FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "Amendment") dated as of
the 28th day of October, 1996, by and among Xxxxxxx Communications, Inc., a
Delaware corporation (the "Borrower"); The Toronto-Dominion Bank ("T-D"), PNC
Bank, National Association ("PNC"), NationsBank of Texas, N.A. ("NB"), Union
Bank of California, N.A., Bank of Montreal, The Bank of Nova Scotia, Banque
Nationale de Paris, CIBC Inc., CoreStates Bank, N.A., Dresdner Bank AG, New York
and Grand Cayman Branches, The First National Bank of Maryland, First Hawaiian
Bank, LTCB Trust Company, MeesPierson N.V., Xxxxxx Bank Ltd, Grand Cayman
Branch, Royal Bank of Canada, The Sumitomo Bank, Ltd., Xxx Xxxxxx American
Capital Prime Rate Income Trust, Credit Lyonnais New York Branch and The Bank of
New York Company, Inc. (collectively herein referred to as the "Lenders");
Toronto Dominion (Texas), Inc., as administrative agent for the Lenders (the
"Administrative Agent"), T-D, PNC and NB, in their capacities as arranging
agents for the Lenders (the "Arranging Agents"); PNC, in its capacity as
documentation agent (the "Documentation Agent"); and NB, in its capacity as
syndication agent (the "Syndication Agent" and collectively with the
Administrative Agent, the Documentation Agent and the Arranging Agents referred
to herein as the "Agents"),
W I T N E S S E T H:
WHEREAS, the Borrower, the Agents and the Lenders are parties to that
certain Credit Agreement dated as of June 27, 1996 (the "Credit Agreement"); and
WHEREAS, the Borrower, the Agents and the Lenders have
agreed to amend the Credit Agreement as set forth herein;
NOW THEREFORE, in consideration of the premises set forth above, the
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree that all capitalized terms used herein shall have the
meanings ascribed thereto in the Credit Agreement, and further agree as follows:
1. Amendment to Section 2.7. Section 2.7 of the Credit Agreement,
Repayment, is hereby amended by adding thereto a new Section 2.7(d) as follows:
"(d) Repayments From Garden State Distributions. The Borrower
shall make a repayment of Loans outstanding under the Revolving Loan
Commitment in an amount equal to the aggregate amount of all
distributions received by the
Borrower of any of its Subsidiaries in respect of its partnership
interests in Garden State Cablevision, L.P. (together with accrued
interest on such outstanding Loans and any costs incurred on account of
such repayment under Section 2.10 hereof) on the date of any such
receipt. The Revolving Loan Commitment shall not be deemed to be
reduced solely by virtue of such repayments. To the extent that the
aggregate amount of such distributions exceeds the amount of Loans then
outstanding under the Revolving Loan Commitment, such excess amount
shall be used by the Borrower to make a repayment of principal
outstanding under the Term Loan and applied to the next installment
payments of the Term Loan scheduled to occur thereafter, in order of
maturity."
2. Amendment to Section 7.6. Section 7.6 of the Credit Agreement,
Investments, is hereby amended by deleting subsection (e) thereof in its
entirety and by substituting the following therefor:
"(e) make additional investments in Persons engaged in businesses
directly related to the cable television business as set forth on
Schedule 14 attached hereto (i) in an aggregate amount not to exceed
$50,000,000 so long as the Total Leverage Ratio for either or both of
the two (2) most recently completed fiscal quarters for which financial
statements are required to have been provided to the Lenders in
accordance with Section 6.1 or 6.2 hereof, as applicable, is greater
than or equal to 6.0 to 1, and (ii) in any amount so long as the Total
Leverage Ratio for both such fiscal quarters is less than 6.0 to 1,
provided that, in each such case, the Borrower has provided the
Administrative Agent and the Lenders with calculations specifically
demonstrating the Borrower's pro forma compliance with Sections 7.8,
7.9, 7.10, 7.11, 7.16 and 7.17 hereof, both before and after giving
effect to the proposed investment, and (f) during the 1996 calendar
year (i) make equity investments in Australis Media Limited in an
aggregate amount not to exceed $40,000,000 and (ii) purchase 15% senior
subordinated notes due 2002 of Australis Media Limited from Australis
Media Limited in an aggregate principal amount not to exceed
$40,000,000, provided that, in each such case, the Borrower has
provided the Administrative Agent and the Lenders with calculations
specifically demonstrating the Borrower's pro forma compliance with
Sections 7.8, 7.9, 7.10, 7.11, 7.16 and 7.17 hereof, both before and
after giving effect to the proposed investment."
3. Amendment to Section 7.8. Section 7.8 of the Credit Agreement,
Senior Leverage Ratio, is hereby amended by deleting
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the chart appearing therein in its entirety and substituting the
following therefor:
"Senior
Leverage
Period Ratio
------ -----
From the Agreement Date through
March 30, 1997 5.75:1
From March 31, 1997 through
June 29, 1997 5.50:1
From June 30, 1997 through
December 30, 1997 5.25:1
From December 31, 1997 through
December 30, 1998 5.00:1
From December 31, 1998 through
December 30, 1999 5.00:1
At December 31, 1999 and all
times thereafter 4.50:1"
4. Amendment to Section 7.17. Section 7.17 of the Credit Agreement,
Total Debt to Annualized Operating Cash Flow, is hereby amended by deleting the
chart appearing therein in its entirety and substituting the following therefor:
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"Total
Leverage
Period Ratio
------ -----
From the Agreement Date through
December 30, 1996 7.50:1
From December 31, 1996 through
March 30, 1997 7.25:1
From March 31, 1997 through
June 29, 1997 7.00:1
From June 30, 1997 through
December 30, 1997 6.75:1
From December 31, 1997 through
March 30, 1998 6.50:1
From March 31, 1998 through
December 30, 1998 6.25:1
From December 31, 1998 and all
times thereafter 6.00:1"
5. Amendment to Schedule 14. Schedule 14 to the Credit Agreement,
Additional Permitted Investments, is hereby amended by deleting the existing
Schedule in its entirety and by substituting the attached Schedule 14 in lieu
thereof.
6. Consent to Issuance of Letters of Credit. Notwithstanding the
requirement contained in Section 2.13(a) of the Credit Agreement that all
Letters of Credit have a maturity of not more than one (1) year from the date of
issuance, but otherwise subject to the terms and conditions of the Credit
Agreement, the Agents and the Lenders hereby consent to the issuance by T-D Bank
of Letters of Credit for the account of the Borrower substantially in the forms
attached hereto as Exhibits A, B and C (the "AML Movie Studio Letters of
Credit,") which AML Movie Studio Letters of Credit shall be deemed to be Letters
of Credit issued under and in accordance with the terms of the Credit Agreement
upon the issuance thereof.
7. No Other Amendment or Waiver. Notwithstanding the agreement of the
Administrative Agent, the Agents and the Lenders to the terms and provisions of
this Amendment, the Borrower acknowledges and expressly agrees that this
Amendment is limited to the extent expressly set forth herein and shall not
constitute a modification of the Credit Agreement or a course of dealing at
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variance with the terms of the Credit Agreement (other than as expressly set
forth above) so as to require further notice by the Administrative Agent, the
Agents or the Lenders, or any of them, of its or their intent to require strict
adherence to the terms of the Credit Agreement in the future. All of the terms,
conditions, provisions and covenants of the Credit Agreement and the other Loan
Documents shall remain unaltered and in full force and effect except as
expressly modified by this Amendment.
8. Representations and Warranties. The Borrower hereby represents and
warrants in favor of the each of the Agents and each Lender, as follows:
a. Each representation and warranty set forth in Article 4 of
the Credit Agreement is hereby restated and affirmed as true and correct in all
material respects as of the date hereof, except to the extent previously
fulfilled in accordance with the terms of the Credit Agreement, as amended
hereby, and to the extent relating specifically to the Agreement Date or
otherwise inapplicable;
b. The Borrower has the corporate power and authority to enter
into this Amendment and to do all acts and things as are required or
contemplated hereunder to be done, observed and performed by it;
c. This Amendment has been duly authorized, validly executed
and delivered by Authorized Signatories, and constitutes the legal, valid and
binding obligation of the Borrower enforceable against it in accordance with its
terms, subject, as to enforcement of remedies, to the following qualifications:
(i) an order of specific performance and an injunction are discretionary
remedies and, in particular, may not be available where damages are considered
an adequate remedy at law, and (ii) enforcement may be limited by bankruptcy,
insolvency, liquidation, reorganization, reconstruction and other similar laws
affecting enforcement of creditors' rights generally (insofar as any such law
relates to the bankruptcy, insolvency or similar event of the Borrower); and
d. The execution and delivery of this Amendment, the
Borrower's performance hereunder, the Borrower's incurrence of reimbursement
obligations in respect of the AML Movie Studio Letters of Credit and any
borrowing by the Borrower contemplated in connection with the transactions
contemplated hereby do not and will not require the consent or approval of any
regulatory authority or governmental authority or agency having jurisdiction
over the Borrower, nor be in contravention of or in conflict with the
certificate of incorporation or the by-laws of the Borrower, or the provision of
any statute, judgment, order, indenture,
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instrument, agreement, or undertaking to which the Borrower is party or by which
the Borrower's assets or properties are or may become bound.
9. Conditions Precedent to Effectiveness of Amendment. The
effectiveness of this Amendment is subject to the following:
a. the truth and accuracy of the representations and
warranties contained in Section 8 hereof;
b. receipt by the Administrative Agent of evidence
satisfactory to it that not less than $150,000,000 of additional subordinated
Indebtedness has been incurred by Australis Media Limited;
c. the cancellation and release of the LCI Guaranty and the
LCI Guaranty Backup Facility pursuant to documentation satisfactory to the
Administrative Agent and the payment, in full, of all obligations of the
Borrower arising in respect thereof;
d. the repayment in full of all obligations outstanding in
respect of the Xxxxxxx Australia Loan pursuant to documentation satisfactory to
the Administrative Agent;
e. receipt by T-D Bank of one or more Requests for Issuance of
Letter of Credit with respect to the AML Movie Studio Letters of Credit in form
and substance satisfactory to T-D Bank;
f. receipt by each Lender of an amendment fee in an amount
equal to the product of 0.005 times the aggregate amount of such Lender's
portion of the Commitments, which fees shall be fully earned when due and
non-refundable when paid; and
g. receipt by the Administrative Agent of all other documents
as the Administrative Agent shall reasonably request.
10. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute one and the same instrument.
11. Loan Documents. Each reference in the Credit Agreement or in any
other Loan Document to the term "Credit Agreement" shall hereafter mean and
refer to the Credit Agreement as amended hereby or as the same may hereafter be
amended.
12. Governing Law. This Amendment shall be construed in accordance with
and governed by the laws of the State of New York, without giving effect to any
conflict of laws principles.
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IN WITNESS WHEREOF, the parties hereto cause their respective duly
authorized officers or representatives to execute, deliver and, in the case of
the Borrower, seal this Amendment as of the day and year first above written, to
be effective as of the day and year first above written.
BORROWER: XXXXXXX COMMUNICATIONS, INC., a Delaware
corporation
By:_______________________________________
[CORPORATE SEAL]
Its:________________________________
Attest:___________________________________
Its:________________________________
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC.
By:_______________________________________
Its:________________________________
ARRANGING AGENTS: THE TORONTO-DOMINION BANK
By:_______________________________________
Its:________________________________
PNC BANK, NATIONAL ASSOCIATION
By:_______________________________________
Its:________________________________
NATIONSBANK OF TEXAS, N.A.
By:_______________________________________
Its:________________________________
FIRST AMENDMENT TO CREDIT AGREEMENT
XXXXXXX COMMUNICATIONS, INC.
Signature Page 1
LENDERS: THE TORONTO-DOMINION BANK
By:_______________________________________
Its:________________________________
PNC BANK, NATIONAL ASSOCIATION
By:_______________________________________
Its:________________________________
NATIONSBANK OF TEXAS, N.A.
By:_______________________________________
Its:________________________________
UNION BANK OF CALIFORNIA, N.A.
By:_______________________________________
Its:________________________________
BANK OF MONTREAL
By:_______________________________________
Its:________________________________
THE BANK OF NOVA SCOTIA
By:_______________________________________
Its:________________________________
FIRST AMENDMENT TO CREDIT AGREEMENT
XXXXXXX COMMUNICATIONS, INC.
Signature Page 2
LENDERS:
(continued) BANQUE NATIONALE DE PARIS
By:_______________________________________
Its:________________________________
By:_______________________________________
Its:________________________________
CIBC INC.
By:_______________________________________
Its:________________________________
CORESTATES BANK, N.A.
By:_______________________________________
Its:________________________________
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By:_______________________________________
Its:________________________________
THE FIRST NATIONAL BANK OF MARYLAND
By:_______________________________________
Its:________________________________
FIRST AMENDMENT TO CREDIT AGREEMENT
XXXXXXX COMMUNICATIONS, INC.
Signature Page 3
LENDERS:
(continued) FIRST HAWAIIAN BANK
By:________________________________
Its:_________________________
LTCB TRUST COMPANY
By:________________________________
Its:_________________________
MEESPIERSON N.V.
By:________________________________
Its:_________________________
By:________________________________
Its:_________________________
XXXXXX BANK LTD, GRAND CAYMAN BRANCH
By:________________________________
Its:_________________________
By:________________________________
Its:_________________________
ROYAL BANK OF CANADA
By:________________________________
Its:_________________________
FIRST AMENDMENT TO CREDIT AGREEMENT
XXXXXXX COMMUNICATIONS, INC.
Signature Page 4
LENDERS:
(continued) THE SUMITOMO BANK, LTD.
By:________________________________
Its:_________________________
XXX XXXXXX AMERICAN CAPITAL PRIME RATE
INCOME TRUST
By:________________________________
Its:_________________________
CREDIT LYONNAIS NEW YORK BRANCH
By:________________________________
Its:_________________________
THE BANK OF NEW YORK COMPANY, INC.
By:________________________________
Its:_________________________
FIRST AMENDMENT TO CREDIT AGREEMENT
XXXXXXX COMMUNICATIONS, INC.
Signature Page 5
Schedule 14
(as amended)
Xxxxxxx Communications, Inc. - Investments following
Agreement Date
--------------------------------------------------------------------------
1996 1997
--------------------------------------------------------------------------
Videopole $2,760,000 $10,000,000
--------------------------------------------------------------------------
STARNET 3,000,000 500,000
--------------------------------------------------------------------------
SDI 3,000,000 1,000,000
CAM SYSTEMS 4,600,000 3,500,000
--------------------------------------------------------------------------
LPS-NEWS 3,000,000 3,000,000
--------------------------------------------------------------------------
XXXXXXX ADVERTISING 6,600,000 8,500,000
--------------------------------------------------------------------------
TELESTAR MARKETING 100,000 0
--------------------------------------------------------------------------
Totals: $23,060,000 $26,500,000
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