Exhibit 4.6.3
AMENDMENT OF
LIMITED PARTNERSHIP AGREEMENT OF
PRIMESTAR PARTNERS L.P.
THIS AMENDMENT OF LIMITED PARTNERSHIP AGREEMENT OF PRIMESTAR PARTNERS
L.P. (formerly K Prime Partners, L.P.), a limited partnership organized under
the laws of Delaware pursuant to the Limited Partnership Agreement dated
February 8, 1990, as previously amended (the "Agreement") and having its
principal place of business at Bala Cynwyd, Pennsylvania (the "Partnership"), is
made and entered into effective as of October 18, 1996, by all of the
Representatives on the Partners Committee (as those terms are defined in the
Agreement).
W I T N E S S E T H:
WHEREAS, the Partnership and GE American Communications, Inc., a
corporation organized under the laws of Delaware having its principal place of
business at Princeton, New Jersey ("GE"), are entering into an Amended and
Restated Memorandum of Agreement (the "MOA") of substantially even date herewith
and, as provided therein, propose to enter into a Service Agreement, pursuant to
which MOA and Service Agreement GE would provide, and the Partnership would
take, transponder service on the communications satellite denominated as GE-2
and potentially other GE satellites which the Partnership intends to use to
provide services to its subscribers;
WHEREAS, GE and the Partnership are entering into an Addendum
Regarding Letters of Credit of substantially even date herewith providing for
the issuance for the benefit of GE of letters of credit in connection with the
obligations of the Partnership under the MOA;
WHEREAS, the partners of the Partnership and GE also propose to enter
into a 1996 Ancillary Agreement in connection with the MOA and such Addendum;
and
WHEREAS, the parties hereto, pursuant to Section 13.11 of the
Agreement, wish to amend the Agreement as provided herein;
NOW, THEREFORE, in consideration of the foregoing and the covenants
and agreements hereinafter set forth, the undersigned, constituting all of the
Representatives, unanimously agree as follows:
1. Section 7.05, Actions of Partners Committee
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Requiring Super-majority Vote, is hereby amended as of the date hereof by
deleting the word "or" at the end of subclause (r), by replacing the period at
the end of subclause (s) with a semicolon, and by adding at the end thereof the
following:
(t) exercise the End-of-Life Option (as defined in the MOA and
Service Agreement);
(u) otherwise take any action as a result of which the amount of
letters of credit required to be issued at any time for the
benefit of GE American Communications, Inc. ("GE") in
connection with the obligations of the Partnership under the
MOA or Service Agreement shall exceed $100,000,000;
(v) effect any amendment or modification of the Addendum which
increases, or has the same effect as increasing, any Letter
of Credit Amount specified in or determined pursuant to
Schedule 2 (Letter of Credit Amounts) to the Addendum or
effect any other material modification or amendment of the
Addendum;
(w) provide, or cause to be provided, one or more Optional
Letters of Credit (as defined in Article 3B of the
Addendum); or
(x) enter into any Reimbursement Agreement or pledge, grant a
security interest in or otherwise create a lien on any
material assets of the Partnership to secure
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the payment of reimbursement obligations of the Partnership
under a Reimbursement Agreement or effect any material
modification or amendment of any Reimbursement Agreement.
As used in the preceding sentence:
"MOA" means The Amended and Restated Memorandum of Agreement by and
between the Partnership and GE pursuant to which there is offered to
the Partnership transponder service on the communication satellite
denominated as GE-2 and potentially other satellites of GE, as the
same may be amended;
"Service Agreement" means the Service Agreement which, pursuant to the
MOA, the Partnership and GE propose to enter into to incorporate the
terms of the MOA, as such Service Agreement may be amended;
"Addendum" means the Addendum Regarding Letters of Credit of
substantially even date with the MOA by and between the Partnership
and GE, as the same may be amended, providing for the issuance for the
benefit of GE of letters of credit in connection with the MOA and
Service Agreement; and
"Reimbursement Agreement" means an agreement pursuant to which the
Partnership is obligated to reimburse the issuer of a letter of
credit, issued for the account of the Partnership and for the benefit
of GE in connection with the Addendum, for draws on such letter of
credit.
2. The following new Section 6.07(n) is added to the Agreement as of
the date hereof:
6.07(n) Curative Allocations. Notwithstanding any other
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provision of this Section 6.07, the Partners will be allocated items
of income, gain, loss and deduction, to the extent possible, so that
the net amount of items of income, gain, loss and deduction allocated
to each Partner pursuant to the Special Allocation Rules of Section
6.07 shall be equal to the net amount of such items that would have
been allocated to each such Partner had this Section 6.07 not been
applicable. Allocations pursuant to this Section 6.07(n) shall only
be made with respect to Special Allocations to the extent the Partners
Committee, by Majority Vote, reasonably determines that such Special
Allocations will otherwise be inconsistent with the economic agreement
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among the Members. The Partners Committee, by Majority Vote, shall
have reasonable discretion, with respect to each taxable period, to
(1) apply the provisions of Section 6.07(n) in whatever order is most
likely to minimize the economic distortions that might otherwise
result from this Section 6.07 and (2) divide all allocations pursuant
to Section 6.07(n) among the Partners in a manner that is likely to
minimize such economic distortions. Allocations pursuant to this
Section 6.07(n) shall only be made to the extent that they are
consistent with Code Section 704(b) and the Regulations promulgated
pursuant thereto.
3. The following new Section 5.03(e) is added to the Agreement as of
the date hereof:
5.03(e)(i) If a Partner (a "Defaulting Partner") fails to
provide or cause to be provided (at the time such increased amount is
first required) letters of credit for the account of such Partner (or
one or more of its Affiliates) in the increased amount (i.e., in
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excess of the amount required in the absence of such transaction) of
such letters of credit required pursuant to a transaction described in
subclauses (t), (u), (v), (w) or (x) of Section 7.05 of this Agreement
(an "Approved Transaction"), such failure shall be treated for
purposes of this Section 5.03(e)(i) as a failure by the Defaulting
Partner to make an Additional Capital Contribution and, to the extent
so provided in Section 5.03(a) and Section 5.03(b),
(A) the Percentage Interest of the Defaulting Partner shall be
reduced as of the time of such failure to provide the letters of
credit, and the reduction shall be allocated to increase the
Percentage Interests of the other Partners that are not
Defaulting Partners, Non-Paying Partners or Sanctioned Partners,
(B) the Defaulting Partner shall lose its entitlement to appoint a
Representative to the Partners Committee to the extent such
Defaulting Partner's Partnership Interest falls below five
percent (5%) and its entitlement to participate in subsequent
calls for Additional Capital Contributions (other than to provide
or cause to be provided subsequent letters of credit and
subsequent increases in letters of credit required pursuant to an
Approved Transaction), and
(C) such Defaulting Partner shall be otherwise treated
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as a Non-Paying Partner whose Representative did not vote against
requiring the Partners to make the Additional Capital
Contribution.
Solely for purpose of determining the amount of the reduction in a
Defaulting Partner's Percentage Interest under this Section
5.03(e)(i), the provision of a letter of credit pursuant to an
Approved Transaction and any reduction by GE of the Required LC Amount
(as defined in the Addendum) described in the following sentence, each
shall be treated as an Additional Capital Contribution by GE Americom,
to the extent of any such reduction, and by the Partner providing a
letter of credit, to the extent the provision of such letter of credit
increases the face amount of letters of credit provided by or on
behalf of all Partners in excess of the face amount all Partners would
have been required to provide in the absence of such Approved
Transactions, as appropriate. The decrease in Percentage Interest of
the Defaulting Partner described in the immediately preceding sentence
shall be allocated among the Partners, other than GE Americom, that
provide letters of credit in lieu of an increase in the Defaulting
Partner's letter of credit, and GE Americom, if GE elects to reduce
the Required LC Amount, as follows:
(x) GE's reduction in the Required LC Amount will be treated
as the provision of a letter of credit by GE Americom in lieu of
the increase in the Defaulting Partner's letter of credit to the
extent such reduction by GE reduces the amount of the increase in
the face amount of a Defaulting Partner's letter of credit; and
(y) the Percentage Interest of each of the Partners
(including GE Americom if the preceding clause (x) is applicable)
that provide letters of credit in lieu of an increase in the
Defaulting Partner's letter of credit shall be increased by an
amount equal to (i) the total reduction in the Defaulting
Partner's Percentage Interest, multiplied by (ii) the result of
dividing (A) such Partner's increase in letter of credit in lieu
of any increase in the letter of credit of a Defaulting Partner
by (B) the total of such increases for all such Partners.
In addition, the Defaulting Partner shall be required to transfer a
portion of its ownership interest in the Partnership to the other
Partners in proportion to their relative Percentage Interests, such
that the Capital
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Accounts of the Partners following such transfer, as a whole,
appropriately reflect the reduction in Percentage Interests required
by this Section 5.03(e)(i). The method of accomplishing a transfer
described in the preceding sentence (i) shall be determined by the
Partners Committee, by Majority Vote, (ii) shall be effective as of
the time of the failure to provide such increased amount of letters of
credit by the Defaulting Partner, and (iii) shall be accomplished
without any further action of the Defaulting Partner or its
Affiliates.
(ii) If, with respect to an expiring Partner Primary LC or
Secondary LC, issued for the account of a Partner (or an Affiliate of
such Partner),
(A) such Partner (a "Non-Replacing Partner") fails to cause
the issuance of an increased, additional or replacement Partner
Primary LC or Secondary LC for such expiring letter of credit
(except in the case of, and to the extent of, a failure treated
in Section 5.03(e)(i) as a failure to make an Additional Capital
Contribution) in the manner and to the extent necessary for the
Partnership to be in compliance with Article 2A and Article 2B of
the Addendum or, in the case of a Secondary LC, the terms of a
Reimbursement Agreement (as each such term is defined in Section
7.05 of this Agreement) and
(B) such Partner Primary LC or Secondary LC expires without
being drawn upon in full,
then such failure shall be treated for purposes of this Section
5.03(e)(ii) as a failure by the Non-Replacing Partner to make an
Additional Capital Contribution and, to the extent so provided in
Section 5.03(a) and Section 5.03(b),
(x) the Percentage Interest of the Non-Replacing Partner
shall be reduced as of the time of such failure to provide the
letter of credit, and the reduction shall be allocated to
increase the Percentage Interests of the other Partners that are
not Non-Replacing Partners, Non-Paying Partners or Sanctioned
Partners,
(y) the Non-Replacing Partner shall lose its entitlement to
appoint a Representative to the Partners Committee to the extent
such Non-Replacing Partner's Partnership Interest falls below
five
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percent (5%) and its entitlement to participate in subsequent
calls for Additional Capital Contributions (other than to provide
or cause to be provided subsequent letters of credit and
subsequent increases in letters of credit required pursuant to an
Approved Transaction), and
(z) such Non-Replacing Partner shall be otherwise treated
as a Non-Paying Partner whose Representative did not vote against
requiring the Partners to make the Additional Capital
Contribution.
Solely for purpose of determining the amount of the reduction in a
Non-Replacing Partner's Percentage Interest under this Section
5.03(e)(ii), the provision of a letter of credit in lieu of the letter
of credit of the Non-Replacing Partner which is the subject of such
failure and any reduction by GE of the Required LC Amount (as defined
in the Addendum) described in the following sentence, each shall be
treated as an Additional Capital Contribution by GE Americom, to the
extent of any such reduction, and by the Partner providing a letter of
credit, to the extent such letter of credit increases the face amount
of letters of credit provided by or on behalf of each Partner in
excess of the face amount such Partner would have been required to
provide in the absence of such failure, as appropriate. The decrease
in Percentage Interest of the Non-Replacing Partner described in the
immediately preceding sentence shall be allocated among the Partners,
other than GE Americom, that provide letters of credit in lieu of the
Non-Replacing Partner's letter of credit, and GE Americom, if GE
elects to reduce the Required LC Amount, as follows:
(a) GE's reduction in the Required LC Amount will be
treated as the provision of a letter of credit by GE Americom in
lieu of the Non-Replacing Partner's letter of credit to the
extent such reduction by GE reduces the Required LC Amount by
some or all of the face amount of a Non-Replacing Partner's
letter of credit; and
(b) the Percentage Interest of each of the Partners
(including GE Americom if the preceding clause (a) is applicable)
that provide letters of credit in lieu of the Non-Replacing
Partner's letter of credit shall be increased by an amount equal
to (i) the total reduction in the Non-Replacing Partner's
Percentage Interest,
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multiplied by (ii) the result of dividing (A) such Partner's
increase in letter of credit in lieu of the letter of credit of a
Non-Replacing Partner by (B) the total of such increases for all
such Partners.
In addition, the Non-Replacing Partner shall be required to transfer a
portion of its ownership interest in the Partnership to the other
Partners, in proportion to their relative Percentage Interests, such
that the Capital Accounts of the Partners following such transfer, as
a whole, appropriately reflect the reduction in Percentage Interests
required by this Section 5.03(e)(ii). The method of accomplishing a
transfer described in the preceding sentence (i) shall be determined
by the Partners Committee, by Majority Vote, (ii) shall be effective
as of the time of such failure to provide such letters of credit by
the Non-Replacing Partner, and (iii) shall be accomplished without any
further action of the Non-Replacing Partner or its Affiliates.
As used in this Section 5.03(e)(ii):
"Partner Primary LC" means a letter of credit issued for the account
of a Partner (or an Affiliate of such Partner) and for the benefit of
GE in connection with the Addendum (as defined in Section 7.05 of this
Agreement); and
"Secondary LC" means a letter of credit issued for the account of a
Partner (or an Affiliate of such Partner) and for the benefit of the
issuing bank pursuant to, and as security for the payment to such
issuing bank of the reimbursement obligations of the Partnership
under, a Reimbursement Agreement (as defined in Section 7.05 of this
Agreement).
(iii) In the event that there is a Defaulting Partner as
described in Section 5.03(e)(i) or a Non-Replacing Partner as
described Section 5.03(e)(ii), the other Partners that elect to
replace or provide a letter of credit, or to reduce the Required LC
Amount, in lieu of a Defaulting Partner or a Non-Replacing Partner as
described in Section 5.03(e)(i) or Section 5.03(e)(ii), shall allocate
the amount of the letter of credit provision, replacement or reduction
among them as they agree, or if they fail to agree, then in proportion
to their respective Percentage Interests.
4. Each reference in the Agreement to a section or
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provision of the Agreement shall be deemed to be a reference to the Agreement as
amended by this Amendment.
5. This Amendment shall be a part of the Agreement and shall be
governed by the provisions of the Agreement generally applicable to the
provisions thereof, including, without limitation, the provision of the
Agreement pursuant to which the rights and obligations of the parties hereto,
and any claims or disputes relating thereto, shall be governed by, and construed
in accordance with the laws of the State of Delaware (but not including the
choice of law rules thereof).
6. To facilitate execution, this Amendment may be executed in as
many counterparts as may be required; and it shall not be necessary that the
signatures of, or on behalf of, each party, or that the signatures of the
persons required to bind any party, appear on one or more of the counterparts.
All counterparts collectively shall constitute a single agreement. It shall not
be necessary in making proof of this Amendment to produce or account for more
than a number of counterparts containing the respective signatures of, or on
behalf of, all the parties hereto.
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment,
or have caused this Amendment to be duly executed on their behalf, as of the day
and year first herein above set forth.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a
Representative, on behalf of
Comcast DBS, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇, a Representative,
on behalf of Continental
Satellite Company, Inc.
▇▇▇▇ ▇▇▇▇▇, a Representative,
on behalf of Cox Satellite,
Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇, a Representative,
on behalf of G.E. Americom
Services, Inc.
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a Representative,
on behalf of New Vision Satellite
▇▇▇▇ ▇▇▇▇▇▇, a Representative,
on behalf of TCI K-1, Inc.
▇▇▇▇▇▇ ▇'▇▇▇▇▇, a Representative,
on behalf of TW Programming Co.
▇▇▇▇ ▇▇▇▇▇▇, a Representative,
on behalf of United Artists
K-1 Investments, Inc.
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