AMENDMENT NO. 3
AMENDMENT NO. 3, dated as of July 1, 1999 (this "Amendment"), to the
Fourth Amended and Restated Credit Agreement, dated as of December 21, 1998, by
and among Insight Communications Company, L.P., the Lenders party thereto, CIBC
Inc. and Fleet Bank, N.A., as Co-Agents, and The Bank of New York, as Agent and
as Issuing Bank (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement").
RECITALS
I. Capitalized terms used herein and not defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
II. The Borrower has proposed to engage in a series of transactions as
follows:
A. Corporate Restructuring. The Borrower will undergo a
corporate restructuring pursuant to which holders of partnership
interests in the Borrower would exchange those interests for shares of
common stock of Insight Communications Company, Inc., a Delaware
corporation ("Insight Holdings"), resulting in the Borrower being a
direct or indirect wholly-owned subsidiary of Insight Holdings
(collectively, the "Corporate Restructuring").
B. IPO. Immediately after or concurrently with the Corporate
Restructuring, Insight Holdings will consummate an initial public
offering of shares of its common stock (the "IPO").
C. Employee Loans. The Borrower has represented to the Agent
and the Lenders that it has existing, non-contingent obligations to
certain of its employees (the "Vested Employees"). Substantially
simultaneously with the Corporate Restructuring and the IPO, the
Vested Employees will be given shares of common stock of Insight
Holdings in satisfaction of such obligations. The Borrower has
represented to the Agent and the Lenders that the Vested Employees
will have to treat the receipt of such shares as "ordinary income" for
income tax purposes. The Borrower desires to give each Vested Employee
the option of obtaining a loan from the Borrower in an amount up to
the federal, state and local income tax liability of such Vested
Employee attributable to its receipt of such shares.
III. In connection with the foregoing, the Borrower has requested that
the Agent agree to amend the Credit Agreement upon the terms and conditions
contained herein, and the Agent is willing so to agree.
Accordingly, in consideration of the Recitals and the terms and
conditions hereinafter set forth, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Borrower and the Agent hereby agree as follows:
Insight Communications Company, L.P. - Amendment No.3
1. Section 1.1 of the Credit Agreement is amended by adding the
following paragraph to the end thereof:
Each of the following terms shall have the meaning set forth
in Amendment No. 3, dated as of July 1, 1999, to the Credit Agreement
("Amendment No. 3"):
"Corporate Restructuring"
"Insight Holdings"
"IPO"
2. Section 1.1 of the Credit Agreement is amended by adding the
following defined terms thereto in alphabetical order:
"Control Group": collectively, Knafel and his Family Group,
Willner and his Family
Group and Kim D. Kelly and her Family Group.
"Knafel": as defined in Section 9.1(n).
"Willner": as defined in Section 9.1(n).
3. On the fourth business day following the IPO, each of the following
shall occur both simultaneously and automatically:
(a) The definition of "Applicable Percentage" contained in
Section 1.1 of the Credit Agreement is amended by replacing the table
set forth therein with the following table:
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Insight Communications Company, L.P. - Amendment No.3
Applicable Percentage
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Pricing Level ABR Eurodollar Commitment Fee
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Pricing Level I 0.750% 2.000% 0.375%
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Pricing Level II 0.375% 1.625% 0.375%
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Pricing Level III 0.125% 1.375% 0.250%
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Pricing Level IV 0.000% 1.250% 0.250%
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Pricing Level V 0.000% 1.125% 0.250%
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Pricing Level VI 0.000% 1.000% 0.250%
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(b) The following definitions contained in Section 1.1 of the
Credit Agreement are amended in their entirety to read as follows:
"Pricing Level": Pricing Level I, Pricing Level II,
Pricing Level III, Pricing Level IV, Pricing Level V or
Pricing Level VI, as applicable.
"Pricing Level I": any time when the Leverage Ratio
is greater than 5.50:1.00.
"Pricing Level II": any time when the Leverage Ratio
is greater than 5.00:1.00 but less than or equal to
5.50:1.00.
"Pricing Level III": any time when the Leverage
Ratio is greater than 4.50:1.00 but less than or equal to
5.00:1.00.
"Pricing Level IV": any time when the Leverage Ratio
is greater than 4.00:1.00 but less than or equal to
4.50:1.00.
"Pricing Level V": any time when the Leverage Ratio
is greater than 3.50:1.00 but less than or equal to
4.00:1.00.
"Pricing Level VI": any time when the Leverage Ratio
is less than or equal to 3.50:1.00.
(c) Section 7.11(c) of the Credit Agreement is amended and
restated in its entirety as follows:
(c) Leverage Ratio. Maintain as of any day during
the periods set forth below, a Leverage Ratio of not more
than the ratios set forth below:
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Period Ratio
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Effective Date through June 30, 2000 6.00:1.00
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July 1, 2000 through December 31, 2000 5.50:1.00
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Insight Communications Company, L.P. - Amendment No.3
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January 1, 2001 through December 31, 2001 5.00:1.00
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January 1, 2002 through December 31, 2002 4.50:1.00
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January 1, 2003 and thereafter 4.00:1.00
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4. Section 8.5(d) of the Credit Agreement is amended and restated in
its entirety as follows:
(d) the following:
(i) loans to Vested Employees, in an aggregate
principal amount not in excess of $20,000,000 at any one time
outstanding, provided that (A) no such loan to a Vested Employee shall
be in a sum in excess of an amount equal to the number of shares of
common stock of Insight Holdings received by such Vested Employee at
the time of the IPO multiplied by the offering price per share thereof
in the IPO multiplied by 45.0%, and (B) each such loan shall at all
times be (1) evidenced by a promissory note of the relevant Vested
Employee, and (2) made and maintained in accordance with Regulation U
of the Board of Governors of the Federal Reserve System, and
(ii) expense advances on behalf of Affiliates (other
than Insight Holdings and its subsidiaries), in an aggregate
outstanding principal amount not to exceed $5,000,000 at any one time;
5. Section 9.1(n) of the Credit Agreement is amended by inserting the
following immediately before the phrase "any one or more of the following shall
occur":
(T) the IPO shall not have occurred within one business day after the
Corporate Restructuring, (U) at any time after the Corporate
Restructuring, the Borrower shall cease to be, directly or indirectly,
a wholly-owned Subsidiary of Insight Holdings, (V) any of the shares
of capital stock of the Borrower shall be subject to any Lien (other
than Liens by operation of law in the ordinary course of business of
Insight Holdings), (W) Insight Holdings shall not have contributed at
least $70,000,000 to the Borrower, in the form of equity capital from
the proceeds of the IPO, on or before the fourth business day
following the IPO, (X) the Borrower shall not have prepaid the Loans
by at least $70,000,000 on or before the fourth business day following
the IPO, (Y) at any time after the Corporate Restructuring, the
Control Group shall fail to (1) beneficially own shares of the issued
and outstanding common stock of Insight Holdings representing at least
51.0% of the voting interests of all shareholders of Insight Holdings,
voting as a single class, free and clear of all Liens (other than by
operation of law) or (2) have the ability to elect a majority of the
board of directors of Insight Holdings (subject to existing
obligations of the Control Group to Vestar Capital Partners III, L.P.)
to cause the election of not fewer than two directors thereof
designated by Vestar Capital Partners III, L.P., or (Z) at any time
before the Corporate Restructuring
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Insight Communications Company, L.P. - Amendment No.3
6. Paragraphs 1 through 5 hereof shall not be effective until such
time as (a) the Borrower shall have paid to the Agent, for the account of each
Lender that executes and delivers this Amendment to the Agent on a timely
basis, an amendment fee in an amount equal to 0.05% of the Commitment Amount of
such Lender, and (b) Required Lenders and each of the Guarantors shall have
consented hereto in writing.
7. The Borrower hereby (a) reaffirms and admits the validity and
enforceability of each Loan Document and all of its obligations thereunder, (b)
agrees and admits that it has no defense to or offset against any such
obligation, and (c) represents and warrants that, as of the date of the
execution and delivery hereof by the Borrower and assuming the effectiveness of
all of the provisions of this Amendment, no Event of Default has occurred and
is continuing, and that each of the representations and warranties made by it
in the Credit Agreement is true and correct in all material respects with the
same effect as though such representation and warranty had been made on such
date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case such representations and warranties
shall have been true and correct on and as of such earlier date.
8. In all other respects, the Loan Documents shall remain in full
force and effect, and no amendment in respect of any term or condition of any
Loan Document shall be deemed to be an amendment in respect of any other term
or condition contained in any Loan Document.
9. This Amendment may be executed in any number of counterparts all of
which, when taken together, shall constitute one agreement. In making proof of
this Amendment, it shall only be necessary to produce the counterpart executed
and delivered by the party to be charged.
10. THIS AMENDMENT IS BEING EXECUTED AND DELIVERED IN, AND IS INTENDED
TO BE PERFORMED IN, THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND
ENFORCEABLE IN ACCORDANCE WITH, AND BE GOVERNED BY, THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
INSIGHT COMMUNICATIONS COMPANY, L.P.
By: ICC ASSOCIATES, L.P.,
the sole general partner thereof
By: INSIGHT COMMUNICATIONS, INC.,
the sole general partner thereof
By:
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Insight Communications Company, L.P. - Amendment No.3
Name:
Title:
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Insight Communications Company, L.P. - Amendment No.3
THE BANK OF NEW YORK,
individually, as Issuing Bank and as Agent
By:
Name:
Title:
7
Insight Communications Company, L.P. - Amendment No.3
CIBC WORLD MARKETS CORP.,
individually and as Co-Agent
By:
Name:
Title:
8
Insight Communications Company, L.P. - Amendment No.3
FLEET BANK, N.A.,
individually and as Co-Agent
By:
Name:
Title:
9
Insight Communications Company, L.P. - Amendment No.3
BANK OF MONTREAL
By:
Name:
Title:
10
Insight Communications Company, L.P. - Amendment No.3
BANKBOSTON, N.A.
By:
Name:
Title:
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Insight Communications Company, L.P. - Amendment No.3
PNC BANK, NATIONAL ASSOCIATION
By:
Name:
Title:
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Insight Communications Company, L.P. - Amendment No.3
BANKERS TRUST COMPANY
By:
Name:
Title:
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Insight Communications Company, L.P. - Amendment No.3
acknowledged and consented to:
INSIGHT FINANCE CORPORATION
By:
Name:
Title:
INSIGHT HOLDINGS OF OHIO, LLC
By:
Name:
Title:
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