Exhibit 10.2
FIRST AMENDMENT
THIS FIRST AMENDMENT, dated as of July 31, 1998 (this 'Amendment'), is
among HIGHLAND VIDEO ASSOCIATES, L.P., a Pennsylvania limited partnership
('HVA'), TELESAT ACQUISITION LIMITED PARTNERSHIP, a Delaware limited partnership
('TALP'), GLOBAL ACQUISITION PARTNERS, L.P., a Delaware limited partnership
('Global'; Global, HVA and TALP are collectively referred to as the 'Borrowers')
and the Lenders (as defined below) signatories hereto.
W I T N E S S E T H:
WHEREAS, the Borrowers, certain financial institutions from time to
time parties thereto (collectively, the 'Lenders'), The Bank of Nova Scotia, as
Administrative Agent, Bank of Montreal, as the Syndication Agent and The Chase
Manhattan Bank (successor by merger to Chemical Bank), as the Documentation
Agent, are parties to the Amended and Restated Credit Agreement, dated as of
March 29, 1996 (as further amended, supplemented, amended and restated or
otherwise modified prior to the date hereof, the 'Existing Credit Agreement');
WHEREAS, the Borrowers have requested that the Lenders amend the
Existing Credit Agreement in certain respects in connection with the Global
Transaction, as defined below; and
WHEREAS, the Lenders have agreed, subject to the terms and conditions
set forth herein, to amend the Existing Credit Agreement as set forth below (the
Existing Credit Agreement, as amended by this Amendment, being referred to as
the 'Credit Agreement');
NOW, THEREFORE, in consideration of the agreements herein contained,
and for other valuable consideration the receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows.
PART I
DEFINITIONS
SUBPART I.1. Definitions. Terms for which meanings are provided in the
Existing Credit Agreement are, unless otherwise defined herein or the context
otherwise requires, used in this Amendment with such meanings.
PART II
AMENDMENTS TO THE
EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the First Amendment
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Part.
SUBPART II.1. Amendments to Article I. Article I of the Existing Credit
Agreement is hereby amended as set forth in Subparts 2.1.1 and 2.1.2.
SUBPART II.1.1. Section 1.1 of the Existing Credit Agreement is hereby
amended by inserting the following definitions in such Section in the
appropriate alphabetical sequence:
'Asset Swap' means the disposition of the Global Assets in
exchange for 100% of the issued and outstanding shares of Central
Virginia and a minimum of 40,000 subscribers of Central Virginia, the
distribution of the Global Assets and 99% general partnership interest
in GCI to Adelphia, and the contemporaneous transfer of the 99% general
partnership interest in GCI from Adelphia to GCI II, in each case in
accordance with the terms of the Global Documents.
'Assignment Agreement' dated as of July 31, 1998, between
Adelphia and GCI II.
'Central Virginia' means Central Virginia Cable, Inc., a
Delaware corporation.
'Central Virginia Management Agreement' means the agreement,
dated January 1, 1995 between ACI and Central Virginia.
'Contribution Agreement' means the Contribution and Assignment
and Distribution Agreement, dated as of July 31, 1998, between Global
and Adelphia.
'First Amendment' means the First Amendment, dated as of July
31, 1998, among the Borrowers and the Lenders party thereto.
'First Amendment Effective Date' is defined in Subpart 3.1 of
the First Amendment.
'GCI II' means Global Cablevision II, Inc., a Delaware
corporation.
'Global Assets' means all or substantially all of the assets
and subscribers of Global, as further described in the Contribution
Agreement.
'Global Documents' means, collectively, the Merger Agreement,
the Contribution Agreement, the Subscription Agreement, the Assignment
Agreement and the agreements and instruments delivered in connection
therewith, in each case as in effect on the First Amendment Effective
Date and thereafter as amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with Section 7.2.9.
'Global Transaction' means the (a) Asset Swap and (b) merger
of GCI into Adelphia, with Adelphia as the surviving corporation in
accordance with the terms of the Merger Agreement.
'Merger Agreement' means the Certificate of Ownership and
Merger of Global Cablevision, Inc. into Adelphia Communications
Corporation.
'Subscription Agreement' means the Subscription Agreement,
dated as of July 31, 1998, made by ACC to GCI II.
SUBPART 2.1.2. Section 1.1 of the Existing Credit Agreement is hereby
further amended as follows:
(i) clause (e)(i) of the definition of 'Change in Control' is
amended in its entirety to read as follows:
'(i) the failure of Adelphia and/or its wholly-owned
Subsidiaries to own, directly free and clear of all Liens or
other encumbrances (other than in favor of the Administrative
Agent under a Loan Document), 100% of the outstanding general
and limited partnership interests in Global (which, on the
First Amendment Effective Date, shall be GCI II as the sole
general partner of Global and OPC as the sole limited partner
of Global)'
(ii) the definition of 'Management Agreements' is amended by
inserting the words 'the Central Virginia Management Agreement'
immediately before the words 'the Borrower Management Agreements';
(iii) clause (b)(ii) of the definition of 'Restricted
Subsidiary' is amended in its entirety to read as follows:
'(ii) Central Virginia (and each of its Subsidiaries) and each
other Subsidiary of TALP or Global formed or acquired after
the Amendment Effective Date that is not an Unrestricted
Subsidiary.'
SUBPART II.2. Amendments to Article VII. Article VII of the Existing
Credit Agreement is hereby amended as set forth in Subparts 2.2.1 through 2.2.3.
SUBPART II.2.1. Section 7.2.5 of the Existing Credit Agreement is
hereby amended by (i) relettering clauses (g) and (h) as clauses (h) and (i)
respectively; (ii) deleting the word 'and' at the end of clause (e), and
inserting the word 'and' at the end of clause (f); and (iii) adding a new clause
(g), to read in its entirety as follows:
'(g) as of the First Amendment Effective Date, Investments
made by Global with respect to the acquisition of 100% of the
Capital Security of Central Virginia;'
SUBPART II.2.2. Sections 7.2.6 and 7.2.8 of the Existing Credit
Agreement are each hereby amended by adding a sentence at the end, to read in
its entirety as follows:
'Notwithstanding the foregoing, the distribution of the Global
Assets pursuant to the Global Documents shall be permitted
hereunder.'
SUBPART II.2.3. Section 7.2.9 of the Existing Credit Agreement is
hereby amended by (i) deleting the word 'or' at the end of clause (a); (ii)
deleting the period at the end of clause (b) and inserting '; or' in its place;
and (iii) adding a new clause (c), to read in its entirety as follows:
'(c) the Global Documents unless consented to by the
Administrative Agent.'
SUBPART II.2.4. Disclosure Schedule. The Disclosure Schedule is
hereby amended in its entirety to read as set forth in attached Schedule I.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART III.1. Effective Date and Conditions. This Amendment shall
become effective on the date (the 'First Amendment Effective Date') when each of
the conditions set forth in this Part have been satisfied.
SUBPART III.1.1. Organic Documents, etc. The Administrative Agent shall
have received, with counterparts for each Lender, certificates, dated the date
of the First Amendment Effective Date, executed and delivered by an Authorized
Officer of Central Virginia and of Global, as applicable, certifying, among
other things,
(a) that attached thereto is a true and complete copy of
Central Virginia=s Organic Documents and all amendments thereto,
certified by the Secretary of State of the State of Delaware and dated
a date reasonably near the First Amendment Effective Date;
(b) that attached thereto are true and complete copies of all
partnership and corporate action taken by or on behalf of Global and
Central Virginia, as the case may be, authorizing the execution,
delivery and performance of this Amendment, each other Loan Document to
which Global or Central Virginia is a party and all other aspects of
the Global Transaction, and that such authorization has not been
modified, rescinded or amended and is in full force and effect;
(c) that attached thereto is a true and complete copy of
Central Virginia=s (A) Management Agreement and (B) Franchise
Agreements, in each case as in effect on the First Amendment Effective
Date, together with all amendments, waivers and other modifications
made thereto and a part thereof and that each such Management Agreement
and Franchise Agreement is in full force and effect; and
(d) as to the name, incumbency and specimen signature of each
Authorized Officer of Central Virginia authorized to execute this
Amendment and each other Loan Document to be executed by it (and the
Administrative Agent and each Lender may conclusively rely on such
certificate until it shall have received a further certificate
canceling or amending such prior certificate).
SUBPART III.1.2. Certificate Regarding Global Transaction. The
Administrative Agent shall have received, with counterparts for each Lender, a
certificate in form and substance satisfactory to the Administrative Agent with
respect to the Global Transaction, dated the First Amendment Effective Date and
duly executed and delivered by an Authorized Officer of Global, and all
documents and agreements required to be appended to such certificate shall be in
form and substance satisfactory to the Administrative Agent, including the
following:
(a) a true and complete copy of the Merger Agreement, the
Contribution Agreement and all other documents and instruments
delivered in connection with the consummation of the Global
Transaction;
(b) evidence satisfactory to the Administrative Agent that
Global and Central Virginia possess all governmental and third party
approvals and consents necessary in connection with the Global
Transaction, the execution, delivery and performance of this Amendment
and each other Loan Document executed in connection herewith, and for
the continued operation of their respective businesses, and that such
approvals and consents are in full force and effect (and, to the extent
requested by the Administrative Agent, the Administrative Agent shall
have received true and correct copies of such approvals and consents),
and that all applicable waiting periods shall have expired without any
action being taken or threatened by any competent authority which would
restrain, prevent or otherwise impose adverse conditions on the Global
Transaction;
(c) copies of the Management Agreement to which Central
Virginia is a party, as in effect on the First Amendment Effective
Date, together with all amendments, waivers and other modifications
made thereto and a part thereof, and such Management Agreement shall be
in form and substance (including terms regarding the subordination to
the Obligations of all Management Fees payable thereunder) satisfactory
to the Administrative Agent; and
(d) copies of all FCC Licenses, material permits and other
rights, including, without limitation, all Franchises, owned, possessed
or used by Central Virginia which are necessary to own and operate its
properties and Cable Systems and to carry on its businesses as
conducted on the First Amendment Effective Date, and the Administrative
Agent shall be satisfied that all such instruments are in the name of
Central Virginia.
SUBPART III.1.3. Pro Forma Financials. The Administrative Agent shall
have received, with counterparts for each Lender, a certificate in form and
substance satisfactory to the Administrative Agent from an Authorized Officer of
Global demonstrating compliance with all financial covenants set forth in
Section 7.2.4 of the Existing Credit Agreement, on a pro forma basis (as of June
30, 1998 and after giving effect to the Global Transaction).
SUBPART III.1.4. Subscribers and 'Homes Passed'. The Administrative
Agent shall have received a subscriber's report with respect to Central Virginia
setting forth (i) the number of Basic Subscribers of Central Virginia, (ii) the
number of Premium Subscriptions of Central Virginia, and (iii) the number of
'homes passed'.
SUBPART III.1.5. Supplemental to the Global Partners Security
Agreement. The Administrative Agent shall have received, with counterparts for
each Lender, supplement to the Global Partners Security Agreement, in form and
substance satisfactory to the Administrative Agent, dated as of the First
Amendment Effective Date, duly executed and delivered by an Authorized officer
of GCI II together with:
(a) copies of Uniform Commercial Code financing statements
(Form UCC-1), naming GCI II as the debtor and the Administrative Agent
as the secured party, or other similar instruments or documents, to be
filed under the Uniform Commercial Code of all jurisdictions as may be
necessary or, in the opinion of the Administrative Agent, desirable to
perfect the security interest of the Administrative Agent against GCI
II pursuant to the Global Partners Security Agreement, duly executed
and delivered by an Authorized Officer of GCI II; and
(b) certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-11), or a similar search report
certified by a party acceptable to the Administrative Agent, listing
all effective financing statements naming GCI II, as the debtor and
which are filed in the jurisdictions in which filings were made
pursuant to clause (a) above, together with copies of such financing
statements (none of which shall cover any collateral described in the
Global Partners Security Agreement).
SUBPART III.1.6. Counterpart of the Subsidiary Guaranty. The
Administrative Agent shall have received, with counterparts for each Lender, a
signed counterpart of the Subsidiary Guaranty in form and substance satisfactory
to the Administrative Agent, dated as of the First Amendment Effective Date,
duly executed and delivered by an Authorized Officer of Central Virginia.
SUBPART III.1.7. Supplement to Global Pledge Agreement. The
Administrative Agent shall have received, with counterparts for each Lender, a
supplement to the Global Pledge Agreement dated the First Amendment Effective
Date and in form and substance satisfactory to the Administrative Agent executed
and delivered by an Authorized Officer of Global, together with certificates
evidencing 100% of the issued and outstanding shares of Capital Securities of
Central Virginia, which certificates shall be accompanied by undated stock
powers duly executed in blank, or if such shares of capital stock are
uncertificated, confirmation and evidence satisfactory to the Administrative
Agent that the evidence of the security interest has been registered with the
issuer of such uncertificated security.
SUBPART III.1.8. Supplement to Manager Subordination Agreement. The
Administrative Agent shall have received, with counterparts for each Lender, a
supplement to the Manager Subordination Agreement, in form and substance
satisfactory to the Administrative Agent, dated as of the First Amendment
Effective Date, duly executed and delivered by an Authorized Officer of Central
Virginia.
SUBPART III.1.9. Material Adverse Change. Since December 31, 1997,
there shall not have occurred a material adverse change with respect to the
cable television systems of Central Virginia or their financial condition or
operations, taken as of whole.
SUBPART III.1.10. Global Documents. The Global Transaction shall have
been consummated on the terms set forth in the Global Documents (with such
changes thereto as the Administrative Agent may agree to).
SUBPART III.1.11. Opinions of Counsel. The Administrative Agent shall
have received opinions, dated the First
Amendment Effective Date and addressed to the Administrative Agent and all
Lenders, from
(a) Xxxxx Xxxxxx, Deputy General Counsel to the Borrowers and
each other Obligor, in form and substance satisfactory to the
Administrative Agent; and
(b) Xxxxxxxx Ingersoll, a Professional Corporation, special
New York counsel to the Borrowers and each other Obligor, in form and
substance satisfactory to the Administrative Agent.
SUBPART III.1.12. Execution of Counterparts. The Administrative Agent
shall have received counterparts of this Amendment duly executed and delivered
on behalf of the Borrowers and the Required Lenders.
SUBPART III.1.13. Affirmation and Consent. The Administrative Agent
shall have received an affirmation and consent in form and substance
satisfactory to it, duly executed and delivered by each Obligor.
SUBPART III.1.14. Legal Details, etc. All documents executed or
submitted pursuant hereto shall be satisfactory in form and substance to the
Administrative Agent and its counsel. The Administrative Agent and its counsel
shall have received all information, and such counterpart originals or such
certified or other copies of such materials, as the Administrative Agent or its
counsel may reasonably request. All legal matters incident to the transactions
contemplated by this Amendment shall be satisfactory to the Administrative Agent
and its counsel.
PART IV
MISCELLANEOUS PROVISIONS
SUBPART IV.1. Cross-References. References in this Amendment to any
Part or Subpart are, unless otherwise
specified, to such Part or Subpart of this Amendment.
SUBPART IV.2. Loan Document Pursuant to Existing Credit Agreement. This
Amendment is a Loan Document executed pursuant to the Existing Credit Agreement
and shall be construed, administered and applied in accordance with all of the
terms and provisions of the Existing Credit Agreement.
SUBPART IV.3. Successors and Assigns. This Amendment shall be binding
upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
SUBPART IV.4. Full Force and Effect; Limited Amendment. Except as
expressly amended hereby, all of the representations, warranties, terms,
covenants, conditions and other provisions of the Existing Credit Agreement and
the Loan Documents shall remain unchanged and shall continue to be, and shall
remain, in full force and effect in accordance with their respective terms. The
amendments set forth herein shall be limited precisely as provided for herein to
the provisions expressly amended herein and shall not be deemed to be an
amendment to, waiver of, consent to or modification of any other term or
provision of the Existing Credit Agreement, any other Loan Document referred to
therein or herein or of any transaction or further or future action on the part
of the Borrowers or any Obligor which would require the consent of the Lenders
under the Existing Credit Agreement or any of the Loan Documents.
SUBPART IV.5. Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING FOR SUCH PURPOSES SECTION 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), EXCEPT TO THE EXTENT THE VALIDITY OR
PERFECTION OF A SECURITY INTEREST OR MORTGAGE HEREUNDER, OR REMEDIES HEREUNDER,
IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF NEW YORK.
SUBPART IV.6. Execution in Counterparts. This Amendment may be executed
in any number of counterparts by the parties hereto, each of which counterparts
when so executed shall be an original, but all the counterparts shall together
constitute one and the same agreement.
SUBPART IV.7. Representations and Warranties. In order to induce the
Lenders to execute and deliver this
Amendment the Borrowers hereby represent and warrant to the Lenders that
(a) the execution, delivery and performance by them of this
Amendment are within their partnership powers, have been duly
authorized by all necessary partnership action, and do not contravene
(i) their Organic Documents or (ii) any law or contractual restriction
binding on them;
(b) no authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
is required for the due execution, delivery and performance by them of
this Amendment;
(c) this Amendment constitutes their legal, valid and binding
obligation, enforceable against them in accordance with its terms,
subject, as to enforceability, to the effect of (i) any applicable
bankruptcy, insolvency, moratorium or similar law affecting creditors=
rights generally, and (ii) the effect of general principles of equity;
and
(d) immediately before and after giving effect to this
Amendment, all of the statements set forth in Section 5.4.1 of the
Existing Credit Agreement are true and correct.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers hereunto duly authorized as of the day and
year first above written.
HIGHLAND VIDEO ASSOCIATES, L.P.,
By: Highland Holdings, its General Partner
By: /s/ Xxxxx X Xxxxx
Title:
TELESAT ACQUISITION LIMITED PARTNERSHIP
By: Olympus Communications, L.P., its General Partner
By: ACP Holdings, Inc., its Managing General Partner
By:/s/ Xxxxxxx x Xxxxxx
Title: Vice President
GLOBAL ACQUISITION PARTNERS, L.P.
By: Global Cablevision, Inc., its General Partner
By:/s/ Xxxxxxx X Xxxxxx
Title: Vice President
LENDERS
THE BANK OF NOVA SCOTIA
By:/s/ Xxxxx X Xxxxxx
Title: Authorized Signatory
BANK OF MONTREAL, CHICAGO BRANCH
By:/s/ Xxxxx Xxxxxxx
Title: Director
FIRST UNION NATIONAL BANK,
as successor by merger to Corestates Bank, N.A.
By:/s/ MKM
Title: Vice President
THE CHASE MANHATTAN BANK, as successor by merger to Chemical Bank
By:/s/ Xxxx Xxxxx
Title: Managing Director
CIBC INC.
By:/s/ Xxxxxxxx Xxxxxx
Title: Executive Director
THE SUMITOMO BANK, LIMITED
By:/s/
Title:
By:
Title:
NATIONSBANK N.A. as successor by merger to
NATIONSBANK OF TEXAS, N.A.
By:/s/ Xxxxxx Xxxxxxxx
Title: Vice President
TORONTO DOMINION (TEXAS), INC.
By:/s/ Xxxx Nessitt
Title: Vice President
FLEET NATIONAL BANK
By:/s/ Xxxx Lyrent
Title: Vice President
