EXHIBIT 10.49
FOURTH AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
This Fourth Amendment to Amended and Restated Credit Agreement
("Amendment") dated as of August 11, 2003, is made by and among NORTHLAND CABLE
PROPERTIES EIGHT LIMITED PARTNERSHIP, a Washington limited partnership ("NCP
Eight") and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as
successor, by merger, to U.S. Bank of Washington, National Association ("U.S.
Bank"), as agent for Lenders (in such capacity, "Agent").
RECITALS:
A. NCP Eight and U.S. Bank entered into that certain Amended and
Restated Credit Agreement dated January 4, 1996, as amended by that certain
First Amendment to Amended and Restated Credit Agreement dated March 30, 1998,
as further amended by that certain Second Amendment to Amended and Restated
Credit Agreement dated June 24, 2002, as further amended by that certain Third
Amendment to Amended and Restated Credit Agreement dated February 6, 2003
(collectively the "Credit Agreement").
B. NCP Eight and U.S. Bank have agreed to amend the terms and
conditions of the Credit Agreement so as to extend the maturity date of the Loan
to December 31, 2007.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
ARTICLE I - DEFINITIONS
As used herein, capitalized terms shall have the meanings given to them
in the Credit Agreement, except as otherwise defined herein or as the context
requires.
ARTICLE II - MODIFICATION OF LOAN TERMS
Section 2.2 Repayment. Section 3.5 of the Credit Agreement is hereby
amended in its entirety to read as follows:
3.5 Repayment. Interest on the Fourth Replacement Note shall
be paid Quarterly, except with respect to LIBOR Rate Loans for which
interest shall be paid either on the 90th day after the borrowing,
renewal, or conversion date with respect to such LIBOR Rate Loan, or at
the end of each Interest Period, whichever is sooner. For example, if
an Interest Period expires more than 90 days after the borrowing,
renewal, or conversion date with respect to such LIBOR Rate Loan,
interest shall be paid on the 90th day and at the expiration of the
Interest Period. The principal balance of the Loan outstanding as of
the date of this Amendment shall be paid in Quarterly installments of
$200,000, with the entire balance due and payable on December 31, 2007.
Section 2.3 Replacement Note. The Loan shall be evidenced by a Fourth
Replacement Note in the form attached to this Amendment as Exhibit A ("Fourth
Replacement Note"). The Fourth Replacement Note shall be a "Note" for all
purposes of the Credit Agreement and the other Loan Documents and shall be in
substitution for, but not in payment of: (a) that certain Third Replacement Note
dated February 6, 2003, in the principal amount of $7,970,139.00 which shall be
marked "replaced" by the Agent, (b) that certain Second Replacement Note dated
June 24, 2002, in the principal amount of $8,593,903.28 which has been marked
"replaced" by the Agent, (c) that certain Replacement Note dated March 30, 1998,
in the principal amount of $10,925,000, which has been marked "replaced" by the
Agent, and (d) that certain Renewal Revolving Note dated January 4, 1996, in the
principal amount of $11,925,000 which has been marked "replaced" by the Agent.
All four such replaced notes shall be retained by Agent until the Loan shall
have been paid in full.
ARTICLE IV - CONDITIONS PRECEDENT
The modifications to the Credit Agreement and the other Loan Documents
set forth in this Amendment shall not be effective unless and until the
following conditions have been fulfilled to Agent's satisfaction:
(a) Agent shall have received this Amendment, the Fourth Replacement
Note, and any other documents required by Agent to perfect or continue
perfection of the liens and/or security interests granted by NCP Eight under the
Security Agreement duly executed and delivered by the parties thereto.
(b) Agent shall have received the following: (i) a duly executed
partnership resolution of NCP Eight authorizing NCP Eight's execution, delivery
and performance of this Amendment, and (ii) a certificate executed by NCP Eight
certifying that NCP Eight's limited partnership agreement has not been amended
or altered since NCP Eight delivered a copy of the agreement to Agent.
(c) NCP Eight shall have paid to Agent (i) all fees and expenses
(including attorneys' fees) incurred in connection with this Amendment, and (ii)
an extension fee in the amount of $24,288.00.
ARTICLE V - MISCELLANEOUS
Section 5.1 Notice to U.S. Bank. The designation of the Person to be
notified at Agent and Agent's and Lenders' addresses for the purpose of any
notice are hereby changed to:
U.S. Bank National Association
PD-WA-T7MT
0000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxx
Facsimile Number: (000) 000-0000
Section 5.2 Representations and Warranties. NCP Eight hereby represents
and warrants to Agent that as of the date of this Amendment, there exists no
Default or Event of Default. All representations and warranties of NCP Eight
contained in the Credit Agreement or any other Loan Document, or otherwise made
in connection therewith or herewith are true and correct as of the date of this
Amendment.
Section 5.3 Security. The parties hereto agree that all Loan Documents,
whether creating, evidencing, or perfecting Lenders' security interests and
liens against the collateral, including without limitation the Amendment to
Security Agreement, the Security Agreement, the Franchise Assignment, the NCC
Subordination Agreement, and all financing statements (a) shall remain in full
force and effect, (b) shall secure the Loan, as amended, and all other
Obligations of NCP Eight under the Credit Agreement and the other Loan
Documents, and (c) are enforceable without defense, offset, or counterclaim.
Section 5.4 Payment of Expenses. NCP Eight shall pay on demand all
costs and expenses of Agent and Lenders incurred in connection with the
preparation, negotiation, execution, and delivery of this Amendment, including
without limitation reasonable attorneys' fees.
Section 5.5 Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall constitute an original agreement, but all of
which together shall constitute one and the same agreement.
Section 5.6 Statutory Notice. ORAL AGREEMENTS OR ORAL COMMITMENTS TO
LOAN MONEY, TO EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT
ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Fourth
Amendment to Credit Agreement as of the date first above written.
NCP EIGHT: AGENT:
NORTHLAND CABLE PROPERTIES U.S. BANK NATIONAL ASSOCIATION
EIGHT LIMITED PARTNERSHIP, a
Washington limited partnership
/s/ XXXXXXX X. XXXXXX
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By: Northland Communications Xxxxxxx X. Xxxxxx, Senior Vice President
Corporation, a Washington corporation,
its Managing General Partner
LENDER:
By: /s/ XXXX X. XXXXX U.S. BANK NATIONAL ASSOCIATION
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Name: Xxxx X. Xxxxx
Title: President
/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx, Senior Vice President
