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AMENDMENT NO. 5
TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 5 to LOAN AND SECURITY AGREEMENT (this
"Amendment No. 5") is made this 23rd day of December, 1994 by and among CABLE
TV FUND 12-B, LTD., a Colorado limited partnership (herein "Borrower");
CORESTATES BANK, N.A., a national banking association ("PNB", and in its
capacity as administrative agent, "Agent"); CHEMICAL BANK, a New York banking
corporation and successor by merger to Manufacturers Hanover Trust Company
("Manufacturers"); NATIONSBANK OF NORTH CAROLINA, N.A. (formerly NCNB National
Bank of North Carolina), a national banking association ("NCNB"); and
NATIONSBANK OF TEXAS, N.A. (formerly NCNB Texas National Bank), a national
banking association, assignee of the Federal Deposit Insurance Corporation,
receiver for First RepublicBank Dallas, N.A. (formerly known as RepublicBank
Dallas, N.A.) ("Republic") (PNB, Manufacturers, NCNB and Republic being
referred to herein individually and collectively as the "Banks").
W I T N E S S E T H:
WHEREAS, Borrower and Banks are parties to that certain Loan
and Security Agreement dated August 29, 1985, as amended by the Letter
Agreement dated August 14, 1986, Amendment No. 2 to Loan and Security Agreement
dated March 31, 1988, Amendment No. 3 to Loan and Security Agreement dated
March 29, 1989 and Amendment No. 4 to Loan and Security Agreement dated
November 29, 1991 (as amended, and as may be amended from time to time, the
"Loan Agreement "); and
WHEREAS, Borrowers have requested an extension of the
amortization of the Loan (as defined in the Loan Agreement) as set forth
herein, and Banks have agreed to such extension on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the premises and the
agreements hereinafter set forth and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Definitions.
(a) General Rule. Unless otherwise defined
herein, capitalized terms used herein which are defined in the Loan Agreement
shall have the meanings assigned to them in the Loan Agreement.
(b) Revised Definitions. The following
definitions contained in Section One of the Loan Agreement are hereby amended
and restated in their entirety to read as follows:
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1.31. "Manufacturers" shall mean Chemical Bank, a
New York banking corporation and successor by merger to
Manufacturers Hanover Trust Company.
1.34. "NCNB" shall mean NationsBank of North
Carolina, N.A., (formerly NCNB National Bank of North
Carolina) a national banking association.
1.36. "Notes" shall mean individually and
collectively the Third Amended and Restated Notes evidencing
Borrower's indebtedness to each Bank under the Loan.
1.42. "Republic" shall mean NationsBank of Texas,
N.A. (formerly NCNB Texas National Bank) a national banking
association, assignee of the Federal Deposit Insurance
Corporation, receiver for First RepublicBank Dallas, N.A.
(formerly known as RepublicBank Dallas, N.A.).
(c) Additional Definitions. The following
paragraphs are hereby added to the end of Section One of the Loan Agreement to
read as follows:
1.60. "Amendment No. 5" shall mean the Amendment
No. 5 to Loan and Security Agreement by and among Borrower and
Banks, amending this Agreement.
1.61. "Fourth Modification of Deed to Secure Debt"
shall mean the Fourth Modification of Deed to Secure Debt
executed and delivered by Borrower pursuant to Paragraph 9(c)
of Amendment No. 5.
1.62. "Third Amended and Restated Note" shall mean
individually, and "Third Amended and Restated Notes" shall
mean collectively, the Borrower's promissory notes in favor of
each of Manufacturers, NCNB, PNB and Republic, each in the
form attached to Amendment No. 5 as Exhibit A.
2. Amendments Co Paragraph 2.02 (Promissory Notes).
Paragraph 2.02 of the Loan Agreement is hereby amended and restated to read in
its entirety as follows:
2.02. Promissory Notes. Borrower and Banks
acknowledge and agree that the entire principal amount of the
Loan evidenced prior to the date of Amendment No. 5 by the New
Notes has been repaid
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in full. From and after the date of Amendment No. 5 the
indebtedness of Borrower to each Bank under the Loan will be
evidenced by a Third Amended and Restated Note executed by
Borrower in favor of such Bank in the form of Exhibit A
attached to Amendment No. 5. The original principal amount of
each Bank's Note will be its Pro Rata Share of the aggregate
outstanding principal balance of the Loan as of the date of
Amendment No. 5; provided, however, that notwithstanding the
face amount of any Note, Borrower's liability under each such
Note shall be limited at all times to its actual indebtedness,
principal, interest and accrued fees, then outstanding to such
Bank thereunder. Each Third Amended and Restated Note amends
and restates in its entirety the Second Amended and Restated
Note dated November 29, 1991, which amended and restated the
Amended and Restated Note dated March 29, 1989, which amended
and restated in its entirety the Promissory Note dated August
29, 1985 delivered by Borrower to each such Bank under the
Loan Agreement, as amended by the Allonge dated March 31, 1988
delivered by Borrower to each such Bank in connection with
Amendment No. 2 to Loan and Security Agreement (all of such
prior notes, collectively the "Prior Notes"); provided,
however, that the indebtedness of Borrower evidenced under the
Prior Notes and the collateral security therefore are not
terminated, extinguished or discharged, but shall continue to
be evidenced and governed by the Third Amended and Restated
Notes, the Loan Agreement and the documents granting the
Collateral.
It is the intention of the parties hereto that the Third
Amended and Restated Notes shall not constitute a novation and
shall in no way adversely affect or impair the lien priority
of the Collateral or the Deed to Secure Debt.
3. Amendment to Paragraph 2.05 (Repayment). Paragraph
2.05 of the Loan Agreement is hereby amended and restated to read in its
entirety as follows:
2.05 Repayment. Borrower and Banks acknowledge and
agree that (i) the entire principal amount of the Loan
evidenced by the New Notes has been repaid, and (ii) the
aggregate remaining outstanding principal balance of the
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Loan as of the date of Amendment No. 5 is $40,740,000. The
principal balance of the Loan shall be repaid as follows:
(a) On December 30, 1994 Borrower shall make a
principal payment of Nine Hundred Seventy Thousand Dollars
($970,000); and
(b) The aggregate outstanding principal balance
of the Loan after application of the foregoing payment, being
Thirty-Nine Million Seven Hundred Seventy Thousand Dollars
($39,770,000) shall be payable in twenty (20) consecutive
quarterly installments in accordance with the repayment
schedule set forth below on the last day of each March, June,
September and December, commencing on March 31, 1995 and
continuing thereafter, with the remaining principal balance
and all other amounts outstanding under the Loan Agreement due
and payable on December 31, 1999. The principal payments for
each quarter shall be in an amount equal to the percentages of
the Loan on January 1, 1994 as set forth in the table below
opposite the period in or date on which such payment occurs.
Percentage of Loan
Period or Date Repayable
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1/1/95 to 12/31/95 3.125% each quarter
1/1/96 to 12/31/96 4.375% each quarter
2/1/97 to 12/31/97 5.625% each quarter
1/1/98 to 12/31/98 5.625% each quarter
1/1/99 to 9/30/99 6.250% each quarter
12/31/99 Outstanding principal
balance
Notwithstanding the preceding portion of this Paragraph 2.05,
in the event that Banks shall have accelerated the Loan upon
the occurrence of an Event of Default, the aggregate
outstanding balance under the Notes shall be due and payable
on the date of Banks' declaration of the Event of Default and
acceleration of the Loan.
4. Amendment to Paragraph 5.13 (Senior Debt to
Annualized Cash Flow). Paragraph 5.13 of the Loan Agreement is hereby amended
and restated in its entirety as follows:
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5.13. Senior Debt to Annualized Cash Flow. Borrower
will maintain, on the last day of each fiscal quarter, a ratio
of Senior Debt to Annualized Cash Flow not to exceed 3.50:1.
5. Amendment to Paragraph 5.14 (Annualized Cash Flow
Debt Service). Paragraph 5.14 of the Loan Agreement is hereby amended and
restated in its entirety as follows:
5.14. Annualized Cash Flow to Debt Service.
Borrower will maintain, on the last day of each fiscal
quarter, a ratio of (i) Annualized Cash Flow to (ii) four (4)
times Debt Service for such fiscal quarter, of not less than
1.50:1.
6. Amendment to Exhibits A, C and F. Exhibits A, C, and
F of the Loan Agreement are hereby amended and restated to read in their
entirety as set forth in Exhibit B attached hereto.
7. Amendment Fee. On or before the date of this
Amendment No. 5, Borrower shall pay to Agent a fee in the amount of
$149,137.50, which shall be shared in by Banks on the basis of their respective
Pro Rata Shares (as defined in the Loan Agreement).
8. Representations and Warranties. Borrower hereby
represents and warrants to Banks as follows:
(a) Representations. Except as modified by the
facts set forth in the amended and restated Exhibits A, C and F the Loan
Agreement attached as Exhibit B hereto and except as described on Exhibit C
attached hereto, the representations and warranties set forth in Section Three
of the Loan Agreement are true and correct in all material respects as of the
date hereof; no Event of Default under the Loan Agreement or event which with
the passage of time or the giving of notice or both would constitute an Event
of Default is in existence; and there has been no material adverse change in
Borrower's financial condition or business since August 29, 1985.
(b) Power and Authority. Each of Borrower and
Jones, on behalf of Borrower, has the power and authority under Colorado law
and under its respective Partnership Agreement, or articles of incorporation
and bylaws, to enter into and perform this Amendment No. 5, the Third Amended
and Restated Notes and the Fourth Modification of Deed to Secure Debt and all
other agreements, documents and actions required hereunder (hereinafter
collectively referred to as the "Amendment Documents"); and all actions
(corporate or otherwise) necessary or appropriate for the
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execution and performance by Borrower or Jones, on behalf of Borrower, of the
Amendment Documents have been taken and upon their execution and delivery, the
same will constitute the valid and binding obligations of Borrower and Jones,
on behalf of Borrower, to the extent each is a party thereto, enforceable in
accordance with their respective terms.
(c) No Violation of Laws or Agreements. The
making and performance of the Amendment Documents will not violate any
provisions of any law or regulation, federal, state or local (in any material
respects), or the Partnership Agreement of Borrower or the articles of
incorporation or bylaws of Jones or result in any material breach or violation
of, or, except as described in the amended and restated Exhibits A, C and F to
the Loan Agreement attached as Exhibit B hereto, constitute a default under,
any material agreement by which either Borrower, Jones or their respective
property may be bound or affected.
(d) Perfection Liens. The liens on the Collateral
will continue as security for the Loan as a first priority lien on such
Collateral, subject only to liens permitted by Section 6.05 of the Loan
Agreement, as amended, and will continue to secure all indebtedness of Borrower
to Banks under the Notes. Except for (i) the filing of the Fourth Modification
of Deed to Secure Debt as provided in Paragraph 9(d), (ii) the filing of
amendments to UCC financing statements as provided in Paragraph 9(d), and (iii)
the periodic filing of continuation statements with respect to financing
statements filed under the Uniform Commercial Code of applicable jurisdictions,
no further action, including the filing or recording of any documents, is
required to continue and maintain such perfected liens.
9. Conditions to Effectiveness of Amendment No. 5. The
effectiveness of this Amendment No. 5 shall be subject to Banks' receipt of the
following documents, each in form and substance satisfactory to Banks:
(a) Amendment No. 5. This Amendment No. 5, duly
executed and delivered by Borrower and Banks, together with all Exhibits
thereto.
(b) Third Amended and Restated Notes. The Third
Amended and Restated Notes in the form of Exhibit A to Amendment No. 5, duly
executed by Borrower and delivered to each Bank.
(c) Fourth Modification of Deed to Secure Debt.
The Fourth Modification of Deed to Secure Debt duly executed by Borrower in
recordable form, amending the Deed to Secure Debt with respect to the final
maturity of the Loan.
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(d) Amendments to UCC Financing statements. Such
amendments to UCC financing statements and other recordations as are requested
by Banks to perfect or to continue the perfected status of the security
interests granted to the Banks.
(e) Authorization Documents. A certified copy of
the resolutions of the board of directors of Jones authorizing Jones' and
Borrower's execution and full performance of the Fourth Amendment Documents,
and an incumbency certificate setting forth the officers of Jones.
(f) Evidence of Good Standing. Certificates of
good standing in each state in which Borrower conducts business.
(g) Opinion of Counsel. An opinion letter from
counsel for Borrower and Jones in Colorado covering the representations and
warranties set forth in clauses (b)-(c) of Paragraph 8 of this Amendment No. 5
and an opinion letter from counsel for Borrower and Jones in Georgia covering
the representations and warranties set forth in clause (d) of Paragraph 8 of
this Amendment No. 5.
(h) Searches. Uniform Commercial Code, tax, and
judgment searches against Borrower in those offices and jurisdictions as the
Banks shall reasonably request.
(i) Payment of Fees. Payment of the amendment
fee as required by Paragraph 7 hereof.
10. Affirmation. Borrower hereby affirms all the
provisions of the Loan Agreement, as amended, including by this Amendment No.
5, agrees that the terms and conditions of the Loan Agreement shall continue in
full force and effect as supplemented and amended hereby, confirms that the
Collateral required under the Loan Agreement, including without limitation the
collateral security afforded by the Loan Agreement, the Security Agreement, the
Mortgages, the Deed to Secure Debt and all similar or related documents and
agreements and all properties and assets constructed or otherwise obtained or
acquired with the proceeds of advances under the Commitment, secure all
liabilities and Obligations of Borrower under the Loan Agreement, as amended,
including by this Amendment No. 5.
11. Miscellaneous.
(a) This Amendment No. 5, the Third Amended and
Restated Notes and the other Amendment Documents shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania.
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(b) Borrower agrees to reimburse Agent for all
reasonable costs and expenses (including but not limited to attorneys' fees and
disbursements) which Agent may pay or incur in connection with the preparation
of this Amendment No. 5, the Amendment Documents executed in connection
herewith, all recordings and the closing contemplated hereby.
(c) All terms and conditions of this Amendment
No. 5 shall be for the benefit of and be binding upon and enforceable by the
respective successors and assigns of the parties hereto.
(d) This Amendment No. 5 may be executed in any
number or counterparts with the same effect as if all the signatures of such
counterparts appeared on one document and each such counterpart shall be deemed
an original.
(e) The execution, delivery and performance of
this Amendment No. 5 shall not operate as a waiver of any right, power or
remedy of Banks under the Loan Agreement and the agreements and documents
executed in connection therewith or constitute a waiver of any provision
thereof.
IN WITNESS WHEREOF, the undersigned has executed this
Amendment No. 5 the day and year first above written.
CABLE TV FUND 12-B, LTD.
ATTEST: By: JONES INTERCABLE, INC. , Its
sole general partner
By: /s/ Katherine A. LeVoy By: /s/ J. ROY POTTLE
Title: Asst. Secretary Title: Treasurer
[CORPORATE SEAL]
CORESTATES BANK, N.A., for itself
and as Agent
By: /s/ PHILIP D. HARRISON
Name: Phillip D. Harrison
Title: Commercial Officer
[EXECUTIONS CONTINUED]
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CHEMICAL BANK
By: /s/ JOHN C. COFFIN
Name: John C. Coffin
Title: Vice President
NATIONSBANK OF NORTH CAROLINA, N.A.
By: /s/ DAVID G. JAMES
Name: David G. James
Title: Vice President
NATIONSBANK OF TEXAS, N.A.
By: /s/ DAVID G. JAMES
Name: David G. James
Title: Vice President
The undersigned Jones Intercable, Inc. ("Jones"), the sole general
partner of Borrower, hereby consents to the terms of Amendment No. 5 and agrees
and confirms that any indebtedness of Borrower to Jones is subordinated by the
terms of the Subordination Agreement of Jones dated August 29, 1985 to all
indebtedness, obligations and liabilities of Borrower to Banks under the Loan
Agreement, as amended, or otherwise.
JONES INTERCABLE, INC.
By: /s/ J. ROY POTTLE
Name: J. Roy Pottle
Title: Treasurer
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EXHIBIT A
FORM OF
THIRD AMENDED AND RESTATED NOTE
$_________________ December __, 1994
FOR VALUE RECEIVED, the undersigned CABLE TV FUND 12-B, LTD.,
a Colorado limited partnership with its principal office at 9697 East Mineral
Avenue, Englewood, Colorado 80112 (herein "Borrower"), hereby promises to pay
to the order of _____________________________________ (herein "Bank"), at the
offices of CoreStates Bank, N.A., a national banking association (formerly
known as The Philadelphia National Bank) (herein "Agent") at Broad and Chestnut
Streets, Philadelphia, Pennsylvania 19107, the principal sum of ____________
DOLLARS ($_____________) or such lesser sum as provided below, in accordance
with the Repayment Schedule attached hereto and made a part hereof, on the last
day of each March, June, September and December with the remaining principal
balance and all other amounts outstanding under the Loan Agreement due and
payable on December 31, 1999; together with interest on the unpaid principal
balance in accordance with Paragraph 2.06 of the Loan Agreement referred to
below. Interest payable on this Third Amended and Restated Note shall at all
times be limited to the highest rate permitted by applicable law. Amounts
received by Bank as Agent shall be shared by Banks (as defined in the Loan
Agreement referred to below) on the basis of each Bank's Pro Rata Share (as
defined in the Loan Agreement referred to below).
This Third Amended and Restated Note arises out of a certain
Loan and Security Agreement dated August 29, 1985 by and among Borrower, Jones
Intercable, Inc., a Colorado corporation ("Jones"), Agent, Bank and the other
Banks party thereto, as amended (as amended from time to time, including by
Amendment No. 5 to Loan and Security Agreement, the "Loan Agreement"), to which
reference is made for a statement of the respective rights and obligations of
the parties and the terms and conditions therein provided under which the
principal hereof and accrued interest thereon, if any, may become immediately
due and payable or may be required to be prepaid. All capitalized terms used
but not defined herein shall have the meanings ascribed to such terms in the
Loan Agreement.
This Third Amended and Restated Note amends and restates in
its entirety the Second Amended and Restated Note dated November 29, 1991
delivered to Bank in connection with Amendment No. 4 to Loan and Security
Agreement, which amended and restated the Amended and Restated Promissory Note
dated March 29, 1989 delivered to Bank in connection with Amendment No. 3 to
Loan and Security Agreement, which amended and restated in its entirety the
Promissory Note dated August 19, 1985 delivered to Bank under the Loan
Agreement, as amended by the Allonge dated March 31, 1988 delivered to Bank in
connection with Amendment No.
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2 to Loan and Security Agreement (all such prior notes, the "Prior Notes");
provided, however, that the indebtedness of Borrower evidenced under such Prior
Notes and the Collateral therefore are not terminated, extinguished or
discharged, but shall continue to be evidenced by and be governed by this Third
Amended and Restated Note, the Loan Agreement and the documents granting the
Collateral.
Except as set forth hereinbelow in any action or proceeding
brought on this Third Amended and Restated Note or the indebtedness evidenced
hereby, no deficiency may be asserted or enforced against the separate assets
of Jones, and the liability of Jones for any amounts due hereunder shall be
limited to Jones' interest in the Collateral, Jones' partnership interest in
Borrower and in any other assets of Borrower. Any Bank may join Jones, in its
capacity as general partner, as defendant in any legal action such Bank
undertakes to enforce its rights and remedies under this Third Amended and
Restated Note, but any judgment in any such action may be satisfied by recourse
only to the Collateral, Jones' partnership interest in Borrower and any other
assets of Borrower, and not by recourse directly to or by execution on Jones'
separate assets. Notwithstanding the foregoing, nothing set forth herein shall
be deemed to limit the liability of Jones or its assets or prohibit a Bank from
taking any legal action against Jones on its assets for any fraud, intentional
misconduct or gross negligence of Jones.
Notwithstanding the face amount of this Third Amended and
Restated Note, the undersigned's liability hereunder shall be limited at all
times to its actual aggregate outstanding indebtedness to Bank, principal and
interest, under the Loan, together with all fees and expenses provided in the
Loan Agreement.
Borrower hereby waives presentment, demand for payments,
notice of dishonor or acceleration, protest and notice of protest, and any and
all other notices or demands in connection with the delivery, acceptance,
performance, default or enforcement of this Third Amended and Restated Note,
excepting any notice requirements set forth in the Loan Agreement.
By the delivery and acceptance of this Third Amended and
Restated Note, Borrower and Bank hereby agree that it is the intention of the
parties hereto that this Third Amended and Restated Note shall not constitute a
novation and shall in no way adversely affect or impair the lien priority of
the documents granting the Collateral.
IN WITNESS WHEREOF, the undersigned, by its duly authorized
general partner, has executed this Third Amended and Restated Note the day and
year first above written.
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CABLE TV FUND 12-B, LTD.
ATTEST: By: JONES INTERCABLE, INC.,
its sole General Partner
By:_____________________________ By:_______________________________
Name: Name:
Title: Title:
[CORPORATE SEAL]
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REPAYMENT SCHEDULE
TO
PROMISSORY NOTE
OF
CABLE TV FUND 12-B, LTD.
On December 31, 1994 Borrower shall make a principal payment
of Nine Hundred Seventy Thousand Dollars ($970,000). The aggregate outstanding
principal balance under the Notes on January 1, 1994, after application of the
foregoing payment, shall be payable in twenty (20) consecutive quarterly
installments in accordance with the repayment schedule set forth below on the
last day of each March, June, September and December, commencing on March 31,
1995 and continuing thereafter, with the remaining principal balance and all
other amounts outstanding under the Loan Agreement due and payable on December
31, 1999. The aggregate principal payments for each quarter shall be in an
amount equal to the percentages of the Loan on January 1, 1994 as set forth in
the table below opposite the period in or date on which such payment occurs.
Each of the above described payments shall be allocated to the Third Amended
and Restated Notes of each Bank pro rata according to such Bank's Pro Rata
Share.
Percentage of Loan
Period or Date Repayable
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1/1/95 to 12/31/95 3.125% each quarter
1/1/96 to 12/31/96 4.375% each quarter
1/1/97 to 12/31/97 5.625% each quarter
1/1/98 to 12/31/98 5.625% each quarter
1/1/99 to 9/30/99 6.250% each quarter
12/31/99 Outstanding principal
balance
Notwithstanding the preceding portion of this Repayment Schedule, in the event
that Banks shall have terminated the Commitment upon the occurrence of an Event
of Default, the aggregate outstanding balance under the Notes shall be due and
payable on the date of Banks' declaration of the Event of Default and
termination of the Commitment.
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