Economic Return is maintained in accordance with Section
12.06. Agent shall have the right to consent to any change in the EBO Date
that differs by more than one year, and in no event shall the EBO Date be
later than July 2, 1999."
ac. Section 13.02(a) of the Participation Agreement is hereby
amended by replacing the words "l0 days" in clause (ix) thereof with the words
"one Business Day".
ad. Section 13.03(b) of the Participation Agreement is hereby
amended by replacing the "or" immediately preceding "(iii)" therein with a comma
and inserting at the end of such Section 13.03(b) "or (iv) Bankers Trust
Company."
ae. Section 13.03(c) of the Participation Agreement is hereby
amended in its entirety as follows: "(c) the
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Transferee shall not be a Competitor; provided, however, that this Section
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13.03(c) shall not be applicable to a transfer to Bankers Trust Company pursuant
to Section 13.03."
af. Item (1) of Schedule VI to the Participation Agreement is
hereby amended by adding the name of "General Electric Capital Corporation (but
not including any Affiliate thereof) (as a transferee pursuant to the provisions
of Section 13.02 only)".
ag. Appendix A to the Participation Agreement (Construction;
Definition of Terms) is hereby amended as follows:
(1) On page 5 thereof, the following text is hereby added
immediately after the definition of "Assumed Interest Rate": "'Assumption'
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shall have the meaning set forth in Section 1.1 of the Indenture."
(2) On page 5 thereof, the definition "Assumption Event" is
hereby deleted in its entirety.
(3) On pages 5 and 6 thereof, the definition "Business Day" is
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hereby amended by adding the clause "or Amsterdam, The Netherlands with
respect to the day on which the Series G Notes are funded or any day on
which dealings in Dollar deposits are carried out in the London interbank
market but solely with respect to the determination of a LIBO Rate and
payment dates so long as any Series G Notes are outstanding" after "funds"
and before "," in the last line of such definition.
(4) On page 10 thereof, the definition "EBO Amount" is hereby
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amended by deleting clause (B) thereof in its entirety and substituting in
lieu thereof the following:
"(B) in the event that the EBO Date is not a Rent Payment Date on
which a Scheduled Rent payment designated as an "arrears rent" on Schedule
A to the Lease, as adjusted pursuant to Section 12.05 or 12.06 (and in
accordance with Sections 12.07 and 12.08 to the extent applicable) in each
case of the Participation Agreement, is due, the Rent Differential Amount,
if any (and if such EBO Date is a Rent Payment Date on which a portion of
Scheduled Rent due on such date is designated "arrears rent" and a portion
is not so designated, for the purposes of calculating EBO Amount, the
provisions of Section 19(d) of the Lease shall be taken into account).
Notwithstanding anything to the contrary in the Lease or the Participation
Agreement, the EBO Amount with respect to such Transponder, together with
any other
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Rent, other than Excepted Payments, with respect to such Transponder due on
the EBO Date and payable to Lessor, for any Transponder shall be, under any
circumstances and in any event, not less than the sum sufficient to pay the
aggregate principal amount of the Notes outstanding together with accrued
and unpaid interest thereon with respect to such Transponder."
(5) On page 13 thereof, the following definitions are hereby
deleted in their entirety: "Exchange"; "Exchange Date"; and "Exchange
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Event".
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(6) On page 18 thereof, the definition of "Indemnitee" is
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hereby amended by adding the clause "each Series G Noteholder" after "if
any," and before "and" in the third line of such definition.
(7) On pages 27-28, the definition of "Owner Participant's
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Net Economic Return" is hereby amended by inserting "as of the In-Service
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Date" after "in each case" and before "," on the fifth and sixteenth lines
of page 27.
(8) On page 32 thereof, the definition of "Rent Differential
Amount" is hereby amended by deleting the second parenthetical thereof.
(9) On page 34 thereof, in the first line, "Section
3(b)(ii)" is deleted and "Section 3(b)(ii)(A)" is substituted in lieu
thereof.
(10) On page 35 thereof, the following definition is hereby
added:
"'Series G Closing Date' means the date which the Series G Notes are
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issued under the Indenture."
(11) On page 36, the definition of "Stipulated Loss Value"
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is hereby amended by deleting "Section 8(d)" and substituting "Section
12(e)" in lieu thereof in the last line of the parenthetical clause of such
definition.
(12) On page 39, in the fourth line, "and" is hereby
inserted after '"arrears rent"' and before "a portion".
(13) On page 40 thereof, the definition of "Transaction
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Costs" is hereby amended by (1) deleting "on or
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prior to June 30," in the thirteenth line thereof and substituting in lieu
thereof "or Series G Notes on or prior to July 2,"; and (2) by deleting
"and (ix)" after "Owner Participants" and before "and" in the tenth line
from the bottom of such definition and substituting in lieu thereof the
following: "; (ix) $25,000 payable to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and $12,500 payable
to Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ (to be payable pro rata per Transponder,
in respect of this Participation Agreement and the Other Participation
Agreements) for legal services rendered in connection with the refinancing
of Series A Notes with the Series G Notes and (x)".
(14) Schedule A to Appendix A is hereby amended by adding
"Haight, Gardner, Poor & ▇▇▇▇▇▇" at the end of such schedule.
ah. Section 3(c)(ii) of Exhibit D to the Participation Agreement
(Form of Lease) is hereby amended (i) by deleting "and excluding, in any event,
the amount paid by Lessee referred to in clause (B) of Section 3(b)(i)" in the
eighth line thereof, (2) inserting "an amount equal to the difference between"
after "Date" and before "any" in the tenth line thereof and (3) by inserting the
following text after "Lessor" and before the period in the eleventh line
thereof:
"and any amount paid by Lessee referred to in clause (B) of Section
3(b)(i) that has not previously been or is not simultaneously being applied
against any portion of the Lessor Interim Amount not paid by Lessor"
ai. Section 3(h) of Exhibit D to the Participation Agreement
(Form of Lease) is hereby amended by inserting "may" in lieu of "shall" in the
first line thereof.
aj. Section 6(c) of Exhibit D to the Participation Agreement
(Form of Lease) is hereby amended by adding the following paragraph at the end
of such section:
"During the Lease Term and while Series G Notes are outstanding, if at
any time both the ▇▇▇▇▇'▇ Credit Rating and Standard & Poor's Credit Rating
of Guarantor fall below Investment Grade, then within thirty (30) days
following the date Lessee shall have Actual Knowledge that the foregoing
condition exists, Lessee shall execute and deliver to Lessor an assignment
agreement (in form and substance reasonably acceptable to Lessor) assigning
to Lessor as additional security for all of Lessee's payment obligations
hereunder its rights under all Use Agreements (other than any
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Occasional Use Service Contract) then in existence and thereafter arising
(the "Assignment Agreement"), except that Lessee shall not be required to
obtain a User's acknowledgement or consent nor to notify (and in connection
therewith, Lessor hereby agrees not to notify or otherwise contact) any
User of such assignment unless an Event of Default shall have occurred and
be continuing. The Assignment Agreement shall provide that Lessee shall
remain liable to User to perform its obligations under such Use Agreement
and Lessor shall have no obligations thereunder (other than obligations
expressly assumed by Lessor). The foregoing notwithstanding, if Lessee
shall execute and deliver the Assignment Agreement and subsequently the
condition set forth above requiring such assignment shall cease to exist,
then, effective on the date such condition shall cease to exist, the
Assignment Agreement shall automatically terminate by its terms and such
Assignment Agreement shall be of no further force or effect."
ak. Section 8(c) of Exhibit D to the Participation Agreement
(Form of Lease) is hereby amended by adding "and" in lieu of "of" in the sixth
line thereof.
al. Section 19 of Exhibit D to the Participation Agreement (Form
of Lease) is hereby amended (1) by inserting "amounts of" after "all" and before
"Interim Rent" in the second line of Section 19(b)(iii) and "with respect to
such Transponders" after "Base Rent" and before "due" in the third line of such
section, (2) at page 37, by inserting "the sum of" after "due," and before "any"
in second line thereof, by inserting "with respect to such Transponders" after
"Scheduled Rent" and before "designated" in the second line thereof, by
inserting "and" after "as applicable," and before "due" in the fourth line
thereof, by deleting "with respect to such Transponders" in the fourth and fifth
lines thereof, by inserting "with respect to such date" after "Amount" and
before "," in the fifth line thereof and by inserting "with respect to such
Transponders" after "if any" and before "due" in the seventh line thereof, and
(3) by deleting the text of Section 19(c) in its entirety and substituting in
lieu thereof the following:
"Assumption of Notes. Notwithstanding the provisions of Sections 19(a) and
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(b) and subject to compliance with Section 2.13 of the Indenture, in
connection with a purchase by Lessee of the Transponders pursuant to any of
Sections 19(a)(ii) through 19(a)(vi), as the case may be, at Lessee's
option, Lessee may assume the Notes (or the portion thereof associated with
such purchased Transponder, as applicable), pursuant to Sections 5.05 and
11.04 of the
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Participation Agreement and the obligation of Lessee to pay the purchase
price pursuant to the applicable clause of Section 19(a) shall be satisfied
by such assumption of the Notes to the extent of the principal amount of
the Notes so assumed (after, in the event that the date of purchase is a
Rent Payment Date on which a Scheduled Rent payment designated as an
"arrears rent" on Schedule A hereto, as adjusted pursuant to Section 12.05
or 12.06, subject to Sections 12.07 and 12.08, of the Participation
Agreement, as applicable, is due, payment of the sum of any Scheduled Rent
designated as an "arrears rent" on Schedule A, as adjusted pursuant to
Section 12.06 of the Participation Agreement, on the Rent Payment Date on
which such purchase is consummated with respect to the applicable
Transponder(s) and the Rent Differential Amount, if any). Once Lessee has
elected to exercise its option to assume the Notes by giving notice of such
election in its notice pursuant to Section 19(b) hereof, such Notes shall
be mandatorily assumed by Lessee pursuant to the Indenture."
y. The face page and page 1 of Exhibit D to the Participation
Agreement (Form of Lease) are hereby amended by inserting after "LEASE
AGREEMENT" the words "[TRUST 1]".
2. Provisions Relating to General Electric Capital Corporation.
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(a) Clause (vi) of Section 13.02(a) of the Participation Agreement
shall not be applicable to any transfer of the stock of the Owner Participant to
General Electric Capital Corporation pursuant to such Section;
(b) for purposes of clause (xii) of Section 13.02(a) of the
Participation Agreement, HCG hereby consents to General Electric Capital
Corporation's being the Initial Transferee;
(c) the provisions of Section 19(a)(iii) of the Lease shall not be
applicable in connection with General Electric Capital Corporation's becoming
the Owner Participant or acquiring the shares of stock of the Owner Participant
as a transferee pursuant to the provisions of Section 13.02 of the Participation
Agreement only; provided, however, that such Section 19(a)(iii) shall apply with
--------- -------
respect to any subsequent transfer by General Electric Capital Corporation; and
(d) the effectiveness of paragraphs (a), (b) and (c) of this Section 2
is conditioned upon General Electric Capital Corporation's executing a
confidentiality agreement reasonably
14
EXECUTION
satisfactory to HCG (which shall be evidenced by HCG's execution thereof).
3. [INTENTIONALLY OMITTED].
4. Amendment to Purchase Agreement. By its execution and delivery
-------------------------------
of this First Amendment, each of the parties hereto hereby acknowledges and
agrees that (i) the In-Service Date shall not occur before December 31, 1992,
(ii) Section 2.02(i) of the Purchase Agreement is hereby amended by deleting
"May 15, 1993" from the sixth line thereof and inserting in lieu thereof
"December 31, 1992 (or such later date not later than May 15, 1993 as the
holders of the Series G Notes may consent to)", (iii) Section 2.04(i) of the
Purchase Agreement is hereby amended by deleting "May 15, 1993" from the seventh
line thereof and inserting in lieu thereof "December 31, 1992 (or such later
date not later than May 15, 1993 as the holders of the Series G Notes may
consent to)" and (iv) Section 2.04(ii) is hereby amended by deleting "June 14,
1993" from the fifth line thereof and inserting in lieu thereof the words
"January 25, 1993 (or such later date not later than June 14, 1993 as the
holders of the Series G Notes may consent to)".
5. Other Terms of Participation Agreement and Purchase Agreement.
-------------------------------------------------------------
Except insofar as herein otherwise expressly provided, all the provisions, terms
and conditions of the Participation Agreement and Purchase Agreement are in all
respects ratified and confirmed and shall remain in full force and effect.
6. Further Assurances. The parties hereto will execute and deliver
------------------
such further instruments and do such further acts as may reasonably be necessary
or proper to carry out more effectively the purposes of this First Amendment.
7. Counterparts. This First Amendment may be executed in any number
------------
of counterparts, each of which shall be deemed an original for all purposes, but
such counterparts shall together constitute but one and the same instrument.
8. Definitions. Except as otherwise defined herein, capitalized
-----------
terms used herein, for all purposes hereof, shall have the respective meanings
assigned thereto in Appendix A to the Participation Agreement, as amended
pursuant to this First Amendment.
15
EXECUTION
9. Governing Law. This First Amendment has been delivered in, and
-------------
shall in all respects be governed by, and construed in accordance with, the laws
of the State of New York applicable to agreements made and to be performed
entirely within such State, without giving effect to the conflicts of laws
provisions thereof.
16
EXECUTION
IN WITNESS WHEREOF, the parties have executed this First Amendment
through their duly authorized representatives as of the day and year first above
written.
ACCEPTED AND AGREED TO:
▇▇▇▇▇▇ COMMUNICATIONS GALAXY, INC. ▇▇▇▇▇▇ COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------- --------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------ ------------------------------
Title: Vice President and Secretary Title: Vice President and Secretary
----------------------------- -----------------------------
ORION One, INC. WILMINGTON TRUST COMPANY
By: By:
-------------------------------- --------------------------------
Name: Name:
------------------------------ ------------------------------
Title: Title:
----------------------------- -----------------------------
STATE STREET BANK AND TRUST COMPANY BT SECURITIES CORPORATION
OF CONNECTICUT, NATIONAL ASSOCIATION
By: By:
-------------------------------- --------------------------------
Name: Name:
------------------------------ ------------------------------
Title: Title:
----------------------------- -----------------------------
17
EXECUTION
IN WITNESS WHEREOF, the parties have executed this First Amendment
through their duly authorized representatives as of the day and year first above
written.
ACCEPTED AND AGREED TO:
▇▇▇▇▇▇ COMMUNICATIONS GALAXY, INC. ▇▇▇▇▇▇ COMMUNICATIONS, INC.
By: By:
-------------------------------- --------------------------------
Name: Name:
------------------------------ ------------------------------
Title: Title:
----------------------------- -----------------------------
ORION One, INC. WILMINGTON TRUST COMPANY
By: By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------- --------------------------------
Name: Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ ------------------------------
Title: Title: Assistant Vice President
----------------------------- -----------------------------
STATE STREET BANK AND TRUST COMPANY BT SECURITIES CORPORATION
OF CONNECTICUT NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By:
-------------------------------- --------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name:
------------------------------ ------------------------------
Title: Assistant Secretary Title:
----------------------------- -----------------------------
18
EXECUTION
IN WITNESS WHEREOF, the parties have executed this First Amendment
through their duly authorized representatives as of the day and year first above
written.
ACCEPTED AND AGREED TO:
▇▇▇▇▇▇ COMMUNICATIONS GALAXY, INC. ▇▇▇▇▇▇ COMMUNICATIONS, INC.
By: By:
-------------------------------- --------------------------------
Name: Name:
------------------------------ ------------------------------
Title: Title:
----------------------------- -----------------------------
ORION One, INC. WILMINGTON TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By:
-------------------------------- --------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Name:
------------------------------ ------------------------------
Title: Vice President Title:
----------------------------- -----------------------------
STATE STREET BANK AND TRUST COMPANY BT SECURITIES CORPORATION
OF CONNECTICUT NATIONAL ASSOCIATION
By: By: /s/ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- --------------------------------
Name: Name: ▇. ▇▇▇▇▇ Bissell
------------------------------ ------------------------------
Title: Title: Managing Director
----------------------------- -----------------------------
19
