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Exhibit 10.1(a)
EXECUTION COPY
FIRST AMENDMENT, dated as of June 28, 1999 (this "First Amendment"), to
the CREDIT AGREEMENT, dated as of March 18, 1999 (the "Credit Agreement"), among
CHARTER COMMUNICATIONS OPERATING, LLC (the "Borrower"), CHARTER COMMUNICATIONS
HOLDINGS LLC, the Lenders parties to the Credit Agreement, the Documentation
Agents and Syndication Agents named therein and THE CHASE MANHATTAN BANK and
NATIONSBANK, N.A., as Administrative Agents (in such capacity, the
"Administrative Agents"). Terms defined in the Credit Agreement shall be used in
this First Amendment with their defined meanings unless otherwise defined
herein.
W I T N E S S E T H:
WHEREAS, the Borrower wishes to amend the Credit Agreement in the
manner set forth herein; and
WHEREAS, each of the parties hereto is willing to enter into this First
Amendment on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION I. AMENDMENTS TO CREDIT AGREEMENT.
1. Section 1.1 - Exchange Date. The definition of "Exchange
Date" contained in Section 1.1 of the Credit Agreement is hereby
amended and restated in its entirety as follows:
"Exchange Date": the date of consummation of any Exchange.
2. Section 1.1 - Specified Subordinated Debt. The definition
of "Specified Subordinated Debt" contained in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety as follows:
"Specified Subordinated Debt": any Indebtedness of the
Borrower issued directly or indirectly to Xxxx X. Xxxxx or any of his
Affiliates, so long as such Indebtedness (a) qualifies as Specified
Long-Term Indebtedness and (b) has terms and conditions substantially
identical to those set forth in Exhibit I.
3. Section 1.1 - New Definitions. The following definitions
are hereby added to Section 1.1 of the Credit Agreement in the
appropriate alphabetical order:
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"Exchange Excess Amount": as defined in Section 7.5(f).
"Excluded Exchange Excess Amount": any Exchange Excess Amount
determined pursuant to one or more Exchanges consummated after the
Stage One Closing Date until the aggregate Exchange Excess Percentages
equal 15%. For the purposes of this definition, the "Exchange Excess
Percentage" with respect to any Exchange that results in an Exchange
Excess Amount shall equal the quotient (expressed as a percentage) of
such Exchange Excess Amount divided by Annualized Pro Forma Operating
Cash Flow determined as of the relevant Exchange Date.
4. Section 2.9(a). Section 2.9(a) of the Credit Agreement is
hereby deleted in its entirety and replaced with the reference
"[INTENTIONALLY OMITTED]."
5. Section 7.2(g). Section 7.2(g) of the Credit Agreement is
hereby amended by changing the words "90 days" contained therein to the
words "120 days."
6. Section 7.2(j). Clause (ii) of Section 7.2(j) of the Credit
Agreement is hereby amended and restated in its entirety as follows:
"(ii) except in the case of the Senior Notes, 100% of the Net
Cash Proceeds thereof (other than any such Net Cash Proceeds
that are applied to refinance other Indebtedness of Holdings
to the extent permitted by Section 7.8) shall be used by
Charter Holdings to make Investments in one or more of its
operating Affiliates"
7. Section 7.4. Section 7.4 of the Credit Agreement is hereby
amended by adding the following new paragraph (f) to the end thereof:
"(f) so long as no Default of Event of Default has occurred or
is continuing or would result therefrom, Charter Holdings may
be merged or consolidated with any Affiliate of Xxxx X. Xxxxx
(provided that either (i) Charter Holdings is the continuing
or surviving entity or (ii) if Charter Holdings is not the
continuing or surviving entity, such continuing or surviving
entity assumes the obligations of Charter Holdings under the
Loan Documents to which it is a party pursuant to an
instrument in form and substance reasonably satisfactory to
the Administrative Agents and, in connection therewith, the
Administrative Agents shall receive such legal opinions,
certificates and other documents as they may reasonably
request)"
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8. Section 7.5(e). The second parenthetical contained in
Section 7.5(e) of the Credit Agreement is hereby amended and restated
in its entirety as follows:
"(it being understood that Exchange Excess Amounts (other than
Excluded Exchange Excess Amounts) shall be deemed to
constitute usage of availability in respect of Dispositions
pursuant to this Section 7.5(e))"
9. Section 7.5(f). Section 7.5(f) of the Credit Agreement is
hereby amended and restated in its entirety as follows:
"(f) any Exchange by the Borrower and its Subsidiaries;
provided that (i) on the date of such Exchange, no Default or
Event of Default shall have occurred and be continuing or
would result therefrom; (ii) in the event that the Annualized
Asset Cash Flow Amount attributable to the assets being
Exchanged exceeds the annualized asset cash flow amount
(determined in a manner comparable to the manner in which
Annualized Asset Cash Flow Amounts are determined hereunder)
of the assets received in connection with such Exchange (such
excess amount, an "Exchange Excess Amount"), then, unless such
Exchange Excess Amount is an Excluded Exchange Excess Amount,
the Disposition of such Exchange Excess Amount is permitted by
clauses (ii) and (iii) of Section 7.5(e); and (iii) the Net
Cash Proceeds of such Exchange, if any, shall be applied to
prepay the Term Loans to the extent required by Section
2.9(b)"
10. Section 7.6(c). Clause (ii) of Section 7.6(c) of the
Credit Agreement is hereby amended and restated in its entirety as
follows:
"(ii) the Borrower may make distributions to Charter Holdings
as described in the last sentence of Section 7.9"
11. Section 7.6(d). Section 7.6(d) of the Credit Agreement is
hereby amended and restated in its entirety as follows:
"(d) the Borrower may make distributions to Charter Holdings
to permit Charter Holdings (or any parent company thereof) to
pay (i) attorneys' fees, investment banking fees, accountants'
fees, underwriting discounts and commissions and other
customary fees and expenses actually incurred in connection
with any issuance, sale or incurrence by Charter Holdings (or
any such parent company) of Equity Interests or Indebtedness
(other than any such amounts customarily paid out of the
proceeds of transactions of such type), provided, that such
amounts shall be allocated in an appropriate manner
(determined after consultation with the Administrative Agents)
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among the Borrower and the other operating Subsidiaries, if
any, of the issuer or obligor in respect of such Equity
Interests or Indebtedness, (ii) costs and expenses incurred in
connection with the Exchange Offers (as defined in the Senior
Note Indenture) and (iii) other administrative expenses
(including legal, accounting, other professional fees and
costs, printing and other such fees and expenses) incurred in
the ordinary course of business, in an aggregate amount in the
case of this clause (iii) not to exceed $2,000,000 in any
fiscal year"
12. Section 7.7(f). Clause (ii) of Section 7.7(f) of the
Credit Agreement is hereby amended by adding the following words after
the words "Xxxx Xxxxx Contributions" in the parenthetical contained
therein:
"and Consideration consisting of operating assets transferred
in connection with Exchanges"
13. Section 7.7(h). Section 7.7(h) of the Credit Agreement is
hereby amended by changing the amount "$100,000,000" contained therein
to the amount "$300,000,000".
14. Section 7.9. Section 7.9 of the Credit Agreement is hereby
amended by adding the following sentence to the end thereof:
"Notwithstanding anything to the contrary in this Section 7.9,
so long as no Default or Event of Default shall have occurred
and be continuing, the Borrower shall be permitted to pay
(either directly or by way of distribution to Charter
Holdings) amounts not in excess of 1.0% of the aggregate
enterprise value of Investments permitted hereby (excluding
the Marcus Combination) to certain members of the Charter
Group."
15. Section 7.14(b). Section 7.14(b) of the Credit Agreement
is hereby amended and restated in its entirety as follows:
"(b) In the case of Charter Holdings and the Borrower, (i)
conduct, transact or otherwise engage in, or commit to
conduct, transact or otherwise engage in, any business or
operations other than those incidental to its ownership of the
Equity Interests of other Persons or (ii) own, lease, manage
or otherwise operate any properties or assets other than
Equity Interests of other Persons"
16. Section 8(j). Section 8(j) of the Credit Agreement is
hereby amended and restated in its entirety as follows:
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"(j)(i) the Xxxx Xxxxx Group shall cease to have the power,
directly or indirectly, to vote or direct the voting of Equity
Interests having at least 51% (determined on a fully diluted
basis) of the ordinary voting power for the management of
Charter; (ii) the Xxxx Xxxxx Group shall cease to own of
record and beneficially, directly or indirectly, Equity
Interests of Charter representing at least 51% (determined on
a fully diluted basis) of the economic interests therein
(provided that such percentage shall be reduced to 25% after
the consummation of an Initial Public Offering); (iii) a
Specified Change in Control shall occur; or (iv) the Borrower
shall cease to be a direct Wholly Owned Subsidiary of
Holdings"
17. Section 8(k). Section 8(k) of the Credit Agreement is
hereby deleted in its entirety and replaced with the reference
"[INTENTIONALLY OMITTED]".
SECTION II. MISCELLANEOUS.
1. No Change. Except as expressly provided herein, no term or
provision of the Credit Agreement shall be amended, modified or
supplemented, and each term and provision of the Credit Agreement shall
remain in full force and effect.
2. Effectiveness. This First Amendment shall become effective
as of the date hereof upon receipt by the Administrative Agents of (a)
counterparts hereof duly executed by Holdings and the Borrower and (b)
consent letters authorizing the Administrative Agents to enter into
this First Amendment from the Required Lenders, provided, that the
amendment described in paragraph 4 of Section I of this First Amendment
shall not become effective until consent letters authorizing the
Administrative Agents to enter into this First Amendment have been
received from the Required Prepayment Lenders.
3. Counterparts. This First Amendment may be executed by the
parties hereto in any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the
same instrument.
4. GOVERNING LAW. THIS FIRST AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS FIRST AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed and delivered as of the day and year first above written.
CHARTER COMMUNICATIONS HOLDINGS LLC
By: /s/ Xxxxxx X. Xxxxxx
_______________________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
CHARTER COMMUNICATIONS OPERATING, LLC
By: /s/ Xxxxxx X. Xxxxxx
_______________________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK,
as an Administrative Agent
By: /s/ Xxxxxx XxXxxxxx
_______________________________________
Name: Xxxxxx XxXxxxxx
Title: Vice President
NATIONSBANK, N.A., as an Administrative Agent
By: /s/ A. Cacheria
_______________________________________
Name: A. Cacheria
Title: M/D
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