EXHIBIT 10.2.3
SECOND AMENDMENT TO CREDIT AGREEMENT
------------------------------------
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment" is
---------
executed to be effective as of the 31st day of December, 1996, among Xxxxx
Growth Partners L.P. (the "Borrower"), Nationsbank of Texas, N.A.
--------
("NationsBank"), individually as a Lender and as the Agent and the other Lenders
-----------
party hereto.
WITNESSETH:
----------
A. On December 30, 1994, the Borrower, NationsBank, individually as a
Lender and as the Agent, and the other Lenders party thereto (together with
NationsBank, the "Lenders"), entered into that certain Credit Agreement (the
-------
"Credit Agreement") providing for a $36,000,000 credit facility, which was
----------------
amended by that certain First Amendment and Waiver to Credit Agreement dated as
of April 12, 1995, among the Borrower, NationsBank and the other Lenders (as so
amended, the "Credit Agreement").
----------------
B. The Borrower has requested certain amendments to the Credit
Agreement.
C. The Lenders have agreed to make certain amendments to the Credit
Agreement, subject to the Borrower's compliance with the representations,
warranties, covenants and other terms and conditions set forth herein.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree hereby as
follows:
1. Certain Definitions and Terms. All capitalized terms used herein and
-----------------------------
not otherwise defined herein shall have the meanings set forth in the Credit
Agreement.
2. Amendment of Certain Definitions.
--------------------------------
(a) The definition of "NOTES" set forth in Section 1.1 of the Credit
-----------
Agreement is hereby deleted in its entirety and is replaced with the following
in lieu thereof:
"Notes": means the promissory notes in substantially the form
-----
of Exhibit A, executed by the Borrower in favor of each of the Lenders,
---------
and all renewals, extensions, amendments, restatements and
consolidations of all or any part thereof, and "Notes" means any one of
-----
them."
(b) The definition of "PRO FORMA TOTAL DEBT SERVICE" set forth in
Section 1.1 of the Credit Agreement is hereby deleted in its entirety and is
-----------
replaced with the following in lieu thereof:
"Pro Forma Total Debt Service": means, without duplication,
----------------------------
for the succeeding twelve-month period from the end of any fiscal
quarter or, with respect to any calculation made as of a date other than
the end of a fiscal quarter, as of the end of the most recently ended
fiscal quarter for which Borrower is required to deliver quarterly or
annual Financial Statements and the related Compliance Certificate
pursuant to Sections 7.3(a) and 7.3(b), Total Debt Service (excluding
--------------- ------
however Total Debt Service relating to the final principal payment due
on the Termination Date) during such period; provided that, for purposes
--------
of this definition, the rates of interest payable during any period on
Total Debt (x) bearing interest at a variable rate or at different fixed
rates or (y) on which interest does not become payable until a specified
date after the end of such quarter shall, in each case, be the interest
rates per annum payable on such Total Debt as of the date for which
such calculation is made."
(c) The definition of "TERMINATION DATE" set forth in Section 1.1 of the
-----------
Credit Agreement is hereby deleted in its entirety and is replaced with the
following in lieu thereof:
"Termination Date": means the earlier of (a) December 31,
----------------
1999, and (b) the effective date that the Lenders' commitments to lend
under this Agreement are otherwise cancelled or terminated in accordance
with this Agreement."
3. Section 3.2(b) of the Credit Agreement is hereby deleted in its
--------------
entirety and is replaced with the following in lieu thereof:
"(b) On the last Business Day of each March, June, September
and December, commencing March 31, 1999, through the Termination Date,
the Total Commitment shall automatically and permanently be reduced by
2.5% of the original Total Commitment (each, a "Quarterly Percentage
--------------------
Reduction"). Notwithstanding anything contained in this Agreement to the
---------
contrary, on the Termination Date the Total Commitment shall
automatically reduce to zero and all principal and other amounts
outstanding hereunder shall be due and payable in full."
-2-
4. Section 3.2(d) of the Credit Agreement is hereby deleted in its entirety
--------------
and is replaced with the following in lieu thereof:
"(d) On each date that Borrower disposes of any asset or
investment and (i) the proceeds of such sale exceed $250,000 or (ii) the
proceeds of such sale when aggregated with all other proceeds from
dispositions during the same fiscal year exceed $250,000, Borrower shall
on the date of such disposition, prepay outstanding Principal Debt in
the full amount of the net cash proceeds so received and, concurrent
with any such payment, the Total Commitment shall be permanently reduced
in like amount, and each such reduction shall reduce the Committed Sums
of each Lender in accordance with each Lender's Commitment Percentage.
Any such reduction in the Total Commitment under this Section 3.2(d)
--------------
shall not affect the amount of the Quarterly Percentage Reductions
required under Section 3.2(b) of this Agreement. Borrower shall pay, on
--------------
the date of such prepayment, all accrued and unpaid interest on the
principal amount so prepaid and any Consequential Loss arising as a
result thereof."
5. Amendment Fee. Borrower agrees hereby to pay to the Agent on the date of
-------------
this Amendment, for the account of each Lender, a non-refundable fee equal to
.25% of the Total Commitment as of the date hereof (the "Fee"). Upon the
---
Agent's receipt of the Fee, the Agent shall pay to each Lender its Pro Rata
share of the Fee based on such Lender's Pro Rata share of the Total Commitment.
The Borrower further acknowledges and agrees that the Fee (i) shall be fully
earned and non-refundable when paid and (ii) is separate from, and in addition
to, the fees payable as set forth in Section 4 of the Credit Agreement.
---------
6. Section 3.2(f) of the Credit Agreement is hereby amended to delete the
--------------
last sentence of such section in its entirety.
7. The following new Section 3.2(g) is hereby added to the Agreement:
--------------
"(g) The Borrower shall have the right, upon not less than
three Business Days' notice to the Agent (which will promptly notify
the Lenders thereof), to terminate the Total Commitment or, from time
to time, to reduce the amount of the Total Commitment; provided that no
--------
such termination or reduction of the Total Commitment shall be
permitted if, after giving effect thereto and to any prepayments of the
Loans made on the effective date thereof, the Principal Debt would
exceed the Total Commitment then in effect. Any such reduction shall be
in a minimum amount of $1,000,000 or a whole multiple of $250,000 in
excess thereof and shall permanently reduce the amount of the Total
Commitment then in effect.
-3-
8. Section 7.27(a) of the Credit Agreement is hereby deleted in its
---------------
entirety and is replaced with the following in lieu thereof:
"(a) The Borrower shall never permit the ratio of its Total
Debt to its Annualized Operating Cash Flow as of the last day of any
fiscal quarter ending (i) on or before December 31, 1998 to be greater
than 4.00 to 1.00 and (ii) after December 31, 1998 to be greater than
3.75 to 1.00."
9. Section 7.2(d) of the Credit Agreement is hereby deleted in its
--------------
entirety and is replaced with the following in lieu thereof:
"(d) The Borrower shall never permit the aggregate amount of
its Capital Expenditures in any fiscal year to be greater than the
amount set forth below opposite such period; provided, however, if, for
any given fiscal year, actual Capital Expenditures are less than the
annual amounts set forth below, the difference may be carried over to
the immediately following fiscal year, but not to subsequent years.
Period
------
Closing Date to and including December 31, 1997 $4,500,000
Thereafter $5,250,000"
10. Exhibit A-1 to the Credit Agreement is hereby deleted in its entirety.
-----------
11. Conditions Precedent. This Amendment shall not be effective until the
--------------------
following matters have been satisfied to the reasonable satisfaction of Agent:
(a) This Amendment shall have been duly executed and delivered to the
Agent by the Borrower and the Lenders.
(b) The Borrower shall have paid the Fee to the Agent, for distribution
to the Lenders.
12. Representations and Warranties. The Borrower represents and warrants to
------------------------------
the Agent and the Lenders that (a) this Amendment has been duly authorized,
executed and delivered by the Borrower and constitutes a legal, valid, and
binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally or general principles of equity, (b)
both before and after giving effect to the transactions and modifications
contemplated herein, there exists no Default or Event of Default under the
Credit Agreement, (c) the representations and warranties of the Borrower set
forth in the
-4-
Credit Agreement and the other Loan Papers are true and correct in all material
respects as of the date of this Amendment as though made on and as of such date,
except to the extent that the representations and warranties speak to a specific
date, (d) the Borrower has complied with all agreements and conditions to be
complied with by it on or before the date of this Amendment under the Credit
Agreement, the other Loan Papers and this Amendment, and (e) the Credit
Agreement, as amended hereby, the other Loan Papers, as amended, remain in full
force and effect, and are sufficient to grant a perfected security interest and
lien in all Collateral described therein, securing payment and performance of
the Obligations of the Borrower under the Loan Papers, as amended hereby.
13. Further Assurances. The Borrower shall execute and deliver such
------------------
further consents, acknowledgments, agreements, documents, instruments, and
certificates, in form and substance satisfactory to Lenders, as Lenders may
reasonably deem necessary or appropriate in connection with this Amendment.
14. Counterparts. This Amendment may be executed in any number of
------------
counterparts, all of which taken together shall constitute one and the same
instrument. In making proof hereof, it shall not be necessary to produce or
account for any counterpart other than one signed by the party against which
enforcement is sought.
15. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND THE RIGHTS,
-------------
OBLIGATIONS AND LIABILITIES OF THE PARTIES HERETO SHALL BE DETERMINED IN
ACCORDANCE WITH, THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS)
AND JUDICIAL DECISIONS OF THE STATE OF TEXAS AND APPLICABLE FEDERAL LAW.
16. ENTIRE AGREEMENT. THIS AMENDMENT, THE CREDIT AGREEMENT AND THE OTHER
----------------
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENT OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES. EXCEPT AS HEREIN EXPRESSLY MODIFIED, THE CREDIT AGREEMENT, THE LOAN
DOCUMENTS AND ALL OTHER DOCUMENTS AND AGREEMENTS EXECUTED IN CONNECTION
THEREWITH SHALL CONTINUE IN FULL FORCE AND EFFECT.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURE PAGES FOLLOW.]
-5-
IN WITNESS WHEREOF, this Amendment is executed as of the date first
set forth above.
XXXXX GROWTH PARTNERS L.P., a
Colorado limited partnership
By: XXXXX SPACELINK CABLE
CORPORATION, a Colorado
corporation, as managing general partner
By: /s/ J. Xxx Xxxxxx
-------------------------------------
Name: J. Xxx Xxxxxx
-----------------------------------
Title: Treasurer
----------------------------------
NATIONSBANK OF TEXAS, N.A.,
as Agent and a Lender
By:
------------------------------------------
Name: Xxxxx X. Xxxxx
----------------------------------------
Title: Vice President
---------------------------------------
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By:
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
----------------------------------------
Title: Banking Officer
---------------------------------------
-6-