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EXHIBIT 10.28
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is
dated as of April 29, 1998, and entered into by and among TVMAX
TELECOMMUNICATIONS, INC., a Delaware corporation ("COMPANY"), OPTEL, INC., a
Delaware corporation ("HOLDINGS"), the financial institutions listed on the
signature pages hereof ("LENDERS"), GOLDMAN SACHS CREDIT PARTNERS L.P., as
Arranger and Syndication Agent (in such capacities, "ARRANGER"), CANADIAN
IMPERIAL BANK OF COMMERCE, as Administrative Agent for Lenders (in such
capacity, "ADMINISTRATIVE AGENT"), GENERAL ELECTRIC CAPITAL CORPORATION, as
Documentation Agent (in such capacity, "DOCUMENTATION AGENT") and, for purposes
of Section 3 hereof, each of the Guarantors, and is made with reference to that
certain Credit Agreement, dated as of December 19, 1997 (the "CREDIT
AGREEMENT"), by and among Company, Holdings, Lenders, Arranger, Administrative
Agent and Documentation Agent. Capitalized terms used herein without definition
shall have the same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Company and the Lenders desire to amend certain
provisions pertaining to the minimum fixed charge coverage ratio required to be
maintained by Company to accurately reflect the intent of the parties;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
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Section 1. AMENDMENTS
A. Amendment to Section 1.1 Certain Defined Terms.
Subsection 1.01 of the Credit Agreement is hereby amended by
amending clause (iii) of the definition of "Consolidated Cash Available for
Fixed Charges" to read in its entirety as follows:
"(iii) cash balances (excluding amounts held in the Holdings
Senior Note Escrow Account but including amounts held in the
AXEL Excess Proceeds Account) of Holdings and its Subsidiaries
in excess of $10,000,000 as of the date of determination and
plus".
B. Amendment to Section 7.6 Financial Covenants.
Subsection 7.6B of the Credit Agreement is hereby amended by
amending clause (i) thereof to read in its entirety as follows:
"(i) Consolidated Cash Available for Fixed Charges".
SECTION 2. REPRESENTATIONS, WARRANTIES AND COVENANTS
A. As of the date hereof, (i) after giving effect to
this Amendment, there exists no Event of Default or Potential Event of Default
under the Credit Agreement and (ii) all representations and warranties contained
in the Credit Agreement and the other Loan Documents are true, correct and
complete in all material respects except to the extent such representations and
warranties specifically relate to an earlier date, in which case they were true,
correct and complete in all material respects on and as of such earlier date.
B. As of the date hereof, each Loan Party has performed
all agreements to be performed on its part as set forth in the Credit Agreement
and the other Loan Documents.
SECTION 3. ACKNOWLEDGEMENT AND CONSENT
The Guaranties and Collateral Documents to which each Guarantor
and Company, as applicable, are party are herein referred to collectively as the
"CREDIT SUPPORT DOCUMENTS". Each Loan Party hereby acknowledges that it has
reviewed the terms and provisions of the Credit Agreement and this Amendment.
Each Loan Party hereby confirms that each Credit Support Document to which it is
a party or otherwise bound and all Collateral encumbered thereby will continue
to guaranty or secure, as the case may be, to the fullest extent possible the
payment and performance of all "Guarantied Obligations" and "Secured
Obligations" as the case may be (in each case as such terms are defined in the
applicable Credit Support Document), including without
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limitation the payment and performance of all such "Guarantied Obligations" or
"Secured Obligations," as the case may be, in respect of the Obligations of
Company now or hereafter existing under or in respect of the Credit Agreement.
Each Credit Support Party acknowledges and agrees that any of the Credit
Support Documents to which it is a party or otherwise bound shall continue in
full force and effect and that all of its obligations thereunder shall be valid
and enforceable and shall not be impaired or limited by the execution or
effectiveness of this Amendment. Each Credit Support Party (other than Company)
acknowledges and agrees that (i) notwithstanding the conditions to
effectiveness set forth in this Amendment, such Credit Support Party is not
required by the terms of the Credit Agreement or any other Loan Document to
consent to this Amendment and (ii) nothing in the Credit Agreement, this
Amendment or any other Loan Document shall be deemed to require the consent of
such Credit Support Party to any future consents or waivers to the Credit
Agreement.
SECTION 4. EFFECT ON CREDIT AGREEMENT
A. On and after the First Amendment Effective Date (as
defined in Section 7 hereof), each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof" "herein" or words of like import referring to
the Credit Agreement, and each reference in the other Loan Documents to the
"Credit Agreement", "thereunder", "thereof" or words of like import referring to
the Credit Agreement shall mean and be a reference to the Credit Agreement as
amended by this Amendment.
B. Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
C. The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, constitute a waiver
of any provision of, or operate as a waiver of any right, power or remedy of
the Administrative Agent or any Lender under, the Credit Agreement or any of
the other Loan Documents.
SECTION 5. FEES AND EXPENSES
Company acknowledges that all costs, fees and expenses as
described in subsection 10.2 of the Credit Agreement incurred by Administrative
Agent and its counsel with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of Company.
SECTION 6. GOVERNING LAW
THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE
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GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES.
SECTION 7. COUNTERPARTS; EFFECTIVENESS
This 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 an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterpart and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Amendment shall become effective (the "FIRST AMENDMENT
EFFECTIVE DATE") upon the execution of a counterpart hereof by each of the Loan
Parties and Requisite Lenders and receipt by the Administrative Agent of
written or telephonic notification of such execution and authorization of
delivery thereof.
(Remainder of Page Intentionally Left Blank)
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
TVMAX TELECOMMUNICATIONS, INC.
OPTEL, INC.
By:
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Bertrand Blanchette
Vice President
By:
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Michael E. Katzenstein
Vice President
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For Purposes of Section 3:
GUARANTORS:
OPTEL (ARIZONA) TELECOM, INC.
OPTEL (CALIFORNIA) TELECOM, INC.
OPTEL (COLORADO) TELECOM, INC.
OPTEL (FLORIDA) TELECOM, INC.
OPTEL (ILLINOIS) TELECOM, INC.
OPTEL (TEXAS) TELECOM, INC.
TVMAX COMMUNICATIONS (TEXAS), INC.
TA V GP HOLDINGS CORP.
OPTEL (ILLINOIS) L.P.
RICHEY PACIFIC CABLEVISION, INC.
RICHEY PACIFIC CABLE PARTNERS V, L P.
RICHEY PACIFIC CABLE PARTNERS VI, L.P.
RICHEY PACIFIC CABLE PARTNERS VII, L.P.
IRPC TEXAS, INC.
IRPC TEXAS-VENTANA,INC.
IRPC-ARIZONA, INC.
SUNSHINE TELEVISION ENTERTAINMENT, INC.
TARA COMMUNICATION SYSTEMS, INC.
PHONOSCOPE ENTERTAINMENT, INC.
PHONOSCOPE VILLAGE CABLE, INC.
BAY AREA CABLE TELEVISION, INC.
By:
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Bertrand Blanchette
Vice President
of each of the foregoing Guarantors
By:
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Michael E. Katzenstein
Vice President,
of each of the foregoing Guarantors
TRANSMISSION HOLDINGS, INC.
By:
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Name:
Title:
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GOLDMAN SACHS CREDIT PARTNERS L.P.,
individually and as Arranger and Syndication Agent
By:
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Authorized Signatory
CANADIAN IMPERIAL BANK OF COMMERCE,
individually and as Administrative Agent
By:
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Tefta Ghilaga
Executive Director, CIBC Oppenheimer Corp.,
as Agent
GENERAL ELECTRIC CAPITAL CORPORATION,
individually and as Documentation Agent
By:
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Name:
Title:
INDOSUEZ CAPITAL FUNDING, II LIMITED
By: Indosuez Capital Luxembourg,
as Collateral Manager
By:
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Name:
Title:
CYPRESSTREE INVESTMENT PARTNERS I, LTD.
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By:
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Name:
Title:
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THE TORONTO-DOMINION BANK
By:
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Name:
Title:
MERRILL LYNCH PRIME RATE PORTFOLIO
By: Merrill Lynch Asset Management, L.P.,
as Investment Advisor
By:
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Name:
Title:
MERRILL LYNCH SENIOR FLOATING RATE FUND, INC.
By:
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Name:
Title:
KZH HOLDING CORPORATION III
By:
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Name:
Title:
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