CONSENT AND AMENDMENT NO. 4
CONSENT AND AMENDMENT NO. 4 dated as of August 15, 1997 between
FRONTIERVISION OPERATING PARTNERS, L.P., a limited partnership duly organized
and validly existing under the laws of the State of Delaware (the "Company"),
each of the lenders that is a signatory hereto identified under the caption
"Lenders" on the signature pages hereto and THE CHASE MANHATTAN BANK, as
administrative agent for said lenders (in such capacity, the "Administrative
Agent").
The Company, the Lenders, the Administrative Agent, J.P. Morgan Securities
Inc., as Syndication Agent, and CIBC Inc., as Managing Agent, are parties to an
Amended and Restated Credit Agreement dated as of April 9, 1996 (as heretofore
amended, the "Credit Agreement"), providing, subject to the terms and conditions
thereof, for loans to be made by the Lenders to the Company in an aggregate
principal or face amount not exceeding $265,000,000.
The Company has requested that the Credit Agreement be modified in certain
respects and, accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this Consent and
Amendment No. 4, terms defined in the Credit Agreement are used herein as
defined therein.
Section 2. Amendment. Subject to the satisfaction of the conditions
precedent set forth in Section 5 hereof, but effective as of the date hereof,
the Credit Agreement is hereby amended as follows:
A. General. References in the Credit Agreement to "this Agreement" (and
indirect references such as "hereunder", "hereby", "herein" and "hereof") shall
be deemed to be references to the Credit Agreement as amended hereby.
B. Definitions. Section 1.01 of the Credit Agreement is hereby amended by
adding the following new definitions (to the extent such definitions are not
presently set forth in said Section 1.01) and amending in their entirety the
following definitions (to the extent such definitions are presently set forth in
said Section 1.01), as follows:
"A-R Acquisition" shall mean the proposed acquisition by the Company of
CATV Systems in Maine from A-R Cable Services-ME, Inc. pursuant to the A-R
Acquisition Agreement.
"A-R Acquisition Agreement" shall mean the Asset Purchase Agreement dated
as of May 8, 1997 between A-R Cable Services-ME, Inc. and the Company (as such
Asset Purchase Agreement may be modified and supplemented and in effect from
time to time).
"Basic Documents" shall mean, collectively, the Loan Documents, the A-R
Acquisition Agreement, the Cox Acquisition Agreement, the Triax Acquisition
Agreement, the ACE Acquisition Agreement, the Triax I Acquisition Agreement and
the TCI - NE Acquisition Agreement.
"Bedford Acquisition" shall mean the proposed acquisition by the Company of
CATV Systems in Michigan from PCI One Incorporated ("PCI"), pursuant to the
Asset Purchase Agreement dated as of June 10, 1997 between PCI and the Company
(as such Asset Purchase Agreement may be modified and supplemented and in effect
from time to time).
"Change of Control" shall mean that the Company or FrontierVision Capital
shall be required pursuant to the provisions of the Senior Subordinated Debt
Documents (or any other agreement or instrument relating to or providing for any
other Subordinated Indebtedness), or FrontierVision Holdings, L.P. or
FrontierVision Holdings Capital Corporation under the Zero Coupon Debt
Documents, shall be required, to redeem or repurchase, or make an offer to
redeem or repurchase, all or any portion of the Senior Subordinated Debt (or
such Subordinated Indebtedness, as the case may be), or the Zero Coupon Debt, as
a result of a change of control (however defined).
"Equity Issuance" shall mean (a) any issuance or sale by the Company or any
of its Subsidiaries, or by FrontierVision LP or any of its Subsidiaries, after
the Closing Date of (i) any of its partnership interests (whether as a general
or a limited partner) or of its capital stock (other than any such partnership
interests or capital stock issued to directors, officers or employees of the
Company or any of its Subsidiaries or FrontierVision LP or any of its
Subsidiaries), (ii) any warrants or options exercisable in respect of its
capital stock or its partnership interests (other than any warrants or options
issued to directors, officers or employees of the Company or any of its
Subsidiaries, or FrontierVision LP or any of its Subsidiaries, and any
partnership interests of the Company, or FrontierVision LP or any of its
Subsidiaries, issued upon the exercise of such warrants or options) or (iii) any
other security or instrument representing an equity interest (or the right to
obtain any equity interest) in the Company or any of its Subsidiaries, or
FrontierVision LP or any of its Subsidiaries, or (b) the receipt by the Company
or any of its Subsidiaries, or FrontierVision LP or any of its Subsidiaries,
after the Closing Date of any capital contribution (whether or not evidenced by
any equity security issued by the recipient of such contribution); provided that
Equity Issuance shall not include (x) any such issuance or sale by any
Subsidiary of the Company to the Company or any Wholly Owned Subsidiary of the
Company or (y) any capital contribution by the Company or any Wholly Owned
Subsidiary of the Company to any Subsidiary of the Company. In the case of
FrontierVision LP, the term "Equity Issuance" shall include the issuance of
Notes by FrontierVision LP, and the making of Loans to FrontierVision LP,
pursuant to the Limited Partnership Interest and Note Purchase Agreement dated
as of July 28, 1995 between FrontierVision LP, FVP GP, L.P. and the Investors
named therein (including, without limitation, the Initial Equityholders).
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"New Acquisition" shall mean the A-R Acquisition, Phoenix Grassroots
Acquisition, the Triax Acquisition, the ACE Acquisition, the Penn/Ohio
Acquisition, the Triax I Acquisition and the TCI - NE Acquisition.
"Reorganization Transactions" shall have the meaning assigned to such term
in Section 3 of the Consent and Amendment No. 4 hereto.
"Subsequent Acquisition Agreement" shall mean the A-R Acquisition
Agreement, the Phoenix Grassroots Acquisition Agreement, the Triax Acquisition
Agreement, the ACE Acquisition Agreement, the Penn/Ohio Acquisition Agreement,
the Triax I Acquisition Agreement, the TCI - NE Acquisition Agreement and each
other agreement pursuant to which a Subsequent Acquisition shall be consummated,
as the same shall, subject to Section 8.18 hereof, be modified and supplemented
and in effect from time to time.
"Zero Coupon Debt" shall mean the Indebtedness of FrontierVision Holdings,
L.P. and FrontierVision Holdings Capital Corporation in respect of the notes
issued pursuant to Zero Coupon Debt Indenture.
"Zero Coupon Debt Documents" shall mean the Zero Coupon Debt Indenture, the
securities or other instruments evidencing the Zero Coupon Debt and all other
documents, instruments and agreements executed and delivered in connection with
the original issuance of the Zero Coupon Debt, in each case, as the same shall,
subject to Section 8.18 hereof, be modified and supplemented and in effect from
time to time.
"Zero Coupon Debt Indenture" shall mean the Indenture to be entered into by
FrontierVision Holdings, L.P. and FrontierVision Holdings Capital Corporation,
as Issuers, and an indenture trustee to be designated, as the same shall,
subject to Section 8.18 hereof, be modified and supplemented and in effect from
time to time.
C. EBITDA Definition. The third sentence in the definition of "EBITDA" in
Section 1.01 of the Credit Agreement is hereby amended by deleting the "and" at
the end of paragraph (J) thereof and by adding the following paragraphs (L) and
(M) thereto:
"(L) for periods prior to the date of the Bedford Acquisition, EBITDA
for each day during such period attributable to the CATV Systems acquired
pursuant to the Bedford Acquisition shall be deemed to be equal to
$4,605.00 (determined by the Company as provided in Schedule XIII hereto).
(M) for periods prior to the date of the A-R Acquisition, EBITDA for
each day during such period attributable to the CATV Systems acquired
pursuant to the A-R Acquisition shall be deemed to be equal to $22,710.00
(determined by the Company as provided in Schedule XIII hereto)."
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D. Equity Issuance Prepayment. Section 2.09(b) of the Credit Agreement is
hereby amended by adding a new paragraph at the end thereof to read as follows:
"Notwithstanding the foregoing provisions of this Section 2.09(b), the
Company shall not be required to make a prepayment from the Net Available
Proceeds of the Equity Issuance representing the proceeds of the Zero
Coupon Debt, so long as such proceeds are (i) applied to the prepayment of
the Revolving Credit Loans (but without reduction of Commitments) and (ii)
to the extent of any excess over the amount of such prepayment of Revolving
Credit Loans, held by the Administrative Agent in the Collateral Account
pending withdrawal by the Company from time to time for purposes not
prohibited by this Agreement."
E. Section 7.14 of the Credit Agreement is hereby amended in its entirety
to read as follows:
"7.14 CAPITALIZATION. The Company has heretofore delivered to the
Administrative Agent (in sufficient copies for each Lender) and the other
Agents a true and complete copy of the Partnership Agreement; the only
General Partner of the Company on the date hereof is FrontierVision LP and,
after giving effect to the Reorganization Transactions, the only General
Partner of the Company will be FrontierVision Holdings, L.P.; and the only
Limited Partner of the Company on the date hereof (or after giving effect
to the Reorganization Transactions) is FrontierVision. As of the date
hereof, except as set forth on Schedule IX hereto, (x) there are no
outstanding Equity Rights with respect to the Company and (y) there are no
outstanding obligations of the Company or any of its Subsidiaries to
repurchase, redeem, or otherwise acquire any partnership or other equity
interests in the Company nor are there any outstanding obligations of the
Company or any of its Subsidiaries to make payments to any Person, such as
"phantom stock" payments, where the amount thereof is calculated with
reference to the fair market value or equity value of the Company or any of
its Subsidiaries."
F. Section 8.07 of the Credit Agreement is hereby amended by adding a new
sentence at the end thereof to read as follows:
"Anything in this Agreement to the contrary notwithstanding, the
Company will not, and will not permit any of its Subsidiaries to, directly
or indirectly Guarantee any Indebtedness of FrontierVision Holdings, L.P.
or FrontierVision Holdings Capital Corporation if, as a result thereof, the
Company or any of its Subsidiaries would become obligated under the Zero
Coupon Debt Indenture to Guarantee the obligations of FrontierVision
Holdings, L.P. and FrontierVision Holdings Capital Corporation in respect
of the Zero Coupon Debt."
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G. Section 8.08 of the Credit Agreement is hereby amended by substituting
"; and" for the period at the end of paragraph (j) thereof and by adding the
following paragraph (k) thereto:
"(k) additional Investments in an aggregate amount up to but not
exceeding $5,000,000 at any one time outstanding (the aggregate amount of
an Investment at any one time for purposes hereof to be deemed to be equal
to (A) the aggregate amount of cash, together with the aggregate fair
market value of property, loaned, advanced, contributed, transferred or
otherwise invested that gives rise to such Investment minus (B) the
aggregate amount of dividends, distributions or other payments received in
cash in respect of such Investment, provided that the amount of an
Investment shall not in any event be reduced by reason of any write-off of
such Investment), it being understood that the Company shall not be
required to pledge any of such Investments as collateral security pursuant
to the Security Documents."
H. Section 8.13 of the Credit Agreement is hereby amended by adding a new
paragraph (d) at the end thereof to read as follows:
"(d) The Company will not, nor will it permit any of its Subsidiaries
to, purchase, redeem, retire or otherwise acquire for value, or set apart
any money for a sinking, defeasance or other analogous fund for the
purchase, redemption, retirement or other acquisition of, or make any
voluntary payment or prepayment of the principal of or interest on, or any
other amount owing in respect of, any Zero Coupon Debt, except for
regularly scheduled payments or prepayments of principal and interest in
respect thereof required pursuant to the instruments evidencing such Zero
Coupon Debt."
I. Clauses (i) and (ii) of Section 8.18 of the Credit Agreement is hereby
amended in their entirety to read as follows:
"(i) any Senior Subordinated Debt Document or any other agreement,
instrument or other document evidencing or relating to Subordinated
Indebtedness (other than the cancellation of UVC Notes in accordance with
Section 8.13(b)(1) hereof) or any Zero Coupon Debt Document,
(ii) any Initial Acquisition Agreement, the A-R Acquisition Agreement,
the Cox Acquisition Agreement, the Triax Acquisition Agreement or the ACE
Acquisition Agreement either to increase the aggregate consideration
payable by the Company thereunder or any other provision of such Agreements
(or of any agreement executed in connection therewith) to the extent the
same would materially adversely affect the Lenders or the Administrative
Agent (or the rights of the Lenders or the Administrative Agent under any
of the Loan Documents), or"
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J. Certain Events of Default. Clause (i) of Section 9(l) of the Credit
Agreement is hereby amended in its entirety to read as follows:
"(i) Prior to the Reorganization Transactions, FrontierVision LP (and,
after the Reorganization Transactions, FrontierVision Holdings, L.P.) shall
cease to either (x) own general partnership interests in the Company
representing at least 99.9% of the aggregate partnership interests in the
Company not constituting Other Equity Interests or (y) be the sole general
partner of the Company; or at any time FrontierVision and holders of Other
Equity Interests shall cease to be the sole limited partners of the
Company; or, after the Reorganization Transactions, FrontierVision LP shall
cease to own, directly or indirectly through one or more Wholly-Owned
Subsidiaries, all of the equity interests in FrontierVision Holdings, L.P.;
or"
K. Schedule XIII. The Credit Agreement is hereby amended by adding Schedule
XIII hereto as Schedule XIII thereto.
Section 3. Consents. Subject to the satisfaction of the conditions
precedent set forth in Section 5 hereof, but effective as of the date hereof:
A. Reorganization Transactions. Each of the Lenders hereby consents to
the creation by FrontierVision LP of a new, wholly-owned limited
partnership subsidiary to be named FrontierVision Holdings, L.P. to which
all of the equity interests now held by FrontierVision LP in the Company
and in FrontierVision shall be transferred so as to result in the ownership
structure set forth in Annex 1 hereto (the transactions necessary to effect
such structure being herein called the "Reorganization Transactions"), such
consent of the Lenders being subject to (i) the execution and delivery by
all relevant parties of such pledge and guaranty agreements as the
Administrative Agent shall reasonably request and as shall be necessary to
provide for the pledge by FrontierVision Holdings, L.P. and FrontierVision
of all of the equity interests from time to time held by them in the
Company, and for the pledge by FrontierVision Holdings, L.P. of all of the
issued and outstanding shares of stock of FrontierVision, as collateral
security for, and the guaranty by such entities of, the obligations of the
Borrower under the Credit Agreement on substantially the same terms and
conditions as presently provided in the Partner Pledge Agreement and the
Stock Pledge Agreement and (ii) the delivery to the Administrative Agent of
such proof of corporate, partnership and other action, and opinions of
counsel with respect thereto, as the Administrative Agent shall have
reasonably requested.
B. Zero Coupon Debt. Each of the Lenders hereby consents to issuance
by FrontierVision Holdings, L.P. and FrontierVision Holdings Capital
Corporation of the Zero Coupon Debt on the terms and conditions set forth
in the Description of Notes in substantially the form of the draft thereof
dated August 6, 1997, 10:04 PM, previously delivered to the Administrative
Agent, so long as (i) the entire Net
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Available Proceeds thereof are contributed to the Company as additional
equity capital immediately following such issuance, (ii) such Zero Coupon
Debt has a minimum maturity (without amortization) of at least ten years
and provides for interest to accrete (and not be payable in cash) during
the first four years thereof, (iii) the Zero Coupon Debt Indenture permits
the prepayment of Loans hereunder upon the occurrence of a Disposition as
provided in Section 2.09(d) hereof regardless of whether or not the
obligations of the Company and its Subsidiaries in respect of the Loans
hereunder are deemed to be secured by the assets of the Company and its
Subsidiaries that are the subject of such Disposition and (iv) none of the
Company nor any of its Subsidiaries is directly or indirectly obligated in
respect of a Guarantee of such Zero Coupon Debt.
C. A-R Acquisitions. Each of the Lenders hereby consents to the
consummation of the A-R Acquisition, so long as the same is consummated in
all material respects as provided in the A-R Acquisition Agreement.
Section 4. Representations and Warranties. The Company represents and
warrants to the Lenders that, after giving effect to each of the amendments
set forth in Section 2 hereof, and the consents set forth in Section 3
hereof:
(a) no Default has occurred and is continuing; and
(b) the representations and warranties made by the Company in Section
7 of the Credit Agreement, and by each Obligor in each of the other Loan
Documents to which it is a party, are true and complete on and as of the
date hereof with the same force and effect as if made on and as of such
date (or, if any such representation or warranty is expressly stated to
have been made as of a specific date, as of such specific date) and as if
each reference in the Credit Agreement to "this Agreement" or "the Credit
Agreement" included reference to this Consent and Amendment No. 4.
Section 5. Conditions Precedent. As provided in Sections 2 and 3
hereof, the amendments to the Credit Agreement set forth in said Section 2
and the consents set forth in said Section 3 shall each become effective,
as of the date hereof, upon the satisfaction of the condition precedent
that the Administrative Agent shall have notified the Company that the
Administrative Agent has received the following (each in form and substance
satisfactory to it):
A. Execution and Delivery, Etc. This Consent and Amendment No. 4, duly
executed by the Company, each Lender and the Administrative Agent.
B. Fees and Expenses. Payment of such fees and expenses that the
Company shall have agreed to pay in connection with the transactions
contemplated hereby.
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C. Other Documents. Such other documents as the Administrative Agent
or any Lender or special New York counsel to Chase may reasonably request.
Section 6. Miscellaneous. Except as herein provided, the Credit Agreement
shall remain unchanged and in full force and effect. This Consent and Amendment
No. 4 may be executed in any number of counterparts, all of which taken together
shall constitute one and the same amendatory instrument and any of the parties
hereto may execute this Consent and Amendment No. 4 by signing any such
counterpart. This Consent and Amendment No. 4 shall be governed by, and
construed in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Consent and
Amendment No. 4 to be duly executed and delivered as of the day and year first
above written.
FRONTIERVISION OPERATING PARTNERS, L.P.
By: Frontiervision Partners, L.P., as general partner
of FrontierVision Operating Partners, L.P.
By: FVP GP, L.P., as general partner of
FrontierVision Partners, L.P.
By: FrontierVision Inc., as general partner of
FVP GP,L.P.
By____________________________
Title:
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LENDERS
THE CHASE MANHATTAN BANK MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By______________________ By____________________
Title: Title:
CIBC INC. FIRST NATIONAL BANK OF CHICAGO
By______________________ By____________________
Title: Title:
UNION BANK, a division of Union BANK OF MONTREAL
Bank of California, N.A.
By______________________ By____________________
Title: Title:
FLEET NATIONAL BANK VAN KAMPEN AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By______________________ By____________________
Title: Title:
OCTAGON CREDIT INVESTORS LOAN THE LONG-TERM CREDIT BANK OF
PORTFOLIO JAPAN, LTD., LOS ANGELES AGENCY
By______________________ By____________________
Title: Title:
9
PILGRIM PRIME RATE TRUST BANQUE FRANGAIS DU COMMERCE
EXTIRIEUR
By______________________ By____________________
Title: Title:
By____________________
Title:
MERRILL LYNCH SENIOR FLOATING ML CBO IV (CAYMAN LTD.)
RATE FUND, INC. By Protective Asset Management Co.,
as Collateral Manager
By______________________ By____________________
Title: Title:
CITIZENS SAVINGS BANK INDOSUEZ CAPITAL FUNDING II,
LIMITED
By______________________ By____________________
Title: Title:
MERRILL LYNCH PRIME RATE COOPERATIEVE CENTRALE RAIFFEISEN-
PORTFOLIO BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By______________________ By____________________
Title: Title:
10
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By_______________________
Title:
THE ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK, as
Administrative Agent
By____________________________
Title:
CONSENTED TO AND AGREED:
FRONTIERVISION CAPITAL CORPORATION
By_________________________________
Title:
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