[EXECUTION COPY]
EXHIBIT 10.29
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT, dated as of February 19,
1997 (this "Amendatory Agreement"), is among TCI SATELLITE ENTERTAINMENT, INC.,
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a Delaware corporation (the "Borrower"), certain financial institutions
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signatories hereto (the "Lenders") and THE BANK OF NOVA SCOTIA ("Scotiabank") as
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administrative agent (the "Administrative Agent") for the Lenders.
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W I T N E S S E T H:
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WHEREAS, the Borrower, the Lenders, Nationsbank of Texas, N.A.
("NationsBank"), as Syndication Agent, Credit Lyonnais New York Branch ("Credit
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Lyonnais"), as Documentation Agent (Credit Lyonnais, NationsBank and Scotiabank
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are, collectively, the Arranging Agents), and the Administrative Agent (and
together with the Arranging Agents, the Syndication Agent and the Documentation
Agent, the Agents) are parties to a Credit Agreement, dated as of December 31,
1996 (as amended or otherwise modified prior to the date hereof, the "Existing
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Credit Agreement"); and
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WHEREAS, the parties hereto have agreed, subject to the conditions and
terms hereinafter set forth, to amend the Existing Credit Agreement in certain
respects as herein provided (the Existing Credit Agreement, as so amended by
this Amendatory Agreement, being referred to as the "Credit Agreement");
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NOW, THEREFORE, in consideration of the agreements herein contained, the
parties hereto agree as follows:
PART I
DEFINITIONS
SUBPART 1.1 Certain Definitions. The following terms (whether or not
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underscored) when used in this Amendatory Agreement shall have the following
meanings (such meanings to be equally applicable to the singular and plural form
thereof):
"Administrative Agent" is defined in the preamble.
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"Amendatory Agreement" is defined in the preamble.
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"Borrower" is defined in the preamble.
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"Arranging Agents" is defined in the first recital.
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"Credit Agreement" is defined in the second recital.
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"Credit Lyonnais" is defined in the first recital.
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"Existing Credit Agreement" is defined in the first recital.
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"First Amendment Effective Date" is defined in Subpart 3.1.
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"Lenders" is defined in the preamble.
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"NationsBank" is defined in the first recital.
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"Scotiabank" is defined in the preamble.
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SUBPART 1.2 Other Definitions. Terms for which meanings are provided in the
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Existing Credit Agreement are, unless otherwise defined herein or the context
otherwise requires, used in this Amendatory Agreement with such meanings.
PART II
AMENDMENTS TO THE
EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the First Amendment
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Part II; except as so amended, the Existing Credit Agreement shall
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continue in full force and effect.
SUBPART 2.1 Amendments to Article I. Article I of the Existing Credit
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Agreement is hereby amended in accordance with Subparts 2.1.1 through 2.1.5.
SUBPART 2.1.1. Section 1.1 of the Existing Credit Agreement is hereby
amended by inserting the following definitions in such Section in the
appropriate alphabetical sequence:
"Borrower Satellite" means either of the two high power direct broadcast
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satellites which Tempo has agreed to purchase from Loral pursuant to the
Satellite Construction Agreement.
"First Amendment" means the First Amendment, dated as of February 14, 1997,
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to this Agreement among the Borrower, the Lenders party thereto and the
Agents.
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"First Amendment Effective Date" means the First Amendment Effective Date as
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defined in Subpart 3.1 of the First Amendment.
"GE-2 Agreement" means the Amended and Restated Memorandum of Agreement,
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effective as of October 18, 1996, between Primestar and GE American
Communications, Inc. and, upon the execution of the Service Agreement (as
defined in the GE-2 Agreement) between Primestar and GE American Communications,
Inc. contemplated therein, shall include such Service Agreement.
"Loral" means Space Systems/Loral, Inc., a New York corporation.
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"Partnership Agreement" means the Limited Partnership Agreement of Primestar
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(then known as K Prime Partners, L.P.), dated as of February 8, 1990, as
amended.
"Partnership Credit Agreement" means the bank credit facility obtained by
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Primestar to finance advances to Tempo for payments due in respect of the
Borrower Satellite under the Satellite Construction Agreement, and supported by
letters of credit arranged for by Affiliates of the partners of Primestar.
"Permitted Holder" shall have the meaning set forth in the Senior
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Subordinated Notes Indenture and the Senior Subordinated Discount Notes
Indenture.
"Primestar Holdco" means TSAT Partners Holding, Inc., a Delaware corporation
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to be formed in connection with the Primestar Holdco Guaranty.
"Reorganization Agreement" means the agreement entered into on December 4,
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1996 by TCI, TCIC and a number of other TCI subsidiaries, including the Borrower
and its Subsidiaries.
"Satellite Construction Agreement" means the fixed price satellite
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construction agreement between Loral and Tempo dated as of February 22, 1990.
"Senior Management" means the chief executive officer, chief financial
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officer, chief operating officer, treasurer, controller and corporate counsel of
the Borrower, or any of them, as in effect from time to time.
"Senior Subordinated Discount Notes" means the $275,000,000 aggregate
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principal amount at maturity of 12 1/4% senior subordinated discount notes due
2007 of the
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Borrower issued under the Senior Subordinated Discount Notes
Indenture.
"Senior Subordinated Discount Notes Indenture" means the
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Indenture dated as of February 20,1997, by and between The Bank of New
York, as trustee, and the Borrower as Issuer.
"Senior Subordinated Notes" means the $200,000,000 original
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principal amount of 10 7/8% senior subordinated notes due 2007 of the
Borrower issued under the Senior Subordinated Notes Indenture.
"Senior Subordinated Notes Indenture" means the Indenture dated
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as of February 20,1997, by and between The Bank of New York, as trustee,
and the Borrower as Issuer.
"Share Purchase Agreement" means the share purchase agreement
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entered into by TCI and the Borrower on December 4, 1996.
"Tag-Along Agreement" means the agreement dated as of February
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8, 1990, originally entered into by and among TCIC, TCI Development
Corporation and the other signatories thereto.
"Tempo Letter Agreements" means the two letter agreements dated
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as of July 1993 entered into by Tempo and Primestar in connection with the
Tempo Option and certain related matters and any refinancings thereof.
"Tempo Option" means Primestar's right and option, granted by
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Tempo under the option agreement entered into by Tempo and Primestar in
February 1991 to purchase or lease 100% of the capacity of a DBS system to
be built, launched, and operated by Tempo.
"Trade Name and Service ▇▇▇▇ License Agreement" means the trade
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name and service ▇▇▇▇ license agreement between the Borrower and TCI dated
December 4, 1996.
SUBPART 2.1.2. Section 1.1 of the Existing Credit Agreement is further
amended by amending the definition of "Affiliate" by adding the following
sentence to the end thereof:
"Primestar and TCI shall be deemed to be Affiliates of the Borrower."
SUBPART 2.1.3 Section 1.1 of the Existing Credit Agreement is further
amended by amending the definition of "Change in Control" by (a) replacing the
"." at the end of clause (b)
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thereof with "; or" and adding the following new clause (c) to
the end thereof to read as follows:
"(c) during any consecutive two-year period calculated in accordance with
GAAP, individuals who at the beginning of such period constituted the board
of directors of the Borrower (together with any new directors whose
election by such board of directors or whose nomination for election by the
stockholders of the Borrower was approved by a vote of at least a majority
of the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason (other than by action of the
Permitted Holders) to constitute a majority of the board of directors of
the Borrower then in office."
SUBPART 2.1.4. Section 1.1 of the Existing Credit Agreement is further
amended by amending the definitions of "GE-2 Satellite Event", "High Power
Satellite Transmission Business", "Net Disposition Proceeds", "Subordinated
Debt", "TCIC Credit Agreement", "Total Debt Per Subscriber" and "Unrestricted
Subsidiary" in their entirety to read as follows:
"GE-2 Satellite Event" shall mean the occurrence of the
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following two events: (i) Primestar shall have received notice from GE
American Communications, Inc. pursuant to the GE-2 Agreement that the
GE-2 satellite has been successfully launched into geosynchronous orbit
at 85 degrees ▇.▇., including certification from the builder of the GE-2
satellite (or such equivalent) that at least 15 transponders thereon are
"commercially operational" (as defined in the GE-2 Agreement) for use at
medium power in the Ku-band, with an expected life of at least 8 1/2
years and (ii) Primestar shall be entitled under the GE-2 Agreement to
"nonpreemptible service" (as defined in the GE-2 Agreement) on at least
14 of such transponders.
"High Power Satellite Transmission Business" means the business
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of the acquisition, transmission and sale of programming in the high
power direct broadcast satellite business utilizing broadcast service
operating in the Ku-band (including any provision of such services to
cable operators or other media providers) which may utilize all or part
of satellites owned or leased by Primestar or a Subsidiary and all other
activities relating thereto or arising therefrom other than the
construction, sale or financing of broadcast satellites.
"Net Disposition Proceeds" means, with respect to a Permitted
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Disposition or any other disposition of the assets of the Borrower or
any of its Subsidiaries, the excess of
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(a) the gross cash proceeds received by the Borrower or any of
its Subsidiaries from any Permitted Disposition (including the receipt
of (i) proceeds paid on account of the loss of or damage to any
property or asset and awards of compensation for any asset taken by
condemnation, eminent domain or similar proceedings and (ii) damages
or other amounts due under the Satellite Construction Agreement
(including the refund of the full purchase price of any Borrower
Satellite which has not been delivered pursuant to the terms thereof))
and any cash payments received in respect of promissory notes or other
non-cash consideration delivered to the Borrower or such Subsidiary in
respect of any Permitted Disposition or other disposition,
less
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(b) the sum of
(i) all reasonable and customary fees and expenses with
respect to legal, investment banking, brokerage and accounting
and other professional fees, sales commissions and disbursements
and all other reasonable fees, expenses and charges, in each
case actually incurred in connection with such Permitted
Disposition other than such amounts which have been paid to
Affiliates of the Borrower in violation of Section 7.2.13,
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(ii) all taxes and other governmental costs and expenses
actually paid or estimated by the Borrower (in good faith) to be
payable in cash in connection with such Permitted Disposition;
provided, however, that if, after the payment of all taxes with
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respect to such Permitted Disposition, the amount of estimated
taxes, if any, exceeded the tax amount actually paid in cash in
respect of such Permitted Disposition, the Commitment Amount
shall be automatically reduced by the aggregate amount of such
excess, pursuant to clause (b) of Section 2.2.2,
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(iii) payments made by the Borrower or any of its
Subsidiaries to retire Indebtedness secured by a Lien on the
assets subject to such disposition (other than the Loans) of the
Borrower or any of its Subsidiaries where payment of such
Indebtedness is required in connection with such Permitted
Disposition, and
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(iv) an amount of such proceeds (other than proceeds of
the disposition of an asset of Tempo or the Capital Stock of
Tempo), which, at the option of the Borrower and so long as no
Default shall have occurred and be continuing, the Borrower uses
or causes the applicable Subsidiary to use such proceeds to
purchase substantially similar assets useful in the business of
the Borrower or such Subsidiary (with such assets or interests
collectively referred to as "Qualified Assets") within 345 days
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after the consummation (and with the proceeds) of such sale,
conveyance or disposition, and in the event the Borrower or such
Subsidiary elects to exercise its right to purchase Qualified
Assets with the Net Disposition Proceeds pursuant to this clause,
the Borrower shall deliver a certificate of an Authorized Officer
to the Administrative Agent within 30 days following the receipt
of Net Disposition Proceeds setting forth the amount of the Net
Disposition Proceeds which the Borrower or such Subsidiary
expects to use to purchase Qualified Assets during such 345-day
period.
If and to the extent that the Borrower or such Subsidiary has elected to
reinvest Net Disposition Proceeds as permitted above, then on the date
which is 345 days after the relevant sale, conveyance or disposition, the
Borrower shall deliver a certificate of an Authorized Officer to the
Administrative Agent certifying as to the amount and use of such Net
Disposition Proceeds actually used to purchase Qualified Assets. To the
extent such Net Disposition Proceeds are not so used to purchase Qualified
Assets then the Commitment Amount shall be automatically reduced by an
amount equal to the aggregate amount of such proceeds not so used to
purchase Qualified Assets.
"Subordinated Debt" means (i) the Senior Subordinated Notes and
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the Senior Subordinated Discount Notes and (ii) other unsecured
Indebtedness of the Borrower (other than the TCIC Credit Agreement)
subordinated in right of payment to the Obligations pursuant to
documentation containing interest rates, maturities, amortization
schedules, covenants, defaults, remedies, subordination provisions and
other material terms in form and substance reasonably satisfactory to the
Required Lenders.
"TCIC Credit Agreement" means the amended and restated credit
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agreement, dated as of February 19, 1997, between TCIC and the borrower,
as such credit agreement may be amended.
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"Total Debt Per Subscriber" means, as of any date of
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determination, the quotient of (a) the difference between (i) Total Debt
less the sum of (x) Indebtedness under the Indemnification Agreements to
the extent, but only to the extent, that the Borrower or any Subsidiary
does not have an immediate obligation to reimburse TCIC or any of its
Affiliates thereunder and (y) if there are no Credit Extensions (other than
$60,000,000 of Stated Amount of Letter of Credit Outstandings), the amount
of cash and cash equivalents shown on a balance sheet of the Borrower and
its Restricted Subsidiaries to the extent such cash or cash equivalents is
not subject to a Lien (other than pursuant to the Escrow Agreements
relating to the Senior Subordinated Notes and the Senior Subordinated
Discount Notes, the Loan Documents or any agreement in respect of
Subordinated Debt approved by the Arranging Agents) and is not otherwise
subject to any restriction as to use divided by (b) the number of Basic
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Subscribers as of the last day of the Fiscal Quarter ending on or
immediately prior to such date of determination.
"Unrestricted Subsidiary" means (a) Tempo so long as it is not
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required to be designated as a "restricted subsidiary" or other similar
term pursuant to any agreement evidencing or relating to Subordinated Debt
and (b) any U.S. Subsidiary formed or acquired after the Effective Date and
designated by the Borrower as an "Unrestricted Subsidiary" and accepted as
such by the Required Lenders.
SUBPART 2.1.5. Section 1.1 of the Existing Credit Agreement is further
amended by amending the definition of "Transaction Documents" by adding the
following at the end thereof:
", the Reorganization Agreement, the Trade Name and Service ▇▇▇▇ License
Agreement, the Share Purchase Agreement, the Partnership Agreement, the
Partnership Credit Agreement, the Tempo Option, the Tag-Along Agreement and
the Tempo Letter Agreements."
SUBPART 2.2 Amendments to Article II. Article II of the Existing Credit
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Agreement is hereby amended in accordance with Subpart 2.2.1.
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SUBPART 2.2.1. Section 2.2 of the Existing Credit Agreement is amended by
changing the words "on or prior to" to the word "by" in each of three places
they appear in clause (c) thereof.
SUBPART 2.3 Amendments to Article VII. Article VII of the Existing Credit
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Agreement is hereby amended in accordance with Subparts 2.3.1 through 2.3.5.
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SUBPART 2.3.1. Section 7.1.12 of the Existing Credit Agreement is
deleted in its entirety.
SUBPART 2.3.2. Section 7.2.2 of the Existing Credit Agreement is amended
by adding the following proviso and sentence to the end thereof to read as
follows:
"; provided, further, however, that no Indebtedness permitted under
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clauses (b) through (f) of this Section 7.2.2 shall be (i) permitted if
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such Indebtedness is incurred in reliance upon a general exception for
permitted Indebtedness under any agreement pertaining to Subordinated
Debt unless all other available exceptions for Indebtedness of such type
under such an agreement have been fully utilized by the Borrower or its
Subsidiary, as applicable or (ii) designated as "Designated Senior
Indebtedness" (as defined in any document evidencing or pursuant to
which Subordinated Debt is issued) without the prior written consent of
the Required Lenders.
Notwithstanding the foregoing, the Borrower may exchange the
Series A Senior Subordinated Notes and the Series A Senior Subordinated
Discount Notes for the Series B Senior Subordinated Notes and the Series
B Senior Subordinated Discount Notes."
SUBPART 2.3.3. Section 7.2.5(f) of the Existing Credit Agreement is
amended by amending clause (iii) thereof to read as follows:
"(iii) constituting capital calls required pursuant to a vote of the
partners of Primestar shall not exceed $50,000,000 over the term of this
Agreement."
SUBPART 2.3.4. Section 7.2.6 of the Existing Credit Agreement is amended
by amending clause (b) thereof to read as follows:
"(b) (i) payments by the Borrower in respect of the purchase of
Senior Subordinated Notes and Senior Subordinated Discount Notes
pursuant to an Offer to Purchase (as defined in the Senior Subordinated
Notes Indenture and the Senior Subordinated Discount Notes Indenture)
made pursuant to Section 4.19 of each of the Senior Subordinated Notes
Indenture and the Senior Subordinated Discount Notes Indenture from the
proceeds of the offering of such Subordinated Debt and borrowings under
the TCIC Credit Agreement, (ii) payments by the Borrower in respect of
principal and interest on loans outstanding under the TCIC Credit
Agreement so long as (x) such payments are made after the Replacement
Satellite Event (without giving effect to
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clause (c) thereof), (y) such payments cannot exceed an amount equal to the
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then available and unutilized Revolving Loan Commitment Amount and (z) no
Default has occurred and is continuing or would result therefrom and (iii)
so long as no (x) Event of Default or (y) Default of which Senior
Management was aware or should have been aware has occurred and is
continuing (or would result therefrom), payments by the Borrower of
interest accrued on the Subordinated Debt when due and; and".
SUBPART 2.3.5. A new Section 7.2.17 is added to the Existing Credit
Agreement to read as follows:
"SECTION 7.2.17. Restrictions on Primestar Holdco and Its
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Subsidiaries. The Borrower shall not permit Primestar Holdco nor any of
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Primestar Holdco's Subsidiaries to (i) engage in any business activity
other than, in the case of Primestar Holdco, in connection with the
continuing ownership of the issued and outstanding shares of Capital Stock
of TCISE Partner 1 and TCISE Partner 2, and in the case of Primestar
Holdco's Subsidiaries, in connection with the continuing ownership of
partnership interests in Primestar; (ii) create, incur, assume, suffer to
exist or otherwise become liable in respect of any Indebtedness other than
in respect of the Obligations; (iii) create, incur, assume or enter into
any agreement which by its terms creates, incurs or assumes any Lien upon
any of its assets, whether now owned or hereafter acquired; (iv) make,
incur, assume or suffer to exist any Investment in any other Person other
than, in the case of Primestar Holdco, in connection with the continuing
ownership of the issued and outstanding shares of Capital Stock of TCISE
Partner 1 and TCISE Partner 2, and in the case of Primestar Holdco's
Subsidiaries, in connection with the continuing ownership of partnership
interests in Primestar; (v) make or commit to make any Capital Expenditure
or enter into any arrangement which would give rise to any Capitalized
Lease Liability; (vi) enter into any arrangement which involves the leasing
by such Person from any lessor of any real or personal property (or any
interest therein) other than the lease of office space incidental to its
ordinary course of business; (vii) wind-up, liquidate or dissolve,
consolidate or amalgamate with, or merge into or with any other corporation
or purchase or otherwise acquire all or any part of the assets of any
Person (or division thereof); or (viii) sell, transfer, lease or otherwise
dispose of, or grant to any Person options, warrants or other rights with
respect to any of its assets, unless otherwise permitted by the Credit
Agreement and except as set forth in the Partnership Agreement."
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PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. First Amendment Effective Date. This Amendatory Agreement
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shall become effective on the date first set forth above (the "First Amendment
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Effective Date") when each of the conditions set forth in this Subpart 3.1 shall
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have been satisfied.
SUBPART 3.1.1. Execution of Counterparts. The Arranging Agents shall
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have received counterparts of this Amendatory Agreement, duly executed on behalf
of the Borrower and the Required Lenders.
SUBPART 3.1.2. Post-Closing Events Letter. The Arranging Agents and the
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Borrower shall have executed the amended and restated Post-Closing Events
Letter.
SUBPART 3.1.3. TCIC Credit Agreement. The Arranging Agents shall have
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received counterparts of the TCIC Credit Agreement executed and delivered by the
Borrower and TCIC.
SUBPART 3.1.4. Legal Details, etc. All documents executed or submitted
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pursuant hereto shall be satisfactory in form and substance to the Arranging
Agents and its counsel. The Arranging Agents and its counsel shall have received
all information and such counterpart originals or such certified or other copies
of such materials, as the Arranging Agents or its counsel may reasonably
request, and all legal matters incident to the transactions contemplated by this
Amendatory Agreement shall be satisfactory to the Arranging Agents and its
counsel.
PART IV
MISCELLANEOUS
SUBPART 4.1. Cross-References. References in this Amendatory Agreement
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to any Part or Subpart are, unless otherwise specified or otherwise required by
the context, to such Part or Subpart of this Amendatory Agreement.
SUBPART 4.2. Loan Document Pursuant to Existing Credit Agreement. This
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Amendatory Agreement is a Loan Document executed pursuant to the Existing Credit
Agreement and shall be construed, administered and applied in accordance with
all of the terms and provisions of the Existing Credit Agreement.
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SUBPART 4.3 Successors and Assigns. This Amendatory Agreement shall be
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binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SUBPART 4.4 Counterparts. This Amendatory Agreement may be executed by
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the parties hereto in several counterparts, each of which when executed and
delivered shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
SUBPART 4.5 Representations, No Default, etc. As of the date of
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effectiveness of this Amendatory Agreement, the Borrower hereby represents and
warrants to the Agents and the Lenders that
(a) the representations and warranties set forth in Article VI
of the Existing Credit Agreement (excluding, however, those contained in
Section 6.7 thereof) and in each other Loan Document, in each case, are
true and correct (unless stated to relate solely to an earlier date, in
which case such representations and warranties were true and correct as
of such earlier date);
(b) except as disclosed by the Borrower to the Agents and the
Lenders pursuant to Section 6.7 of the Existing Credit Agreement,
(i) no labor controversy, litigation, arbitration or
governmental investigation or proceeding is pending or, to the knowledge
of the Borrower, threatened against the Borrower or any of its
Subsidiaries which could reasonably be expected to have a Material
Adverse Effect; and
(ii) no development has occurred in any labor controversy,
litigation, arbitration or governmental investigation or proceeding
disclosed pursuant to Section 6.7 of the Existing Credit Agreement which
could reasonably be expected to have a Material Adverse Effect; and
(c) no Default has occurred and is continuing (other than
compliance with Section 7.1.12 of the Credit Agreement).
SUBPART 4.6. Limited Waiver, etc. No amendment, waiver or approval by
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the Agents or any Lender under this Amendatory Agreement shall, except as may be
otherwise stated in this Amendatory Agreement, be applicable to subsequent
transactions. No amendment, waiver or approval hereunder shall require any
similar or dissimilar amendment, waiver or approval to be granted after the date
hereof, and except as expressly modified by this
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Amendatory Agreement, the provisions of the Existing Credit Agreement shall
remain in full force and effect, without amendment or other modification.
SUBPART 4.7 Governing Law. THIS AMENDATORY AGREEMENT SHALL BE GOVERNED
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BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendatory Agreement to
be executed by their respective authorized officers as of the day and year first
above written.
TCI SATELLITE ENTERTAINMENT, INC.
By ______________________________
Title:
THE BANK OF NOVA SCOTIA,
in its capacity as an Agent
and a Lender
By ______________________________
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
in its capacity as an Agent
and a Lender
By _____________________________
Title:
NATIONSBANK OF TEXAS, N.A.
in its capacity as an Agent
and a Lender
By _____________________________
Title:
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