Exhibit 10.39
[CONFORMED COPY]
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of August 9, 1996 among:
(1) CCC - I, INC., a Delaware corporation ("CCC-I"), PULLMAN TV
CABLE CO., INC., a Washington corporation ("Pullman") and KOOTENAI
CABLE, INC., a Delaware corporation ("Kootenai"; CCC-I, Pullman and
Kootenai are, individually, each a "Borrower" and, collectively, the
"Borrowers");
(2) the lenders (the "Lenders") listed on the
signature pages hereof under the caption "EXISTING LENDERS";
(3) the lenders (the "Retiring Lenders") listed on the
signature pages hereof under the caption "RETIRING LENDERS";
and
(4) CITIBANK, N.A. ("Citibank"), as agent (the
"Agent") for the Lenders.
The Borrowers, certain of the Lenders, the Retiring Lenders, the
Agent and the Managing Agents are parties to a Credit Agreement dated as of
August 4, 1995 (as heretofore modified and supplemented and in effect on the
date hereof, the "Credit Agreement"), providing, subject to the terms and
conditions thereof, for loans to be made by said Lenders to the Borrowers in an
aggregate principal amount not exceeding $525,000,000 at any one time
outstanding. The Retiring Lenders wish to resign as "Lenders" under the Credit
Agreement and the Borrowers, the Lenders and the Agent wish to amend the Credit
Agreement in certain respects. Accordingly, the parties hereto hereby agree as
follows:
Section 1. Definitions. Except as otherwise defined
in this Amendment No. 1, terms defined in the Credit Agreement
are used herein as defined therein.
Section 2. Amendments. Subject to the satisfaction of
the conditions precedent specified in Section 4 below, but
effective as of the date hereof, the Credit Agreement shall be
amended as follows:
A. General. References in the Credit Agreement to
"this Agreement" (and indirect references such as "hereunder",
CCC - I -- Amendment No. 1
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"hereby", "herein" and "hereof") shall be deemed to be references to the Credit
Agreement as amended hereby. References in the Credit Agreement to "the A Notes"
and "the Notes" shall be deemed to include reference to the New Notes under and
as defined in Section 4(B) hereof.
B. Definitions. Section 1.01 of the Credit Agreement shall be
amended by adding the following new definitions (to the extent such definitions
are not presently set forth in said Section 1.01) and amending in their entirety
the following definitions (to the extent such definitions are presently set
forth in said Section 1.01), as follows:
"Amendment Effective Date" means the earliest date as
of which all of the conditions precedent set forth in
Section 4 of Amendment No. 1 shall have been satisfied.
"Amendment No. 1" means Amendment No. 1 hereto dated as
of August 9, 1996.
"Lenders" means the lenders listed on Schedule II hereto under
the caption "EXISTING LENDERS" and each Eligible Assignee that shall
become a party hereto after the Amendment Effective Date pursuant to
Section 9.07.
"Termination Date" means August 31, 1999 or the earlier date of
termination in whole of the Commitments pursuant to Section 2.05 or
6.01.
C. A Advances. Section 2.01 of the Credit Agreement shall be
amended by amending the first sentence thereof to read as follows:
"Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make A Advances to the Borrowers from time to
time on any Business Day during the period from the date hereof until
the Termination Date in an aggregate amount not to exceed at any time
outstanding the amount set forth opposite such Lender's name on Schedule
II hereto or, if such Lender has entered into any Assignment and
Acceptance after the Amendment Effective Date, set forth for such Lender
in the Register maintained by the Agent pursuant to Section 9.07(c), as
such amount may be reduced pursuant to Section 2.05 (such Lender's
'Commitment'), provided that the aggregate amount of the Commitments of
the
CCC - I -- Amendment No. 1
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Lenders shall be in each case deemed used from time to time to the
extent of the aggregate amount of the B Advances then outstanding and
such deemed use of the aggregate amount of the Commitments shall be
applied to the Lenders ratably according to their respective Commitments
(such deemed use of the aggregate amount of the Commitments being a 'B
Reduction')."
D. Commitment Fee. Section 2.04(a) of the Credit Agreement shall
be amended to read as follows:
"(a) Commitment Fee. The Borrowers jointly and severally agree to
pay to the Agent for the account of each Lender a commitment fee on the
average daily unused portion of such Lender's Commitment (determined
without giving effect to any B Reduction) from the Amendment Effective
Date (or, in the case of each Eligible Assignee that becomes a Lender
after the Amendment Effective Date, from the effective date specified in
the Assignment and Acceptance pursuant to which it became a Lender)
until the Termination Date at the rate of (i) 3/8 of 1% per annum during
each period in which the applicable Rate Ratio is greater than or equal
to 5.0:1, and (ii) 1/4 of 1% per annum during each period in which the
applicable Rate Ratio is less than 5.0:1, payable on the last day of
each November, February, May and August during the term of such Lender's
Commitment, commencing on the first such day after the Amendment
Effective Date, and on the Termination Date. Each retroactive change in
the Rate Ratio pursuant to Section 2.07(d) shall be given retroactive
effect in determining the applicable commitment fee rate pursuant to
this Section 2.04(a) for a period of time identical to that given such
retroactive change in the Rate Ratio. If any such retroactive change
occurs in the commitment fee rate payable for a period for which a
Borrower has already paid commitment fees, then any overpayment of
commitment fees by such Borrower resulting therefrom shall be credited
to future commitment fee or other payment obligations of such Borrower
and any underpayment of commitment fees by such Borrower resulting
therefrom shall be paid by such Borrower to the Agent for the account of
the Lenders upon demand by the Agent."
CCC - I -- Amendment No. 1
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E. Repayment of A Advances. Section 2.06 of the Credit Agreement
shall be amended to read as follows:
"SECTION 2.06. Repayment of A Advances. Each Borrower shall repay
the principal amount of each A Advance made to it owing to each Lender
on each of the principal installment dates listed below commencing
November 30, 1999 and ending August 31, 2004 and the amount to be paid
on each such principal repayment installment date shall equal the
product obtained by multiplying (x) the unpaid principal amount of such
A Advance outstanding on the Termination Date by (y) the percentage set
forth below for that principal repayment installment date:
Last day of Last day of Last day of Last day of
Year February May August November
---- -------- --- ------ --------
1999 XXX XXX XXX 4.000%
2000 4.000% 4.000% 4.000% 4.500%
2001 4.500% 4.500% 4.500% 5.250%
2002 5.250% 5.250% 5.250% 5.750%
2003 5.750% 5.750% 5.750% 5.500%
2004 5.500% 5.500% 5.500% XXX
provided, however, that the last such installment shall be in the amount
necessary to repay in full the unpaid principal amount of such A
Advance."
F. Interest on A Advances. Sections 2.07(a)(i) and (ii) of the
Credit Agreement shall be amended to read respectively as follows:
"(i) Base Rate Advances. During such periods as such A Advance is
a Base Rate Advance, a rate per annum equal at all times to the sum of
the Base Rate in effect from time to time plus:
(A) 5/8 of 1% per annum during each period in which the
applicable Rate Ratio is greater than or equal to 6.0:1,
CCC - I -- Amendment No. 1
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(B) 1/2 of 1% per annum during each period in which the
applicable Rate Ratio is less than 6.0:1 and greater than or
equal to 5.5:1,
(C) 1/8 of l% per annum during each period in which the
applicable Rate Ratio is less than 5.5:1 and greater than or
equal to 5.0:1, and
(D) 0% per annum during each period in which the
applicable Rate Ratio is less than 5.0:1,
payable in arrears on the last day of each May, August, November and
February during such periods and on the date such Base Rate Advance
shall be Converted or paid in full.
(ii) Eurodollar Rate Advance. During such periods as such A
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such A Advance to the sum of the
Eurodollar Rate for such Interest Period for such A Advance plus:
(A) 1 and 5/8% per annum during each period in which the
applicable Rate Ratio is greater than or equal to 6.0:1,
(B) 1 and 3/8% per annum during each period in which the
applicable Rate Ratio is less than 6.0:1 and greater than or
equal to 5.5:1,
(C) 1 and 1/8% per annum during each period in which the
applicable Rate Ratio is less than 5.5:1 and greater than or
equal to 5.0:1,
(D) 7/8 of 1% per annum during each period in which the
applicable Rate Ratio is less than 5.0:1 and greater than or
equal to 4.5:1, and
(E) 3/4 of 1% per annum during each period in which the
applicable Rate Ratio is less than 4.5:1,
payable in arrears on the last day of such Interest Period and, if such
Interest Period is greater than three months, on the last day of each
three-month period during such Interest Period."
CCC - I -- Amendment No. 1
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G. Adjusted CD Rate Option. Section 2.07(a) of the Credit
Agreement shall be amended by adding the following new paragraph (iv) thereto:
"(iv) Discontinuation of Adjusted CD Rate Option. Notwithstanding
anything herein or in the other Loan Documents to the contrary, after
the Amendment Effective Date A Advances bearing interest at rates based
upon the Adjusted CD Rate will no longer be available hereunder. In such
connection, after the Amendment Effective Date the Borrower shall not
(1) borrow (or request any A Borrowing of) any Adjusted CD Rate
Advances, (2) continue any Adjusted CD Rate Advances outstanding on the
Amendment Effective Date for subsequent Interest Periods or (3) Convert
any other Type of A Advances into Adjusted CD Rate Advances. Each
Adjusted CD Rate Advance outstanding on the Amendment Effective Date
shall, subject to the terms and conditions hereof, Convert to another
Type of Advance on the last day of the then-current Interest Period
therefor."
H. Mandatory Prepayments. Section 2.10(b) of the Credit Agreement
shall be amended by amending paragraph (i) thereof to read as follows:
"(i) Sales of Assets. Each Borrower shall, on each date on which
such Borrower or any of its Subsidiaries receives any Net Cash Proceeds
from the sale, lease, transfer or other disposition (each, a
"Disposition") of any asset of such Borrower or any such Subsidiary
(other than sales of assets in the ordinary course of business and any
exchange of assets permitted by Section 5.02(e)(iv)), prepay an
aggregate principal amount of the A Advances comprising part of the same
A Borrowings equal to such Net Cash Proceeds (or, if less, the aggregate
unpaid principal amount of all A Advances), together with accrued
interest to the date of such prepayment on the principal amount prepaid
and all amounts then owing under Section 9.04(b) in respect of such
prepayment. Notwithstanding the foregoing, the Borrowers shall not be
required to make a prepayment pursuant to this paragraph (b)(i) with
respect to the Net Cash Proceeds from any Disposition (a "Relevant
Disposition") if (1) the applicable Rate Ratio is less than or equal to
5.0:1 on the date of receipt of such Net Cash Proceeds, (2) such
Borrower advises the Agent at the time the Net Cash Proceeds from such
Relevant Disposition are
CCC - I -- Amendment No. 1
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received that it intends to reinvest such Net Cash Proceeds in
replacement assets pursuant to a transaction permitted under Section
5.02(f) hereof, (3) such Net Cash Proceeds are in fact committed to be
reinvested by such Borrower pursuant to a purchase contract providing
for the acquisition of such replacement assets that is executed by such
Borrower (or any of its Subsidiaries) and the related seller within 180
days from the date of such Relevant Disposition and (4) the acquisition
of such replacement assets occurs within 180 days from the date on which
such purchase contract is so executed and delivered. If at any time
after the occurrence of a Relevant Disposition and prior to the
acquisition of the related replacement assets the 180-day period
provided in clause (3) or (4) of the preceding sentence shall elapse
without execution of the related purchase contract (in the case of said
clause (3)) or the occurrence of the related acquisition (in the case of
said clause (4)), then such Borrower shall immediately prepay the A
Advances in the amount described in the first sentence of this Section
2.10(b)(i)."
I. Representations. Section 4.01(e) of the Credit Agreement shall
be amended by substituting "May 31, 1995" for each reference therein to "May 31,
1994" and by substituting "February 29, 1996" for each reference therein to
"February 28, 1994".
J. Financial Covenants. Sections 5.01(h), (i) and (j) of the
Credit Agreement shall be amended to read as follows:
"(h) Ratio of EBIDT to Debt Service for Total Debt/Pro-
Forma Debt Service Ratio. Maintain, as of the last day of
each Fiscal Period, the ratio of
(i) EBIDT for such Fiscal Period, to
(ii) the aggregate Debt Service for Total Debt for
such Fiscal Period,
of at least 1.15:1 as of each such day that occurs on or before August
31, 1999 and a Pro-Forma Debt Service Ratio for such Borrower of at
least 1.15:1 as of each such day that occurs thereafter.
CCC - I -- Amendment No. 1
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(i) Ratio of Total Debt to EBIDT. Maintain, as of the last day of
each Fiscal Period whose last day occurs during any period set out
below, the ratio of Total Debt as of such last day to EBIDT for such
Fiscal Period of less than the ratio set out below next to such period:
Period Ratio
------ -----
from the date hereof
through 8/31/97 6.25:1
thereafter through 8/31/98 6.00:1
thereafter through 8/31/99 5.50:1
thereafter through 8/31/00 5.00:1
thereafter through 8/31/01 4.50:1
thereafter 4.00:1
(j) Ratio of EBIDT to Interest Expense for Total Debt.
Maintain, as of the last day of each Fiscal Period, the
ratio of
(i) EBIDT for such Fiscal Period, to
(ii) the sum of all amounts payable during such Fiscal
Period by the Borrowers and their Subsidiaries on account of
interest and amortization of debt discount and expense, and
commitment, letter of credit, agency and other fees with respect
to Total Debt,
of at least 1.50:1 for each Fiscal Period ending on or before May 31,
1998, at least 1.75:1 for each Fiscal Period ending after May 31, 1998
and on or before May 31, 1999, and at least 2.00:1 for each Fiscal
Period ending thereafter."
K. Debt Covenant. Section 5.02(b) of the Credit Agreement shall
be amended by substituting "prior to August 31, 2004" for "prior to August 31,
2003" in clause (B) of paragraph (viii) thereof.
L. Sales, Etc., of Assets. Section 5.02(e) of the Credit
Agreement shall be amended to read as follows:
"(e) Sales, Etc. of Assets. Sell, assign, lease,
transfer or otherwise dispose of, or permit any of its
Subsidiaries to sell, assign, lease, transfer or otherwise
dispose of, any of its assets, including (without
CCC - I -- Amendment No. 1
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limitation) substantially all assets constituting the business of a
division, branch or other unit operation, except:
(i) for sales of assets for cash in the ordinary course of
its business,
(ii) for disposition of obsolete equipment no longer needed
in the conduct of such Borrower's or such Subsidiary's business,
(iii) in a transaction authorized by subsection (d) of this
Section 5.02 or
(iv) for sales of fixed assets for cash or in exchange
(by way of trade or the like) for like operating assets; provided
that: (A) the aggregate Asset EBIDT of all such assets so sold or
exchanged by the Borrowers and their Subsidiaries, on a Combined
basis, during, and for, the Fiscal Period then most recently
ended does not exceed 15% of EBIDT for such Fiscal Period; (B)
the sum of the Asset EBIDT Percentages for all such assets so
sold or exchanged by the Borrowers and their Subsidiaries, on a
Combined basis, during the period of five years ending on the
date of the relevant sale or exchange does not exceed 25%; and
(C) each Borrower shall have given the Agent at least 30 days'
prior written notice with a copy to the Agent for delivery to
each Lender of each such sale or exchange together with
sufficient information with a copy to the Agent for delivery to
each Lender to enable the Agent to determine the respective Asset
EBIDT of the assets involved in such sale or exchange. For
purposes of this paragraph (iv):
'Asset EBIDT' means, for any asset for any period, the net
income (or loss) attributable to the operation of such asset for
such period plus the sum of interest expense, depreciation and
amortization expense and provision for income taxes to the extent
deducted in computing such net income (or loss).
'Asset EBIDT Percentage' means, for any asset sold or
exchanged, the ratio (expressed as a percentage) of (1) the Asset
EBIDT of such asset for the Fiscal Period
CCC - I -- Amendment No. 1
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ending on or most recently ended prior to the sale or exchange of
such asset to (2) EBIDT for such Fiscal Period (determined,
however, without giving effect to paragraph (ii) of the
definition of EBIDT with respect to the assets so sold or
exchanged)."
M. Investments. Section 5.02(f) of the Credit Agreement shall
be amended:
(1) by substituting "$50,000,000" for "$40,000,000" in
paragraph (i) thereof; and
(2) by amending paragraph (vi) thereof to read as follows:
"(vi) advances by the Borrowers to their respective Parent
Companies in an aggregate amount not to exceed, for any Fiscal
Quarter, the excess, if any, of (i) the amount permitted to be
dividended by the Borrowers to their respective Parent Companies
pursuant to Section 5.02(g)(iii) for such Fiscal Quarter over
(ii) (A) the aggregate amount of dividends actually distributed
by the Borrowers to their respective Parent Companies for such
Fiscal Quarter pursuant to such Section 5.02(g)(iii) plus (B) the
aggregate amount actually used to redeem the CCC-I Preferred
Stock described in Section 3.01(e) for such Fiscal Quarter
pursuant to Section 5.02(g)(iv);".
N. Dividends. Section 5.02(g) of the Credit Agreement
shall be amended by adding the following paragraph to the end thereof:
"Notwithstanding anything in this Section 5.02(g) or in Section
5.02(f) to the contrary, amounts available in any Fiscal Quarter for
cash dividends pursuant to Section 5.02(g)(iii)(x) and advances pursuant
to Section 5.02(f)(vi) that are not so used in such Fiscal Quarter shall
be available (subject to the proviso to Section 5.02(g)(iii)) for such
cash dividends and advances until the end of the first Fiscal Quarter of
the following Fiscal Year."
O. Schedule II. The Credit Agreement shall be amended
by adding Schedule II hereto as Schedule II thereto.
CCC - I -- Amendment No. 1
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P. Exhibit K. The Credit Agreement shall be amended by amending
Exhibit K thereto to read as set forth on Exhibit K hereto.
Section 3. Representations and Warranties. The Borrowers
represent and warrant to the Lenders that:
(a) the representations and warranties set forth in Section 4.01
of the Credit Agreement (as amended hereby), other than Section 4.01(f)
are correct on the date hereof as if made on and as of the date hereof
(or, if any such representation or warranty is expressly stated in said
Section 4.01 (as so amended) to have been made as of a specific date, as
of such specific date) and as if each reference in said Section 4.01 to
"this Agreement", "the A Notes" and "the Notes" included reference to
this Amendment No. 1 and to the New Notes; and
(b) no event has occurred and is continuing which constitutes an
Event of Default or would constitute an Event of Default but for the
requirement that notice be given or time elapse or both.
Section 4. Conditions Precedent. As provided in Section 2 above,
the amendments to the Credit Agreement set forth in said Section 2 shall become
effective, as of the date hereof, upon the satisfaction of the following
conditions precedent:
A. Execution by All Parties. This Amendment No. 1 shall have
been executed and delivered by each of the parties hereto.
B. Notes and Advances. Each Borrower shall have delivered to the
Agent for each of the Lenders a promissory note of such Borrower in
substantially the form of Exhibit A-1 to the Credit Agreement, dated the
date of the A Notes delivered pursuant to Section 3.01(a) of the Credit
Agreement, payable to the order of such Lender in a principal amount
equal to its Commitment and otherwise duly completed, and each of such
promissory notes (a "New Note") delivered to the Lenders shall
constitute an "A Note" under the Credit Agreement as amended hereby. In
addition, the Borrowers shall have borrowed from, and each of the
Lenders shall have made A Advances to, the Borrowers and
(notwithstanding the provisions of Section 2.10(a) of the
CCC - I -- Amendment No. 1
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Credit Agreement requiring that prepayments be made ratably in
accordance with the principal amounts of the A Advances held by the
Lenders) the Borrowers shall have prepaid A Advances made by the other
Lenders and shall have prepaid the A Advances and B Advances made by the
Retiring Lenders in such amounts as shall be necessary, together with
accrued interest and any amounts payable under Section 9.04(b) of the
Credit Agreement, so that after giving effect to such A Advances and
prepayments, the A Advances (including, without limitation, the Types
and Interest Periods thereof) shall be held by the Lenders pro rata in
accordance with the respective amounts of their Commitments.
C. Documents. The Agent shall have received the
following documents, each of which shall be satisfactory to
the Agent in form and substance:
(1) Corporate Documents. Certified copies of the charter
and by-laws (or equivalent documents) of each of the Borrowers
and their respective Subsidiaries (or, in the alternative, a
certification to the effect that none of such documents has been
modified since delivery thereof pursuant to the Credit Agreement)
and of all corporate authority for the Borrowers (including,
without limitation, board of director resolutions and evidence of
the incumbency of officers for the Borrowers) with respect to the
execution, delivery and performance of this Amendment No. 1 and
the Credit Agreement as amended hereby and the loans under the
Credit Agreement as amended hereby, the New Notes and each other
document to be delivered by the Borrowers from time to time in
connection with the Credit Agreement as amended hereby (and the
Agent and each Lender may conclusively rely on such certificate
until it receives notice in writing from the Borrowers to the
contrary).
(2) Opinions. A favorable opinion of Xxxxx Xxxxxxxxxx &
Xxxxx, counsel for the Borrowers, as to such matters as any
Lender through the Agent may reasonably request; and a favorable
opinion of Milbank, Tweed, Xxxxxx & XxXxxx, special New York
counsel to the Agent.
CCC - I -- Amendment No. 1
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(3) Other Documents. Such other documents as the
Agent or any Lender or special New York counsel to the
Agent may reasonably request.
D. Amendment Fees, Etc. The Borrowers shall have paid to the
Agent all fees agreed to be paid by the Borrowers in connection with
this Amendment No. 1 and the transactions contemplated hereby.
E. Interest; Commitment Fee, Etc. The Borrowers shall have paid:
(1) all interest and other amounts owing in respect of the Advances
owing to the Retiring Lenders, (2) all interest accrued on the A
Advances owing to the Existing Lenders and (3) all commitment fee
payable under Section 2.04(a) of the Credit Agreement, in each case to
the extent accrued to the Amendment Effective Date.
F. Expenses. The Borrowers shall have paid all
accrued fees and expenses of the Agent and CSI (including
the accrued fees and disbursements of counsel to the Agent
and CSI).
Section 5. Retiring Lenders. On the Amendment Effective Date,
upon the repayment of each Retiring Lender's Advances as provided in Section
4(B) hereof and all other amounts owing to such Retiring Lender as provided in
Section 4(E) hereof, each Retiring Lender shall cease to be a Lender (and if
such Retiring Lender is also a Managing Agent, such Retiring Lender shall cease
to be a Managing Agent) for all purposes of the Credit Agreement and the other
Loan Documents.
Section 6. Miscellaneous. Except as herein provided, the Credit
Agreement shall remain unchanged and in full force and effect. This Amendment
No. 1 may be executed in any number of counterparts, all of which taken together
shall constitute one and the same amendatory instrument and any of the parties
hereto may execute this Amendment No. 1 by signing any such counterpart. This
Amendment No. 1 shall be governed by, and construed in accordance with, the law
of the State of New York.
CCC - I -- Amendment No. 1
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed and delivered as of the day and year first above
written.
BORROWERS
----------
CCC-I, INC.
By /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President
and Treasurer
PULLMAN TV CABLE CO., INC.
By /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President
and Treasurer
KOOTENAI CABLE, INC.
By /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President
and Treasurer
AGENT
-----
CITIBANK, N.A.,
as Agent
By /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Attorney-in-Fact
CCC - I -- Amendment Xx. 0
- 00 -
XXXXXXXX XXXXXXX
----------------
XXXXXXXX, N.A.
By /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Attorney-in-Fact
BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION
By /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
THE CHASE MANHATTAN BANK (formerly
named Chemical Bank)
By /s/ Xxxx X. Xxxxx
---------------------------------
Title: Managing Director
CIBC INC.
By /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
LTCB TRUST COMPANY
By /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President
SOCIETE GENERALE
By /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Vice President
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THE SUMITOMO BANK, LIMITED -
CHICAGO BRANCH
By /s/ Xxxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxxx Xxxxx
Title: Joint General Manager
THE SUMITOMO BANK, LIMITED -
U.S. COMMERCIAL BANKING
DEPARTMENT (as successor by
assignment from the Daiwa Bank
Limited)
By /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President and
Regional Manager (East)
By /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President and
Manager
THE TORONTO-DOMINION BANK
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Manager Credit
Administration
THE FIRST NATIONAL BANK OF BOSTON
By /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Director
CREDIT LYONNAIS
CAYMAN ISLANDS BRANCH
By /s/ Xxxx X. Xxxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
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THE NIPPON CREDIT BANK, LTD.
By /s/ Xxxxx X. Xxxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President and
Manager
THE BANK OF TOKYO - MITSUBISHI
TRUST COMPANY
By /s/ Xxxxxxxxx Xxxx, Xx.
--------------------------------
Name: Xxxxxxxxx Xxxx, Xx.
Title: Vice President
CORESTATES BANK, N.A.
By /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
THE DAI-ICHI KANGYO BANK, LTD.,
NEW YORK BRANCH
By /s/ Xxxxx Xxxx
---------------------------------
Name: Xxxxx Xxxx
Title: Vice President
THE SUMITOMO TRUST & BANKING CO.
LTD.
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
Manager, Corporate
Finance Department
BANK OF HAWAII
By /s/ J. Xxxxx Xxxxxxx
---------------------------------
Name: J. Xxxxx Xxxxxxx
Title: Vice President
CCC - I -- Amendment Xx. 0
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XXXXXX XXXXXXXXX XX XXXXX
By /s/ Xxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
Team Leader
By /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Treasurer
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By /s/ Xxxxxxx Xxxx
---------------------------------
Name: Xxxxxxx Xxxx
Title: Senior Vice President
MELLON BANK, N.A.
By /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Assistant Vice President
NATIONAL BANK OF CANADA
By /s/ Xxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
By /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Title: Assistant Vice President
CCC - I -- Amendment Xx. 0
- 00 -
XXXXXXXX XXXXXXX
XXXXXXXXXXX X.X.
By /s/ Xxxx X'Xxxxxx
---------------------------------
Name: Xxxx X'Xxxxxx
Title: Senior Vice President
FLEET NATIONAL BANK
By /s/ Xxxxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Assistant Vice President
CCC - I -- Amendment No. 1
SCHEDULE II
EXISTING LENDERS Commitment
---------------- -----------
Citibank, N.A. $28,000,000
Bank of America National
Trust & Savings Association $38,000,000
The Chase Manhattan Bank $23,000,000
CIBC Inc. $38,000,000
LTCB Trust Company $38,000,000
Societe Generale $38,000,000
The Sumitomo Bank, Limited -
Chicago Branch $28,000,000
The Sumitomo Bank, Limited -
U.S. Commercial Banking Department $15,000,000
The Toronto-Dominion Bank $25,000,000
The First National Bank of Boston $15,000,000
Credit Lyonnais
Cayman Islands Branch $33,000,000
The Nippon Credit Bank, Ltd. $33,000,000
The Bank of Tokyo -
Mitsubishi Trust Company $40,000,000
Corestates Bank, N.A. $15,000,000
The Dai-ichi Kangyo Bank, Ltd.,
New York Branch $15,000,000
The Sumitomo Trust & Banking Co. Ltd. $15,000,000
Bank of Hawaii $10,000,000
Banque Nationale de Paris $25,000,000
The Industrial Bank of Japan, Limited $15,000,000
Mellon Bank, N.A. $23,000,000
National Bank of Canada $15,000,000
Total of Commitments: $525,000,000
EXHIBIT K
CCC-I, INC.
PULLMAN TV CABLE CO., INC.
KOOTENAI CABLE, INC.
COMPLIANCE CERTIFICATE
(Pursuant to Section 5.03 of the
Credit Agreement referred to below)
----------------------
("Preparation Date")
To Each of the Lenders and For Fiscal Quarter
Managing Agents parties ended ____________*
to the Credit Agreement For Fiscal Year
referred to below ended ____________*
and to Citibank, N.A., as
Agent
I, (Insert name) ,
----------------------------------
(Insert title) of CCC-I, Inc., a Delaware
----------------------------------------
corporation ("CCC-I"), (Insert name) ,
----------------------------------
(Insert title) , of Pullman TV Cable Co.,
-------------------------------------
Inc., a Washington corporation ("Pullman"), and
(Insert name) , (Insert
--------------------------------- -----------------
title) , of Kootenai Cable, Inc., a Delaware corporation ("Kootenai" and,
collectively with CCC-I and Pullman, the "Borrowers"), DO HEREBY CERTIFY,
pursuant to Section [5.03(b)] [5.03(d)]** of the Credit Agreement dated as of
August 4, 1995, among the Borrowers, Kootenai Cable, Inc., the Lenders parties
thereto, Citibank, N.A. as agent for the Lenders, and Bank of America, Chemical
Bank, CIBC Inc., LTCB Trust Company, Societe Generale, The Sumitomo Bank,
Limited - Chicago Branch and The Toronto-Dominion Bank, as Managing Agents (said
Agreement, as it has been or may hereafter be amended or otherwise modified from
time to time, being the "Credit Agreement", the terms defined therein being used
herein as therein defined), that we are Financial Officers of the Borrowers
----------------------
* Insert only one date, as applicable, depending on whether the report is
for one of the first three Fiscal Quarters (5.03(b)) or for the Fiscal
Year (5.03(c)).
** Delete as appropriate; ss. 5.03(b) applies where this Certificate is
delivered for one of the first three Fiscal Quarters, and ss. 5.03(d)
applies where this Certificate is delivered for a Fiscal Year.
- 2 -
and that each of the statements set forth below is true and correct:
A. Financial Statement Date: This Certificate is prepared as of
the Preparation Date first above written and is delivered in respect of the
Fiscal Quarter or Fiscal Year ended on the date indicated above (the "Financial
Statement Date") immediately below the Preparation Date.
B. Financial Statements: Enclosed herewith are true and correct
copies of the financial statements for the Financial Statement Date which are
required under and prepared in accordance with Section [5.03(b)][5.03(d)]* of
the Credit Agreement. [Also enclosed herewith is a certificate duly certified by
Deloitte Touche, or other independent certified public accountants of recognized
standing reasonably acceptable to the Majority Lenders, addressed to the Agent
as required under and prepared in accordance with Section 5.03(c) of the Credit
Agreement.]**
C. Subscribers: Enclosed herewith is a true and correct report
updating as at the Preparation Date the information regarding Subscribers
previously furnished to the Lenders as required under and prepared in accordance
with Section 5.03(h) of the Credit Agreement.
D. Work Sheets: Enclosed herewith are true and correct work
sheets detailing the method and setting out the basis and calculations used to
determine the ratios referred to in Section F below.
E. Rate Ratio: Enclosed herewith is a true and correct Rate Ratio
Certificate, prepared in accordance with Section 2.07(c) of the Credit
Agreement.
F. Covenants: The Borrowers hereby represent and warrant that as
of the Financial Statement Date:
1. EBIDT: EBIDT is $______________________.
2. Total Debt: Total Debt is $______________________.
----------
----------------------
* Delete as appropriate; ss. 5.03(b) applies where this Certificate is
delivered for one of the first three Fiscal Quarters, and ss. 5.03(d)
applies where this Certificate is delivered for a Fiscal Year.
** Delete as appropriate; a certificate from the auditor is only required
if this Certificate is delivered for a Fiscal Year.
- 3 -
3. Debt Service: The Debt Service for Total Debt for the most
recently completed Fiscal Period is $_______________.
4. Interest Expense: The sum of all amounts payable for the most
recently completed Fiscal Period for the Borrowers and their Subsidiaries on
account of interest and amortization of debt discount and expense, and
commitment, letter of credit, agency and other fees with respect to Total Debt
is $___.
5. Ratio of EBIDT to Debt Service for Total Debt/Pro-Forma Debt
Service Ratio: The ratio referred to in Section 5.01(h) of the Credit Agreement
is as set out below under the heading "Actual". Such ratio is at least as set
out below under the heading "Covenant".
Actual Covenant
------ --------
1.15:1
The basis of the calculation of the ratio of EBIDT to Debt Service for
Total Debt referred to above under the heading "Actual" is as follows:
(a) EBIDT for the applicable Fiscal Period
($_________________); to
(b) the aggregate Debt Service for Total Debt during
such Fiscal Period ($____________________).
The basis of the calculation of the Pro-Forma Debt Service Ratio
referred to above under the heading "Actual" is as follows:
(a) EBIDT for the applicable four consecutive Fiscal Quarters
just ended ($_______) less the aggregate amount of taxes paid during
such four Fiscal Quarters ($________); to
(b) projected interest expense of all Debt for the succeeding
four Fiscal Quarters ($_______) plus the aggregate principal amounts of
all Debt required to be paid during such four Fiscal Quarters
($________).
6. Ratio of Total Debt to EBIDT: The ratio referred to in Section
5.01(i) of the Credit Agreement is as set out below next to the period
during which such Financial Statement Date occurs under the heading
"Actual". Such ratio is not greater than as is set out below next to the
period during which such Financial Statement Date occurs under the
heading "Covenant".
- 4 -
Period Actual Covenant
------ ------ ---------
From the date hereof
through 8/31/97 6.25:1
thereafter through 8/31/98 6.00:1
thereafter through 8/31/99 5.50:1
thereafter through 8/31/00 5.00:1
thereafter through 8/31/01 4.50:1
thereafter 4.00:1
The basis of the calculation of the ratio referred to above under the
heading "Actual" is as follows:
(a) Total Debt as at the last day of the applicable Fiscal
Period ($___________); to
(b) EBIDT for such Fiscal Period ($___________).
7. EBIDT to Interest Expense: The ratio referred to in Section
5.01(j) of the Credit Agreement is as set out below next to the period
during which such Financial Statement Date occurs under the heading
"Actual". Such ratio is at least as set out below under the heading
"Covenant".
Period Actual Covenant
------ ------ --------
On and before 5/31/98 1.50:1
thereafter through 5/31/99 1.75:1
thereafter 2:00:1
The basis of the calculation of the ratio referred to above under the
heading "Actual" is as follows:
(a) EBIDT for the applicable Fiscal Period ($___________);
to
(b) the sum of all amounts payable during such Fiscal Period on
account of interest and amortization of debt discount and expense, and
commitment, letter of credit, agency and other fees with respect to
Total Debt.
8. Liens: The aggregate principal amount of Debt secured by the
Liens arising in connection with Capital Leases and purchase money
Liens, as referred to in clauses (v) and (vi), respectively, of Section
5.02(a) of the Credit Agreement is as set out below under the heading
"Actual". Such amount is not in excess of the maximum amount referred to
in such Section 5.02(a) as set out below under the heading "Covenant".
Actual Covenant
------ --------
$10,000,000
- 5 -
9. Debt: The aggregate principal amount of Debt referred
to in clauses (iv), (v)(B), (vi) and (vii) of Section 5.02(b) of
the Credit Agreement is as set out below under the heading
"Actual". Such amount is not in excess of the maximum amount
referred to in the proviso to Section 5.02(b).
Actual Covenant
------ --------
$10,000,000
10. Lease Obligations: The aggregate amount of lease obligations
payable in any period of 12 consecutive calendar months, as referred to
in Section 5.02(c) of the Credit Agreement is as set out below under the
heading "Actual". Such amount is not in excess of the maximum amount
referred to in such Section 5.02(c) as set out below under the heading
"Covenant".
Actual Covenant
------ --------
$5,000,000
11. Sale of Assets:
(i) The Asset EBIDT of all fixed assets sold for cash or
exchanged (by way of trade or the like) for like operating assets
pursuant to Section 5.02(e)(iv) of the Credit Agreement during, and for,
the Fiscal Period then most recently ended is as set out below under the
heading "Actual". Such amount is not in excess of the maximum amount
referred to in such Section 5.02(e)(iv) as set out below under the
heading "Covenant".
Actual Covenant
------ --------
The Asset EBIDT of all assets so
sold or exchanged by the Borrowers
and their Subsidiaries, on a
Combined basis, during, and for, the
Fiscal Period then most recently
ended shall not exceed 15% of EBIDT
for such Fiscal Period.
The basis of the calculation of the amount referred to above under the
heading "Actual" is as follows:
(a) Asset EBIDTs of each asset so sold or exchanged:
Asset sold or exchanged Asset EBIDT
----------------------- -----------
No. 1 (describe: _____________) $_____________
No. 2 (describe: _____________) $_____________
No. 3 (describe: _____________) $_____________
[list others sold or exchanged]
- 6 -
(b) EBIDT for such Fiscal Period ($___________) times 0.15
($___________).
(ii) The sum of the Asset EBIDT Percentages for all fixed assets
sold for cash or exchanged (by way of trade or the like) for like
operating assets pursuant to Section 5.02(e)(iv) of the Credit Agreement
during the period of five years ending on the last day of the Fiscal
Quarter then most recently ended is as set out below under the heading
"Actual". Such amount is not in excess of the maximum amount referred to
in such Section 5.02(e)(iv) as set out below under the heading
"Covenant".
Actual Covenant
------ --------
The sum of the Asset EBIDT
Percentages for all such assets so
sold or exchanged by the Borrowers
and their Subsidiaries, on a
Combined basis, during such five
year period does not exceed 25%.
The basis of the calculation of the amount referred to above under the
heading "Actual" is as follows:
(a) Asset EBIDT Percentages of each asset so sold or
exchanged:
Asset sold or exchanged Asset EBIDT Percentage
----------------------- ----------------------
No. 1 (describe: _____________) _____________%
No. 2 (describe: _____________) _____________%
No. 3 (describe: _____________) _____________%
[list others sold or exchanged]
(b) Sum of Asset EBIDT Percentages (___________%).
"Asset EBIDT" means, for any asset for any period, the net income
(or loss) attributable to the operation of such asset for such period
plus the sum of interest expense, depreciation and amortization expense
and provision for income taxes to the extent deducted in computing such
net income (or loss).
"Asset EBIDT Percentage" means, for any asset sold or exchanged,
the ratio (expressed as a percentage) of (1) the Asset EBIDT of such
asset for the Fiscal Period ending on or most recently ended prior to
the sale or exchange of such asset to (2) EBIDT for such Fiscal Period
(determined, however, without giving effect to paragraph (ii) of the
definition of EBIDT with respect to the assets so sold or exchanged).
- 7 -
12. Investments in Other Persons:
(i) The aggregate cost (including cash paid, securities issued
and obligations assumed) with respect to the acquisition by any Borrower
or any of its Subsidiaries from any Person not an Affiliate of such
Borrower or any of its Subsidiaries (other than the ML Media Acquisition
or the Rock Acquisition) of (A) all or substantially all of the stock or
assets of one or more cable television systems operating under a valid
Franchise (or under other authority reasonably acceptable to the
Majority Lenders) or (B) capital stock representing at least a majority
of the Voting Rights of one or more corporations which owns directly or
through one or more other wholly owned corporations all or substantially
all of such assets is as set out below under the heading "Actual". Such
amount is not in excess of the maximum amount referred to in Section
5.02(f)(i) of the Credit Agreement as set out below under the heading
"Covenant".
Actual Covenant
------ --------
$50,000,000
(ii) The aggregate cost (including cash paid, securities issued and
obligations assumed) with respect to the acquisition by the Borrower or
their Subsidiaries from any Person not an Affiliate of the Borrowers or
their Subsidiaries of capital stock representing less than a majority of
the Voting Rights of one or more corporations and capital contributions
by the Borrowers or their Subsidiaries to Minority Entities in which
such Person has an ownership interest is as set out below under the
heading "Actual". Such amount is not in excess of the maximum amount
referred to in Section 5.02(f)(ii) of the Credit Agreement as set out
below under the heading "Covenant".
Actual Covenant
------ --------
$15,000,000
(iii) The amount of advances by the Borrowers to their respective
Parent Companies is as set out below under the heading "Actual". Such amount is
not in excess of the maximum amount referred to in Section 5.02(f)(vi) of the
Credit Agreement as set out below under the heading "Covenant".
Actual Covenant
------ --------
The excess, if any, of (i) the
amount permitted to be dividended by
the Borrowers to their respective
Parent Companies pursuant to Section
5.02(g)(iii) for such Fiscal Quarter
over (ii) (A) the aggregate amount
of dividends actually distributed
- 8 -
by the Borrowers to their respective
Parent Companies for such Fiscal
Quarter pursuant to such Section
5.02(g)(iii) plus (B) the aggregate
amount actually used to redeem the
CCC-I Preferred Stock described in
Section 3.01(e) for such Fiscal
Quarter pursuant to Section
5.02(g)(iv).
The basis of the calculation of the amount referred to above under the
heading "Actual" is as follows:
(a) the amount permitted to be dividended by the Borrowers to
their respective Parent Companies pursuant to Section 5.02(g)(iii) for
the Fiscal Quarter then most recently ended ($_____________) minus
(b) the sum ($_____________) of (A) the aggregate amount of
dividends actually distributed by the Borrowers to their respective
Parent Companies for such Fiscal Quarter pursuant to such Section
5.02(g)(iii) ($_____________) plus (B) the aggregate amount actually
used to redeem the CCC-I Preferred Stock described in Section 3.01(e)
for such Fiscal Quarter pursuant to Section 5.02(g)(iv)
($_____________).
13. Dividends, Etc. The amount of cash dividends paid by
the Borrowers to their respective Parent Companies is as set out
below under the heading "Actual". Such amount is not in excess
of the maximum amount referred to in Section 5.02(g)(iii) of the
Credit Agreement as set out below under the heading "Covenant".
(i) For any Fiscal Quarter of the Borrowers ending on
or prior to the Termination Date:
Actual Covenant
------ --------
75% of Excess Cash Flow for
the Borrowers for the
preceding Fiscal Quarters in
the then-current Fiscal Year
or (if such Fiscal Quarter is
the first Fiscal Quarter of a
Fiscal Year) the preceding
Fiscal Year
minus
-----
aggregate amount used for
cash dividends, redemptions
of outstanding CCC-I
Preferred Stock described in
Section 3.01(e) ("Initial
Preferred Stock") and
advances pursuant to
- 9 -
Sections 5.02(g)(iii)(x),
5.02(g)(iv) and 5.02(f)(vi)
during such preceding Fiscal
Quarters or Fiscal Year, as
the case may be.
The basis of the calculation of the amount available for the Fiscal
Quarter then most-recently ended (the "Relevant Fiscal Quarter")
referred to above under the heading "Actual" is as follows:
(1) If the Relevant Fiscal Quarter is the first Fiscal Quarter
of then-current Fiscal Year:
Excess Cash Flow for the immediately preceding Fiscal
Year ($_____________) times 0.75 ($______________)
minus
-----
the sum ($_____________) of (A) cash dividends paid in
such Fiscal Year ($_____________), (B) redemptions of
outstanding Initial Preferred Stock made in such Fiscal
Year and (C) advances made in such Fiscal Year
($_____________):
$_____________.
(2) If the Relevant Fiscal Quarter is not the first Fiscal Quarter of
the then-current Fiscal Year:
Excess Cash Flow for the Fiscal Quarters in the then-
current Fiscal Year preceding the Relevant Fiscal
Quarter ($_____________) times 0.75: ($_____________)
minus
-----
the sum ($_____________) of (A) cash dividends paid in
such preceding Fiscal Quarters ($_____________), (B)
redemptions of outstanding Initial Preferred Stock made in
such preceding Fiscal Quarters ($_____________) and (C)
advances made in such Fiscal Quarters
($_____________):
$________________.
(ii) For any Fiscal Quarter of the Borrowers ending
after the Termination Date:
Actual Covenant
------ --------
Excess Cash Flow Surplus for the
Borrowers for the preceding Fiscal
Quarters in the then-current Fiscal
- 10 -
Year or (if such Fiscal
Quarter is the first Fiscal
Quarter of a Fiscal Year) the
preceding Fiscal Year
minus
-----
aggregate amount used for
cash dividends, redemptions
of outstanding Initial
Preferred Stock and advances
pursuant to Sections
5.02(g)(iii)(x), 5.02(g)(iv)
and 5.02(f)(vi) during such
preceding Fiscal Quarters or
Fiscal Year, as the case may
be.
The basis of the calculation of the amount available for the Fiscal
Quarter then most-recently ended (the "Relevant Fiscal Quarter")
referred to above under the heading "Actual" is as follows:
(1) If the Relevant Fiscal Quarter is the first Fiscal Quarter
of then-current Fiscal Year:
Excess Cash Flow Surplus for the immediately preceding
Fiscal Year: $_____________
minus
the sum ($_____________) of (A) cash dividends paid in
such Fiscal Year ($_____________), (B) redemptions of
outstanding Initial Preferred Stock made in such Fiscal
Year ($_____________) and (C) advances made in such Fiscal
Year ($_____________):
$_____________.
(2) If the Relevant Fiscal Quarter is not the first Fiscal Quarter of
the then-current Fiscal Year:
Excess Cash Flow Surplus for the Fiscal Quarters in the
then-current Fiscal Year preceding the Relevant Fiscal
Quarter: $_____________
minus
-----
the sum ($_____________) of (A) cash dividends paid in
such preceding Fiscal Quarters ($_____________), (B)
redemptions of outstanding Initial Preferred Stock made in
such preceding Fiscal Quarters ($_____________) and
- 11 -
(C) advances made in such Fiscal Quarters
($_____________):
$________________.
14. Representations and Warranties: The representations and
warranties made by the Borrowers, Century/Holding and Century/Texas contained in
Section 4.01 of the Credit Agreement and in each other Loan Document are true
and correct as though made on and as of such Financial Statement Date.
15. Events of Default: No event has occurred and is
continuing which constitutes an Event of Default or would constitute
an Event of Default but for the requirement that notice be given or
time elapse or both.
IN WITNESS WHEREOF, I have signed this Certificate this _______
day of ____________________________, _____.
CCC-I, INC.
-----------------------------
Title:
(Financial Officer)
PULLMAN TV CABLE CO., INC.
-----------------------------
Title:
(Financial Officer)
KOOTENAI CABLE, INC.
-----------------------------
Title:
(Financial Officer)
