EXHIBIT 10.40
[CONFORMED COPY]
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of August 9, 1996 among:
(1) CCC - II, INC., a Delaware corporation (the
"Borrower");
(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 managing agent
(the "Managing Agent").
The Borrower, certain of the Lenders, the Retiring Lenders, the
Co-Agents and the Managing Agent are parties to a Credit Agreement dated as of
June 30, 1994 (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 Borrower in an aggregate
principal amount not exceeding $350,000,000 at any one time outstanding. The
Retiring Lenders wish to resign as "Lenders" under the Credit Agreement and the
Borrower, the Lenders and the Managing 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", "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.
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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 8.07.
"Pro-Forma Debt Service Ratio" means, as of the last day of any
Fiscal Quarter, the ratio of (i) EBIDT of the Borrower and its
Subsidiaries for the four consecutive Fiscal Quarters just ended less
the aggregate amount of taxes paid by any of them during such four
Fiscal Quarters to (ii) the sum of (A) projected interest expense of all
Debt of the Borrower and its Subsidiaries for the succeeding four Fiscal
Quarters (calculated using the weighted average of interest rates at the
time of calculation and at the principal outstanding at the time of
calculation after giving effect to any scheduled payments of principal
during such four Fiscal Quarters) plus (B) the aggregate principal
amounts of all Debt required to be paid during the same succeeding four
Fiscal Quarters by the Borrower and its Subsidiaries.
"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 Borrower 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
CCC - II -- Amendment No. 1
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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 Managing Agent pursuant to Section 8.07(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 Lenders shall be 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 Borrower agrees to pay to the Managing
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 the
Borrower has already paid commitment fees, then any overpayment of
commitment fees by the Borrower resulting therefrom shall be credited to
future commitment fee or other payment obligations of the Borrower and
any underpayment of commitment fees by the Borrower resulting therefrom
shall be paid by the Borrower to the Managing Agent for the account of
the Lenders upon demand by the Managing Agent."
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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. The 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 2.500%
2000 2.500% 2.500% 2.500% 5.000%
2001 5.000% 5.000% 5.000% 5.000%
2002 5.000% 5.000% 5.000% 6.250%
2003 6.250% 6.250% 6.250% 6.250%
2004 6.250% 6.250% 6.250% 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) 1/2 of 1% per annum during each period in which the
applicable Rate Ratio is greater than or equal to 5.5:1,
(B) 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
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(C) 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 3/8% per annum during each period in which the
applicable Rate Ratio is greater than or equal to 5.5:1,
(B) 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,
(C) 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
(D) 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."
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
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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. The Borrower shall, on each date on which
it 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 the 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 8.04(b) in respect of such prepayment. Notwithstanding the
foregoing, the Borrower 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) the Borrower advises the Managing Agent at the
time the Net Cash Proceeds from such Relevant Disposition are 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 the
Borrower pursuant to a purchase contract providing for the acquisition
of such replacement assets that is executed by the 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 the Borrower shall immediately prepay the A Advances in the amount
described in the first sentence of this Section 2.10(b)(i)."
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I. Representations. Section 4.01(e) of the Credit
Agreement shall be amended to read as follows:
"(e) The Consolidated and consolidating balance sheet of the
Borrower and its Subsidiaries as at May 31, 1995, and the related
Consolidated and consolidating statements of income and cash flows of
the Borrower and its Subsidiaries for the Fiscal Year then ended,
accompanied by an opinion of Deloitte & Touche, independent public
accountants, and the Consolidated and consolidating balance sheet of the
Borrower and its Subsidiaries as at February 28, 1996, and the related
Consolidated and consolidating statements of income and cash flows of
the Borrower and its Subsidiaries for the nine months then ended, duly
certified by the chief financial officer of the Borrower, copies of
which have been furnished to each Lender, fairly present, subject, in
the case of said balance sheet as at February 28, 1996, and said
statements of income and cash flows for the nine months then ended, to
year-end audit adjustments, the Consolidated and consolidating financial
condition of the Borrower and its Subsidiaries as at such date and the
Consolidated and consolidating results of the operations of the Borrower
and its Subsidiaries for the period ended on such date, all in
accordance with generally accepted accounting principles consistently
applied, and since May 31, 1995 there has been no Material Adverse
Change."
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 the Borrower of at least
1.15:1 as of each such day that occurs thereafter.
(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:
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Period Ratio
------ -----
from the date hereof
through 5/31/98 6.00:1
thereafter through 5/31/99 5.75:1
thereafter through 5/31/00 5.50:1
thereafter through 5/31/01 5.25:1
thereafter through 5/31/02 5.00:1
thereafter 4.50:1
(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 Borrower and its 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 May 31,
2002" 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 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 the Borrower's or such
Subsidiary's business,
CCC - II -- Amendment No. 1
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(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 Borrower and its Subsidiaries, on a Consolidated
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 Borrower and its Subsidiaries, on a
Consolidated basis, during the period of five years ending on the
date of the relevant sale or exchange (excluding, however, the
exchange of the Borrower's cable television systems in Brunswick,
Georgia, Owensboro, Kentucky and Wauwatosa, Wisconsin for the
cable television system in Colorado Springs, Colorado) does not
exceed 25%; and (C) the Borrower shall have given the Managing
Agent at least 30 days' prior written notice with a copy to the
Managing Agent for delivery to each Lender of each such sale or
exchange together with sufficient information with a copy to the
Managing Agent for delivery to each Lender to enable the Managing
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 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 by amending paragraph (vi) thereof to read as follows:
CCC - II -- Amendment No. 1
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"(vi) advances by the Borrower to Century/Holding in an
amount not to exceed, for any Fiscal Quarter, the excess, if any,
of (i) the amount permitted to be dividended by the Borrower to
Century/Holding pursuant to Section 5.02(g)(iii) for such Fiscal
Quarter over (ii) the aggregate amount of dividends actually
distributed by the Borrower to Century/Holding for such Fiscal
Quarter pursuant to such Section 5.02(g)(iii); and".
N. Dividends, Etc. Section 5.02(g) of the Credit Agreement shall
be amended:
(1) by substituting "May 31, 1998" for "May 31, 1996"
in paragraph (iii)(x) thereof; and
(2) 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)(y)
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.
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
Borrower represents and warrants 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;
CCC - II -- Amendment No. 1
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(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. The Borrower shall have delivered to the
Managing Agent for each of the Lenders a promissory note of the 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 Borrower shall have borrowed from, and each of the Lenders
shall have made A Advances to, the Borrower and (notwithstanding the
provisions of Section 2.10(a) of the Credit Agreement requiring that
prepayments be made ratably in accordance with the principal amounts of
the A Advances held by the Lenders) the Borrower 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 8.04(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 Managing Agent shall have received
the following documents, each of which shall be satisfactory
to the Managing Agent in form and substance:
(1) Corporate Documents. Certified copies of the
charter and by-laws (or equivalent documents) of each
of the Borrower and its Subsidiaries (or, in the
alternative, a certification to the effect that none of
such documents has been modified since delivery thereof
CCC - II -- Amendment No. 1
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pursuant to the Credit Agreement) and of all corporate authority
for the Borrower (including, without limitation, board of
director resolutions and evidence of the incumbency of officers
for the Borrower) 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 Borrower from time to time in connection with
the Credit Agreement as amended hereby (and the Managing Agent
and each Lender may conclusively rely on such certificate until
it receives notice in writing from the Borrower to the contrary).
(2) Opinions. A favorable opinion of Xxxxx Xxxxxxxxxx &
Xxxxx, counsel for the Borrower, as to such matters as any Lender
through the Managing Agent may reasonably request; and a
favorable opinion of Milbank, Tweed, Xxxxxx & XxXxxx, special New
York counsel to the Managing Agent.
(3) Other Documents. Such other documents as the
Managing Agent or any Lender or special New York
counsel to the Managing Agent may reasonably request.
D. Amendment Fees, Etc. The Borrower shall have paid to the
Managing Agent all fees agreed to be paid by the Borrower in connection
with this Amendment No. 1 and the transactions contemplated hereby.
E. Interest; Commitment Fee, Etc. The Borrower 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 Borrower shall have paid all accrued fees and
expenses of the Managing Agent and CSI (including the accrued fees and
disbursements of counsel to the Managing 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 Co-Agent, such Retiring Lender shall
CCC - II -- Amendment No. 1
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cease to be a Co-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 - II -- 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.
THE BORROWER
CCC - II, INC.
By /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President
and Treasurer
MANAGING AGENT
CITIBANK, N.A.,
as Managing Agent
By /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Attorney-in-Fact
CCC - II -- Amendment No. 1
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EXISTING LENDERS
CITIBANK, 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
CCC - II -- Amendment No. 1
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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
CCC - II -- Amendment Xx. 0
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XXX XXXX, NATIONAL ASSOCIATION
By /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
THE BANK OF TOKYO - MITSUBISHI
TRUST COMPANY
By /s/ Xxxxxxxxx Xxxx, Xx.
---------------------------------
Name: Xxxxxxxxx Xxxx, Xx.
Title: Vice President
THE SUMITOMO TRUST & BANKING CO.
LTD.
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and
Manager, Corporate
Finance Department
BANK OF HAWAII
By /s/ J. Xxxxx Xxxxxxx
---------------------------------
Name: J. Xxxxx Xxxxxxx
Title: Vice President
MELLON BANK, N.A.
By /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Assistant Vice President
RETIRING LENDERS
NATIONSBANK, N.A.
By /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
CCC - II -- Amendment No. 1
SCHEDULE II
EXISTING LENDERS Commitment
---------------- ----------
Citibank, N.A. $57,000,000
Bank of America National
Trust & Savings Association $23,000,000
The Chase Manhattan Bank $23,000,000
CIBC Inc. $23,000,000
LTCB Trust Company $23,000,000
Societe Generale $23,000,000
The Sumitomo Bank, Limited -
Chicago Branch $23,000,000
The Sumitomo Bank, Limited -
U.S. Commercial Banking Department $15,000,000
The Toronto-Dominion Bank $23,000,000
The First National Bank of Boston $13,000,000
Credit Lyonnais
Cayman Islands Branch $23,000,000
PNC Bank, National Association $23,000,000
The Bank of Tokyo -
Mitsubishi Trust Company $23,000,000
The Sumitomo Trust & Banking Co. Ltd. $15,000,000
Bank of Hawaii $10,000,000
Mellon Bank, N.A. $10,000,000
Total of Commitments: $350,000,000
EXHIBIT K
CCC - II, INC.
COMPLIANCE CERTIFICATE
(Pursuant to Section 5.03 of the
Credit Agreement referred to below)
______________________
("Preparation Date")
To Each of the Lenders For Fiscal Quarter
parties to the Credit ended____________*
Agreement referred to For Fiscal Year
below, Bank of America National ended_____________*
Trust and Savings Association, Chemical Bank,
CIBC Inc., Credit Lyonnais Cayman Island
Branch, The First National Bank of Boston, LTCB
Trust Company, The Mitsubishi Bank, Limited
(acting through its New York Branch), PNC Bank,
National Association, Societe Generale, The
Sumitomo Bank, Limited - Chicago Branch and The
Toronto-Dominion Bank, as Co-Agents, and to
Citibank, N.A., as Managing Agent
I, (Insert name) ,
----------------------------------
(Insert title) of CCC - II, Inc., a
-------------------------------------
Delaware corporation (the "Borrower"), DO HEREBY CERTIFY, pursuant to Section
[5.03(b)] [5.03(d)]** of the Credit Agreement dated as of June 30, 1994, among
the Borrower, the Lenders parties thereto, Bank of America National Trust and
Savings Association, Chemical Bank, CIBC Inc., Credit Lyonnais Cayman Island
Branch, The First National Bank of Boston, LTCB Trust Company, The Mitsubishi
Bank, Limited (acting through its New York Branch), PNC Bank, National
Association, Societe Generale, The Sumitomo Bank, Limited - Chicago Branch and
The Toronto- Dominion Bank, as Co-Agents, and Citibank, N.A., as Managing Agent
for the Lenders (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
--------
* 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(c)
applies where this Certificate is delivered for a Fiscal Year.
- 2 -
used herein as therein defined), that I am a Financial Officer of the Borrower
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(c)]* 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
Managing 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 2.06(c) of the Credit
Agreement.
F. Covenants: The Borrower hereby represents and warrants 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(c)
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 period
of the most recently completed four consecutive Fiscal Quarters is
$____________________.
4. Interest Expense: The sum of all amounts payable for the
period of the most recently completed four consecutive Fiscal Quarters
for the Borrower and its 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
($________).
6. Ratio of Total Debt to EBIDT: The ratio referred to in Section
5.01(i) of the Credit Agreement is as set out below next to the period
during which such Financial Statement Date occurs under the heading
"Actual". Such ratio is not greater than as is set out below next to the
period during which such Financial Statement Date occurs under the
heading "Covenant".
- 4 -
Period Actual Covenant
------ ------ --------
From the date hereof
through 5/31/98 6.00:1
thereafter through 5/31/99 5.75:1
thereafter through 5/31/00 5.50:1
thereafter through 5/31/01 5.25:1
thereafter through 5/31/02 5.00:1
thereafter 4.50:1
The basis of the calculation of the ratio referred to above under the
heading "Actual" is as follows:
(a) Total Debt as at such date ($___________); to
(b) EBIDT as at such date ($_______________).
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
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)(vii) as set out below under the heading
"Covenant".
Actual Covenant
------ --------
$10,000,000
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
- 5 -
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 Borrower
and its Subsidiaries, on a
Consolidated 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: _____________) $_____________
[list others sold or exchanged]
(b) EBIDT for such Fiscal Period ($___________) 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
- 6 -
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 Borrower
and its Subsidiaries, on a
Consolidated basis, during such five
year period (excluding, however, the
exchange of the Borrower's cable
television systems in Brunswick,
Georgia, Owensboro, Kentucky and
Wauwatosa, Wisconsin for the cable
television system in Colorado
Springs, Colorado) 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 the Borrower
or any Subsidiary from any Person not an Affiliate of the Borrower or
any Subsidiary 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".
Actual
------
(ii) The aggregate cost (including cash paid, securities issued and
obligations assumed with respect to the acquisition by the Borrower or
any Subsidiary from any Person not an Affiliate of the Borrower or any
Subsidiary of capital stock representing less than a majority of the
Voting Rights of one or more corporations and capital contributions by
the Borrower or any Subsidiary 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
------ --------
$15,000,000
(iii) The amount of advances by the Borrower to Century/Holding is as
set out below under the heading "Actual". Such amount is not in excess
of the maximum amount referred to in Section 5.02(f)(vi) of the Credit
Agreement as set out below under the heading "Covenant".
Actual Covenant
------ --------
The excess, if any, of (i) the
amount permitted to be dividended by
the Borrower to Century/Holding
pursuant to Section 5.02(g)(iii) for
such Fiscal Quarter over (ii) the
aggregate amount of dividends
actually distributed by the Borrower
to Century/Holding for such Fiscal
Quarter pursuant to such Section
5.02(g)(iii).
The basis of the calculation of the amount referred to above under the
heading "Actual" is as follows:
- 8 -
(a) the amount permitted to be dividended by the Borrower to
Century/Holding pursuant to Section 5.02(g)(iii) for the Fiscal Quarter
then most recently ended ($_____________) minus
(b) the aggregate amount of dividends actually distributed by the
Borrower to Century/Holding for such Fiscal Quarter pursuant to such
Section 5.02(g)(iii) ($_____________).
13. Dividends, Etc. The amount of cash dividends paid by
the Borrower to Century/Holding 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) The aggregate amount of cash dividends paid during the
period commencing on the date hereof and ending on May 31, 1998,
$250,000,000 (not including any cash dividends declared and paid
during such period to the extent permitted under Section
5.02(g)(iii)(y)):
Actual Covenant
------ --------
$250,000,000
(ii) For any Fiscal Quarter of the Borrower ending on
or prior to the Termination Date:
Actual Covenant
------ --------
75% of Excess Cash Flow for
the Borrower for the
preceding Fiscal Quarters in
the then-current Fiscal Year
or (if such Fiscal Quarter is
the first Fiscal Quarter of a
Fiscal Year) the preceding
Fiscal Year
minus
-----
aggregate amount used for
cash dividends and advances
pursuant to Sections
5.02(g)(iii)(y) and
5.02(f)(vi) during such
preceding Fiscal Quarters or
Fiscal Year, as the case may
be.
The basis of the calculation of the amount available for the Fiscal
Quarter then most-recently ended (the "Relevant Fiscal Quarter")
referred to above under the heading "Actual" is as follows:
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(1) If the Relevant Fiscal Quarter is the first Fiscal Quarter
of then-current Fiscal Year:
Excess Cash Flow for the immediately preceding Fiscal
Year ($_____________) times 0.75 ($______________)
minus
the sum ($_____________) of (A) cash dividends paid in
such Fiscal Year ($_____________) and (B) advances made in
such Fiscal Year ($_____________):
$-------------.
(2) If the Relevant Fiscal Quarter is not the first Fiscal Quarter of
the then-current Fiscal Year:
Excess Cash Flow for the Fiscal Quarters in the then-
current Fiscal Year preceding the Relevant Fiscal
Quarter ($_____________) times 0.75: ($_____________)
minus
the sum ($_____________) of (A) cash dividends paid in
such preceding Fiscal Quarters ($_____________) and (B)
advances made in such Fiscal Quarters
($-------------):
$----------------.
(iii) For any Fiscal Quarter of the Borrower ending
after the Termination Date:
Actual Covenant
------ --------
Excess Cash Flow Surplus for
the Borrower 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 and advances
pursuant to Sections
5.02(g)(iii)(y) and
5.02(f)(vi) during such
preceding Fiscal Quarters or
Fiscal Year, as the case may
be.
- 10 -
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 ($_____________) and (B) advances made in
such Fiscal Year ($_____________):
$-------------.
(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 ($_____________) and (B)
advances made in such Fiscal Quarters
($-------------):
$----------------.
13. Representations and Warranties: The representations and
warranties made by any Loan Party 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.
14. 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.
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IN WITNESS WHEREOF, I have signed this Certificate this _____ day
of____________________, [19__] [20__].
CCC - II, INC.
-----------------------------
Title:
(Financial Officer)
