EXHIBIT 10.21
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of July 15, 1999, between
FRONTIERVISION OPERATING PARTNERS, L.P., a limited partnership duly organized
and validly existing under the laws of the State of Delaware (the "Company");
each of the Subsidiaries of the Company identified under the caption "SUBSIDIARY
GUARANTORS" on the signature pages hereto (individually, a "Subsidiary
Guarantor" and, collectively the "Subsidiary Guarantors" and, together with the
Company, the "Obligors"); and THE CHASE MANHATTAN BANK, in its capacity as
Administrative Agent pursuant to authority granted by the Majority Lenders
pursuant to Section 11.04 of the Credit Agreement (as defined below).
The Company, certain lenders, The Chase Manhattan Bank, as
Administrative Agent, X.X. Xxxxxx Securities Inc., as Syndication Agent, and
CIBC Inc., as Documentation Agent, are parties to a Second Amended and Restated
Credit Agreement dated as of December 19, 1997 (as heretofore amended, the
"Credit Agreement"). The Obligors and the Administrative Agent (pursuant to the
authority granted by, and having obtained all necessary consents of, the
Majority Lenders) wish to amend the Credit Agreement in certain respects and,
accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this
Amendment No. 2, terms defined in the Credit Agreement are used herein as
defined therein.
Section 2. Amendments. The Credit Agreement shall be amended
as follows:
Section 2.01. Certain Defined Terms. Section 1.01 of the
Credit Agreement is amended by adding the following new defined terms (to the
extent not already included in said Section 1.01) and inserting the same in the
appropriate alphabetical locations, and amending the following defined terms (to
the extent already included in said Section 1.01) to read in their entirety, as
follows:
"1999 Acquisition Transaction" shall mean the acquisition by
Adelphia pursuant to the Purchase Agreement dated as of February 22,
1999 (the Purchase Agreement") among FrontierVision LP, FVP GP, L.P.,
the Direct and Indirect Limited Partners of FrontierVision LP party
thereto and Adelphia of all the partnership interests in FrontierVision
LP.
"Adelphia" shall mean Adelphia Communications Corporation.
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"Change of Control" shall mean any event that requires the
Company or FrontierVision Capital pursuant to the provisions of the
Senior Subordinated Debt Documents (or any other agreement or
instrument relating to or providing for any other Subordinated
Indebtedness), or that requires FrontierVision Holdings, FrontierVision
Holdings Capital Corporation or FrontierVision Holdings II Capital
Corporation pursuant to the Senior Discount Debt Documents, to redeem
or repurchase, or make an offer to redeem or repurchase, all or any
portion of the Subordinated Indebtedness, or the Senior Discount Debt,
as a result of a change of control (as defined in the Senior
Subordinated Debt Documents or any other agreement or instrument
relating to or providing for any other Subordinated Indebtedness or the
Senior Discount Debt Documents), provided that the term "Change of
Control" shall not include any such event that occurs as a result of
the 1999 Acquisition Transaction.
"Debt Ratio" shall mean, as at any date (but subject in any
event to the provisions of Section 8.10(e) hereof), the ratio of:
(a) the sum of the aggregate amount of all
Indebtedness (other than Junior Subordinated Indebtedness) of
the Company and its Restricted Subsidiaries and all letters of
credit contemplated by Section 8.07(e) hereof, but excluding
all performance bonds contemplated by said Section as at such
date minus, for purposes of Section 8.10(b) only (and not for
purposes of the definition of "Applicable Margin"), for any
date on or before March 30, 2000, $20,000,000 to
(b) the product of EBITDA for the fiscal quarter
ending on, or most recently ended prior to such date times
four.
"Debt Service" shall mean, for any period, the sum, for the
Company and its Restricted Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP), of the following:
(a) in the case of Loans under this Agreement, the aggregate amount of
payments of principal of such Loans that, giving effect to Commitment
reductions or terminations scheduled to be made during such period
pursuant to Section 2.03 hereof, were required to be made pursuant to
Section 3.01 hereof during such period plus (b) in the case of all other
Indebtedness, all regularly scheduled payments or prepayments of
principal of such Indebtedness (including, without limitation, the
principal component of any payments in respect of Capital Lease
Obligations but excluding prepayments of principal in respect of Junior
Subordinated Indebtedness) made or payable during such period plus (c)
all Interest Expense for such period (excluding, however, non-cash
amortization of loan facility fees and other deferred debt costs, in
each case to the extent included in determining Interest Expense for
such period).
"Initial Equityholders" shall mean, collectively, (i) X.X.
Xxxxxx Investment Corp., (ii) 1818 II Cable Corp., (iii) Olympus Cable
Corp., (iv) First Union Capital Partners, Inc., (v) any Control
Affiliate of any of the foregoing entities, (vi) any limited
partnership of which any Control Affiliate of any of the foregoing
entities is the sole general partner (so long as the aggregate equity
interests of FrontierVision LP that shall have been transferred to all
such limited partnerships by any such entity shall not exceed 25% of
the aggregate equity interests held by such entity in FrontierVision
LP) and (vii) following consummation of the 1999 Acquisition
Transaction, Adelphia.
"Interest Expense" shall mean, for any period, the sum, for
the Company and its Restricted Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP), of the
following: (a) all interest in respect of Indebtedness (including,
without limitation, the interest component of any payments in respect
of Capital Lease Obligations but excluding all interest in respect of
Junior Subordinated Indebtedness) accrued or capitalized during such
period (whether or not actually paid during such period) plus (b) the
net amount payable (or minus the net amount receivable) under Interest
Rate Protection Agreements during such period (whether or not actually
paid or received during such period).
"Junior Subordinated Indebtedness" shall mean the Indebtedness
of the Company in respect of junior subordinated notes, in the form
attached hereto as Exhibit J, issued from time to time to Adelphia.
"Subordinated Indebtedness" shall mean, collectively, (i) the
Indebtedness of the Company and FrontierVision Capital in respect of
the senior subordinated notes of the Company and FrontierVision Capital
due 2006 issued pursuant to the Senior Subordinated Debt Indenture and
(ii) the Junior Subordinated Indebtedness."
Section 2.02. EBITDA. Paragraph (b) of the definition EBITDA
in Section 1.01 of the Credit Agreement is hereby amended to read in its
entirety as follows:
"(b) all operating expenses for such period, including,
without limitation, technical, programming, selling and general
administration expenses incurred by the Company and its Restricted
Subsidiaries during such period, but excluding (to the extent included
in operating expenses) depreciation, amortization, Interest Expense,
interest in respect of Junior Subordinated Indebtedness, any non-cash
charges (including, without limitation, non-cash pension expenses and
any Tax Payment Amount for the relevant period), any non-recurring
expenses incurred in connection with the 1999 Acquisition Transaction,
including but not limited to employee severance expenses (provided that
such expenses are recognized in accordance with GAAP prior to the
fiscal year ending December 31, 1999) plus"
Section 2.03. Financial Statements Etc. Section 8.01 (a),
(b) and (f) of the Credit Agreement are hereby amended to read their entirety as
follows:
"(a) as soon as available and in any event within 90 days
after the end of each of the first three quarterly fiscal periods of
each fiscal year of the Company, consolidated statements of income,
changes in partners' capital and cash flows of the Company and its
Subsidiaries (and, separately stated, for the Company and its
Restricted Subsidiaries) for such period and for the period from the
beginning of the respective fiscal year to the end of such period, and
the related consolidated balance sheets of the Company and its
Subsidiaries (and, separately stated, for the Company and its
Restricted Subsidiaries) as at the end of such period, setting forth in
each case in comparative form the corresponding consolidated figures
for the corresponding periods in the preceding fiscal year (except
that, in the case of balance sheets, such comparison shall be to the
last day of the prior fiscal year), accompanied by a certificate of a
Senior Officer, which certificate shall state that said consolidated
financial statements fairly present the consolidated financial
condition and results of operations of the Company and its Subsidiaries
(or the Company and its Restricted Subsidiaries, as the case may be),
in each case in accordance with generally accepted accounting
principles, consistently applied, as at the end of, and for, such
period (subject to normal year-end audit adjustments), provided that
the requirements of this Section 8.01(a) with respect to financial
statements of the Company and its Subsidiaries may be satisfied by
delivery by the Company (in accordance with this Section 8.01(a)) of
the Company's quarterly report filed on Form 10-Q with the Securities
and Exchange Commission;
(b) as soon as available and in any event within 120 days
after the end of each fiscal year of the Company, consolidated
statements of income, changes in partners' capital and cash flows of
the Company and its Subsidiaries (and, separately stated, for the
Company and its Restricted Subsidiaries) for such fiscal year and the
related consolidated balance sheets of the Company and its Subsidiaries
(and, separately stated, for the Company and its Restricted
Subsidiaries) as at the end of such fiscal year, setting forth in each
case in comparative form the corresponding consolidated figures for the
preceding fiscal year, accompanied by an opinion thereon of independent
certified public accountants of recognized national standing, which
opinion shall state that said consolidated financial statements fairly
present the consolidated financial condition and results of operations
of the Company and its Subsidiaries (or the Company and its Restricted
Subsidiaries, as the case may be) as at the end of, and for, such
fiscal year in accordance with generally accepted accounting
principles, and a statement of such accountants to the effect that, in
making the examination necessary for their opinion, nothing came to
their attention that caused them to believe that the Company was not in
compliance with Sections 8.07, 8.08, 8.09 or 8.10 hereof as at the end
of such fiscal year, insofar as such Sections relate to accounting
matters in accordance with generally accepted accounting principles,
consistently applied, as at the end of, and for, such fiscal year,
provided that the requirements of this Section 8.01(b) with respect to
financial statements of the Company and its Subsidiaries may be
satisfied by delivery by the Company (in accordance with this Section
8.01(b)) of the Company's annual report filed on Form 10-K with the
Securities and Exchange Commission;
(f) concurrently with the delivery of financial statements
referred to in paragraphs (a) and (b) above, a Quarterly Officer's
Report as at the end of such periods;"
Section 2.04. Indebtedness. Section 8.07 of the Credit
Agreement is hereby amended by deleting the word "and" at the end of paragraph
(e) thereof, adding the word "and" at the end of paragraph (f) thereof and by
adding new paragraph (g) at the end thereof to read in its entirety as follows:
"(g) Junior Subordinated Indebtedness."
Section 2.05. Subordinated Indebtedness; Other Equity
Interests. Section 8.13(b) of the Credit Agreement is hereby amended by adding
the following paragraph at the end thereof to read in its entirety as follows:
"Notwithstanding the foregoing, the Company may make payments
in respect of principal and interest on Junior Subordinated
Indebtedness if at the time of such payments and after giving effect
thereto (i) the Debt Ratio shall not exceed 5.00 to 1, and (ii) at the
time of such payments and after giving effect thereto no Default shall
have occurred and be continuing."
Section 2.06. Events of Default. Sections 9(m)(ii) and (iii)
of the Credit Agreement shall be amended to read in their entirety as follows:
"(ii) at any time prior to the consummation of the 1999
Acquisition Transaction, either Xxxxx Xxxxxx or Xxxx X. Xxx shall, for
any reason, cease to be actively involved in the day to day management
and operation of the Company and its Subsidiaries (and Persons with
equivalent knowledge and experience in the cable television industry
reasonably acceptable to the Majority Lenders are not appointed to
replace one or both of the them within 90 days thereof); or
"(iii) prior to a Qualified Public Offering, either (x) the
Initial Equityholders shall cease to own, collectively, on a
fully-diluted basis (in other words, giving effect to the exercise of
any warrants, options and conversion and other rights), equity
interests representing at least 51% of the aggregate fair market value
(or, if greater, the aggregate liquidation value) of the equity
interests of all classes of FrontierVision LP or (y) Xxxxx Xxxxxx or
Xxxx X. Xxx shall sell, transfer, hypothecate or otherwise dispose of
more than 50% of their direct or indirect economic interest in
FrontierVision LP (other than any transfer to the spouse of either of
such individuals, to his immediate family members, to trusts for the
benefit of such spouse or immediate family members or pursuant to the
1999 Acquisition Transaction); or"
Section 2.07. Exhibits. The Credit Agreement shall be
amended by adding Exhibit J thereto to read in its entirety as Exhibit J hereto.
Section 3. Miscellaneous. Except as herein provided, the
Credit Agreement shall remain unchanged and in full force and effect. This
Amendment No. 2 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. 2 by signing any such
counterpart. This Amendment No. 2 shall be governed by, and construed in
accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 2 to be duly executed and delivered as of the day and year first
above written.
FRONTIERVISION OPERATING
PARTNERS, L.P.
By: FrontierVision Holdings, L.P., as general partner
of FrontierVision Operating Partners, L.P.
By: FrontierVision Partners, L.P., as general partner of
FrontierVision Holdings, L.P.
By: FVP GP, L.P., as general partner of
FrontierVision Partners, L.P.
By: FrontierVision Inc., as general
partner of FVP GP, L.P.
By____________________________
Title:
SUBSIDIARY GUARANTORS
By its signature below each Subsidiary Guarantor (i) consents
to the foregoing Amendment No. 2 and confirms that the obligations of the
Company under the Credit Agreement as herein amended and under the Notes (if
any) and in respect of Pari Passu Obligations are entitled to the benefits of
the Subsidiary Guarantee Agreement executed by each Subsidiary Guarantor,
respectively, (and shall constitute "Guaranteed Obligations" (as defined in such
Subsidiary Guarantee Agreement) under and for all purposes of such Subsidiary
Guarantee Agreement) and (ii) together with the Administrative Agent (acting
with the consent of the Majority Lenders under the Credit Agreement) agrees that
references in such Subsidiary Guarantee Agreement to the "Credit Agreement"
shall be deemed to be references to the Credit Agreement as amended herein.
FRONTIERVISION CAPITAL FRONTIERVISION CABLE NEW ENGLAND, INC.
CORPORATION
By____________________________ By____________________________
Title: Title:
ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK,
as Administrative Agent
By____________________________
Title:
EXHIBIT J
[Form of Junior Subordinated Note]
Junior Subordinated Note of
FrontierVision Operating Partners, L.P.
due ___________, _____
$------------ ------------, ----
New York, New York
FrontierVision Operating Partners, L.P., a limited partnership
duly organized and validly existing under the laws of the State of Delaware (the
"Maker"), for value received, hereby promises to pay to [________] (the "Payee")
the principal sum of [AMOUNT IN WORDS] ($___________) on ___________, ____ [not
to be earlier than one year after the latest maturity of all Loans under the
Credit Agreement], subject to the terms and conditions hereinafter set forth.
Section 1. Payment. The Maker shall pay the principal of this
Junior Subordinated Note in immediately available funds at the offices of the
Payee at ________________________ or at such other place as the Payee shall
designate in writing.
If any principal of this Junior Subordinated Note shall become
due and payable on any date other than a business day at the place of payment,
the time for the payment thereof shall be extended to the immediately succeeding
business day.
Notwithstanding anything to the contrary herein contained, the
Maker may make payments of principal hereunder only at such times and to the
extent permitted under the Credit Agreement. As used herein, the term "Credit
Agreement" shall mean, collectively, (i) the Second Amended and Restated Credit
Agreement dated as of December 19, 1997, between the Maker, certain lenders, The
Chase Manhattan Bank as Administrative Agent, X.X. Xxxxxx Securities Inc. as
syndication agent and CIBC Inc. as documentation agent, and (ii) any extension,
renewal, increase, modification or restatement thereof, or any agreement
refinancing any of the indebtedness thereunder, in each case as the same shall
from time to time be successively extended, renewed, increased, modified,
restated or refinanced.
Section 2. Interest. This Junior Subordinated Note shall bear
interest at the rate of [a market interest rate, subject to approval of the
Administrative Agent], which interest shall be payable only at such times and to
the extent permitted by the Credit Agreement.
Section 3. Prepayment. The Maker may prepay this Junior
Subordinated Note, at any time in whole or in part without penalty or premium,
provided that no such prepayment shall be made to the extent not expressly
permitted under the Credit Agreement.
Section 4. Subordination. Anything in this Junior Subordinated
Note to the contrary notwithstanding, the indebtedness evidenced by this Junior
Subordinated Note shall be subordinate and junior in right of payment, to the
extent and in the manner hereinafter set forth, to all indebtedness or other
liabilities of the Maker outstanding from time to time including, without
limitation, (x) the Maker's obligation to principal, interest and other amounts
under the Credit Agreement, and (y) any interest accruing after the commencement
of any proceedings referred to in clause (ii) below, whether or not such
interest is an allowed claim in such proceeding (all such indebtedness or other
liabilities and interest being herein called "Senior Indebtedness"):
(i) The holders of Senior Indebtedness shall be entitled to
receive payment in full in cash of all amounts constituting Senior
Indebtedness before the Payee is entitled to receive any payment on
account of this Junior Subordinated Note, provided that the Maker may
make, and the Payee shall be entitled to receive and retain from time
to time, payments and prepayments in respect of the principal and
interest of this Junior Subordinated Note to the extent permitted under
Sections 1, 2 or 3 above.
(ii) In the event of any insolvency or bankruptcy proceedings,
and any receivership, liquidation, reorganization or other similar
proceedings in connection therewith, relative to the Maker or to its
creditors, as such, or to its property, and in the event of any
proceedings for voluntary liquidation, dissolution or other winding up
of the Maker, whether or not involving insolvency or bankruptcy, then
the holders of Senior Indebtedness shall be entitled to receive payment
in full of all amounts constituting Senior Indebtedness before the
Payee is entitled to receive, or make any demand for, any payment on
account of this Junior Subordinated Note, and to that end the holders
of Senior Indebtedness shall be entitled to receive for application in
payment thereof any payment or distribution of any kind or character,
whether in cash or property or securities.
(iii) If any payment or distribution of any character, whether
in cash, securities or other property, in respect of this Junior
Subordinated Note shall (despite these subordination provisions) be
received by the Payee before all Senior Indebtedness shall have been
paid in full in cash, such payment or distribution shall be held in
trust for the benefit of, and shall be paid over or delivered to, the
holders of Senior Indebtedness (or their representatives), ratably
according to the respective aggregate amounts remaining unpaid thereon,
to the extent necessary to pay all Senior Indebtedness in full.
No present or future holder of Senior Indebtedness shall be
prejudiced in its right to enforce subordination of this Junior Subordinated
Note by any act or failure to act on the part of the Maker or by any act or
failure to act, in good faith on the part of such holder or any trustee or agent
for such holder. The foregoing provisions are solely for the purpose of defining
the relative rights of the holders of Senior Indebtedness on the one hand, and
the Payee on the other hand, and nothing herein shall impair, as between the
Maker and the Payee, the obligation of the Maker, which is unconditional and
absolute, to pay to the Payee the principal hereof in accordance with the terms
hereof, nor shall anything herein prevent the Payee from exercising all remedies
otherwise permitted by applicable law in respect hereof, subject to the rights,
if any, under this Junior Subordinated Note of holders of Senior Indebtedness to
receive cash, property or securities otherwise payable or deliverable to the
Payee.
Section 5. Subrogation. The Payee shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness until the principal of, interest on, and other amounts owing
pursuant to, the Senior Indebtedness shall be paid in full in cash. For purposes
of such subrogation, no payments or distributions to the holders of Senior
Indebtedness of any cash, property or securities to which the Payee would be
entitled except for the provisions of Section 4, and no payments over pursuant
to the provisions of Section 4 to the holders of Senior Indebtedness by the
Payee, shall, as between the Maker, its creditors other than holders of Senior
Indebtedness, and the Payee, be deemed to be a payment or distribution by the
Maker to or on account of the Senior Indebtedness.
Section 6. Defaults. If after payment in full in cash of the
Senior Indebtedness, any payment is not made when due hereunder, the Payee may
declare all amounts owing under this Junior Subordinated Note due and payable,
provided that if after repayment in full of the Senior Indebtedness, any
payments of Senior Indebtedness shall at any time be rescinded or otherwise must
be returned by the holder of any Senior Indebtedness, such demand, if made,
shall be automatically rescinded.
THIS JUNIOR SUBORDINATED NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
By: FrontierVision Partners, L.P., as general partner of
FrontierVision Holdings, L.P.
By: FVP GP, L.P., as general partner of
FrontierVision Partners, L.P.
By: FrontierVision Inc., as general
partner of FVP GP, L.P.
By______________________
Title:
