Exhibit 10.1
FALCON RESTRICTED COMPANIES
CREDIT AGREEMENT
Amendment No. 1
This Agreement, dated as of September 25, 1998, is among the affiliates of
Falcon Holding Group, L.P., a Delaware limited partnership ("Holding, L.P."),
set forth on the signature pages hereof and BankBoston, N.A., as documentation
agent (the "Documentation Agent") for itself and the other Lenders under the
Credit Agreement (as defined below). The parties agree as follows:
1. Credit Agreement; Definitions. This Agreement amends the Credit
Agreement dated as of June 30, 1998 among the parties hereto and the other
Lenders party thereto (as in effect prior to giving effect to this Agreement,
the "Credit Agreement"). Terms defined in the Credit Agreement as amended hereby
(the "Amended Credit Agreement") and not otherwise defined herein are used with
the meaning so defined.
2. Amendment of Credit Agreement. Effective upon the date on which all the
conditions set forth in Section 4 hereof are satisfied (the "Amendment Date"),
the Credit Agreement is amended as follows:
2.1. Amendment of Section 1; Definition of "Consolidated Net
Income". Paragraph (c) of the definition of "Consolidated Net Income"
in Section 1 of the Credit Agreement is hereby amended to read in its
entirety as follows:
"(c) the effect of extraordinary and nonrecurring items of
gain, income, loss or expense, including in any event the
following items: (i) with the approval of at least two of the
Specified Agents, which approval shall not be unreasonably
withheld, the Falcon Cable Systems Settlement Payments, (ii)
other litigation and tax judgments and settlements of up to an
aggregate of $2,500,000 (or such larger amount as may be approved
by at least two of the Specified Agents, whose approval shall not
be unreasonably withheld) during any fiscal year of the
Restricted Companies and (iii) payments of up to an aggregate of
$5,000,000 (or such larger amount as may be approved by at least
two of the Specified Agents) during any fiscal quarter of the
Restricted Companies in respect of: franchise taxes relating to
prior periods; sales, use and other tax assessments relating to
prior periods; payments, refunds or credits in respect of
customer late fees relating to prior periods; other similar items
relating to prior periods; and acquisition deposits that are
forfeited during such period."
2.2. Amendment of Section 2.2.1. Section 2.2.1 of the Credit
Agreement is hereby amended by substituting "October 1, 1998" for
"September 30, 1998".
2.3. Amendment of Section 3.3.2. Section 3.3.2 of the Credit
Agreement is hereby amended by substituting "October 1, 1998" for
"September 30, 1998".
2.4. Amendment of Section 7.9.8. Section 7.9.8 of the Credit
Agreement is hereby amended to read in its entirety as follows:
"7.9.8. Investments consisting of loans from the Restricted
Companies to Holding, L.P., New Falcon I or TCI that constitute
Distributions permitted by Section 7.10."
2.5. Amendment of Section 7.10.4. Section 7.10.4 of the Credit
Agreement is hereby amended to read in its entirety as follows:
"7.10.4. The Restricted Companies may make Distributions on
account of management services provided to the Restricted
Companies (in addition to any Distributions permitted by Section
7.10.3) in an aggregate amount not exceeding (i) in the case of
such Distributions made on account of management services
provided to the Restricted Companies during the first fiscal
quarter of any fiscal year of the Restricted Companies, the
excess of 4.25% of Consolidated Revenues earned in such fiscal
quarter over Distributions previously made on account of
management services provided to the Restricted Companies during
such fiscal quarter under this Section 7.10.4, (ii) in the case
of such Distributions made on account of management services
provided to the Restricted Companies during the second fiscal
quarter of any fiscal year of the Restricted Companies, the
excess of 4.25% of Consolidated Revenues earned in the first two
fiscal quarters of the Restricted Companies over Distributions
previously made on account of management services provided to the
Restricted Companies during such fiscal year under this Section
7.10.4, (iii) in the case of such Distributions made on account
of management services provided to the Restricted Companies
during the third fiscal quarter of any fiscal year of the
Restricted Companies, the excess of 4.25% of Consolidated
Revenues earned in the first three fiscal quarters of the
Restricted Companies over Distributions previously made on
account of management services provided to the Restricted
Companies during such fiscal year under this Section 7.10.4 and
(iv) in the case of such Distributions made on account of
management services provided to the Restricted Companies during
the fourth fiscal quarter of any fiscal year of the Restricted
Companies, the excess of 4.25% of Consolidated Revenues earned in
such fiscal year over Distributions previously made on account of
management services provided to the Restricted Companies during
such fiscal year under this Section 7.10.4; provided, however,
that Distributions pursuant to this Section 7.10.4 must be made
no later than 180 days after the end of the fiscal year in which
the management services on account of which such Distributions
are made are provided."
2.6. Amendment of Exhibit 8.1. Exhibit 8.1 to the Credit
Agreement is amended to read in its entirety as set forth in Exhibit A
hereto.
3. Representations and Warranties. Each of the Restricted Companies jointly
and severally represents and warrants as follows:
3.1. Legal Existence, Organization. Each of the Restricted Companies
is duly organized and validly existing and in good standing under the laws
of the jurisdiction of its organization, with all power and authority,
corporate, limited liability company, partnership or otherwise, necessary
(a) to enter into and perform this Agreement and the Amended Credit
Agreement and (b) to own its properties and carry on the business now
conducted or proposed to be conducted by it. Each of the Restricted
Companies has taken all corporate, limited liability company, partnership
or other action required to make the provisions of this Agreement and the
Amended Credit Agreement the valid and enforceable obligations they purport
to be.
3.2. Enforceability. Each of the Restricted Companies has duly
authorized, executed and delivered this Agreement. Each of this Agreement
and the Amended Credit Agreement is the legal, valid and binding obligation
of each of the Restricted Companies and is enforceable against each of the
Restricted Companies in accordance with its terms.
3.3. No Legal Obstacle to Agreements. Neither the execution and
delivery of this Agreement or any other Credit Document, nor the making of
any borrowings hereunder, nor the guaranteeing of the Credit Obligations,
nor the securing of the Credit Obligations with any Credit Security, has
constituted or resulted in or will constitute or result in:
(a) any breach or termination of any agreement, instrument, deed or
lease to which any of the Restricted Companies is a party or by which it is
bound, or of the Charter or By-laws of any of the Restricted Companies;
(b) the violation of any law, judgment, decree or governmental order,
rule or regulation applicable to any of the Restricted Companies;
(c) the creation under any agreement, instrument, deed or lease of any
Lien (other than Liens on the Credit Security which secure the Credit
Obligations) upon any of the assets of the Restricted Companies; or
(d) except as contemplated by section 2.6 of the Contribution
Agreement, any redemption, retirement or other repurchase obligation of any
of the Restricted Companies under any Charter, By-law, agreement,
instrument, deed or lease.
No approval, authorization or other action by, or declaration to or filing
with, any governmental or administrative authority or any other Person that
has not been obtained or made is required to be obtained or made by any of
the Restricted Companies in connection with the execution, delivery and
performance of this Agreement or the performance of the Amended Credit
Agreement.
3.4. Defaults. Immediately before and after giving effect to the
amendments set forth in Section 2 hereof, no Default will exist.
3.5. Incorporation of Representations and Warranties. The
representations and warranties set forth in Section 8 of the Amended Credit
Agreement are true and correct on the date hereof as if originally made on
and as of the date hereof (except for those representations and warranties
made as of a specified earlier date, which shall have been true and correct
as of such date).
4. Conditions. The effectiveness of this Agreement shall be subject to the
satisfaction of the following conditions:
4.1. Officer's Certificate. The representations and warranties of the
Restricted Companies set forth or incorporated by reference herein shall be
true and correct as of the Amendment Date as if originally made on and as
of the Amendment Date (except for those representations and warranties made
as of a specified earlier date, which shall have been true and correct as
of such date); no Default shall exist and be continuing on the Amendment
Date; and the Documentation Agent shall have received a certificate to
these effects signed by a Financial Officer in the event the Amendment Date
occurs after the date hereof.
4.2. Payment of Documentation Agent's Legal Expenses. The Borrowers
shall have paid the reasonable legal fees and expenses of the Documentation
Agent with respect to this Agreement and the transactions contemplated
hereby.
4.3. Proper Proceedings. This Agreement, each other Credit Document
and the transactions contemplated hereby and thereby shall have been
authorized by all necessary proceedings of each Obligor and any of their
respective Affiliates party thereto. All necessary consents, approvals and
authorizations of any governmental or administrative agency or any other
Person with respect to any of the transactions contemplated hereby or by
any other Credit Document shall have been obtained and shall be in full
force and effect. The Documentation Agent shall have received copies of all
documents, including certificates, records of corporate and partnership
proceedings and opinions of counsel, which the Documentation Agent may have
reasonably requested in connection therewith, such documents where
appropriate to be certified by proper corporate, partnership or
governmental authorities.
5. General. The Amended Credit Agreement and all of the Credit Documents
are each confirmed as being in full force and effect. This Agreement, the
Amended Credit Agreement and the other Credit Documents referred to herein or
therein constitute the entire understanding of the parties with respect to the
subject matter hereof and thereof and supersede all prior and current
understandings and agreements, whether written or oral. Each of this Agreement
and the Amended Credit Agreement is a Credit Document and may be executed in any
number of counterparts, which together shall constitute one instrument, and
shall bind and inure to the benefit of the parties and their respective
successors and assigns,
including as such successors and assigns all holders of any Credit Obligation.
This Agreement shall be governed by and construed in accordance with the laws
(other than the conflict of law rules) of The Commonwealth of Massachusetts.
[The rest of this page is left intentionally blank.]
Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first above written.
FALCON CABLE MEDIA, A CALIFORNIA
LIMITED PARTNERSHIP
FALCON CABLE SYSTEMS COMPANY II, L.P.
FALCON CABLEVISION, A CALIFORNIA
LIMITED PARTNERSHIP
FALCON COMMUNITY CABLE, L.P.
FALCON COMMUNITY VENTURES I
LIMITED PARTNERSHIP
FALCON TELECABLE, A CALIFORNIA
LIMITED PARTNERSHIP
FALCON COMMUNITY INVESTORS, L.P.
FALCON INVESTORS GROUP, LTD., A
CALIFORNIA LIMITED PARTNERSHIP
FALCON MEDIA INVESTORS GROUP, A
CALIFORNIA LIMITED PARTNERSHIP
FALCON TELECABLE INVESTORS GROUP,
A CALIFORNIA LIMITED PARTNERSHIP
FALCON TELECOM, L.P.
By FALCON HOLDING GROUP, INC., as
general partner, or general partner
of the general partner, of each of
the foregoing Restricted Companies
By /s/ Stanley S. Itskowitch
-----------------------------
Title: Executive Vice President
FALCON FIRST, INC.
By /s/ Stanley S. Itskowitch
-----------------------------
Title: Executive Vice President
FALCON CABLE COMMUNICATIONS, LLC
By FALCON HOLDING GROUP, INC., as
general partner of the managing
general partner of its sole member
By /s/ Stanley S. Itskowitch
-----------------------------
Title: Executive Vice President
ATHENS CABLEVISION, INC.
AUSABLE CABLE TV, INC.
CEDAR BLUFF CABLEVISION, INC.
DALTON CABLEVISION, INC.
EASTERN MISSISSIPPI CABLEVISION, INC.
FALCON FIRST CABLE OF NEW YORK, INC.
FALCON FIRST CABLE OF THE SOUTHEAST,INC.
FALCON FIRST HOLDINGS, INC.
FF CABLE HOLDINGS, INC.
LAUDERDALE CABLEVISION, INC.
MULTIVISION NORTHEAST, INC.
MULTIVISION OF COMMERCE, INC.
PLATTSBURG CABLEVISION, INC.
SCOTTSBORO CABLEVISION, INC.
SCOTTSBORO TV CABLE, INC.
By: /s/ Stanley S. Itskowitch
-----------------------------
As an authorized officer of each o
the foregoing corporations -
Executive Vice President
BANKBOSTON, N.A., as Documentation Agent
under the Credit Agreement
By /s/ David B. Hertor
------------------------------
Title: Managing Partner
BankBoston, N.A.
Media and Communications Department
100 Federal Street
Boston, MA 02110
Telecopy: (617) 434-3401
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By: /s/ Shannon T. Ward
-----------------------------
Title: Vice President
Bank of America National Trust &
Savings Association
Entertainment & Media Industry
Group - Dept. 3283
555 South Flower Street, 10th Floor
Los Angeles, CA 90071
Telecopy: (213) 228 2641
THE CHASE MANHATTAN BANK
By /s/ Mitch Gervis
-----------------------------
Title: Vice President
The Chase Manhattan Bank
270 Park Avenue, 37th Floor
New York, NY 10017
Telecopy: (212) 270-4584
NATIONSBANK,N.A.
By /s/ Derrick C. Bell
-----------------------------
Title: Vice President
Nationsbank, N.A.
901 Main Street, 64th Floor
Dallas, Tx 75202
Telecopy: (214) 508-9390
TORONTO DOMINION (TEXAS) INC.
By /s/ Neva Nesbitt
-----------------------------
Title: Vice President
Toronto Dominion (Texas) Inc.
909 Fannin Street, 17th Floor
Houston, TX 77010
Telecopy: (713) 951-9921
ABN AMRO BANK N.V.
By /s/ Frans O'R Logan
-----------------------------
Title: Group Vice President
By /s/ William S. Bennett
-----------------------------
Title: Vice President
ABN AMRO Bank N.V.
500 Park Avenue, 2nd Floor
New York, NY 10022
Telecopy: (212) 446-4203
PARIBAS
By /s/ Darlynn Ernst
-----------------------------
Title: AVP
By /s/ [ILLEGIBLE]
-----------------------------
Title: Director
Paribas
2029 Century Park East, Suite 3900
Los Angeles, CA 90067
Telecopy: (310) 556-3762
BARCLAYS BANK PLC
By /s/ [ILLEGIBLE]
-----------------------------
Title: Associate Director
Barclays Bank PLC
388 Mark Street, Suite 1700
San Francisco, CA 94111
Telecopy: (415) 765-4760
CIBC INC.
By /s/ [ILLEGIBLE]
-----------------------------
Title:Executive Director
CIBC Inc.
425 Lexington Avenue
New York, NY 10017
Telecopy: (212) 856-3558
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Mark D. Thorsheim
-----------------------------
Title: Vice President
Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, NY 10019
Telecopy: (212) 261-3288
FLEET NATIONAL BANK
By /s/ William Werr
-----------------------------
Title: Assistant Vice PResident
Fleet National Bank
Media & Communications Group
1185 Avenue of the Americas,
16th Floor
New York, NY 10036
Telecopy: (212) 819-6202
THE FUJI BANK, LIMITED,
LOS ANGELES AGENCY
By /s/ Masahito Fukuda
-----------------------------
Title: Joint General MAnager
The Fuji Bank, Limited,
Los Angeles Agency
333 South Hope Street, 39th Floor
Los Angeles, CA 90071
Telecopy: (213) 253-4178
COOPERATIVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A.,"RABOBANK
NEDERLAND", NEW YORK BRANCH
By /s/ Kevin D. Kinto
-----------------------------
Title: Vice President
By /s/ Barbara A. Hyland
-----------------------------
Title:Senior Vice President
Rabobank Nederland
Media & Telecommunications
300 South Wacker Drive, Suite 3500
Chicago, IL 60606
Telecopy: (312) 786-0052
UNION BANK OF CALIFORNIA
By /s/ Jenny Dongo
-----------------------------
Title: Vice President
Union Bank of California
445 South Figueroa Street
Los Angeles, CA 90071
Telecopy: (213) 236-5747
BANQUE NATIONALE DE PARIS
By /s/ [ILLEGIBLE]
-----------------------------
Title: Vice President
By /s/ Janice Ho
-----------------------------
Title: Vice President
Banque Nationale de Paris
725 South Figueroa, Suite 2090
Los Angeles, CA 90017
Telecopy: (213) 488-9602
CITY NATIONAL BANK
By /s/ Rod P. Bullins
-----------------------------
Title: Vice President
City National Bank
400 N. Roxbury Drive, 3rd Floor
Beverly Hills, CA 90210
Telecopy: (310) 888-6152
CREDIT LOCAL DE FRANCE
By /s/ Philippe Ducos
-----------------------------
Title:Deputy General Manager
By /s/ John W. Flaherty
-----------------------------
Title: Vice President
Credit Local de France
450 Park Avenue, 3rd Floor
New York, NY 10022
Telecopy: (212) 753-5522
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By /s/ Brian Haughney
-----------------------------
Title: Assistant Tresurer
By /s/ Laura G. Fazio
-----------------------------
Title: First Vice President
Dresdner Bank AG, New York and
Grand Cayman Branches
75 Wall Street
New York, NY 10005
Telecopy: (212) 429-2374
DEEP ROCK AND COMPANY
By: Eaton Vance Management, as
Investment Advisor
By /s/ Barnara Campbell
-----------------------------
Title: Vice President
Eaton Vance Management
Attn: Prime Rate Reserves
24 Federal Street, 6th Floor
Boston, MA 02110
Telecopy: (617) 695-9594
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By /s/ Barbara Campbell
-----------------------------
Title: Vice President
Senior Debt Portfolio
c/o Boston Management and Research
24 Federal Street, 6th Floor
Boston, MA 02110
THE INDUSTRIAL BANK OF JAPAN,
LIMITED LOS ANGELES AGENCY
By /s/ Vincente L. Timaraos
-----------------------------
Title: SVP & SDGM
The Industrial Bank of Japan,
Limited Los Angeles Agency
350 Grand South Avenue, Suite 1500
Los Angeles, CA 90071
Telecopy: (213) 488-9840
SUMMIT BANK
By /s/ C.J. Annas
-----------------------------
Title: RVP
Summit Bank
512 Township Line Road, Suite 280
Blue Bell, PA 19422
Telecopy: (215) 619-4820
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By /s/ [ILLEGIBLE]
-----------------------------
Title: Vice President
Suntrust Bank,Central Florida, N.A.
200 South Orange Ave.
MC 1109
Orlando, FL 32801
Telecopy: (407) 237-5126
THE TRAVELERS INSURANCE COMPANY
By /s/ Jordan M. Stitzer
-----------------------------
Title: Vice President
The Travelers Insurance Company
One Tower Square
Hartford, CT 06183-2030
Telecopy: (860) 954-3730
AG CAPITAL FUNDING PARTNERS, L.P.
By: Angelo, Gordon & Co.,
as Investment Advisor
By /s/ [ILLEGIBLE]
-----------------------------
Title:
AG Capital Funding Partners, L.P.
c/o Angelo, Gordon & Co.
245 Park Avenue, 26th Floor
New York, NY 10167
Telecopy: (212) 867-1388
MORGAN STANLEY DEAN WITTER
PRIME INCOME TRUST
By /s/ [ILLEGIBLE]
-----------------------------
Title: Vice President
Prime Income Trust
c/o Dean Witter InterCapital, Inc.
Two World Trade Center, 72nd Floor
New York, NY 10048
Telecopy: (212) 392-5345
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By /s/ Thomas S. Li
-----------------------------
Title: Managing Director
Massachusetts Mutual Life Insurance
Company
1295 State Street, First Floor
Springfield, MA 01111
Telecopy: (413) 744-6127
MASSMUTUAL HIGH YIELD PARTNERS II, LLC
By /s/ [ILLEGIBLE]
-----------------------------
Title: Vice President
HYP Management Inc, as Managing
Member
MassMutual High Yield Partners II,
LLC
c/o Massachusetts Mutual Life
1295 Spring Street, First Floor
Springfield, MA 01111
Telecopy: (413) 744-6127
MERRILL LYNCH DEBT STRATEGIES
PORTFOLIO
By: Merrill Lynch Asset Management,
L.P., as Investment Advisor
By /s/ Joseph Matteo
-----------------------------
Title: Authorized Signatory
Merrill Lynch Debt Strategies
Portfolio
c/o Merrill Lynch Asset Management,
L.P.
800 Scudders Mill Road, Area 1B
Plainsboro, NJ 08536
Telecopy: (609) 282-3542
TRANSAMERICA
By /s/ John M. Casparian
-----------------------------
Title: Investment Officer
Transamerica
1100 South Olive Street, Suite 2700
Los Angeles, CA 90015
Telecopy: (213) 742-4160
VAN KAMPEN CLO II, LIMITED
By: Van Kampen American Capital
Management, Inc., as Collateral
Manager
By /s/ Jeffrey W. Maillett
-----------------------------
Title: Senior Vice President &
Director
Van Kampen American Capital
CLO II, Limited
One Parkview Plaza, 6th Floor
Oakbrook Terrace, IL 60181
Telecopy: (630) 684-6740
VAN KAMPEN AMERICAN CAPITAL
ENIOR INCOME TRUST
By /s/ Jeffrey W. Maillett
-----------------------------
Title: Senior Vice President &
Director
Van Kampen American Capital
Senior Income Trust
One Parkview Plaza, 6th Floor
Oakbrook Terrace, IL 60181
Telecopy: (630) 684-6740
VAN KAMPEN AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By /s/ Jeffrey W. Maillett
-----------------------------
Title: Senior Vice President &
Director
Van Kampen American Capital
Prime Rate Income Trust
One Parkview Plaza, 6th Floor
Oakbrook Terrace, IL 60181
Telecopy: (630) 684-6740
THE LONG TERM CREDIT BANK OF JAPAN
LIMITED, LOS ANGELES AGENCY
By /s/ [ILLEGIBLE]
-----------------------------
Title: Deputy General Manager
The Long Term Credit Bank of Japan
Limited, Los Angeles Agency
350 South Grand Avenue, Suite 3000
Los Angeles, CA 90071
Telecopy: (213) 622-6908
KZH III LLC
By /s/ Virgina Conway
-----------------------------
Title: Authorized Agent
KZH III LLC
c/o The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, NY 10001
Attention: Virginia Conway
Telecopy: (212) 946-7776
KZH CYPRESSTREE-1 LLC
By /s/ Virgina Conway
-----------------------------
Title: Authorized Agent
KZH CypressTree-1 LLC
c/o The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, NY 10001
Attention: Virginia Conway
Telecopy: (212) 946-7776