SECOND AMENDMENT AGREEMENT
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SECOND AMENDMENT AGREEMENT (this "Agreement") dated as of December 27, 1996
by and among (1) IDS/Jones Joint Venture Partners (the "Borrower"), (2) Fleet
National Bank, formerly known as Shawmut Bank Connecticut, N.A. ("Fleet") and
Societe Generale as lenders (collectively, the "Lenders" and individually, a
"Lender"), and (3) Fleet as agent (the "Agent") for the Lenders, with respect to
a certain Credit Agreement dated as of November 3, 1994, by and among the
Borrower, the Lenders and the Agent as amended by a letter agreement dated
January 25, 1995 and by an Amendment and Waiver Agreement dated as of February
16, 1995 (as amended, the "Credit Agreement").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders and the Agent amend
certain provisions of the Credit Agreement and the Notes; and
WHEREAS, the Lenders and Agent are willing to amend the Credit Agreement
and Notes in accordance with the terms hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
(S)1. Definitions. Capitalized terms used herein without definition that
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are defined in the Credit Agreement shall have the same meanings herein as
therein.
(S)2. Ratification of Existing Agreements. All of the Borrower's
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obligations and liabilities to the Lenders and the Agent as evidenced by or
otherwise arising under the Credit Agreement, the Notes and the other Loan
Documents, are, by the Borrower's execution of this Agreement, ratified and
confirmed in all respects. In addition, by the Borrower's execution of this
Agreement, the Borrower represents and warrants that no counterclaim, right of
set-off or defense of any kind exists or is outstanding with respect to such
obligations and liabilities. The Borrower acknowledges and agrees that this
Agreement shall be included in the definition of Loan Documents under the Credit
Agreement.
(S)3. Representations and Warranties. All of the representations and
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warranties made by the Borrower in the Credit Agreement, the Notes and the other
Loan Documents are true and correct on the date hereof as if made on and as of
the date hereof, except that any of such representations and warranties relate
expressly to an earlier date and are true and correct as of such earlier date.
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(S)4. Amendments to the Credit Agreement.
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(S)4.1. Amendments to (S)1.1.
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(a) The definition of "Applicable Margin" appearing in Section 1.1
of the Credit Agreement is hereby amended in its entirety to read as follows:
"Applicable Margin" means, at any time during which the Borrower's
Leverage Ratio falls within the ranges set forth below, the amounts set
forth below opposite such ranges for each type of Loans:
Applicable Margin
Base Rate
Leverage Ratio Loans LIBO Rate Loans CD Rate Loans
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5.50:1 or greater 0.75% 1.75% 1.875%
5.00:1 or greater 0.625% 1.625% 1.750%
but less than
5.50:1
4.50:1 or greater 0.50% 1.50% 1.625%
but less than
5.00:1
4.00:1 or greater 0.25% 1.25% 1.375%
but less than
4.50:1
less than 4.00:1 0.00% 1.00% 1.125%"
(b) The definition of "Commitment Amount" appearing in Section 1.1
of the Credit Agreement is hereby amended in its entirety to read as
follows:
"Commitment Amount" means an amount equal to $42,000,000 plus the
Excess Commitment Amount, as such amount may be reduced from time to time
pursuant to Section 2.2."
(c) The definition of "Commitment Termination Date" appearing in
Section 1.1 of the Credit Agreement is hereby amended in its entirety to read
as follows:
"Commitment Termination Date" means the earliest of
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(a) the date on which the Commitment Amount is terminated in
full or reduced to zero pursuant to Section 2.2; and
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(b) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (a) or (b), the
Commitments shall terminate automatically and without any further action."
(d) The definition of "Conversion Date" appearing in Section 1.1 of
the Credit Agreement is hereby amended in its entirety to read as follows:
"Conversion Date" Intentionally Omitted."
(e) The definition of "Conversion Date Amount" appearing in Section
1.1 of the Credit Agreement is hereby amended in its entirety to read as
follows:
"Conversion Date Amount" Intentionally Omitted."
(f) The definition of "Loan" appearing in Section 1.1 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"Loan" means, as the context may require, a Revolving Loan of any
type."
(g) The definition of "Loan Document" appearing in Section 1.1 of the
Credit Agreement is hereby amended in its entirety to read as follows:
"Loan Documents" means this Agreement, the Notes, the Security
Agreement, the Subordination Agreements, the Mortgage, the Fee Letter, the
Lender Fee Letter, each agreement evidencing Hedging Obligations of the
Borrower, and each other agreement, document or instrument delivered in
connection with this Agreement."
(h) The definition of "Notes" appearing in Section 1.1 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"Notes" means a promissory note of the Borrower payable to the order
of any Lender, in the form of Exhibit A hereto (as such promissory note may be
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amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrower to such Lender resulting from outstanding
Revolving Loans."
(i) The definition of "Stated Maturity Date" appearing in Section 1.1
of the Credit Agreement is hereby amended in its entirety to read as follows:
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"Stated Maturity Date" means December 31, 1999."
(j) The definition of "Term Loan" appearing in Section 1.1 of the
Credit Agreement is hereby amended in its entirety to read as follows:
"Term Loan" Intentionally Omitted."
(k) The following new definition is hereby added to Section 1.1 of the
Credit Agreement:
"Lender Fee Letter" means that certain fee letter, dated December 27,
1996 from the Borrower to the Agent relating to the payment of fees to the
Lenders in connection with the Second Amendment Agreement by and among the
Borrower, the Lenders and the Agent dated as of December 27, 1996."
(S)4.2. Amendment to Section 3.1. Section 3.1 of the Credit Agreement
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is hereby amended in its entirety to read as follows:
"SECTION 3.1. Mandatory Reduction of Commitment Amount. On
each of the dates set forth in the table below (each such date being
hereinafter referred to as a "Commitment Reduction Date"), the
Commitment Amount shall be automatically reduced by an amount equal to
the product of (a) the original Commitment Amount in effect as of
December 27, 1996 ($47,000,000) times (b) the percentage (the
"Commitment Reduction Percentage") set forth opposite such Commitment
Reduction Date in such table so that the cumulative percentage
reduction of the Commitment Amount on such date shall be as set forth
in the table below:
Commitment
Date Reduction Percentage Cumulative Reduction
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December 27, 1996
through June 29, 1999 0% 0%
June 30, 1999 2.1276596% 2.1276596%
September 30, 1999 2.1276596% 4.2553192%
Upon the occurrence of a Commitment Reduction Date as contemplated by this
(S)3.1, the Commitments of the Lenders shall be reduced pro rata in accordance
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with their respective Percentages of the amount of such reduction of the
Commitment Amount. If on any Commitment Reduction Date the sum of the aggregate
principal amount of the Revolving Loans outstanding exceeds the Commitment
Amount then in effect, then the Borrower shall immediately pay the
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amount of such excess to the Agent for the respective accounts of the Lenders
for application to the Revolving Loans.
The remaining unpaid principal amount of all Revolving Loans shall be
repaid by the Borrower on the Stated Maturity Date.
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
Revolving Loans; provided, however, that:
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(i) any such prepayment shall be made pro rata among Loans of the
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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 $500,000 and an integral multiple of
$100,000.
(b) shall, on each date when any reduction in the Commitment Amount
shall become effective, including pursuant to Section 2.2, make a mandatory
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prepayment of all Revolving Loans equal to the excess, if any, of the
aggregate outstanding principal amount of all Revolving Loans over the
Commitment Amount as so reduced; and
(c) shall, immediately upon any acceleration of the Stated Maturity
Date of any Loans pursuant to Section 8.2 or Section 8.3, repay all Loans,
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unless, pursuant to Section 8.3, only a portion of all Loans is so
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accelerated.
Each prepayment of any Revolving Loans made pursuant to this Section shall
be (i) without premium or penalty and (ii) made together with any amounts
required to be paid under Section 4.4. No voluntary prepayment of principal of
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any Revolving Loans shall cause a reduction in the Commitment Amount."
(S)4.3. Amendment to Section 3.2. Section 3.2 of the Credit Agreement
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is hereby amended in its entirety to read as follows:
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"SECTION 3.2 Excess Cash Flow Recapture. In addition to any and
all required reductions of the Commitment Amount set forth in Section
3.1 above, the Commitment Amount shall be reduced on May 1 of each
calendar year, commencing on May 1, 1997, in an amount equal to
seventy-five percent (75%) of Excess Cash Flow of the Borrower for the
immediately preceding Fiscal Year. Such reduction shall be applied to
automatically reduce, pro rata, the Commitment Amount as in effect
from time to time."
(S)4.4. Amendment to Section 3.3.3. Section 3.3.3. of the Credit
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Agreement is hereby amended in its entirety to read as follows:
"SECTION 3.3.3. Payment Dates. Interest accrued on each Revolving
Loan shall be payable without duplication:
(a) on the date of any optional or required payment or prepayment, in
whole or in part, of principal outstanding on such Loan;
(b) with respect to Base Rate Loans, on each Quarterly Payment Date
occurring after the Effective Date;
(c) with respect to CD Rate Loans, on the last day of each applicable
Interest Period (and, if such Interest Period shall exceed 90 days, on the
90th day of such Interest Period and each 90th day thereafter during such
Interest Period);
(d) with respect to any LIBO Rate Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed 3
months, on the last calendar day of the 3rd month of such Interest Period
and the last calendar day of each subsequent 3rd month of such Interest
Period thereafter);
(e) with respect to any Base Rate Loans converted into Fixed Rate
Loans on a day when interest would not otherwise have been payable pursuant
to clause (c), on the date of such conversion; and
(f) on that portion of any Revolving Loans the Stated Maturity Date of
which is accelerated pursuant to Section 8.2 or Section 8.3 immediately
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upon such acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, in connection with any mandatory
reduction of the Commitment Amount or mandatory prepayment hereunder, upon
acceleration or otherwise) shall be payable upon demand."
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(S)4.5. Amendment to Section 3.4. Section 3.4 of the Credit Agreement
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is hereby amended by adding a new Section 3.4.3. to the end of such Section to
read as follows:
"SECTION 3.4.3 Lenders Fee. The Borrower agrees to timely pay to
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the Agent, for the benefit of the Lenders, the fees provided for in
the Lender Fee Letter."
(S)4.6. Amendment to Section 7.2.4(a). Section 7.2.4.(a) of the Credit
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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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1/1/96 - 12/30/96 5.50:1
12/31/96 - 3/31/97 5.75:1
4/1/97 - 9/30/97 5.25:1
10/1/97 - 3/31/98 5.00:1
4/1/98 - 9/30/98 4.75:1
10/1/98 - 3/31/99 4.50:1
4/1/99 - 6/30/99 4.25:1
7/1/99 and thereafter 4.00:1"
(S)4.7. Amendment to Section. 7.2.4.(c). Section 7.2.4.(c) of the
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Credit Agreement is hereby amended in its entirety to read as follows:
"(c) Intentionally Omitted."
(S)4.8. Amendment to Section. 7.2.7. Section 7.2.7. of the Credit
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Agreement is hereby amended in its entirety to read as follows:
"SECTION 7.2.7. Management Fees, Allocated Overhead and
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General Partner Advances. The Borrower will not, and will not permit
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any of its Subsidiaries to, pay any amounts with respect to (a) the 1996
Fiscal Year, Management Fees or Allocated Expenses if either before or
after giving effect to such payments, a Default shall have occurred and be
continuing, or if such payments violate the terms of any Subordination
Agreement, (b) the 1996 Fiscal Year, net General Partner Advances in an
amount in excess of $2,700,000 in the aggregate and if either before or
after giving effect to such payments, a Default shall have occurred and be
continuing, or if such payments violate the terms of any Subordination
Agreement, (c) from January 1, 1997 through and including December 31,
1998, Management Fees or Allocated Expenses if either before or after
giving effect to such payments, a Default shall have occurred and be
continuing, or if such payments violate the terms of any Subordination
Agreement, (d) during the period beginning on
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January 1, 1999 and continuing until all of the Obligations are paid in
full, Management Fees or Allocated Overhead, and (e) during the period
beginning on January 1, 1997 and continuing until all of the Obligations
are paid in full, General Partner Advances; provided, that, notwithstanding
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the foregoing, from and after the January 1, 1997, the Borrower may repay
General Partner Advances of the type described in clause (iii) of the
definition of General Partner Advances, together with interest thereon, so
long as either before or after giving effect to any such payments, no
Default shall have occurred and be continuing, and so long as such payment
does not violate the terms of any Subordination Agreement. All such amounts
may be accrued and paid by the Borrower to the Person to which they are
owed upon the payment in full by the Borrower of all of the Obligations."
(S)4.9. Amendment to Section 10.11.1. Section 10.11.1. of the Credit
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Agreement is hereby amended by deleting the number "$45,000,000" from the tenth
and twelfth lines thereof and substituting "$47,000,000" therefor.
(S)5. Conditions Precedent. The effectiveness of the amendments
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contemplated hereby shall be subject to the satisfaction on or before the date
hereof of each of the following conditions precedent:
(a) All of the representations and warranties made by the Borrower
herein, whether directly or incorporated by reference, shall be true and
correct on the date hereof, except as provided in (S)3 hereof.
(b) The Borrower shall have performed and complied in all material
respects with all terms and conditions herein required to be performed or
complied with by it prior to or at the time hereof, and there shall exist
no Event of Default or condition which, with either or both the giving of
notice of the lapse of time, would result in an Event of Default upon the
execution and delivery of this Agreement.
(c) All requisite partnership action necessary for the valid
execution, delivery and performance by the Borrower of this Agreement and
all other instruments and documents delivered by the Borrower in connection
therewith shall have been duly and effectively taken.
(d) The parties hereto shall have executed and delivered this
Agreement in form and substance satisfactory to the Agent and Lenders.
(e) All proceedings in connection with the transactions contemplated
by this Agreement shall be satisfactory in substance and form to the Agent
and Lenders and the Agent shall have received all information and such
counterpart originals or certified or other copies of such documents as it
may request.
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(f) The Borrower shall have paid all fees and expenses incurred by the
Agent and Lenders in connection with this Agreement, the Credit Agreement or the
other Loan Documents on or prior to the date hereof. In addition, the Borrower
shall have paid to the Agent, for the account of each Lender, all of the fees
then due and owing under the Lender Fee Letter.
(g) The Agent shall have received from counsel to the Borrower, a favorable
opinion addressed to the Agent and Lenders and dated the date hereof in form and
substance satisfactory to the Agent and Lenders.
(h) The Agent shall have received the results of UCC searches with
respect to the Collateral (as defined in the Security Agreement) indicating no
other liens other than liens already permitted under the Credit Agreement and
otherwise in form and substance satisfactory to the Agent.
(i) The Borrower shall have executed and delivered a Second
Amendment and Restated Promissory Note in the original principal amount of
$31,333,333.33 in favor of Fleet and an Amended and Restated Promissory
Note in the original principal amount of $15,666,666.67 in favor of Societe
Generale.
6. Miscellaneous Provisions.
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(a) Effective as of the date of this Agreement, the Percentage of each of
the Lenders is hereby reaffirmed as set forth opposite its signature hereto.
(b) Except as otherwise expressly provided by this Agreement, all of the
respective terms, conditions and provisions of the Credit Agreement, the Notes
and the other Loan Documents shall remain the same. It is declared and agreed by
each of the parties hereto that the Credit Agreement, the Notes and the other
Loan Documents, each as amended hereby, shall continue in full force and effect,
and that this Agreement and the Credit Agreement, the Notes and the other Loan
Documents, as applicable, shall be read and construed as one instrument.
(c) This Agreement is intended to take effect under, and shall be construed
according to and governed by, the laws of the State of Connecticut.
(d) This Agreement may be executed in any number of counterparts, but all
such counterparts shall together constitute but one instrument. In making proof
of this Agreement it shall not be necessary to produce or account for more than
one counterpart signed by each party hereto by and against which enforcement
hereof is sought.
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IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement
to be executed in its name and behalf by its duly authorized officer as of the
date first written above.
IDS/JONES JOINT VENTURE PARTNERS
By: IDS/Jones Growth Partners II, L.P.,
Its Managing General Partner
By: Jones Cable Corporation,
Its Managing General Partner
By: /s/ J. Roy Pottle
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Name: J. Roy Pottle
Title: Treasurer
Percentage FLEET NATIONAL BANK
Individually and as Agent
66 2/3%
By: /s/ Michael Cerullo
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Name: Michael Cerullo
Title: Vice President
Address: 175 Water Street
New York, New York 10038
Facsimile: 212-602-2663
Percentage SOCIETE GENERALE
33 1/3%
By: /s/ Mark Vigil
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Name: Mark Vigil
Title: Vice President
Address: 1221 Avenue of the Americas
New York, New York 10020
Facsimile: 212-278-6240
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Each of the undersigned acknowledges and accepts the foregoing and ratifies and
confirms in all respects its respective obligations under the Subordination
Agreements:
JONES INTERCABLE, INC.
By: /s/ J. Roy Pottle
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Its: VP/Treasurer
IDS MANAGEMENT CORPORATION
By: /s/ John Knight
---------------------------------
John Knight
Its: Vice President
IDS/JONES GROWTH PARTNERS 89-B, LTD.
By: Jones Cable Corporation,
Its Managing General Partner
By: /s/ J. Roy Pottle
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Name: J. Roy Pottle
Title: Treasurer
IDS/JONES GROWTH PARTNERS II, L.P.
By: Jones Cable Corporation,
Its Managing General Partner
By: /s/ J. Roy Pottle
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Name: J. Roy Pottle
Title: Treasurer
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JONES CABLE CORPORATION
By: /s/ J. Roy Pottle
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Its: Treasurer
IDS CABLE CORPORATION
By: /s/ John Knight
---------------------------------
John Knight
Its: Vice President
IDS CABLE II CORPORATION
By: /s/ John Knight
---------------------------------
John Knight
Its: Vice President