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EXHIBIT 10.1(a)
FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT (this
"Amendment"), dated as of the 29th day of November, 1996 (the "Amendment
Date"), 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. (FORMERLY, UNION BANK), BANQUE PARIBAS, FLEET BANK, N.A., ABN
AMRO BANK N.V. AND THE LONG-TERM CREDIT BANK OF JAPAN, LTD. (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 (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 parties to that
certain Amended and Restated Loan Agreement dated as of March 28, 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) increase
the Revolving Loan Commitment, (c) adjust the amortization schedule, (d) modify
certain financial covenants, (e) modify the Restricted Payments schedule, and
(f) allow the Borrower to acquire certain cable television systems from Masada
Cable Partners, L.P. and Cencom Partners, L.P. (an affiliate of the Borrower);
and
WHEREAS, the Agents and the Banks are willing to consent to such
amendments and such other matters as set forth herein on the terms and
conditions contained herein in return, in part, for the payment of the
Amendment Fee (as defined herein);
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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:
1. Amendments to Article 1.
(a) Article 1 of the Loan Agreement, Definitions, is hereby amended by
deleting the existing definitions of "Acquisition Loan Commitment,"
"Acquisition Loans," "Acquisition Loan Notes," and "Acquisition Loan
Termination Date" in their entireties.
(b) Article 1 of the Loan Agreement, Definitions, is hereby further
amended by deleting the existing definitions of "Commitment," "Commitment
Ratios," "Loans," "Maturity Date," "Notes," "Request for Advance," "Revolving
Loan Commitment," "Revolving Loan Notes," and "scheduled payments of
principal," in their entireties and by substituting in lieu thereof the
following:
"'Commitment' shall mean the Revolving Loan Commitment."
"`Commitment Ratios' shall mean the percentages in which certain of
the Banks are severally bound to make Advances to the Borrower under the
Revolving Loan Commitment, as set forth below (together with dollar
amounts) as of the date of the First Amendment to this Agreement:
Portion of
Revolving Revolving Loan
Loan Commitment
Banks Commitment Ratio
------------------------------------------------ -------------- --------------
The Toronto-Dominion Bank $15,625,000.00 20.000000000%
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Portion of
Revolving Revolving Loan
Loan Commitment
Banks Commitment Ratio
------------------------------------------------ -------------- --------------
Credit Lyonnais New York Branch $15,625,000.00 20.833333333%
PNC Bank, National Association $11,931,818.00 15.909090667%
ABN AMRO Bank N.V. $ 7,500,000.00 10.000000000%
Banque Paribas $ 7,159,091.00 9.545454667%
Union Bank of California, N.A. (formerly, Union
Bank) $ 7,159,091.00 9.545454667%
Fleet Bank, N.A. $ 5,000,000.00 6.666666667%
The Long-Term Credit Bank of Japan, Ltd. $ 5,000,000.00 6.666666667%
============== ==============
Total $75,000,000.00 100.00%"
"`Loans' shall mean, collectively, the Term Loans and the Revolving
Loans."
"`Maturity Date' shall mean September 30, 2005, or such earlier date
as payment of the Loans shall be due (whether by acceleration or
otherwise)."
"`Notes' shall mean, collectively, the Term Loan Notes and the
Revolving Loan Notes."
"`Request for Advance' shall mean any certificate signed by an
Authorized Signatory of the Borrower requesting an Advance hereunder,
which certificate shall be denominated a "Request for Advance," and shall
be in substantially the form of Exhibit D attached hereto. Each Request
for Advance shall, among other things, (a) specify the date of the
Advance, which shall be a Business Day, the amount of the Advance, the
type of Advance and, with respect to Fixed Rate Advances, the Interest
Period selected by the Borrower, (b) state that there shall not exist, on
the date of the
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requested Advance and after giving effect thereto, a Default, and (c)
specify the use of the proceeds of the Loans being requested."
"'Revolving Loan Commitment' shall mean the several obligations of
certain of the Banks to advance the aggregate sum of up to $75,000,000
(as the same may be reduced from time to time in accordance with the
terms hereof) to the Borrower in accordance with their respective
Commitment Ratios and on the terms and conditions herein."
"'Revolving Loan Notes' shall mean those certain promissory notes in
the aggregate principal amount of $75,000,000, one such note issued to
each of the Banks by the Borrower, each one substantially in the form of
Exhibit E to this Agreement, and any extensions, renewals, amendments or
substitutions to any of the foregoing."
"'scheduled payments of principal' shall mean, for any period, (a)
with respect to the Term Loans, the amounts required to be repaid
hereunder during such period, and (b) with respect to the Revolving
Loans, (i) for purposes of determining Fixed Charges, the excess, if any,
of (A) the highest amount of the Revolving Loans outstanding at any time
during such period over (B) the amount of the Revolving Loan Commitment
on the last day of such period, and (ii) for purposes of determining Pro
Forma Debt Service, the difference (to the extent positive) between (A)
the Revolving Loans outstanding on the calculation date and (B) the
Revolving Loan Commitment on the last day of the period being tested."
(c) Article 1 of the Loan Agreement, Definitions, is hereby further
amended by adding the following definition in alphabetical order:
"'Documentation Agent' shall mean Credit Lyonnais New York Branch,
acting as documentation agent for the Agent, the Administrative Agent,
the Banks and the Co-Agents."
2. Amendments to Article 2. Article 2 of the Loan Agreement, Loans, is
hereby amended as follows:
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(a) Section 2.1 of the Loan Agreement, The Loans, is hereby amended by
deleting Section 2.1 (c) in its entirety.
(b) Section 2.3 of the Loan Agreement, Interest, is hereby amended by
deleting the table set forth in Section 2.3(f) thereof in its entirety and by
substituting in lieu thereof the following:
the Applicable the Applicable the Applicable
If the Margin for Base Margin for CD Rate Margin for LIBOR
Leverage Rate Advances Advances Advances
Ratio is: then shall be and shall be and SHALL BE
-------------------- ---- -------------------- --- -------------------- --- ----------------
Greater than 5.00:1 1.000% 2.125% 2.000%
Greater than
4.50:1, but less
than or equal to
5.00:1 0.875% 2.000% 1.875%
Greater than
4.00:1, but less
than or equal to
4.50:1 0.750% 1.875% 1.750%
Greater than
3.50:1, but less
than or equal to
4.00:1 0.625% 1.750% 1.625%
Greater than
3.00:1, but less
than or equal to
3.50:1 0.500% 1.625% 1.500%
Greater than
2.50:1, but less
than or equal to
3.00:1 0.375% 1.500% 1.375%
Less than or equal
to 2.50:1 0.250% 1.375% 1.250%"
(c) Section 2.4 of the Loan Agreement, Commitment Fees, is hereby amended
by deleting Section 2.4(b) in its entirety.
(d) Section 2.5 of the Loan Agreement, Commitment Reduction, is hereby
amended by deleting such Section in its entirety and by substituting in lieu
thereof the following:
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"Section 2.5 Commitment Reduction.
(a) Optional. The Borrower may without penalty at any time
terminate or permanently reduce the Commitment by giving the
Administrative Agent and the Banks at least ten (10) Business Days' notice
thereof; provided, however, that any reduction shall reduce the Commitment
in a principal amount of at least $1,000,000 and an integral multiple of
$1,000,000. The Borrower shall make a repayment of the Revolving Loans
outstanding under the Commitment plus accrued interest on such outstanding
Loans, together with any costs incurred on account of such repayment under
Section 2.10 hereof, on or before the effective date of the reduction of
the Commitment, such that the principal amount of the Revolving Loans
outstanding after such repayment does not exceed the Commitment as so
reduced. Reductions to the Commitment hereunder shall be applied to the
reductions in Section 2.5(b)(ii) hereof in inverse order.
(b) Mandatory.
(i) Asset Sale Reductions. After payment in full of the Term Loan,
the Commitment shall be permanently reduced by the amount of the
aggregate Net Proceeds of sales, leases, transfers, or other dispositions
of the Borrower's assets permitted hereunder (excluding such sales,
leases, transfers or other dispositions in the ordinary course of the
Borrower's business) to the extent that the Net Proceeds with respect
thereto are in excess of $4,500,000 in the aggregate for the period from
the Agreement date to the Maturity Date. Reductions to the Commitment
hereunder shall be applied pro rata to the remaining reductions set forth
in Section 2.5(b)(ii) hereof.
(ii) Scheduled Reductions. Commencing March 31, 1999, and at the
end of each calendar quarter thereafter, the Commitment shall be
automatically and permanently reduced as set forth below (which
reductions are in addition to those set forth elsewhere in this
Agreement):
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Percentage Reduction
to Commitment as of
Quarters Ended March 30, 1999
-------------------------------------------- --------------------
March 31, 1999, June 30, 1999, September 30,
1999 and December 31, 1999 2.200%
March 31, 2000, June 30, 2000,
September 30, 2000 and December 31, 2000 2.900%
March 31, 2001, June 30, 2001,
September 30, 2001 and December 31, 2001 2.900%
March 31, 2002, June 30, 2002,
September 31, 2002 and December 31, 2002 3.600%
March 31, 2003, June 30, 2003,
September 30, 2003 and December 31, 2003 4.150%
March 31, 2004, June 30, 2004
September 30, 2004 and December 31, 2004 5.000%
March 31, 2005, June 30, 2005,
and September 30, 2005 5.667%"
(e) Section 2.6 of the Loan Agreement, Prepayment, is hereby amended by
deleting clause (b) set forth therein in its entirety.
(f) Section 2.7 of the Loan Agreement, Repayment, is hereby amended by
deleting such Section in its entirety and by substituting in lieu thereof the
following:
"Section 2.7 Repayment.
(a) Scheduled Term Loan Repayments. Commencing March 31, 1999, the
principal balance of the Term Loans outstanding on the date hereof shall
be amortized in consecutive quarterly installments on December 31, March
31, June 30, and September 30 of each year until paid in full, in such
amounts as follows:
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Percentage of
Principal Outstanding
on Agreement Date
(after giving effect
to the reduction
required under
Section 3.1(d)
hereof) Due on Last
Quarters Ended Day of Each Quarter
-------------------------------------------------------- ----------------------
March 31, 1999, June 30, 1999, September 30, 1999 and
December 31, 1999 2.200%
March 31, 2000, June 30, 2000, September 30, 2000 and
December 31, 2000 2.900%
March 31, 2001, June 30, 2001, September 30, 2001 and
December 31, 2001 2.900%
March 31, 2002, June 30, 2002, September 31, 2002 and
December 31, 2002 3.600%
March 31, 2003, June 30, 2003, September 30, 2003 and
December 31, 2003 4.150%
March 31, 2004, June 30, 2004, September 30, 2004 and
December 31, 2004 5.000%
March 31, 2005, June 30, 2005, and September 30, 2005 5.667%
(b) Repayments Upon Reduction of Commitment and Sales of Assets.
The Borrower shall also repay outstanding principal of the Revolving
Loans from time to time as necessary to the extent that the Revolving
Loans exceed the Commitment as it may be reduced from time to time in
accordance with Section 2.5 hereof. In the event of any sale, lease,
transfer or other disposition of assets permitted hereunder (excluding
such sales, leases, transfers or other dispositions in the ordinary
course of the Borrower's business) to the extent that the Net Proceeds
with respect thereto are in excess of $4,500,000 in the aggregate for the
period from the Agreement Date to the Maturity Date, the Borrower shall,
on the date of such sale, lease, transfer or other disposition, make a
repayment of the principal of the Loans then outstanding in an amount
equal to the Net Proceeds of such sale, lease, transfer or other
disposition to the extent that they exceed $4,500,000. Any such Net
Proceeds which constitute a portion of the sales price which was
previously held in escrow or paid in
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installments shall be paid to the extent required by the terms hereof
to the Banks as a repayment of principal at such time as such Net
Proceeds are received by the Borrower. All amounts paid by the
Borrower pursuant to this subsection shall be applied to the Loans
then outstanding on a pro rata basis (based upon the Revolving Loans
and the Term Loans then outstanding), and shall be applied pro rata
to the remaining payments of the Term Loans required under Section
2.7(a) hereof and to the Revolving Loans to the remaining reductions
in Section 2.5(b)(ii) hereof on a pro rata basis for the remaining
reductions under Section 2.5(b)(ii) hereof.
(c) Annual Excess Cash Flow Recapture. In addition to the
foregoing, the Borrower agrees that commencing on April 30, 2000, and
continuing on each April 30th thereafter, the Borrower shall make a
repayment of the principal of the Loans then outstanding in an amount
equal to fifty percent (50%) of the Borrower's Annual Excess Cash Flow
for the Borrower's preceding fiscal year, together with accrued interest
on the portion of the Loans so repaid. All amounts paid by the Borrower
pursuant to this subsection shall be applied to the Loans then
outstanding on a pro rata basis, and shall be applied pro rata to the
remaining payments of the Term Loans required under Section 2.7(a) hereof
and to the Revolving Loans to the remaining reductions in the Revolving
Loans under Section 2.5(b)(ii) hereof on a pro rata basis for the
remaining reductions under Section 2.5(b)(ii) hereof. Amounts applied to
the Revolving Loans pursuant to this subsection shall also permanently
reduce the Commitment by a corresponding amount (with such reduction to
be applied on a pro rata basis to the remaining reductions in Section
2.5(b)(ii) hereof).
(d) Additional Equity. In the event that after the Agreement Date
(other than additional equity for the purpose of making the payments
contemplated by Section 7.7(e) hereof) the Borrower receives a
contribution of equity (whether such contribution is in the form of
additional equity or inter-company Indebtedness) in excess of $4,500,000
(other than any such contribution made in connection with the Cencom
Acquisition) in the aggregate subsequent to the Agreement Date resulting
from the issuance
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of Indebtedness or equity by the Limited Partner, Charter Holdings
or CharterComm, the Borrower shall make a repayment of the principal
amount of the Loans then outstanding in the amount of such excess
proceeds received by the Borrower. All amounts paid by the Borrower
pursuant to this subsection shall be applied to the Loans then
outstanding on a pro rata basis (based upon the Revolving Loans and the
Term Loans then outstanding), and shall be applied pro rata to the
remaining payments of the Term Loans required under Section 2.7(a) hereof
and to the Revolving Loans to the remaining reductions in Section
2.5(b)(ii) hereof on a pro rata basis for the remaining reductions under
Section 2.5(b)(ii) hereof. Amounts applied to the Revolving Loans
pursuant to this subsection shall also permanently reduce the applicable
Commitment by a corresponding amount (with such reduction to be applied
on a pro rata basis to the remaining reductions in Section 2.5(b)(ii)
hereof).
(e) Reimbursement. In addition to any principal repayment required
to be made under Section 2.7(a), (b), (c) or (d) hereof, the Borrower
shall reimburse the Banks pursuant to Section 2.10 hereof for any loss or
out-of-pocket expense incurred by the Banks in connection with such
repayment.
(f) Final Payment. A final payment of all principal amounts with
respect to the Term Loans and the Revolving Loans and all other
Obligations then outstanding shall be due and payable on the Maturity
Date."
(g) Section 2.8 of the Loan Agreement, Notes; Loan Accounts, is hereby
amended by deleting the clause ", one Acquisition Loan Note" where it appears
in Section 2.8(a).
(h) Section 2.9 of the Loan Agreement, Manner of Payment, is hereby
amended by deleting the phrase ", then pro rata to payment of principal then
due on the Acquisition Loans" where it appears in Section 2.9(c).
3. Amendments to Article 5. Article 5 of the Loan Agreement, General
Covenants, is hereby amended as follows:
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(a) Section 5.9 of the Loan Agreement, Use of Proceeds, is hereby amended
by deleting existing Section 5.9 in its entirety and by substituting in lieu
thereof the following:
"Section 5.9 Use of Proceeds. The Borrower will use the aggregate
proceeds of the Revolving Loans to finance (a) Capital Expenditures, for
working capital and for other partnership needs as permitted under this
Agreement, and (b) in an aggregate amount not to exceed $42,750,000, the
Acquisitions of certain Systems in (i) Tennessee and Alabama currently
owned by Masada Cable Partners, L.P. (the "Masada Acquisition") and (ii)
Sanford, North Carolina currently owned by Cencom Partners, L.P. (the
"Cencom Acquisition")."
(b) Section 5.12 of the Loan Agreement, Interest Rate Hedging, is hereby
amended by inserting at the end of such Section the following new language:
"Upon any increase in the Loans outstanding hereunder as a result of the
increase in the Revolving Loan Commitment pursuant to the First Amendment
to this Agreement, the Borrower shall have ninety (90) days from the date
of such increase to enter into Interest Hedge Agreements sufficient to
satisfy this Section 5.12 with respect to such increased amounts."
4. Amendments to Article 7. Article 7 of the Loan Agreement, Negative
Covenants, is hereby amended as follows:
(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 in lieu thereof the following:
"(c) Capitalized Lease Obligations in an amount not in excess of
$2,000,000;"
(b) Section 7.4 of the Loan Agreement, Liquidation, Change in Ownership,
Disposition or Acquisition of Assets, is hereby amended by deleting subsection
(b) thereof in its entirety and by substituting in lieu thereof the following:
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"(b) The Borrower shall not at any time acquire any assets, property
or business of any other Person, or acquire stock, partnership or other
ownership interests in any other Person, other than (i) in the ordinary
course of business of the Borrower, (ii) as permitted by the limitations
on Capital Expenditures set forth in Section 7.15 hereof, (iii)
Acquisitions of cable television systems with the proceeds of the
Revolving Loans for an aggregate purchase price not to exceed $7,500,000,
(iv) subject to delivery by the Borrower to the Administrative Agent of
all documents reasonably requested by the Majority Banks in connection
with such Acquisition, including, without limitation, opinions of
counsel, UCC-1 financing statements, reliance letters and lien search
results, the Masada Acquisition and the Cencom Acquisition, and (v)
subject to delivery of evidence satisfactory to the Majority Banks that
the Borrower will be in compliance with the terms and conditions of this
Agreement before and after giving effect to such Acquisition,
Acquisitions after April 30 of any year (commencing April 30, 2000) with
the portion of Annual Excess Cash Flow for the immediately preceding
calendar year not required to be used as a payment of the Loans."
(c) Section 7.7 of the Loan Agreement, Restricted Payments and Purchases,
is hereby amended by deleting existing subsections (c) and (d) thereof in their
entirety and by substituting in lieu thereof the following:
"(c) So long as no Default then exists, or would be caused thereby,
the Borrower may make distributions,directly or indirectly, to the
Limited Partner solely for the purpose of making payments with respect to
(i) on or prior to June 30, 2001, the Southeast Notes, and (ii)
thereafter, the Southeast Notes and the Charter Holdings Debentures,
which payments shall not exceed the lesser of (1) the payments actually
due on such Indebtedness and (2) the amounts set forth below:
Maximum Total
Distribution
Period for such period
--------------------------------------------------------------- ---------------
January 1, 1996 through December 31, 1996 $ 3,000,000
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Maximum Total
Distribution
Period for such period
--------------------------------------------------------------- ---------------
January 1, 1997 through December 31, 1997 $ 5,000,000
January 1, 1998 through December 31, 1998 $ 5,000,000
January 1, 1999 through December 31, 1999 $ 5,000,000
January 1, 2000 through December 31, 2000 $ 5,000,000
January 1, 2001 through December 31, 2001 $ 6,000,000
January 1, 2002 through December 31, 2002 $ 7,000,000
January 1, 2003 through December 31, 2003 $ 9,000,000
January 1, 2004 through December 31, 2004 $10,000,000
January 1, 2005 through September 30, 2005 $12,000,000;
(d) So long as no Default then exists or would be caused
thereby, commencing April 30, 2000, and on each April 30
thereafter subsequent to making the payments required pursuant to
Section 2.7(c) hereof, the Borrower may make additional
distributions, directly or indirectly, to the Limited Partner in
an amount equal to fifty percent (50%) of the Borrower's Annual
Excess Cash Flow for the Borrower's immediately preceding fiscal
year;"
(d) Section 7.7 of the Loan Agreement, Restricted Payments and
Purchases, is hereby further amended by adding the following immediately
before the period at the end of subsection (f) thereof:
"; and
(g) Upon the completion of each of the Masada Acquisition and
the Cencom Acquisition, the Borrower may pay a search and
acquisition fee to Charter
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Communications, Inc. and Charterhouse Group in an amount not to
exceed in the aggregate 1.25% of the purchase price for such
acquisitions."
(e) Section 7.8 of the Loan Agreement, Leverage Ratio, is hereby
amended by deleting the existing table contained in existing Section 7.8
in its entirety and by substituting in lieu thereof the following:
Leverage
"Period Ratio
---------------------------------------------- --------
From October 1, 1996 through December 31, 1997 5.25:1
From January 1, 1998 through June 30, 1998 5.00:1
From July 1, 1998 through December 31, 1998 4.75:1
From January 1, 1999 through June 30, 1999 4.50:1
From July 1, 1999 through December 31, 1999 4.25:1
From January 1, 2000 through December 31, 2000 4.00:1
From January 1, 2001 and thereafter 3.50:1"
(f) 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 in lieu thereof the following:
"Section 7.9 Annualized Operating Cash Flow to Fixed Charges Ratio. As
of the end of each calendar quarter commencing on January 1, 1999 and
continuing until the Maturity Date, the Borrower shall not permit the
ratio of its Annualized Operating Cash Flow for the calendar quarter end
being tested to its Fixed Charges for the four (4) calendar quarters
immediately preceding the calculation date to be less than 1.0 to 1.0."
(g) Section 7.10 of the Loan Agreement, Annualized Operating Cash Flow to
Pro Forma Debt Service, is hereby amended
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by deleting such Section in its entirety and by substituting in lieu thereof
the following:
"Section 7.10 Annualized Operating Cash Flow to Pro Forma Debt Service.
(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 Annualized Operating Cash Flow for the calendar
quarter end being tested in the case of Section 7.10(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 7.10(b) above, to its
Pro Forma Debt Service for the immediately succeeding four (4) calendar
quarters to be less than (x) for all periods ending on or prior to
December 31, 2000, 1.15 to 1.0, and (y) for all periods ending after
December 31, 2000, 1.10 to 1.0."
(h) Section 7.15 of the Loan Agreement, Capital Expenditures, is hereby
amended by deleting such Section in its entirety and by substituting in lieu
thereof the following:
"Section 7.15 Capital Expenditures. The Borrower shall not permit the
aggregate amount of its Capital Expenditures in any period set forth
below to exceed as of the end of such period the sum of (a) the limit for
such period, as set forth below, plus (b) any unexpended portion of the
Capital Expenditures limit set forth below for the immediately preceding
period.
Capital
Period Expenditures Limit
---------------------------------------------- ------------------
From January 1, 1996
through December 31, 1996 $21,500,000
From January 1, 1997 through December 31, 1997 $20,000,000
From January 1, 1998 through December 31, 1998 $15,000,000"
5. Representations and Warranties. The Borrower hereby represents and
warrants in favor of the Agents and the Banks as follows:
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(a) The Borrower has the partnership power and authority (i) to enter into
this Amendment and the Revolving Loan Notes 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 and the Revolving Loan Notes have been duly authorized,
validly executed and delivered by one or more Authorized Signatories of the
Borrower and constitute 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, the Revolving Loan
Notes, 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.
6. Conditions Precedent. The effectiveness of this Amendment is subject
to the prior fulfillment of each of the following conditions:
(a) Counsel to the Administrative Agent shall have received on behalf of
each Bank a duly executed Revolving Loan Note in substantially the form
attached hereto as Exhibit A;
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(b) The Administrative Agent or the Banks, as appropriate, shall have
received each of the following, in form and substance satisfactory to the
Administrative Agent and the Banks:
(i) 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 and
7.15 of the Loan Agreement, after giving effect to this Amendment;
(ii) An opinion of general counsel to the Borrower, addressed to the
Banks and the Administrative Agent and satisfactory to the Administrative
Agent and its special counsel, dated as of the date hereof; and
(iii) All such other documents as the Administrative Agent or any
Bank may reasonably request, certified by an appropriate governmental
official or an Authorized Signatory if so reasonably requested;
(c) The Administrative Agent shall have received from the Borrower for the
account of each of the Banks a duly executed fee letter agreement with respect
to the amendment fee payable to each such Bank (the "Amendment Fee") and the
increase fee (the "Increase Fee") payable to each such Bank.
(d) The Administrative Agent shall have received a duly executed Master
Assignment and Assumption Agreement dated as of the date hereof.
7. Condition Subsequent. On or prior to the date that the Borrower
provides a Request for Advance with respect to the Cencom Acquisition, the
Administrative Agent shall have received from the Borrower a certificate
certifying that not less than $3,000,000 of additional cash equity has been
received by the Borrower.
8. 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.
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9. Governing Law. This Amendment shall be construed in accordance with
and governed by the laws of the State of New York.
10. 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.
11. 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.
12. Loan Documents. This document shall be deemed to be a Loan Document
for all purposes.
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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. (formerly known as LEB Communications,
Inc.), a Delaware corporation
By:
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Its:
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ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC., as
Administrative Agent
By:
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Its:
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CO-AGENTS, DOCUMENTATION
AGENT and BANKS:
TORONTO DOMINION (TEXAS), INC., as a Co-Agent and as a
Bank
By:
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Its:
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20
CREDIT LYONNAIS NEW YORK BRANCH, as Documentation Agent,
a Co-Agent and as a Bank
By:
------------------------------------------------------
Its:
--------------------------------------------------
By:
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Its:
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PNC BANK, NATIONAL ASSOCIATION, as a Co-Agent and as a
Bank
By:
------------------------------------------------------
Its:
--------------------------------------------------
UNION BANK OF CALIFORNIA, N.A. (formerly, Union Bank),
as a Bank
By:
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Its:
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BANQUE PARIBAS, as a Bank
By:
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Its:
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By:
------------------------------------------------------
Its:
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21
ABN AMRO BANK N.V., as a Bank
By:
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Its:
--------------------------------------------------
By:
------------------------------------------------------
Its:
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FLEET BANK, N.A., as a Bank
By:
------------------------------------------------------
Its:
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THE LONG-TERM CREDIT BANK OF JAPAN, LTD., as a Bank
By:
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Its:
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