Credit Agreement [Amendment No. 1] - CD Radio Inc. and Bank of America NT&SA
FIRST AMENDMENT
FIRST AMENDMENT, dated as of May 4, 1999 (this "Amendment") to the Credit
Agreement, dated as of June 30, 1998 (as amended, modified or supplemented from
time to time, the "Credit Agreement"), among CD RADIO INC. (the "Company"), the
several banks and other financial institutions from time to time parties thereto
(the "Banks") and Bank of America National Trust and Savings Association, a
national banking association, as a Bank and as administrative agent for the
Banks (in such capacity, the "Agent").
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Banks have agreed to make,
and have made, certain loans and other extensions of credit to the Company; and
WHEREAS, the Company has requested, and, upon this Amendment becoming
effective, the Banks have agreed, that certain provisions of the Credit
Agreement be amended in the manner provided for in this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and in consideration of the premises, the parties
hereto hereby agree as follows:
SECTION I. AMENDMENT
1. Defined Terms. Capitalized terms used herein and not otherwise defined
are used herein as defined in the Credit Agreement.
2. Amendments to Section 1.1.
(a) Subsection 1.1 of the Credit Agreement is hereby amended by deleting
the definition of "Applicable Margin" in its entirety and substituting in lieu
thereof the following definition:
"Applicable Margin" means
(i) with respect to Base Rate Loans, 1.25%; and
(ii) with respect to Offshore Rate Loans, 2.25%.
(b) Subsection 1.1 of the Credit Agreement is hereby amended by deleting
the definition of "Maturity Date" in its entirety and substituting in lieu
thereof the following definition:
"Maturity Date" shall mean the earlier of (a) February 29, 2000
and (b) the date ten (10) days prior to the scheduled launch date of
the Borrower's second satellite to be launched, as such scheduled date
may change from time to time.
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SECTION II. MISCELLANEOUS
1. Consent to January Satellite Launch. The Banks acknowledge that they
have been informed of the satellite launch which the Company has planned for
completion in January 2000 (the "Launch") and the fact that the Launch will
involve the use of certain Collateral pledged to the Agent, for the ratable
benefit of the Banks. The Banks hereby consent to the Launch and such use of
Collateral.
2. Consent of Remarketing Agent. By signing below Loral Space &
Communications Ltd. (i) acknowledges and consents to the terms of this Amendment
and (ii) agrees that all Loan Documents to which it is a party are, and shall
remain, in full effect both before and after giving effect to this Amendment.
3. Effectiveness. This Amendment shall become effective on the date on
which the following conditions precedent shall have been satisfied (such date,
the "Effective Date"):
(a) the Agent shall have received counterparts of this Amendment, duly
executed and delivered by the Company, the Remarketing Agent and the Banks; and
(b) The Agent shall have received, for the account of each Lender which
executes and delivers this Amendment, an amendment fee in an amount, in
immediately available funds, equal to 0.1% on such Lender's Commitment.
4. Successors and Assigns; Participations and Assignments. This Amendment
shall be binding upon and inure to the benefit of the Company and the Agent and
their respective successors and assigns, except that the Company may not assign
or transfer any of its rights or obligations under this Amendment without the
prior written consent of the Agent.
5. Counterparts. This Amendment may be executed by one or more of the
parties to this Amendment on any number of separate counterparts (including by
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Amendment signed by all the parties shall be lodged with the Company and the
Agent.
6. Severability. Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
7. Integration. This Amendment represents the agreement of the Company and
the Agent with respect to the subject matter hereof and thereof, and there are
no promises, undertakings, representations or warranties by the Agent relative
to the subject matter hereof and thereof not expressly set forth or referred to
herein.
8. Continuing Effect; No Other Amendments. Except as expressly amended
hereby, all of the terms and provisions of the Credit Agreement are and shall
remain in full force and effect. The amendments provided for herein are limited
to the specific subsections of the Credit Agreement specified herein and shall
not constitute a consent, amendment or waiver of, or
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an indication of the Banks' willingness to consent to, amend or waive, any other
provisions of the Credit Agreement or the same subsections for any other date or
time period (whether or not such other provisions or compliance with such
subsections for another date or time period are affected by the circumstances
addressed in this Amendment).
9. Fees and Expenses. The Company hereby agrees to pay all reasonable legal
fees and disbursements incurred by the Agent in connection with the preparation,
execution and delivery of this Amendment.
10. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered by their respective proper and duly authorized officers
as of the day and year first above written.
CD RADIO INC.
By: /s/ Patrick L. Donnelly
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Name: Patrick L. Donnelly
Title: EVP & General Counsel
LORAL SPACE & COMMUNICATIONS LTD.
By: /s/ Richard Townsend
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Name: Richard Townsend
Title: CFO
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative Agent
By: /s/ Steve A. Aronowitz
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Name: Steve A. Aronowitz
Title: Managing Director
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By: /s/ Steve A. Aronowitz
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Name: Steve A. Aronowitz
Title: Managing Director
THE BANK OF NOVA SCOTIA
By: /s/ J. Alan Edwards
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Name: J. Alan Edwards
Title: Authorized Signatory
THE CHASE MANHATTAN BANK
By: /s/ William E. Rottino
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Name: William E. Rottino
Title: Vice President
CREDIT LYONNAIS
By: /s/ Mark A. Campellone
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Name: Mark A. Campellone
Title: First Vice President
DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN ISLANDS BRANCHES
By: /s/ Andreas Neumeier
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Name: Andreas Neumeier
Title: Vice President
By: /s/ Joel Makowsky
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Name: Joel Makowsky
Title: Vice President