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EXHIBIT 10.1(b)
SECOND AMENDMENT
TO
AMENDED AND RESTATED LOAN AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT (this
"Amendment"), dated as of the 31st day of December, 1997 (the "Amendment Date"),
is made by and among CHARTER COMMUNICATIONS, L.P., a Delaware limited
partnership (the "Borrower"), TORONTO DOMINION (TEXAS), INC., PNC BANK, NATIONAL
ASSOCIATION, CREDIT LYONNAIS NEW YORK BRANCH, UNION BANK OF CALIFORNIA, N.A.,
BANQUE PARIBAS, FLEET BANK, N.A., ABN AMRO BANK N.V., THE LONG-TERM CREDIT BANK
OF JAPAN, LTD., and CITY NATIONAL BANK (together with any financial institution
which subsequently becomes a `Bank' under the Loan Agreement, as such term is
defined therein, the "Banks"), TORONTO DOMINION (TEXAS), INC., PNC BANK,
NATIONAL ASSOCIATION and CREDIT LYONNAIS NEW YORK BRANCH, as co-agents (in such
capacity, the "Co-Agents"), CREDIT LYONNAIS NEW YORK BRANCH, as documentation
agent (in such capacity, the "Documentation Agent"), and TORONTO DOMINION
(TEXAS), INC., as administrative agent for the Co-Agents and the Banks (in such
capacity, the "Administrative Agent," and together with the Documentation Agent
and the Co-Agents, the "Agents").
W I T N E S S E T H:
WHEREAS, the Agents, the Borrower, and the Banks are all parties to
that certain Amended and Restated Loan Agreement dated as of March 28, 1996, as
amended by that certain First Amendment to Amended and Restated Loan Agreement
dated as of November 29, 1996 (as heretofore and hereafter amended, modified and
supplemented from time to time, the "Loan Agreement"); and
WHEREAS, the Borrower has requested that the Banks amend the Loan
Agreement to, among other things, (a) extend the Maturity Date, (b) revise the
amortization schedule, (c) modify certain financial covenants, and (d) make such
other changes as are set forth herein.
WHEREAS, the Agents and the Banks are willing to consent to such
amendments and such other matters as set forth herein on terms and conditions
contained herein;
NOW, THEREFORE, in consideration of the premises set forth above, the
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree that all capitalized terms used herein shall have the
meanings ascribed thereto in the Loan Agreement, and further agree as follows:
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1. Amendments to Article 1.
(a) Article 1 of the Loan Agreement, Definitions, is hereby
amended by deleting the existing definition of "Maturity Date" in its entirety
and by substituting the following in lieu thereof:
"`Maturity Date' shall mean December 31, 1999, or such earlier
date as payment of the Loans shall be due (whether by acceleration or
otherwise)."
(b) Article 1 of the Loan Agreement, Definitions, is hereby
further amended by adding thereto, appropriately alphabetized, the following new
definitions of "LaGrange System" and "Xxxxxxx System":
"'LaGrange System' shall mean those certain cable television
assets of the Borrower located in the City of LaGrange, Georgia
comprising 8,368 subscribers as of September 30, 1997."
"'Xxxxxxx System' shall mean those certain cable television
assets of the Borrower located in the City of Sanford, North Carolina
comprising 12,988 subscribers as of September 30, 1997."
2. Amendments to Article 2. Article 2 of the Loan Agreement,
Loans, is hereby amended as follows:
(a) Subsection 2.5(b)(ii) of the Loan Agreement, Scheduled
Reductions, is hereby amended by deleting such subsection in its entirety and by
substituting the following in lieu thereof:
"(ii) [Intentionally Omitted.]"
(b) Section 2.7 of the Loan Agreement, Repayment, is hereby
amended by deleting subsection (a), Scheduled Term Loan Repayments, and
subsection (c) Annual Excess Cash Flow Recapture, in their entireties and by
substituting the following in lieu thereof:
"(a) [Intentionally Omitted.]"
"(c) [Intentionally Omitted]."
3. Amendments to Article 7. Article 7 of the Loan Agreement, Negative
Covenants, is hereby amended as follows:
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(a) Section 7.1 of the Loan Agreement, Indebtedness of the
Borrower, is hereby amended by deleting subsection (c) thereof in its entirety
and by substituting the following subsection (c) in lieu thereof:
"(c) Capitalized Lease Obligations in an amount not
in excess of $4,000,000, provided, however, that any lease agreement
between the Borrower and the City of LaGrange, Georgia with respect to
the assets for the LaGrange System shall not exceed $2,500,000 and shall
be assigned as Collateral for the Obligations."
(b) Section 7.4 of the Loan Agreement, Liquidation, Change in
Ownership, Disposition or Acquisition of Assets, is hereby amended by adding to
subsection (a) at the end of the first full sentence of such subsection the
following new sentence which shall become the second complete sentence in such
subsection (a):
"In addition, the Borrower may sell (i) the assets of the Xxxxxxx
System (including the License with respect thereto), provided that the
purchase price of such sale is equal to or greater than $23,100,000 and
the Net Proceeds thereof are applied to the Loans pursuant to Section
2.7(b) hereof, and (ii) the assets of the LaGrange System, provided
that the purchase price of such sale is equal to or greater than
$2,000,000 and provided further that such assets are contemporaneously
leased back to the Borrower."
(c) Section 7.8 of the Loan Agreement, Leverage Ratio, is
hereby amended by deleting the existing table contained in Section 7.8 in its
entirety and by substituting the following in lieu thereof:
Leverage
"Period Ratio
------- -----
From December 31, 1997 through the Maturity Date 5.25:1"
(d) Section 7.9 of the Loan Agreement, Annualized Operating
Cash Flow to Fixed Charges Ratio, is hereby amended by deleting such Section in
its entirety and by substituting the following in lieu thereof:
"Section 7.9 [Intentionally omitted.]"
(e) Section 7.10 of the Loan Agreement, Annualized Operating
Cash Flow to Pro Forma Debt Service, is hereby amended by deleting such Section
in its entirety and by substituting the following lien thereof:
"Section 7.10 [Intentionally omitted.]"
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(f) Section 7.15, of the Loan Agreement, Capital Expenditures,
is hereby amended by deleting the existing table contained in Section 7.15 in
its entirety and by substituting the following in lieu thereof:
Capital
"Period Expenditures Limit
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From January 1, 1997 through December 31, 1997 $20,000,000
From January 1, 1998 through December 31, 1998 $20,000,000
From January 1, 1999 through December 31, 1999 $11,500,000"
(g) Section 7.16 of the Loan Agreement, Consolidated Leverage
Ratio, is hereby amended by deleting the existing Section in its entirety and by
substituting the following in lieu thereof:
"Section 7.16 Consolidated Leverage Ratio. (a) As of the end
of any calendar quarter, and (b) at the time of any Advance (after
giving effect to such Advance), the Borrower shall not permit the ratio
of Consolidated Total Debt as of such date to Consolidated Annualized
Operating Cash Flow for the calendar quarter end being tested in the
case of Section 7.16(a) above, or the most recent quarter end for which
financial statements are required to be delivered to the Administrative
Agent and the Co-Agents pursuant to Sections 6.1 and 6.2 hereof in the
case of Section 7.16(b) above, to be greater than (i) prior to June 30,
1997, 6.75 to 1.0; (ii) from July 1, 1997 until December 31, 1997, 6.50
to 1.0; (iii) from January 1, 1998 until March 31, 1998, 6.75 to 1.0;
and (iv) from April 1, 1998 and at all times thereafter, 6.50 to 1.0."
(h) Article 7 of the Loan Agreement, Negative Covenants, is
hereby amended by adding thereto the following new Section 7.17, Interest
Coverage Ratio:
"Section 7.17 Interest Coverage Ratio. (a) As of the end of
any calendar quarter, and (b) at the time of any Advance (after giving
effect to such Advance), the Borrower shall not permit the ratio of its
(1) Annualized Operating Cash Flow to (2) the sum of (A) Interest
Expense and (B) Restricted Payments made pursuant to Sections 7.7(b)
and 7.7(c) for the calendar quarter end being tested in the case of
Section 7.17(a) above, or the most recent quarter end for which
financial statements are required to be delivered to the Administrative
Agent and the Co-Agents pursuant to Sections 6.1 and 6.2 hereof in the
case of Section 7.17(b) above, to be less than (i) prior to July 1,
1998, 1.35 to 1.0 and (ii) from July 1, 1998 and at all times
thereafter, 1.50 to 1.0."
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4. Representations and Warranties. The Borrower hereby represents and
warrants in favor of the Agents and the Banks as follows:
(a) The Borrower has the partnership power and authority (i)
to enter into this Amendment and (ii) to do all other acts and things as are
required or contemplated hereunder to be done, observed and performed by it;
(b) This Amendment has been duly authorized, validly executed
and delivered by one or more Authorized Signatories of the Borrower and
constitutes the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective terms,
subject, as to enforcement of remedies, to the following qualifications: (i) an
order of specific performance and an injunction are discretionary remedies and,
in particular, may not be available where damages are considered an adequate
remedy at law, and (ii) enforcement may be limited by bankruptcy, insolvency,
liquidation, reorganization, reconstruction and other similar laws affecting
enforcement of creditors' rights generally (insofar as any such law relates to
the bankruptcy, insolvency or similar event of the Borrower); and
(c) The execution and delivery of this Amendment and the
performance by the Borrower under the Loan Agreement and the other Loan
Documents to which it is a party, as amended hereby, do not and will not require
the consent or approval of any regulatory authority or governmental authority or
agency having jurisdiction over the Borrower which has not already been
obtained, nor is in contravention of or in conflict with the partnership
agreement or other similar agreement of the Borrower, or the provision of any
statute, judgment, order, indenture, instrument, agreement, or undertaking, to
which the Borrower is a party or by which any of its assets or properties are or
may become bound.
5. Conditions Precedent. The effectiveness of this Amendment is subject
to receipt by the Administrative Agent and the Banks, in form and substance
satisfactory to the Administrative Agent and the Banks a certificate, signed by
an Authorized Signatory of the Borrower, certifying on the date hereof that
there exists no Default under the Loan Agreement, after giving effect to this
Amendment, and demonstrating the Borrower's compliance with Sections 7.8, 7.9,
7.10, 7.15, 7.16 and 7.17 of the Loan Agreement, after giving effect to this
Amendment.
6. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
7. Governing Law. This Amendment shall be construed in accordance with
and governed by the laws of the State of New York.
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8. Severability. Any provision of this Amendment which is prohibited or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof in that
jurisdiction or affecting the validity or enforceability of such provision in
any other jurisdiction.
9. No Other Amendment or Waiver. Except for the amendments set forth
above, the text of the Loan Agreement and all other Loan Documents shall remain
unchanged and in full force and effect. No waiver by the Administrative Agent,
the other Agents or the Banks under the Loan Agreement or any other Loan
Document is granted or intended except as expressly set forth herein, and the
Administrative Agent, the other Agents and the Banks expressly reserve the right
to require strict compliance in all other respects (whether or not in connection
with any Requests for Advance). Except as set forth herein, the amendments
agreed to herein shall not constitute a modification of the Loan Agreement or
any of the other Loan Documents, or a course of dealing with the Administrative
Agent, the other Agents and the Banks, or any of them, at variance with the Loan
Agreement or any of the other Loan Documents, such as to require further notice
by the Administrative Agent, the other Agents, the Banks, the Majority Banks, or
any of them, to require strict compliance with the terms of the Loan Agreement
and the other Loan Documents in the future.
10. Loan Documents. This document shall be deemed to be a Loan Document
for all purposes.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers, all as of the day and year first
above written.
BORROWER: CHARTER COMMUNICATIONS, L.P., a Delaware
limited partnership
By: Its General Partner
CCP ONE, INC., a Delaware corporation
By:_________________________________________
Its:_____________________________________
AGENTS AND BANKS: TORONTO DOMINION (TEXAS), INC., as
Administrative Agent, a Co-Agent and a Bank
By:_________________________________________
Its:_____________________________________
CREDIT LYONNAIS NEW YORK BRANCH, as
Documentation Agent, a Co-Agent and as a Bank
By:_________________________________________
Its:_____________________________________
By:_________________________________________
Its:_____________________________________
CHARTER COMMUNICATIONS, L.P.
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 1
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PNC BANK, NATIONAL ASSOCIATION, as a Co-
Agent and as a Bank
By:_________________________________________
Its:_____________________________________
UNION BANK OF CALIFORNIA, N.A., as a Bank
By:_________________________________________
Its:_____________________________________
BANQUE PARIBAS, as a Bank
By:_________________________________________
Its:_____________________________________
By:_________________________________________
Its:_____________________________________
CHARTER COMMUNICATIONS, L.P.
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 2
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ABN AMRO BANK N.V., as a Bank
By:_________________________________________
Its:_____________________________________
By:_________________________________________
Its:_____________________________________
FLEET BANK, N.A., as a Bank
By:_________________________________________
Its:_____________________________________
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
as a Bank
By:_________________________________________
Its:_____________________________________
CITY NATIONAL BANK, as a Bank
By:_________________________________________
Its:_____________________________________
CHARTER COMMUNICATIONS, L.P.
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 3
