Exhibit 10.1
FIRST AMENDMENT
TO
AMENDED AND RESTATED CREDIT
AGREEMENT
AND
FIRST LIEN GUARANTEE AND
COLLATERAL AGREEMENT
Dated as of April 6,
2007
This FIRST AMENDMENT (this
“ Amendment ”) is entered into among HUGHES
NETWORK SYSTEMS, LLC , a Delaware limited liability company
(the “ Borrower ”), and BEAR STEARNS
CORPORATE LENDING INC. , as administrative agent (in such
capacity, the “ Administrative Agent
”).
P RELIMINARY S TATEMENTS
1. Reference is made to the Credit
Agreement, dated as of April 22, 2005, as amended and restated
as of June 27, 2005 and as further amended and restated as of
April 13, 2006 (as otherwise amended, restated, supplemented
or otherwise modified from time to time, the “ Credit
Agreement ”), among the Borrower, the Lenders party
thereto, Morgan Stanley Senior Funding, Inc., as syndication agent
(“ MSSF ”), Bear, Stearns & Co. Inc.
and MSSF, as joint lead arrangers and joint book managers, and the
Administrative Agent. Capitalized terms used but not otherwise
defined herein are used with the meanings given in the Credit
Agreement.
2. Reference is made to the First
Lien Guarantee and Collateral Agreement, dated as of April 22,
2005 (as amended, restated, supplemented or otherwise modified from
time to time, the “ Guarantee and Collateral Agreement
”), among the Borrower, each Subsidiary of the Borrower
identified therein as a party and the Administrative
Agent.
3. The Borrower has requested that
the Credit Agreement and the Guarantee and Collateral Agreement be
amended as herein set forth.
4. The Required Lenders are willing
to consent to such amendment request on the terms and subject to
the conditions set forth herein.
NOW, THEREFORE
, in consideration of the premises
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. Amendment to Credit Agreement and
Guarantee and Collateral Agreement.
(a) Section 1.01 of the Credit
Agreement is hereby amended by adding the following definitions in
appropriate alphabetical order:
“ Loan Document
Obligations ” shall have the meaning assigned to such
term in the Security Documents.
“ Specified Swap
Agreement ” shall mean each Swap Agreement entered into
by the Borrower and the Swap Provider. The obligations under the
Specified Swap Agreement shall constitute “Obligations”
for purposes of any Security Document.
“ Swap Agreement
Obligations ” shall mean all obligations owing to the
applicable Swap Provider pursuant to the terms of any Specified
Swap Agreement.
“ Swap Provider ”
shall mean, with respect to the Specified Swap Agreement, any
counterparty thereto that, at the time such Specified Swap
Agreement was entered into, was a Lender, an Affiliate of Lender,
an Agent or an Affiliate of Agent; provided that , in
the event a counterparty to a Specified Swap Agreement at the time
such Specified Swap Agreement was entered into was a Swap Provider,
such counterparty shall constitute a Swap Provider hereunder and
under the Loan Documents.
(b) Section 9.08 of the Credit
Agreement is hereby amended (i) by inserting the following
words at the end of clause (b)(iv) thereof: “or amend or
modify any Loan Document so as to alter the ratable treatment of
the Swap Agreement Obligations and the Loan Document Obligations or
the definition of “Specified Swap Agreement,”
“Swap Agreement Obligations,” “Swap
Provider” or “Obligations” (as defined in any
Loan Document), in each case in a manner adverse to any Swap
Provider with Swap Agreement Obligations then outstanding without
the written consent of such Swap Provider” and (ii) by
inserting the words “and each Swap Provider with Swap
Agreement Obligations then outstanding” following the word
“Lender” at the end of clause (b)(vi)
thereof.
(c) Section 7.07 of the
Guarantee and Collateral Agreement is hereby amended by inserting
the following sentence at the end of such section: “The
Administrative Agent shall, after the payment in full of all Loan
Document Obligations (other than indemnities and other contingent
Obligations not yet due and payable), exercise, or refrain from
exercising, any remedies provided for herein in accordance with the
instructions of the holders of a majority of the aggregate
termination value (exclusive of expenses and similar payments but
including any early termination payments due upon termination)
under the Specified Swap Agreements.”
(d) Section 7.09 of the
Guarantee and Collateral Agreement is hereby amended by inserting
the following clause (c) at the end of such section:
“(c) Notwithstanding anything else herein to the contrary,
each Swap Provider hereby agrees to consent to any amendment,
restatement, supplement, modification or replacement of this
Agreement to permit each Pledgor to secure any of its obligations
with the Collateral so long as the Swap Obligations are equally and
ratably secured by the Collateral.”
(e) Section 7.15 of the
Guarantee and Collateral Agreement is hereby amended by inserting
the following words at the end of clause (a) thereof:
“and the net termination liability under
2
or in respect of, and other amounts due and
payable under, each Specified Swap Agreement at such time shall
have been paid or secured in the manner provided in such Specified
Swap Agreement or by a collateral arrangement reasonably
satisfactory to the relevant Swap Provider in its sole
discretion.”
SECTION 2. Conditions to
Effectiveness . The
amendments contained in Section 1 shall not be effective
unless and until each of the following conditions precedent is
satisfied (the date on which such conditions are satisfied, the
“ First Amendment Effective Date ”):
(a) the Administrative Agent shall
have received counterparts of this Amendment executed by the
Administrative Agent and the Borrower and counterparts of the
Consent appended hereto (the “ Consent ”)
executed by the Subsidiary Loan Parties;
(b) the Administrative Agent shall
have received executed counterparts of this Amendment or a signed
authorization to execute this Amendment from the Required
Lenders;
(c) all fees and expenses then due
and payable to the Administrative Agent under the Loan Documents or
relating thereto and for which an invoice has been provided shall
have been paid in full in immediately available funds;
(d) each of the representations and
warranties set forth in Section 3 below shall be true and
correct in all material respects; and
(e) no Default or Event of Default
shall have occurred and be continuing.
SECTION 3. Representations and
Warranties . The
Borrower represents and warrants to the Joint Lead Arrangers,
Agents and Lenders that:
(a) Authority . The Borrower
has the requisite corporate power and authori
