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Exhibit 10.37
EXECUTION COPY
AMENDMENT dated as of October 30, 1997 (this "Amendment"), to the
Second Amended and Restated Credit Agreement dated as of July 30, 1997 (as the
same may be amended, supplemented, waived or otherwise modified from time to
time, the ("Credit Agreement"), among DIGITAL TELEVISION SERVICES, INC., a
Delaware corporation formerly know as DIGITAL TELEVISION SERVICES, LLC (the
"Borrower"), the several banks and other financial institutions from time to
time parties thereto (the "Lenders"), CIBC WOOD GUNDY SECURITIES CORP.
("CIBCWG"), as arranger (the "Arranger"), XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK ("MGT"), a New York banking corporation, as syndication agent (in such
capacity, the "Documentation Agent"), and CANADIAN IMPERIAL BANK OF COMMERCE, a
Canadian-chartered bank acting through its New York Agency, as administrative
agent for the Lenders thereunder (in such capacity, the "Administrative Agent").
W I T N E S S E T H
WHEREAS, pursuant to the Credit Agreement, the Lenders have
agreed to make certain loans and other extensions of credit to the Borrower;
WHEREAS, the Borrower has requested that the Lender amend the
Credit Agreement in order to revise certain financial and other covenants;
WHEREAS, the Lenders are willing to agree to the requested
amendments, but only upon the terms and conditions set forth herein; and
NOW THEREFORE, in consideration of the premises contained
herein, the parties hereto agree as follows:
I. Defined Terms. Unless otherwise defined herein, capitalized
terms which are defined in the Credit Agreement are used
herein as defined therein.
II. Amendments to Credit Agreement.
1. Amendment of Subsection 1.1 (Defined Terms).
a. Subsection 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Permitted Business Acquisitions"
therein in its entirely and substituting therefor the
following:
"Permitted Business Acquisitions" any
acquisition of the rights to provide DirecTv pursuant
to any Contract or acquisition of all or
substantially all the assets of, or shares or other
equity interests in, a
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Person or division or line of business of a Person or
other significant assets of a Person which includes
the acquisition of such rights in additional Service
Areas on or before December 31, 1998 provided that:
(a) (i) after giving effect to such acquisition, the
average purchase price per Household in the acquired
Service Areas for all acquisitions to and including
the dated of such acquisition does not exceed $120 or
(ii) the purchase price of such acquisition does not
exceed $1800 times the number of Subscribers in the
acquired Service Area, (b) immediately after giving
effect to such acquisition, the Borrower's Subscriber
Base does not increase by more than 50%; (c)
immediately after giving effect to such acquisition
the total number of Households within the Borrower's
Service Areas does not increase by more than 30%, (d)
upon the consummation of such acquisition, the
Available Revolving Credit Commitments of all Lenders
are greater than (i) $10,000,000 if such acquisition
is consummated on or before December 31, 1997, or
(ii) $5,000,000 if such acquisition is consummated
after December 31, 1997, (e) no Default or Event of
Default shall have occurred and be continuing or
result therefrom, (f) all transactions related
thereto shall have been consummated in all material
respects in accordance with applicable laws and (g)
all actions required to be taken, if any, with
respect to such acquired assets or newly formed
subsidiary under subsection 7.10 shall have been
taken."
b. Subsection 1.1 of the Credit Agreement is hereby amended by adding
the following new definition:
"Available Term Loan Commitment" as
to any Term Loan Lender at any time, an
amount equal to the excess, if any, of (a)
the amount of such Term Loan Lender's Term
Loan Commitment at such time over (b) the
sum of the aggregate principal amount of all
Term Loans made by such Term Loan Lender
then outstanding; collectively, as to all
the Term Loan Lenders, the "Available Term
Loan Commitments".
2. Amendment to Section 2 (Amount and Terms of Revolving
Credit Commitments and Term Loan Commitments). Section 2 of the Credit Agreement
shall be amended by adding the following subsection 2.10 to the end thereof:
"2.10 Term Loan Commitment Fee. The Borrower agrees to pay to
the Administrative Agent, for the account of each Term Loan Lender, a commitment
fee for the period from and including the Closing Date to and including the date
which is twelve months following the Closing Date, computed at the rate of 1/2
of 1% per annum on the average daily amount of the Available Term Loan
Commitment of such Lender during the prior for which payment is made, in each
case quarterly in arrears on the last day of each March, June,
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September and December and on the Term Loan Maturity Date, commencing on the
first of such days to occur after the Closing Date."
3. Amendment of Subsection 8.1 (Financial Condition
Covenants). Subsection 8.1 of the Credit Agreement is hereby amended by deleting
the table contained in subsection 8.1(c) thereof its entirety and substituting
therefor the following table:
General and Administrative
"Test Period Expense Percentage
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12/31/97 - 03/30/98 25.00%
03/31/98 - 12/30/98 20.00%
12/31/98 - 12/30/99 16.50%
12/31/99 - 12/30/00 14.50%
12/31/00 and thereafter 13.50%
4. Amendment of Subsection 8.9 (Limitation on Capital
Expenditures). Subsection 8.9 of the Credit Agreement is hereby amended by
deleting from the table contained therein the entry "$2,000,000" for the 1997
calendar year and substituting therefor the entry "$3,2,000,000."
II. General Provisions.
1. Representations and Warranties. On and as of the date
hereof and after giving effect to this Amendment, the Borrower hereby confirms,
reaffirms and restates the representations and warranties set forth in Section 5
of the Credit Agreement mutatis mutandis, except to the extent that such
representations and warranties expressly relate to a specific earlier date in
which case the Borrower hereby confirms, reaffirms and restates such
representations and warranties as of such earlier date, provided, that the
references to the Credit Agreement in such representations and warranties shall
be deemed to refer to the Credit Agreement as amended prior to the date hereof
and pursuant to this Amendment.
2. Effectiveness. This Amendment shall become effective as of
the date hereof upon receipt by the Administrative Agent of counterparts of this
Amendment duly executed and delivered by the Borrower, the Guarantors, the
Administrative Agent and the Required Lenders.
3. Continuing Effect; No Other Amendments. Except as expressly
amended hereby, all of the terms and provisions of the Credit Agreement are and
shall remain in full force and effect. The amendments provided for herein are
limited to the specific subsections of the Credit Agreement specified herein and
shall not constitute an amendment or
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waiver of, or an indication of the Lenders' willingness to amend or waive, any
other provisions of the Credit Agreement or the same subsections for any other
date or time period (whether or not such other provisions or compliance with
such subsections for another date or time period are affected by the
circumstances addressed in this Amendment).
4. Expenses. The Borrower agrees to pay and reimburse the
Administrative Agent for all its reasonable costs and expenses incurred in
connection with the preparation and delivery of this Amendment, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
5. Counterparts. This Amendment may be executed by one or more
of the parties to this Amendment on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Amendment signed by the parties hereto shall be delivered to the Borrower and
the Administrative Agent.
6. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective proper and duly authorized officers
as of the day and year first above written.
DIGITAL TELEVISION SERVICES, INC.
By:
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Title:
Accepted and Agreed to:
CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY, as Administrative Agent
By:
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Title: Director, CIBC Wood Gundy
Securities, as Agent for Canadian
Imperial Bank of Commerce
XXXXXX GUARANTY TRUST COMPANY,
as Syndication Agent and as a Lender
By:
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Title:
FLEET NATIONAL BANK, as Documentation Agent
and as a Lender
By:
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Title:
BANK OF MONTREAL
By:
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Title:
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BANQUE PARIBAS
By:
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Title:
By:
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Title:
BANKBOSTON, N.A.
By:
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Title:
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ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned, as a Guarantor under that certain Second
Amended and Restated Guarantee and Collateral Agreement, dated as of July 30,
1997 (as amended, supplemented or otherwise modified from time to time), made by
each of such Guarantors in favor of the Administrative Agent, hereby
acknowledges and consents to the execution and delivery of this Amendment to
which this Acknowledgment and Consent is attached and hereby reaffirms its
obligations as a Guarantor under said Guarantee and Collateral Agreement.
DIGITAL TELEVISION SERVICES OF
COLORADO, LLC
DIGITAL TELEVISION SERVICES OF
NEW MEXICO, LLC
DIGITAL TELEVISION SERVICES OF
NEW YORK I, LLC
DIGITAL TELEVISION SERVICES OF
SOUTH CAROLINA I, LLC
DIGITAL TELEVISION SERVICES OF
KENTUCKY, LLC
DIGITAL TELEVISION SERVICES OF
CALIFORNIA, LLC
DIGITAL TELEVISION SERVICES OF
KANSAS, LLC
DIGITAL TELEVISION SERVICES OF
VERMONT, LLC
DIGITAL TELEVISION SERVICES OF
GEORGIA, LLC
By: DTS MANAGEMENT, LLC,
their Member
By:
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Title: Vice President
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DTS MANAGEMENT, LLC
By:
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Title: Vice President
SPACENET, INC.
By:
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Title: Vice President
DTS CAPITAL, INC.
By:
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Title: Vice President
