Second Amendment to Credit Agreement
Exhibit 10.23
Second Amendment to Credit Agreement
SECOND AMENDMENT (this “Amendment”), dated as of March 9, 2004, among DIRECTV HOLDINGS LLC, a Delaware limited liability company (the “Borrower”), the Lenders from time to time party to the Credit Agreement referred to below (the “Lenders”), DEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative Agent (the “Administrative Agent”) and BANK OF AMERICA, N.A., as Syndication Agent (the “Syndication Agent”, and together with the Administrative Agent, the “Agents”). All capitalized terms used herein and not otherwise defined herein shall have the respective meanings provided such terms in the Credit Agreement.
Witnesseth:
WHEREAS, the Borrower, the Lenders and the Agents are parties to a Credit Agreement, dated as of March 6, 2003 (as amended, modified or supplemented from time to time to, but not including, the date hereof, the “Credit Agreement”); and
WHEREAS, subject to the terms and conditions of this Amendment, the parties hereto wish to amend or otherwise modify certain provisions of the Credit Agreement as herein provided;
NOW, THEREFORE, IT IS AGREED:
| I. | Amendments to Credit Agreement. |
1. Section 1.01 of the Credit Agreement is hereby amended by inserting the following new text at the end of said Section:
“(f) (A) On the Second Amendment Effective Date, all outstanding B-1 Term Loans of each Lender that has theretofore executed and delivered a counterpart of the Second Amendment to the Administrative Agent in accordance with the terms thereof (each such Lender, a “B-1 Consenting Lender” and, collectively, the “B-1 Consenting Lenders”) shall be automatically converted (the “B-1 Term Loan Conversion”) into new term loans hereunder (each such term loan, a “Converted B-2 Term Loan” and, collectively, the “Converted B-2 Term Loans”). On or after the Second Amendment Effective Date, each B-1 Consenting Lender which holds a B Term Note shall be entitled to surrender such B-1 Term Note to the Borrower against delivery of a B-2 Term Note completed in conformity with Section 1.05; provided that if any such B-1 Term Note is not so surrendered then from and after the Second Amendment Effective Date such B-1 Term Note shall be deemed to evidence the Converted B-2 Term Loans into which the B-1 Term Loans theretofore evidenced by such B-1 Term Note have been converted. Subject to and upon the terms and conditions set forth herein, each Lender with a B-2 Term Loan Commitment severally agrees to make a term loan or term loans (each, an “Additional B-2 Term Loan” and, collectively, the “Additional B-2 Term Loans”, and, together with the Converted B-2 Term Loans, the “B-2 Term Loans”) to the Borrower, which Additional B-2 Term Loans shall be incurred pursuant to a single drawing on the Second Amendment Effective Date. All B-2 Term Loans (i) shall be denominated in Dollars, (ii) except as hereinafter provided, shall, at the option of the Borrower, be
incurred and maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans, provided that except as otherwise specifically provided in Section 1.10(b), all B-2 Term Loans comprising the same Borrowing shall at all times be of the same Type, and (iii) shall be made by each such Lender in that aggregate principal amount which equals the B-2 Term Loan Commitment of such Lender on the Second Amendment Effective Date. Once repaid, B-2 Term Loans may not be reborrowed. Notwithstanding anything to the contrary contained in this Agreement (including, without limitation, in Section 4.02), the proceeds of the Additional B-2 Term Loans shall be immediately applied by the Borrower to repay all outstanding B-1 Term Loans of B-1 Non-Consenting Lenders (if any) on the Second Amendment Effective Date.
(B)(i) Each Borrowing of B-1 Term Loans existing on the Second Amendment Effective Date immediately prior to the B-1 Term Loan Conversion and maintained as Eurodollar Loans (each, an “Existing B-1 Term Loan Borrowing”) shall, upon the occurrence of the B-1 Term Loan Conversion, be deemed to be a new Borrowing of B-2 Term Loans for all purposes of this Agreement, (ii) each such newly-deemed Borrowing of B-2 Term Loans shall be subject to the same Interest Period (and Eurodollar Rate) as the Existing B-1 Term Loan Borrowing to which it relates, (iii) Additional B-2 Term Loans shall be initially incurred pursuant to a single Borrowing of Eurodollar Loans which shall be added to (and thereafter be deemed to constitute a part of) each such newly-deemed Borrowing of B-2 Term Loans on a pro rata basis (based on the relative sizes of the various such newly-deemed Borrowings of B-2 Term Loans) and (iv) in connection with the B-1 Term Loan Conversion and the incurrence of Additional B-2 Term Loans pursuant to Section 1.01(f), the Administrative Agent shall (and is hereby authorized to) take all appropriate actions to ensure that all Lenders with outstanding B-2 Term Loans (after giving effect to the B-1 Term Loan Conversion and the incurrence of Additional B-2 Term Loans pursuant to Section 1.01(f)(A)) participate in each newly-deemed Borrowing of B-2 Term Loans on a pro rata basis.
(C) In connection with the B-1 Term Loan Conversion and the incurrence of Additional B-2 Term Loans pursuant to Section 1.01(f)(A), the Lenders and the Borrower hereby agree that, notwithstanding anything to the contrary contained in this Agreement, (i) if requested by any Lender making Additional B-2 Term Loans which “match funds”, the Borrower shall pay to such Lender such amounts necessary, as reasonably determined by such Lender, to compensate such Lender for making such Additional B-2 Term Loans in the middle of an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon the rates then applicable thereto) and (ii) the Borrower shall be obligated to pay to the respective Lenders breakage or other costs of the type referred to in Section 1.11 (if any) incurred in connection with the B-1 Term Loan Conversion and/or the actions taken pursuant to preceding clause (B) of this Section 1.01(f).”.
2. Section 1.03 of the Credit Agreement is hereby amended by inserting the text “, B-2 Term Loans” immediately after the text “B-1 Term Loans” appearing in said Section.
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3. Section 1.05(a) of the Credit Agreement is hereby amended by deleting the word “and” appearing at the end of clause (iv) of said Section, inserting a comma in lieu thereof and inserting the following text immediately before the period appearing at the end of said Section:
“and (vi) in the case of B-2 Term Loans, by a promissory note duly executed and delivered by the Borrower substantially in the form of Exhibit B-6, with blanks appropriately completed (each a “B-2 Term Note” and, collectively, the “B-2 Term Notes”)”.
4. Section 1.07 of the Credit Agreement is hereby amended by inserting the text “, B-2 Term Loan Commitments” immediately after the text “B-1 Term Loan Commitments” appearing in said Section.
5. Section 1.09(vii) of the Credit Agreement is hereby amended by inserting the text “, B-2 Term Loans” immediately after each appearance of the text “B-1 Term Loans” in said Section.
6. Section 3.03 of the Credit Agreement is hereby amended by (i) redesignating clauses (g) and (h) of said Section as clauses (h) and (i), respectively, (ii) inserting the following new clause (g) immediately following clause (f) of said Section:
“(g) In addition to any other mandatory commitment reductions pursuant to this Section 3.03, the Total B-2 Term Loan Commitment (and the B-2 Term Loan Commitment of each Lender with such a Commitment) shall terminate in its entirety on the Second Amendment Effective Date (after giving effect to the incurrence of B-2 Term Loans on such date).”,
(iii) inserting the text “, the Total B-2 Term Loan Commitment” immediately after the text “Total B-1 Term Loan Commitment” appearing in clause (i) of said Section (as redesignated pursuant to clause (i) above) and (iv) inserting the text “, the B-2 Term Loan Commitment” immediately after the text “the B-1 Term Loan Commitment” appearing in clause (i) of said Section (as redesignated pursuant to clause (i) above).
7. Section 4.01(a) of the Credit Agreement is hereby amended by (i) inserting the text “, B-2 Term Loans” immediately after the text “B-1 Term Loans” appearing in clause (i) of said Section, and (ii) inserting the text “, the B-2 Term Loans to be allocated the B-2 Term Loan Percentage of the amount of such payment” immediately after the parenthetical appearing in clause (iv) of said Section.
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8. Section 4.02(c) of the Credit Agreement is hereby amended by inserting the following new text at the end of said Section:
“(iii) In addition to any other mandatory repayments pursuant to this Section 4.02, on each date set forth below, the Borrower shall be required to repay that principal amount of B-2 Term Loans, to the extent then outstanding, as is set forth below opposite each such date (each such repayment, as the same may be reduced as provided in Sections 4.01 or 4.02, a “B-2 Term Loan Scheduled Repayment”):
| B-2 Term Loan Scheduled Repayment Date | Amount | ||
| March 31, 2004 | $ | 12,250,000 | |
| March 31, 2005 | $ | 12,250,000 | |
| March 31, 2006 | $ | 12,250,000 | |
| March 31, 2007 | $ | 12,250,000 | |
| March 31, 2008 | $ | 12,250,000 | |
| September 30, 2008 | $ | 290,937,500 | |
| March 31, 2009 | $ | 290,937,500 | |
| September 30, 2009 | $ | 290,937,500 | |
| B-2 Term Loan Maturity Date | $ | 290,937,500”. | |
9. Section 4.02(i) of the Credit Agreement is hereby amended by (i) deleting the word “and” appearing before the text “the B-1 Term Loans” appearing in said Section and inserting a comma in lieu thereof and (ii) inserting the text “and the B-2 Term Loans (in an amount equal to the B-2 Term Loan Percentage of such aggregate repayment)” immediately before the period appearing at the end of the first sentence of said Section.
10. Section 4.02(k) of the Credit Agreement is hereby amended by (i) redesignating clauses (iv) and (v) of said Section as clauses (v) and (vi), respectively and (ii) inserting the text “, (iv) all then outstanding B-2 Term Loans shall be repaid in full on the B-2 Term Loan Maturity Date” immediately after clause (iii) of said Section.
11. Section 4.02(l) of the Credit Agreement is hereby deleted in its entirety and the following text is inserted in lieu thereof:
(l) Notwithstanding anything to the contrary contained in this Section 4.02 or elsewhere in this Agreement (including, without limitation, in Section 13.12), upon delivery by the Borrower of written notice to the Administrative Agent of its intention to invoke the terms of this Section 4.02(l) in connection with, and as to all or any part of, any Waivable Repayment (as defined below) (with the decision to give any such written notice and the percentage of any such Waivable Repayment that may be waived by the Lenders (the “Waivable Percentage”) to be in the sole discretion of the Borrower) the Lenders with outstanding B-2 Term Loans shall have the option to waive voluntary prepayment of such Loans pursuant to Section 4.01 or a mandatory repayment of such Loans pursuant to Sections 4.02(d), (e), (f), (g) and/or (h) (each such prepayment or repayment, a “Waivable Repayment”) upon the terms and provisions set forth in this Section 4.02(l). The Borrower shall give to the Administrative Agent written notice of its intention to make a Waivable Repayment at least five Business Days prior to such repayment, which notice the Administrative Agent shall promptly forward to all such Lenders (indicating in such notice the amount of such repayment to be applied to each
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such Lender’s outstanding B-2 Term Loans). In the event any such Lender desires to waive such Lender’s right to receive any such Waivable Repayment in whole or in part, such Lender shall so advise the Administrative Agent no later than the close of business two Business Days after the date of such notice from the Administrative Agent, which notice shall also include the amount such Lender desires to waive in respect of such repayment (which amount will not exceed the Waivable Percentage of the portion of such Waivable Repayment which would otherwise be paid to such Lender). If any Lender does not reply to the Administrative Agent within the two Business Days, it will be deemed not to have waived any part of such repayment. If any Lender does not specify an amount it wishes to receive, it will be deemed to have accepted 100% of the total payment. In the event that any such Lender waives all or part of such right to receive any such Waivable Repayment, the amount so waived will be retained by the Borrower.”.
12. Section 7.08(a) of the Credit Agreement is hereby amended by inserting the following new sentence at the end of said Section:
“All proceeds of the Additional B-2 Term Loans will be used to repay outstanding B-1 Term Loans of B-1 Non-Consenting Lenders (if any) on the Second Amendment Effective Date.”
13. Section 8.12(a) of the Credit Agreement is hereby amended by deleting clause (ii) of the first sentence of said Section and inserting in lieu thereof the following new clause (ii):
“(ii) neither the Borrower nor any of its Subsidiaries shall be required to grant a security interest in any immaterial intellectual property or in any Real Property (other than any Real Property consisting of the customer call center located in Boise, Idaho or any broadcast or uplink center) pursuant to this Section 8.12.”
14. Section 8.15(a) of the Credit Agreement is hereby amended by deleting the text “$10,000,000” appearing in said Section and inserting the text “$50,000,000” in lieu thereof.
15. Section 8 of the Credit Agreement is hereby further amended by inserting the following new text at the end of said Section:
“Section 8.17 Second Amendment Mortgage Amendments. (a) Within 60 days following the Second Amendment Effective Date, if and to the extent requested by the Collateral Agent, the Borrower shall have delivered to the Collateral Agent, or caused to be delivered to the Collateral Agent, fully executed counterparts of amendments (the “Second Amendment Mortgage Amendments”), in form and substance reasonably satisfactory to the Administrative Agent, to each of the Mortgages covering the Mortgaged Properties, together with evidence that counterparts of each of the Second Amendment Mortgage Amendments have been delivered to the title company insuring the Lien on the Mortgages for recording in all places to the extent necessary or desirable, in the judgment of the Collateral Agent, effectively to maintain a valid and enforceable perfected mortgage lien superior to and prior to the rights of all third parties and subject
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to no other Liens except as are permitted by Section 9.01 on the Mortgaged Properties in favor of the Collateral Agent for the benefit of the Secured Parties securing all of the Obligations (including the B-2 Term Loans).”.
16. Section 9.05(x) of the Credit Agreement is hereby amended by deleting the text “$50,000,000” appearing in said Section and inserting the text “$100,000,000” in lieu thereof.
17. Section 9.06(xv) of the Credit Agreement is hereby amended by deleting said Section in its entirety and inserting the following text in lieu thereof:
“(xv) additional Investments financed with the proceeds of one or more common equity contributions by the Company to the Borrower (to the extent such proceeds are not used to consummate a Permitted Acquisition); and”.
18. Section 9.06(xvi) of the Credit Agreement is hereby amended by deleting the text “$100,000,000” appearing in said Section and inserting the text “$200,000,000” in lieu thereof.
19. Section 9.07 of the Credit Agreement is hereby amended by deleting the two provisos appearing at the end of the first sentence of said Section.
20. Section 9.08(a) of the Credit Agreement is hereby amended by deleting the table appearing in said Section in its entirety and inserting the following new table in lieu thereof:
| “Fiscal Year Ending | Amount | ||
| December 31, 2003 | $ | 450,000,000 | |
| December 31, 2004 | $ | 700,000,000 | |
| December 31, 2005 | $ | 750,000,000 | |
| December 31, 2006 | $ | 525,000,000 | |
| December 31, 2007 | $ | 275,000,000 | |
| December 31, 2008 | $ | 250,000,000 | |
| December 31, 2009 | $ | 250,000,000 | |
| December 31, 2010 | $ | 250,000,000”. | |
21. Section 9.17 of the Credit Agreement is hereby amended by deleting the text “$10,000,000” appearing in said Section and inserting the text “$50,000,000” in lieu thereof.
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22. The definition of “Applicable Margin” appearing in Section 11 of the Credit Agreement is hereby deleted in its entirety and the following new definition is inserted in lieu thereof:
“Applicable Margin” in respect of B-2 Term Loans and Revolving Loans for any Margin Adjustment Period shall mean, from and after any Start Date to and including the corresponding End Date, the respective percentage per annum set forth below under the respective Type and Tranche of Loans and opposite the respective Level (i.e., Level 1, Level 2, Level 3, Level 4 or Level 5, as the case may be) indicated to have been achieved on the applicable Test Date for such Start Date (as shown in the respective officer’s certificate delivered pursuant to Section 8.01(d) or the first proviso below) minus, in the case of B-2 Term Loans, any Applicable Pricing Adjustment as in effect from time to time:
| Level | Leverage Ratio | Revolving Loans maintained as Base Rate Loans | Revolving Loans maintained as Eurodollar Loans | B-2 Term Loans maintained as Base Rate Loans | B-2 Term Loans maintained as Eurodollar Loans | |||||||||
| 1 | Less than or equal to 2.50:1.00 | 1.75 | % | 2.75 | % | 1.25 | % | 2.25 | % | |||||
| 2 | Greater than 2.50:1.00 but less than or equal to 3.00:1.00 | 2.00 | % | 3.00 | % | 1.25 | % | 2.25 | % | |||||
| 3 | Greater than 3.00:1.00 but less than or equal to 3.50:1.00 | 2.25 | % | 3.25 | % | 1.25 | % | 2.25 | % | |||||
| 4 | Greater than 3.50:1.00 but less than or equal to 4.00:1.00 | 2.50 | % | 3.50 | % | 1.25 | % | 2.25 | % | |||||
| 5 | Greater than 4.00:1.00 | 2.75 | % | 3.75 | % | 1.50 | % | 2.50 | % |
; provided, however, that if the Borrower fails to deliver the financial statements required to be delivered pursuant to Section 8.01(a) or (b) (accompanied by the officer’s certificate required to be delivered pursuant to Section 8.01(d) showing the applicable Total Leverage Ratio on the relevant Test Date) on or prior to the respective date required by such Sections, then Level 5 pricing (as adjusted by any Applicable Pricing Adjustment as provided above) shall apply until such time, if any, as the financial statements required as set forth above and the accompanying officer’s certificate have been delivered showing the pricing for the respective Margin Adjustment Period is at a Level below Level 5 (as adjusted by any Applicable Pricing Adjustment as provided above) (it being understood that, in the case of any late delivery of the financial statements and officer’s certificate as so required, any reduction in the Applicable Margin shall apply only from and after the date of the delivery of the complying financial statements and officer’s certificate); provided further, that Level 5 pricing (as adjusted by any Applicable Pricing Adjustment as provided above) shall apply at all times when any Default or Event of Default is in existence.
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23. The definition of “Applicable Pricing Adjustment” appearing in Section 11 of the Credit Agreement is hereby deleted in its entirety and the following new definition is inserted in lieu thereof:
“Applicable Pricing Adjustment” shall mean on any date, (i) if the Bank Debt Rating assigned by (x) Moody’s is Ba1 or higher or (y) S&P is BB+ or higher, 0.25% and (ii) if the preceding clause (i) is not applicable, 0.00%.
24. The definition of “Borrowing” appearing in Section 11 of the Credit Agreement is hereby amended by (i) inserting the text “(x)” immediately after the text “provided” appearing in said definition and (ii) inserting the text “and (y) the term “Borrowing” shall include the consolidated “borrowing” of B-2 Term Loans pursuant to the simultaneous conversion of B-1 Term Loans and the incurrence of Additional B-2 Term Loans on the terms provided in Section 1.01(f)” immediately prior to the period appearing at the end of said definition.
25. The definition of “Commitment” appearing in Section 11 of the Credit Agreement is hereby amended by inserting the text “, the B-2 Term Loan Commitment” immediately after the text “B-1 Term Loan Commitment” appearing in said definition.
26. The definition of “Maturity Date” appearing in Section 11 of the Credit Agreement is hereby amended by inserting the text “, the B-2 Term Loan Maturity Date” immediately after the text “B-1 Term Loan Maturity Date” appearing in said definition.
27. The definition of “Scheduled Repayments” appearing in Section 11 of the Credit Agreement is hereby amended by inserting the text “, each B-2 Term Loan Scheduled Repayment” immediately after the text “each B-1 Term Loan Scheduled Repayment” appearing in said definition.
28. The definition of “Term Loan” appearing in Section 11 of the Credit Agreement is hereby amended by inserting the text “, each B-2 Term Loan” immediately after the text “each B-1 Term Loan” appearing in said definition.
29. The definition of “Term Note” appearing in Section 11 of the Credit Agreement is hereby amended by inserting the text “, each B-2 Term Note” immediately after the text “each B-1 Term Note” appearing in said definition.
30. The definition of “Tranche” appearing in Section 11 of the Credit Agreement is hereby amended by (i) deleting the word “five” appearing in said definition and inserting the text “six” in lieu thereof and (ii) inserting the text “, B-2 Term Loans” immediately after the text “B-1 Term Loans” appearing in said definition.
31. Section 11 of the Credit Agreement is hereby further amended by inserting in the appropriate alphabetical order the following new definitions:
“Additional B-2 Term Loans” shall have the meaning provided in Section 1.01(f).
“B-1 Consenting Lenders” shall have the meaning provided in Section 1.01(f).
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“B-1 Non-Consenting Lender” shall mean each Lender that is not a B-1 Consenting Lender.
“B-2 Term Loan” shall have the meaning provided in Section 1.01(f).
“B-2 Term Loan Commitment” shall mean, for each Lender, the amount set forth opposite such Lender’s name in Schedule I directly below the column entitled “B-2 Term Loan Commitment,” as the same may be terminated pursuant to Sections 3.03 and/or 10. Notwithstanding the foregoing, if on the Second Amendment Effective Date (immediately prior to the incurrence of Additional B-2 Term Loans on such date) the sum of the B-2 Term Loan Commitments plus the aggregate principal amount of Converted B-2 Term Loans would exceed the aggregate outstanding principal amount of the B-1 Term Loans immediately prior to the Second Amendment Effective Date, then the B-2 Term Loan Commitment of DBTCA shall be reduced by an amount equal to such excess.
“B-1 Term Loan Conversion” shall have the meaning provided in Section 1.01(f).
“B-2 Term Loan Maturity Date” shall mean the seventh anniversary of the Initial Borrowing Date.
“B-2 Term Loan Percentage” shall mean, at any time, a fraction (expressed as a percentage) the numerator of which is the aggregate principal amount of B-2 Term Loans then outstanding and the denominator of which is the aggregate principal amount of Term Loans then outstanding.
“B-2 Term Loan Scheduled Repayment” shall have the meaning provided in Section 4.02(c).
“B-2 Term Note” shall have the meaning provided in Section 1.05(a).
“Converted B-2 Term Loans” shall have the meaning provided in Section 1.01(f).
“Existing B-1 Term Loan Borrowing” shall have the meaning provided in Section 1.01(f).
“Second Amendment” shall mean the Second Amendment to this Agreement, dated as of March 9, 2004.
“Second Amendment Effective Date” shall have the meaning provided in the Second Amendment.
“Second Amendment Mortgage Amendments” shall have the meaning provided in Section 8.17.
“Total B-2 Term Loan Commitment” shall mean, at any time, the sum of the B-2 Term Loan Commitments of each of the Lenders at such time.
“Waivable Percentage” shall have the meaning provided in Section 4.02(l).
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32. Section 13.12(a) of the Credit Agreement is hereby amended by inserting the text “, Tranche B-2 Scheduled Repayment” immediately after the text “Tranche B-1 Scheduled Repayment” appearing in said Section.
33. Schedule I to the Credit Agreement is hereby amended by adding thereto the information set forth on Schedule I attached hereto.
34. Exhibit A-1 to the Credit Agreement is hereby amended by inserting the text “[B-2 Term Loans]” immediately after each appearance of the text “[B-1 Term Loans] in said Exhibit.
35. The Credit Agreement is hereby further amended by adding Exhibit B-6 thereto in the form of Exhibit B-6 attached hereto.
36. Exhibit M to the Credit Agreement is hereby amended by deleting same in its entirety and inserting in lieu thereof a new Exhibit M in the form of Exhibit M attached hereto.
| II. | Miscellaneous Provisions. |
1. In order to induce the Lenders to enter into this Amendment, the Borrower hereby represents and warrants that:
(a) no Default or Event of Default exists as of the Second Amendment Effective Date, both before and after giving effect to this Amendment; and
(b) all of the representations and warranties contained in the Credit Agreement or the other Credit Documents are true and correct in all material respects on the Second Amendment Effective Date both before and after giving effect to this Amendment, with the same effect as though such representations and warranties had been made on and as of the Second Amendment Effective Date (it being understood that any representation or warranty made as of a specific date shall be true and correct in all material respects as of such specific date).
2. This Amendment is limited as specified and shall not constitute a modification, acceptance or waiver of any other provision of the Credit Agreement or any other Credit Document.
3. This Amendment may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which counterparts when executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. A complete set of counterparts shall be lodged with the Borrower and the Administrative Agent.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
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5. This Amendment shall become effective on the date (the “Second Amendment Effective Date”) when each of the following conditions shall have been satisfied:
(i) the Borrower, each other Credit Party, Lenders constituting the Required Lenders and each Lender with a B-2 Term Loan Commitment shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered (including by way of facsimile transmission) the same to White & Case LLP, 1155 Avenue of the Americas, New York, NY 10036 Attention: Neerav Shah (facsimile number ###-###-####);
(ii) there shall have been delivered to the Administrative Agent for the account of each of the Lenders that have requested same an appropriate B-2 Term Note executed by the Borrower in each case in the amount, maturity and otherwise as provided in the Credit Agreement; and
(iii) (x) all accrued and unpaid interest on all B-1 Term Loans shall have been paid in full (regardless of whether or not the Credit Agreement otherwise requires a payment of such interest at such time), (y) all fees, costs and expenses with respect to the B-1 Term Loans shall have been paid in full and (z) the principal of all outstanding B-1 Term Loans of B-1 Non-Consenting Lenders shall have been repaid in full.
Unless the Administrative Agent has received actual notice from any Lender that the conditions contained above have not been met with satisfaction, upon the satisfaction of the condition described in clause (i) of the immediately preceding sentence and upon the Administrative Agent’s good faith determination that the other conditions described above have been met, the Second Amendment Effective Date shall be deemed to have occurred, regardless of any subsequent determination that one or more of the conditions thereto had not been met (although the occurrence of the Second Amendment Effective Date shall not release the Borrower from any liability for failure to satisfy one or more of the applicable conditions specified above).
6. By executing and delivering a copy hereof, each Credit Party hereby agrees that all Loans (including, without limitation, the B-2 Term Loans) shall be fully guaranteed pursuant to the Subsidiaries Guaranty in accordance with the terms and provisions thereof and shall be fully secured pursuant to the Security Documents.
7. From and after the Second Amendment Effective Date, all references in the Credit Agreement and each of the other Credit Documents to the Credit Agreement shall be deemed to be references to the Credit Agreement as modified hereby.
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Amendment as of the date first above written.
| DIRECTV HOLDINGS LLC | ||
| By: | /s/ M. W. Palkovic | |
| Name: M. W. Palkovic Title: Senior Vice President & CFO | ||
| DEUTSCHE BANK TRUST COMPANY AMERICAS, Individually and as Administrative Agent | ||
| By: | /s/ Gregory Shefrin | |
| Name: Gregory Shefrin Title: Director | ||
| BANK OF AMERICA, N.A., Individually and as Syndication Agent | ||
| By: | /s/ James T. Gilland | |
| Name: James T, Gilland Title: Managing Director | ||
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SIGNATURE PAGE TO THE SECOND AMENDMENT, DATED AS OF MARCH 9, 2004, TO THE CREDIT AGREEMENT, DATED AS OF MARCH 6, 2003, AMONG DIRECTV HOLDINGS LLC, A DELAWARE LIMITED LIABILITY COMPANY, THE VARIOUS LENDERS PARTY TO THE CREDIT AGREEMENT REFERRED TO ABOVE, DEUTSCHE BANK TRUST COMPANY AMERICAS, AS ADMINISTRATIVE AGENT AND BANK OF AMERICA, N.A., AS SYNDICATION AGENT
PINEHURST TRADING, INC.
By: Kelly W. Warnement
Its: Vice President
HARBOUR TOWN FUNDING LLC
By: Kelly W. Warnement
Its: Vice President
ELT LTD.
By: Kelly W. Warnement
Its: Vice President
MONUMENTAL LIFE INSURANCE COMPANY
By: John Bailey
Its: Vice President
AIB DEBT MANAGEMENT LIMITED
By: Roisin O’Connell
Its: Assistant Vice President
By: John Timoney
Its: Vice President
LANDMARK CDO LIMITED
By: Gil Marchand
Its: Authorized Signatory
LANDMARK II CDO LIMITED
By: Gil Marchand
Its: Authorized Signatory
LANDMARK III CDO LIMITED
By: Gil Marchand
Its: Authorized Signatory
PACIFICA CDO II, LTD.
By: Sean Walker
Its: SVP
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MONUMENT CAPITAL LTD., AS ASSIGNEE
By: Alliance Capital Management L.P., as Investment Manager
By: Alliance Capital Management Corporation, as General Partner
By: Nantha Suppiah
Its: Vice President
New Alliance Global CDO, Limited
By: Alliance Capital Management L.P., as Sub-advisor
By: Alliance Capital Management Corporation, as General Partner
By: Nantha Suppiah
Its: Vice President
AIMCO CDO 2000-A
By: Chris Goergen
Its: [none]
By: Jerry D. Zinkula
Its: [none]
AIMCO CLO 2001-A
By: Chris Goergen
Its: [none]
By: Jerry D. Zinkula
Its: [none]
ALLSTATE LIFE INSURANCE COMPANY
By: Chris Goergen
Its: [none]
By: Jerry D. Zinkula
Its: [none]
CENTURION CDO II, LTD. (By: American Express Asset Management Group. Inc. as Collateral Manager)
By: Leanne Stavrakis
Its: Director – Operations
CENTURION CDO VI, LTD. (By: American Express Asset Management Group. Inc. as Collateral Manager)
By: Leanne Stavrakis
Its: Director – Operations
AMERICAN EXPRESS CERTIFICATE COMPANY (By: American Express Asset Management Group, Inc. as Collateral Manager)
By: Yvonne E. Stevens
Its: Senior Managing Director
IDS LIFE INSURANCE COMPANY (By: American Express Asset Management Group, Inc. as Collateral Manager)
By: Yvonne E. Stevens
Its: Senior Managing Director
KZH CYPRESSTREE-1 LLC
By: Hi Hua
Its: Authorized Agent
KZH ING-2 LLC
By: Hi Hua
Its: Authorized Agent
14
KZH STERLING LLC
By: Hi Hua
Its: Authorized Agent
SEQUILS - CENTURION V, LTD. (By: American Express Asset Management Group. Inc. as Collateral Manager)
By: Leanne Stavrakis
Its: Director – Operations
AMMC CDO 1, LIMITED (by: American Money Management Corp., as Collateral Manager)
By: David P. Meyer
Its: Vice President
AMMC CDO II, LIMITED (by: American Money Management Corp., as Collateral Manager)
By: David P. Meyer
Its: Vice President
AG CAPITAL FUNDING PARTNERS, L.P. (by: Angelo, Gordon & Co., L.P., as Investment Advisor)
By: John W. Fraser
Its: Managing Director
NORTHWOODS CAPITAL, LIMITED (by: Angelo, Gordon & Co., L.P., as Collateral Manager)
By: John W. Fraser
Its: Managing Director
NORTHWOODS CAPITAL II, LIMITED (by: Angelo, Gordon & Co., L.P., as Collateral Manager)
By: John W. Fraser
Its: Managing Director
NORTHWOODS CAPITAL III, LIMITED (by: Angelo, Gordon & Co., L.P., as Collateral Manager)
By: John W. Fraser
Its: Managing Director
MARINER CDO 2002, LTD
By: David Mahon
Its: Director
ANTARES CAPITAL CORPORATION
By: David Mahon
Its: Director
JP Morgan Chase Bank, as Trustee of the Antares Funding Trust, created under the Trust Agreement dated November 1999)
By: Leslie Hundley
Its: AVP
Navigator CDO 2003, Ltd. (by Antares Asset Management, as Collateral Manager)
By: David Mahon
Its: Vice President
ARES Leveraged Investment Fund II, LP) (by: ARES Management II, LP, its General Partner)
By: Seth J. Brufsky
Its: Vice President
15
ARES III CLO Ltd. (by: ARES CLO Management, LLC)
By: Seth J. Brufsky
Its: Vice President
ARES IV CLO Ltd. (by: ARES CLO management IV, L.P., Investment Manager and ARES CLO GP IV, LLC, Its Managing Member)
By: Seth J. Brufsky
Its: Vice President
ARES V CLO Ltd. (by: ARES CLO Management V, LP, Investment Manager and ARES CLO GP V, LLC, Its Managing Member)
By: Seth J. Brufsky
Its: Vice President
ARES VI CLO LTD. (by: Ares CLO Management VI, LP., Investment Manager and Ares CLO GP VI, LLC, its Managing Member)
By: Seth Brufsky
Its: Vice President
ARES VII CLO LTD. (by: Ares CLO Management VII, L.P., Investment Partner and Ares CLO GP VII, LLC, its General Partner)
ARES VIII CLO LTD (by: Ares CLO Management VIII, LP., Investment Manager and Ares CLO GP VIII, LLC, its General Partner:
By: Seth Brufsky
Its: Vice President
APEX (IDM)CDO I, LTD.
ELC (CAYMAN) LTD.
ELC (CAYMAN) LTD. CDO SERIES 1999-I
ELC (CAYMAN) 1999-II
ELC (CAYMAN) 1999-III
ELC (CAYMAN) 2000-1
TRYON CLO LTD. 2000-I (by: David L. Babson & Company Inc. as Collateral Manager)
By: Adrienne Musgnug
Its: Managing Director
BABSON CLO LTD. 2003-I (by: David L. Babson & Company Inc. as Collateral Manager)
By: Adrienne Musgnug
Its: Managing Director
SEABOARD CLO 2000 LTD (by: David L. Babson & Company Inc. as Collateral Manager)
By: Adrienne Musgnug
Its: Managing Director
Canadian Imperial Bank of Commerce
By: Marc Berg
Its: Authorized Signatory
BILL & MELINDA GATES FOUNDATION (by: David L. Babson & Company Inc. as Investment Adviser)
By: Adrienne Musgnug
Its: Managing Director
16
MAPLEWOOD (CAYMAN) LIMITED (by: David L. Babson & Company Inc. under delegated authority from Massachusetts Mutual Life Insurance Company as Investment Manager)
By: Adrienne Musgnug
Its: Managing Director
SUFFIELD CLO, LIMITED (by: David L. Babson & Company Inc. as Collateral Manager)
By: Adrienne Musgnug
Its: Managing Director
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY (by: David L. Babson & Company Inc. as Investment Advisor)
By: Adrienne Musgnug
Its: Managing Director
TRS 1 LLC
By: Deborah O’Keeffe
Its: Vice President
BLACK DIAMOND CLO 1998-1 LTD.
By: Alan Corkish
Its: Director
BLACK DIAMOND INTERNATIONAL FUNDING, LTD.
By: Alan Corkish
Its: Director
BK AMER
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
By: Geraldine Hannon/David McGarry
Its: Authorized Signatories
BANK OF MONTREAL
By: S. Valia
Its: MD
BANK ONE, NA
By: Clifon Chang
Its: Managing Director
MAGNETITE IV CLO, LIMITED
By: Mark J. Williams
Its: Authorized Signatory
MAGNETITE V CLO, LIMITED
By: Mark J. Williams
Its: Authorized Signatory
SENIOR LOAN FUND
By: Mark J. Williams
Its: Authorized Signatory
BLACKROCK SENIOR LOAN TRUST
By: Mark J. Williams
Its: Authorized Signatory
17
BLACKROCK LIMITED DURATION INCOME TRUST
By: Mark J. Williams
Its: Authorized Signatory
TITANIUM CBO I LIMITED
By: Mark J. Williams
Its: Authorized Signatory
BLACKROCK-MAGNETITE
By: Mark J. Williams
Its: Authorized Signatory
MAGNETITE ASSET INVESTORS L.L.C.
By: Mark J. Williams
Its: Authorized Signatory
MAGNETITE CBO II, LTD.
By: Mark J. Williams
Its: Authorized Signatory
HANOVER SQUARE CLO LTD. (By: Blackstone Debt Advisors L.P. as Collateral Manager)
By: Dean Criares
Its: Managing Director
MONUMENT PARK CDO LTD. (By: Blackstone Debt Advisors L.P. as Collateral Manager)
By: Dean Criares
Its: Managing Director
UNION SQUARE CDO LTD.(By: Blackstone Debt Advisors L.P. as Collateral Manager)
By: Dean Criares
Its: Managing Director
GALLATIN FUNDING I LTD. By: Bear Stearns Asset Management Inc. as its Collateral Manager
By: Nick D. Rosenzweig
Its: Associate Director
BRAYMOOR & CO. By: Bear Stearns Asset Management Inc. as its Collateral Manager
By: Nick D. Rosenzweig
Its: Associate Director
GRAYSTON CLO 2001-01 LTD. By: Bear Stearns Asset Management Inc. as its Collateral Manager
By: Nick D. Rosenzweig
Its: Associate Director
LAGUNA FUNDING LLC
By: Kelly W. Warnement
Its: Vice President
APEX (TRIMARAN) CDO I, LTD. By Trimaran Advisors, L.L.C.
By: David M. Millison
Its: Managing Director
SAWGRASS TRADING LLC
By: Kelly W. Warnement
Its: Vice President
18
CARLYLE HIGH YIELD PARTNERS, L.P.
By: Mark Alter
Its: Managing Director
CARLYLE HIGH YIELD PARTNERS II, LTD.
By: Mark Alter
Its: Managing Director
CARLYLE HIGH YIELD PARTNERS III, LTD.
By: Mark Alter
Its: Managing Director
CARLYLE HIGH YIELD PARTNERS IV, LTD.
By: Mark Alter
Its: Managing Director
CARLYLE LOAN OPPORTUNITY FUND
By: Mark Alter
Its: Managing Director
LOAN FUNDING I LLC, a wholly owned subsidiary of Citibank, N.A. (By: TCW Advisors, Inc., as Portfolio Manager of Loan Funding I LLC)
By: Jonathan R. Insull
Its: Managing Director
By: Mark L. Gold
Its: Managing Director
LONG LANE MASTER TRUST II (by: Fleet National Bank as Trust Administrator with respect to Series Eclipse)
By: Michael J. Sullivan
Its: Director
TRS ECLIPSE LLC
By: Deborah O’Keeffe
Its: Vice President
STANWICH LOAN FUNDING LLC
By: Kelly W. Warnement
Its: Vice President
TRUMBULL TMC, LTD.
By: Tim Houghton
Its: Vice President
TORONTO DOMININ (NEW YORK), INC.
By: Michelle Manning
Its: Attorney-in-Fact
CIT LENDING SERVICES
CITICORP NORTH AMERICA, INC.
By: J. Gregory Davis
Its: Vice President
19
CITIGROUP FINANCIAL PRODUCTS
By: Doug Warren
Its: Managing Director
JUPITER LOAN FUNDING LLC
By: Kelly W. Warnement
Its: Vice President
WINGED FOOT FUNDING TRUST
By: Kelly W. Warnement
Its: Vice President
ATRIUM CDO
By: Andrew H. Marshak
Its: Authorized Signatory
CREDIT INDUSTRIEL ET COMMERCIAL
By: Marcus Edward
Its: Vice President
By: Anthony Rock
Its: Vice President
CSAM FUNDING I
By: Andrew H. Marshak
Its: Authorized Signatory
CSAM FUNDING II
By: Andrew H. Marshak
Its: Authorized Signatory
CSAM FUNDING III
By: Andrew H. Marshak
Its: Authorized Signatory
FIRST DOMINION FUNDING I
By: Andrew H. Marshak
Its: Authorized Signatory
FIRST DOMINION FUNDING II
By: Andrew H. Marshak
Its: Authorized Signatory
FIRST DOMINION FUNDING III
By: Andrew H. Marshak
Its: Authorized Signatory
CREDIT SUISSE FIRST BOSTON, ACTING THROUGH ITS CAYMAN ISLANDS BRANCH
By: Jay Chall
Its: Director
By: Doreen Walch
Its: Associate
20
DB TRUST AMERICAS
Denali Capital LLC, managing member of the DC Funding Partners, portfolio manager for DENALI CAPITAL CLO III, LTD., or an affiliate
By: John P. Thacker
Its: Chief Credit Officer
Denali Capital LLC, managing member of the DC Funding Partners, portfolio manager for DENALI CAPITAL CLO II, LTD., or an affiliate
By: John P. Thacker
Its: Chief Credit Officer
BIG SKY SENIOR LOAN FUND, LTD. (by: Eaton Vance Management as Investment Advisor)
By: Michael B. Botthof
Its: Vice President
EATON VANCE SENIOR FLOATING-RATE TRUST (by: Eaton Vance Management as Investment Advisor)
By: Michael B. Botthof
Its: Vice President
TOLLI & CO. (by: Eaton Vance Management as Investment Advisor)
By: Michael B. Botthof
Its: Vice President
EATON VANCE CDO III, LTD. (by: Eaton Vance Management as Investment Advisor)
By: Michael B. Botthof
Its: Vice President
EATON VANCE CDO IV, LTD (by: Eaton Vance Management as Investment Advisor)
By: Michael B. Botthof
Its: Vice President
EATON VANCE CDO V, LTD (by: Eaton Vance Management as Investment Advisor)
By: Michael B. Botthof
Its: Vice President
EATON VANCE CDO VI LTD. (by: Eaton Vance Management as Investment Advisor)
By: Michael B. Botthof
Its: Vice President
GRAYSON & CO (by: Boston Management and Research as Investment Advisor)
By: Michael B. Botthof
Its: Vice President
EATON VANCE INSTITUTIONAL SENIOR FUND (by: Eaton Vance Management as Investment Advisor)
By: Michael B. Botthof
Its: Vice President
EATON VANCE LIMITED DURATION INCOME FUND (by: Eaton Vance Management as Investment Advisor)
By: Michael B. Botthof
Its: Vice President
21
OXFORD STRATEGIC INCOME FUND (by: Eaton Vance Management as Investment Advisor)
By: Michael B. Botthof
Its: Vice President
EATON VANCE SENIOR INCOME TRUST (by: Eaton Vance Management as Investment Advisor)
By: Michael B. Botthof
Its: Vice President
SENIOR DEBT PORTFOLIO (by: Boston Management and Research as Investment Advisor)
By: Michael B. Botthof
Its: Vice President
EATON VANCE VT FLOATING RATE INCOME FUND (by: Eaton Vance Management as Investment Advisor)
By: Michael B. Botthof
Its: Vice President
BALLYROCK CDO I LIMITED (by: Ballyrock Investment Advisors LLC, as Collateral Manager)
By: Lisa Rymut
Its: Assistant Treasurer
BALLYROCK CLO II LIMITED (by: Ballyrock Investment Advisors LLC, as Collateral Manager)
By: Lisa Rymut
Its: Assistant Treasurer
FIDELITY ADVISOR SERIES II: FIDELITY ADVISOR FLOATING RATE HIGH INCOME FUND
By: John H. Costello
Its: Assistant Treasurer
FLAGSHIP CLO II (by Flagship Capital Management, Inc.)
By: Eric S. Meyer
Its: Director
FLAGSHIP CLO-2001-1 (by Flagship Capital Management, Inc.)
By: Eric S. Meyer
Its: Director
FLEET NATIONAL BANK FOR THE ACCOUNT OF FLAGSHIP FUND
By: Peter van der Horst
Its: Director
FOOTHILL INCOME TRUST II LP (by FIT II GP, LLC, its Gen. Partner)
By: Sean T. Dixon
Its: Managing Member
FRANKLIN CLO I, LIMITED
By: Richard Hsu
Its: Vice President
FRANKLIN CLO II, LIMITED
By: Richard Hsu
Its: Vice President
FRANKLIN CLO III, LIMITED
By: Richard Hsu
Its: Vice President
22
FRANKLIN CLO IV, LIMITED
By: Richard Hsu
Its: Vice President
FRANKLIN FLOATING RATE MASTER SERIES
By: Richard Hsu
Its: Vice President
FRANKLIN FLOATING RATE TRUST
By: Richard Hsu
Its: Vice President
FRANKLIN FLOATING RATE DAILY ACCESS FUND
By: Richard Hsu
Its: Vice President
FRANKLIN TEMPLETON LIM. DURATION INCOME TRUST
By: Richard Hsu
Its: Vice President
GOLDMAN SACHS CREDIT PARTNERS L.P.
By: Stephen King
Its: Authorized Signatory
1888 FUND, LTD.
By: Kaitlin Trinh
Its: Fund Controller
GULF STREAM - COMPASS CLO 2002-1 LTD (by Gulf Stream Asset Management LLC as Collateral Manager)
By: [Illegible]
Its: Trader
GULF STREAM - COMPASS CLO 2003-1 LTD (by Gulf Stream Asset Management LLC as Collateral Manager)
By: [Illegible]
Its: Trader
HARCH CLO I, LTD.
By: Michael E. Lewitt
Its: Authorized Signatory
BLUE SQUARE FUNDING LIMITED SERIES 3
By: Deborah O’Keeffe
Its: Vice President
ELF FUNDING TRUST I (by: Highland Capital Management, L.P. as Collateral Manager)
By: Todd Travers
Its: Senior Portfolio Manager
EMERALD ORCHARD LIMITED
By: Michelle Manning
Its: Attorney-in-Fact
23
GLENEAGLES TRADING LLC
By: Kelly W. Warnement
Its: Vice President
HCM US LOANS MAC 43 LTD (by: Highland Capital Management, L.P. as Attorney-in-Fact)
By: Todd Travers
Its: Senior Portfolio Manager
LOAN FUNDING IV LLC (by: Highland Capital Management, L.P. as Portfolio Manager)
By: Todd Travers
Its: Senior Portfolio Manager
HIGHLAND LOAN FUNDING V Ltd. (by: Highland Capital Management, L.P. as Collateral Manager)
By: Todd Travers
Its: Senior Portfolio Manager
RESTORATION FUNDING CLO, LTD (by: Highland Capital Management, L.P. as Collateral Manager)
By: Todd Travers
Its: Senior Portfolio Manager
HIGHLAND LEGACY LIMITED (by: Highland Capital Management, L.P. as Collateral Manager)
By: Todd Travers
Its: Senior Portfolio Manager
INDOSUEZ CAPITAL FUNDING VI, LIMITED (By: Indosuez Capital as Collateral Manager)
By: Charles Kobayashi
Its: Principal and Portfolio Manager
ARCHIMEDES FUNDING IV (CAYMAN), LTD. (by: ING Capital Advisors LLC, as Collateral Manager)
By: Peanie C. Wang
Its: Vice President
BALANCED HIGH-YIELD FUND II, LTD. (by ING Capital Advisors LLC, as Asset Manager)
By: Peanie C. Wang
Its: Vice President
ENDURANCE CLO I, LTD. (by ING Capital Advisors LLC, as Collateral Manager)
By: Peanie C. Wang
Its: Vice President
NEMEAN CLO, LTD. (by ING Capital Advisors LLC, as Investment Manager)
By: Peanie C. Wang
Its: Vice President
ING – ORYX CLO, LTD. (by ING Capital Advisors LLC, as Collateral Manager)
By: Peanie C. Wang
Its: Vice President
ING - SEQUILS-ING I (HBDGM) LLC (by ING Capital Advisors LLC, as Collateral Manager)
By: Peanie C. Wang
Its: Vice President
AIM FLOATING RATE FUND (by: INVESCO Senior Secured Management, Inc. as Sub-Advisor)
By: Scott Baskind
Its: Authorized Signatory
24
DIVERSIFIED CREDIT PORTFOLIO LTD. (by: INVESCO Senior Secured Management, Inc. as Investment Advisor)
By: Scott Baskind
Its: Authorized Signatory
AVALON CAPITAL, LTD. (by: INVESCO Senior Secured Management, Inc. as Portfolio Advisor)
By: Scott Baskind
Its: Authorized Signatory
INVESCO-AVALON CAPITAL LTD. 2 (by: INVESCO Senior Secured Management, Inc. as Portfolio Advisor)
By: Scott Baskind
Its: Authorized Signatory
INVESCO CBO 2000-1 LTD (by: INVESCO Senior Secured Management, Inc. as Portfolio Advisor)
By: Scott Baskind
Its: Authorized Signatory
CHARTER VIEW PORTFOLIO (by: INVESCO Senior Secured Management, Inc. as Investment Advisor)
By: Scott Baskind
Its: Authorized Signatory
INVESCO-DCP (by: INVESCO Senior Secured Management, Inc. as Investment Advisor)
By: Scott Baskind
Its: Authorized Signatory
SAGAMORE CLO LTD. (by: INVESCO Senior Secured Management, Inc. as Collateral Manager)
By: Scott Baskind
Its: Authorized Signatory
SARATOGA CLO I, LIMITED (by: INVESCO Senior Secured Management, Inc. as Asset Manager)
By: Scott Baskind
Its: Authorized Signatory
SEQUILS-LIBERTY, LTD. (by: INVESCO Senior Secured Management, Inc. as Collateral Manager)
By: Scott Baskind
Its: Authorized Signatory
KATONAH – I, LTD
By: Ralph Della Rocca
Its: Authorized Officer, Katonah Capital, LLC as Manager)
KATONAH II, LTD
By: Ralph Della Rocca
Its: Authorized Officer, Katonah Capital, LLC as Manager)
KATONAH III, LTD
By: Ralph Della Rocca
Its: Authorized Officer, Katonah Capital, LLC as Manager)
KATONAH IV, LTD
By: Ralph Della Rocca
Its: Authorized Officer, Katonah Capital, LLC as Manager)
25
KATONAH V, LTD.
By: Ralph Della Rocca
Its: Authorized Officer, Katonah Capital, LLC as Manager)
LA SALLE BANK, N.A., as Custodian
By: Theresa Lynch
Its: Assistant Vice President
LIBERTYVIEW FUNDS, L.P.
By: Steven S. Rogers
Its: Authorized Signatory
CONTINENTAL CASUALTY COMPANY
By: Marilou R. McGirr
Its: Vice President and Assistant Treasurer
MET LIFE INSURANCE COMPANY
By: James R. Dingler
Its: Director
MADISON AVENUE CDO IV
By: James R. Dingler
Its: Director
VENTURE CDO 2002, LIMITED by its investment manager MIX Asset Management, LLC
By: [Illegible]
Its: [none]
VENTURE II CDO LIMITED by its investment manager MIX Asset Management, LLC
By: [Illegible]
Its: [none]
VENTURE III CDO by its investment manager MIX Asset Management, LLC
By: [Illegible]
Its: [none]
LONGHORN CDO (CAYMAN) LTD (by: Merrill Lynch Investment Managers, L.P. as Investment Advisor)
By: Andrew C. Liggio
Its: Authorized Signatory
LONGHORN CDO II, LTD. (by: Merrill Lynch Investment Managers, L.P. as Investment Advisor)
By: Andrew C. Liggio
Its: Authorized Signatory
LONGHORN CDO III, LTD. (by: Merrill Lynch Investment Managers, L.P. as Investment Advisor)
By: Andrew C. Liggio
Its: Authorized Signatory
FLOATING RATE INCOME STRATEGIES FUND, INC.
By: Andrew C. Liggio
Its: Authorized Signatory
LIGHT POINT CLO 2004-1
By: Joseph P. Lynch
Its: Director
26
MOUNTAIN CAPITAL CLO 1 LTD.
By: Chris Siddons
Its: Director
MOUNTAIN CAPITAL CLO II, LTD
By: Chris Siddons
Its: Director
MORGAN STANLEY PRIME INCOME TRUST
By: [Illegible]
Its: Vice President
NATEXIS BANQUES POPULAIRES
By: Michael Pellerito
Its: Vice President
By: Cynthia Sachs
Its: Vice President & Group Manager
NATIONWIDE MUTUAL INSURANCE COMPANY
By: Thomas S. Leggett
Its: Associate Vice President Public Bonds
CLYDESDALE CLO 2003 LTD (Nomura Corporate Research and Asset Management Inc. as Agent)
By: Elizabeth MacLean
Its: Director
NOMURA BOND & LOAN FUND (By: UFJ Trust Bank Limited as Trustee and By: Nomura Corporate Research and Asset Management Inc. Attorney in Fact)
By: Elizabeth MacLean
Its: Director
CLYDESDALE CLO 2001-I, LTD. (Nomura Corporate Research and Asset Management Inc. as Collateral Manager)
By: Elizabeth MacLean
Its: Director
ELF Funding Trust III (by: New York Investment Management LLC, as Attorney-in-Fact)
By: [Illegible]
Its: [none]
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION (by: New York Investment Management LLC, its Investment Manager
By: [Illegible]
Its: [none]
NYLIM FLATIRON CLO 2003-1 LTD (by New York Investment Management LLC, as Collateral Manager and Attorney-in-Fact)
By: [Illegible]
Its: [none]
OAK HILL CREDIT PARTNERS III, LIMITED (by: Oak Hill CLO Management III, LLC as Investment Manager)
By: Scott D. Krase
Its: Authorized Person
27
OAK HILL CREDIT PARTNERS I, LIMITED (by: Oak Hill CLO Management I, LLC as Investment Manager)
By: Scott D. Krase
Its: Authorized Person
OAK HILL SECURITIES FUND, L.P. (by: Oak Hill Securities Gen Par, L.P. its General Partner; by: Oak Hill Securities MGP, Inc., its General Partner)
By: Scott D. Krase
Its: Vice President
OAK HILL SECURITIES FUND II (by: Oak Hill Securities Gen Par II, L.P. its General Partner; by: Oak Hill Securities MGP II, Inc., its General Partner)
By: Scott D. Krase
Its: Vice President
OCTAGON INVESTMENT PARTNERS VI, LTD. (by: Octagon Credit Investors, LLC as collateral manager)
By: Andrew D. Gordon
Its: Portfolio Manager
OCTAGON INVESTMENT PARTNERS II, LLC (by: Octagon Credit Investors, LLC as sub-investment manager)
By: Andrew D. Gordon
Its: Portfolio Manager
OCTAGON INVESTMENT PARTNERS III, LTD. (by: Octagon Credit Investors, LLC as Portfolio Manager)
By: Andrew D. Gordon
Its: Portfolio Manager
OCTAGON INVESTMENT PARTNERS IV, LTD. (by: Octagon Credit Investors, LLC as collateral manager)
By: Andrew D. Gordon
Its: Portfolio Manager
HARBOURVIEW CLO V, LTD.
By: Lisa Chaffee
Its: Manager
HARBOURVIEW CLO IV, LTD.
By: Lisa Chaffee
Its: Manager
OPPENHEIMER SENIOR FLOATING RATE FUND
By: Lisa Chaffee
Its: Manager
ORIX FUNDING LLC
By: Kelly W. Warnement
Its: Vice President
RIVIERA FUNDING LLC
By: Kelly W. Warnement
Its: Vice President
28
AERIES FINANCE-II LTD. (by: Patriarch Partners X, LLC, its Managing Agent)
By: Lynn Tilton
Its: Manager
AMARA 1 FINANCE LTD. (by Patriarch Partners XI, LLC, its Managing Agent)
By: Lynn Tilton
Its: Manager
AMARA-2 FINANCE LTD. (by Patriarch Partners XII, LLC, its Managing Agent)
By: Lynn Tilton
Its: Manager
OASIS COLLATERALIZED HIGH INCOME PORTFOLIOS-1, LTD. (by Patriarch Partners XIII, LLC, its Managing Agent)
By: Lynn Tilton
Its: Manager
PAYDEN & RYDEL SHORT BOND FUND
By: James P. Sarni
Its: Managing Principal
TEXAS A&M (by: Payden & Rydel as Investment Adviser)
By: James P. Sarni
Its: Managing Principal
UNIVERSITY OF MICHIGAN (by: Payden & Rydel as Investment Adviser)
By: James P. Sarni
Its: Managing Principal
PILGRIM CLO 1999-1 LTD. (by: ING Investments, LLC as its investment manager)
By: Mohamed Basma
Its: Vice President
ML CLO XX PILGRIM AMERICA (CAYMAN) LTD. (by: ING Investments, LLC as its investment manager)
By: Mohamed Basma
Its: Vice President
SEQUILS-PILGRIM I, LTD (by: ING Investments, LLC as its investment manager)
By: Mohamed Basma
Its: Vice President
ING PRIME RATE TRUST (by:Aeltus Investment Management, Inc. as its investment manager)
By: Mohamed Basma
Its: Vice President
ING SENIOR INCOME FUND (by:Aeltus Investment Management, Inc. as its investment manager)
By: Mohamed Basma
Its: Vice President
ADDISON CDO, LIMITED (by: Pacific Investment Management Company LLC, as its Investment Advisor)
By: Mohan V. Phansalkar
Its: Managing Director
29
BALBOA CDO I, LIMITED (by: Pacific Investment Management Company LLC, as its Investment Advisor)
By: Mohan V. Phansalkar
Its: Managing Director
CAPTIVA IV Finance Ltd., as advised by Pacific Investment Management Company LLC
By: David Dyer
Its: Director
PIMCO - FLOAT RATE INCOME FUND
By: Andrew C. Liggio
Its: Authorized Signatory
PIMCO FLOATING RATE INCOME FUND (by Pacific Investment Management Company LLC, as its Investment Advisor, acting through Investors Fiduciary Trust Company in the Nominee Name of IFTCO)
By: Mohan V. Phansalkar
Its: Managing Director
JISSEKIKUN FUNDING, LTD. (by Pacific Investment Management Company LLC, as its Investment Advisor)
By: Mohan V. Phansalkar
Its: Managing Director
LOAN FUNDING III LLC (by Pacific Investment Management Company LLC, as its Investment Advisor)
By: Mohan V. Phansalkar
Its: Managing Director
PACIFIC HIGH YIELD CAYMAN UNIT TRUST (by Pacific Investment Management Company LLC, as its Investment Advisor, acting through The Chase Manhattan Bank, in the Nominee Name of Polly & Co.)
By: Mohan V. Phansalkar
Its: Managing Director
PVIT HIGH YIELD BOND PORTFOLIO (by Pacific Investment Management Company LLC, as its Investment Advisor, acting through Investors Fiduciary Trust Company in the Nominee Name of IFTCO)
By: Mohan V. Phansalkar
Its: Managing Director
SAN MIGUEL CDO LIMITED (by Pacific Investment Management Company LLC, as its Investment Advisor)
By: Mohan V. Phansalkar
Its: Managing Director
SEQUILS-MAGNUM, LTD. (by Pacific Investment Management Company LLC, as its Investment Advisor)
By: Mohan V. Phansalkar
Its: Managing Director
WAVELAND – INGOTS, LTD. (by Pacific Investment Management Company LLC, as its Investment Advisor)
By: Mohan V. Phansalkar
Its: Managing Director
WRIGLEY CDO, LTD (by Pacific Investment Management Company LLC, as its Investment Advisor)
By: Mohan V. Phansalkar
Its: Managing Director
30
PPM America, Inc., as Attorney-in-Fact, on behalf of Jackson National Life Insurance Company
By: David C. Wagner
Its: Managing Director
PPM SHADOW CREEK FUNDING LLC
By: Kelly W. Warnement
Its: Vice President
PPM SPYGLASS FUNDING TRUST
By: Kelly W. Warnement
Its: Vice President
PRINCIPAL LIFE INSURANCE COMPANY (by: Principal Global Investors, LLC a Delaware limited liability company, its authorized signatory)
By: Jon C. [Illegible]
Its: Counsel
By: James C. [Illegible]
Its: Counsel
PROMETHEUS INVESTMENT FUNDING NO 2 LTD. (by: HVB Credit Advisors LLC)
By: Vicky S. Soo
Its: Associate Director
By: Elizabeth Tallmadge
Its: Managing Director, Chief Investment Officer
PROMETHEUS INVESTMENT FUNDING NO.1 LTD. (by: HVB Credit Advisors LLC)
By: Vicky S. Soo
Its: Associate Director
By: Elizabeth Tallmadge
Its: Managing Director, Chief Investment Officer
PROTECTIVE LIFE INSURANCE COMPANY
By: Diane S. Griswold
Its: AVP
Dryden Leveraged Loan CDO 2002-II (by: Prudential Investment Management, Inc. as Collateral Manager)
By: B. Ross Smead
Its: Vice President
Dryden III Leveraged Loan CDO 2002 (by: Prudential Investment Management, Inc. as Collateral Manager)
By: B. Ross Smead
Its: Vice President
Dryden IV Leveraged Loan CDO 2003 (by: Prudential Investment Management, Inc. as Collateral Manager)
By: B. Ross Smead
Its: Vice President
The Prudential Insurance Company of America (by: Prudential Investment Management, Inc., as Investment Advisor)
By: B. Ross Smead
Its: Vice President
31
PUTNAM DIVERSIFIED INCOME TRUST
By: Beth Mazor
Its: VP
PUTNAM HIGH YIELD ADVANTAGE FUND
By: Beth Mazor
Its: VP
PUTNAM HIGH YIELD TRUST
By: Beth Mazor
Its: VP
PUTNAM MASTER INTERMEDIATE INCOME TRUST
By: Beth Mazor
Its: VP
PUTNAM MASTER INCOME TRUST
By: Beth Mazor
Its: VP
PUTNAM PREMIER INCOME TRUST
By: Beth Mazor
Its: VP
PUTNAM VARIABLE TRUST PVT HIGH YIELD FUND
By: Beth Mazor
Its: VP
PUTNAM VARIABLE TRUST PVT DIVERSIFIED INCOME UND
By: Beth Mazor
Its: VP
FOXE BASIN CLO 2003, LTD (by: Royal Bank of Canada as Collateral Manager)
By: Melissa Marano
Its: Authorized Signatory
SEQUILS-GLACE BAY, LTD. (by: Royal Bank of Canada as Collateral Manager)
By: Melissa Marano
Its: Authorized Signatory
SANKATY ADVISORS, LLC AS COLLATERAL MANAGER FOR AVERY POINT CLO, LTD., AS TERM LENDER
By: Timothy Barns
Its: Senior Vice President
SANKATY ADVISORS, LLC AS COLLATERAL MANAGER FOR BRANT POINT CBO 1999-1 LTD., AS TERM LENDER
By: Timothy Barns
Its: Senior Vice President
SANKATY ADVISORS, LLC AS COLLATERAL MANAGER FOR BRANT POINT II CBO 2000-1 LTD., AS TERM LENDER
By: Timothy Barns
Its: Senior Vice President
32
SANKATY ADVISORS, LLC AS COLLATERAL MANAGER FOR CASTLE HILL I – INGOTS, LTD., AS TERM LENDER
By: Timothy Barns
Its: Senior Vice President
SANKATY ADVISORS, LLC AS COLLATERAL MANAGER FOR CASTLE HILL III – INGOTS, LTD., AS TERM LENDER
By: Timothy Barns
Its: Senior Vice President
SANKATY ADVISORS, LLC AS COLLATERAL MANAGER FOR CASTLE HILL III CLO, LIMITED, AS TERM LENDER
By: Timothy Barns
Its: Senior Vice President
SANKATY ADVISORS, LLC AS COLLATERAL MANAGER FOR RACE POINT II CLO, LIMITED, AS TERM LENDER
By: Timothy Barns
Its: Senior Vice President
SANKATY ADVISORS, LLC AS COLLATERAL MANAGER FOR RACE POINT CLO, LIMITED, AS TERM LENDER
By: Timothy Barns
Its: Senior Vice President
SANKATY ADVISORS, LLC AS COLLATERAL MANAGER FOR GREAT POINT CLO 1999-1 LTD., AS TERM LENDER
By: Timothy Barns
Its: Senior Vice President
SANKATY-HARBOUR TOWN FDG LLC
LONG LANE MASTER TRUST IV by Fleet National Bank as Trust Administrator
By: Michael J. Sullivan
Its: Director
Sumitomo Mitsui Banking Corporation
By: Edward D. Henderson, Jr.
Its: General Manager
STANFIELD ARBITRAGE CLO, LTD. By: Stanfield Capital Partners LLC as its Collateral Manager
By: Christopher E. Jensen
Its: Managing Partner
STANFIELD CLO, LTD. By: Stanfield Capital Partners LLC as its Collateral Manager
By: Christopher E. Jensen
Its: Managing Partner
STANFIELD/RMF TRANSATLANTIC CDO LTD. By: Stanfield Capital Partners LLC as its Collateral Manager
By: Christopher E. Jensen
Its: Managing Partner
33
WINDSOR LOAN FUNDING, LIMITED By: Stanfield Capital Partners LLC as its Investment Manager
By: Christopher E. Jensen
Its: Managing Partner
STANFIELD QUATTRO CLO, LTD. By: Stanfield Capital Partners LLC as its Collateral Manager
By: Christopher E. Jensen
Its: Managing Partner
HAMILTON CDO, LTD. By: Stanfield Capital Partners LLC as its Collateral Manager
By: Christopher E. Jensen
Its: Managing Partner
SUNAMERICA SENIOR FLOATING RATE FUND INC. By: Stanfield Capital Partners LLC as sub advisor
By: Christopher E. Jensen
Its: Managing Partner
TRS CALLISTO LLC
By: Deborah O’Keeffe
Its: Vice President
STRONG SHORT-TERM HIGH YIELD BOND FUND
By: [Illegible]
Its: [none]
GALAXY 1999-1, LTD (by: AIG Global Investment Corp., its Investment Advisor)
By: Julie Bothamley
Its: Vice President
GALAXY CLO 2003-1, LTD (by: AIG Global Investment Corp., its Investment Advisor)
By: Julie Bothamley
Its: Vice President
KZH SOLEIL LLC
By: Hi Hua
Its: Authorized Agent
SUNAMERICA LIFE INSURANCE COMPANY (by: AIG Global Investment Corp., its Investment Advisor)
By: Julie Bothamley
Its: Vice President
CONTINENTAL ASSURANCE COMPANY ON BEHALF OF ITS SEPARATE ACCOUNT (E)
By: Marilou R. McGirr
Its: Vice President and Assistant Treasurer
C-SQUARED CDO LTD (By: TCW Advisors, Inc., as its Portfolio Manager)
By: Jonathan R. Insull
Its: Managing Director
KZH CRESCENT-2 LLC
By: Hi Hua
Its: Authorized Agent
KZH CRESCENT-3 LLC
By: Hi Hua
Its: Authorized Agent
34
CELERITY CLO LIMITED (By: TCW Advisors, Inc., as agent)
By: Jonathan R. Insull
Its: Managing Director
By: Mark L. Gold
Its: Managing Director
TCW SELECT LOAN FUND, LIMITED (By: TCW Advisors, Inc., as its Collateral Manager)
By: Jonathan R. Insull
Its: Managing Director
By: Mark L. Gold
Its: Managing Director
SEQUILS IV, LTD. (By: TCW Advisors, Inc., as its Collateral Manager)
By: Jonathan R. Insull
Its: Managing Director
By: Mark L. Gold
Its: Managing Director
SEQUILS I, LTD (By: TCW Advisors, Inc., as its Collateral Manager)
By: Jonathan R. Insull
Its: Managing Director
By: Mark L. Gold
Its: Managing Director
LOAN FUNDING CORP. THC. LTD.
By: Michelle Manning
Its: Attorney-in-Fact
CITICORP INSURANCE AND INVESTMENT TRUST (by: Travelers Asset Management International Company LLC)
By: William M. Gardner
Its: Investment Officer
CITIGROUP INVESTMENTS CORPORATE LOAN FUND (by: Travelers Asset Management International Company LLC)
By: Melanie Hanlon
Its: Vice President
COLUMBUS LOAN FUNDING LTD. (by: Travelers Asset Management International Company LLC)
By: Melanie Hanlon
Its: Vice President
TRAVELERS INSURANCE COMPANY
By: William M. Gardner
Its: Investment Officer
VAN KAMPEN SENIOR LOAN FUND (by: Van Kampen Investment Advisory Corp.)
By: Brad Langs
Its: Executive Director
VAN KAMPEN SENIOR INCOME TRUST (by: Van Kampen Investment Advisory Corp.)
By: Brad Langs
Its: Executive Director
WESTERN ASSET
By: [Illegible]
Its: [none]
35
Each of the undersigned, each being a Subsidiary Guarantor under, and as defined in, the Credit Agreement referenced in the foregoing Second Amendment, hereby consents to the entering into of the Second Amendment and agrees to the provisions thereof (including, without limitation, Part II, Section 6 thereof).
| DIRECTV FINANCING CO, INC. | ||
| DIRECTV ENTERPRISES, LLC | ||
| DIRECTV CUSTOMER SERVICES, INC. | ||
| DIRECTV, INC. | ||
| DIRECTV MERCHANDISING, INC. | ||
| DIRECTV OPERATIONS, LLC | ||
| USSB II, INC. | ||
| TRIUMPH COMMUNICATIONS, INC. | ||
| By: | /s/ M. W. Palkovic | |
| Name: M. W. Palkovic Title: Senior Vice President & CFO | ||
36
The undersigned, being a Credit Party under, and as defined in, the Credit Agreement referenced in the foregoing Second Amendment, hereby consents to the entering into of the Second Amendment and agrees to the provisions thereof (including, without limitation, Part II, Section 6 thereof).
| HUGHES ELECTRONICS CORPORATION | ||
| By: | /s/ P. T. Doyle | |
| Name: P. T. Doyle Title: Senior Vice President, Treasurer & Controller | ||
37
Schedule I
| Lender | B-2 Term Loan Commitment | ||
| Deutsche Bank Trust Company Americas | $ | 0 | |
| TOTAL | $ | 0 | |
Exhibit B-6
Form of B-2 Term Note
| $ | New York, New York | |
| [Date] |
FOR VALUE RECEIVED, DIRECTV HOLDINGS LLC, a Delaware limited liability company (the “Borrower”), hereby promises to pay to or its registered assigns (the “Lender”), in lawful money of the United States of America in immediately available funds, at the office of Deutsche Bank Trust Company Americas (the “Administrative Agent”) located at 90 Hudson Street, Jersey City, New Jersey 07302 on the B-2 Term Loan Maturity Date (as defined in the Credit Agreement referred to below) the principal sum of DOLLARS ($ ) or, if less, the aggregate unpaid principal amount of all B-2 Term Loans (as defined in the Credit Agreement) made by the Lender pursuant to the Credit Agreement.
The Borrower also promises to pay interest on the unpaid principal amount hereof in like money at said office from the date hereof until paid at the rates and at the times provided in Section 1.08 of the Credit Agreement.
This Note is one of the B-2 Term Notes referred to in the Credit Agreement, dated as of March 6, 2003, among the Borrower, the lenders from time to time party thereto (including the Lender), the Administrative Agent and Bank of America, N.A., as Syndication Agent (as amended, modified or supplemented from time to time, the “Credit Agreement”) and is entitled to the benefits thereof and of the other Credit Documents (as defined in the Credit Agreement). This Note is secured by the Security Documents (as defined in the Credit Agreement) and is entitled to the benefits of the Subsidiaries Guaranty (as defined in the Credit Agreement). This Note is subject to voluntary prepayment and mandatory repayment prior to the B-2 Term Loan Maturity Date, in whole or in part, as provided in the Credit Agreement.
If an Event of Default (as defined in the Credit Agreement) shall occur and be continuing, the principal of and accrued interest on this Note may become or be declared to be due and payable in the manner and with the effect provided in the Credit Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
| DIRECTV HOLDINGS LLC | ||
| By: |
| |
| Name: Title: | ||
Exhibit M
Form of Assignment and Assumption Agreement1
This Assignment and Assumption Agreement (this “Assignment”), is dated as of the Effective Date set forth below and is entered into by and between [the][each] Assignor identified in item [1][2] below ([the] [each, an] “Assignor”) and [the] [each] Assignee identified in item 2 below ([the] [each, an] “Assignee”). [It is understood and agreed that the rights and obligations of such [Assignees][and Assignors] hereunder are several and not joint.] Capitalized terms used herein but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, restated, supplemented and/or otherwise modified from time to time, the “Credit Agreement”). The Standard Terms and Conditions for Assignment and Assumption Agreement set forth in Annex 1 hereto (the “Standard Terms and Conditions”) are hereby agreed to and incorporated herein by reference and made a part of this Assignment as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the] [each] Assignee, and [the] [each] Assignee hereby irrevocably purchases and assumes from [the][each] Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below, the interest in and to all of [the][each] Assignor’s rights and obligations under the Credit Agreement and any other documents or instruments delivered pursuant thereto that represents the amount and percentage interest identified below of all of the [respective] Assignor’s outstanding rights and obligations under the respective Tranches identified below (including, to the extent included in any such Tranches, Letters of Credit and Swingline Loans) ([the] [each, an] “Assigned Interest”). [Each] [Such] sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment, without representation or warranty by [the][any] Assignor.
| [1. | Assignor: | _________________ | ||
| 2. | Assignee: | ]2 | ||
| [1][3]. | Credit Agreement: | Credit Agreement, dated as of March 6, 2003, among DIRECTV Holdings LLC, the lenders from time to time party thereto, Deutsche Bank Trust Company Americas, as Administrative Agent and Bank of America, N.A., as Syndication Agent. | ||
| 1 | This Form of Assignment and Assumption Agreement should be used by Lendors for an assignment to a single Assignee or to funds managed by the same or related investment managers. |
| 2 | If the form is used for a single Assignor and Assignee, items 1 and 2 should list the Assignor and the Assignee, respectively. In the case of an assignment to funds managed by the same or related investment managers, or an assignment by multiple Assignors, the Assignors and the Assignee(s) should be listed in the table under bracketed item 2 below. |
Exhibit M
Page 2
[2. Assigned Interest:3
| Assignor | Assignee | Tranche Assigned4 | Aggregate Amount Commitment/Loans | Amount of Commitment/Loans under Relevant Tranche Assigned | Percentage of Assigned Commitment/ Loans under Relevant Tranche5 | |||||||
| [Name of Assignor] | [Name of Assignee | ] | B-2 Term Loans | _____________ | _____________ | __________ | % | |||||
| [Name of Assignor] | [Name of Assignee | ] | Revolving Loans | _____________ | _____________ | __________ | %] |
[4. Assigned Interest:6
| Tranche Assigned | Aggregate Amount of Commitment/Loans under Relevant Tranche for all Lenders | Amount of Commitment/Loans under Relevant Tranche Assigned | Percentage of Assigned Commitment/Loans under Relevant Tranche7 | ||||||
| B-2 Term Loans | $ | ______________ | $ | ______________ | __________ | % | |||
| Revolving Loans | $ | ______________ | $ | ______________ | __________ | %] | |||
Effective Date , , 200 .
| 3 | Insert this chart if this Form of Assignment and Assumption Agreement is being used for assignments to funds managed by the same or related investment managers or for an assignment by multiple Assignors. Insert additional rows as needed. |
| 4 | For complex multi-tranche assignments a separate chart for each tranche should be used for ease of reference. |
| 5 | Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder for the respective Tranche. |
| 6 | Insert this chart if this Form of Assignment and Assumption Agreement is being used by a single Assignor for an assignment to a single Assignee. |
| 7 | Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. |
Exhibit M
Page 3
| Assignor[s] Information | Assignee[s] Information | |||||
| Payment Instructions: | ____________ | Payment Instructions: | ____________ | |||
| ____________ | ____________ | |||||
| ____________ | ____________ | |||||
| ____________ | ____________ | |||||
| Reference: | Reference: | |||||
| Notice Instructions: | ____________ | Notice Instructions: | ____________ | |||
| ____________ | ____________ | |||||
| ____________ | ____________ | |||||
| ____________ | ____________ | |||||
| Reference: | Reference: | |||||
Exhibit M
Page 4
The terms set forth in this Assignment are hereby agreed to:
| ASSIGNOR | ASSIGNEE | |||||||
| [NAME OF ASSIGNOR] | [NAME OF ASSIGNEE]8 | |||||||
| By: |
| By: |
| |||||
| Name: | Name: | |||||||
| Title: | Title: | |||||||
| 8 | Add additional signature blocks, as needed, if this Form of Assignment and Assumption Agreement is being used by funds managed by the same or related investment managers. |
Exhibit M
Page 5
| [Consented to and]9 Accepted: | ||
| DEUTSCHE BANK TRUST COMPANY AMERICAS, | ||
| as Administrative Agent | ||
| By: |
| |
| Name: Title: | ||
| [DIRECTV HOLDINGS LLC | ||
| By: |
| |
| Name: Title:]10 | ||
| 9 | Insert only if assignment is being made to an Eligible Transferee pursuant to Section 13.04(b)(y) of the Credit Agreement. |
| 10 | Insert only if (i) no Event of Default or Default under the Credit Agreement is then in existence and (ii) the assignment is being made to an Eligible Transferee pursuant to 13.04(b)(y) of the Credit Agreement. |
Annex 1
to
Exhibit M
DIRECTV HOLDINGS LLC
CREDIT AGREEMENT
Standard Terms and Conditions for Assignment
and Assumption Agreement
1. Representations and Warranties.
1.1. Assignor. [The] [Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the] [its] Assigned Interest, (ii) [the] [its] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with any Credit Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement, any other Credit Document or any other instrument or document delivered pursuant thereto (other than this Assignment) or any collateral thereunder, (iii) the financial condition of the Borrower, any of its respective Subsidiaries or affiliates or any other Person obligated in respect of any Credit Document or (iv) the performance or observance by the Borrower, any of its respective Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Credit Document.
1.2. Assignee. [The] [Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) confirms that it is (A) a Lender, (B) a parent company and/or an affiliate of the Assignor which is at least 50% owned by the Assignor or its parent company, (C) in the event the Assignor is a fund that invests in bank loans, a fund that invests in bank loans and is managed by the same investment advisor of the Assignor or by an affiliate of such investment advisor or (D) an Eligible Transferee under Section 13.04(b) of the Credit Agreement; (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 8.01(a) or (b) thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and to purchase the Assigned Interest on the basis of which it has made such analysis and decision and (v) if it is organized under the laws of a jurisdiction outside the United States, attached to this Assignment is any tax documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the] [each such] Assignee; (b) agrees that it will, independently and without reliance upon the Administrative Agent, [the][each] Assignor, or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (c) appoints and authorizes each of the Administrative Agent, the Syndication Agent, the Co-Documentation Agents and the Collateral Agent to take such action as agent on its behalf and to
Annex 1
Page 2
exercise such powers under the Credit Agreement and the other Credit Documents as are delegated to or otherwise conferred upon the Administrative Agent, the Syndication Agent, the Co-Documentation Agents or the Collateral Agent, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto; and (d) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Documents are required to be performed by it as a Lender.
2. Payment. From and after the Effective Date, the Administrative Agent shall make all payments in respect [the] [each] Assigned Interest (including payments of principal, interest, fees, commissions and other amounts) to [the][each] Assignor for amounts which have accrued to but excluding the Effective Date and to [the] [each] Assignee for amounts which have accrued from and after the Effective Date.
3. Upon the delivery of a fully executed original hereof to the Administrative Agent, as of the Effective Date, (i) the Assignee shall be a party to the Credit Agreement and, to the extent provided in this Assignment and Assumption Agreement, have the rights and obligations of a Lender thereunder and under the other Credit Documents and (ii) the Assignor shall, to the extent provided in this Assignment and Assumption Agreement, relinquish its rights and be released from its obligations under the Credit Agreement and the other Credit Documents.
4. General Provisions. This Assignment shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment by telecopy shall be effective as delivery of a manually executed counterpart of the Assignment. THIS ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5.1401 OF THE GENERAL OBLIGATIONS LAW).
* * *
