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EXHIBIT 10.5
EXECUTION COPY
AMENDMENT AND WAIVER NO. 1
TO THE AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of November 15, 1999
AMENDMENT AND WAIVER NO. 1 TO THE AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment") among Classic Cable, Inc., a Delaware corporation
(the "Borrower"), the banks, financial institutions and other institutional
lenders parties to the Credit Agreement referred to below (collectively, the
"Lenders") and Union Bank of California, N.A., as agent (the "Agent") for the
Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders, the Agent, Xxxxxxx Xxxxx Credit
Partners L.P., as Lead Arranger and Syndication Agent, and The Chase Manhattan
Bank, as Documentation Agent, have entered into an Amended and Restated Credit
Agreement dated as of July 28, 1999 (the "Credit Agreement"). Capitalized terms
not otherwise defined in this Amendment have the same meanings as specified in
the Credit Agreement.
(2) The Borrower has proposed to enter into an agreement with Star
Cable Associates Inc. ("Star Cable") to purchase all of the cable systems
currently owned by Star Cable for approximately $130,000,000 in cash and stock
(the "Star Acquisition"). The Borrower has requested that the Majority Lenders
waive Section 6.7(h)(i) of the Credit Agreement to the extent that the
consideration for the proposed acquisition exceeds the amount permitted by such
Section.
(3) The Borrower has further requested that the Majority Lenders agree
to extend the period of 90 days after the Closing Date for the delivery of a
pledged account letter as provided in Section 6(a) of the Security Agreement for
an additional 90 days.
(4) The Majority Lenders are, on the terms and conditions stated
below, willing to grant the request of the Borrower and to amend the limitation
on Capital Expenditures set forth in Section 6.1(f) of the Credit Agreement as
hereinafter set forth.
SECTION 1. Waivers. Effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 3, the Majority
Lenders hereby agree (a) to consent to the proposed Star Acquisition and to
waive the limitation set forth in Sections 2.7(c)(i)(B) and 6.7(h)(i)(1) of the
Credit Agreement solely to the extent required to permit the Borrower to
consummate the Star Acquisition, (b) to waive the limitation set forth in clause
(iv) of the proviso to the definition of "Equity Offering" set forth in Section
1.1 of the Credit Agreement solely to permit the Borrower to apply the proceeds
of any issuance or sale of stock in the Borrower or capital contribution to the
Borrower made after the date hereof to the
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purchase price of the Star Acquisition without regard to the requirement that
such proceeds be applied to a Permitted Acquisition within 10 Business Days of
receipt and (c) to consent to extend the period set forth in Section 6(a) of the
Security Agreement for an additional 90 days.
SECTION 2. Amendment to the Credit Agreement. Effective as of the date
hereof and subject to the satisfaction of the conditions precedent set forth in
Section 3, the Majority Lenders hereby agree to amend the Credit Agreement as
follows:
(a) Section 2.21(a) is amended (i) by deleting the figure "$25,000,000" and
substituting therefor the figure "$10,000,000" and (ii) by restating clause (i)
of the proviso thereof in full to read "(i) in no event shall the Aggregate Term
C Commitment be more than (x) $100,000,000 at any time prior to the consummation
after November 15, 1999 of an Equity Offering the Net Proceeds of which exceed
$140,000,000 or (y) $200,000,000 at any time thereafter".
(b) Section 6.1(f) is amended in full to read as follows:
(f) Maximum Capital Expenditures. Permit Capital Expenditures of the
Borrower and its Subsidiaries to be more than the following levels during
the periods indicated:
Period Maximum Amount
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Closing Date to December 31, 1999 $25,000,000
Fiscal Year Ending December 31, 2000 $50,000,000
Fiscal Year Ending December 31, 2001 $70,000,000
Fiscal Year Ending December 31, 2002 $55,000,000
Each Fiscal Year thereafter $25,000,000
Notwithstanding the foregoing, in the event the Borrower and its
Subsidiaries do not, in any fiscal year, exhaust such amount with respect
to such fiscal year, such excess amount may be used to make, or commit to
make, Capital Expenditures in the immediately following fiscal year, but
not thereafter.
SECTION 3. Conditions of Effectiveness. (a) Section 1 and 2(a) of this
Amendment shall become effective as of the date first above written when, and
only when, (i) the Agent shall have received counterparts of this Amendment
executed by the Borrower and the Majority Lenders or, as to any of the Lenders,
advice satisfactory to the Agent that such Lender has executed this Amendment
and the consent attached hereto executed by each Guarantor and (ii) the Borrower
shall have paid all accrued fees and expenses of the Facility Agents (including
reasonable fees and expenses of counsel to the Lead Arranger), and (b) Section
2(b) of this Amendment shall become effective on and as of the date upon which
the Agent shall have received written notice from the Borrower of the
consummation of the Star Acquisition. This Amendment is subject to the
provisions of Section 9.1 of the Credit Agreement.
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SECTION 4. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
4.1 Organization and Good Standing. The Borrower and each Subsidiary (a)
is duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization, (b) has all requisite power and authority
(corporate, partnership, limited liability company and otherwise) to own its
properties and to conduct its business as now conducted and as currently
proposed to be conducted and (c) is duly qualified to conduct business as a
foreign organization and is currently in good standing in each state and
jurisdiction in which it conducts business.
4.2 Power and Authority. The Borrower and each Subsidiary has all
requisite power and authority under applicable law and under its Organic
Documents to (i) in the case of the Borrower, borrow hereunder and to consummate
the Star Acquisition in accordance with the terms of the acquisition agreement
related thereto and (ii) to execute, deliver and perform its respective
obligations under the Loan Documents to which it is a party. All actions,
waivers and consents (corporate, regulatory and otherwise) necessary or
appropriate for the Borrower and each Subsidiary to execute, deliver and perform
this Amendment, the Consent and the Loan Documents to which it is a party and,
except for regulatory approvals and franchisee consents yet to be obtained (all
of which the Borrower anticipates will be obtainable in the ordinary course),
for the Borrower to consummate the Star Acquisition in accordance with the terms
of the acquisition agreement related thereto, and have been taken and/or
received.
4.3 Validity and Legal Effect. This Amendment and the Credit Agreement, as
modified hereby, constitutes, and the other Loan Documents, as amended hereby,
to which the Borrower or any Subsidiary is a party constitute (or will
constitute when executed and delivered), the legal, valid and binding
obligations of the Borrower or such Subsidiary, as applicable, enforceable
against it in accordance with the terms thereof, except as such enforceability
may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or
similar laws of general applicability affecting the enforcement of creditors'
rights and (b) the application of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
4.4 No Violation of Laws or Agreements. The execution, delivery and
performance of this Amendment and the Loan Documents and the consummation of the
Star Acquisition in accordance with the terms of the acquisition agreement
related thereto (a) will not violate or contravene any Requirement of Law, (b)
will not result in any material breach or violation of, or constitute a material
default under, any agreement or instrument by which the Borrower or any
Subsidiary, or any of its property, may be bound, and (c) will not result in or
require the creation of any Lien (other than those permitted by Section 6.3 of
the Credit Agreement) upon or with respect to any property of the Borrower or
any Subsidiary, whether such property is now owned or hereafter acquired.
4.5 Litigation and Legal Proceedings. Except as disclosed on Schedule 3.10
to the Credit Agreement, there is no litigation, claim, investigation,
administrative proceeding, labor controversy or similar action that is pending
or, to the knowledge of the Borrower, threatened (i) with respect to this
Amendment or any Loan Document or the transactions contemplated
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thereby, (ii) with respect to the Star Acquisition or the transactions
contemplated by the acquisition agreement related thereto or (iii) against the
Borrower, any Subsidiary or any Property that (in the case of this clause
(iii)), if adversely resolved, could (either individually or in the aggregate)
have a Material Adverse Effect.
SECTION 5. Reference to and Effect on the Loan Documents. (a) On and
after the effectiveness of this Amendment, each reference in the Credit
Agreement or the Security Agreement to "this Agreement", "hereunder", "hereof"
or words of like import referring to the Credit Agreement or the Security
Agreement, as the case may be, and each reference in the Notes and each of the
other Loan Documents to "the Credit Agreement", the "Security Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement or the Security Agreement, as the case may be, shall mean and be a
reference to the Credit Agreement or the Security Agreement, as modified by this
Amendment.
(b) The Credit Agreement, the Security Agreement, the Notes and each
of the other Loan Documents, as specifically amended by this Amendment, are and
shall continue to be in full force and effect and are hereby in all respects
ratified and confirmed. Without limiting the generality of the foregoing, the
Collateral Documents and all of the Collateral described therein do and shall
continue to secure the payment of all Obligations of the Loan Parties under the
Loan Documents, in each case as amended by this Amendment.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Agent under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents.
SECTION 6. Costs and Expenses. The Borrower agrees to pay on demand
all costs and expenses of the Agent in connection with the preparation,
execution, delivery and administration, modification and amendment of this
Amendment and the other instruments and documents to be delivered hereunder
(including, without limitation, the reasonable fees and expenses of counsel for
the Agent) in accordance with the terms of Section 9.5 of the Credit Agreement.
SECTION 7. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
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SECTION 8. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
CLASSIC CABLE, INC.
By /s/ Xxxxxx X. Seach
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Title:
AGREED:
UNION BANK OF CALIFORNIA, N.A.,
as Agent and as Lender
By [/s/ An authorized signatory of Union Bank of California, N.A.]
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Title: Assistant Vice President
XXXXXXX SACHS CAPITAL PARTNERS L.P.
By /s/ Xxxxxxx X. Xxxx
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Title:
THE CHASE MANHATTAN BANK
By [/s/ An authorized signatory of The Chase Manhattan Bank]
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Title:
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AGREED:
PARIBAS
By /s/ Xxxxx Xxxxxxx
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Title: Managing Director
By /s/ Xxxx Xxxxxxx
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Title: Vice President
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AGREED:
NITEXIS BANQUE BFCE
By /s/ Xxxx X. Xxxxx
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Title: Assistant Vice President
By /s/ Xxxxxxx X. Xxxxx
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Title: Vice President Group Manager
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AGREED:
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By [/s/ An authorized signatory of Suntrust Bank, Central Florida, N.A.]
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Title: Vice President
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AGREED:
PNC BANK, NATIONAL ASSOCIATION
By /s/ Xxxxxxx X. Xxxxxx
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Title: Vice President
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AGREED:
MERCANTILE BANK NATIONAL ASSOCIATION
By /s/ Xxxxxx X. Xxxxxx
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Title: Vice President
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AGREED:
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By /s/ Xxxxxx X. X. Xxxxxxx
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Title: Assistant Vice President
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AGREED:
U.S. BANK NATIONAL ASSOCIATION
By [/s/ An authorized signatory of U.S. Bank National Association]
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Title: Senior Vice President
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AGREED:
XXXXXX FINANCIAL, INC.
By /s/ Xxxxx X. Xxxx
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Title: Senior Vice President
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AGREED:
XXXXXX XXXXXXX/XXXX XXXXXX PRIME INCOME TRUST
By /s/ Xxxxxx X. Xxxxxxxx
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Title: Vice President
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AGREED:
FIRST UNION NATIONAL BANK
By [/s/ An authorized signatory of First Union National Bank]
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Title: Vice President
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AGREED:
HIGHLAND LEGACY LTD.
By HIGHLAND CAPITAL MANAGEMENT, L.P.,
as Collateral Manager
By /s/ Xxxx X. Xxxxx
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Title: Executive Vice President
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AGREED:
SEQUILS - ING (HBDGM), LTD.
By: ING Capital Advisors LLC,
Collateral Manager and
Authorized Signatory
By /s/ Xxxxxxx X. Xxxxxxxx
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Title: Senior Vice President &
Portfolio Manager
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AGREED:
KZH III LLC
By /s/ Xxxxx Xxxx
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Title: Authorized Agent
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AGREED:
KZH ING - 1 LLC
By /s/ Xxxxx Xxxx
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Title: Authorized Agent
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AGREED:
KZH INC-3 LLC
By /s/ Xxxxx Xxxx
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Title: Authorized Agent
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AGREED:
DEBT STRATEGIES FUND, INC. SENIOR HIGH INCOME PORTFOLIO, INC.
By /s/ Xxxxxx X. Xxxxxx By /s/ Xxxxxx X. Xxxxxx
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Title: Authorized Signatory Title: Authorized Signatory
DEBT STRATEGIES FUND II, INC. XXXXXXX XXXXX SENIOR FLOATING
RATE FUND II, INC.
By /s/ Xxxxxx X. Xxxxxx By /s/ Xxxxxx X. Xxxxxx
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Title: Authorized Signatory Title: Authorized Signatory
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AGREED:
ELC (Cayman) Ltd. 1999-II
By /s/ Xxxxxx X. Xxx
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Title: Assistant Vice President
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AGREED:
XXXXXXXXX CLO LTD.
By: Xxxxxxxxx Capital Partners LLC,
as its Collateral Agent
By /s/ Xxxxxxx X. Xxxxx
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Title: Partner
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CONSENT
Dated as of November 15, 1999
The undersigned, each a Guarantor under the Amended and Restated Guarantee
dated as of July 29, 1999 (the "Guarantee") in favor of the Agent, for its
benefit and the benefit of the Lenders parties to the Credit Agreement referred
to in the foregoing Amendment and the Hedge Banks (as defined in the Guarantee),
hereby consent to such Amendment and hereby confirm and agree that (a)
notwithstanding the effectiveness of such Amendment, the Guarantee is, and shall
continue to be, in full force and effect and is hereby ratified and confirmed in
all respects, except that, on and after the effectiveness of such Amendment,
each reference in the Guarantee to the "Credit Agreement", the "Security
Agreement", "thereunder", "thereof" or words of like import shall mean and be a
reference to the Credit Agreement and the Security Agreement, each as modified
by such Amendment, and (b) the Collateral Documents to which each such Guarantor
is a party and all of the Collateral described therein do, and shall continue
to, secure the payment of all of the Secured Obligations (in each case, as
defined therein).
CLASSIC CABLE HOLDING, INC.
By /s/ Xxxxxx X. Seach
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Title: President and Chief Financial Officer
PONCA HOLDINGS, INC.
By /s/ Xxxxxx X. Seach
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Title: President and Chief Financial Officer
CLASSIC TELEPHONE, INC.
By /s/ Xxxxxx X. Seach
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Title: President and Chief Financial Officer
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UNIVERSAL CABLE HOLDINGS, INC.
By /s/ Xxxxxx X. Seach
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Title: President and Chief Financial Officer
UNIVERSAL CABLE COMMUNICATIONS INC.
By /s/ Xxxxxx X. Seach
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Title: President and Chief Financial Officer
UNIVERSAL CABLE OF BEAVER, OKLAHOMA, INC.
By /s/ Xxxxxx X. Seach
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Title: President and Chief Financial Officer
UNIVERSAL CABLE MIDWEST, INC.
By /s/ Xxxxxx X. Seach
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Title: President and Chief Financial Officer
WT ACQUISITION CORPORATION
By /s/ Xxxxxx X. Seach
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Title: President and Chief Financial Officer
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W.K. COMMUNICATIONS, INC.
By /s/ Xxxxxx X. Seach
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Title: President and Chief Financial Officer
TELEVISION ENTERPRISES, INC.
By /s/ Xxxxxx X. Seach
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Title: President and Chief Financial Officer
BLACK CREEK MANAGEMENT, L.L.C.
By: Classic Cable, Inc.,
its sole member
By /s/ Xxxxxx X. Seach
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Title: President and Chief Financial Officer
BLACK CREEK COMMUNICATIONS, L.P.
By: Black Creek Management, L.L.C.,
its General Partner
By: Classic Cable, Inc.,
its sole member
By /s/ Xxxxxx X. Seach
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Title: President and Chief Financial Officer
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CLASSIC NETWORK TRANSMISSION, L.L.C.
By /s/ Xxxxxx X. Seach
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Title: Manager
By /s/ Xxxxxx X. Seach
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Title: Manager
FRIENDSHIP CABLE OF ARKANSAS, INC.
By /s/ Xxxxxx X. Seach
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Title: President and Chief Financial Officer
FRIENDSHIP CABLE OF TEXAS, INC.
By /s/ Xxxxxx X. Seach
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Title: President and Chief Financial Officer
CORRECTIONAL CABLE TV, INC.
By /s/ Xxxxxx X. Seach
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Title: President and Chief Financial Officer
XXXXXX TELEVISION INC. OF FORT XXXXX
By /s/ Xxxxxx X. Seach
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Title: President and Chief Financial Officer
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XXXXXX GROUP, INC.
By /s/ Xxxxxx X. Seach
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Title: President and Chief Financial Officer
XXXXXX TELEVISION, INC.
By /s/ Xxxxxx X. Seach
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Title: President and Chief Financial Officer
CALLCOM 24, INC.
By /s/ Xxxxxx X. Seach
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Title: President and Chief Financial Officer
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