Exhibit 10.53
FIRST AMENDMENT dated as of December 15, 2000 to
the Credit Agreement dated as of September 28, 2000 (the
"Credit Agreement") among CoreComm Limited (the "Parent"),
CoreComm Holdco, Inc. ("CCI"), CoreComm Communications, Inc.
(the "Borrower"), the Lenders party hereto, and The Chase
Manhattan Bank, as Administrative Agent and Collateral Agent.
WHEREAS, the Parent, CCI and the Borrower have requested that
the Lenders (such term and each other capitalized term used but not
otherwise defined herein having the meaning assigned to it in the Credit
Agreement as proposed to be amended hereby) approve amendments to certain
provisions of the Credit Agreement;
WHEREAS, the undersigned Lenders are willing, on the terms and
subject to the conditions set forth herein, to approve such amendments to
the Credit Agreement;
NOW, THEREFORE, in consideration of these premises, the
Borrowers and the undersigned Lenders hereby agree as follows:
Section 1. Amendments. Effective as of the Amendment Effective
Date (as defined in Section 3 hereof), the Credit Agreement is hereby
amended as follows:
(a) The following definitions are inserted in appropriate
alphabetical positions in Section 1.01:
"Additional New Financing Condition" means the
condition that (a) CCI shall have received an additional
$1,000,000 in cash proceeds from the issuance of New
Convertible Notes after the Amendment Effective Date, (b) shall
have contributed the cash proceeds thereof to the common equity
of the Borrower and (c) such New Convertible Notes meet all the
requirements of clauses (ii) and (iii) of the definition of
"New Financing Condition".
"Amendment Effective Date" has the meaning assigned
to such term in the First Amendment dated December 15, 2000 to
this Agreement.
"New Equity Proceeds" means the excess of the
aggregate cumulative amount of Equity Proceeds received after
the Effective Date over $50,000,000.
"New Convertible Notes" means CCI's senior
unsecured convertible notes in the principal amount of
$16,100,000, $15,100,000 of which were originally issued on
December 15, 2000.
"New Financing Condition" means the condition that
(i) CCI shall have received at least $15,100,000 in cash
proceeds from the issuance of New Convertible Notes and shall
have contributed the cash proceeds thereof to the common equity
of the Borrower, (ii) the New Convertible Notes (A) shall
constitute Permitted Parent Indebtedness, (B) shall not be
Guaranteed by the Borrower or any other Restricted Subsidiary
and (C) shall require no cash interest payments at any time and
(iii) all of the Parent's and CCI's obligations in respect of
the New Convertible Notes shall be subordinated to the Parent's
and CCI's obligations under the Guarantee Agreement pursuant to
terms satisfactory to the Administrative Agent.
(b) The definition of "Contributed Capital" in Section 1.01 is
amended by inserting the words ", plus (e) the cash proceeds of the New
Convertible Notes contributed to the common equity of the Borrower"
immediately preceding the period at the end of such definition
(c) The definition of "Conversion Proceeds" in Section 1.01 is
amended by inserting the words "(other than New Convertible Notes)"
immediately following the words "any convertible debt securities" in such
definition.
(d) The definition of "Designated Equity Proceeds Use" in
Section 1.01 is amended by inserting the word "New" immediately preceding
the words "Equity Proceeds" in such definition.
(e) The definition of "Excess Capital" in Section 1.01 is
amended by inserting the word "New" immediately preceding the words "Equity
Proceeds" in such definition.
(f) The definition of "Permitted Parent Indebtedness" in
Section 1.01 is amended and restated in its entirety as follows:
"Permitted Parent Indebtedness" means unsecured
senior or subordinated Indebtedness of the Parent or CCI that
(a) is not Guaranteed by the Borrower or any Restricted
Subsidiary (other than CCI), (b) does not mature or amortize or
require any payment of principal, and is not subject to any
sinking fund requirement, prior to March 22, 2009 (other than
pursuant to a prepayment obligation), (c) is not convertible
into or exchangeable into any Indebtedness or Equity Interests
other than a Permitted Parent Financing, provided however that,
the New Convertible Notes may be convertible into Equity
Interests in a Subsidiary so long as (i) if such Subsidiary is
a Restricted Subsidiary, (A) the holders of such resulting
Equity Interests enter into a consent agreement reasonably
satisfactory to the Collateral Agent in which such holders
acknowledge and consent to such Subsidiary's Guarantee of the
Indebtedness hereunder and its grant of security interests
under the Loan Documents to secure the Obligations and (B) the
Required Lenders consent thereto and the terms of this
Agreement (including, without limitation, the Financial
Covenants and the definitions applicable thereto) are amended
to account for the existence of minority equity interests held
by non-Loan Parties in such Subsidiary, (ii) if such Subsidiary
is an Unrestricted Subsidiary, the Required Lenders shall
otherwise consent if any related transactions with respect to
such Subsidiary are not permitted pursuant to this Agreement or
the other Loan Documents and (iii) the requisite lenders under
the Senior Unsecured Facility shall also consent thereto (if
necessary pursuant to the terms of the commitment under, or the
definitive documentation for, such facility), (d) either
requires no cash interest payments or provides for a pre-funded
cash interest reserve sufficient to cover all interest
payments, in each case for the period of three years commencing
on the Effective Date, and (e) in the case of subordinated
debt, contains subordination terms reasonably satisfactory to
the Administrative Agent.
(g) The definition of "Total Debt" in Section 1.01 is amended
by inserting the words "and the New Convertible Notes" after the words
"Senior Unsecured Facility" in the parenthetical phrase in such definition.
(h) Section 2.01 is amended by deleting the figure
"$75,000,000" in the proviso to the first sentence therein and substituting
in lieu thereof the figure "$91,100,000".
(i) Section 2.04(b) is amended by deleting the figure
"$75,000,000" in clause (iii) of the final sentence therein and
substituting in lieu thereof the figure "$91,100,000".
(j) Section 4.02 (c) is amended by deleting the figure
"$75,000,000" therein and substituting in lieu thereof the figure
"$91,100,000".
(k) Section 5.01 is amended by deleting the word "and" at the
end of clause (f) thereof, deleting the period at the end of clause (g)
thereof and substituting in lieu thereof a semicolon and inserting the
following new clauses (h) and (i) immediately following clause (g) which
shall read as follows:
(i) as soon as they are prepared and in no event any later than
the 45th day (or, in the case of calendar months ending
on or after July 31, 2001, the 30th day) after the end
of each calendar month ending before the later of (x)
the date New Equity Proceeds are first received and (y)
the General Syndication Date, unaudited (i)
consolidated statements of income of the Parent and the
Restricted Subsidiaries for such month and the
then-elapsed portion of the fiscal year to the end of
such month, prepared in accordance with GAAP
consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes, certified by
one of its Financial Officers and (ii) status reports
on the development of the Borrower's telecommunications
network infrastructure, including a schedule of planned
and actual capital expenditures and a report of
year-to-date compliance with the annual budget for the
fiscal year in which such month occurs, in each case
prepared by a Financial Officer of the Borrower or the
Parent; and
(ii) within 15 days after the end of each calendar month ending before the
later of (x) the date New Equity Proceeds are first received and (y)
the General Syndication Date, an estimated consolidated cash general
ledger balance of the Parent, the Borrower and the Restricted
Subsidiaries as of the end of such month, subject to certain
adjustments to reconcile such ledger balance with bank statement
balances.
(l) Section 6.06(e) is amended by inserting the word "New"
immediately preceding the words "Equity Proceeds" in such Section.
(m) Section 6.06(1) is amended and restated in its entirety to
read as follows:
(i) other Investments in Unrestricted Subsidiaries, Restricted
Subsidiaries that are not Loan Parties or other
Persons, in each case made after the General
Syndication Date, in an aggregate amount, together with
Investments in such entities permitted by clauses (d)
or (g) at this Section 6.06, at any time outstanding
not to exceed $5,000,000 plus New Equity Proceeds and
Conversion Proceeds received after the date hereof and
within 90 days of the date such other Investment is
made and not applied to any other Designated Equity
Proceeds Use; and
(n) Section 6.09(a) is amended by (i) inserting the word "New"
immediately preceding the words "Equity Proceeds" in clause (iii)(A) of
such Section and (ii) inserting the words "and made after the General
Syndication Date" immediately after the words "Conversion Proceeds" in
clause (iii)(B) of such Section.
(o) Article VII is amended by deleting the word "or"
immediately after the semicolon at the end of clause (n) to such Article,
inserting the word "or" after the semicolon at the end of clause (o) to
such Article and inserting a new clause (p) immediately following clause
(o) to such Article which shall read as follows:
(i) the Additional New Financing Condition shall not have been satisfied
on or prior to December 22, 2000 and shall continue to remain
unsatisfied for a period of 15 days after notice thereof from the
Administrative Agent to the Borrower;
Section 2. Representations and Warranties. Each of the Parent,
CCI and the Borrower represents and warrants to each of the Lenders that,
after giving effect to the amendments contemplated hereby, (a) the
representations and warranties of such Person set forth in the Credit
Agreement are true and correct in all material respects on and as of the
date of this Amendment, except to the extent such representations and
warranties expressly relate to an earlier date (in which case such
representations and warranties shall be true and correct in all material
respects as of the earlier date) and (b) no Default has occurred and is
continuing.
Section 3. Effectiveness. This Amendment shall become effective
as of the date (the "Amendment Effective Date") when the following
conditions shall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have
received copies hereof that, when taken together, bear the signatures of
the Parent, CCI, the Borrower and the Required Lenders.
(b) The New Financing Condition shall have been satisfied.
(c) The Administrative Agent shall have received a certificate
of the President, a Vice President or a Financial Officer of the Parent,
confirming compliance as of the Amendment Effective Date with the
conditions set forth in paragraphs (a) and (b) of Section 4.02 of the
Credit Agreement and paragraph (b) of this Section 3.
(d) The amendment dated as of December [ ], 2000 to the
commitment letter for the Senior Unsecured Facility shall have been
executed and delivered by CCI.
(e) The Administrative Agent and the Lenders shall have
received all fees, expenses and other consideration presented for payment
on or before the date hereof.
Section 4. Applicable Law. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
Section 5. No Other Amendments. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of any
party under, the Credit Agreement, nor alter, modify, amend or in any way
affect any of the terms, conditions, obligations, covenants or agreements
contained in the Credit Agreement, all of which are ratified and affirmed
in all respects and shall continue in full force and effect. This Amendment
shall apply and be effective only with respect to the provisions of the
Credit Agreement specifically referred to herein.
Section 6. Counterparts. This Amendment may be executed in two
or more 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 as effective as delivery of a manually executed
counterpart of this Amendment.
Section 7. Headings. Section headings used herein are for
convenience of reference only, are not part of this Amendment and are not
to affect the construction of, or to be taken into consideration in
interpreting, this Amendment.
IN WITNESS WHEREOF, the Borrower, the Parent and CCI and the
undersigned Lenders have caused this Amendment to be duly executed by their
duly authorized officers, all as of the date first above written.
CORECOMM COMMUNICATIONS, INC.,
By /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
CORECOMM LIMITED
By /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
CORECOMM HOLDCO, INC.
By /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
THE CHASE MANHATTAN BANK,
Individually and as Agent,
By /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
