THIS PAGE MUST BE KEPT WITH THE DOCUMENT.
FIFTH AMENDMENT TO LOAN AGREEMENT
04/25/97 12:50 pm
Exhibit 10.6
FIFTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT (this
"Amendment"), dated as of the 29th day of November, 1996, by and among CHARTER
COMMUNICATIONS ENTERTAINMENT I, L.P., a Delaware limited partnership (the
"Borrower"), TORONTO DOMINION (TEXAS), INC., THE CHASE MANHATTAN BANK (FORMERLY,
CHEMICAL BANK), CIBC INC., CREDIT LYONNAIS CAYMAN ISLAND BRANCH, NATIONSBANK,
N.A., BANQUE PARIBAS, UNION BANK OF CALIFORNIA, N.A. (FORMERLY, 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., 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., ING CAPITAL ADVISORS, INC., ABN AMRO BANK N.V., SOCIETE GENERALE, THE
FIRST NATIONAL BANK OF BOSTON, CAPTIVA FINANCE LTD., BANQUE NATIONALE DE PARIS,
THE SUMITOMO BANK, LIMITED, CHICAGO BRANCH AND CHASE SECURITIES INC. (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 THE CHASE MANHATTAN BANK (FORMERLY, CHEMICAL BANK), as
documentation agents (collectively, in such capacity, the "Documentation
Agents"), TORONTO DOMINION (TEXAS), INC., THE CHASE MANHATTAN BANK (FORMERLY,
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, UNION BANK OF CALIFORNIA, N.A. (FORMERLY,
UNION BANK), ABN AMRO BANK N.V., SOCIETE GENERALE, FLEET BANK, N.A., CORESTATES
BANK, N.A. AND THE FIRST NATIONAL BANK OF BOSTON, 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:
-------------------
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, that certain Second Amendment to Loan Agreement dated as of January
16, 1996, that certain Third Amendment to Loan Agreement dated as of March 29,
1996 and that certain Fourth Amendment to Loan Agreement dated as of May 24,
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 Borrower to acquire
cable television systems located in Jefferson County, Missouri from Masada Cable
Partners, L.P. and to finance additional capital expenditures, acquisitions,
working capital, fees and other general corporate needs; 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.
-----------------------
(a) Article 1 of the Loan Agreement, Definitions, is hereby amended by
-----------
deleting the existing definitions of "Commitment Ratios," "Maturity Date,"
----------------- -------------
"Revolving Loan Commitment" and "Revolving Loan Notes" in their entireties and
------------------------- --------------------
by substituting the following therefor:
"`Commitment Ratios' shall mean the percentages in which the Banks are
-----------------
severally bound to make Advances to the Borrower under the respective
Commitments, as set forth below (together with dollar amounts) as of the
date of the Fifth Amendment to this Agreement:
Portion of
Portion of Revolving Portion of Term Loan Revolving Loan Fund Loan
Term Loan Loan Fund Loan Total Dollar Commitment Commitment Commitment
Banks Commitment Commitment Commitment Commitment Ratio Ratio Ratio
- ----------------- --------------- --------------- --------------- --------------- ------------- --------------- -------------
Toronto $ 6,211,985.62 $ 10,118,014.38 $18,250,000.00 $ 34,580,000.00 2.218566293% 7.227153129% 21.470588235%
Dominion
(Texas), Inc.
The Chase 5,820,912.28 13,009,087.72 5,750,000.00 24,580,000.00 2.078897243% 9.292205514% 6.764705882%
Manhattan
Bank
(formerly,
Chemical
Bank)
CIBC Inc. 17,202,370.00 17,377,630.00 0.00 34,580,000.00 6.143703571% 12.412592857% 0.000000000%
Credit 17,202,370.00 17,377,630.00 0.00 34,580,000.00 6.143703571% 12.412592857% 0.000000000%
Lyonnais
Cayman
Island Branch
-2-
Portion of
Portion of Revolving Portion of Term Loan Revolving Loan Fund Loan
Term Loan Loan Fund Loan Total Dollar Commitment Commitment Commitment
Banks Commitment Commitment Commitment Commitment Ratio Ratio Ratio
- ----------------- --------------- --------------- --------------- --------------- ------------- --------------- -------------
NationsBank, 17,202,370.00 17,377,630.00 0.00 34,580,000.00 6.143703571% 12.412592857% 0.000000000%
N.A.
Banque 19,026,666.67 2,073,333.33 0.00 21,100,000.00 6.795238096% 1.480952379% 0.000000000%
Paribas
Union Bank of 23,000,000.00 2,000,000.00 0.00 25,000,000.00 8.214285714% 1.428571429% 0.000000000%
California,
N.A.
(formerly,
Union Bank)
CoreStates 14,000,000.00 11,000,000.00 5,000,000.00 30,000,000.00 5.000000000% 7.857142857% 5.882352941%
Bank, N.A.
The Long- 14,000,000.00 6,000,000.00 0.00 20,000,000.00 5.000000000% 4.285714286% 0.000000000%
Term Credit
Bank of
Japan, Ltd.
Mercantile 9,000,000.00 1,000,000.00 0.00 10,000,000.00 3.214285714% 0.714285714% 0.000000000%
Bank of St.
Louis National
Association
Fleet Bank, 14,000,000.00 11,000,000.00 0.00 25,000,000.00 5.000000000% 7.857142857% 0.000000000%
N.A.
First National 14,000,000.00 1,000,000.00 0.00 15,000,000.00 5.000000000% 0.714285714% 0.000000000%
Bank of
Maryland
Van Kampen 30,000,000.00 0.00 8,500,000.00 38,500,000.00 10.714285714% 0.000000000% 10.000000000%
American
Capital Prime
Rate Income
Trust
Banque 9,333,333.33 5,666,666.67 0.00 15,000,000.00 3.333333332% 4.047619050% 0.000000000%
Francaise du
Commerce
Exterieur
Prime Income 0.00 0.00 10,000,000.00 10,000,000.00 0.000000000% 0.000000000% 11.764705882%
Trust
Senior Debt 0.00 0.00 5,000,000.00 5,000,000.00 0.000000000% 0.000000000% 5.882352941%
Portfolio
Aeries 0.00 0.00 5,000,000.00 5,000,000.00 0.000000000% 0.000000000% 5.882352941%
Finance Ltd.
ING Capital 0.00 0.00 12,500,000.00 12,500,000.00 0.000000000% 0.000000000% 14.705882353%
Advisors
ABN AMRO 18,421,050.00 6,578,950.00 0.00 25,000,000.00 6.578946429% 4.699250000% 0.000000000%
Bank N.V.
-3-
Portion of
Portion of Revolving Portion of Term Loan Revolving Loan Fund Loan
Term Loan Loan Fund Loan Total Dollar Commitment Commitment Commitment
Banks Commitment Commitment Commitment Commitment Ratio Ratio Ratio
- ----------------- --------------- --------------- --------------- --------------- ------------- --------------- -------------
Societe 18,421,050.00 6,578,950.00 0.00 25,000,000.00 6.578946429% 4.699250000% 0.000000000%
Generale
The First 18,421,050.00 6,578,950.00 0.00 25,000,000.00 6.578946429% 4.699250000% 0.000000000%
National Bank
of Boston
Banque 7,368,421.05 2,631,578.95 0.00 10,000,000.00 2.631578946% 1.879699250% 0.000000000%
Nationale de
Paris
The Sumitomo 7,368,421.05 2,631,578.95 0.00 10,000,000.00 2.631578946% 1.879699250% 0.000000000%
Bank,
Limited,
Chicago
Branch
Captiva 0.00 0.00 5,000,000.00 5,000,000.00 0.000000000% 0.000000000% 5.882352941%
Finance Ltd.
Chase 0.00 0.00 10,000,000.00 10,000,000.00 0.000000000% 0.000000000% 11.764705882%
Securities,
Inc.
Total $280,000,000.00 $140,000,000.00 $85,000,000.00 $505,000,000.00 100.00% 100.00% 100.00%
"'Maturity Date' shall mean June 30, 2004 or such earlier date as
-------------
payment of the Loans under the Revolving Loan Commitment or the Term Loan
Commitment shall be due (whether by acceleration or otherwise)."
"'Revolving Loan Commitment' shall mean the several obligations of the
-------------------------
Banks issuing a Revolving Loan Commitment as indicated in the definition of
"Commitment Ratios" to advance the sum of up to $140,000,000 at any one
time outstanding, in accordance with their respective Revolving Loan
Commitment Ratios set forth in the definition of "Commitment Ratios," to
the Borrower pursuant to the terms hereof, as such obligations may be
reduced from time to time pursuant to the terms hereof."
"'Revolving Loan Notes' shall mean those certain second amended and
--------------------
restated revolving promissory notes (including Registered Notes) in the
aggregate principal amount of $140,000,000, one such note issued to each of
the Banks having a Revolving Loan Commitment hereunder by the Borrower,
each one substantially in the form of Exhibit A to the Fifth Amendment to
---------
this Agreement, and any extensions, renewals, amendments or substitutions
to any of the foregoing."
-4-
(b) Article 1 of the Loan Agreement, Definitions, is hereby further
amended by adding the following definitions in the appropriate alphabetical
order:
"'Masada' shall mean Masada Cable Partners, L.P., a Delaware limited
------
partnership."
"'Masada Acquisition Agreement' shall mean that certain CATV Asset
----------------------------
Purchase Agreement dated as of May 28, 1996 among Masada Cable Partners,
L.P. and CM Acquisition Corp. as assigned pursuant to that certain Amended
and Restated Assignment of Purchase Rights dated as of November 1, 1996
among CM Acquisition Corp and the Borrower, Charter Communications
Properties, Inc. and Charter Communications, L.P., 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."
"'Masada Acquisition Date' shall mean the date on which the Borrower
-----------------------
acquires the Masada Assets pursuant to the Masada Acquisition Agreement."
"'Masada Assets' shall mean those cable television assets of Masada
-------------
located in Franklin County, Jefferson County and St. Francois County,
Missouri to be acquired by the Borrower pursuant to the Masada Acquisition
Agreement."
2. Amendments to Article 2.
-----------------------
(a) Section 2.5 of the Loan Agreement, Revolving Loan Commitment
-------------------------
Reductions, is hereby amended by deleting the existing subsection (a) in its
- ----------
entirety and by substituting the following in lieu thereof:
"(a) Mandatory. Commencing September 30, 1997 and at the end of
---------
each calendar quarter thereafter, the Revolving Loan Commitment as in
effect on September 29, 1997 shall be automatically reduced by the
percentages set forth below:
Quarterly Percentage
Reduction of Revolving Loan
Commitment as in Effect
Dates of Reduction on September 29, 1997
------------------ ---------------------
September 30, 1997
and December 31, 1997 1.0500%
-5-
Quarterly Percentage
Reduction of Revolving Loan
Commitment as in Effect
Dates of Reduction on September 29, 1997
------------------ ---------------------
March 31, 1998, June 30,
1998, September 30, 1998
and December 31, 1998 2.2500%
March 31, 1999, June 30,
1999, September 30, 1999
and December 31, 1999 3.0000%
March 31, 2000, June 30,
2000, September 30, 2000
and December 31, 2000 3.0625%
March 31, 2001, June 30,
2001, September 30, 2001
and December 31, 2001 4.1250%
March 31, 2002, June 30,
2002, September 30, 2002
and December 31, 2002 5.0625%
March 31, 2003, June 30,
2003, September 30, 2003
and December 31, 2003 5.3125%
March 31, 2004
and June 30, 2004 3.3250%
The Borrower shall make a repayment of the Revolving Loans outstanding,
together with accrued interest thereon, on or before the effective date of
each reduction in the Revolving Loan Commitment under this Section 2.5(a),
such that the aggregate principal amount of the Revolving Loans outstanding
at no time exceeds the Revolving Loan Commitment as so reduced. In
addition, any remaining unpaid principal and interest under the Revolving
Loan Commitment shall be due and payable in full on the Maturity Date."
(b) Section 2.7 of the Loan Agreement, Repayments, is hereby amended
----------
by deleting the existing subsection (a)(i) thereto in its entirety and by
substituting the following in lieu thereof:
"(i) For the Term Loan. Commencing September 30, 1997, the
-----------------
principal balance of the Term Loan shall be amortized in consecutive
quarterly installments on September
-6-
30, December 31, March 31 and June 30 of each year until paid in full, in
such amounts as follows:
Percent of Principal
Due on Last Day
Payment Dates of Each Quarter
------------- ---------------
September 30, 1997
and December 31, 1997 1.0500%
March 31, 1998, June 30,
1998, September 30, 1998
and December 31, 1998 2.2500%
March 31, 1999, June 30,
1999, September 30, 1999
and December 31, 1999 3.0000%
March 31, 2000, June 30,
2000, September 30, 2000
and December 31, 2000 3.0625%
March 31, 2001, June 30,
2001, September 30, 2001
and December 31, 2001 4.1250%
March 31, 2002, June 30,
2002, September 30, 2002
and December 31, 2002 5.0625%
March 31, 2003, June 30,
2003, September 30, 2003
and December 31, 2003 5.3125%
March 31, 2004
and June 30, 2004 3.3250%"
(c) Section 2.7 of the Loan Agreement, Repayment, is hereby further
---------
amended by deleting the existing subsection 2.7(b) thereto in its entirety and
by substituting the following in lieu thereof:
"(b) Repayments Upon Sales of Assets and Asset Swaps. Except as
-----------------------------------------------
provided below with respect to Permitted Asset Swaps, in the event of any
sale, lease, transfer or other disposition of assets permitted hereunder,
excluding any such sale, lease, transfer or other disposition of assets by
the Borrower or any of its Subsidiaries in the ordinary course of business
(collectively, "Asset Sales"), to the extent that the Net Proceeds with
respect thereto (when
-7-
taken together with the Net Proceeds of all other Asset Sales made
subsequent to the Agreement Date) are in excess of $7,500,000 in the
aggregate for all Asset Sales made during the period from the Agreement
Date to the Final Maturity Date, the Borrower shall, on the date of such
sale, lease, transfer or other disposition, make a repayment of the
principal of the Term Loan and the Fund Loans then outstanding, and the
Revolving Loan Commitment shall be permanently and automatically reduced,
such that the outstanding principal amount of the Term Loan, the
outstanding principal amount of the Fund Loans and the amount of the
Revolving Loan Commitment are reduced, on a weighted pro rata basis among
the outstanding principal amount of the Term Loan and the Fund Loans and
the amount of the Revolving Loan Commitment, in an aggregate amount equal
to the Net Proceeds in excess of the first $7,500,000 of all such Asset
Sales. Any such Net Proceeds which constitute a portion of the sales price
which was previously held in escrow or paid in installments shall be paid
to the Banks as a repayment of principal, and the Revolving Loan Commitment
shall be permanently and automatically reduced, all to the extent required
by the terms hereof, at such time as such Net Proceeds are received by the
Borrower. In the event the Borrower elects to enter into a Permitted Asset
Swap, the Borrower shall, on the date it sells, leases, transfers or
otherwise disposes of all or substantially all of its interests in the
cable television system owned by the Borrower or any of its Subsidiaries in
the State of Connecticut, deposit in an escrow account with the
Administrative Agent an amount equal to the Net Proceeds of such sale,
lease, transfer or other disposition. The amount deposited in such escrow
account shall be held in such escrow account until the earlier to occur of
the consummation of the Permitted Asset Swap or the first anniversary of
the sale, lease, transfer or other disposition of such Connecticut assets
or interests relating thereto. Amounts held in such escrow account may be
invested as permitted under Section 7.6(i), (ii) and (iii) hereof, or as
otherwise agreed to by the Borrower and the Administrative Agent. Net
Proceeds held in escrow by the Administrative Agent may be used by the
Borrower at any time prior to the first anniversary of such sale, lease,
transfer or other disposition of Connecticut assets or interests to
consummate a Permitted Asset Swap or the Borrower may direct the
Administrative Agent to repay the principal amount of the Term Loan and the
Fund Loans and to permanently and automatically reduce the Revolving Loan
Commitment (on a weighted pro rata basis among the outstanding principal
amount of the Term Loan and the Fund Loans and the amount of the Revolving
Loan Commitment) in a like amount. On such first anniversary date, the
outstanding principal amount of
-8-
the Term Loan and the Fund Loans shall be automatically repaid and the
amount of the Revolving Loan Commitment shall be permanently and
automatically reduced (on a weighted pro rata basis among the outstanding
principal amount of the Term Loan and the Fund Loans and the amount of the
Revolving Loan Commitment) in an aggregate amount equal to the amount of
all Net Proceeds then remaining in escrow with the Administrative Agent
pursuant to this Section 2.7(b). All amounts paid pursuant to this
subsection shall be applied to principal of the Term Loan and the Fund
Loans, respectively, pro rata over the applicable repayment schedule set
forth in Section 2.7(a) above."
(d) Section 2.7 of the Loan Agreement, Repayment, is hereby further
---------
amended by deleting the date "April 30, 1998" appearing in the first sentence of
subsection (c), "Annual Excess Cash Flow Recapture," and substituting the date
---------------------------------
"April 30, 1999" in lieu thereof.
3. Amendments to Article 5.
-----------------------
(a) Section 5.9 of the Loan Agreement, Use of Proceeds, is hereby
---------------
amended by deleting the existing Section 5.9 in its entirety and by substituting
the following in lieu thereof:
"Section 5.9 Use of Proceeds. On and after the effective date
---------------
of the Fifth Amendment to this Agreement, the Borrower will use the
aggregate proceeds of the Revolving Loans (as set forth in the Requests for
Advances issued from time to time hereunder) to finance Capital
Expenditures, to finance the acquisition of the Masada Assets pursuant to
the Masada Acquisition Agreement and related transaction costs, for working
capital and for other partnership needs as permitted under this Agreement."
(b) Section 5.12 of the Loan Agreement, Interest Rate Hedging, is
---------------------
hereby amended by adding the following proviso at the end of the first sentence
of such Section immediately before the period:
"; provided, however, that, prior to February 27, 1997, no Default shall be
deemed to have arisen under this Section solely as a result of the
Borrower's failure to comply with the foregoing requirement with respect to
Advances made under the Revolving Loan Commitment which cause the aggregate
principal amount of Advances outstanding thereunder to exceed
$100,000,000."
-9-
4. Amendments to Article 7.
-----------------------
(a) Section 7.7 of the Loan Agreement, Restricted Payments and
-----------------------
Purchases, is hereby amended by deleting the existing subsection (b) thereof in
- ---------
its entirety and by substituting the following in lieu thereof:
"(b) so long as no Default hereunder then exists or would be
caused thereby, during the period from January 1, 1995 through and
including December 31, 2000, (i) pay management fees and financial advisory
fees in an aggregate amount for any fiscal year not to exceed $5,450,000,
provided, that, in the event the Leverage Ratio for each of the two (2)
most recently completed fiscal quarters for which financial statements of
the Borrower are required to have been provided to the Banks pursuant to
Section 6.1 hereof is less than 5.50 to 1.0, the Borrower may pay
management fees and financial advisory fees for the fiscal year during
which the second such fiscal quarter falls up to the greater of $5,450,000
or an aggregate amount not to exceed three percent (3%) of gross revenues
of the Borrower and its Restricted Subsidiaries on a consolidated basis for
such year, as determined in accordance with GAAP, and (ii) reimburse Kelso
for all reasonable out of pocket expenses incurred by it in connection with
its services under the Financial Advisory Agreement, all as the same may
become due and payable under the Management Agreement and the Financial
Advisory Agreement, or, in the case of the General Partner, the
predecessors to such Agreements;"
(b) Section 7.7 of the Loan Agreement, Restricted Payments and
-----------------------
Purchases, is hereby further amended by deleting the period at the end of
- ---------
existing subsection (h) thereof and substituting a semi-colon therefor, and
adding the following as a new subsection (i) thereof:
"(i) so long as no Default hereunder then exists or would be
caused thereby, pay Kelso and/or the Manager a search and acquisition fee
in an aggregate amount not to exceed $480,000 on the Masada Acquisition
Date."
(c) Section 7.8 of the Loan Agreement, Leverage Ratio, is hereby
--------------
amended by deleting the existing Section in its entirety and by substituting the
following in lieu thereof:
"Section 7.8 Leverage Ratio. (a) As of the end of any calendar
--------------
quarter, and (b) at the time of any Advance which increases the outstanding
principal amount of the Loans (after giving effect to such Advance), the
Borrower shall not permit the Leverage Ratio for the calendar quarter end
being tested in the case of Section 7.8(a) above, or the
-10-
most recent quarter end for which financial statements are required to have
been provided to the Agents and the Banks pursuant to Section 6.1 hereof in
the case of Section 7.8(b) above and after giving effect to the Advance as
of such date, to exceed the ratios set forth below for calculation dates
using financial statements for periods ending during the periods shown
below:
Leverage
Period Ratio
------ -----
January 18, 1995 6.50:1
through March 31, 1997
From April 1, 1997 6.25:1
through September 30, 1997
From October 1, 1997 6.00:1
through March 31, 1998
From April 1, 1998 5.50:1
through December 31, 1998
From January 1, 1999 5.00:1
through June 30, 1999
From July 1, 1999 4.50:1
through December 31, 1999
From January 1, 2000 and 4.00:1"
thereafter
(d) Section 7.9 of the Loan Agreement, Annualized Operating Cash Flow
------------------------------
to Fixed Charges, is hereby amended by deleting the existing Section in its
- ----------------
entirety and by substituting the following in lieu thereof:
"Section 7.9 Annualized Operating Cash Flow to Fixed Charges Ratio.
-----------------------------------------------------
As of September 30, 1998 and as of the end of each calendar quarter
thereafter, the Borrower shall not permit the ratio of Annualized Operating
Cash Flow for the calendar quarter end being tested to Fixed Charges for
the four (4) calendar quarters immediately preceding the calculation date
to be less than 1.0 to 1.0."
(e) Section 7.15 of the Loan Agreement, Capital Expenditures, is
--------------------
hereby amended by deleting the existing Section in its entirety and by
substituting the following in lieu thereof:
Section 7.15 Capital Expenditures. The Borrower shall not permit the
--------------------
aggregate amount of Capital Expenditures made by the Borrower and its
Subsidiaries (and,
-11-
prior to the Agreement Date, by the General Partner and its Subsidiaries),
on a consolidated basis, in any period set forth below to exceed as of the
end of such period the sum of (a) the limit for such period, as set forth
below, plus (b) any unexpended portion of the Capital Expenditures limit
set forth below for the preceding period.
Capital
Period Expenditures Limit
------ ------------------
From January 18, 1995 $23,500,000
through December 31, 1995
From January 1, 1996 $40,300,000
through December 31, 1996
From January 1, 1997 $42,500,000
through December 31, 1997
From January 1, 1998 $18,500,000
through September 30, 1998
There shall be no dollar limitation on Capital Expenditures after September
30, 1998."
5. Amendment to Article 8.
----------------------
(a) Section 8.1 of the Loan Agreement, Events of Default, is hereby
-----------------
amended by adding the following at the end of existing subsection (w) thereof
immediately before the period:
", other than that certain Guaranty dated as of September 29, 1995 issued
by CCELP for the benefit of H C Crown Corp., as the same may be amended,
restated or otherwise modified from time to time with the prior written consent
of the Majority Banks."
6. 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 but one and the same instrument.
7. Governing Law. This Amendment shall be construed in accordance with
-------------
and governed by the laws of the State of New York.
8. Severability. Any provision of this Amendment which is prohibited or
------------
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.
-12-
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
------------------------------
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 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, and the consummation of 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 which has not already been obtained, nor contravene or be in
conflict with the partnership
-13-
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
--------------------
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) Each of the Banks having a portion of the Revolving Loan
Commitment shall have received a duly executed Revolving Loan Note in
substantially the form attached hereto as Exhibit A, which promissory notes
---------
shall be deemed to be "Notes" under the Loan Agreement and the other Loan
Documents for all purposes hereafter;
(b) The Administrative Agent or the Banks, as appropriate, shall have
received each of the following, in form and substance satisfactory to the
Administrative Agent and the Banks:
(i) 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 to the consummation of
the Borrower's acquisition of the Masada Assets, 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 consummation of the
Borrower's acquisition of the Masada Assets;
(ii) All documentation required under Section 5.13 of the Loan
Agreement with respect to the Borrower's acquisition of the Masada Assets;
(iii) Copies of the Masada Acquisition Agreement and all other
documents related to the transfer of the Masada Assets to the Borrower,
including, without limitation, lien search results from appropriate
jurisdictions with respect to the Masada Assets, all of which shall be certified
by an Authorized Signatory to be true, complete and correct as of the date
hereof, together with duly executed UCC-1 financing statements and other
collateral documentation deemed reasonably necessary by the Administrative Agent
to reflect or perfect the Security Interest of the Administrative Agent (for
itself and on behalf of the Banks) in such assets;
(iv) Opinions of general counsel, local counsel and in-house
counsel to the Borrower and its Subsidiaries, addressed to the Banks and the
Administrative Agent and
-14-
satisfactory to the Administrative Agent and its special counsel, dated as of
the date hereof;
(v) Opinions or comfort letters regarding the Masada Assets and
the Masada Acquisition Agreement given by FCC counsel to the Borrower, addressed
to the Banks and the Administrative Agent and satisfactory to the Administrative
Agent and its special counsel, dated as of the date hereof;
(v) Reliance letters regarding opinions of counsel to Masada, in
form and substance satisfactory to the Administrative Agent and its special
counsel, dated as of the date hereof;
(vi) Evidence satisfactory to the Administrative Agent and its
special counsel that the Borrower has acquired the Masada Assets pursuant to the
Masada Acquisition Agreement;
(viii) Duly executed Certificate of Financial Condition dated as of
the date hereof;
(ix) Copies of all approvals or consents regarding the transfer
to the Borrower of all franchises and contracts constituting a part of the
Masada Assets;
(x) Pro forma balance sheet with respect to the Borrower, after
giving effect to the transactions contemplated hereby; and
(xi) 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;
(c) The Licenses constituting a part of the Masada Assets shall be in
form and substance satisfactory to the Administrative Agent, and the
Administrative Agent shall have received evidence reasonably satisfactory to it
that all Necessary Authorizations, including all necessary consents to the
consummation of the Borrower's acquisition of the Masada Assets and the other
transactions contemplated hereby, from the grantors of the Licenses have been
obtained or made, are in full force and effect and are not subject to any
pending or threatened reversal or cancellation, and the Administrative Agent and
the Banks shall have received a certificate of an Authorized Signatory so
stating;
(d) The Administrative Agent for each of the Banks shall have
received from the Borrower for the account of the Banks an amendment fee (the
"Amendment Fee") by wire transfer of immediately available funds equal to the
product of (i) each
-15-
Bank's pro rata portion of the Revolving Loan Commitment, the Term Loan
Commitment and the Fund Loan Commitment as of the day immediately prior to the
effective date of this Amendment, multiplied by (ii) 0.125%, and all other fees
payable to the Administrative Agent or any Bank in connection herewith; and
(e) 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
--------------
for all purposes.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-16-
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
/s/ Jerald L. Kent
By: ________________________________________________
Its: President
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC., as Administrative Agent
/s/ Diane Bailey
By: ________________________________________________
Its: Vice President
DOCUMENTATION AGENTS: TORONTO DOMINION (TEXAS), INC., as a Documentation
Agent
/s/ Diane Bailey
By: ________________________________________________
Its: Vice President
THE CHASE MANHATTAN BANK (formerly, Chemical Bank), as
a Documentation
Agent
/s/ John J. Huber, III
By: ________________________________________________
Its: Managing Director
MANAGING AGENTS: TORONTO DOMINION (TEXAS), INC., as a
Managing Agent
/s/ Diane Bailey
By: ________________________________________________
Its: Vice President
FIFTH AMENDMENT TO LOAN AGREEMENT
CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P.
Signature Page 1
MANAGING AGENTS: THE CHASE MANHATTAN BANK (formerly,
(continued) Chemical Bank), as a Managing Agent
/s/ John J. Huber, III
By: ________________________________________________
Its: Managing Director
CIBC INC., as a Managing Agent
/s/ Matthew B. Jones
By: ________________________________________________
Its: Vice President
CREDIT LYONNAIS CAYMAN ISLAND BRANCH,
as a Managing Agent
/s/ Mark D. Thorsheim
By: ________________________________________________
Its: Authorized Signatory
NATIONSBANK, N.A., as a Managing Agent
/s/ Jennifer Zydney
By: ________________________________________________
Its: Vice President
CO-AGENTS: BANQUE PARIBAS, as a Co-Agent
/s/ Bryan G. Petermann
By: ________________________________________________
Its: Vice President
/s/ John G. Acker
By: ________________________________________________
Its: Group Vice President
UNION BANK OF CALIFORNIA, N.A. (formerly, Union Bank),
as a Co-Agent
/s/ B. Adam Trout
By: ________________________________________________
Its: Assistant Vice President
FIFTH AMENDMENT TO LOAN AGREEMENT
CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P.
Signature Page 2
CO-AGENTS CORESTATES BANK, N.A., as a Co-Agent
(continued)
/s/ Anthony B. Parisi
By: ________________________________________________
Its: Vice President
FLEET BANK, N.A., as a Co-Agent
/s/ M.A. Cerullo
By: ________________________________________________
Its: Vice President
ABN AMRO BANK N.V., as a Co-Agent
/s/ James J. Johnson
By: ________________________________________________
Its: Vice President
/s/ Mary L. Honda
By: ________________________________________________
Its: Vice President
SOCIETE GENERALE, as a Co-Agent
/s/ John Sadik-Khan
By: ________________________________________________
Its: Vice President
THE FIRST NATIONAL BANK OF BOSTON, as a Co-Agent
/s/ Cindy C. Chen
By: ________________________________________________
Its: Director
BANKS: TORONTO DOMINION (TEXAS), INC., as a
Bank
/s/ Diane Bailey
By: ________________________________________________
Its: Vice President
FIFTH AMENDMENT TO LOAN AGREEMENT
CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P.
Signature Page 2B
BANKS THE CHASE MANHATTAN BANK (formerly,
(continued) 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 D. Thorsheim
By: ________________________________________________
Its: Authorized Signatory
NATIONSBANK, N.A., as a Bank
/s/ Jennifer Zydney
By: ________________________________________________
Its: Vice President
BANQUE PARIBAS, as a Bank
/s/ Bryan G. Petermann
By: ________________________________________________
Its: Vice President
/s/ John G. Acker
By: ________________________________________________
Its: Group Vice President
UNION BANK OF CALIFORNIA, N.A. (formerly Union Bank),
as a Bank
/s/ B. Adam Trout
By: ________________________________________________
Its: Assistant Vice President
BANKS CORESTATES BANK, N.A., as a Bank
FIFTH AMENDMENT TO LOAN AGREEMENT
CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P.
Signature Page 3B
(continued)
/s/ 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
MERCANTILE BANK OF ST. LOUIS NATIONAL ASSOCIATION, as a
Bank
/s/ Gregory D. Knudsen
By: ________________________________________________
Its: Vice President
FLEET BANK, N.A., as a Bank
/s/ M.A. Cerullo
By: ________________________________________________
Its: Vice President
FIRST NATIONAL BANK OF MARYLAND, as a Bank
/s/ Mark L. Cook
By: ________________________________________________
Its: Senior Vice President
VAN KAMPEN AMERICAN CAPITAL PRIME RATE INCOME TRUST, as
a Bank
/s/ Brian W. Good
By: ________________________________________________
Its: Vice President
FIFTH AMENDMENT TO LOAN AGREEMENT
CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P.
Signature Page 4B
BANKS BANQUE FRANCAISE DU COMMERCE
(continued) 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: Authorized Signatory
SENIOR DEBT PORTFOLIO, as a Bank
By: Boston Management and Research, as Investment
Advisor
/s/ Scott Page
By: ________________________________________________
Its: Vice President and Portfolio Manager
AERIES FINANCE LTD., as a Registered Noteholder
/s/ Andrew Wignall
By: ________________________________________________
Its: Director
ING CAPITAL ADVISORS, INC., as agent for Bank
syndication account
/s/ Kathleen A. Lenarcic
By: ________________________________________________
Its: Vice President & Portfolio Manager
FIFTH AMENDMENT TO LOAN AGREEMENT
CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P.
Signature Page 5B
BANKS ABN AMRO BANK N.V., as a Bank
(continued)
/s/ James J. Johnson
By: ________________________________________________
Its: Vice President
/s/ Mary L. Honda
By: ________________________________________________
Its: Vice President
SOCIETE GENERALE, as a Bank
/s/ John Sadik-Khan
By: ________________________________________________
Its: Vice President
THE FIRST NATIONAL BANK OF BOSTON, as a Bank
/s/ Cindy C. Chen
By: ________________________________________________
Its: Director
BANQUE NATIONALE DE PARIS, as a Bank
/s/ Mark Whitson
By: ________________________________________________
Its: Vice President
/s/ Pamela Lucash
By: ________________________________________________
Its: Assistant Treasurer
FIFTH AMENDMENT TO LOAN AGREEMENT
CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P.
Signature Page 6B
BANKS THE SUMITOMO BANK, LIMITED, CHICAGO
(continued) BRANCH, as a Bank
/s/ Hiroyuki Iwami
By: ________________________________________________
Its: Joint General Manager
CAPTIVA FINANCE LTD., as a Registered Noteholder
/s/ Darrin Riley
By: ________________________________________________
Its: Director
CHASE SECURITIES INC., as agent for The Chase Manhattan
Bank, as a Bank
/s/ Matthew B. Leahey
By: ________________________________________________
Its: Vice President
FIFTH AMENDMENT TO LOAN AGREEMENT
CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P.
Signature Page 7B