EXHIBIT 10.43
LIMITED WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT
THIS LIMITED WAIVER AND SECOND AMENDMENT TO TERM LOAN AGREEMENT (this
"Second Amendment"), is made as of August 1, 2005, by and among NORTHLAND CABLE
PROPERTIES SEVEN LIMITED PARTNERSHIP ("Borrower"), NORTHLAND COMMUNICATIONS
CORPORATION ("Guarantor" and, together with Borrower, the "Credit Parties") and
CIT LENDING SERVICES CORPORATION, as Agent and Lender.
WHEREAS, Borrower, Guarantor, the Agent and Lender are party to that
certain Term Loan Agreement, dated as of November 6, 2003, as amended by that
certain Limited Waiver and First Amendment to Term Loan Agreement, dated as of
March 28, 2005 (the "First Amendment")(as the same may be amended, the "Loan
Agreement"), whereby Lenders originally extended to Borrower a term loan of
Twenty-one Million Five Hundred Thousand and 00/100ths Dollars ($21,500,000)
pursuant to the Loan Agreement and the Loan Documents (as defined in the Loan
Agreement);
WHEREAS, certain Required Asset Sale Events contemplated by the First
Amendment were not consummated on or before June 30, 2005 resulting in the
Additional June 2005 Margin Amount becoming applicable to the Loan;
WHEREAS, Borrower anticipates the Required Asset Sale Events will be
consummated on or about August 1, 2005 generating net proceeds of $6,487,011
(the "Brenham Sale Proceeds") which pursuant to the First Amendment are required
to be used to repay the Term Loan;
WHEREAS, Borrower has requested that, notwithstanding the terms and
conditions of the First Amendment that Agent and Lender permit Borrower to
retain $300,000 of the Brenham Sale Proceeds (the "Retained Amounts") to be used
by Borrowers for certain Capital Expenditures relating to the Systems;
WHEREAS, Borrower has additionally requested that Agent and Lender amend
certain provisions of the Loan Agreement relating to amortization of the Term
Loan and certain Financial Covenants;
WHEREAS, Agent and Lender are willing to (i) waive applicability of the
Additional June 2005 Margin Amount; (ii) permit Borrower to retain the Retained
Amounts; and (iii) amend certain provision of the Loan Agreement, all on the
terms and subject to the conditions set forth herein.
CIT - Northland VII
limited Waiver and Second Amendment
NOW, THEREFORE, in consideration of the foregoing premises, and other good
and valuable consideration, the receipt and legal sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. Unless otherwise defined herein, capitalized terms used herein
shall have the meanings assigned to them in the Loan Agreement, as amended
hereby.
2. LIMITED WAIVER. Subject to the terms and conditions of this Second Amendment,
the Agent and Lender hereby waive any requirement that Borrower pay the
Additional June 2005 Margin Amount.
3. AMENDMENTS TO LOAN AGREEMENT. The Loan Agreement is hereby amended as
follows:
(a) Section 1.1(a)(ii) of the Loan Agreement is hereby deleted in its
entirety and in lieu thereof replaced by the following:
(ii) Borrower shall, without setoff, deduction or counterclaim, repay
the principal amount of the Term Loan in twenty-one (21) consecutive
quarterly installments on the last day of March, June, September and
December of each Fiscal Year, commencing March 31, 2004, followed by a
final installment on the Maturity Date, when all remaining outstanding
principal and accrued interest thereon shall be due and payable in full
without setoff, deduction or counterclaim. Quarterly payments of principal
in respect of the Term Loan shall be in the amounts set forth below:
AMOUNT OF QUARTERLY
QUARTERLY DUE DATES PRINCIPAL PAYMENT
- ------------------- -------------------
March 31, 2004 through December 31, 2004 $806,250
March 31, 2005 and June 30, 2005 $ 0
September 30, 2005 and December 31, 2005 $ 55,646
March 31, 2006 through December 31, 2006 $243,674
March 31, 2007 through December 31, 2007 $301,045
March 31, 2008 through December 31, 2008 $358,360
Maturity Date The then remaining
outstanding and
unpaid principal
balance of the
Term Loan.
(b) Section 6.10(c) of the Loan Agreement is hereby deleted in its entirety
and in lieu thereof replaced by the following:
(c) Maximum Total Leverage Ratio. Borrower shall have, at the end of
each Fiscal Quarter set forth below, a Total Leverage Ratio as of the
last day of such Fiscal Quarter of not more than the following;
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4.75 to 1.00 for the Fiscal Quarters ending September 30, 2003,
December 31, 2003 and March 31, 2004;
4.50 to 1.00 for the Fiscal Quarters ending June 30, 2004,
September 30, 2004, and December 31, 2004;
4.75 to 1.00 for the Fiscal Quarters ending March 31, 2005 and
June 30, 2005;
2.25 to 1.00 for the Fiscal Quarter ending September 30, 2005
and for each Fiscal Quarter ending thereafter.
4. ACKNOWLEDGMENT. The agreement of the Agent and Lender to make the amendments
and grant the limited waiver contained herein does not and shall not create (nor
shall any Credit Party rely upon the existence of or claim or assert that there
exists) any obligation of the Agent or Lender to consider or agree to any
further amendments or waivers. In the event Agent or Lender subsequently agree
to consider any further amendments or waivers, neither the amendment or waivers
contained herein nor any other conduct of Agent or Lender shall be of any force
or effect on the Agent's or Lender's consideration or decision with respect to
any such requested amendment or waiver.
5. REPRESENTATIONS, WARRANTIES, COVENANTS AND ACKNOWLEDGMENTS. To induce the
Agent and Lender to enter into this Second Amendment, each Credit Party does
hereby:
(a) represent and warrant that (i) as of the date hereof, all of the
representations and warranties made or deemed to be made under the Loan
Documents are true and correct, except for such representations and warranties
which, by their express terms, are applicable only to the Closing Date; (ii) as
of the date hereof, after giving effect to the terms hereof, there exists no
Default or Event of Default under the Loan Agreement or any of the other Loan
Documents; (iii) such Credit Party has the power and is duly authorized to enter
into, deliver and perform this Second Amendment; (iv) this Second Amendment is
the legal, valid and binding obligation of such Credit Party enforceable against
such Credit Party in accordance with its terms; and (iv) that all Retained
Amounts will be used for Borrower solely for purposes of funding certain Capital
Expenditures relating to the Systems owned by Borrower as of the date of this
Second Amendment and otherwise in accordance with the Loan Agreement; and
(b) reaffirm each of the agreements, covenants, and undertakings set forth
in the Loan Agreement and each and every other Loan Document executed in
connection therewith or pursuant thereto as if such Credit Party were making
said agreements, covenants and undertakings on the date hereof; and
(c) acknowledge and agree that no right of offset, defense, counterclaim,
claim, causes of action or objection in favor of such Credit Party against the
Agent or Lender exists arising out of or with respect to (i) this Second
Amendment, the Loan Agreement or any of the other Loan
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Documents or (ii) any other documents now or heretofore evidencing, securing or
in any way relating to the foregoing.
6. RELEASE; INDEMNITEES.
(a) In further consideration of the execution of this Second Amendment by
the Agent and Lender, each Credit Party, individually and on behalf of its
successors (including, without limitation, any trustees acting on behalf of such
Credit Party and any debtor-in-possession with respect to such Credit Party),
assigns, subsidiaries and Affiliates, hereby forever releases the Agent, Lender
and their respective successors, assigns, parents, subsidiaries, Affiliates,
officers, employees, directors, agents and attorneys (collectively, the
"Releasees") from any and all debts, claims, demands, liabilities,
responsibilities, disputes, causes, damages, actions and causes of actions
(whether at law or in equity) and obligations of every nature whatsoever,
whether liquidated or unliquidated, whether known or unknown, matured or
unmatured, fixed or contingent (collectively, "Claims") that such Credit Party
may have against the Releasees which arise from or relate to any actions which
the Releasees may have taken or omitted to take in connection with the Loan
Agreement or the other Loan Documents prior to the date this Second Amendment,
including, without limitation, with respect to the Obligations, any Collateral,
the Loan Agreement, any other Loan Document and any third parties liable in
whole or in part for the Obligations. This provision shall survive and continue
in full force and effect whether or not each Credit Party shall satisfy all
other provisions of this Second Amendment, the Loan Agreement or the other Loan
Documents, including payment in full of all Obligations.
(b) Each Credit Party hereby agrees that its obligation to indemnify and
hold the Releasees harmless as set forth in Section 6(a) shall include an
obligation to indemnify and hold the Releasees harmless with respect to any and
all liabilities, obligations, losses, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever incurred by
the Releasees, or any of them, whether direct, indirect or consequential, as a
result of or arising from or relating to any proceeding by, or on behalf of any
Person, including, without limitation, officers, directors, agents, trustees,
creditors, partners or shareholders of any Credit Party or any parent,
subsidiary or Affiliate of any Credit Party, whether threatened or initiated,
asserting any claim for legal or equitable remedy under any statutes, regulation
or common law principle arising from or in connection with the negotiation,
preparation, execution, delivery, performance, administration and enforcement of
this Second Amendment and the other Loan Documents. The foregoing indemnity
shall survive the payment in full of the Obligations and the termination of this
Second Amendment, the Loan Agreement and the other Loan Documents.
7. CONDITIONS TO EFFECTIVENESS. The effectiveness of this Second Amendment is
subject to the following conditions precedent:
(a) Borrower shall have delivered to Agent six (6) executed counterpart
originals of this Second Amendment;
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(b) All of the representations and warranties made or deemed to be made in
this Second Amendment and under the Loan Documents shall be true and correct as
of the date of this Second Amendment;
(c) the Brenham Asset Sale shall be consummated on or before August 5, 2005
and the net proceeds thereof (less the Retained Amounts) shall be paid to the
Agent for application to the Term Loan in accordance with the Loan Agreement;
and
(d) Borrower shall have paid on or before the date hereof to counsel for
Agent any and all outstanding fees and other charges owing to such counsel
incurred in connection with the transactions evidenced by the Loan Agreement and
other Loan Documents, including without limitation, any such fees incurred in
connection with this Second Amendment.
8. EFFECT; RELATIONSHIP OF PARTIES. Except as expressly amended hereby, the Loan
Agreement and each other Loan Document shall be and remain in full force and
effect as originally written, and shall constitute the legal, valid, binding and
enforceable obligations of each Credit Party to the Agent and Lender. The
relationship of the Agent and Lender, on the one hand, and each Credit Party, on
the other hand, has been and shall continue to be, at all times, that of
creditor and debtor and not as joint venturers or partners. Nothing contained in
this Second Amendment, any instrument, document or agreement delivered in
connection herewith or in the Loan Agreement or any of the other Loan Documents
shall be deemed or construed to create a fiduciary relationship between or among
the parties.
9. MISCELLANEOUS. This Second Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which, when so executed and delivered, shall be deemed to be an original and all
of which counterparts, taken together, shall constitute but one and the same
instrument. This Second Amendment shall be binding upon and inure to the benefit
of the successors and permitted assigns of the parties hereto. This Second
Amendment shall be governed by, and construed in accordance with, the laws of
the State of New Jersey. This Second Amendment embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written negotiations, agreements and
understandings of the parties with respect to the subject matter hereof. Time is
of the essence of this Second Amendment and of the Loan Agreement.
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IN WITNESS WHEREOF, the Credit Parties, the Agent and Lenders have caused
this Second Amendment to be duly executed as of the 1st day of August, 2005.
BORROWER:
NORTHLAND CABLE PROPERTIES
SEVEN LIMITED PARTNERSHIP
By: Northland Communications Corporation,
its Managing General Partner
By: /s/ GARY S. JONES
-------------------------------------
Name: Gary S. Jones
Title: President
GUARANTOR:
NORTHLAND COMMUNICATIONS CORPORATION
By: /s/ GARY S. JONES
-------------------------------------
Name: Gary S. Jones
Title: President
AGENT AND LENDER:
CIT LENDING SERVICES CORPORATION,
as Agent and Lender
By: /s/ JOSEPH JUNDA
-------------------------------------
Name: Joseph Junda
-----------------------------------
Title: Vice President
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