Exhibit 10.29
AMENDMENT NO. 7
THIS AMENDMENT NO. 7 dated as of March 20, 2002 (this "Amendment") to the
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Credit Agreement referenced below is by and among XXXXXX ELECTRONICS
CORPORATION, a Delaware corporation (the "Borrower" or the "Company"), the Banks
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party hereto and BANK OF AMERICA, N.A., as Administrative Agent (in such
capacity, the "Administrative Agent"). Capitalized terms used herein and not
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otherwise defined shall have the meanings provided in the Credit Agreement.
W I T N E S S E T H
WHEREAS, a revolving credit and term loan facility has been established in
favor of the Borrower pursuant to the terms of that Amended and Restated
Revolving Credit Agreement (Multi-Year Facility) dated as of November 24, 1999
(as amended and modified, the "Credit Agreement") among the Borrower, the Banks
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identified therein, and the Administrative Agent; and
WHEREAS, the parties hereto have agreed to certain modifications to the
Credit Agreement;
NOW, THEREFORE, IN CONSIDERATION of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
SECTION 1 Amendments to the Credit Agreement. The Credit Agreement is
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hereby amended in the following respects:
1.1 The following definitions in Section 1.1 are amended and restated in
their entirety or added in the correct alphabetical order to read as
follows:
"Commitments" means the Revolving Commitments, the LOC Commitment and the
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Term Loan Commitments.
"Loan" or "Loans" means the Revolving Loans and the Term Loans, and the
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Base Rate Loans and Eurodollar Loans comprising such Loans.
"Loan Obligations" means the Revolving Obligations and the Term Loans.
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"Loan Request" means a notice given by Borrower pursuant to Section
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2.2(a)(i) or (iii).
"Other Guaranty Shared Collateral Debt" means those guaranty obligations of
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the Borrower in respect of loans, letters of credit, reimbursement obligations
and lines of credit extended to its subsidiaries as set forth on Schedule 8.1B
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hereto by those Banks under this Agreement that have entered into an
Intercreditor Agreement with the Administrative Agent and the Collateral Agent,
in each case as such Schedule 8.1B may be amended, modified, supplemented or
replaced from time to time by the Borrower by delivery to the Administrative
Agent of an updated Schedule 8.1B; provided, however, in no event shall the
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principal amount of the Other Guaranty Shared Collateral Debt exceed $150
million and interest thereon.
"Term Loan Commitments" means the Tranche A Term Loan Commitment and the
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Tranche B Term Loan Commitment.
"Term Loan Committed Amounts" means the Tranche A Term Loan Committed
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Amount and the Tranche B Term Loan Committed Amount.
"Term Loan" means the Tranche A Term Loan and the Tranche B Term Loan.
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"Term Notes" means the promissory notes, if any, evidencing the Tranche A
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Term Loan or the Tranche B Term Loan, each as amended, modified, supplemented,
extended, renewed or replaced.
"Termination Date" means:
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(i) with respect to the Revolving Obligations and the Tranche A Term Loan,
the earlier of (A) December 5, 2002 or, if such day is not a Business Day,
the next preceding Business Day and (B) the effective date of the merger
between the Borrower (or HEC Holdings, Inc., a holding company formed to
hold all of the capital stock of the Borrower) and EchoStar Communications
Corporation (or any of its subsidiaries) pursuant to the terms of the
EchoStar Transaction Documents; and
(ii) with respect to the Tranche B Term Loan, the earliest to occur of (A)
March 20, 2003 or, if such day is not a Business Day, the next preceding
Business Day, (B) the effective date of the merger between the Borrower (or
HEC Holdings, Inc., a holding company formed to hold all of the capital
stock of the Borrower) and EchoStar Communications Corporation (or any of
its subsidiaries) pursuant to the terms of the EchoStar Transaction
Documents, (C) the maturity date for the Revolving Obligations, if not
extended, and (D) the maturity date for the loans and obligations owing
under the GMAC Credit Agreement, if not extended.
"Tranche A Term Loan" shall have the meaning given such term in Section 2.1
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(c)(i).
"Tranche A Term Loan Commitment" means the commitment of each Bank to make
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its portion of the Tranche A Term Loan hereunder, being the dollar amount set
forth opposite such Bank's name on Schedule 1 hereto, as such amount may be
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reduced or changed pursuant to Sections 3.5 and 3.6; provided that for purposes
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of making determinations of Majority Banks hereunder and for other purposes
after date of advance of the Tranche A Term Loan, the principal amount of the
"Tranche A Term Loan Commitment" hereunder shall be the outstanding principal
amount of the Tranche A Term Loan.
"Tranche A Term Loan Committed Amount" means, collectively, the aggregate
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amount of all Tranche A Term Loan Commitments, and individually, the amount of
each Bank's Tranche
A Term Loan Commitment as set forth on Schedule 1 hereto, as such amount may be
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reduced or changed pursuant to Sections 3.5 and 3.6.
"Tranche B Term Loan" shall have the meaning given such term in Section 2.1
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(c)(ii).
"Tranche B Term Loan Commitment" means the commitment of each Bank to make
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its portion of the Tranche B Term Loan hereunder, being the dollar amount set
forth opposite such Bank's name on Schedule 1 hereto, as such amount may be
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reduced or changed pursuant to Sections 3.5 and 3.6; provided that for purposes
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of making determinations of Majority Banks hereunder and for other purposes
after date of advance of the Tranche B Term Loan, the principal amount of the
"Tranche B Term Loan Commitment" hereunder shall be the outstanding principal
amount of the Tranche B Term Loan.
"Tranche B Term Loan Committed Amount" means, collectively, the aggregate
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amount of all Tranche B Term Loan Commitments, and individually, the amount of
each Bank's Tranche B Term Loan Commitment as set forth on Schedule 1 hereto, as
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such amount may be reduced or changed pursuant to Sections 3.5 and 3.6.
1.2 Section 2.1(c) is amended and restated in its entirety to read as
follows:
(c) Term Loan Commitments. On or after the Amendment Date, the Borrower may
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elect to establish a Term Loan facility as provided in Section 3.6(b), and in
any such case:
(i) Each Bank with a Tranche A Term Loan Commitment will lend to the
Borrower in U.S. dollars (the "Tranche A Term Loans") the amount set forth
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opposite such Bank's name and identified as its "Tranche A Term Loan
Commitment" on Schedule 1 hereto. The Tranche A Term Loan may consist of
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Base Rate Loans or Eurodollar Loans, or a combination thereof, as the
Borrower may request. Amounts repaid on the Tranche A Term Loan may not be
reborrowed.
(ii) Each Bank with a Tranche B Term Loan Commitment will lend to the
Borrower in U.S. dollars (the "Tranche B Term Loans") the amount set forth
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opposite such Bank's name and identified as its "Tranche B Term Loan
Commitment" on Schedule 1 hereto. The Tranche B Term Loan may consist of
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Base Rate Loans or Eurodollar Loans, or a combination thereof, as the
Borrower may request. Amounts repaid on the Tranche B Term Loan may not be
reborrowed.
1.3 Section 2.2(a) (iii) is amended and restated in its entirety to read as
follows:
(iii) Term Loans. In the case of the Term Loans, to the Administrative
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Agent not later than 9:00 A.M. (California time) on the day of the
requested borrowing in the case of Base Rate Loans, and on the third
Business Day prior to the day of the requested borrowing in the case of
Eurodollar Loans. Each such request for borrowing shall be irrevocable and
shall specify (A) that a Term Loan advance is requested and the respective
tranche thereof, (B) the aggregate principal amount to be borrowed, and
(C) whether the borrowing shall be comprised of Base Rate Loans, Eurodollar
Loans or a
combination thereof, and if Eurodollar Loans are requested, the Interest
Period(s) therefor. A form of Loan Request is attached as Exhibit A-l. The
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Administrative Agent shall give notice to each Bank holding a Commitment
for the requested Term Loan promptly upon receipt of each Loan Request
pursuant to this Section 2.2(a)(iii), the contents thereof and each such
Bank's share of any borrowing to be made pursuant thereto.
1.4 The first sentence of Section 2.2(d) is amended and restated in its
entirety to read as follows:
In connection with any request for a Loan, (i) Revolving Loans may be
comprised of no more than ten (10) Eurodollar Loans outstanding at any
time, (ii) the Tranche A Term Loan shall be comprised of no more than four
(4) Eurodollar Loans outstanding at any time, and (iii) the Tranche B Term
Loan shall be comprised of no more than four (4) Eurodollar Loans
outstanding at any time.
1.5 Section 2.4(b) is amended and restated in its entirety to read as
follows:
(b) Term Loans.
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(i) The principal amount of the Tranche A Term Loan shall be due and
payable in full on the Termination Date.
(ii) The principal amount of the Tranche B Term Loan shall be due and
payable in full on the Termination Date.
1.6 Section 3.4(c) (ii) is amended and restated in its entirety to read as
follows:
(ii) Mandatory Prepayments. Mandatory prepayments made under subsection
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(b)(ii) in respect of Asset Dispositions, under subsection (b)(iii) in
respect of a sale of any capital stock in PAS or DLA, under subsection (b)
(iv) in respect of the EchoStar Transaction Documents, under subsection (b)
(v) in respect of dividends and distributions in respect of non-wholly
owned Subsidiaries, under subsection (b)(vi) in respect of Debt
Transactions, and under subsection (b)(vii) in respect of Equity
Transactions shall be applied (A) if the Term Loans have been made and are
outstanding, first to the Tranche A Term Loan and the Tranche B Term Loan
on a pro rata basis until paid in full, and thereafter, to the Revolving
Loans and/or to a cash collateral account in respect of the LOC
Obligations, and (B) if the Term Loans have not been made or have been paid
in full, to the Revolving Loans and/or to a cash collateral account in
respect of the LOC Obligations. Within the foregoing parameters for
application, mandatory prepayments shall be applied first to Base Rate
Loans and then to Eurodollar Loans in direct order of Interest Period
maturities.
1.7 Section 3.6(b) is amended and restated in its entirety to read as
follows:
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(b) Establishment of a Term Loan Facility. Subject to the terms and
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conditions set forth herein, the Borrower may at any time upon notice to the
Administrative Agent establish a Term Loan facility hereunder; provided that:
(i) any such Term Loan facility may consist of a Tranche A Term Loan
and/or a Tranche B Term Loan, each of which shall be in a minimum aggregate
principal amount of $5 million and integral multiples of $1 million in
excess thereof (or the remaining amount, if less),
(ii) the conditions to the making of a Loan set forth in Section 5.3
shall be satisfied,
(iii) the Borrower shall obtain commitments for the amount of the
Tranche A Term Loan and the Tranche B Term Loan from existing Banks or
other commercial banks or financial institutions reasonably acceptable to
the Administrative Agent, provided that such other commercial banks and
financial institutions join in this Agreement as Banks by Bank Joinder
Agreement in substantially the form attached hereto as Exhibit H or other
arrangement reasonably acceptable to the Administrative Agent. In
connection with any such Term Loan, Schedule 1 shall be revised to reflect
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the commitments and commitment percentages of the Banks, and the Borrower
will provide supporting corporate resolutions, legal opinions, promissory
notes and other items as may be reasonably requested by the Administrative
Agent and the Banks in connection therewith; and
(iv) after giving effect to any such Term Loan, the aggregate amount
of Total Commitments (including the Term Loan Commitments, if any) shall
not exceed Two Billion Dollars ($2,000,000,000).
SECTION 2 Consent. The Banks hereby consent to the selection by the
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Borrower of an Interest Period of seven days for the initial borrowing under the
Tranche B Term Loan.
SECTION 3 Representations and Warranties; No Default. The Borrower hereby
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affirms that, after giving effect to this Amendment, the representations and
warranties set forth in the Credit Agreement and the other Loan Documents are
true and correct in all material respects as of the date hereof (except those
that expressly relate to an earlier period), and no Event of Default or
Unmatured Event of Default exists under the Credit Agreement or the other Loan
Documents.
SECTION 4 Conditions Precedent. This Amendment shall become effective
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immediately upon receipt by the Administrative Agent, in each case in form and
substance reasonably satisfactory to the Administrative Agent and the Majority
Banks, of each of the following:
4.1 Counterparts of this Amendment duly executed by the Borrower, the
Majority Banks and the Administrative Agent.
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4.2 Opinions of counsel to the Credit Parties.
4.3 Payment by the Borrower of all fees and expenses owed by the Credit
Parties to the Banks and the Administrative Agent in connection herewith.
SECTION 5 Reaffirmation of Guaranty. Each of the Guarantors hereby (i)
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acknowledges and consents to all of the terms and conditions of this Amendment,
(ii) affirms all of its obligations under the Loan Documents and (iii) agrees
that this Amendment and all documents executed in connection herewith do not
operate to reduce or discharge such Guarantor's obligations under its Guaranty.
SECTION 6 Miscellaneous.
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6.1 Except as modified hereby, all of the terms and conditions of the
Credit Agreement (including Schedules and Exhibits) shall remain in full force
and effect.
6.2 The Borrower agrees to pay all reasonable costs and expenses of the
Administrative Agent in connection with the preparation, execution and delivery
of this Amendment, including reasonable fees and expenses of Xxxxx & Xxx Xxxxx,
PLLC, counsel to the Administrative Agent.
6.3 This Amendment may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original, and it shall
not be necessary in making proof of this Amendment to produce or account for
more than one such counterpart.
6.4 This Amendment shall be deemed to be a contract made under, and for all
purposes shall be construed in accordance with the laws of the State of New
York.
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IN WITNESS WHEREOF, each of the parties has caused a counterpart of this
Amendment to be duly executed and delivered as of the date first above written.
BORROWER: XXXXXX ELECTRONICS CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: V.P., Treasurer
GUARANTORS: DIRECTV BROADBAND, INC.,
a Delaware corporation
By:
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Name:
Title:
DIRECTV ENTERPRISES, INC.,
a Delaware corporation
By:
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Name:
Title:
DIRECTV CUSTOMER SERVICES, INC.,
a Delaware corporation
By:
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Name:
Title:
DIRECTV, INC.,
a California corporation
By:
--------------------
Name:
Title:
[signature pages continue]
IN WITNESS WHEREOF, each of the parties has caused a counterpart of this
Amendment to be duly executed and delivered as of the date first above written.
BORROWER: XXXXXX ELECTRONICS CORPORATION,
a Delaware corporation
By:
--------------------
Name:
Title:
GUARANTORS: DIRECTV BROADBAND, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx Xx.
--------------------
Name: Xxxxxx X. Xxxxx Xx.
Title: President & CEO
DIRECTV ENTERPRISES, INC.,
a Delaware corporation
By:
--------------------
Name:
Title:
DIRECTV CUSTOMER SERVICES, INC.,
a Delaware corporation
By:
--------------------
Name:
Title:
DIRECTV, INC.,
a California corporation
By:
--------------------
Name:
Title:
[signature pages continue]
IN WITNESS WHEREOF, each of the parties has caused a counterpart of this
Amendment to be duly executed and delivered as of the date first above written.
BORROWER: XXXXXX ELECTRONICS CORPORATION,
a Delaware corporation
By:
-------------------------
Name:
Title:
GUARANTORS: DIRECTV BROADBAND, INC.,
a Delaware corporation
By:
-------------------------
Name:
Title:
DIRECTV ENTERPRISES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
DIRECTV CUSTOMER SERVICES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
DIRECTV, INC.,
a California corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
[signature pages continue]
DIRECTV OPERATIONS, INC.,
a California corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
USSB II, INC.,
a Minnesota corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Treasurer
XXXXXX NETWORK SYSTEMS, INC.,
a Delaware corporation
By:
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Name:
Title:
XXXXXX TELECOMMUNICATIONS & SPACE COMPANY,
a Delaware corporation
By:
-------------------------
Name:
Title:
[signature pages continue]
DIRECTV OPERATIONS, INC.,
a California corporation
By:
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Name:
Title:
USSB II, INC.,
a Minnesota corporation
By:
------------------------
Name:
Title:
XXXXXX NETWORK SYSTEMS, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. XxXxxxx
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Name: Xxxxxx X. XxXxxxx
Title: Vice President
XXXXXX TELECOMMUNICATIONS & SPACE COMPANY,
a Delaware corporation
By:
------------------------
Name:
Title:
[signature pages continue]
DIRECTV OPERATIONS, INC.,
a California corporation
By:
--------------------
Name:
Title:
USSB II, INC.,
a Minnesota corporation
By:
--------------------
Name:
Title:
XXXXXX NETWORK SYSTEMS, INC.,
a Delaware corporation
By:
--------------------
Name:
Title:
XXXXXX TELECOMMUNICATIONS & SPACE
COMPANY, a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title:
[signature pages continue]
AGENT: BANK OF AMERICA, N.A., in its capacity as
----- Administrative Agent
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
LENDERS: BANK OF AMERICA, N.A., in its
-------- capacity as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
JPMORGAN CHASE BANK (as successor to XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK and
formerly known as THE CHASE MANHATTAN BANK)
By:
--------------------
Name:
Title:
DEUTSCHE BANK AG NEW YORK
BRANCH AND/OR CAYMAN ISLANDS BRANCH
By:
--------------------
Name:
Title:
By:
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Name:
Title:
CITICORP USA, INC.
By:
--------------------
Name:
Title:
[Signature pages continue]
AGENT: BANK OF AMERICA, N.A., in its capacity as
----- Administrative Agent
By:
-----------------------
Name:
Title:
LENDERS: BANK OF AMERICA, N.A., in its
------- capacity as a Lender
By:
-----------------------
Name:
Title:
JPMORGAN CHASE BANK (as successor to XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK and
formerly known as THE CHASE MANHATTAN BANK)
By: /s/ Xxxxx X. Xxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
DEUTSCHE BANK AG NEW YORK
BRANCH AND/OR CAYMAN ISLANDS BRANCH
By:
-----------------------
Name:
Title:
By:
-----------------------
Name:
Title:
CITICORP USA, INC.
By:
-----------------------
Name:
Title:
[Signature pages continue]
AGENT: BANK OF AMERICA, N.A., in its capacity as
----- Administrative Agent
By:
----------------------
Name:
Title:
LENDERS: BANK OF AMERICA, N.A., in its
------- capacity as a Lender
By:
----------------------
Name:
Title:
JPMORGAN CHASE BANK (as successor to XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK and
formerly known as THE CHASE MANHATTAN BANK)
By:
----------------------
Name:
Title:
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By: /s/ Xxxxxx Xxxxxxx
----------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxx
----------------------
Name: Xxxxxx Xxxxx
Title: Associate
CITICORP USA, INC.
By:
----------------------
Name:
Title:
[Signature pages continue]
AGENT: BANK OF AMERICA, N.A., in its capacity as
----- Administrative Agent
By:
----------------------
Name:
Title:
LENDERS: BANK OF AMERICA, N.A. in its
------- capacity as a Lender
By:
----------------------
Name:
Title:
JPMORGAN CHASE BANK (as successor to XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK and
formerly known as THE CHASE MANHATTAN BANK)
By:
----------------------
Name:
Title:
DEUTSCHE BANK AG NEW YORK
BRANCH AND/OR CAYMAN ISLANDS BRANCH
By:
----------------------
Name:
Title:
By:
----------------------
Name:
Title:
CITICORP USA, INC.
By: /s/ J. Xxxxxxx Xxxxx
----------------------
Name: J. Xxxxxxx Xxxxx
Title: Vice President
[Signature pages continue]
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxx X. Xxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director
By: /s/ Xxx X. Xxxxxx
----------------------
Name: Xxx X. Xxxxxx
Title: Associate
BANK OF NEW YORK
By:
-----------------------
Name:
Title:
THE FUJI BANK, LIMITED
By:
----------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
----------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By:
----------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By:
----------------------
Name:
Title:
By:
----------------------
Name:
Title:
[Signature pages continue]
FIRSTAR BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxx
----------------------
Name: Xxxxxx X. Xxxxxx
Title: V.P.
BANK HAPOALIM B.M.
By:
----------------------
Name:
Title:
By:
----------------------
Name:
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION, NEW YORK BRANCH
By:
----------------------
Name:
Title:
PB CAPITAL CORPORATION
By:
----------------------
Name:
Title:
By:
----------------------
Name:
Title:
ALLFIRST BANK
By:
----------------------
Name:
Title:
[Signature pages continue]
BANCA DI ROMA SPA
By:
----------------------
Name:
Title:
By:
----------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
----------------------
Name:
Title:
SANPAOLO IMI S.P.A.
By:
----------------------
Name:
Title:
BANK ONE, NA
By:
----------------------
Name:
Title:
CIBC, INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Director,
CIBC World Markets Corp.
AS AGENT
ING BANK N.V.
By:
----------------------
Name:
Title:
By:
----------------------
Name:
Title:
[Signature pages continue]
BANKERS TRUST COMPANY
By: /s/ Xxxxxxx Xxxxxxx
----------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
