EXHIBIT 10.36
"[*] = OMITTED, CONFIDENTIAL MATERIAL, WHICH MATERIAL HAS BE SEPARATELY FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT.
SECOND AMENDMENT TO COMMERCIAL LOAN AGREEMENT
This Second Amendment dated as of March 31, 2002 ("Amendment"), amends
that certain Commercial Loan Agreement dated December 1, 1997, as amended
("Agreement"), between Northland Cable Properties Seven Limited Partnership
("NCP-Seven") and Bank of America, N.A., as agent for itself and for each
financial institution which is properly defined as a "Bank" in the Definitions
Addendum attached thereto.
Whereas, NCP-Seven has requested Bank to permit a restructuring of the
Loan that will allow NCP-Seven to conduct an orderly liquidation of its assets;
Whereas, NCP-Seven has requested Bank to amend the terms of the
Agreement to permit this restructuring; and
Whereas, NCP-Seven has requested Bank to make the further agreements
contained in this Amendment.
Whereas, Bank has agreed to the foregoing on the terms and conditions
set forth herein.
Now, therefore, in consideration of the mutual promises contained herein
and other good and valuable consideration, receipt of which is hereby
acknowledged, and in order to induce Bank to extend such credit, NCP-Seven and
Bank each hereby agree as follows:
1. LOANS. Section 2.1 of the Agreement is hereby stricken and replaced
with the following:
Section 2.1 Loans. The parties acknowledge that as of March 31,
2002 (hereafter the "Commitment Termination Date"), Bank has advanced
$40,700,000 (hereinafter, the "Commitment") to NCP-Seven under this
Agreement, in two tranches, known as "Tranche A" and "Tranche C."
Effective as of the Commitment Termination Date the parties mutually
agree that (a) the Commitment Period shall be terminated; (b) Tranche A
and Tranche C shall be combined and the aggregate amount of the Loans
outstanding shall be repaid in accordance with Section 3.1; (c) no
further Advances under the Commitment shall be made; and (d) the
Commitment may not be repaid and reborrowed. NCP-Seven shall execute and
deliver a promissory note in the form attached as Exhibit E - 2 to
evidence all amounts advanced. All other promissory notes evidencing
indebtedness under the Agreement shall be cancelled and returned to
NCP-Seven.
Exhibit E - 2 attached hereto, is hereby added to the Agreement.
2. PAYMENTS. Section 3.1 of the Agreement is hereby stricken and
replaced with the following:
Section 3.1 Repayment of Principal. On the last Business Day of
each March, June, September and December, beginning on the Commitment
Termination Date, NCP-Seven shall pay to Bank as installments of
principal under the Note, the payment amount which is set forth in the
table appearing below.
Quarters Quarterly Payment Amount
------------------------------------- ------------------------
March 31, 2002 $250,000
June 30, 2002, through December 31, 2002 $300,000
March 31, 2003, through June 30, 2003 $500,000
September 30, 2003 through December 31, 2003 $600,000
March 31, 2004 Entire Outstanding Balance
In all events, all remaining principal and accrued interest due under
the Note shall be due and payable in full on March 31, 2004.
3. CONFORMING CHANGES TO SECTIONS 3.2 AND 3.3. The reference to "March
31, 2006" in Section 3.2 of the Agreement is hereby stricken and replaced by
"March 31, 2004." The reference to "June 30, 2006" in Section 3.3 of the
Agreement is hereby stricken and replaced by "March 31, 2004."
4. PREPAYMENT. The initial paragraph of Section 3.5 of the Agreement is
hereby stricken and replaced with the following:
Section 3.5 Prepayment. No prepayment, including any Qualifying
Asset Sale Reduction, shall be made until NCP-Seven (a) delivers to Bank
prior written notice of its intent to prepay, which notice shall be
given at least 10 Business Days before the date of prepayment and
contain the amount to be prepaid, and (b) pays any premium required
below. Notwithstanding the foregoing, NCP-Seven need not give the notice
required by (a) above with respect to any prepayment required by Section
3.2 (but the premium required by (b) above and Section 3.5(b) shall be
paid). Any prepayment of less than the full amount outstanding (which
partial prepayments may be made upon compliance with (a) and (b)) shall
be applied in the inverse order of maturity and shall first be applied
to Cost and Fees and any prepayment fees then due, then to accrued
interest, then to the outstanding principal balance of the Loan.
The remainder of Section 3.5 of the Agreement commencing with Section 3.5(a)
shall remain unchanged.
5. FEES. Section 4.2 of the Agreement is hereby stricken and replaced
with the following:
Section 4.2 Quarterly Loan Fee. NCP-Seven agrees to pay Bank a
quarterly loan fee equal to the amount set forth below on the last day
of each calendar quarter:
Due Date Fee Amount
----------------- ----------
June 30, 2002 [*]
September 30, 2002 [*]
December 31, 2002 [*]
March 31, 2003 [*]
June 30, 2003 [*]
September 30, 2003 [*]
December 31, 2003 [*]
March 31, 2004 [*]
provided that in the event of a Qualifying Asset Sale Reduction the
quarterly loan fee payable each calendar quarter thereafter shall be
reduced by the percentage the Qualified Asset Sale Reduction bears to
the outstanding principal balance of the Loans immediately prior to the
Qualified Asset Sale Reduction.
6. OTHER FINANCIAL INFORMATION. The initial paragraph of Section 7.3 of
the Agreement is hereby stricken and replaced with the following:
Section 7.3 Financial Statements and Reports. NCP Seven shall
deliver to Bank a monthly report (current as of month-end) within 30
days of each month end, containing: the number of subscribers in the NCP
System (detailed per cable system in a manner reasonably requested by
Bank); a breakdown of the subscriptions into subscriptions for basic
services regulated under 47 U.S.C. Section 543 and other services
offered in connection therewith ("Basic Package") and those for greater
revenue producing services ("Premium Services"); the number
[*] = Confidential Treatment Requested.
(reasonably approximated in accordance with industry standards) of homes
or apartments passed by the system; and, on an quarterly basis (attached
as exhibits to the statements delivered under (a) and (b) below), a
description of all material differences between the internal projected
budget for the year in question and the actual expenditures for such
year.
The remainder of Section 7.3 of the Agreement shall remain unchanged.
7. CHANGE TO FINANCIAL COVENANTS. Sections 7.7 (a), (b), (c), (d) and
(e) of the Agreement are hereby stricken and replaced with the following:
(a) Funded Debt/EBITDA. The ratio of the Funded Debt of NCP-Seven
to its EBITDA shall not exceed the ratio indicated below:
Measured as of Funded Debt to EBITDA Ratio
--------------------------- ---------------------------
2002 first fiscal quarter 6.45 to 1
2002 second fiscal quarter 6.10 to 1
2002 third fiscal quarter 6.00 to 1
2002 fourth fiscal quarter 5.90 to 1
2003 first fiscal quarter 5.90 to 1
2003 second fiscal quarter 5.45 to 1
2003 third fiscal quarter 5.30 to 1
2003 fourth fiscal quarter 5.20 to 1
(b) Minimum Subscribers. NCP-Seven shall maintain at least the
following minimum number of subscribers:
Measured as of Minimum Subscribers
--------------------------- -------------------
2002 first fiscal quarter 33,908
2002 second fiscal quarter 33,399
2002 third fiscal quarter 33,065
2002 fourth fiscal quarter and each fiscal 32,900
quarter thereafter
(c) Interest Coverage Ratio. The ratio of (i) the Cash Flow of
NCP-Seven to (ii) the interest expense on Total Debt of NCP-Seven shall be at
least 2.25, calculated as of the end of each fiscal quarter.
(d) Management Fee. In the event a Qualified Asset Sale Reduction
has not occurred or is not under contract on or before September 30, 2002,
NCP-Seven shall defer payment of management fees to Northland commencing October
1, 2002, and, until such time as a Qualified Asset Sale Reduction has occurred,
payment of such fees shall be subordinated to the Obligations pursuant to the
terms of the Subordination Agreement.
(e) Investments and Capital Expenditures. Not make any (i) loan
or advance to any person or purchase or otherwise acquire the capital stock,
assets or obligations of, or any interest in, any person; (ii) investment
outside the ordinary course of business except investments in certificates of
deposit maturing within one year from the date of acquisition from any one or
more of the top 100 commercial banks in the United States, in prime commercial
paper with maturities of less than one year, or in obligations issued or
guaranteed by any Governmental Body of the United States; and (iii) any
expenditures for fixed assets or other Capital Expenditures shall not exceed
$2,600,000 for fiscal year 2002, $2,500,000 for fiscal year 2003 and $200,000
for the first fiscal quarter of 2004. The foregoing amounts may not be carried
forward into another year without the Consent of Bank.
8. AMENDMENT TO DEFINITIONS. The terms "Adjusted LIBOR Rate," "Base Rate
Margin," "Commitment Period," "Determination Date," "Interest Payment Date,"
"Note," and "Participant" defined in the Definitions Addendum of the Agreement
are hereby stricken and replaced with the following:
"Adjusted LIBOR Rate" shall mean for any day that per annum rate
equal to the sum of (a) the LIBOR Margin, (b) the Assessment Rate, and
(c) the quotient of (i) the LIBOR Rate as determined for such day,
divided by (ii) the Reserve Adjustment. The Adjusted LIBOR Rate shall
change with any change in the LIBOR Rate on the first day of each
Interest Period and on the effective date of any change in the
Assessment Rate or Reserve Adjustment. The "LIBOR Margin" shall be 4.00%
per annum from March 1, 2002, through and including December 31, 2002,
5.00% per annum thereafter through and including December 31, 2003, and
6.00% per annum thereafter; provided that the "LIBOR Margin" shall be
4.00% per annum after a Qualifying Asset Sale Reduction.
"Borrowing Notice" means the notice form attached and
incorporated herein as Exhibit A-1 appropriately completed and executed
by any officer of Northland who is the President, Treasurer, or any
financial vice president, each of whom is severally authorized to select
such rates.
"Commitment Period" means the period commencing on Closing and
ending March 31, 2002.
"Determination Date" means the Closing Date and the last Business
Day of each September, December, March and June thereafter through and
including March 31, 2004.
"Interest Payment Date" means (a) for a Base Rate Loan, the last
Business Day of each September, December, March and June; and (b) for a
LIBOR Rate Loan, the last Business Day of the Interest Period; and (c)
for all Loans, the maturity date of each Loan, including maturity by
acceleration.
"Interest Period" means the period commencing on the date of any
Advance and ending on the date set forth below, subject to acceleration
after an Event of Default. For any LIBOR Rate Loan, the end of the
Interest Period shall be the last day of the one, two or three month
period designated by NCP-Seven in a Borrowing Notice (so long as such
period ends on or before March 31, 2004). For any Base Rate Loan, the
end of the Interest Period shall be March 31, 2004, unless NCP-Seven
shall cause the period to expire earlier by submitting a Borrowing
Notice requesting an Adjusted LIBOR Rate for said loan (and thereby
converting the Base Rate Loan to a LIBOR Rate Loan). Notwithstanding the
foregoing, in the event that the last day of any Interest Period would
fall on a day other than an International Banking Day, the Interest
Period shall be extended to the next succeeding International Banking
Day (unless said day would be in the next calendar month in which case
the date for payment shall be the immediately preceding International
Banking Day) if such is not later than March 31, 2004.
"Note" means the promissory note in substantially the form
attached as Exhibit E-2 evidencing the Loans, all as amended, extended
and renewed from time to time.
"Participant" means one or more entities to whom Bank transfers
an interest in this Agreement or any Related Document. References to
Bank shall be deemed to include all Participants. The interest of each
Participant (and Bank of America) shall be an undivided interest in all
rights under this Agreement and each Related Document equal to the
percentage of the outstanding principal balance of the Obligations
funded by that Participant (hereafter the "Pro Rata Share"). Each
Participant's (including Bank of America) obligation under the Loan
shall be limited to its interest in the Loan. Each Participant shall
become a Participant upon execution by both such Participant and Bank of
America, and delivery to Bank of America, of an Assignment and
Assumption Certificate in the form of Exhibit Q - 2 attached.
Exhibit A-1 and Exhibit Q - 2 attached hereto, are hereby added to the
Agreement.
9. DEFINITIONS OF "EBITDA," "FUNDED DEBT," AND "QUALIFYING ASSET SALE
REDUCTION." The terms "EBITDA, "Funded Debt" and "Qualifying Asset Sale
Reduction" are hereby added to the Definitions Addendum of the Agreement as
follows:
"EBITDA" means, for any Person, for any period, net income (or
net loss), plus the sum of (i) interest expense (including the interest
component of rentals paid or accrued under capital leases), (ii)
provision for taxes based on income (iii) depreciation and amortization,
(iv) management fees accrued but not paid and (v) plus or minus other
non-cash charges or credits, in each case determined on a consolidated
basis in accordance with GAAP for such period.
"Funded Debt" means, for any Person, an amount equal to (a) all
indebtedness for borrowed money, and (b) all obligations with respect to
capital leases.
"Qualifying Asset Sale Reduction" means a prepayment of the Loans
in an amount of at least $15,000,000 resulting from a sale of any
portion of NCP-Seven's assets made with the Consent of Bank.
10. WAIVER OF FINANCIAL COMPLIANCE. Bank hereby waives, pursuant to
Section 9.2 of the Agreement, NCP-Seven's compliance with Sections 7.7(a), (d)
and (e) of the Agreement for the fiscal quarter ending December 31, 2001. The
foregoing waiver shall not constitute a waiver of any other term or condition of
the Agreement and Bank reserves the right, at its option, to declare a Default
under the Agreement for any subsequent failure to comply with Sections 7.7(a)
(d) and (e) of the Agreement. Further, the foregoing waiver shall not preclude
the exercise of any other right, power, or privilege under the Agreement.
11. CONSENT TO DISPOSITIONS. Bank hereby consents to Dispositions of the
assets of NCP-Seven provided that: (a) Bank is notified in advance of the
proposed Disposition; (b) all net proceeds of or payment for the Disposition are
remitted to Bank as a condition to the Disposition; and (c) Bank reasonably
believes the Disposition does not impair the value of Bank's Collateral or
NCP-Seven's financial condition or ability timely to pay and perform all of the
remaining Obligations.
12. AMENDMENT FEE. In consideration of Bank extending the financial
accommodations described in this Amendment, NCP-Seven agrees to pay Bank an
amendment fee in the amount of [*], as of the date of this Amendment.
13. CONDITIONS PRECEDENT. This Amendment shall not be effective unless
and until the following conditions have been fulfilled to Bank's satisfaction:
(a) Bank shall have received this Amendment, duly executed and delivered by the
parties hereto; (b) Bank shall have received an Amendment to the Subordination
Agreement, in form acceptable to Bank and executed by NCP-Seven, which provides
that no management fees may be paid by NCP-Seven commencing October 1, 2002, if
a Qualifying Asset Sale Reduction has not occurred or is not under contract on
or before September 30, 2002 until such time as a Qualified Asset Sale Reduction
has been effected; (c) Bank shall have received from each Participant an
executed Assignment and Assumption Agreement in form and substance satisfactory
to Bank; (d) Bank shall have received the Amendment Fee described in paragraph
12, hereof; (e) except as waived under Section 10 above, there shall not exist
any Default or Event of Default under the Agreement or any Related Document; (f)
NCP-Seven shall have paid all of Bank's Costs and Expenses (including attorneys'
fees) incurred in connection with this Amendment; and (g) all representations
and warranties of NCP-Seven contained in the Agreement or otherwise made in
writing in connection therewith or herewith shall be true and correct and in all
material respects have the same effect as though such representations and
warranties had been made on and as of the date of this Amendment.
[*] = Confidential Treatment Requested.
14. REPRESENTATIONS AND WARRANTIES. NCP-Seven hereby represents and
warrants to Bank that as of the date of this Amendment, except as waived under
Section 10 above, there exists no Default or Event of Default. All
representations and warranties of NCP-Seven contained in the Agreement and the
Related Documents, or otherwise made in writing in connection therewith, are
true and correct as of the date of this Amendment. NCP-Seven acknowledges and
agrees that all of the obligations are payable without offset, defense, or
counterclaim.
15. SECURITY. All Related Documents evidencing Bank's security interest
in the Collateral on behalf of Bank shall remain in full force and effect, and
shall continue to secure, without change in priority, the payment and
performance of the Loans, as amended herein, and any other Obligations owing
from NCP-Seven to Bank pursuant to the terms of the Agreement and the Related
Documents.
16. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall constitute an original agreement, but all of
which together shall constitute one and the same agreement.
17. OTHER TERMS. Terms not otherwise defined herein shall have the
meanings defined in the Agreement. Except as specifically amended or waived by
this Amendment, all other terms and conditions of the Agreement shall remain in
full force and effect and each are hereby ratified and confirmed. ORAL
AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, TO EXTEND CREDIT, OR TO FORBEAR
FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.
NCP-SEVEN: BANK:
NORTHLAND CABLE PROPERTIES BANK OF AMERICA, N.A.
SEVEN LIMITED PARTNERSHIP
By: Northland Communications Corporation,
Managing General Partner
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------- ------------------------------------
Its President ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President
------------------------------------------
on behalf of Northland Communications
Corporation, as Managing General Partner
and as agent for FN Equities
Joint Venture, Administrative
General Partner
Consent of Northland
The undersigned acknowledges receipt of a copy of the Second Amendment
to that certain Commercial Loan Agreement dated December 1, 1997, between
Northland Cable Properties Seven Limited Partnership and Bank of America, N.A.,
attached hereto, and consents to its contents.
DATED as of this 31st day of March, 2002.
NORTHLAND COMMUNICATIONS CORPORATION, a
Washington corporation
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Its President
