EXHIBIT 10.6
FIRST AMENDMENT
TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this
"First Amendment") is dated as of the 16th day of July, 1998, and entered into
among ASCENT ENTERTAINMENT GROUP, INC., a Delaware corporation (the "Borrower"),
the Lenders signatory thereto, and NATIONSBANK, N.A., (successor by merger to
NationsBank of Texas, N.A.), a national banking association, individually and as
Administrative Agent (in such latter capacity, the "Administrative Agent").
WITNESSETH:
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WHEREAS, the Borrower, the Lenders, and the Administrative Agent entered
into a Second Amended and Restated Credit Agreement, dated as of December 22,
1997 (as amended, restated, waived or otherwise modified from time to time, the
"Credit Agreement"); and
WHEREAS, the Lenders, the Administrative Agent, and the Borrower have
agreed to amend the Credit Agreement to make certain changes to the terms
therein upon the terms and conditions set forth below;
NOW, THEREFORE, for valuable consideration hereby acknowledged, the
Borrower the Lenders and the Administrative Agent agree as follows:
SECTION 1. Definitions.
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(a) Definitions, Generally. Unless specifically defined or redefined
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below, capitalized terms used herein shall have the meanings ascribed thereto in
the Credit Agreement.
(b) Definition of Guarantor. The definition of "Guarantor" in Article I
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on page 12 of the Credit Agreement shall be deleted in its entirety and the
following shall be substituted in its stead:
"Guarantors" shall mean: Ascent Sports Holdings, Ascent
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Sports, Ascent Arena and Development Corporation, Ascent Arena
Company, LLC, Ascent Arena Operating Company, LLC, Beacon, Beacon
Music Publishing, Inc., Club Pictures, Inc. and Daily Double
Music Co., and all other wholly owned direct or indirect
Subsidiaries of the Borrower from time to time.
(c) Definition of Non-Recourse Arena Financing. The definition of "Non-
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Recourse Arena Financing" in Article I on pages 17 and 18 of the Credit
Agreement shall be deleted in its entirety and the following shall be
substituted in its stead:
"Non-Recourse Arena Financing" shall mean Indebtedness
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incurred by Ascent Arena Company, LLC or any Subsidiary of Ascent
Arena Company, LLC (including any trust or other entity in which
Ascent Arena Company, LLC has a beneficial interest) in
connection with the financing of the Arena/Complex (I) as to
which neither the Borrower nor any other Subsidiary of the
Borrower (A) provides credit support (including any undertaking,
agreement or instrument which would constitute Indebtedness) or
has given or made other written assurances regarding repayment
(except with respect to the limited construction Guarantee
permitted by Section 6.01(e) hereof), (B) is directly or
indirectly personally liable (except with respect to the limited
construction Guarantee permitted by Section 6.01(e) hereof) or
(C) constitutes the lender and (ii) the obligees of which will
have recourse solely against the assets comprising such project
(including rights under contracts to which the Ascent Arena
Company, LLC or any Subsidiary of Ascent Arena Company, LLC is a
party, such as a lessor under leases thereto) for repayment of
the principal of and interest on such Indebtedness and fees,
indemnities, expense reimbursements or other amounts of whatever
nature accrued or payable in connection with such Indebtedness
and that has terms and provisions reasonably satisfactory in form
and substance to, and approved in writing by, the Administrative
Agent in respect of the matters referred to in clause (I) or
clause (ii) above.
(d) Definition of Operating and Management Agreement. The following
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definition of "Operating and Management Agreement" is added to Article I on
page 19 of the Credit Agreement:
"Operating and Management Agreement" shall mean the
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agreement between Ascent Arena Company, LLC and Ascent Arena
Operating Company, LLC dated as of July 29, 1998, pursuant to
which Ascent Arena Operating Company, LLC will provide certain
management services to Ascent Arena Company, LLC with respect to
the operation, maintenance and control of the Arena/Complex.
SECTION 2. Amendment to Section 6.01(c) of the Credit Agreement. Section
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6.01(c) in Article VI on page 64 of the Credit Agreement shall be deleted in its
entirety and the following Section 6.01(c) shall be substituted in its stead:
(c) so long as there exists no Default or Event of Default
both before and after giving effect to the incurrence of such
Indebtedness, Ascent Arena Company, LLC or any Subsidiary of
Ascent Arena Company, LLC may incur Non-Recourse Arena Financing;
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SECTION 3. Amendment to Section 6.02(h) of the Credit Agreement. Section
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6.02(h) in Article VI on page 66 of the Credit Agreement shall be deleted in its
entirety and the following Section 6.02(h) shall be substituted in its stead:
(h) Liens granted by Ascent Arena Company, LLC and any
Subsidiary of Ascent Arena Company, LLC securing any permitted
Non-Recourse Arena Financing or the City and County of Denver's
interest in the Arena/Complex, but only to the extent such Liens
are limited to the realty, fixtures, equipment and other assets
comprising the Arena/Complex (including rights under contracts to
which the Ascent Arena Company, LLC or any Subsidiary of Ascent
Arena Company, LLC is a party, such as a lessor under leases
relating thereto);
SECTION 4. Amendment to Section 6.04 of the Credit Agreement. Section
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6.04 in Article VI on page 68 of the Credit Agreement shall be amended by (I)
deleting subsections (f) and (g) in their entirety, (ii) substituting the
following Sections 6.04(f) and (g) in their stead, and (iii) adding a new
section 6.04(h) before the final two "Notwithstanding" clauses as follows:
(f) in addition to those permitted Investments in (a)
through (e) above, so long as there exists no Default or Event of
Default both before and after giving effect to any such
Investment, other Investments made by the Borrower up to a
maximum amount outstanding at any one time of $10,000,000, but no
such Investment under this subsection (f) shall be made in On
Command Corp.;
(g) so long as there exists no Default or Event of Default
both before and after giving effect to any such Investment,
Investments made by Ascent Arena Company, LLC that constitute
loans or advances to its member that is not the Borrower or any
Subsidiary of the Borrower, but only in accordance with Arena
Operating Agreement; and
(h) so long as there exists no Default or Event of Default
both before and after giving effect to any such Investment,
Investments made by Ascent Arena Company, LLC in two new
Subsidiaries: Ascent Arena Operating Company, LLC and the Denver
Arena Trust, a Delaware business trust in which Ascent Arena
Company, LLC has the beneficial interest, created to effectuate
the Non-Recourse Arena Financing.
SECTION 5. Amendment to Section 6.05(b) of the Credit Agreement. Section
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6.05(b) in Article VI on pages 68 and 69 of the Credit Agreement shall be
deleted in its entirety and the following Section 6.05(b) shall be substituted
in its stead:
(b) sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) all or any
substantial part of its assets (whether now owned or hereafter
acquired) or any amount of Capital Stock of any Subsidiary of the
Borrower, except that (I) the Borrower and any Subsidiary of the
Borrower
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may sell or dispose of inventory and obsolete equipment in the
ordinary course of business, (ii) so long as there exists no
Default or Event of Default both before and after giving effect
thereto the Borrower or any of its Subsidiaries may (A) make an
Asset Disposition, so long as (I) the cumulative aggregate
consideration for all such Asset Dispositions after the date
hereof shall not exceed $10,000,000, and (II) such assets are not
used in the operation of the Nuggets Sub or the Avalanche Sub or
the related Teams, and (B) in addition to Asset Dispositions
permitted by subsection (A) above, make an Asset Disposition, so
long as (I) the cumulative aggregate consideration for all such
Asset Dispositions after the date hereof (but excluding the
proceeds from sales of those assets described on Schedule 6.05
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hereto) shall not exceed $10,000,000 and (II) such assets are not
used in the operation of the Nuggets Sub or the Avalanche Sub or
the related Teams, (iii) so long as there exists no Default or
Event of Default both before and after giving effect thereto the
Borrower or any of its Subsidiaries may sell the Capital Stock
described on Schedule 6.05 hereto, (iv) so long as there exists
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no Default or Event of Default both before and after giving
effect thereto, the Borrower, Nuggets Sub or the Ascent Arena
Company, LLC may convey the real estate used for the
Arena/Complex to the City and County of Denver, (v) so long as
there exists no Event of Default both before and after giving
effect thereto, any Wholly Owned Subsidiary of the Borrower may
transfer all or any part of its assets to the Borrower, (vi) so
long as there exists no Default or Event of Default both before
and after giving effect thereto, the Borrower may consummate the
sale leaseback transaction described on Schedule 6.03 hereto,
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(vii) so long as there exists no Default or Event of Default both
before and after giving effect thereto, Borrower may sell, assign
or otherwise dispose of those certain revenue contracts described
on Schedule 6.05(b) hereto in connection with the Non-Recourse
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Arena Financing, and (viii) the Borrower may consummate an On
Command Corp. Stock Sale. Notwithstanding anything to the
contrary herein or in any other Loan Paper, under no circumstance
may the Borrower or any Subsidiary of the Borrower sell, dispose
of or transfer any of the Capital Stock owned by the Borrower,
any Subsidiary of the Borrower or On Command Corp. and its
Subsidiaries, except the Capital Stock described on Schedule 6.05
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hereto and pursuant to any On Command Corp. Stock Sale.
SECTION 6. Amendment to Section 6.06 of the Credit Agreement. Section
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6.06 in Article VI on page 69 of the Credit Agreement shall be deleted in its
entirety and the following Section 6.06 shall be substituted in its stead:
SECTION 6.06. Dividends and Distributions; Restrictions on
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Ability of Subsidiaries to Pay Dividends. The Borrower will not,
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and will not cause or permit any of its Subsidiaries to, declare
or pay, directly or indirectly, any dividend or make any other
distribution (by reduction of capital or otherwise), whether in
cash, property, securities or a combination thereof, with respect
to any shares of its Capital Stock or directly or indirectly
redeem, purchase, retire or
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otherwise acquire for value (or permit any Subsidiary of the
Borrower to purchase or acquire) any shares of any class of its
Capital Stock or set aside any amount for any such purpose;
provided, however, that (I) any Subsidiary of the Borrower may
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declare and pay dividends or make other distributions to another
Wholly Owned Subsidiary or to the Borrower, (ii) the Borrower may
declare and pay dividends or make other distributions that
consist solely of common stock of the Borrower, (iii) the
Borrower may make redemptions or repurchases of its Capital Stock
in connection with employee stock options upon termination of
such employment, for an aggregate amount of consideration paid
from and after the date hereof of up to $10,000,000, in
connection with any employee stock option or incentive plans,
(iv) the Borrower may make dividends of Preferred Stock in
accordance with the terms and provisions of Section 6.01(g)
hereof, (v) so long as there exists no Default or Event of
Default both before and after giving effect to any such
distribution, distributions by Ascent Arena Company, LLC to its
member that is not the Borrower or its Subsidiary in accordance
with the Arena Operating Agreement, and (vi) so long as there
exist no Default or Event of Default both before and after giving
effect to any such distribution, Borrower may distribute or
otherwise convey the real estate used for the Arena/Complex to
the Nuggets Sub.
SECTION 7. Amendment to Section 6.08 of the Credit Agreement. Section
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6.08 in Article VI on page 70 of the Credit Agreement shall be deleted in its
entirety and the following Section 6.08 shall be substituted in its stead:
SECTION 6.08. Limitation on Restrictive Agreements. The Borrower
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will not, and will not cause or permit any of its Subsidiaries
to, enter into any indenture, agreement, instrument, financing
document or other arrangement which, directly or indirectly,
contains any financial covenants or prohibits or restrains, or
has the effect of prohibiting or restraining, or imposes
materially adverse conditions upon: (a) the incurrence of
Indebtedness, (b) the granting of Liens, (c) the making or
granting of Guarantees, (d) the payment of dividends or
distributions, (e) the purchase, redemption or retirement of any
Capital Stock, (f) the making of loans or advances, (g) transfers
or sales of property or assets (including Capital Stock) by the
Borrower or any of its Subsidiaries, other than restrictions on
the granting of Liens on, or the transfer of, assets that are
encumbered by Liens permitted under clauses (b), (h) and (i) of
Section 6.02 hereof with respect to the property or assets
covered by such Lien only, or (h) the making of amendments,
changes, waivers or consents with respect to this Agreement and
the Loan Papers, provided that, notwithstanding the foregoing,
(I) Nuggets Sub, Avalanche Sub, Ascent Arena Company, LLC and the
Subsidiaries of Ascent Arena Company, LLC may enter into
restrictive agreements relating solely to the Ascent Arena
Company, LLC and the Subsidiaries of Ascent Arena Company, LLC
and the Arena/Complex, each exclusively in connection with the
Non-Recourse Arena Financing, the
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Arena/Complex or the interest of the City and County of Denver in
the Arena/Complex acceptable to the Administrative Agent, (ii)
Ascent Arena Company, LLC may enter into the Arena Operating
Agreement, (iii) Ascent Arena Company, LLC and Ascent Arena
Operating Company, LLC may enter into the Operating and
Management Agreement, (iv)Beacon may enter into restrictive
agreements relating solely to Beacon, its Subsidiaries and the
related Motion Pictures invested in by Beacon and its
Subsidiaries, each exclusively in connection with Non-Recourse
Film Indebtedness, (v) the Borrower may enter into any such
restrictive agreements relating to any Preferred Stock permitted
under Section 6.01(g) hereof so long as no such restrictive
agreement shall be effective or binding on the Borrower or any of
its Subsidiaries until the earlier of (A) the Maturity Date and
(B) the payment in full of the Obligations and the termination of
the Commitments, and (vi) the Borrower may issue the Senior Notes
and enter into the Senior Notes Documentation.
SECTION 8. Affirmation. The Borrower hereby acknowledges and agrees that
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nothing in this First Amendment shall affect the Borrower's obligations under
the Credit Agreement or the other Loan Papers executed in connection therewith
(except as specifically provided in this First Amendment), which remain valid,
binding and enforceable, and except as amended hereby, unamended, or shall
constitute a waiver by the Lenders of any of their rights or remedies, now or at
any time in the future, with respect to any requirement under the Credit
Agreement or the other Loan Papers or with respect to an Event of Default or
Default, occurring now or at any time in the future.
SECTION 9. Conditions Precedent. This First Amendment shall not be
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effective until
(a) all proceedings of the Borrower taken in connection with this
First Amendment and the transactions contemplated hereby shall be
satisfactory in form and substance to the Administrative Agent and Lenders
signatory hereto,
(b) Ascent Arena Operating Company, LLC shall have executed a
Guaranty of the Obligations, and the Administrative Agent shall have
received all other Loan Papers and documentation required by it to
satisfactorily evidence the Obligations,
(c) the Administrative Agent shall have received an opinion of
counsel to the Borrower in form and substance acceptable to it, as to the
enforceability of this First Amendment and all the Loan Papers, and as to
such other matters as requested by the Administrative Agent,
(d) the Administrative Agent and Lenders shall have each received
such documents, instruments, and certificates, copies of resolutions, etc.,
each in form and substance satisfactory to the Lenders, as the Lenders
shall deem necessary or appropriate in connection with this First Amendment
and the transactions contemplated hereby, and
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(e) reimbursement for Administrative Agent for Xxxxxxx, Xxxxxxx &
Xxxxxxx, P.C.'s reasonable fees and expenses rendered through the date
hereof.
SECTION 10. Representations and Warranties. The Borrower represents and
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warrants to the Lenders and the Administrative Agent that (a) this First
Amendment constitutes its legal, valid, and binding obligations, enforceable in
accordance with the terms hereof (subject as to enforcement of remedies to any
applicable bankruptcy, reorganization, moratorium, or other laws or principles
of equity affecting the enforcement of creditors' rights generally), (b) there
exists no Event of Default or Default under the Credit Agreement after giving
effect to this First Amendment, (c) its representations and warranties set forth
in the Credit Agreement and other Loan Papers are true and correct on the date
hereof after giving effect to this First Amendment, (d) it has complied with all
agreements and conditions to be complied with by it under the Credit Agreement
and the other Loan Papers by the date hereof, (e) the Credit Agreement, as
amended hereby, and the other Loan Papers remain in full force and effect, and
(f) no notice to, or consent of, any Person is required under the terms of any
agreement of the Borrower in connection with the execution of this First
Amendment.
SECTION 11. Further Assurances. The Borrower shall execute and deliver
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such further agreements, documents, instruments, and certificates in form and
substance satisfactory to the Administrative Agent, as the Administrative Agent
or any Lender may deem reasonably necessary or appropriate in connection with
this First Amendment.
SECTION 12. Counterparts. This First Amendment and the other Loan Papers
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may be executed in any number of counterparts, all of which taken together shall
constitute one and the same instrument. In making proof of any such agreement,
it shall not be necessary to produce or account for any counterpart other than
one signed by the party against which enforcement is sought.
SECTION 13. PRIOR WAIVER; ENTIRE AGREEMENT. THIS FIRST AMENDMENT AND THE
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OTHER LOAN PAPERS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
SECTION 14. GOVERNING LAW. (A) THIS FIRST AMENDMENT AND ALL LOAN PAPERS
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SHALL BE DEEMED CONTRACTS MADE UNDER THE LAWS OF TEXAS AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF TEXAS, EXCEPT TO THE
EXTENT FEDERAL LAWS GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND
INTERPRETATION OF ALL OR ANY PART OF THIS FIRST AMENDMENT AND ALL LOAN PAPERS.
WITHOUT EXCLUDING ANY OTHER JURISDICTION, THE BORROWER AND EACH SUBSIDIARY
AGREES THAT THE COURTS OF
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TEXAS WILL HAVE JURISDICTION OVER PROCEEDINGS IN CONNECTION HEREWITH.
(B) THE BORROWER AND EACH SUBSIDIARY HEREBY WAIVES PERSONAL SERVICE OF ANY
LEGAL PROCESS UPON IT. IN ADDITION, THE BORROWER AND EACH SUBSIDIARY AGREES
THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY REGISTERED MAIL (RETURN RECEIPT
REQUESTED) DIRECTED TO THE BORROWER AT ITS ADDRESS DESIGNATED FOR NOTICE UNDER
THE CREDIT AGREEMENT AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON
RECEIPT BY THE BORROWER. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF THE
ADMINISTRATIVE AGENT OR ANY LENDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW.
SECTION 15. WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
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THE BORROWER, EACH SUBSIDIARY AND EACH LENDER HEREBY WAIVES ANY RIGHT THAT IT
MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE (WHETHER A CLAIM IN TORT, CONTRACT,
EQUITY, OR OTHERWISE) ARISING UNDER OR RELATING TO THIS FIRST AMENDMENT, THE
OTHER LOAN PAPERS, OR ANY RELATED MATTERS, AND AGREES THAT ANY SUCH DISPUTE
SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
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REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, this First Amendment to Credit Agreement is executed as of
the date first set forth above.
BORROWER: ASCENT ENTERTAINMENT GROUP, INC.
By: /s/ Xxxxx X.Xxxxxx, III
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Name: Xxxxx X. Xxxxxx, III
Its: Executive Vice President, Chief Operating
Officer and Chief Financial Officer
LENDERS: NATIONSBANK, N.A. (successor by merger to
NationsBank of Texas, N.A.), as Administrative
Agent, and individually as a Lender
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Its: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxx, Xx.
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Name: Xxxxxxx X. Xxxxx, Xx.
Its: Assistant Vice President
PARIBAS (formerly BANQUE PARIBAS)
By: /s/ Xxxxx X. Xxxxxx / Xxxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx / Xxxxxx X. Xxxxxx
Its: Vice President / Director
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NATEXIS BANQUE - BFCE
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Its: Vice President
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