THIS PAGE MUST BE KEPT WITH THE DOCUMENT
FOURTH AMENDMENT TO LOAN AGREEMENT
04/25/97 1:36 pm
Exhibit 10.5
FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT (this
"Amendment"), dated as of the 24th day of May, 1996 (the "Amendment Date"), by
and among CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P., a Delaware limited
partnership (the "Borrower"), TORONTO DOMINION (TEXAS), INC., CHEMICAL BANK,
CIBC INC., CREDIT LYONNAIS CAYMAN ISLAND BRANCH, NATIONSBANK, N.A., BANQUE
PARIBAS, UNION BANK, CORESTATES BANK, N.A., THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., MERCANTILE BANK OF ST. LOUIS NATIONAL ASSOCIATION, FLEET BANK, N.A., F/K/A
NATWEST BANK N.A., FIRST NATIONAL BANK OF MARYLAND, VAN KAMPEN AMERICAN CAPITAL
PRIME RATE INCOME TRUST, BANQUE FRANCAISE DU COMMERCE EXTERIEUR, PRIME INCOME
TRUST, SENIOR DEBT PORTFOLIO, AERIES FINANCE LTD. AND ING CAPITAL ADVISORS
(together with any financial institution which subsequently becomes a `Bank'
under the Loan Agreement, as such term is defined therein, the "Banks"), TORONTO
DOMINION (TEXAS), INC. and CHEMICAL BANK, as documentation Agents (collectively,
in such capacity, the "Documentation Agents"), TORONTO DOMINION (TEXAS), INC.,
CHEMICAL BANK, CIBC INC., CREDIT LYONNAIS CAYMAN ISLAND BRANCH, and NATIONSBANK,
N.A., as managing agents (collectively, in such capacity, the "Managing
Agents"), BANQUE PARIBAS and UNION BANK, as co-agents (collectively, in such
capacity, the "Co-Agents"), and TORONTO DOMINION (TEXAS), INC., as
administrative agent for the Documentation Agents, the Managing Agents, the Co-
Agents and the Banks (the "Administrative Agent," and together with the
Documentation Agents, the Managing Agents and the Co-Agents, the "Agents"),
W I T N E S S E T H:
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WHEREAS, the Agents, the Borrower, and the Banks are parties to that
certain Amended and Restated Loan Agreement dated as of September 29, 1995, as
amended by that certain First Amendment to Loan Agreement dated as of October
31, 1995, as amended by that certain Second Amendment to Loan Agreement dated as
of January 16, 1996, and as amended by that certain Third Amendment to Loan
Agreement dated as of March 29, 1996 (as further amended, modified and
supplemented from time to time, the "Loan Agreement"); and
WHEREAS, the Borrower has requested that the Agents and the Banks agree to
amend certain provisions of the Loan Agreement to permit the formation of an
unrestricted subsidiary and its acquisition of an AM radio station from
Belleville Broadcasting Co. and Metro Broadcasting, Inc.; and
WHEREAS, the Agents and the Banks are willing to consent to such amendments
and such other matters as set forth herein on the terms and conditions contained
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 Loan Agreement, and further agree as follows:
1. Amendments to Article 1.
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(a) Article 1 of the Loan Agreement, Definitions, is hereby further
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amended by adding the following sentence at the end of the existing definition
of "Subsidiary":
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"For all purposes under this Agreement (except as otherwise set forth
herein, with respect to the Borrower, "Subsidiary" or "Subsidiaries" shall
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not include the Unrestricted Subsidiary."
(b) Article 1 of the Loan Agreement, Definitions, is hereby further
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amended by adding the following definitions in the appropriate alphabetical
order:
"'Unrestricted Subsidiary' shall mean Charter Communications Radio St.
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Louis, LLC, a Delaware limited liability company. The financial condition
and operations of the Unrestricted Subsidiary shall not be consolidated
with those of the Borrower and its Subsidiaries for financial reporting and
financial covenant purposes herein."
"`WIBV Acquisition Agreement' shall mean that certain Asset Purchase
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Agreement dated as of March 16, 1996 among Charter Communications Radio St.
Louis, LLC, Belleville Broadcasting Co. and Metro Broadcasting, Inc. with
respect to the acquisition by Charter Communications Radio St. Louis, LLC
of certain radio station assets of Belleville Broadcasting Co. and Metro
Broadcasting, Inc., as such agreement may be amended, modified or
supplemented from time to time, together with all exhibits, schedules and
appendices thereto, all of which shall be in form and substance
satisfactory to the Administrative Agent."
"`WIBV Assets' shall mean those radio station assets of Belleville
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Broadcasting Co. and Metro Broadcasting, Inc. to be acquired by an
Unrestricted Subsidiary of the Borrower pursuant to the WIBV Acquisition
Agreement."
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2. Amendments to Article 4.
-----------------------
(a) Section 4.1(e) of the Loan Agreement, Business, is hereby amended by
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adding the following at the end of existing Section 4.1(e):
"The Unrestricted Subsidiary is engaged solely in the business of owning
and operating an AM radio station."
(b) Section 4.1(g) of the Loan Agreement, Compliance with Law, is hereby
-------------------
amended by deleting the phrase "The Borrower and its Subsidiaries" and replacing
it with the phrase "The Borrower, its Subsidiaries and the Unrestricted
Subsidiary".
(c) Section 4.1(i) of the Loan Agreement, Litigation, is hereby amended by
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adding the phrase "and the Unrestricted Subsidiary" immediately following the
word "Subsidiaries" in the fifth line thereof.
(d) Section 4.1(j) of the Loan Agreement, Taxes, is hereby amended by
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deleting existing Section 4.1(j) in its entirety and by substituting the
following therefor:
"(j) Taxes. All federal, state and other tax returns of the
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Borrower, each of its Subsidiaries and the Unrestricted Subsidiary required
by law to be filed have been duly filed and all federal, state and other
taxes, including, without limitation, withholding taxes, assessments and
other governmental charges or levies required to be paid by the Borrower or
any of its Subsidiaries or the Unrestricted Subsidiary or imposed upon the
Borrower or any of its Subsidiaries or the Unrestricted Subsidiary or any
of their respective properties, income, profits or assets, which are due
and payable, have been paid, except any such (x) the payment of which the
Borrower or any of its Subsidiaries or the Unrestricted Subsidiary is
diligently contesting in good faith by appropriate proceedings, (y) for
which adequate reserves have been provided on the books of the Borrower,
the Unrestricted Subsidiary or the Subsidiary of the Borrower involved, and
(z) as to which no Lien other than a Permitted Lien has attached and no
foreclosure, distraint, sale or similar proceedings have been commenced.
The charges, accruals and reserves on the books of the Borrower and each of
its Subsidiaries and the Unrestricted Subsidiary in respect of taxes are,
in the judgment of the Borrower, adequate. All pro forma financial
information provided to the Agents and the Banks in connection with this
Agreement has been based upon reasonable assumptions and prepared in good
faith."
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(e) Section 4.1(l) of the Loan Agreement, ERISA, is hereby amended by
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adding the following at the end of existing Section 4.1(l):
"For purposes of this Section 4.1(l), the term `Subsidiaries' shall include
the Unrestricted Subsidiary."
(f) Section 4.1(m) of the Loan Agreement, Compliance with Regulations G, T,
---------------------------------
U and X, is hereby amended by adding the following at the end of existing
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Section 4.1(m):
"For purposes of this Section 4.1(m), the term `Subsidiaries' shall include
the Unrestricted Subsidiary."
(g) Section 4.1(q) of the Loan Agreement, Accuracy and Completeness of
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Information, is hereby amended by (i) adding the phrase "or the Unrestricted
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Subsidiary" immediately following the word "Subsidiaries" in the third and
fourth lines thereof and (ii) adding the phrase "and the Unrestricted
Subsidiary" immediately following the word "Subsidiaries" in the tenth line
thereof.
3. Amendments to Article 5.
-----------------------
(a) Section 5.2 of the Loan Agreement, Business; Compliance with Law, is
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hereby amended by adding the following at the end of existing Section 5.2:
"The Borrower will cause the Unrestricted Subsidiary to (a) engage solely
in the business of owning and operating an AM radio station, and (b) comply
in all material respects with the requirements of all Applicable Law."
(b) Section 5.5 of the Loan Agreement, Insurance, is hereby amended by
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adding the phrase "and the Unrestricted Subsidiary" immediately following the
word "Subsidiaries" each time it appears therein.
(c) Section 5.6 of the Loan Agreement, Payment of Taxes and Claims, is
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hereby amended by adding the phrase "and the Unrestricted Subsidiary"
immediately following the word "Subsidiaries" in the second and seventeenth
lines thereof.
(d) Section 5.11 of the Loan Agreement, Indemnity, is hereby amended by
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adding the phrase "or the Unrestricted Subsidiary" immediately following the
phrase "of the Borrower" in the thirteenth and fifteenth lines thereof.
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4. Amendments to Article 6.
-----------------------
(a) Section 6.5(e) of the Loan Agreement, Copies of Other Reports, is
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hereby amended by adding the phrase "or the Unrestricted Subsidiary" immediately
following the word "Subsidiaries" in the sixth line thereof.
(b) Section 6.6(a) of the Loan Agreement, Notice of Litigation and Other
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Matters, is hereby amended by (i) adding the phrase "or the Unrestricted
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Subsidiary" immediately following the word "Subsidiaries" in the fourth line
thereof and (ii) deleting the phrase "or any Subsidiary of the Borrower" in the
sixth line and replacing it with "or its Subsidiaries or the Unrestricted
Subsidiary".
(c) Section 6.6(b) of the Loan Agreement, Notice of Litigation and Other
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Matters, is hereby amended by deleting the phrase "or any Subsidiary of the
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Borrower" beginning in the third line and replacing it with "or its Subsidiaries
or the Unrestricted Subsidiary".
5. Amendments to Article 7.
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(a) Section 7.4 of the Loan Agreement, Liquidation, Change in Ownership,
---------------------------------
Disposition or Acquisition of Assets, is hereby amended by deleting subsection
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7.4(b)(iv) in its entirety and by substituting the following therefor:
"(iv) so long as no Default hereunder then exists or would be caused
thereby, loans, advances or investments permitted pursuant to Section
7.6(vii) hereof and acquisitions of cable television systems for a purchase
price not to exceed $7,500,000 in the aggregate in any fiscal year and
$15,000,000 in the aggregate during the term hereof, plus the aggregate
amount of any Excess Cash Flow which, in accordance with Section 7.7(c)
hereof, would be permitted to be distributed to the Partners and which are
not so distributed,"
(b) Section 7.6 of the Loan Agreement, Investments, is hereby amended by
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(i) deleting the word "and" immediately before the "(vi)" in the twenty-fifth
line thereof and (ii) by adding the following at the end thereof immediately
before the period:
"and (vii) loans or advances to, and other investments in, the Unrestricted
Subsidiary, in an aggregate outstanding amount not to exceed $4,000,000
including, without limitation, the acquisition by the Unrestricted
Subsidiary of the WBIV Assets pursuant to the WBIV Acquisition Agreement."
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6. Counterparts. This Amendment may be executed in any number of
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counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
7. Governing Law. This Amendment shall be construed in accordance with
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and governed by the laws of the State of New York.
8. Severability. Any provision of this Amendment which is prohibited or
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unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof in that
jurisdiction or affecting the validity or enforceability of such provision in
any other jurisdiction.
9. No Other Amendment or Waiver. Except for the amendments set forth
----------------------------
above, the text of the Loan Agreement and all other Loan Documents shall remain
unchanged and in full force and effect. No waiver by the Administrative Agent,
the other Agents or the Banks under the Loan Agreement or any other Loan
Document is granted or intended except as expressly set forth herein, and the
Administrative Agent, the other Agents and the Banks expressly reserve the right
to require strict compliance in all other respects (whether or not in connection
with any Requests for Advance). Except as set forth herein, the amendments
agreed to herein shall not constitute a modification of the Loan Agreement or
any of the other Loan Documents, or a course of dealing with the Administrative
Agent, the other Agents and the Banks, or any of them, at variance with the Loan
Agreement or any of the other Loan Documents, such as to require further notice
by the Administrative Agent, the other Agents, the Banks, the Majority Banks, or
any of them, to require strict compliance with the terms of the Loan Agreement
and the other Loan Documents in the future.
10. Representations and Warranties. The Borrower hereby represents and
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warrants in favor of the Agents and the Banks as follows:
(a) The Borrower has the partnership power and authority (i) to enter into
this Amendment and (ii) to do all other acts and things as are required or
contemplated hereunder to be done, observed and performed by it;
(b) This Amendment has been duly authorized, validly executed and delivered
by one or more Authorized Signatories of the Borrower and constitutes the legal,
valid and binding obligation of the Borrower, enforceable against the Borrower
in accordance with its terms, subject, as to enforcement of remedies, to the
following qualifications: (i) an order of
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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
(c) The execution and delivery of this Amendment, the performance by the
Borrower under the Loan Agreement and the other Loan Documents to which it is a
party, as amended 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 which has not already been obtained, nor
contravene or be in conflict with the partnership agreement or other similar
agreement of the Borrower, or the provision of any statute, judgment, order,
indenture, instrument, agreement, or undertaking, to which the Borrower is a
party or by which any of its assets or properties are or may become bound.
11. Conditions Precedent. The effectiveness of this Amendment is subject
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to receipt by the Administrative Agent or the Banks, as appropriate, of each of
the following, in form and substance satisfactory to the Administrative Agent
and the Banks:
(a) A certificate, signed by an Authorized Signatory of the Borrower,
certifying on the date hereof that there exists no Default under the Loan
Agreement, after giving effect to this Amendment, and demonstrating the
Borrower's compliance with Sections 7.8, 7.9, 7.10 and 7.15 of the Loan
Agreement, after giving effect to this Amendment and the transactions
contemplated hereby; and
(b) All such other documents as the Administrative Agent or any Bank may
reasonably request, certified by an appropriate governmental official or an
Authorized Signatory if so reasonably requested.
12. Loan Documents. This document shall be deemed to be a Loan Document
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for all purposes.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment or caused
it to be executed under seal by their duly authorized officers, all as of the
day and year first above written.
BORROWER: CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P., a
Delaware limited partnership
By: Its General Partner
CCA ACQUISITION CORP., a Delaware corporation
By: /s/ Barry L. Babcock
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Its: Secretary
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC., as
Administrative Agent
By: /s/ Diane Bailey
-------------------------------------------
Its: Vice President
DOCUMENTATION AGENTS: TORONTO DOMINION (TEXAS), INC., as a
Documentation Agent
By: /s/ Diane Bailey
-------------------------------------------
Its: Vice President
CHEMICAL BANK, as a Documentation
Agent
By: /s/ John Huber, III
-------------------------------------------
Its: Managing Director
FOURTH AMENDMENT TO LOAN AGREEMENT
CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P.
Signature Page 1
MANAGING AGENTS: TORONTO DOMINION (TEXAS), INC., as a
Managing Agent
By: /s/ Diane Bailey
-------------------------------------------
Its: Vice President
CHEMICAL BANK, as a Managing Agent
By: /s/ John J. Huber, III
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Its: Managing Director
CIBC INC., as a Managing Agent
By: /s/ Matthew B. Jones
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Its: Vice President
CREDIT LYONNAIS CAYMAN ISLAND BRANCH,
as a Managing Agent
By: /s/ Mark Thorsheim
---------------------------------------------
Its: Authorized Signatory
NATIONSBANK, N.A., as a Managing Agent
By: /s/ Jennifer Zydney
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Its: Vice President
CO-AGENTS: BANQUE PARIBAS, as a Co-Agent
By: /s/ Thomas Brandt
----------------------------------------------
Its: Vice President
By: /s/ John J. Acker
----------------------------------------------
Its: Vice President
UNION BANK, as a Co-Agent
FOURTH AMENDMENT TO LOAN AGREEMENT
CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P.
Signature Page 2
/s/ Michael K. McShane
By:______________________________________________
Its: Vice President
BANKS: TORONTO DOMINION (TEXAS), INC., as a
Bank
/s/ Diane Bailey
By:______________________________________________
Its: Vice President
CHEMICAL BANK, as a Bank
/s/ John J. Huber, III
By:______________________________________________
Its: Managing Director
CIBC INC., as a Bank
/s/ Matthew B. Jones
By:______________________________________________
Its: Vice President
CREDIT LYONNAIS CAYMAN ISLAND BRANCH,
as a Bank
/s/ Mark Thorsheim
By:______________________________________________
Its: Authorized Signatory
NATIONSBANK, N.A., as a Bank
/s/ Jennifer Zydney
By:______________________________________________
Its: Vice President
BANQUE PARIBAS, as a Bank
/s/ Thomas Brandt
By:______________________________________________
Its: Vice President
/s/ John J. Acker
By:______________________________________________
Its: Vice President
FOURTH AMENDMENT TO LOAN AGREEMENT
CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P.
Signature Page 3
UNION BANK, as a Bank
/s/ Matthew K. McShane
By:______________________________________________
Its: Vice President
CORESTATES BANK, N.A., as a Bank
Anthony B. Parisi
By:______________________________________________
Its: Vice President
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., as a Bank
/s/ Armund Schoen, Jr.
By:______________________________________________
Its: Vice President and Deputy General Manager
MERCANTILE BANK OF ST. LOUIS
NATIONAL ASSOCIATION, as a Bank
/s/ Gregory D. Knudsen
By:______________________________________________
Its: Vice President
FLEET BANK, N.A., f/k/a NatWest Bank N.A., as a Bank
/a/ Adam Bester
By:______________________________________________
Its: Vice President
FIRST NATIONAL BANK OF MARYLAND, as a Bank
/s/ Mark D. Jones
By:______________________________________________
Its: Senior Vice President
VAN KAMPEN AMERICAN CAPITAL PRIME RATE INCOME TRUST, as
a Bank
/s/ Jeffrey Maillet
By:______________________________________________
Its: Senior Vice President
FOURTH AMENDMENT TO LOAN AGREEMENT
CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P.
Signature Page 4
BANQUE FRANCAISE DU COMMERCE EXTERIEUR, as a Bank
/s/ Brian J. Cumberland
By:______________________________________________
Its: Assistant Treasurer
/s/ Frederick K. Kammler
By:______________________________________________
Its: Vice President
PRIME INCOME TRUST, as a Bank
/s/ Rafael Scolari
By:______________________________________________
Its: Vice President - Portfolio Manager
SENIOR DEBT PORTFOLIO, as a Bank
By: Boston Management and Research, as Investment
Advisor
[blank]
By:______________________________________________
Its: [blank]
AERIES FINANCE LTD., as a Registered Noteholder
/s/ Ian D. Moore
By:______________________________________________
Its: Director
FOURTH AMENDMENT TO LOAN AGREEMENT
CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P.
Signature Page 5
ING CAPITAL ADVISORS, as a Bank
/s/ Kathleen A. Lenarcic
By:______________________________________________
Its: Vice President
FOURTH AMENDMENT TO LOAN AGREEMENT
CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P.
Signature Page 6