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EXHIBIT 10.17
FIRST AMENDMENT
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), dated as of February 10, 1999, among GOLDEN SKY HOLDINGS, INC., a
corporation organized and existing under the laws of the State of Delaware
("Holdings"), GOLDEN SKY SYSTEMS, INC., a corporation organized and existing
under the laws of the State of Delaware (the "Borrower"), the Banks party hereto
from time to time, PARIBAS (formerly known as Banque Paribas), as Syndication
Agent, FLEET NATIONAL BANK, as Administrative Agent, and GENERAL ELECTRIC
CAPITAL CORPORATION, as Documentation Agent. Unless otherwise defined herein,
all capitalized terms used herein shall have the respective meanings provided
such terms in the Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, the Borrower, the Banks, the Agents and the
Documentation Agent are parties to an Amended and Restated Credit Agreement,
dated as of July 7, 1997, amended and restated as of May 8, 1998 (as amended,
modified and supplemented to the date hereof, the "Credit Agreement"); and
WHEREAS, Golden Sky DBS, Inc., a corporation organized and
existing under the laws of the State of Delaware and a direct Subsidiary of
Holdings ("DBS"), desires to incur additional Indebtedness by issuing
$193,100,000 of principal amount at maturity of senior discount notes with the
proceeds of such notes to be contributed to the Borrower as equity.
WHEREAS, the parties hereto wish to amend the Credit Agreement
as herein provided;
NOW, THEREFORE, it is agreed:
1. The undersigned Banks hereby approve a reallocation of the
Total Revolving Loan Commitment in a manner so that after giving effect to such
reallocation the Revolving Loan Commitments of each of the Banks is as set forth
on Schedule I, it being understood and agreed, however, that (i) no Bank's
Revolving Loan Commitment may be increased without the consent of such Bank,
(ii) all such changes shall be effective on the First Amendment Effective Date
(as defined below), (iii) promptly after any Bank's Revolving Loan Commitment is
so changed, the Borrower shall deliver to such Bank, upon the surrender of such
Bank's existing Revolving Note, a replacement Revolving Note in the amount of
such Bank's Revolving Loan Commitment after giving effect to any increase
thereof, (iv) any Bank not a Bank immediately prior to the First Amendment
Effective Date shall receive a Revolving Note in the amount of such Bank's
Revolving Loan Commitment and (v) Schedule I to the Credit Agreement is hereby
deleted in its entirety and replaced with a revised Schedule I in the form of
Schedule I hereto; provided, that notwithstanding anything to the contrary
contained in the Credit Agreement, in connection with any changes in the
Revolving Loan Commitments of the Banks pursuant to this Section 1, the Borrower
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shall, in coordination with the Agents and the Banks, repay outstanding
Revolving Loans of certain Banks and, if necessary, incur additional Revolving
Loans from other Banks, in each case so that the Banks participate in each
Borrowing of Revolving Loans pro rata on the basis of their Revolving Loan
Commitments (after giving effect to this Amendment). It is hereby agreed that
any breakage or similar costs of the type described in Section 1.11 of the
Credit Agreement incurred by the Banks in connection with any repayment or
reborrowing of Revolving Loans contemplated by this Section 1 shall be for the
account of the Borrower. At the time of the reallocation of the Total Revolving
Loan Commitment, it is hereby agreed that, with respect to all outstanding
Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to
the participations by the Banks in such Letters of Credit and Unpaid Drawings to
reflect the new Percentages of the Banks.
2. The first sentence of Section 2.01(a) of the Credit
Agreement is hereby amended by deleting the phrase "for each day equal to 1/2 of
1% per annum" and inserting in lieu thereof the phrase "for each day equal to
the Applicable Commitment Commission Percentage".
3. Section 2.03(e) is hereby amended by deleting the table
appearing therein and inserting in lieu thereof the following new table:
Scheduled Revolving Loan Commitment Reduction Date Amount
- -------------------------------------------------- ------
March 31, 2001 $1,150,000
June 30, 2001 $1,150,000
September 30, 2001 $1,150,000
December 31, 2001 $1,150,000
March 31, 2002 $3,450,000
June 30, 2002 $3,450,000
September 30, 2002 $3,450,000
December 31, 2002 $3,450,000
March 31, 2003 $6,900,000
June 30, 2003 $6,900,000
September 30, 2003 $6,900,000
December 31, 2003 $6,900,000
March 31, 2004 $8,625,000
June 30, 2004 $8,625,000
September 30, 2004 $8,625,000
December 31, 2004 $8,625,000
March 31, 2005 $11,500,000
June 30, 2005 $11,500,000
September 30, 2005 $11,500,000
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4. Section 3.02(A)(c) is hereby amended by deleting the table
appearing therein and inserting in lieu thereof the following new table:
Scheduled Term Loan Repayment Date Amount
- ---------------------------------- ------
March 31, 2002 $87,500
June 30, 2002 $87,500
September 30, 2002 $87,500
December 31, 2002 $87,500
March 31, 2003 $87,500
June 30, 2003 $87,500
September 30, 2003 $87,500
December 31, 2003 $87,500
March 31, 2004 $87,500
June 30, 2004 $87,500
September 30, 2004 $87,500
December 31, 2004 $87,500
March 31, 2005 $87,500
June 30, 2005 $87,500
September 30, 2005 $87,500
December 31, 2005 $33,687,500
5. Section 3.02(B)(a)(i)-(iii) is amended by deleting these
sections in their entirety and inserting in lieu thereof the following new
sections:
(i) first, to prepay the principal of outstanding Revolving
Loans (with a corresponding reduction to the Total Revolving Loan Commitment)
and Term Loans on a pro rata basis based on the aggregate principal amount of
all Term Loans outstanding at such time and the aggregate principal amount of
all Revolving Loans outstanding at such time;
(ii) second, to the extent that following the application of
proceeds in accordance with clause (i) there remains Term Loans outstanding but
no Revolving Loans, to prepay principal of outstanding Term Loans and cash
collateralize Letter of Credit Outstandings by depositing cash into the Letter
of Credit Cash Collateral Account in an amount equal to such Letter of Credit
Outstandings (with a corresponding reduction to the Total Revolving Loan
Commitment) on a pro rata basis based on the aggregate Letter of Credit
Outstandings at such time and the aggregate principal amount of all Term Loans
outstanding at such time and, to the extent there are no Letter of Credit
Outstandings, to repay all remaining outstanding Term Loans;
(iii) third, to the extent there are no remaining Term Loans
outstanding, to prepay the principal of outstanding Revolving Loans (with a
corresponding reduction to the Total Revolving Loan Commitment) and then to cash
collateralize Letter of Credit Outstandings by depositing cash into the Letter
of Credit Cash Collateral Account in an amount equal to such Letter of Credit
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Outstandings (with a corresponding reduction to the Total Revolving Loan
Commitment); and
(iv) fourth, to reduce the remaining (i.e., after giving
effect all prior reductions thereto) Total Revolving Loan Commitment (it being
understood and agreed that the amount of such reduction shall be deemed to be an
application of proceeds for purposes of this Section 3.02(B)(a)(iv) even though
cash is not actually applied).
6. Section 3.02(B)(b)(I)(i) shall be amended by deleting the
phrase "until the first anniversary of the Restatement Effective Date" and
inserting in lieu thereof the phrase "until the first anniversary of the First
Amendment Effective Date and thereafter if the ratio of Net Adjusted
Consolidated Indebtedness as of the most recent fiscal quarter ending
immediately prior to such mandatory prepayment to Annualized Consolidated EBITDA
for such fiscal quarter shall be less than 6:1."
7. Section 3.02(B)(b)(I)(ii) of the Credit Agreement is hereby
amended by deleting the phrase " after the first anniversary the Restatement
Effective Date" and inserting in lieu thereof "after the first anniversary of
the First Amendment Effective Date in the event the ratio of Net Adjusted
Consolidated Indebtedness as of the most recent fiscal quarter ending
immediately prior to such mandatory prepayment to Annualized Consolidated EBITDA
for such fiscal quarter shall be greater than 6:1."
8. Section 3.02(B)(b)(II) is amended by inserting a period
following the words "Revolving Loans" in lieu of the ";" appearing therein
immediately prior to the proviso and deleting the rest of the sentence and
inserting after the Section reference "Section 8.04(vii)" appearing therein the
phrase "or Section 8.04(ix)".
9. Section 5.03 of the Credit Agreement shall be modified by
replacing the amount of "$15,000,000" therein with the amount of "$30,000,000".
10. Section 7 of the Credit Agreement is hereby amended by
inserting the following new Sections 7.19 and 7.20 at the end of said section:
"7.19 Updated Schedules to Credit Agreement. The updated
schedules to the Credit Agreement delivered pursuant to Section 36 of the First
Amendment are true and correct in all material respects as of the First
Amendment Effective Date and accurately present in all material respects all
information that was originally required to be scheduled pursuant to the
relevant Credit Document on the Restatement Effective Date, but modified to
reflect any changes thereto that occurred after the Restatement Effective Date
and on or prior to the First Amendment Effective Date.
7.20 Corporate Separateness. DBS and the Borrower will take,
and the Borrower will cause each of its Subsidiaries to take, all such action as
is necessary to keep the operations of the Borrower and its Subsidiaries
separate and apart from those of DBS including, without limitation, ensuring
that all customary corporate formalities, including the maintenance of corporate
records and holding regular meetings of shareholders and directors are followed.
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No bank account of the Borrower or any of its Subsidiaries shall be commingled
with any bank account of DBS. Any financial statements distributed to any
creditors of DBS shall clearly establish the corporate separateness of DBS from
the Borrower and its Subsidiaries. DBS shall not take any action, or conduct its
affairs in a manner, which could result in the corporate existence of the
Borrower or any of its Subsidiaries on the one hand and of DBS on the other hand
being disregarded, or in the assets and liabilities of the Borrower or any of
its Subsidiaries being substantively consolidated with those of DBS in a
bankruptcy, reorganization or other insolvency proceeding."
11. Section 8.02 of the Credit Agreement is hereby amended by
deleting the word "and" at the end of clause (vi), deleting the period at the
end of clause (vii) and inserting in lieu thereof a semicolon and the word "and"
and adding a new clause as follows:
"(viii) the DBS Reorganization Transaction shall be permitted
so long as it is effected in accordance with the definition thereof, all
applicable law and Section 8.22."
12. Section 8.03 of the Credit Agreement is amended by
deleting such section in its entirety and inserting in lieu thereof the
following new section:
"8.03 Dividends. Holdings will not, nor will Holdings
permit any of its Subsidiaries to, declare or pay any Dividends with respect to
Holdings or any of its Subsidiaries except that (i) any Subsidiary of the
Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the
Borrower, (ii) Holdings may pay Dividends to its stockholders in an aggregate
amount not to exceed $500,000 for the purpose of repurchasing stock held by such
stockholders, (iii) proceeds from the Weary Key-Man Insurance may be applied to
purchase all Holdings Capital Stock owned by Mr. Weary at the time of his death
so long as such proceeds are permitted to be used for such repurchase in
accordance with Section 3.02(A)(g) and are not required to be applied in
accordance with Section 3.02(B), (iv) Holdings may pay Dividends (x) to its
employees in the form of options convertible into Holdings Common Stock, (y) in
the form of Seller Preferred Stock payable in connection with a Permitted
Acquisition and (z) so long as there exists no Default or Event of Default, in
the form of cash payable to any Person holding a minority interest (in the form
of stock, partnership interest, membership interest or otherwise) in any
Subsidiary of Holdings on or prior to the Restatement Effective Date for the
purpose of purchasing such minority interest, (v) holders of warrants shall be
permitted to effect the cashless exercise thereof, (vi) so long as there shall
exist no Default or Event of Default, the Borrower may pay Dividends to DBS who
shall be permitted to pay such Dividends to Holdings so long as immediately
following such payment Holdings uses the proceeds thereof to make payments
permitted pursuant to preceding clauses (ii), (iii) or (iv) (z) and if such
payment is not immediately made then the proceeds of such Dividends shall be
immediately recontributed to DBS who shall immediately recontribute such
proceeds to the Borrower and (vii) the Borrower may pay Dividends to DBS to
permit DBS to make required interest payments on Acceptable DBS Debt so long as
(x) such Dividends are paid within five Business Days of the date of a required
interest payment with respect to the Acceptable DBS Debt and are applied to make
such interest payments, (y) no such Dividends are paid prior to six months
following the fifth anniversary of the original issuance date of the Acceptable
DBS Debt and no Dividends are paid with respect to interest accrued prior to the
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fifth anniversary of the date of issuance of the Acceptable DBS Debt and (z)
there shall exist both before and after such Dividend payment no Default or
Event of Default.
13. Section 8.04 of the Credit Agreement shall be modified by
(x) deleting the "and" at the end of clause (vii), (y) inserting a semi-colon
and the word "and" in lieu of the period at the end of clause (viii) and (z)
adding as a new clause (ix) the following:
"(ix) Acceptable DBS Debt so long as at least $96,000,000 of
the net proceeds therefrom are contributed on the date of receipt thereof as
common equity to the Borrower, and the Borrower uses the proceeds received from
such capital contribution to repay all outstanding Revolving Loans."
14. Section 8.05 of the Credit Agreement is hereby amended by
(x) deleting the word "and" at the end of clause (viii), (y) deleting the period
at the end of clause (ix) at the end thereof and (z) inserting in lieu thereof a
semicolon and the word "and" and inserting the following new clause:
"(x) Holdings may make equity contributions to the Borrower."
15. Section 8.07(a) of the Credit Agreement shall be modified
by deleting clause (ii) and inserting in lieu thereof the following new clause:
"(ii) $5 million in the case of fiscal year 1999
and fiscal year 2000 and $3 million thereafter."
16. Section 8.08 of the Credit Agreement shall be modified by
deleting the table therein and inserting in lieu thereof the following table:
Fiscal Quarter
Ended Amount
-------------- ------
March 31, 1999 $900
June 30, 1999 $900
September 30, 1999 $900
December 31, 1999 $900
March 31, 2000 $800
June 30, 2000 $800
September 30, 2000 $800
December 31, 2000 $800
March 31, 2001 $700
June 30, 2001 $700
September 30, 2001 $700
December 31, 2001 $700
March 31, 2002 and thereafter $600
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17. Section 8.09 of the Credit Agreement shall be modified by
deleting the table therein and inserting in lieu thereof the following table:
Fiscal Quarter
Ended Amount
-------------- ------
March 31, 1999 $500
June 30, 1999 $450
September 30, 1999 $450
December 31, 1999 $450
March 31, 2000 $400
June 30, 2000 $400
September 30, 2000 $400
December 31, 2000 $400
March 31, 2001 $350
June 30, 2001 $350
September 30, 2001 $350
December 31, 2001 $350
March 31, 2002 and thereafter $300
18. Section 8.10 of the Credit Agreement shall be amended by
deleting the section in its entirety and inserting in lieu thereof the following
new section:
"8.10 Gross Subscriber Acquisition Costs and Maximum Permitted
Churn Rate. (a) Holdings will cause the Borrower not to permit, and the Borrower
will not permit, the Gross Subscriber Acquisition Cost for any fiscal quarter
ending after the First Amendment Effective Date and prior to March 31, 2002 to
exceed an amount equal to $325.00.
(b) Holdings will cause the Borrower not to permit, and the Borrower
will not permit the Annualized Churn Rate for any fiscal quarter ending after
the First Amendment Effective Date and prior to March 31, 2002 to exceed 12.0%."
19. Section 8.11 of the Credit Agreement, shall be amended by
replacing the date "June 30, 2000" therein with the date "March 31, 2002".
20. Section 8.12 of the Credit Agreement shall be modified by
deleting the table therein and the phrase "on a date set forth below to be less
than the ratio set forth opposite such date:" and inserting in lieu thereof "on
or after March 31, 1999 and on or prior to December 31, 2001 to be less than
2.00x."
21. Section 8.13 of the Credit Agreement shall be modified by
deleting the table therein and inserting in lieu thereof the following table:
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Fiscal Quarter
Ended Ratio
--------------- -----
March 31, 2002 1.25x
June 30, 2002 1.25x
September 30, 2002 1.50x
December 31, 2002 1.50x
March 31, 2003 1.75x
June 30, 2003 1.75x
September 30, 2003 2.00x
December 31, 2003 2.00x
March 31, 2004 1.25x
June 30, 2004 1.25x
September 30, 2004 1.25x
December 31, 2004 1.25x
Thereafter 1.50x
22. Section 8.14 of the Credit Agreement shall be modified by
deleting the text commencing with "(i)" and ending with the second table therein
and inserting in lieu thereof the following table:
Fiscal Quarter
Ended Ratio
--------------- -----
March 31, 1999 8.50x
June 30, 1999 8.00x
September 30, 1999 7.50x
December 31, 1999 7.00x
March 31, 2000 6.50x
June 30, 2000 6.00x
September 30, 2000 5.50x
December 31, 2000 5.00x
March 31, 2001 4.50x
June 30, 2001 4.00x
23. Section 8.15 of the Credit Agreement shall be modified by
deleting the text commencing with "(i)" and ending with the second table
appearing therein and inserting in lieu thereof the following table:
Fiscal Quarter
Ended Ratio
-------------- -----
March 31, 1999 4.00x
June 30, 1999 3.75x
September 30, 1999 3.50x
December 31, 1999 3.25x
March 31, 2000 3.00x
June 30, 2000 through 3.00x
June 30, 2001
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24. Section 8.16 of the Credit Agreement shall be modified by
deleting the text commencing with "(i)" and ending with the second table
appearing therein and inserting in lieu thereof the following table:
Fiscal Quarter
Ended Ratio
-------------- -----
September 30, 2001 8.50x
December 31, 2001 8.00x
March 31, 2002 7.00x
June 30, 2002 7.00x
September 30, 2002 6.00x
December 31, 2002 6.00x
March 31, 2003 5.00x
June 30, 2003 5.00x
September 30, 2003 5.00x
December 31, 2003 5.00x
March 31, 2004 4.00x
June 30, 2004 4.00x
September 30, 2004 4.00x
December 31, 2004 4.00x
March 31, 2005 and thereafter 3.50x
25. Section 8.17 of the Credit Agreement shall be modified by
deleting the second table appearing therein and inserting in lieu thereof the
following table:
Fiscal Quarter Ended Ratio
-------------------- -----
September 30, 2001 5.00x
December 31, 2001 5.00x
March 31, 2002 3.50x
June 30, 2002 3.50x
September 30, 2002 3.50x
December 31, 2002 3.50x
March 31, 2003 2.00x
June 30, 2003 2.00x
September 30, 2003 2.00x
December 31, 2003 2.00x
Thereafter 1.50x
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26. Section 8.18 of the Credit Agreement is amended by
inserting after any reference to the phrase "Section 8.04(vii)" the phrase "or
Section 8.04(ix)".
27. Section 8.19 of the Credit Agreement is hereby amended by
inserting after the words "the other Credit Documents" appearing in clause (y)
thereof the words ", or the Acceptable Subordinated Debt Documents".
28. Section 8.20 of the Credit Agreement is hereby amended by
inserting the following new sentence immediately preceding the last sentence of
Section 8.20(a):
"DBS shall be permitted to issue common stock to Holdings on
or prior to the First Amendment Effective Date."
29. Section 8.21 of the Credit Agreement is amended by
deleting the Section in its entirety and inserting in lieu thereof the following
new Section:
"Section 8.21 Business. Neither Holdings nor DBS will engage
in any business or hold any assets other than common stock of DBS, in the case
of Holdings, and common stock of the Borrower, in the case of DBS and DBS shall
be permitted to issue the Acceptable DBS Debt in accordance with the Acceptable
DBS Debt Documents so long as the proceeds therefrom are applied in accordance
with Section 8.04(ix). Neither Holdings nor DBS will permit any of its
Subsidiaries to engage (directly or indirectly) in any business other than the
Permitted Business and the MDU Business so long as, with respect to engaging in
the MDU Business, (i) the aggregate amount spent by the Borrower and its
Subsidiaries in connection with the MDU Business (whether capital expenditures,
operating expenses, Subscriber Acquisition Costs, call center costs or any other
amounts of any type and collectively referred to as "MDU Investments") shall not
exceed during the period commencing on the Restatement Effective Date and ending
on the date on which there shall be no remaining Obligations or Commitments
under this Agreement $10,000,000, without giving effect to any write-offs or
write-downs with respect thereto and (ii) at the time thereof and after giving
effect thereto, there is no Default or Event of Default."
30. Section 8.22 of the Credit Agreement shall be amended by
inserting the number "(I)" immediately following the words "except that"
appearing therein and adding the following clause (II) after the words
"applicable Security Documents" appearing therein:
"(II) the DBS Reorganization Transaction may be effected so long as (w)
Holdings shall have delivered to the Collateral Agent, as Pledgee,
under the Holdings Pledge Agreement all of the pledged securities
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referred to in the Holdings Pledge Agreement obtained in connection
with the DBS Reorganization Transaction, together with executed and
undated irrevocable stock powers with respect to such Pledged
Securities, (x) DBS shall have executed and delivered the applicable
Pledge Agreement and shall have delivered to the Collateral Agent, as
Pledgee thereunder, all of the Pledged Securities referred to in such
Pledge Agreement, including without limitation, all securities of the
Borrower, together with executed and undated irrevocable stock powers
with respect to the Pledged Securities and (y) DBS shall have executed
and delivered a guarantee agreement, in form and substance satisfactory
to the Agents providing for the guarantee of DBS of all Obligations and
all indebtedness under each Interest Rate Protection or Other Hedging
Agreement."
31. Section 10; Definitions: The following
definitions in Section 10 of the Credit Agreement are amended as set forth
below:
(a) The definition of "Adjusted Consolidated Senior
Indebtedness" shall be amended by inserting after the words "Acceptable
Subordinated Debt" appearing therein the words "or Acceptable DBS Debt, in each
case to the extent included in Adjusted Consolidated Indebtedness".
(b) The definition of "Applicable Base Rate Margin" shall be
amended by (x) deleting the number "2.25" and inserting the number "2.50" in
lieu thereof and (y) by deleting the number "2.50" and inserting the number
"2.75" in lieu thereof.
(c) The definition of "Applicable Eurodollar Rate Margin"
shall be amended by (x) deleting the number "3.50" and inserting the number
"3.75" in lieu thereof and (y) by deleting the number "3.75" and inserting the
number "4.0" in lieu thereof.
(d) The definition of "Borrowing Base" shall be amended by
deleting clause (y) and inserting in lieu thereof the following phrase "$900
until and including December 31, 1999, and $800 thereafter".
(e) The definition of "Consolidated EBIT" shall be amended by
inserting the word "cash" immediately after the word "before".
(f) The definition of "Consolidated Interest Expense" shall be
amended by inserting the word "cash" immediately after the phrase "total
consolidated".
(g) The definition of "Dividend" shall be amended by inserting
"(x)" after the word "include" appearing in the last sentence of the definition
thereof and inserting the following phrase after the words "foregoing purposes":
"and (y) all cash payments made or required to be made by such
person in accordance with any Tax Sharing Agreement or any other tax sharing
agreement or similar agreement or otherwise in respect of taxes".
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(h) The definition of "Documents" shall be amended to read in
its entirety as follows:
"Documents" shall mean the Credit Documents, the Acceptable
Subordinated Debt Documents, the Acceptable DBS Debt Documents and the material
documents entered into in connection with any Permitted Acquisition.
(i) The definition of "Excess Cash Flow Payment Date" shall be
amended by replacing the year "2000" therein with the year "2001".
(j) The definition of "Excess Cash Flow Recapture Percentage"
shall be amended by (x) inserting a period after "75%" and (y) deleting the rest
of the clause after "75%" thereof.
(k) The definition of "Net Adjusted
Consolidated Indebtedness" shall be amended by inserting immediately following
the words "Cash Interest Reserves" the phrase "minus unrestricted cash balances
of the Borrower in excess of $5 million minus (except for purposes of
determining the Leverage Reduction Discount) that portion of Consolidated
Indebtedness consisting of Acceptable DBS Debt".
(l) The definition of "Net Subscriber Acquisition Cost" shall
be deleted in its entirety.
(m) The definition of "Net Subscribers" shall be deleted in
its entirety.
(n) The definition of "Permitted Acquisition" shall be amended
by inserting immediately following the phrase "Acceptable Subordinated Debt,"
the phrase "Acceptable DBS Debt,"
(o) The definition of "Revolving Loan Maturity Date" shall be
amended by deleting the date "June 30, 2004" appearing therein and replacing the
same with "September 30, 2005".
(p) The definition of "Term Loan Maturity Date" shall be
amended by deleting the date "March 31, 2005" appearing therein and replacing
the same with "December 31, 2005".
32. Additional Definitions: Section 10 of the Credit Agreement
is hereby amended by inserting the following new definitions in the appropriate
alphabetical order therein:
"Acceptable DBS Debt" shall mean unsecured, subordinated notes
issued by DBS on one date on or prior to the First Amendment Effective Date and
which are not guaranteed by any Person, with respect to which DBS receives gross
proceeds in an amount not to exceed $115,000,000 and net proceeds of at least
$96,000,000 on terms and conditions (including without limitation interest
rates, limitations on cash interest payable, redemption provisions, maturity
date, subordination provisions, covenants and events of default (it being
understood that the terms and conditions in the preliminary offering memorandum
are acceptable) and, in any event, shall include an agreement by the holders of
Acceptable DBS Debt whereby they acknowledge they have no claim against the
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assets of the Borrower or any of its Subsidiaries and that they will not, in any
fashion, seek to cause the assets of the Borrower or any of its Subsidiaries to
be substantively consolidated with those of DBS nor take any action to cause,
nor permit the assets of the Borrower or any of its Subsidiaries from being made
available to satisfy any obligations with respect to the Acceptable DBS Debt
(except through Dividends permitted in accordance with Section 8.03(vii)))
acceptable to, and in form and substance satisfactory to, the Required Banks.
"Acceptable DBS Debt Documents" shall mean the indenture or
similar document pursuant to which the Acceptable DBS Debt is issued and all
related documents, including without limitation, the preliminary offering
memorandum, the final offering memorandum, the purchase agreement or
underwriting agreement with respect thereto, the registration rights agreement,
and all related documents, all of which shall be in form and substance
satisfactory to the Required Banks.
"Annualized Churn Rate" shall mean the number of disconnected
subscribers for the trailing six months divided by the Average Subscribers for
the trailing six months."
"Applicable Commitment Commission Percentage" shall mean a
percentage per annum equal to (i) 1.25% in the event that at any time during the
applicable quarter for which the Commitment Commission is being calculated, the
aggregate outstanding principal amount of all Revolving Loans and Letter of
Credit Outstandings is less than $38,333,333, (ii) .875% in the event that at
any time during the applicable quarter for which the Commitment Commission is
being calculated, the aggregate outstanding principal amount of Revolving Loans
and Letter of Credit Outstandings is greater than $38,333,333 but less than
$76,666,666 or (iii) .50% in the event that at any time during the applicable
quarter for which the Commitment Commission is being determined, the aggregate
outstanding principle amount of Revolving Loans plus Letter of Credit
Outstandings is greater than $76,666,666.
"Average Subscribers" shall mean for any period the number of
subscribers of the Borrower and its Subsidiaries at the beginning of such period
plus the number of subscribers of the Borrower and its Subsidiaries at the end
of such period, divided by two.
"DBS" shall mean Golden Sky DBS, Inc., a corporation organized
and existing under the laws of the State of Delaware.
"DBS Reorganization Transaction" shall mean the reorganization
transaction of Holdings, DBS and the Borrower pursuant to which Holdings
exchanges (whether by exchange agreement, merger, capital contribution or
otherwise) its interests in the Borrower for equivalent interests in DBS.
"DBS Reorganization Transaction Document" shall mean all
documents entered into or delivered in connection with the DBS Reorganization
Transaction".
"First Amendment" shall mean the First Amendment to this
Agreement dated as of February 10, 1999.
-13-
14
"First Amendment Effective Date" shall have the meaning
provided in the First Amendment.
"Gross Subscribers" shall mean for any period the number of
new DirecTV subscribers of the Borrower or any of its Subsidiaries added
(excluding DirecTV subscribers acquired through Permitted Acquisitions and
excluding subscribers to the MDU Business) added during such period.
"Gross Subscriber Acquisition Costs" shall mean for any period
the product of (x) Subscriber Acquisition Costs for such period divided by (y)
Gross Subscribers for such period.
33. In order to induce the Banks to enter into this Amendment
and the transactions contemplated, the Borrower hereby represents and warrants
that (i) no Default or Event of Default shall exist and (ii) all of the
representations, warranties and agreements contained in the Credit Documents
shall be true and correct in all material respects, in each case on the First
Amendment Effective Date (as defined below), both before and after giving effect
to this Amendment.
34. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
35. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the Borrower and the Agents.
36. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
37. This Amendment shall become effective on the date (the
"First Amendment Effective Date") when (i) each Credit Party, the Agents and the
Banks shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Administrative Agent at its Notice Office, (ii)
the Borrower shall have delivered to the Administrative Agent updated Schedules
(VII), (IX), (X), (XI) and (XII) to the Credit Agreement, Annexes A, B, C, D, E,
F and G to the Security Agreement and Annexes A and B to each of the Partnership
Pledge Agreement, the Holdings Pledge Agreement and the Borrower/Subsidiary
Pledge Agreement, in each case modified to reflect any changes thereto which
occurred on or prior to the First Amendment Effective Date, (iii) the Agents
shall have received from Reboul, MacMurray, Hewitt, Maynard & Kristol, counsel
to Holdings and its Subsidiaries addressed to the Agents and the Banks and dated
the First Amendment Effective Date covering the matters set forth on Exhibit F
to the Credit Agreement before giving effect to this First Amendment and such
other matters incident to the transactions contemplated herein as the Agents may
request, which in any event shall include opinions relating to the issuance of
the Acceptable DBS Debt, (iv) the Agents shall have received from counsel
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delivering such opinions, reliance letters with respect to all legal opinions
delivered in connection with the issuance of the Acceptable DBS Debt, (v) each
Bank shall have received from the Borrower a cash fee in an amount equal to
0.50% of the amount of such Bank's outstanding Term Loans and Revolving Loan
Commitment, in each case as in effect on the First Amendment Effective Date
(after giving effect to this Amendment), (vi) the Borrower shall have paid all
fees and expenses then owing to the Banks (including, without limitation, legal
fees and expenses), (vii) the Agents shall have received true and correct copies
of the DBS Reorganization Transaction Documents in form and substance
satisfactory to the Agents, (viii) the DBS Reorganization Transaction shall have
been consummated in accordance with all applicable law and the DBS
Reorganization Transaction Documents, (ix) the Acceptable DBS Debt shall have
been issued in accordance with the Acceptable DBS Debt Documents and at least
$96 million dollars of the net proceeds therefrom shall have been contributed as
common equity to the Borrower, and the Borrower shall have used the proceeds
therefrom to repay all outstanding Revolving Loans and (x) the Total Revolving
Loan Commitment, after giving effect to this First Amendment, shall be
$115,000,000.
38. From and after the First Amendment Effective Date, all
references in the Credit Agreement and each of the Credit Documents to the
Credit Agreement shall be deemed to be references to such Credit Agreement as
amended hereby.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
GOLDEN SKY HOLDINGS, INC.
By: /s/ John R. Hager
---------------------------------------
Title: Chief Financial Officer
GOLDEN SKY SYSTEMS, INC.
By: /s/ John R. Hager
---------------------------------------
Title: Chief Financial Officer
PARIBAS,
Individually and as Syndication Agent
and Managing Agent
By: /s/ Errol Antzis
---------------------------------------
Title: Managing Director
By: /s/ Salo Aizenberg
---------------------------------------
Title: Vice President
FLEET NATIONAL BANK,
Individually and as Administrative Agent
and Managing Agent
By: /s/ Chris Swindell
---------------------------------------
Title: Vice President
17
GENERAL ELECTRIC CAPITAL
CORPORATION,
Individually and as Documentation Agent
By: /s/ Mark F. Mylon
---------------------------------------
Title: Manager- Operations
PAMCO CAYMEN LTD.
By: HIGHLAND CAPITAL MANAGEMENT, L.P.,
as Collateral Manager
By: /s/ Mark K. Okada
---------------------------------------
Title: Executive Vice President
PAM CAPITAL FUNDING, L.P.
By: HIGHLAND CAPITAL MANAGEMENT, L.P.
as Collateral Manager
By: /s/ Mark K. Okada
---------------------------------------
Title: Executive Vice President
STATE STREET BANK AND TRUST COMPANY
By: /s/ Hamilton H. Wood
---------------------------------------
Title: Vice President
UNION BANK OF CALIFORNIA
By: /s/ Lena M. Bryant
---------------------------------------
Title: Assistant Vice President
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IBJ WHITEHALL FINANCIAL GROUP
By: /s/ David Thalman
---------------------------------------
Title: Director
FREMONT FINANCIAL CORPORATION
By: /s/ Maria Chachere
---------------------------------------
Title: Vice President
MERRILL LYNCH CAPITAL CORP.
By: /s/ Jack Lucid
---------------------------------------
Title: Vice President
NATIONSBANK, N.A.
By: /s/ Chris Barton
---------------------------------------
Title: Vice President
DLJ CAPITAL FUNDING, INC.
By: /s/ Wendy La Mantia
---------------------------------------
Title: Assistant Vice President
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The undersigned hereby
acknowledge and consent
to the execution of the foregoing
amendment and transactions provided
for herein.
GOLDEN SKY HOLDINGS, INC.
By: /s/ John R. Hager
---------------------------------------
Title: Chief Financial Officer
GOLDEN SKY SYSTEMS, INC.
By: /s/ John R. Hager
---------------------------------------
Title: Chief Financial Officer
ARGOS SUPPORT SERVICES COMPANY
By: /s/ John R. Hager
---------------------------------------
Title: Chief Financial Officer
PRIMEWATCH, INC.
By: /s/ John R. Hager
---------------------------------------
Title: Chief Financial Officer
20
SCHEDULE I
BANK REVOLVER TERM LOAN TOTAL
------------------------ ---------------------- ---------------------- -----------------------
Fleet National Bank $17,527,777.77 $2,472,222.23 $20,000,000.00
------------------------ ---------------------- ---------------------- -----------------------
Paribas $17,527,777.78 $2,472,222.22 $20,000,000.00
------------------------ ---------------------- ---------------------- -----------------------
GE Capital Corp. $17,527,777.78 $2,472,222.22 $20,000,000.00
------------------------ ---------------------- ---------------------- -----------------------
Highland Capital $ 0.00 $20,000,000.00 $20,000,000.00
------------------------ ---------------------- ---------------------- -----------------------
Union Bank $15,000,000.00 $ 0.00 $15,000,000.00
------------------------ ---------------------- ---------------------- -----------------------
Fremont Financial $11,500,000.00 $3,500,000.00 $15,000,000.00
------------------------ ---------------------- ---------------------- -----------------------
State Street Bank $7,666,666.67 $2,333,333.33 $10,000,000.00
------------------------ ---------------------- ---------------------- -----------------------
IBJ Whitehall $5,750,000.00 $1,750,000.00 $7,500,000.00
------------------------ ---------------------- ---------------------- -----------------------
Merrill Lynch $13,026,000.00 $ 0.00 $13,026,000.00
------------------------ ---------------------- ---------------------- -----------------------
NationsBanc Montgomery $5,921,000.00 $ 0.00 $5,921,000.00
------------------------ ---------------------- ---------------------- -----------------------
Donaldson, Lufkin & $3,553,000.00 $ 0.00 $3,553,000.00
Jenrette
------------------------ ---------------------- ---------------------- -----------------------
Totals: $115,000,000.00 $35,000,000.00 $150,000,000.00
------------------------ ---------------------- ---------------------- -----------------------