EXHIBIT 10.1
AMENDMENT NO. 1 TO CREDIT AGREEMENT
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and
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AMENDMENT NO. 1 TO GUARANTEE AGREEMENT
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AMENDMENT NO. 1, dated as of April 18, 2002 (this "Amendment"), to and
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under (i) the Credit Agreement, dated as of January 5, 2001, among Insight
Midwest Holdings, LLC, the Lenders party thereto, Bank of America, N.A. and TD
Securities (USA), Inc., as Co-Syndication Agents, Fleet National Bank, as
Documentation Agent, and The Bank of New York, as Administrative Agent (as
amended, supplemented, or otherwise modified, the "Credit Agreement"), and (ii)
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the Guarantee Agreement (as defined in the Credit Agreement).
RECITALS
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A. Capitalized terms used herein that are defined in the Credit
Agreement shall have the same meanings as therein defined.
B. The Borrower has requested that the Administrative Agent agree to
amend the Credit Agreement and the Guarantee Agreement as described below and
the Administrative Agent is willing to so agree subject to the terms and
conditions contained in this Amendment.
Accordingly, in consideration of the Recitals and the covenants,
conditions and agreements hereinafter set forth, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Borrower and the Administrative Agent hereby agree as follows:
1. Section 1.1 of the Credit Agreement is hereby amended by adding
the following defined terms in the appropriate alphabetical order:
"Ohio Distribution Amount" means, as of any date of determination,
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an amount equal to (i) from the Effective Date through March 31, 2002,
$37,000,000, (ii) from April 1, 2002 through December 31, 2002,
$57,000,000, (iii) from January 1, 2003 through December 31, 2003,
$67,000,000, and (iv) at all times thereafter, $77,000,000.
"Parent Loan" means the loan made by Insight Holdings, in cash, to
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the Parent in the principal sum of $100,000,000, as evidenced by the
Parent Loan Note.
"Parent Loan Note" means the promissory note attached hereto as
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Exhibit J.
2. The defined term "Designated Holding Company Debt" contained in
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Section 1.1 of the Credit Agreement is hereby amended by adding the following
sentence to the end thereof:
The Parent Loan shall constitute Designated Holding Company Debt.
3. The defined term "Consolidated Pro Forma Interest Expense"
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contained in Section 1.1 of the Credit Agreement is hereby amended by deleting
the parenthetical phrase
"(other than any non-cash portion thereof)" in both places in which such phrase
appears and inserting the following in its place:
(other than any non-cash portion thereof and, with respect to the
Parent Loan, any payment of interest thereon)
4. Each of subsections (d), (g) and (h) of Section 7.8 of the Credit
Agreement is hereby amended and restated in the form of the following paragraph
bearing the same designation:
(d) the Borrower may declare and pay dividends and other
distributions to holders of its Equity Interests, provided that (1)
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such distributions are for the sole purpose of paying cash interest
that is due and payable on Designated Holding Company Debt (other than
the Parent Loan), (2) after giving effect to any such distribution,
the Borrower would be in pro forma compliance with all financial
covenants including the Pro Forma Debt Service Ratio, and (3) no
Default or Event of Default shall be in existence or would result
therefrom;
(g) the Borrower may make one or more distributions to the Parent
to allow the Parent to make investments in Insight Ohio or Insight
Ohio Holdings, provided that both immediately before and after giving
effect thereto (i) the aggregate sum of all distributions pursuant to
this Section 7.8(g) shall not have a fair market value (determined at
the time of each such distribution) in excess of the Ohio Distribution
Amount, and (ii) no Default shall be in existence or would occur; and
(h) the Borrower may make one or more Restricted Payments (i) to
the Parent in an aggregate amount not to exceed the initial principal
amount of, and capitalized or accrued and unpaid interest from time to
time on, the Parent Loan, provided that immediately before and after
giving effect to each such Restricted Payment (a) no Default shall be
in existence or would result therefrom, and (b) the Leverage Ratio
shall and would be less than 4.25:1.00, and (ii) for any purpose,
provided that immediately before and after giving effect to each such
Restricted Payment (a) no Default shall be in existence or would
result therefrom, and (b) the Leverage Ratio shall and would be less
than 3.25:1.00.
5. Section 7.9 of the Credit Agreement is hereby amended by adding
the following phrase immediately before the period at the end of such Section:
, and provided further that this Section shall not apply to any
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transaction that is permitted under clauses (g) or (h) of Section
7.8.
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6. Section 7.14 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
Section 7.14 Leverage Ratio
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The Borrower will not permit the Leverage Ratio at any time
during any period set forth below to be greater than the ratio set
forth below with respect to such period:
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Period Ratio
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Agreement Date through June 30, 2002 5.50:1.00
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July 1, 2002 through June 30, 2003 5.25:1.00
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July 1, 2003 through June 30, 2004 4.75:1.00
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July 1, 2004 through June 30, 2005 4.25:1.00
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July 1, 2005 through June 30, 2006 3.75:1.00
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July 1, 2006 and thereafter 3.25:1.00
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7. The Credit Agreement is further amended by adding thereto a new
Exhibit J in the form of Exhibit J to this Amendment.
8. Section 10 of the Guarantee Agreement is hereby amended by adding
the following to the end of such Section:
In addition to the foregoing, (i) the Parent shall use all proceeds of
Restricted Payments made by the Borrower pursuant to Section 7.8(g) of
the Credit Agreement to make investments in Insight Ohio or Insight
Ohio Holdings, (ii) the Parent shall use all proceeds of Restricted
Payments made by the Borrower pursuant to Section 7.8(h)(i) of the
Credit Agreement to repay the principal of, and capitalized or accrued
and unpaid interest on, the Parent Loan, and (iii) the Parent shall
not, and shall not permit the Borrower or any Subsidiary thereof, to
agree to amend, supplement or otherwise modify the terms of the Parent
Loan in any way that would be adverse to the interests of the Lenders,
including any amendment, supplement or other modification that would
(1) increase the rate or effective rate of interest thereon, (2) add
any make-whole or other premium, any prepayment or other penalty or any
fee or any other cost or expense with respect thereto, (3) cause any
payment in respect of the principal of, or interest (other than
interest that is payable-in-kind) on the Parent Loan to be due and
payable prior to December 31, 2010, (4) grant or agree to grant any
collateral security for the repayment of any principal, interest or
other amount in respect of the Parent Loan, or (5) have the Borrower or
any Subsidiary issue or agree to issue any Guarantee in respect of all
or any portion of the principal, interest or other sum in respect of
the Parent Loan.
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9. Paragraphs 1 through 8 above shall not be effective until such
time, if any, as each of the following shall have occurred, provided that each
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of the following shall have occurred on or before May 15, 2002:
(a) the Administrative Agent (or its counsel) shall have received
from the Issuing Bank, Required Lenders and each of the Loan Parties
either (i) a counterpart of this Amendment signed on behalf of such
Person or (ii) written evidence satisfactory to the Administrative
Agent (which may include facsimile transmission of a signed signature
page of this Amendment) that such Person has signed a counterpart of
this Amendment,
(b) the Administrative Agent shall have received from the
Borrower a certificate signed by a Financial Officer, acknowledging
the Borrower's receipt, following March 31, 2002, of a capital
contribution by the Parent, in cash, in an amount not less than
$97,000,000,
(c) following March 31, 2002, the Borrower shall have prepaid the
aggregate outstanding principal balance of the Revolving Loans by not
less than $97,000,000,
(d) the Borrower shall have paid to the Administrative Agent, for
the account of each Lender that shall execute and deliver this
Amendment to the Administrative Agent on or prior to April 18, 2002,
an amendment fee equal to 0.10% of the aggregate sum of (i) such
Lender's Revolving Commitment and (ii) the outstanding principal
balance of such Lender's Term Loans, and
(e) the Administrative Agent shall have received all other fees
and expenses payable by the Loan Parties in connection with this
Amendment, including, without limitation, all reasonable fees and
disbursements of its counsel to the extent invoiced.
10. Each of the Loan Parties hereby (i) reaffirms and admits the
validity and enforceability of each Loan Document to which it is a party and
its obligations thereunder, and agrees and admits that it has no defense to or
offset against any such obligation, and (ii) represents and warrants that, as
of the date hereof, (a) it is in compliance with all of the terms, covenants
and conditions of each Loan Document to which it is a party, (b) there exists
no Default and (c) the representations and warranties made by it in the Loan
Documents are true and correct with the same effect as though such
representations and warranties had been made on the date hereof.
11. This Amendment may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an
original, but all of which, when taken together, shall constitute but one
contract. Delivery of an executed counterpart of a signature page of this
Amendment by facsimile transmission shall be effective as delivery of a
manually executed counterpart of this Amendment.
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12. The Credit Agreement, the Guarantee Agreement and the other Loan
Documents shall in all other respects remain in full force and effect, and no
amendment, consent, waiver, or other modification herein in respect of any term
or condition of any Loan Document shall be deemed to be an amendment, consent,
waiver, or other modification in respect of any other term or condition of any
Loan Document.
13. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
[SIGNATURE PAGES FOLLOW]
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INSIGHT MIDWEST HOLDINGS, LLC
AMENDMENT NO. 1 TO CREDIT AGREEMENT
and
AMENDMENT NO. 1 TO GUARANTEE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
1 to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
INSIGHT MIDWEST HOLDINGS, LLC
By: Insight Midwest L.P., its sole member
By: Insight Communications Company, L.P., its sole
general partner
By: Insight Communications Company, Inc., its sole
general partner
By: ______________________________________________
Name: ____________________________________________
Title:____________________________________________
CONSENTED AND AGREED TO:
INSIGHT MIDWEST L.P.
By: Insight Communications Company L.P., its sole general
partner
By: Insight Communications Company Inc., its sole general
partner
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
INSIGHT MIDWEST HOLDINGS, LLC
AMENDMENT NO. 1 TO CREDIT AGREEMENT
and
AMENDMENT NO. 1 TO GUARANTEE AGREEMENT
CONSENTED AND AGREED TO:
INSIGHT COMMUNICATIONS MIDWEST, LLC
By: Insight Midwest Holdings, LLC, its sole member
By: Insight Midwest L.P., its sole member
By: Insight Communications Company, L.P., its sole general
partner
By: Insight Communications Company, Inc., its sole general
partner
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
CONSENTED AND AGREED TO:
INSIGHT COMMUNICATIONS OF KENTUCKY, L.P.
By: Insight Midwest Holdings, LLC, its general partner
By: Insight Midwest, L.P., its sole member
By: Insight Communications Company, L.P., its general
partner
By: Insight Communications Company, Inc., its general
partner
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
INSIGHT MIDWEST HOLDINGS, LLC
AMENDMENT NO. 1 TO CREDIT AGREEMENT
and
AMENDMENT NO. 1 TO GUARANTEE AGREEMENT
CONSENTED AND AGREED TO:
INSIGHT KENTUCKY PARTNERS I, L.P.
By: Insight Communications of Kentucky, L.P., its general
partner
By: Insight Midwest Holdings, LLC, its general partner
By: Insight Midwest, L.P., its sole member
By: Insight Communications Company, L.P., its general
partner
By: Insight Communications Company, Inc., its general
partner
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
CONSENTED AND AGREED TO:
INSIGHT KENTUCKY PARTNERS II, L.P.
By: Insight Kentucky Partners I, L.P., its general partner
By: Insight Communications of Kentucky, L.P., its general
partner
By: Insight Midwest Holdings, LLC, its general partner
By: Insight Midwest L.P., its sole member
By: Insight Communications Company, L.P., its sole general
partner
By: Insight Communications Company, Inc., its sole general partner
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
INSIGHT MIDWEST HOLDINGS, LLC
AMENDMENT NO. 1 TO CREDIT AGREEMENT
and
AMENDMENT NO. 1 TO GUARANTEE AGREEMENT
THE BANK OF NEW YORK, individually,
as Issuing Bank and as Administrative Agent
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
INSIGHT MIDWEST HOLDINGS, LLC
AMENDMENT NO. 1 TO CREDIT AGREEMENT
and
AMENDMENT NO. 1 TO GUARANTEE AGREEMENT
CONSENTED AND AGREED TO:
[___________________________________]
By: ______________________________________
Name: ____________________________________
Title: ___________________________________