EXHIBIT 10.36
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT is dated as of February 19,
1997 and is between TCI COMMUNICATIONS, INC., a Delaware corporation ("TCIC"),
----
and TCI SATELLITE ENTERTAINMENT, INC., a Delaware corporation ("Satellite
---------
Company").
-------
RECITALS:
--------
A. On December 4, 1996, Satellite Company and TCIC executed a Credit
Agreement, dated as of December 4, 1996 (the "TCIC Credit Agreement"). TCIC and
---------------------
Satellite Company entered into the TCIC Credit Agreement for the purpose of
providing to Satellite Company a $250,000,000 term loan and a $500,000,000
revolving loan facility.
B. On December 31, 1996, Satellite Company entered into a Credit
Agreement (as amended by a First Amendment to Bank Credit Agreement, dated
February 19, 1997, and as thereafter amended or modified from time to time, the
"Bank Credit Agreement") among The Bank of Nova Scotia, as Administrative Agent,
---------------------
Nationsbank of Texas, N.A., as the Syndication Agent, Credit Lyonnais New York
Branch as the Documentation Agent, the financial institutions named as lenders
therein, and The Bank of Nova Scotia, Credit Lyonnais New York Branch and
Nationsbank of Texas, as the Arranging Agents. Proceeds from the initial
borrowing under the Bank Credit Agreement were used to permanently retire the
$250,000,000 term loan under the TCIC Credit Agreement.
C. Section 7.1.12 of the Bank Credit Agreement requires Satellite
Company to enter into an amendment to the TCIC Credit Agreement to provide for,
among other things, limitations on the availability of the Revolving Loans (as
defined in Article I hereof).
D. Satellite Company proposes to issue in a private transaction
$475,000,000 aggregate principal amount at maturity of senior subordinated notes
due 2007 (of which approximately $275,000,000 aggregate principal face amount
will be discount notes, resulting in approximately $150,000,000 gross proceeds
to Satellite Company), which notes Satellite Company is required to offer to
make an offer to repurchase in full if the GE-2 satellite (as defined in the
Indentures (as defined in Article I hereof)) does not meet certain operating
criteria. In such event, the escrowed net proceeds of the offering and sale of
such notes would be insufficient to pay the full purchase price, and TCIC
desires to agree to make loans to Satellite Company to fund such deficiency in
an amount not to exceed the Note Offering Expenses (as defined in Article I
hereof). The Purchase Agreement dated February 14,
1997 between Satellite Company and the Initial Purchasers (as defined in the
Indentures) requires that Satellite Company and TCIC enter into an amendment to
the TCIC Credit Agreement to, among other things, provide for the making of
loans under this Amended and Restated Credit Agreement for the aforementioned
purpose.
E. In order to satisfy the requirements of section 7.1.12 of the
Bank Credit Agreement and the requirements of such Purchase Agreement and to
provide for loans to fund such deficiency, the parties are entering into the
following amendment and restatement of the TCIC Credit Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agree-
ments set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
ARTICLE I.
CERTAIN DEFINITIONS
"Administrative Agent" shall have the meaning given to such term in
--------------------
the Bank Credit Agreement.
"Bank Credit Agreement" shall have the meaning set forth in the
---------------------
recitals.
"Bank Obligations" shall mean the "Obligations" as defined in the Bank
----------------
Credit Agreement.
"Business Day" shall mean any day (other than a Saturday, Sunday or
------------
legal holiday in the State of Colorado or the State of New York) on which banks
are open for business in New York, New York and Denver, Colorado.
"Commitment Fee" shall have the meaning set forth in Section 2.05.
--------------
"Default" shall mean an event that with the giving of notice or the
-------
passage of time (or both) would constitute an Event of Default.
"Escrow Account" shall have the meaning given to such term in each
--------------
Indenture.
-2-
"Escrow Agreement" shall have the meaning given to such term in each
----------------
Indenture.
"Event of Default or "Events of Default" shall have the meanings set
---------------- -----------------
forth in Article VI.
"GE-2 Satellite Event" shall have the meaning given to such term in
--------------------
the Bank Credit Agreement as such agreement is in effect on the date hereof.
"Indebtedness" shall mean, with respect to any Person, without
------------
duplication: (i) all obligations of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, notes, debentures or similar
instruments, (iii) all obligations of such Person upon which interest charges
are customarily paid, (iv) all obligations of such Person issued or assumed as
the deferred purchase price of property or services (other than accounts payable
to suppliers incurred in the ordinary course of business), and (v) all
obligations of such Person in respect of letters of credit and bankers
acceptances. The term "Indebtedness" shall not include the obligation of any
Person guaranteeing the Indebtedness of any other Person.
"Indentures" shall mean (i) the indenture to be dated as of February
----------
20, 1997 between Satellite Company and The Bank of New York, as indenture
trustee, with respect to the issuance of the Senior Subordinated Notes and (ii)
the indenture to be dated as of February 20, 1997 between Satellite Company and
The Bank of New York, as indenture trustee, with respect to the issuance of the
Senior Sub Discount Notes and "Indenture" means either of them.
---------
"LC Commitment Fee" shall mean the fee payable by Satellite Company to
-----------------
TCIC for extending the maturity of the PRIMESTAR Letter of Credit beyond June
30, 1997 to December 31, 1997.
"Maturity Date" shall mean September 30, 2001.
-------------
"Maximum Rate" shall have the meaning set forth in Section 2.02(d).
------------
"Note or Notes" shall mean the promissory note or notes executed
-------------
pursuant to the Revolving Loans by Satellite Company as maker in favor of TCIC
and in substantially the form of Exhibit A hereto.
---------
"Note Offering Expenses" shall mean the sum of (a) the aggregate fees
----------------------
and expenses incurred by Satellite Company (or for which Satellite Company has
agreed to ▇▇▇▇-
-3-
▇▇▇▇▇ others) in connection with the offering and sale of the Senior Sub
Discount Notes and the Senior Subordinated Notes, including among other things,
underwriter discounts and commissions (in an amount not less than that shown on
the cover page of the Offering Memorandum), auditor fees and expenses, legal
fees and expenses, trustee fees and expenses and the fees and expenses
associated with the proposed escrow of the proceeds of the sale of the Senior
Subordinated Notes and the Senior Sub Discount Notes and (b) the difference
between the sum of interest accrued on the Senior Subordinated Notes and the
accrual of original issue discount on the Senior Sub Discount Notes during the
period such proceeds are escrowed pursuant to Section 4.19 of the Indentures
and the aggregate interest received by Satellite Company in respect of the
investment of such proceeds in the escrow account required by Section 4.19 of
the Indentures. In no event shall Note Offering Expenses be less than
$14,000,000.
"Offering Memorandum" means the Offering Memorandum dated February 14,
-------------------
1997 distributed by Satellite Company to potential investors with respect to the
Senior Sub Discount Notes and the Senior Subordinated Notes.
"Offer to Purchase" shall have the meaning given to such term in the
-----------------
Indentures.
"Person" shall mean any natural person, corporation, limited liability
------
company, partnership, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or any other entity, whether
acting in an individual, fiduciary or other capacity.
"Prepayment Notice" shall have the meaning set forth in Section
-----------------
2.03(b).
"PRIMESTAR Letter of Credit" shall mean the letter of credit issued
--------------------------
pursuant to an Amended and Restated Reimbursement Agreement among TCI UA I,
Inc., Chemical Bank, as Administrative Agent and Bank, and The Toronto Dominion
Bank, as Departing Bank dated as of March 1, 1995.
"Revolving Loan Commitment" shall mean a total of $100,000,000
-------------------------
principal amount, as such amount may be adjusted from time to time pursuant to
Section 2.04.
"Revolving Loan Commitment Termination Date" shall mean the date on
------------------------------------------
which the Commitment of TCIC to make Revolving Loans under this Agreement shall
terminate in accordance with Section 2.04.
-4-
"Revolving Loans" shall have the meaning set forth in Section 2.01.
---------------
"Satellite Company" shall have the meaning set forth in the recitals.
-----------------
"Satellite Event Date" shall have the meaning given to such term in
--------------------
the Bank Credit Agreement as of the date hereof; provided, however, that clause
-------- -------
(c) of the definition of Replacement Satellite Event (as defined in the Bank
Credit Agreement) used therein shall be deemed to not be a part thereof.
"Senior Sub Discount Notes" shall mean the $275,000,000 principal
-------------------------
amount at maturity of 12 1/4% Senior Subordinated Discount Notes due February
15, 2007 issued by Satellite Company.
"Senior Subordinated Notes" shall mean the $200,000,000 principal
-------------------------
amount of 10 7/8% Senior Subordinated Notes due February 15, 2007 issued by
Satellite Company.
"Significant Restricted Subsidiary" shall have the meaning given to
---------------------------------
such term in the Indentures as in effect from time to time.
"Specified Use" shall mean the use of a borrowing hereunder to pay the
-------------
excess of (i) the purchase price for all Senior Sub Discount Notes and Senior
Subordinated Notes tendered pursuant to an Offer to Purchase made pursuant to
Section 4.19 of the Indentures over (ii) the sum of the aggregate amount in each
Escrow Account under each Escrow Agreement at the time of such purchase of such
notes.
"Standby Commitment Fee" shall have the meaning set forth in Section
----------------------
2.05.
"Subsidiary" shall mean (with respect to any Person) any corporation,
----------
limited liability company, partnership or joint venture, whether now existing or
hereafter organized or acquired in which: (i) (in the case of a corporation)
securities having a majority of the voting power in the election of directors
(excluding for these purposes securities that entitle the holder to vote only
upon the occurrence of a contingency) are at the time owned, directly or
indirectly, by such Person and/or one or more of its Subsidiaries, or (ii) (in
the case of a limited liability company, partnership or joint venture): (y) the
managing general partner is such Person or one or more of its Subsidiaries, or
(z) a majority of the ownership interests are owned, directly or indirectly, by
such Person or one or more of its Subsidiaries.
"TCIC" shall have the meaning set forth in the recitals.
----
-5-
"TCIC Credit Agreement" shall have the meaning set forth in the
----------------------
recitals.
"Unused Portion of the Revolving Loan Commitment" shall mean, as of
-----------------------------------------------
any date, the Revolving Loan Commitment as of such date less the aggregate
unpaid principal amount of all Revolving Loans outstanding as of such date.
ARTICLE II.
THE REVOLVING LOANS
SECTION 2.01. Revolving Loans.
---------------
(a) Upon the terms and subject to the conditions set forth in this
Agreement, TCIC agrees to originate the revolving loans on a revolving credit
basis to Satellite Company (the "Revolving Loans"), from time to time, from the
---------------
date of this Agreement until the Revolving Loan Commitment Termination Date, at
such time and in such amounts as Satellite Company shall request, in an
aggregate principal amount at any time outstanding not in excess of the
Revolving Loan Commitment. Upon the terms and subject to the conditions set
forth in this Agreement, Satellite Company (or the Administrative Agent if an
Event of Default under the Bank Credit Agreement has occurred and is continuing)
may borrow, repay and reborrow funds from TCIC. Anything contained herein to
the contrary notwithstanding, if Satellite Company issues and sells Senior
Subordinated Notes and/or Senior Sub Discount Notes resulting in aggregate
gross proceeds of at least $350,000,000, then the Revolving Loans will not be
available hereunder unless, prior to the Revolving Loan Commitment Termination
Date, Satellite Company makes an Offer to Purchase pursuant to Section 4.19 of
the Indentures all of the Senior Subordinated Notes and all of the Senior Sub
Discount Notes, as provided in the Indentures, and, in such event, the
Revolving Loans shall only be available in an aggregate principal amount up to
$50,000,000 until Satellite Company shall have purchased all the notes tendered
pursuant to such Offer to Purchase.
(b) In order to effect a borrowing under the Revolving Loan
Commitment, Satellite Company (or the Administrative Agent if an Event of
Default under the Bank Credit Agreement has occurred and is continuing) shall
give TCIC irrevocable written notice not less than three Business Days before a
requested borrowing. Such notice shall in each case be signed by an authorized
officer and shall refer to this Agreement and specify: (i) the amount of the
requested borrowing under this Agreement, (ii) the date (which shall be a
Business Day) on which Satellite Company is to receive the proceeds of such
borrowing, (iii) whether the proceeds of the bor-
-6-
rowing will be used for the Specified Use and the amount of the borrowing for
such Specified Use, and (iv) that all conditions to such borrowing set forth in
Article IV of this Agreement have been satisfied. Satellite Company shall be
deemed to be making, as of the date of the delivery of the borrowing notice, the
representations and warranties contained in Article III of this Agreement by
the act of delivering such borrowing notice to TCIC.
(c) The Revolving Loans made by TCIC shall be evidenced by the Notes
(which shall be substantially in the form of Exhibit A hereto) duly executed on
---------
behalf of Satellite Company. TCIC shall endorse on the schedule attached to
the Notes, or otherwise record in its internal records, an appropriate notation
evidencing the date and amount of each Revolving Loan, each payment and
prepayment of the principal amount of any Revolving Loan and other information
provided for on such schedule; provided, however, that the failure of TCIC to
-------- -------
make such a notation or any error in such notation shall not affect the
obligation of Satellite Company to repay the Revolving Loans in accordance with
the terms of this Agreement and the Notes.
SECTION 2.02. Interest on the Revolving Loans.
-------------------------------
(a) Subject to Section 2.02(d) below, the principal amount of each
Revolving Loan shall bear interest at a rate per annum (computed on the basis of
the actual number of days elapsed over a year of 360 days) equal to 10%.
Accrued interest shall compound semi-annually until paid.
(b) Interest on each Revolving Loan shall be due and payable on the
date the principal amount of such Revolving Loan is prepaid, upon acceleration
of such Revolving Loan, or upon the Maturity Date.
(c) If Satellite Company shall default in the payment of the
principal of, or interest on any Revolving Loan, or on any other amount
becoming due hereunder, by scheduled maturity or acceleration, Satellite Company
shall, on demand from time to time from TCIC, pay interest, to the extent
permitted by law, on such defaulted amount up to the date of actual payment
(after as well as before judgment) at a rate per annum (computed on the basis of
the actual number of days elapsed over a year of 360 days) equal to the interest
rate then in effect pursuant to Section 2.02(a) above plus 2%.
(d) All agreements between Satellite Company and TCIC are expressly
limited so that in no contingency or event whatsoever shall the interest paid or
agreed to be paid to TCIC for the use, forbearance, or detention of the
indebtedness evidenced by the Notes exceed
-7-
the maximum rate permissible under applicable law (the "Maximum Rate"). If from
------------
any circumstance TCIC should ever receive an amount which would represent
interest in excess of the Maximum Rate, such amount as would be excessive
interest shall be applied to the reduction of the principal amount owing under
the Notes and not to the payment of interest. In determining whether the
interest paid or payable, under any contingency, exceeds such Maximum Rate,
Satellite Company and TCIC shall to the maximum extent permitted by applicable
law: (i) characterize any non-principal payment as an expense, fee, or premium
rather than as interest; (ii) exclude voluntary prepayments and the effects
thereof; (iii) amortize, prorate, al locate, and spread the total amount of
interest throughout the full term of the Notes so that the actual rate of such
interest does not exceed such Maximum Rate; or (iv) allocate interest between
portions of the debt evidenced hereby so that no portion of such debt shall bear
interest at a rate greater than such Maximum Rate. For purposes of the Notes,
the term "applicable laws" shall mean that law in effect from time to time and
applicable to the credit transaction between Satellite Company and TCIC which
lawfully permits the charging and collection of the highest permissible, lawful,
non-usurious rate of interest on such transaction and the Notes, including laws
of the State of Colorado and, to the extent controlling, laws of the United
States of America.
SECTION 2.03. Payment; Maturity; Prepayment.
-----------------------------
(a) Unless accelerated hereunder, the principal amount of each
Revolving Loan, together with all interest accrued thereon, shall be due and
payable on the Maturity Date.
(b) Satellite Company shall have the right, at any time and from time
to time, to prepay any Revolving Loan, in whole or in part, without premium or
penalty, upon giving written notice (a "Prepayment Notice") to TCIC at least
-----------------
three Business Days prior to such prepayment. Each Prepayment Notice shall
specify the principal amount of each Revolving Loan (or portion thereof) to be
prepaid and the date of prepayment and shall commit Satellite Company to prepay
such borrowing on the date specified therein. All prepayments shall be ac-
companied by accrued interest on the principal amount being prepaid to the date
of prepayment. Notwithstanding the foregoing, Satellite Company may not prepay
the Revolving Loans made for the Specified Use unless and until the prior
written consent of the requisite lenders under the Bank Credit Agreement has
been obtained.
(c) Satellite Company shall be required to prepay all amounts due
under the Revolving Loans and this Agreement on the Satellite Event Date.
Notwithstanding the preceding sentence, Satellite Company shall be required to
prepay the Revolving Loans on the
-8-
Satellite Event Date: (i) only if no Default under the Bank Credit Agreement
has occurred, is continuing, or would result from such payment, (ii) only if no
Event of Default or Default under the Bank Credit Agreement of which Senior
Management (as defined in the Bank Credit Agreement) was aware or should have
been aware has occurred and is continuing (or would result therefrom) and (iii)
only to the extent that there is an unused Available Commitment Amount under the
Bank Credit Agreement. If an Event of Default exists on the Satellite Event Date
but is later cured or waived, Satellite Company shall prepay all amounts due
under the Revolving Loans as soon as no Event of Default under the Bank Credit
Agreement exists and shall prepay to the extent of any unused Available
Commitment Amount. Satellite Company's obligation to prepay under the
conditions of this section 2.03(c) shall continue after the Satellite Event Date
until full prepayment of the Revolving Loans.
SECTION 2.04. Reduction and Termination of Revolving Loan Com-
-----------------------------------------------
mitment.
-------
(a) Upon at least three Business Days prior irrevocable written
notice to TCIC, Satellite Company may at any time in whole or, from time to
time, in part permanently reduce the amount of the Revolving Loan Commitment but
only if the GE-2 Acceptance (as defined in the Indentures) has occurred and been
certified to the trustees under the Indentures in accordance therewith or
Satellite Company has purchased and paid for all Senior Sub Discount Notes and
Senior Subordinated Notes tendered pursuant to an Offer to Purchase made in ac-
cordance with Section 4.19 of the Indentures; provided, however, that Satellite
-------- -------
Company shall obtain the written consent of the Administrative Agent prior to
any reduction of the Revolving Loan Commitment prior to the Satellite Event
Date.
(b) The Revolving Loan Commitment shall terminate on the earliest to
occur of: (i) the Maturity Date, (ii) the Satellite Event Date (but only if the
GE-2 Acceptance (as defined in the Indentures) has occurred and been certified
to the trustees under the Indentures in accordance therewith or Satellite
Company has purchased and paid for all Senior Sub Discount Notes and Senior
Subordinated Notes tendered pursuant to an Offer to Purchase made in accordance
with Section 4.19 of the Indentures), or (iii) an Event of Default.
-9-
SECTION 2.05. Facility Fees. As additional compensation to TCIC in
-------------
connection with this Agreement and the Revolving Loans, Satellite Company shall
pay to TCIC: (i) a standby commitment fee of .125% per annum (the "Standby
-------
Commitment Fee") on the average daily Unused Portion of the Revolving Loan
--------------
Commitment, for the period commencing on the date of this Agreement through and
including the date of the GE-2 Satellite Event and (ii) a commitment fee (the
"Commitment Fee") equal to .375% per annum on the average daily Unused Portion
---------------
of the Revolving Loan Commitment, for the period commencing on the date of the
determination by the Administrative Agent that the GE-2 Satellite Event has not
occurred through and including the Revolving Loan Commitment Termination Date.
The Standby Commitment Fee and the Commitment Fee shall be computed on the basis
of a 360-day year for actual days elapsed and shall be payable annually, in
arrears, on each anniversary of the date of this Agreement, and on the Revolving
Loan Commitment Termination Date.
SECTION 2.06. No Security. The Revolving Loans made by TCIC under
-----------
this Agreement, and all fees owing by Satellite Company under this Agreement and
the Notes, shall be unsecured.
SECTION 2.07. Subordination; Revolving Loans Not Senior Indebted-
--------------------------------------------------
ness. The Revolving Loans shall be subordinated to the Bank Obligations as
----
provided in Article VII hereof. TCIC and Satellite Company expressly
acknowledge, covenant and agree for the benefit of the holders of the Senior
Sub-Discount Notes and the Senior Subordinated Notes that the Revolving Loans
and all other obligations of Satellite Company hereunder are not Senior
Indebtedness as defined in the Indentures.
SECTION 2.08. LC Commitment Fee. Upon the extension of the expi-
-----------------
ration of the PRIMESTAR Letter of Credit past June 30, 1997, as provided in
section 5.02 hereof, Satellite Company shall pay to TCIC an LC Commitment Fee
equal to .5% of the principal amount of the PRIMESTAR Letter of Credit.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Mutual Representations and Warranties. As an induce-
-------------------------------------
ment to enter into this Agreement, each party represents to and agrees with the
other that:
-10-
(a) it is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all requisite corporate
power to own, lease and operate its properties, to carry on its business as
presently conducted and to carry out the transactions contemplated by this
Agreement.
(b) it has duly and validly taken all corporate action necessary to
authorize the execution, delivery and performance of this Agreement (and, with
respect to Satellite Company, the Notes).
(c) this Agreement (and, with respect to Satellite Company, the
Notes) has been duly executed and delivered by it and constitutes its legal,
valid and binding obligation enforceable in accordance with its terms.
(d) none of the execution and delivery of this Agreement (and, with
respect to Satellite Company, the Notes) or the compliance with any of the
provisions of this Agreement (and, with respect to Satellite Company, the Notes)
will (i) conflict with or result in a breach of any provision of its corporate
charter or by-laws, (ii) breach, violate or result in a default under any of the
terms of any agreement or other instrument or obligation (including, without
limitation, those in respect of Indebtedness) to which it or any of its
Subsidiaries is a party or by which it or any of its Subsidiaries' properties or
assets may be bound, or (iii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to it or any of its Subsidiaries or
affecting any of its Subsidiaries' properties or assets.
ARTICLE IV.
CONDITIONS OF LENDING
SECTION 4.01. Conditions Precedent. The obligation of TCIC to make a
--------------------
Revolving Loan hereunder on any date shall be subject to the fulfillment of the
following conditions precedent:
(a) TCIC shall have received a notice of such borrowing as required
by Section 2.01(b).
(b) The representations and warranties of Satellite Company set forth
in Article III shall be true and correct with the same effect as though made on
and as of such date.
-11-
(c) Satellite Company shall be in compliance with all of the terms
and conditions of this Agreement (including the Notes), and at the time of, and
immediately after such borrowing no Default or Event of Default shall have
occurred and be continuing.
(d) Other than for purposes of making Revolving Loans for the
Specified Use, the GE-2 Satellite Event shall not have occurred.
(e) Solely for purposes of making Revolving Loans for the Specified
Use, the GE-2 Acceptance (as defined in the Indentures) shall not have occurred
as certified to the trustees under the Indentures in accordance therewith.
(f) The Available Amount (as defined in the Bank Credit Agreement)
shall have been fully utilized if the proceeds of the drawing will be used by
Satellite Company for purposes other than the Specified Use. If the proceeds of
the drawing will be used by Satellite Company for the Specified Use, then the
Available Amount need not have been fully utilized prior to making such drawing,
however, Revolving Loans may not be made for the Specified Use in excess of the
Note Offering Expenses.
ARTICLE V.
COVENANTS
SECTION 5.01. Incorporation of Indenture Covenants. Satellite Com-
------------------------------------
pany covenants and agrees with TCIC that, after such time as Revolving Loans are
first made hereunder and thereafter so long as this Agreement shall remain in
effect, or the principal of, or interest on any Revolving Loan or any other
amount payable hereunder shall be unpaid, Satellite Company will remain in
compliance with all of the affirmative and negative covenants set forth in
Article Four of the Indentures (as amended or modified and in effect from time
to time) and such covenants (except for Section 4.01, Section 4.02, Section
4.14, Section 4.19, Section 4.20 and Section 4.23 and except for any obligation
to make any Offer to Purchase under the Indentures) shall be deemed to be
incorporated herein by reference, mutatis mutandis (as amended or modified and
------- --------
in effect from time to time), as though such covenants were made in favor of
TCIC, references therein to obligations made under the Indentures referring to
obligations hereunder, and references therein to the noteholders or trustees
made under the Indentures referring to TCIC. In addition, such covenants (as
amended or modified and in effect from time to time) shall continue to be
incorporated by reference until the Revolving Loan Termination Date
notwithstanding any prior payment of the Senior Subordinated Notes and/or
Senior Sub-Discount Notes.
-12-
SECTION 5.02. Extension of PRIMESTAR Letter of Credit. TCIC agrees
---------------------------------------
to enter into (or to cause TCI UA I, Inc. to enter into) an amendment to the
Reimbursement Agreement relating to the PRIMESTAR Letter of Credit for the
purpose of extending the expiration date of the PRIMESTAR Letter of Credit to
June 30, 1997, and, if requested by Satellite Company, to further extend such
expiration date to December 31, 1997, unless, with the exercise of diligent best
efforts, TCIC is unable to procure such extension.
ARTICLE VI.
DEFAULTS
If and so long as any one or more of the following events ("Events of
---------
Default") shall occur and be continuing, TCIC may by written notice to Satellite
-------
Company, the Administrative Agent and the trustees under the Indentures
terminate the Revolving Loan Commitment and/or declare the entire unpaid
balance of the principal of, and interest on any outstanding Revolving Loans to
be forthwith due and payable, and thereupon the same and any unpaid Standby
Commitment Fees or Commitment Fees and all other liabilities of Satellite
Company accrued hereunder shall immediately become due and payable without
further action, except that in the case of the occurrence of an Event of Default
described in Section 6.05, the Revolving Loan Commitment shall automatically
terminate and the unpaid balance of the principal of, and interest on all of the
outstanding Revolving Loans and any unpaid Standby Commitment Fees or
Commitment Fees and all other liabilities of Satellite Company accrued hereun-
der shall automatically become due and payable without any requirement of
notice. Except for the notice provided for in the immediately preceding
sentence, Satellite Company hereby expressly waives any presentment, demand,
protest, notice of protest or other notice of any kind.
SECTION 6.01. Failure to Pay.
--------------
(a) Failure by Satellite Company to make any payment of principal or
interest on the Revolving Loans when due, whether at maturity or at a date fixed
for prepayment or otherwise; provided, however, that no event of default shall
-------- -------
be deemed to occur upon a failure by Satellite Company to make an optional
prepayment under section 2.03(b); or
(b) Failure by Satellite Company to pay the Standby Commitment or the
Commitment Fee in full within thirty (30) days after the date such payment is
due.
-13-
SECTION 6.02. Breach of Covenants. Failure by Satellite Company to
-------------------
perform or observe any of the agreements or covenants of Satellite Company set
forth in this Agreement (including, without limitation, any agreements or
covenants set forth in the Indentures and incorporated herein by reference) and
such default shall continue for 30 days or more after written notice to
Satellite Company, the trustees under the Indentures and the Administrative
Agent shall have been given by TCIC specifying such default and demanding that
it be remedied and stating that it is a "notice of default" hereunder.
SECTION 6.03. Breach of Debt Instrument. A default by Satellite
-------------------------
Company or any of its Significant Restricted Subsidiaries in the payment of,
principal of, or interest on any Indebtedness in excess of $15,000,000, or the
failure to observe or perform any other agreement or condition relating to any
such Indebtedness, or the occurrence or failure to occur of any other event or
condition, so that, as a result of such default, failure to observe or perform,
occurrence or failure to occur, such Indebtedness is accelerated or declared due
and payable prior to the date on which such Indebtedness would otherwise become
due and payable, which Indebtedness shall not have been repaid or such
acceleration rescinded within 20 days of such event, unless prior to the
exercise by TCIC of any of its remedies hereunder (including acceleration of the
maturity of the Revolving Loans): (i) such default, failure to observe or
perform, occurrence or failure to occur has been cured in full or
unconditionally waived with the result that the payment of such Indebtedness may
not thereafter be accelerated on the basis thereof, or (ii) such declaration of
acceleration has been rescinded or annulled on terms reasonably satisfactory to
TCIC, or (iii) Satellite Company or such Significant Restricted Subsidiary, as
the case may be, shall have contested such declaration of acceleration in good
faith and by appropriate proceedings and have obtained and thereafter maintained
the stay of such acceleration and all consequences thereof that would have a
material adverse effect on Satellite Company and its Significant Restricted
Subsidiaries (considered as a whole) or the rights of TCIC hereunder.
SECTION 6.04. Breach of Representation. Any representation or war-
------------------------
ranty made by Satellite Company to TCIC in this Agreement, or in connection with
the making of any Revolving Loan, or in any certificate or other document
furnished by Satellite Company at any time under or in connection with this
Agreement, shall prove to have been false in any material respect when made.
SECTION 6.05. Bankruptcy, Etc. Satellite Company shall make an as-
---------------
signment for the benefit of creditors, file a petition in bankruptcy, be
adjudicated insolvent or bankrupt, suffer an order for relief under any federal
bankruptcy law, petition or apply to any tribunal for the appointment of a
custodian, receiver or any trustee for it or a substantial part
-14-
of its assets, or shall commence any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect; or if
there shall have been filed any such petition or application, or any such
proceeding shall have been commenced against it, which remains undismissed for
a period of sixty (60) days or more; or Satellite Company, by any act or
omission, shall indicate its consent to, approval of, or acquiescence in any
such petition, application or proceeding or the appointment of a custodian,
receiver or any trustee for it or any substantial part of any of its properties,
or shall suffer any custodianship, receivership or trusteeship to continue
undischarged for a period of sixty (60) days or more.
SECTION 6.06. Judgments, Etc. Any judgment (not subject to appeal)
--------------
against Satellite Company or any of its Significant Restricted Subsidiaries for
any amount in excess of $15,000,000 (net of amounts covered by insurance)shall
remain unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a
period of sixty (60) days or more after the date to appeal has expired.
ARTICLE VII.
SUBORDINATION
SECTION 7.01. Revolving Loans Subordinated to Bank Obligations.
------------------------------------------------
Satellite Company covenants and agrees, and each holder of the Notes by its
acceptance thereof likewise agrees, that the payment of the principal of and
interest on any Revolving Loan is subordinated, to the extent and in the manner
provided in Article Eight of the Indentures as in effect on the date of the
first issuance of notes under the Indentures, to the prior payment in full of
all Bank Obligations and agrees that the terms of subordination set forth in
Article Eight of the Indentures shall be incorporated by reference herein,
mutatis mutandis.
------- --------
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.01. Severability. If any term, provision, covenant or
------------
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of
-15-
such which may be hereafter declared invalid, void or unenforceable. In the
event that any such term, provision, covenant or restriction is so held to be
invalid, void or unenforceable, the parties hereto shall use their best efforts
to find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision or restriction.
SECTION 8.02. Assignment. This Agreement shall not be assignable, in
----------
whole or in part, directly or indirectly, by operation of law or otherwise, by
Satellite Company without the prior written consent of TCIC, and any attempt by
Satellite Company to assign any rights or obligations arising under this
Agreement without such consent shall be void. TCIC may assign the Notes in
whole or in part; provided, however, TCIC may not assign the Notes in whole or
in part to an unaffiliated third-party of Tele-Communications, Inc. or TCIC
without the prior written consent of the Administrative Agent which consent
shall not be unreasonably withheld. TCIC may assign this Agreement with the
prior written consent of Satellite Company and the Administrative Agent, which
consents shall not be unreasonably with held. The provisions of this Agreement
shall be binding upon, inure to the benefit of, and be enforceable by TCIC and
Satellite Company and their respective successors (subject, as to Satellite
Company, to the first sentence above) and permitted assigns.
SECTION 8.03. Further Assurances. Subject to the provisions hereof,
------------------
each of TCIC and Satellite Company shall make, execute, acknowledge and deliver
such other instruments and documents, and take all such other actions as may be
reasonably required in order to effectuate the purposes of this Agreement and to
consummate the transactions contemplated hereby. Subject to the provisions
hereof, each of TCIC and Satellite Company shall, in connection with entering
into this Agreement, performing its obligations hereunder and taking any and all
actions relating thereto, comply with all applicable laws, regulations, orders
and decrees, obtain all required consents and approvals and make all required
filings with any governmental agency, other regulatory or administrative agency,
commission or similar authority and promptly provide the other with all such
information as the other may reasonably request in order to be able to comply
with the provisions of this sentence.
SECTION 8.04. Parties in Interest. Unless otherwise expressly
-------------------
provided with respect to the subordination of the Notes and except as provided
in Section 8.05, nothing in this Agreement expressed or implied is intended or
shall be construed to confer any right or benefit upon any person, firm or
corporation other than TCIC and Satellite Company and their respective
successors (subject, as to Satellite Company, to the first sentence of Section
8.02) and permitted assigns.
-16-
SECTION 8.05. Waivers, Etc. No failure or delay on the part of
------------
TCIC in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No modification or waiver of any provision of this Agreement nor
consent to any departure by TCIC therefrom shall in any event be effective
unless the same shall be in writing, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Notwithstanding anything herein to the contrary, no amendment, modification or
waiver of any term or provision (including defined terms used therein) shall be
made to Section 2.01, 2.04, 2.07, 4.01, 5.02, Article VI, the definitions of
"GE-2 Satellite Event," "Note Offering Expenses," "Specified Use" or "PRIMESTAR
Letter of Credit," "Significant Restricted Subsidiary" or this Section 8.05
shall be made without the prior written consent of the trustees under the
Indentures acting with the requisite consent of the noteholders thereunder,
unless the GE-2 Acceptance (as defined in the Indentures) shall have occurred
(as certified to the trustees under the Indentures) or Satellite Company shall
have purchased and paid for all Senior Sub Discount Notes and Senior Sub-
ordinated Notes tendered pursuant to an Offer to Purchase made pursuant to
Section 4.19 of the Indentures.
SECTION 8.06. Setoff. All payments to be made by Satellite
------
Company under this Agreement shall be made without setoff, counterclaim or
withholding, all of which are expressly waived.
SECTION 8.07. Confidentiality. Subject to any contrary
---------------
requirement of law and the right of each party to enforce its rights hereunder
in any legal action, each party shall keep strictly confidential and shall cause
its employees and agents to keep strictly confidential, any information which
it or any of its agents or employees may acquire pursuant to, or in the course
of performing its obligations under, any provision of this Agreement; provided,
--------
however, that such obligation to maintain confidentiality shall not apply to
-------
information which (x) at the time of disclosure was in the public domain not as
a result of acts by the receiving party or (y) was in the possession of the
receiving party at the time of disclosure.
SECTION 8.08. Entire Agreement. This Agreement (including the
----------------
Exhibit appended hereto) and the Notes contain the entire understanding of the
parties with respect to the transactions contemplated hereby.
-17-
SECTION 8.09. Headings. Descriptive headings are for convenience
--------
only and shall not control or affect the meaning or construction of any
provision of this Agreement.
SECTION 8.10. Counterparts. For the convenience of the parties,
------------
any number of counterparts of this Agreement may be executed by the parties
hereto, and each such executed counterpart shall be, and shall be deemed to be,
an original instrument.
SECTION 8.11. Notices. All notices and other communications
-------
provided for herein or made hereunder shall be in writing and shall be hand
delivered, telecopied or mailed to the intended recipient at the telephone
number or address specified below:
Satellite Company: TCI Satellite Entertainment, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy similarly addressed: Attention: Legal Department
TCIC: TCI Communications, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Treasurer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy similarly addressed: Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-▇▇-
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Agent: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy similarly addressed:
Trustees: The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Trust Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other telephone number or address as shall be designated by such
party in a notice to the other party. All notices and other communications
hereunder shall be deemed delivered and received: (i) in the case of a
telecopy, when transmitted by telecopier, answer back received, (ii) in the
case of personal delivery, when delivered, and (iii) in the case of a mailing,
three Business Days after deposited in the mails (registered or certified mail,
return receipt requested, postage prepaid), in each case given or addressed as
aforesaid. Telephonic notice may be given, provided it is promptly confirmed by
the sender by telecopy as aforesaid. Copies of all notices delivered hereunder
also shall be sent to the Administrative Agent and the trustees for the
Indentures at the addresses set forth above prior to (i) with respect to the
Administrative Agent, the Satellite Event Date, and (ii) with respect to the
trustees, the first to occur of (A) the date on which the GE-2 Acceptance (as
defined in the Indentures) has occurred, or (B) the date that the Satellite
Company shall have purchased and paid for the Senior Sub-Discount Notes and
Senior Subordinated Notes tendered pursuant to an Offer to Purchase made
pursuant to Section 4.19 of the Indentures.
SECTION 8.12. Governing Law. This Agreement shall be governed by and
-------------
construed and enforced in accordance with the laws of the State of Colorado
applicable to contracts made and to be performed therein.
[Signature Page Follows]
-19-
-20-
IN WITNESS WHEREOF, TCIC and Satellite Company have caused this
Amended and Restated Credit Agreement to be duly executed by their respective
officers, each of whom is duly authorized, all as of the day and year first
above written.
TCI COMMUNICATIONS, INC.
By:______________________________
Title:
TCI SATELLITE ENTERTAINMENT, INC.
By:______________________________
Title:
EXHIBIT A
FORM OF REVOLVING LOAN NOTE
---------------------------
$100,000,000 Englewood, Colorado
February 19, 1997
FOR VALUE RECEIVED, effective as of the date first above written, the
undersigned, TCI SATELLITE ENTERTAINMENT, INC., a Delaware corporation (the
"Borrower"), hereby promises to pay to the order of TCI COMMUNICATIONS, INC., a
Delaware corporation, or assigns ("Lender"), the lesser of the principal sum of
ONE HUNDRED MILLION DOLLARS ($100,000,000) and the aggregate unpaid principal
amount of the outstanding Revolving Loans to the Borrower from the Lender
pursuant to the Amended and Restated Credit Agreement, dated as of February 19,
1997, by and between the Borrower and the Lender (as the same may be amended or
otherwise modified from time to time, the "Agreement"), in lawful money of the
United States of America, in immediately available funds, and to pay interest
from the date first above specified on the principal amount hereof from time to
time outstanding, in like funds, at said office, at a rate or rates per annum
and payable on the dates determined pursuant to the Agreement.
The Borrower promises to pay interest, on demand, on any overdue
principal and, to the extent permitted by law, overdue interest from the due
date at a rate or rates determined as set forth in the Agreement.
The Borrower hereby waives diligence, presentment, demand, protest and
notice (except for the notice required by section 6.01 of the Agreement) of any
kind whatsoever. The nonexercise by the holder of any of its rights hereunder
in any particular instance shall not constitute a waiver thereof in that or any
subsequent instance.
All borrowings evidenced by this Note and all payments and prepayments
of the principal hereof and interest hereon and the respective dates thereof
shall be endorsed by the holder hereof on the schedule attached hereto and made
a part hereof, or otherwise recorded by such holder in its internal records;
provided, however, that the failure of the
------- -------
-1-
holder hereof to make such a notation or any error in such a notation shall not
affect the obligations of the Borrower under this Note.
In the event of any action at law or suit in equity with respect to
this Note, the Borrower, in addition to all other sums which it may be required
to pay hereunder, will pay a reasonable sum for attorneys' fees incurred by the
holder hereof in connection with such action or suit and all other costs of
collection.
This Note is one of the Notes referred to in the Agreement and is
entitled to the benefits, and is subject to the terms, set forth therein, which,
among other things, contains provisions for the acceleration of the maturity
hereof upon the happening of certain events, for optional and mandatory
prepayment of the principal hereof prior to the maturity hereof and for the
amendment or waiver of certain provisions of the Agreement, all upon the terms
and conditions therein specified. This Note is subordinated to the Bank
Obligations as provided in Article VII of the Agreement. This Note shall be
construed in accordance with and governed by the laws of the State of Colorado
and any applicable laws of the United States of America.
TCI SATELLITE ENTERTAINMENT, INC.
By:________________________________
Title:_____________________________
-2-
SCHEDULE
LOANS AND PAYMENTS
Payments
-------------------
Unpaid Name of
Principal Person
Amount and Balance Making
Date Type of Loan Principal Interest of Note Notation
------ ------------ --------- -------- --------- --------
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
-3-
Payments
-------------------
Unpaid Name of
Principal Person
Amount and Balance Making
Date Type of Loan Principal Interest of Note Notation
------ ------------ --------- -------- --------- --------
______________________________________________________________
______________________________________________________________
