AMENDMENT NO. 9
TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
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This AMENDMENT NO. 9 TO REVOLVING CREDIT AND TERM LOAN AGREEMENT (the
"Amendment") dated as of December 30, 1996, by and among XXXXX INTERCABLE
INVESTORS, L.P., a Colorado limited partnership (the "Borrower"), the banks
signatory hereto (the "Banks"), and MELLON BANK, N.A., a national banking
association, as Agent (the "Agent");
WITNESSETH THAT:
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WHEREAS, the Borrower, the Banks and the Agent entered into a
Revolving Credit and Term Loan Agreement dated as of August 27, 1987, as amended
by Amendment No. 1 dated as of May 5, 1989, Amendment No. 2 thereto dated as of
August 10, 1990, Amendment No. 3 thereto dated as of June 30, 1992, Amendment
No. 4 thereto dated as of September 30, 1992, Amendment No. 5 thereto dated as
of June 30, 1993, Amendment No. 6 thereto dated as of August 31, 1993, Amendment
No. 7 thereto dated as of February 28, 1994 and Amendment No. 8 thereto dated as
of December 23, 1994 (the "Credit Agreement");
WHEREAS, the Borrower has requested that the Banks extend the
Revolving Credit Expiration Date and eliminate the Term Loans and make other
amendments to the Credit Agreement;
WHEREAS, upon the terms and subject to the conditions set forth
herein, the Banks and the Agent are willing to extend such additional credit and
make such amendments; and
WHEREAS, words and terms used herein which are used in the Credit
Agreement are, unless the context otherwise requires, used herein as therein
defined;
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, covenant and agree, as follows:
SECTION 1. Amendments to Credit Agreement. Subject to the terms and
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conditions set forth herein, the Credit Agreement is hereby amended in the
following respects:
(a) Definitions. Section 1.01 is amended by deleting the definition
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of "Revolving Credit Expiration Date" and substituting the following:
"Revolving Credit Expiration Date" shall mean
December 31, 1998.
(b) Maturity of Loans. Section 2.01(c) is deleted and the following
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is substituted:
(c) Maturity of Loans. To the extent not due and payable earlier,
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the Revolving Credit Loans shall be due and payable on the Revolving
Credit Expiration Date.
(c) Elimination of Term Loans. Sections 2.05, 2.06, 2.07 and 4.04 are
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deleted and left blank. All references to the Term Loans, the Term Loan Notes
and the Term Loan Expiration Date are deleted from the Agreement.
(d) The Schedules to the Credit Agreement are amended to read in
their entireties as set forth on the Schedules to this Amendment.
SECTION 2. Exchange of Notes. Upon the terms and subject to the
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conditions herein set forth, on or before December 30, 1996, the Borrower shall
execute and deliver to the Agent new notes (the "New Notes"), in the form
provided by Exhibit A to the Credit Agreement, as amended hereby, with the
blanks appropriately filled as provided by the Credit Agreement, as amended
hereby. The New Notes shall be deemed for all purposes of the Credit Agreement,
as amended hereby, and the Security Documents, as amended hereby, to be the
Revolving Credit Notes issued pursuant to the Credit Agreement, and, as used in
this Amendment, in the Credit Agreement as amended hereby, and in the Security
Documents, as amended hereby, the terms "Note" and "Notes" shall thereafter be
deemed to mean and include the New Notes. Promptly after the Effective Date,
upon request of the Borrower, each Bank shall surrender to the Borrower its
Revolving Credit Note (collectively the "Existing Notes") presently outstanding
under the Credit Agreement. Interest which is accrued and unpaid under the
Existing Notes shall be due and payable on the dates such interest would have
been payable under the Existing Notes.
SECTION 3. Representations and Warranties. The Borrower represents
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and warrants to the Agent and the Banks that:
(a) Power and Authority. The Borrower has partnership power and
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authority to execute, deliver and carry out the provisions of this Amendment,
the Credit Agreement, as amended hereby, and the Security Documents, as amended
in connection herewith (collectively, the "Amended Documents"), and the New
Notes, and the execution and delivery of this Amendment, the Amended Documents
and the New Notes have been duly authorized by all necessary partnership action
on the part of the Borrower.
(b) Enforceability. This Amendment has been duly and validly
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executed and delivered by the Borrower and this Amendment, the New Notes, and
the Amended Documents constitute legal, valid
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and binding agreements of the Borrower, enforceable against the Borrower, in
accordance with their respective terms, except as enforceability of the
foregoing may be limited by bankruptcy, insolvency or other laws of general
application relating to or affecting the enforcement of creditors' rights or by
general principles of equity limiting the availability of equitable remedies.
(c) Governmental Approvals. No consent, approval, order or
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authorization of, or registration, declaration or filing with, any Official Body
is required in connection with the execution and delivery of this Amendment, the
New Notes or the Amended Documents.
(d) Conflict with Other Instruments. Neither the execution and
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delivery of this Amendment, the New Notes, nor consummation of the transactions
contemplated herein or in the Amended Documents or compliance with the terms and
provisions hereof or thereof (i) violate any Law, (ii) conflict with or result
in a breach of or a default under (A) the Partnership Agreement or (B) any
material agreement or instrument to which the Borrower is a party or by which it
or any of its properties may be subject or bound (except with respect to
conflicts with agreements or instruments, as described on Schedules 1 and 3 to
the Credit Agreement as amended hereby, in which a security interest may not be
granted or as to which consent to the granting of a security interest is
required but has not been received), (iii) conflict with or result in a breach
of or a default under the articles of incorporation or by-laws of the General
Partner or any material agreement or instrument to which the General Partner is
a party or by which any of its properties are bound or (iv) result in the
creation or imposition of any Lien upon any property (now owned or hereafter
acquired) of the Borrower or the General Partner, other than Liens created by
the Security Documents.
(e) Representations and Warranties under the Agreement. The
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representations and warranties contained in Article III of the Credit Agreement
and in the Security Documents are, and immediately after giving effect to this
Amendment and the transactions contemplated hereby will be, true in all material
respects on and as of the date hereof, with the same effect as though such
representations and warranties had been made on and as of the date hereof.
(f) Events of Default. No Event of Default and no Potential Default
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has occurred and is continuing or exists under the Credit Agreement, as amended
hereby, or after giving effect to the transactions contemplated hereby.
SECTION 4. Conditions of Amendment. Subject to the following
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conditions, the provisions of Section 1 of this Amendment shall become effective
as of December 30, 1996 (the "Effective Date"):
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(a) Certificate as to Representations and Defaults. The Agent shall
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have received a certificate, dated the Effective Date, and signed on behalf of
the Borrower by the President, Treasurer or chief financial officer of the
General Partner, to the effect that (i) the representations and warranties
described in Section 3 hereof are true and correct in all material respects on
and as of the Effective Date and (ii) on such date no Event of Default or
Potential Default has occurred and is continuing or exists or will occur or
exist after giving effect to this Amendment.
(b) Proceedings and Incumbency. On or before the Effective Date
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there shall have been delivered to the Agent certificates in form and substance
satisfactory to the Agent, dated the effective Date of the type referred to in
Sections 4.02(a), (b) and (c) of the Credit Agreement, except that (i) in the
case of the certificates referred to in Sections 4.01(a) and 4.01(b), such
certificates may indicate that no change has occurred with respect to the
requested information since the date of the certificate delivered in connection
with the initial Loans and (ii) such certificates shall refer to this Amendment
and the Amended Documents.
(c) Opinions of Counsel. On the Effective Date there shall have been
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delivered to the Agent, with sufficient signed copies to provide one for each
Bank a written opinion, dated the Closing Date, of Xxxxxxxxx Xxxxxx, Esquire,
General Counsel and Vice President of Xxxxx Intercable, Inc., in form and
substance satisfactory to the Agent as to the matters referred to in Sections
3(a), 3(b), 3(c) and 3(d) hereof, and as to such other matters as the Agent may
reasonably request.
(d) Security Documentation. On or before the Effective Date the
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Agent shall have received amendments to the deed of trust and the assignment of
leases executed and delivered on the Closing Date, in form and substance
satisfactory to the Agent.
(e) New Notes. The Borrower shall have executed and delivered to the
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Agent the New Notes as required by Section 2 of this Amendment.
(f) Details, Proceedings and Documents. All legal details and
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proceedings in connection with the transactions contemplated by this Amendment
shall be satisfactory to the Agent and the Agent shall have received all such
counterpart originals or certified or other copies of such documents and
proceedings in connection with such transactions, in form and substance
satisfactory to the Agent, as the Agent may from time to time request.
SECTION 6. Miscellaneous. The Borrower agrees to reimburse the Agent
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for its reasonable out-of-pocket expenses arising in connection with the
negotiation, preparation and
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execution of this Amendment, including the reasonable fees and expenses of Xxxx
Xxxxx Xxxx & XxXxxx, counsel for the Agent.
Except as amended hereby, the provisions of the Credit Agreement and
the Security Documents shall remain in full force and effect.
This Amendment shall be deemed to be a contract under the laws of the
Commonwealth of Pennsylvania and for all purposes shall be construed in
accordance with and governed by the laws of such Commonwealth.
All representations, warranties, covenants and agreements of the
Borrower contained herein or made in writing in connection herewith shall
survive the execution and delivery of this Amendment and the execution and
delivery of the Notes and the making of Loans under the Credit Agreement as
amended hereby.
This Amendment may be executed in as many counterparts as may be
deemed necessary and convenient and by the separate parties hereto on separate
counterparts, each of which when so executed and delivered shall be deemed to
constitute an original, but all such separate counterparts shall constitute but
one and the same instrument.
If any provision of this Amendment, or the application thereof to any
party hereto, shall be held invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provisions or applications of this
Amendment which can be given effect without the invalid and unenforceable
provision or application, and to this end the parties hereto agree that the
provisions of this Amendment are and shall be severable.
IN WITNESS WHEREOF, the parties hereto by their officers thereunto
duly authorized have executed this Amendment as of the date and year first above
written.
Attest : XXXXX INTERCABLE INVESTORS, L.P.
a Colorado limited partnership
By: Xxxxx Intercable, Inc.,
a Colorado corporation,
as general partner
By /s/ Xxxxxxxxx X. XxXxx By /s/ J. Xxx Xxxxxx
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Title Ass't Secretary Title VICE PRESIDENT/TREASURER
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MELLON BANK, N.A., individually
and as Agent
By /s/ ^SIGNATURE APPEARS HERE^
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Title Vice President
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PNC BANK, NATIONAL ASSOCIATION
By /s/ Xxxxxx X. Xxxxxx
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Title VICE PRESIDENT
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