[EXECUTION COPY]
FIRST AMENDMENT TO CREDIT AGREEMENT
AND LIMITED WAIVER
THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND LIMITED WAIVER, dated as of
December 30, 1996 (this "Amendment and Waiver"), to the Existing Credit
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Agreement referred to below, is entered into by and among CABLE TV FUND 14-A,
LTD., a Colorado limited partnership (the "Borrower"), the various financial
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institutions parties hereto (collectively, the "Lenders"), and THE BANK OF NOVA
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SCOTIA ("Scotiabank") as the agent (in such capacity, the "Agent") for the
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Lenders.
W I T N E S S E T H:
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WHEREAS, the Borrower, the Lenders and the Agent have heretofore entered
into that certain Credit Agreement, dated as of July 21, 1994 (together with all
Exhibits, Schedules and Attachments thereto, in each case as amended or
otherwise modified prior to the date hereof, being collectively referred to
herein as the "Existing Credit Agreement");
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WHEREAS, the Borrower has requested the Lenders and the Agent to amend the
Existing Credit Agreement in certain respects as set forth below in connection
with (i) including as a "Loan" under the Credit Agreement a loan to be made to
the Borrower on the First Amendment Effective Date (as defined below) by
Scotiabank in the principal amount of $4,700,000 and (ii) the proposed sale of
the Turnersville Cable System scheduled to occur in the First Quarter of the
1997 Fiscal Year;
WHEREAS, the Borrower has also requested the Lenders and the Agent to waive
the Borrower's compliance with certain provisions of the Credit Agreement to
permit the Borrower to (i) use the proceeds from the $4,700,000 Loan to repay a
General Partner Advance and (ii) subject to the consummation of the sale of the
Turnersville Cable System, make a cash distribution to the limited partners of
the Borrower of sale proceeds in excess of $50,000,000;
WHEREAS, the Lenders and the Agent are willing, on the terms and conditions
set forth below, to amend the Existing Credit Agreement in certain respects as
provided herein below (the Existing Credit Agreement, as amended pursuant to the
terms of this Amendment and Waiver, being referred to as the "Credit
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Agreement"); and
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WHEREAS, the Lenders and the Agent are willing, on the terms and conditions
set forth below, to grant the limited waivers to the Credit Agreement requested
by the Borrower;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the Borrower, the Lenders and the Agent hereby agree as
follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. The following terms (whether or not
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underscored) when used in this Amendment and Waiver, including its preamble and
recitals, shall, except where the context otherwise requires, have the following
meanings (such meanings to be equally applicable to the singular and plural form
thereof):
"Agent" is defined in the preamble.
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"Amendment and Waiver" is defined in the preamble.
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"Borrower" is defined in the preamble.
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"Credit Agreement" is defined in the fourth recital.
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"Existing Credit Agreement" is defined in the first recital.
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"First Amendment" is defined in Subpart 4.1.
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"First Amendment Effective Date" is defined in Subpart 4.1.
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"Lenders" is defined in the preamble.
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"Scotiabank" is defined in the preamble.
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SUBPART 1.2. Other Definitions. Terms for which meanings are provided in
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the Existing Credit Agreement are, unless otherwise defined herein or the
context otherwise requires, used in this Amendment and Waiver with such meanings
provided therein.
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PART II
AMENDMENTS TO THE
EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the First Amendment
Effective Date, and in reliance upon the representations and warranties made
herein and (if any) in each other agreement furnished to the Agent and/or any of
the Lenders pursuant to the terms hereof or in connection herewith, the parties
hereto hereby agree that the Existing Credit Agreement is hereby amended in
accordance with this Part II. Except as expressly so amended or modified by
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this Amendment and Waiver, the Existing Credit Agreement and each other Loan
Document shall continue in full force and effect in accordance with their
respective terms.
SUBPART 2.1. Amendments to Article I ("DEFINITIONS AND ACCOUNTING TERMS")
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of the Existing Credit Agreement. Article I of the Existing Credit Agreement is
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hereby amended in accordance with Subparts 2.1.1 and 2.1.2.
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SUBPART 2.1.1. Section 1.1 ("Defined Terms") of the Existing Credit
Agreement is hereby amended by inserting the following definitions in the
appropriate alphabetical order:
"First Amendment" means the First Amendment to Credit Agreement and
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Limited Waiver, dated as of December 30, 1996, among the Borrower, the
Lenders parties thereto and the Agent.
"First Amendment Effective Date" is defined in Subpart 4.1 of the
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First Amendment.
SUBPART 2.1.2. Section 1.1 ("Defined Terms") of the Existing Credit
Agreement is hereby further amended as follows:
(a) The definition of "Conversion Date Amount" is hereby deleted in
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its entirety.
(b) The definition of "Term Loan" is hereby amended in its entirety
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to read as follows:
"Term Loan" means, with respect to each Lender other than
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Scotiabank, the term loan which was, pursuant to Section 3.1 of this
Agreement as such Section was in effect immediately prior to the First
Amendment Effective Date, deemed to have been made by such Lender on
the Conversion Date as a result of the automatic conversion on such
date of such Lender's then outstanding Revolving Loans, and, with
respect to
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Scotiabank means, collectively, the term loan deemed made by it on the
Conversion Date and the Loan made by it on the First Amendment
Effective Date.
SUBPART 2.2. Amendment to Article II ("COMMITMENTS, BORROWING PROCEDURES
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AND NOTES") of the Existing Credit Agreement. The first sentence of Section 2.6
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("Notes") of the Existing Credit Agreement is hereby amended in its entirety
to read as follows:
Each Lender's Loans (other than Loans made by Scotiabank) shall be
evidenced by a Note payable to the order of such Lender in a maximum
principal amount equal to such Lender's Percentage of the original
Commitment Amount, and Scotiabank's Loans (including the Loan made by it on
the First Amendment Effective Date) shall be evidenced by a Note payable to
the order of Scotiabank in a maximum principal amount equal to the sum of
(i) Scotiabank's Percentage of the original applicable Commitment Amount
and (ii) $4,700,000 (the principal amount of the Loan made to the Borrower
by Scotiabank on the First Amendment Effective Date).
SUBPART 2.3. Amendment to Article III ("CONVERSION, REPAYMENTS,
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PREPAYMENTS, INTEREST AND FEES") of the Existing Credit Agreement. Section 3.1
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("Conversion, Repayments, and Prepayments") of the Existing Credit Agreement is
hereby amended in its entirety to read as follows:
SECTION 3.1 Repayments and Prepayments of Term Loans. The Borrower
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shall on the Stated Maturity Date and on each Quarterly Payment Date
occurring on or during any period set forth below, make a scheduled
repayment of the aggregate outstanding principal amount, if any, of all
Term Loans in an amount equal to the amount set forth below opposite the
Stated Maturity Date or such Quarterly Payment Date, as applicable (as such
amounts may have otherwise been reduced pursuant to this Agreement):
03/31/1997 through (and
including) 01/31/1998 $1,588,125
03/31/1998 through (and
including) 01/31/1999 $2,646,875
03/31/1999 through (and
including) 01/31/2000 $3,705,625
03/31/2000 through (and
including) 01/31/2001 $4,764,375
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03/31/2001 through (and
including) 01/31/2002 $5,293,750
03/31/2002 $6,352,500
Stated Maturity Date $6,352,500, or the then
outstanding principal amount of
all Term Loans, if different.
Prior to the Stated Maturity Date, the Borrower
(a) may, from time to time on any Business Day, make a voluntary
prepayment, in whole or in part, of the outstanding principal amount
of any Term Loans; provided, however, that
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(i) any such prepayment shall be made pro rata among Loans
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of the same type and, if applicable, having the same Interest
Period of all Lenders;
(ii) no such prepayment of any Fixed Rate Loan may be made
on any day other than the last day of the Interest Period for
such Loan;
(iii) all such voluntary prepayments shall require at least
three but no more than five Business Days' prior notice to the
Agent in the case of Fixed Rate Loans, and at least one but no
more than five Business Days' prior notice to the Agent in the
case of Base Rate Loans; and
(iv) all such voluntary partial prepayments shall be in an
aggregate minimum amount of $l,000,000 and an integral multiple
of $l00,000; and
(b) shall, immediately upon any acceleration of the Stated
Maturity Date of any Loans pursuant to Section 8.2 or Section 8.3,
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repay all Loans, unless, pursuant to Section 8.3, only a portion of
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all Loans is so accelerated.
Each voluntary prepayment of Term Loans made pursuant to the foregoing
clause (a) shall be applied, to the extent of such prepayment, in the
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inverse order of the scheduled repayments of Term Loans set forth above in
this Section 3.1. Each prepayment of any Term Loans
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made pursuant to this Section shall be without premium or penalty, except
as may be required by Section 4.4.
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SUBPART 2.4. Amendments to Article VII ("COVENANTS") of the
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Existing Credit Agreement. Article VII of the Existing Credit
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Agreement is hereby amended in accordance with Subparts 2.4.1 and
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2.4.2.
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SUBPART 2.4.1. Clause (a) of Section 7.2.4 ("Financial Condition") of the
Existing Credit Agreement is hereby amended in its entirety to read as follows:
(a) Its Leverage Ratio at any time during the periods set forth below
to be greater than the ratio set forth opposite such periods:
Period Maximum Leverage Ratio
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4/1/95 - 3/31/97 4.5:1
4/1/97 and Thereafter 3.5:1.
Additionally, if the Borrower disposes of either the Turnersville Cable
System or the Naperville Cable System, the Borrower shall not permit its
Leverage Ratio at any time thereafter to be greater than (i) 3.75:1, in the
case of a disposition of the Turnersville Cable System, or (ii) 3.0:1, in
the case of a disposition of the Naperville Cable System.
SUBPART 2.4.2. Clause (b) of Section 7.2.10 ("Asset Dispositions, etc.")
of the Existing Credit Agreement is hereby amended in its entirety to read as
follows:
(a) the resulting transaction consists of a sale of the Turnersville
Cable System or the Naperville Cable System and, after giving effect to
such transaction (and, if necessary, to the repayment of Loans with the
proceeds thereof), the Borrower's Leverage Ratio in effect after such
disposition is less than (i) 3.75:1, in the case of a sale of the
Turnersville Cable System, or (ii) 3.0:1, in the case of a sale of the
Naperville Cable System; or
SUBPART 2.5. Amendments to Article X ("MISCELLANEOUS PROVISIONS") of the
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Existing Agreement. Section 10.11.1 ("Assignments") of the Existing Credit
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Agreement is hereby amended by deleting the amount of "$80,000,000" in each of
the two places such amount appears in the proviso to the first sentence of such
Section and by inserting in each such place the amount of "$84,700,000".
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SUBPART 2.6. Amendments to Schedules to the Existing Credit Agreement.
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Subject to, and effective upon, the consummation of the sale of the Turnersville
Cable System contemplated to occur prior to the end of the first Fiscal Quarter
of the 1997 Fiscal Year pursuant to that certain Purchase and Sale Agreement,
dated as of March 28, 1996, between the Borrower and Lenfest Atlantic, Inc., the
Schedules to the Existing Credit Agreement are hereby amended to delete all
references to the Turnersville Cable System.
SUBPART 2.7. Amendment to Schedule II to the Existing Credit Agreement.
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Schedule II to the Existing Credit Agreement is hereby amended in its entirety
to read as set forth on Annex I attached hereto.
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PART III
LIMITED WAIVERS
Effective on (and subject to the occurrence of) the First Amendment
Effective Date and the modification of the Existing Credit Agreement in
accordance with Part II of this Amendment and Waiver, and in reliance upon the
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representations and warranties made herein and (if any) in each other agreement
furnished to the Agent and/or any of the Lenders pursuant to the terms hereof or
in connection herewith, the Lenders hereby agree to grant the limited waivers
set forth in this Part III. Except as expressly so modified by the limited
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waivers set forth in this Part III, the Credit Agreement and each other Loan
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Document shall continue in full force and effect in accordance with their
respective terms.
SUBPART 3.1. Limited Waiver of Section 7.2.6 ("Restricted Payments") of
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the Credit Agreement. Compliance by the Borrower with the provisions of Section
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7.2.6 of the Credit Agreement is hereby waived through (and including) the end
of the first Fiscal Quarter of the 1997 Fiscal Year to the extent (and only to
the extent) necessary to permit the Borrower to, subject to the consummation of
the sale of the Turnersville Cable System in accordance with Section 7.2.10 of
the Credit Agreement (as well as to the repayment of the Loans as contemplated
in the following proviso) , make a one-time cash distribution to the limited
partners of the Borrower in an aggregate amount not to exceed that amount of the
aggregate sale proceeds resulting from such sale which are in excess of
$50,000,000; provided, that the foregoing limited waiver shall terminate and an
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immediate Event of Default shall be deemed to have occurred pursuant to Section
8.1.3 of the Credit Agreement and/or Section 8.1.1 of the Credit Agreement, as
the case may be, if either (X) the Borrower's consummation of the sale of the
Turnersville Cable System is in
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any way not in accordance with the terms and conditions of Section 7.2.10 of the
Credit Agreement, or (y) the Borrower fails to contemporaneously with (or
immediately following) the consummation of the sale of the Turnersville Cable
System, make a prepayment of the Loans then outstanding in accordance with
Section 3.1 of the Credit Agreement in an aggregate amount of at least
$50,000,000.
In addition, each of the Lenders, by its signature below, hereby
acknowledges and agrees, and hereby authorizes the Agent, immediately prior to
or contemporaneously with the consummation of the sale of the Turnersville Cable
System, as contemplated under that certain Purchase and Sale Agreement, dated as
of March 28, 1996, between the Borrower and Lenfest Atlantic, Inc., to terminate
and release (without recourse and without representation or warranty) , all
Liens on the personal property and the real property of the Borrower
constituting any part of the Turnersville Cable System. In furtherance of the
foregoing, the Agent shall at such appropriate time execute and deliver to the
Borrower (or such other Person designated by the Borrower in writing to the
Agent) Uniform Commercial Code Form UCC-3 release statements pertaining to the
Liens of the Agent in such personal property and a release of mortgage
pertaining to the mortgage in respect of such property.
PART IV
CONDITIONS TO EFFECTIVENESS
SUBPART 4.1. First Amendment Effective Date. This Amendment and Waiver
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(and the amendments, waivers and modifications contained herein) shall become
effective, and shall thereafter be referred to as the "First Amendment", on the
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date (the "First Amendment Effective Date") when all of the conditions set forth
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in this Subpart 4.1 have been satisfied.
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SUBPART 4.1.1. Execution of Counterparts. The Agent shall have received
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counterparts of this Amendment and Waiver, duly executed and delivered on behalf
of the Borrower, the Agent and each of the Lenders.
SUBPART 4.1.2. General Partner's Certificate. The Agent shall have
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received from the General Partner, a certificate of the Secretary or an
Assistant Secretary of the General Partner, dated the date of the First
Amendment Effective Date, as to:
(a) a certificate of good standing for the Borrower issued by the
jurisdiction in which it is organized, dated as of a date reasonably close
to the First Amendment Effective Date,
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(b) a certificate of good standing for the General Partner issued by
the jurisdiction in which it is organized, dated as of a date reasonably
close to the First Amendment Effective Date,
(c) all action necessary for the execution, delivery and performance
of this Amendment and Waiver, the replacement Note, and each other Loan
Document by the General Partner, as the general partner of the Borrower,
together with copies of all resolutions to such effect attached thereto,
and
(d) the incumbency and signatures of those officers of the General
Partner authorized to act on behalf of and bind the General Partner, in its
capacity as general partner of the Borrower, with respect to this Amendment
and Waiver, the replacement Note and each other Loan Document executed or
to be executed by it in connection herewith,
which certificate each Lender may conclusively rely upon until it shall have
received a further certificate from the General Partner canceling or amending
such prior certificate.
SUBPART 4.1.3. Other Requested Documents or Certificates. The Agent shall
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have received in form and substance satisfactory to the Agent such other
documents (certified if requested) or certificates as the Agent (or any Lender
through the Agent) may reasonably request with respect to this Amendment and
Waiver, the replacement Note, any other Loan Document or any Organic Document or
approval.
SUBPART 4.1.4. Delivery to Scotiabank of a Borrowing Request and a
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Replacement Note for Additional $4,700,000 Loan. Scotiabank shall have
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received, for its own account, a replacement Note, in form similar to Exhibit A
to the Existing Credit Agreement and satisfactory in all respects to Scotiabank,
duly executed and delivered by the Borrower and in a maximum aggregate principal
amount equal to $29,700,000, such amount representing the aggregate principal
amount of Scotiabank's Term Loan as of the First Amendment Effective Date. Such
replacement Note issued on the First Amendment Effective Date shall be issued in
substitution and exchange for, and not in satisfaction or payment of, the
existing Note of Scotiabank executed and delivered by the Borrower pursuant to
the Existing Credit Agreement, and the Indebtedness (together with the
obligation to pay accrued interest thereon) originally owing to Scotiabank and
to be evidenced by Scotiabank's replacement Note delivered pursuant to this
Amendment and Waiver shall be (and the Borrower hereby acknowledges and agrees
that such Indebtedness, as so increased in connection with the Loan made to the
Borrower by
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Scotiabank on the First Amendment Effective Date, is) a continuing Indebtedness,
and nothing herein contained shall be construed to release or terminate any Lien
or security interest given to secure such Indebtedness (as so increased) .
Scotiabank shall have also received, for its own account, a borrowing request,
in form similar to Exhibit B to the Existing Credit Agreement and satisfactory
in all respects to Scotiabank, for the borrowing contemplated to be made on the
First Amendment Effective Date and the delivery of such borrowing request and
the acceptance by the Borrower of the proceeds of such borrowing shall
constitute a representation and warranty by the Borrower that on the date of
such borrowing (both immediately before and after giving effect to such
borrowing and the application of the proceeds thereof) the statements made in
Section 5.2.1 of the Credit Agreement are true and correct.
SUBPART 4.1.5. Expenses. etc. The Agent shall have received for its own
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account, or for the account of such Lender(s) , as the case may be, all fees,
costs and expenses due and payable as of the First Amendment Effective Date.
SUBPART 4.1.6. Opinions of Counsel. The Agent shall have received an
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opinion of Elizabeth Steele, Esq., general counsel to the General Partner of the
Borrower, dated the First Amendment Effective Date, in form and substance
satisfactory to the Agent.
SUBPART 4.1.7. Legal Details etc. All documents executed or submitted
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pursuant hereto shall be satisfactory in form and substance to the Agent and its
counsel. The Agent and its counsel shall have received all information and such
counterpart originals or such certified or other copies or such materials as the
Agent or its counsel may reasonably request, and all legal matters incident to
the transactions contemplated by this Amendment and Waiver shall be satisfactory
to the Agent and its counsel.
PART V
MISCELLANEOUS; REPRESENTATIONS
SUBPART 5.1. Cross-References. References in this Amendment and Waiver to
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any Part or Subpart are, unless otherwise specified or otherwise required by the
context, to such Part or Subpart of this Amendment and Waiver.
SUBPART 5.2. Loan Document Pursuant to Existing Credit Agreement. This
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Amendment and Waiver is a Loan Document executed pursuant to the Existing Credit
Agreement and shall be construed, administered and applied in accordance with
all of the terms and
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provisions of the Existing Credit Agreement (and, following the First Amendment
Effective Date, the Credit Agreement).
SUBPART 5.3. Successors and Assigns. This Amendment and Waiver shall be
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binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SUBPART 5.4. Full Force and Effect; Limited Amendment. Except as
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expressly amended or waived hereby, all of the representations, warranties,
terms, covenants, conditions and other provisions of the Existing Credit
Agreement and the other Loan Documents shall remain unamended and unwaived and
shall continue to be, and shall remain, in full force and effect in accordance
with their respective terms. The amendments and waivers set forth herein shall
be limited precisely as provided for herein to the provisions expressly amended
or waived herein and shall not be deemed to be an amendment to, waiver of,
consent to or modification of any other term or provision of the Existing Credit
Agreement, any other Loan Document referred to therein or herein or of any
transaction or further or future action on the part of the Borrower which would
require the consent of the Lenders under the Existing Credit Agreement or any of
the Loan Documents .
SUBPART 5.5. Payment of Fees and Expenses. The Borrower hereby agrees to
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pay and reimburse the Agent for all of its reasonable fees and expenses incurred
in connection with the negotiation, preparation, execution and delivery of this
Amendment and Waiver and related documents, including all reasonable fees and
disbursements of counsel to the Agent.
SUBPART 5.6. Counterparts. This Amendment and Waiver may be executed by
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the parties hereto in several counterparts, each of which when executed and
delivered shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
SUBPART 5.7. Governing Law. THIS AMENDMENT AND WAIVER SHALL BE GOVERNED BY
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AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SUBPART 5.8. Representations. In order to induce the Lenders and the
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Agent to enter into this Amendment and Waiver, the Borrower hereby represents
and warrants as follows:
(a) the execution and delivery of this Amendment and Waiver and the
performance by the Borrower of its obligations hereunder, under each other
Loan Document, under the Existing Credit Agreement as amended hereby and,
upon the occurrence of the First Amendment Effective Date, under the Credit
Agreement are within the Borrower's partnership
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powers, have been duly authorized by all necessary partnership action, have
received all necessary governmental approvals (if any shall be required and
other than as set forth in Item 6.3 of the Disclosure Schedule), and do not
(i) contravene the Borrower's Organic Documents, (ii) contravene any
contractual restriction, law or governmental regulation or court decree or
order binding on or affecting the Borrower or (iii) result in, or require
the creation or imposition of, any Lien on any of Borrower's properties
(other than pursuant to a Loan Document); and
(b) this Amendment and Waiver, each other Loan Document, the Existing
Credit Agreement as amended hereby and, upon the occurrence of the First
Amendment Effective Date, the Credit Agreement are the legal, valid and
binding obligations of the Borrower, enforceable in accordance with their
respective terms (except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally and by principles of equity).
SUBPART 5.9. Adjusted Percentages. Each of the Lenders, by its signature
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below, hereby acknowledges and agrees that upon the occurrence of the First
Amendment Effective Date, such Lender's Percentage for purposes of the Credit
Agreement shall be as set forth opposite its signature hereto, as such
percentage may be amended from time to time hereafter pursuant to any Lender
Assignment Agreement(s) executed by such Lender and its Assignee Lender(s) and
delivered pursuant to Section 10.11 of the Credit Agreement.
[THE REMAINDER OF THIS PAGE HAS
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Waiver to be executed by their respective officers thereunto duly authorized as
of the day and year first above written.
CABLE TV FUND 14-A, LTD
By: JONES INTERCABLE, INC., as
General Partner
By /s/ J. Roy Pottle
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Title:J. ROY POTTLE
VICE PRESIDENT/TREASURER
PERCENTAGES
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35.0649351% THE BANK OF NOVA SCOTIA,
as Agent and as a Lender
By /s/ [SIGNATURE APPEARS HERE]
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Title: Authorized Signatory
29.5159386% TORONTO DOMINION (TEXAS), INC.
By /s/ Frederic Hawley
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Title: VICE PRESIDENT
17.7095632% ROYAL BANK OF CANADA
GRAND CAYMAN (NORTH AMERICAN NO. 1) BRANCH
By /s/ [SIGNATURE APPEARS HERE]
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Title: Service Manager
17.7095632% FLEET NATIONAL BANK
By /s/ [SIGNATURE APPEARS HERE]
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Title:
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