Exhibit 4
[EXECUTION COPY]
AMENDMENT AND WAIVER
AMENDMENT AND WAIVER, dated as of August 30, 1996 (this
"Amendment") among C-TEC CABLE SYSTEMS, INC. (the "Borrower"), C-TEC CORPORATION
(the "Parent"), the BANKS listed on the signature pages hereof (the "Banks") and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
WITNESSETH:
WHEREAS, the parties hereto have heretofore entered into a
Revolving Secured Credit Agreement dated as of July 31, 1989, as amended up to
but excluding the date hereof (the "Agreement");
WHEREAS, the parties hereto desire to extend the final maturity
of the Loans under the Agreement, to increase the aggregate amount of the
Conum'tments thereunder and to provide for Loans to be made to the Borrower on
the date set forth herein, all as hereinafter set forth; and
WHEREAS, the Borrower desires, and the Banks are willing to agree
to, a limited waiver of Section 5.16 of the Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Agreement shall
have the meaning assigned to such term in the Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Agreement shall from and after the date hereof refer to the
Agreement as amended and restated hereby.
SECTION 2. Amendment of Final Maturity Date. The definition of
"Final Maturity Date" in Section 1.01 of the Agreement is amended to read in its
entirety as follows:
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"Final Maturity Date" means December 31, 1996, or, if such day is not
a Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day.
SECTION 3. Changes to Commitments and Commitment Reductions. (a)
The definition of Commitment in Section 1.01 of the Agreement is amended to read
as follows:
Commitment" means, (i) with respect to each Bank, the amount set
forth opposite the name of such Bank on the Committment Schedule attached hereto
and (ii) with respect to each Assignee which becomes a Bank pursuant to Section
9.06(c), the amount of the Commitment thereby assumed by it, in each case as
such amount may be reduced from time to time pursuant to Sections 2.07, 2.08 and
9.06(c) or increased from time to time pursuant to Section 9.06(c).
(b) Section 2.08(b) of the Agreement is amended to read in its
entirety: "INTENTIONALLY OMITTED",
(c) Section 2.08(c) of the Agreement is amended to read in its
entirety: "INTENTIONALLY OMITTED",
(d) The Agreement is amended by deleting the amounts appearing
opposite the Banks' names on the signature pages thereof and by adding the
Commitment Schedule attached as Annex I hereto.
SECTION 4. Departing and Assigning Banks. With the consent of the
Borrower and the Agent, as evidenced by their signatures hereof, on the date
that this Amendment becomes effective pursuant to Section 11 hereof,
(i) The First National Bank of Boston shall be released from its
Commitment under the Agreement and shall cease to be a Bank party thereto, and
all accrued fees and other amounts payable under the Agreement for its account
shall be due and payable on such date; and
(ii) First Valley Bank assigns without recourse its Commitment and all
of its other rights and obligations under the Agreement to Summit Bank and
Summit Bank hereupon succeeds to all such rights and obligations, in
consideration of which Summit Bank shall pay to First Valley Bank an amount
heretofore agreed between them, provided in each case that Section 9.03 of the
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Agreement shall continue to inure to the benefit of The First National Bank of
Boston and Summit Valley Bank.
SECTION 5 . Amendment of Section 2. 01. (a) Section 2.01 of the
Agreement Is amended to read as follows:
2. 01 Commiments to Lend (a) Each Bank severally agrees, on the
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terms and conditions set forth in this Agreement, to lend to the
Borrower from time to time amounts not to exceed in the aggregate at
any one time outstanding the amount of its Commitment. Each Borrowing
under this Section shall be in an aggregate principal amount of
$5,000,000 or any larger multiple of $1,000,000 (except that any such
Borrowing may be in the aggregate amount of the unused Commitments)
and shall be made from the several Banks ratably in proportion to
their respective Commitments. Within the foregoing limits, the
Borrower may borrow under this Section, repay or, to the extent
permitted by Section 2.09, prepay Loans and reborrow at any time
during the period from and including the Effective Date to but
excluding the Final Maturity Date.
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(b) Each Bank severally agrees, in accordance with and
subject to the terms of clause (a) above, to make a Loan to the
Borrower on August 30, 1996, which Loan represents such Bank's ratable
proportion, IN accordance with its Commmitment, of a Borrowing in a
aggregate principal amount of $19,000,000. Such Borrowing shall
initially consist of Base Rate Loans. On September 5, 1996, such
Loans shall automatically convert to Euro-Dollar Loans and the
Interest Period applicable thereto shall be three months, subject to
the provisions of the definition of Interest Period.
SECTION 6. Method of Borrowing. Effectiveness of this Amendment
pursuant to Section 11 hereof on or prior to August 30, 1996 shall be deemed to
constitute the notices required to be given in timely fashion by the Borrower
and the Agent, as applicable, pursuant to Section 2.02 of the Agreement.
SECTION 7. Limited Waiver of Section 5.16. The Banks hereby waive
any violation by the Borrower of Section 5.16 solely to the extent that
Consolidated Capital Expenditures do not exceed $30,000,000 for the fiscal year
of the Borrower ending December 31, 1996.
SECTION 8. Limitation. The amendments and waivers contained
herein are not, and shall not be construed to be, an amendment or waiver by the
parties of any other present or future observance or performance of any covenant
contained in, or any other provision of, the Agreement.
SECTION 9. Representations. The Borrower hereby cotifirms and
repeats each of the representations and warranties set forth in the Agreement on
and as of the date this Amendment becomes effective pursuant to Section 11
hereof, and as if each reference therein to the Agreement referred to the
Agreement as modified hereby. The Borrower hereby represents and warrants that,
immediately before and after the Borrowing contemplated by Section 2.01(b) of
the Agreement, as amended hereby, no Default shall have occurred and be
continuing.
SECTION 10. Governing Law This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 11. Counterparts: Effectiveness. This Amendment may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Amendment shall become effective as of the date heereof when
the following conditions are met:
(i) the Agent shall have received duly executed counterparts
hereof signed by each of the parties hereto (or, in the case of any
party as to which an executed counterpart shall not have been
received, the Agent shall have received telegraphic, facsimile or
other written confirmation from such party of execution of a
counterpart hereof by such party);
(ii) the Agent shall be satisfied that, after giving effect to
this Amendment, the Commitments of the Banks party to the Agreement
will aggregate not less than $20,000,000;
(iii) the Agent shall have received an opinion, satisfactory in
form and substance to the Agent in its sole discretion, of General
Counsel of the Borrower and the Parent with respect to corporate
existence and power, corporate and governmental
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authorization, noncontravention, binding effect and enforceability of
this Amendment and the Agreement as amended hereby;
(iv) the Agent shall have received a certificate of the
Secretary or Assistant Secretary of each of the Borrower and the
Parent, in each case satisfactory in form and substance to the Agent
in its sole discretion, certifying (x) the attached resolutions of the
board of directors of the Borrower or the PARENT, AS applicable,
relating to this Amendment and (y) the names and true signatures of
the officers of the Borrower or the Parent, as applicable, who are
authorized to sign this Amendment;
(v) the Agent shall have received for the account of the Banks
(ratably according to the amount of their Commitments set forth in the
Commitment Schedule) an amendment fee equal to 0.15% of the aggregate
amount of the Commitments; and
(vi) the Agent shall be satisfied that The First National Bank
of Boston has received payment from the Borrower of all principal
outstanding under the Loans (if any) as well as all interest and fees
accrued under the Agreement to the date of effectiveness of this
Amendment pursuant to this Section 11.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authofized officers as of the day and year
first above written.
C-TEC CORPORATION
By ______________________________
Title: Xxxxxxx X. Xxxxxxx, President
and Chief Operating Officer
C-TEC CABLE SYSTEMS, INC.
By _____________________________
Title: Xxxxxxx X. Xxxxxxx, President
and Chief Operating Officer
THE FIRST NATIONAL BANK OF BOSTON
By _____________________________
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Bank and Agent
By _____________________________
Title:
MELLON BANK NATIONAL ASSOCIATION
By _____________________________
Title:
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