Exhibit 10.2
AMENDMENT, WAIVER, AND CONSENT
THIS AMENDMENT, WAIVER, AND CONSENT (this "Amendment") is
entered into as of June 19, 2000, among XXXXXX OPERATING CO.,
L.L.C., an Oklahoma limited liability company ("DOC"), the
Required Lenders under the Credit Agreement (hereinafter
defined), BANK OF AMERICA, N.A., in its capacity as
Administrative Agent for the Lenders under the Credit Agreement
("Administrative Agent"), and Guarantors under the Credit
Agreement (hereinafter defined).
Reference is made to the Amended, Restated, and Consolidated
Revolving Credit and Term Loan Agreement, dated as of January 18,
2000 (as amended, modified, supplemented, or restated from time
to time, the ("Credit Agreement"), among DOC, as Borrower,
Administrative Agent, First Union National Bank and PNC Bank,
National Association, as Co-Documentation Agents, Toronto
Dominion (Texas), Inc. and Xxxxxx Commercial Paper Inc., as Co-
Syndication Agents, certain Managing Agents, and Co-Agents
defined therein, and the Lenders party thereto.
Unless otherwise defined in this Amendment, capitalized
terms used herein shall have the meaning set forth in the Credit
Agreement. Unless otherwise indicated, all Paragraph references
herein are to Paragraphs in this Amendment.
R E C I T A L S
X. Xxxxxx Communications Corporation ("Communications")
proposes to issue up to $300,000,000 of Senior Notes (the "New
Bond Debt"), a portion of the proceeds of which will be used as
follows: (i) to pay costs and expenses associated with the
issuance of the New Bond Debt and (ii) to fund a subordinated
loan to DOC which complies with the requirements of Section
9.12(d) of the Credit Agreement, which subordinated loan will, in
turn, be used to prepay the Revolver Principal Debt then
outstanding.
B. Borrower has informed Administrative Agent that it has
been unable to obtain the Consent of the General Partner and the
Initial Transaction Statement with respect to the Oklahoma RSA 3
Limited Partnership as required by Schedule 7.1A, item 6 and the
Security Agreement executed by Xxxxxx Cellular Systems, Inc.
C. DOC and Communications have requested certain
amendments and waivers under the Credit Agreement, and Required
Lenders are willing to grant and agree to such amendments and
waivers, but only upon the conditions, among other things, that
DOC, Guarantors, and Required Lenders shall have executed and
delivered this Amendment and shall have agreed to the terms and
conditions of this Amendment.
NOW, THEREFORE, in consideration of these premises and other
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree, as follows:
Paragraph 1. Amendments.
1.1 Definitions.
(a) The definition of "Annualized Interest Expense" is
deleted in its entirety and replaced with the following
definition:
"Annualized Interest Expense means (a) from
the Closing Date through March 31, 2000, the
Interest Expense of the Companies for the
period from January 1, 2000, through March
31, 2000, multiplied by four; (b) for the
fiscal quarter ending June 30, 2000, (i) the
sum of (x) the Debt of the Companies as of
June 30, 2000, multiplied by the per annum
average weighted interest rate on the Debt
during such quarter plus (y) the aggregate
principal amount of New Bond Debt as of June
30, 2000, multiplied by the per annum
interest rate on the New Bond Debt (such
calculation in clause (y) being referred to
herein, as the ("Communications Annualized
Pro Forma Interest Expense"); (c) for the
fiscal quarter ending September 30, 2000, the
sum of (i) the Interest Expense of the
Companies for the period from July 1, 2000,
through September 30, 2000, multiplied by
four plus (ii) the Communications Annualized
Pro Forma Interest Expense; (d) for the
fiscal quarter ending December 31, 2000, the
sum of (i) the Interest Expense of the
Companies for the period from July 1, 2000,
through December 31, 2000, multiplied by two
plus (ii) the Communications Annualized Pro
Forma Interest Expense; and (e) for the
fiscal quarter ending March 31, 2001, the sum
of (i) the Interest Expense of the Companies
for the period from July 1, 2000, through
March 31, 2001, multiplied by 4/3 plus
(ii) the Communications Annualized Pro Forma
Interest Expense."
(b) The definition of "Applicable Margin" is amended as
follows: (i) by deleting the reference to "Leverage Ratio" in
such definition and substituting the words "Communications
Leverage Ratio" therefor, (ii) by deleting the reference to
"Permitted Acquisition Compliance Certificate for a Permitted
Acquisition" in clause(d)(i) and substituting therefor the words
"Permitted Acquisition Loan Closing Certificate for a Permitted
Acquisition," and (iii) by adding a proviso to clause (d)(i) as
follows:
"; provided that if a Permitted Acquisition
Loan Closing Certificate for a Permitted
Acquisition is delivered after the end of a
fiscal quarter but prior to the delivery of
the Compliance Certificate for such quarter
pursuant to Section 9.3, the Applicable
Margin shall be based on the Permitted
Acquisition Loan Closing Certificate for a
Permitted Acquisition or the Compliance
Certificate that results in the higher
Applicable Margin."
(c) The definition of "Communications Bond Debt" is deleted
in its entirety and replaced with the following definition:
"Communications Bond Debt means (i) the
Existing Bond Debt and (ii) the New Bond
Debt."
(d) Clauses (a) and (b) of the definition of "Interest
Coverage Ratio" are amended by deleting the reference to
"September 30, 2000" in such clauses and substituting therefor
the date "March 31, 2001".
(e) The definition of "Interest Expense" is amended by
adding the following sentence at the end of such definition:
"With respect to the calculation of Interest
Expense for the Companies, Interest Expense
shall include (without duplication) the
aggregate amount of interest on the
Communications Bond Debt (whether accrued or
actually paid in cash)."
(f) The following definitions of "Communications Leverage
Ratio," "Communications Total Debt," "Communications Operating
Cash Flow," "Existing Bond Debt," New Bond Debt," "Supplemental
Capital Expenditures," and "Supplemental Capital Expenditures
Budget" shall be alphabetically inserted in Section 1.1 to read,
as follows:
"Communications Leverage Ratio means, with
respect to Communications and its Restricted
Subsidiaries, the ratio of (a) Communications
Total Debt to (b) Communications Operating
Cash Flow."
"Communications Operating Cash Flow, as of
any date of determination, means the
Operating Cash Flow of Communications and its
Restricted Subsidiaries on a consolidated
basis adjusted as required, with respect to
any Cellular Partnership, to take into
account any minority ownership when (and only
when) intercompany Debt to all Companies from
such Cellular Partnerships has been paid in
full."
"Communications Total Debt means (without
duplication), as of any date of
determination, for Communications and its
Restricted Subsidiaries on a consolidated
basis, the sum of all obligations for
borrowed money, all payments required under
non-compete agreements, capital lease
obligations, amounts required under
installment sales purchases, all debt or
other financial obligations of others
guaranteed by such Person, any amounts for
which such Person is contingently liable to
provide, as equity or debt, advances to other
Persons, any Preferred Stock after the
applicable Cash-Pay Date, and any other class
or series of capital stock that by its terms
is required to be redeemed prior to its
stated final redemption date or otherwise
requires cash dividend payments to be made
prior to the final redemption of such stock.
Communications Total Debt shall exclude any
Subordinated Debt owed by any Company to
Communications."
"Existing Bond Debt means the 11:% Senior
Notes due 2007 issued by Communications
pursuant to that certain Indenture dated as
of February 28, 0000, xxxxxxx Xxxxxxxxxxxxxx
xxx Xxxxxx Xxxxxx Trust Company of New York,
in an aggregate original principal amount of
$160,000,000, and the documents and
agreements evidencing and establishing such
Debt, as the same may be amended from time to
time in accordance with the terms thereof and
hereof."
"New Bond Debt means Senior Notes issued by
Communications in June 2000, so long as
(a) the aggregate original principal amount
of such Senior Notes does not exceed
$300,000,000, (b) the maturity date of such
Senior Notes is later than March 31, 2008,
(c) at least $200,000,000 of the proceeds of
such New Bond Debt is loaned to Borrower
pursuant to a subordinated loan that
satisfies the requirements of Section
9.12(d), and (d) all terms and conditions of
such New Bond Debt and the documents and
agreements evidencing and establishing such
New Bond Debt are acceptable to
Administrative Agent (in its sole
discretion)."
"Supplemental Capital Expenditures means,
with respect to Permitted Acquisitions, for
any period of determination, the aggregate
projected Capital Expenditures reflected on
the Supplemental Capital Expenditure Budgets
delivered in connection with such Permitted
Acquisitions, so long as each such
Supplemental Capital Expenditure Budget has
been approved by Administrative Agent, Co-
Syndication Agents, and Co-Documentation
Agents, and the related Permitted Acquisition
has been consummated."
"Supplemental Capital Expenditures Budget
means, with respect to any Permitted
Acquisition, the budget detailing projected
Capital Expenditures to the latest
Termination Date and delivered in connection
with such Permitted Acquisition pursuant to
Section 7.2."
1.2 Mandatory Prepayments.
(a) A new Section 3.3(b)(vi) is added as follows:
A (vi) Concurrently with the incurrence of
the Subordinated Debt owed to Communications
funded with all or a portion of the proceeds
of the New Bond Debt, the Revolver Principal
Debt shall be prepaid by an amount equal to
100% of the Net Cash Proceeds realized by any
Company from such incurrence of Subordinated
Debt. Such mandatory prepayment of Revolver
Principal Debt shall reduce the Revolver
Principal Debt (but not the Revolver
Commitment unless a Default then exists or
arises) and shall be applied ratably among
the Revolver Lenders in proportion to the
amount of their respective Revolver Principal
Debt (in the case of a mandatory prepayment)
or Committed Sums under the Revolver Facility
(in the case of a mandatory commitment
reduction)."
(b) The first sentence in the paragraph following Section
3.3(b)(vi) shall be deleted in its entirety and replaced with the
following:
"Each commitment reduction or prepayment
under this Section 3.3(b) (other than Section
3.3(b)(vi)) shall be applied as follows
unless a Default or Potential Default then
exists or arises as a result therefrom
(whereupon the provisions of Section 3.12(b)
shall apply):"
1.3 Conditions Precedent to a Permitted Acquisition.
The third sentence of Section 7.2 is deleted in its entirety and
the following sentence is substituted therefor:
"All documentation delivered and satisfaction
of conditions pursuant to the requirements of
Section 7.2 must be satisfactory to
Administrative Agent (and in the case of the
Supplemental Capital Expenditures Budget,
must be acceptable to Administrative Agent,
Co-Syndication Agents, and Co-Documentation
Agents)."
1.4 Use of Proceeds. The reference to "Communications
Bond Debt" in clause (c) of Section 8.1 is deleted and the words
"Existing Bond Debt" is substituted therefor.
1.5 Payment of Obligation. The reference to "and
Section 9.21" in the second sentence of Section 9.6 shall be
deleted therefrom.
1.6 Loans, Advances, Investments, and Restricted
Payments.
(a) Clause (m)(i) of Section 9.20 is amended by striking
the words "in effect on the Closing Date" from such clause.
(b) The reference to "Communications Bond Debt" in clause
(u) of Section 9.20 is deleted and the words "Existing Bond Debt"
is substituted therefor.
1.7 Financial Covenants.
(a) The Pro Forma Debt Service Coverage covenant set forth
in Section 9.29(b) is amended by substituting the following table
for the table set forth at the end of such Section:
Period Pro Forma Debt Service Ratio
------ ----------------------------
On and after the Closing 1.15 to 1
Date to and including
December 31, 2001
On and after January 1, 1.25 to 1
2002, to and including
December 31, 2002
On and after January 1, 1.50 to 1
2003
(b) The Interest Coverage covenant set forth in Section
9.29(c) is amended by substituting the following table for the
table set forth at the end of such Section:
Period Interest Coverage Ratio
------ -----------------------
On and after the Closing 1.40 to 1
Date to and including
June 29, 2000
On and after June 30, 1.25 to 1
2000, to and including
December 30, 2000
On and after December 31, 1.40 to 1
2000, to and including
June 29, 2001
On and after June 30, 1.50 to 1
2001, to and including
December 30, 2001
On and after December 31, 1.60 to 1
2001, to and including
September 29, 2002
On and after September 1.75 to 1
30, 2002, to and
including December 30,
2002
On and after December 31, 2.00 to 1
2002, to and including
March 30, 2003
On and after March 31, 2.25 to 1
2003
(c) The Fixed Charge Coverage covenant set forth in Section
9.29(d) is amended to change the commencement date thereof and
the compliance requirements as follows: (i) by deleting the
reference to "December 31, 2001" in the first clause thereof and
substituting therefor the date "June 30, 2002", and (ii) by
substituting the following table for the table set forth at the
end of such Section:
Period Fixed Charge Coverage Ratio
------ ---------------------------
On and after June 30, 2002, 1.05 to 1
to and including December
31, 2002
On and after January 1, 2003 1.15 to 1
(d) Section 9.29(e) is deleted in its entirety and the
following provision is substituted therefor:
"(e) Capital Expenditures. Borrower shall not permit
Capital Expenditures for any period of determination to
exceed the amount shown in the table below which
corresponds to such period of determination:
Period Permitted Capital Expenditures
------ ------------------------------
Calendar year 2000 $110,000,000
Calendar year 2001 $80,000,000
; provided, however, (i) that the permitted Capital
Expenditures of the Companies for any period of
determination may be increased by an amount equal to
the aggregate Supplemental Capital Expenditures for
such period, but in no event shall the Capital
Expenditures permitted by this Section 9.29(e) exceed
$140,000,000 in calendar year 2000 and $100,000,000 in
calendar year 2001 and (ii) that an amount equal to the
lesser of (x) $20,000,000 and (y) the difference
between $69,000,000 and the amount of Capital
Expenditures of the Companies during calendar year 1999
may be carried forward to fiscal year 2000, such that
such amount may be used in fiscal year 2000 only after
all permitted Capital Expenditures for fiscal year 2000
(as set forth above) have been expended."
1.8 Covenants of Communications.
(a) Section 9.30(a) is deleted in its entirety and the
following provision is substituted therefor:
"(a) Debt. Communications shall not borrow any monies
or create any Debt, except (i) to the extent still
outstanding after the Closing Date, up to $10,000,000
of the Existing Bond Debt; (ii) Debt arising under the
New Bond Debt; (iii) Debt arising under Financial
Xxxxxx permitted by, and in compliance with, Section
9.26(c); and (iv) Debt of Communications owed to
Borrower permitted by, and in compliance with, Sections
9.20(m) and (p)."
(b) Section 9.30(e) is deleted in its entirety and the
following provision is substituted therefor:
"(e) Communications Bond Debt, Preferred Stock, and
Exchange Debentures. Other than with respect to the
tender offer and consent solicitation regarding the
Existing Bond Debt occurring on the Closing Date,
Communications shall not (i) amend or modify any
provision of, or waive any condition under, any
document or instrument evidencing or relating to the
Communications Bond Debt, the Preferred Stock, or the
Exchange Debentures, including, without limitation, the
Indenture for either issuance of Communications Bond
Debt, the Certificate of Designation for any Preferred
Stock, and the related documents or indentures
evidencing or creating any Exchange Debentures;
(ii) make any optional redemptions, prepayments, or
other payments on either issuance of Communications
Bond Debt, any Preferred Stock, or any Exchange
Debentures, other than (x) regularly scheduled interest
payment on each issuance of Communications Bond Debt,
(y) regularly-scheduled required cash dividends on each
series of Preferred Stock on and after the respective
Cash-Pay Date for such series of Preferred Stock, or
(z) regularly scheduled dividends on the Preferred
Stock, paid solely in the form of additional shares of
Preferred Stock having an aggregate liquidation
preference equal to the amount of such dividends;
provided that, in lieu of issuing any partial shares of
Preferred Stock to pay any non-cash dividend permitted
by this clause (z), Communications may pay cash
dividends in an amount not to equal or exceed $1,000
for any quarterly dividend period; (iii) use Restricted
Payments, loans, advances, or investments received from
Borrower (other than Restricted Payments, loans,
advances, or investments made pursuant to Sections
9.20(p), (q), (s), (t), or (u)) for any purpose, other
than (x) to make regularly scheduled interest payments
on the Communications Bond Debt, or (y) after
January 15, 2003, to pay regularly scheduled dividends
on the Preferred Stock. Upon receipt of any
Distribution of the Class A Preferred Stock made
pursuant to Section 9.20(t), Communications shall
cancel and retire all of the Class A Preferred Stock
consistent with its contemplated plan of
recapitalization in connection with the initial public
offering. Upon the issuance of the New Bond Debt,
Communications shall make a subordinated loan that
satisfies the requirements of Section 9.12(d) to
Borrower in an original principal amount of not less
than $200,000,000."
1.9 Exhibit E-2. The Form of Permitted Acquisition
Compliance Certificate set forth on Exhibit E-2 to the Credit
Agreement, is deleted in its entirety and the document labeled
Exhibit E-2, Revised Form of Permitted Acquisition Compliance
Certificate attached hereto shall be substituted therefor.
Paragraph 2. Waiver. Subject to and upon the terms and
conditions herein specified, the Lenders agree not to exercise
their Rights under the Credit Agreement and related Loan
Documents solely as a result of noncompliance with the
requirements of the Security Agreement delivered by Xxxxxx
Cellular Systems, Inc. and Schedule 7.1A, item 6 with respect to
the delivery of the Consent of the General Partner and the
Initial Transaction Statement with respect to the Oklahoma RSA 3
Limited Partnership; so long as, the Companies in the aggregate
own not more than a 5% limited partnership interest in Oklahoma
RSA 3 Limited Partnership.
Paragraph 3. Amendment Fees. On the Effective Date, Borrower
shall pay (a) to Administrative Agent (for the ratable benefit of
the Revolver Lenders consenting to this Amendment on or prior to
the Effective Date, the "Consenting Revolver Lenders"), an
amendment fee in an amount equal to 0.25% of the aggregate
Committed Sums under the Revolver Facility of each Consenting
Revolver Lender as of the Effective Date and (b) to
Administrative Agent (for the ratable benefit of the Term Loan A
Lenders, the Term Loan B Lenders, and the Discretionary Lenders
consenting to this Amendment on or prior to the Effective Date,
the "Consenting Term Loan Lenders"), an amendment fee in an
amount equal to 0.25% of the aggregate Term Loan A Principal
Debt, Term Loan B Principal Debt, or Discretionary Principal Debt
owed to the Consenting Term Loan Lenders as of the Effective
Date. The failure of Borrower to comply with the provisions of
this Paragraph 3 shall constitute a payment Default entitling
Lenders to exercise their respective Rights under the Loan
Documents.
Paragraph 4. Conditions. Notwithstanding any contrary
provision, this Amendment is not effective until the date upon
which (a) the representations and warranties in this Amendment
are true and correct; (b) Administrative Agent receives an
opinion of counsel acceptable to Administrative Agent addressed
to Administrative Agent and the Lenders that the issuance of the
New Bond Debt does not constitute a "default" or "event of
default" or other breach or noncompliance with the terms and
provisions of the existing Communications Bond Debt, the Exchange
Debentures, or the Preferred Stock, including any event which
would create voting rights in the holders of the Preferred Stock;
(c) Administrative Agent receives counterparts of this Amendment
executed by DOC, each Guarantor, and Required Lenders;
(d) evidence satisfactory to Administrative Agent that
Communications has received a minimum of $300,000,000 in proceeds
from the issuance of the New Bond Debt, and that Communications
has loaned at least $200,000,000 to DOC pursuant to a
subordinated loan that satisfies the requirements of Section
9.12(d); and (e) payment of the amendment fees required to be
paid to consenting Lenders and Administrative Agent on the
Effective Date pursuant to Paragraph 3 hereof. On the Business
Day upon which all of the preceding conditions precedent are
satisfied, this Amendment shall be effective (the "Effective
Date").
Paragraph 5. Compliance with Amendment Requirements. The
failure of DOC, its Subsidiaries, or any Guarantor to comply with
the conditions (including, without limitation, the conditions set
forth in Paragraph 4(a)) or limitations set forth in this
Amendment on and after the Effective Date hereof shall constitute
a Default under the Credit Agreement, entitling the Lenders to
exercise their Rights under the Loan Documents.
Paragraph 6. Acknowledgment and Ratification. As a material
inducement to Administrative Agent and the Lenders to execute
and deliver this Amendment, DOC and each Guarantor (i) consent to
the agreements in this Amendment and (ii) agree and acknowledge
that the execution, delivery, and performance of this Amendment
shall in no way release, diminish, impair, reduce, or otherwise
affect the respective obligations of DOC or Guarantors under
their respective Collateral Documents, which Collateral Documents
shall remain in full force and effect, and all Liens, guaranties,
and Rights thereunder are hereby ratified and confirmed.
Paragraph 7. Representations. As a material inducement to
Administrative Agent and Lenders to execute and deliver this
Amendment, DOC and each Guarantor represent and warrant to such
parties (with the knowledge and intent that the Lenders and
Administrative Agent are relying upon the same in entering into
this Amendment) that as of the Effective Date of this Amendment
and as of the date of execution of this Amendment: (a) all
representations and warranties in the Loan Documents are true and
correct in all material respects as though made on the date
hereof, except to the extent that (i) any of them speak to a
different specific date or (ii) the facts on which any of them
were based have been changed by transactions permitted by the
Loan Documents; (b) no Default or Potential Default exists; and
(c) this Amendment has been duly authorized and approved by all
necessary corporate action and requires the consent of no other
Person, and upon execution and delivery, this Amendment shall be
binding and enforceable against DOC and each Guarantor in
accordance with its terms.
Paragraph 8. Expenses. DOC shall pay all costs, fees, and
expenses paid or incurred by Administrative Agent incident to
this Amendment, including, without limitation, the reasonable
fees and expenses of Administrative Agent's counsel in connection
with the negotiation, preparation, delivery, and execution of
this Amendment and any related documents.
Paragraph 9. Miscellaneous.
9.1 This Amendment is a "Loan Document" referred to in the
Credit Agreement, and the provisions of Sections 13 of the Credit
Agreement are incorporated herein by reference. Unless stated
otherwise (a) the singular number includes the plural and vice
versa and words of any gender include each other gender, in each
case, as appropriate, (b) headings and captions may not be
construed in interpreting provisions, (c) this Amendment must be
construed, and its performance enforced, under New York law, and
(d) this Amendment may be executed in any number of counterparts
with the same effect as if all signatories had signed the same
document, and all of those counterparts must be construed
together to constitute the same document.
9.2 The Loan Documents shall remain unchanged and in full
force and effect, except as provided in this Amendment, and are
hereby ratified and confirmed. On and after the Effective Date,
all references to the "Credit Agreement" shall be to the Credit
Agreement as herein amended. The execution, delivery, and
effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any Rights of Lenders
under any Loan Document, nor constitute a waiver under any of the
Loan Documents.
Paragraph 10. Entireties. This Amendment represents the final
agreement between the parties about the subject matter of this
Amendment and may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the parties.
There are no unwritten oral agreements between the parties.
Paragraph 11. Parties. This Amendment binds and inures to DOC,
Administrative Agent, Lenders, Guarantors, and their respective
successors and assigns.
The parties hereto have executed this Amendment in multiple
counterparts on the date stated on the signature pages hereto,
but effective as of Effective Date.
[Remainder of Page Intentionally Blank.
Signature Pages Follow.]
XXXXXX OPERATING CO., L.L.C.,
as Borrower
By: XXXXXXX X. XXXXXX XX.
Name: Xxxxxxx X. Xxxxxx Xx.
Title: Treasurer
XXXXXX COMMUNICATIONS CORPORATION,
as Guarantor
By: XXXXXXX X. XXXXXX XX.
Name: Xxxxxxx X. Xxxxxx Xx.
Title: Treasurer
XXXXXX CELLULAR SYSTEMS, INC., as Guarantor
By: XXXXXXX X. XXXXXX XX.
Name: Xxxxxxx X. Xxxxxx Xx.
Title: Treasurer
OKLAHOMA RSA 5 LIMITED PARTNERSHIP, as
Guarantor
By: OKLAHOMA INDEPENDENT RSA 5
PARTNERSHIP, its Managing General
Partner
By: XXXXXX CELLULAR SYSTEMS, INC.,
as Managing General Partner
By: XXXXXXX X. XXXXXX XX.
Name: Xxxxxxx X. Xxxxxx Xx.
Title: Treasurer
OKLAHOMA RSA 7 LIMITED PARTNERSHIP, as
Guarantor
By: OKLAHOMA INDEPENDENT RSA 7
PARTNERSHIP, its Managing General
Partner
By: XXXXXX CELLULAR SYSTEMS, INC.,
its Managing General Partner
By: XXXXXXX X. XXXXXX XX.
Name: Xxxxxxx X. Xxxxxx Xx.
Title: Treasurer
TEXAS RSA NO. 2 LIMITED PARTNERSHIP, as
Guarantor
By: XXXXXX CELLULAR SYSTEMS, INC., its
Managing General Partner
By: XXXXXXX X. XXXXXX XX.
Name: Xxxxxxx X. Xxxxxx Xx.
Title: Treasurer
SANTA XXXX CELLULAR TELEPHONE, INC., as Guarantor
By: XXXXXXX X. XXXXXX XX.
Name: Xxxxxxx X. Xxxxxx Xx.
Title: Treasurer
BANK OF AMERICA, N.A., as Administrative
Agent and a Lender
By: XXXXX X. XXXXXX
Name: Xxxxx X. Xxxxxx
Title: Principal
ARCHIMEDES FUNDING III LTD
By: ING Capital Advisors LLC, as
Collateral Manager
By: XXXXXXXX XXXXX
Name: Xxxxxxxx Xxxxx
Title: Vice President
AVALON CAPITAL LTD.
By: INVESCO Senior Secured Management,
Inc., as Portfolio Advisor
By: XXXXXXXX X. XXXXXXXX
Name: Xxxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured Management,
Inc., as Portfolio Advisor
By: XXXXXXXX X. XXXXXXXX
Name: Xxxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
THE BANK OF NOVA SCOTIA, as a Lender
By: XXXXXXX X. XXXXXXXXXX XX.
Name: Xxxxxxx X. Xxxxxxxxxx Xx.
Title: Authorized Signatory
BARCLAYS BANK PLC, as a Lender
By: XXXXXXX XXXXXXXX
Name: Xxxxxxx Xxxxxxxx
Title: Director
BEDFORD CDO, LIMITED
By: Pacific Investment Management
Company LLC, as its investment
advisor
By: XXXXX X. XXXXXXXXXX
Name: Xxxxx X. Xxxxxxxxxx
Title: Senior Vice President
CATALINA CDO LTD.
By: Pacific Investment Management
Company LLC, as its investment
advisor
By: XXXXX X. XXXXXXXXXX
Name: Xxxxx X. Xxxxxxxxxx
Title: Senior Vice President
CERES II FINANCE LTD.
By: INVESCO Senior Secured Management
Inc., as Sub-Managing Agent
(Financial)
By: XXXXXXXX X. XXXXXXXX
Name: Xxxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
CANADIAN IMPERIAL BANK OF COMMERCE, as a
Lender
By: XXXXX XXXX
Name: Xxxxx Xxxx
Title: Executive Director,
CIBC World Markets Corp. as
Agent
CIBC INC., as a Lender
By: XXXXX XXXX
Name: Xxxxx Xxxx
Title: Executive Director,
CIBC World Markets Corp. as
Agent
THE CIT GROUP - EQUIPMENT FINANCING, as
a Lender
By: KARATIE X. XXXXXXXX
Name: Karatie X. Xxxxxxxx
Title: Analyst
CN LOAN FUND, as a Lender
By: XXXXX XXXXX
Name: Xxxxx Xxxxx
Title: Vice President
COBANK ACB, as a Lender
By: XXXXX XXXXXXXXXX
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
COLUMBUS LOAN FUNDING LTD., as a Lender
By: Travelers Asset Management
International Company LLC
By: XXXX X. PETCHILER
Name: Xxxx X. Petchiler
Title: Second Vice President
CONTINENTAL ASSURANCE COMPANY SEPARATE
ACCOUNT (E)
By: TWC Asset Management Company as
Attorney-in-Fact
By: XXXX X. GOLD
Name: Xxxx X. Gold
Title: Managing Director
By: XXXXXXXX X. XXXXXX
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
CREDIT LYONNAIS NEW YORK BRANCH, as a
Lender
By: XXXX X. XXXXXXXXXX
Name: Xxxx X. Xxxxxxxxxx
Title: FVP
DELANO COMPANY
By: Pacific Investment Management
Company LLC, as its investment
advisor
By: XXXXX X. XXXXXXXXXX
Name: Xxxxx X. Xxxxxxxxxx
Title: Senior Vice President
BANKERS TRUST CO., as a Lender
By: XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: Director
THE DAI-ICHI KANGYO BANK, LTD as a
Lender
By: XXXXXX XXXXXXX
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
DRESDNER BANK AG NEW YORK AND GRAND
CAYMAN BRANCHES, as a Lender
By: XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
By: XXXXX XXXXXXXXX
Name: Xxxxx Xxxxxxxxx
Title: Assistant Vice President
XXXXX XXXXX INSTITUTIONAL SENIOR LOAN
FUND, as a Lender
By: Xxxxx Xxxxx Management As
Investment Advisor
By: XXXXX X. PAGE
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX SENIOR INCOME TRUST, as a
Lender
By: Xxxxx Xxxxx Management As
Investment Advisor
By: XXXXX X. PAGE
Name: Xxxxx X. Page
Title: Vice President
ELC CAYMAN LTD. 2000-I, as a Lender
By: XXXXXXXX XXXXXXX
Name: Xxxxxxxx Xxxxxxx
Title: Director
FIRSTRUST BANK, as a Lender
By: X. X. X'XXXXXX
Name: X. X. X'Xxxxxx
Title: Executive Vice President
FIRST UNION NATIONAL BANK, as a Lender
By: XXXXX X. XXXXX
Name: Xxxxx X. Xxxxx
Title: Managing Director, Senior
Vice President
GALAXY CLO 1999-1, LTD, as a Lender
By: XXX Investment Advisor, Inc., as
its Collateral Manager
By: XXXX XXXXXX
Name: Xxxx Xxxxxx
Title: Authorized Agent
KZH CRESCENT LLC, as a Lender
By: XXXXX XXX
Name: Xxxxx Xxx
Title: Authorized Agent
KZH CRESCENT-3 LLC, as a Lender
By: XXXXX XXX
Name: Xxxxx Xxx
Title: Authorized Agent
KZH CYPRESS TREE - 1 LLC, as a Lender
By: XXXXX XXX
Name: Xxxxx Xxx
Title: Authorized Agent
KZH RIVERSIDE LLC, as a Lender
By: XXXXX XXX
Name: Xxxxx Xxx
Title: Authorized Agent
KZH SOLEIL LLC, as a Lender
By: XXXXX XXX
Name: Xxxxx Xxx
Title: Authorized Agent
KZH SOLEIL - 2 LLC, as a Lender
By: XXXXX XXX
Name: Xxxxx Xxx
Title: Authorized Agent
KZH ING - 3 LLC, as a Lender
By: XXXXX XXX
Name: Xxxxx Xxx
Title: Authorized Agent
XXXXXX COMMERCIAL PAPER INC. , as a
Lender
By: XXXXXXX XXXXXXX
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
FIRSTAR BANK, N.A. , as a Lender
By: XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXX XXXXXXX XXXX XXXXXX PRIME INCOME
TRUST, as a Lender
By: XXXXXX XXXXXXXX
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
NATEXIS BANQUE, as a Lender
By: XXXX X. XXXXX
Name: Xxxx X. Xxxxx
Title: Assistant Vice President
By: XXXXXXX X. XXXXX
Name: Xxxxxxx X. Xxxxx
Title: VP, Group Manager
NORTH AMERICAN SENIOR FLOATING RATE FUND
By: CypressTree Investment Management
Company, Inc., as Portfolio Manager
By: XXXXXXXX X. XXXXXXX
Name: Xxxxxxxx X. Xxxxxxx
Title: Principal
OLYMPIC FUNDING TRUST SERIES 1991-1, as
a Lender
By: XXXXXX X. XXXXXXXX
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Agent
OXFORD STRATEGIC INCOME FUND, as a
Lender
By: Xxxxx Xxxxx Management As
Investment Advisor
By: XXXXX X. PAGE
Name: Xxxxx X. Page
Title: Vice President
BNP PARIBAS, as a Lender
By: XXXXXXX XXXXX XXXXXXX
Name: Xxxxxxx Xxxxx Kitcher
Title: Vice President
By: XXXX X. KOOCHE
Name: Xxxx X. Kooche
Title: Director
PILGRIM PRIME RATE TRUST, as a Lender
By: Pilgrim Investments Inc. as its
investment manager
By: XXXXXXXXX X. XXXXXXX
Name: Xxxxxxxxx X. XxxXxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION, as a
Lender
By: XXXXXX X. XXXXXXXX
Name: Xxxxxx X. XxXxxxxx
Title: Vice President
PPM SPYGLASS FUNDING TRUST, as a Lender
By: XXXXXX X. XXXXXXXX
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Agent
SENIOR DEBT PORTFOLIO, as a Lender
By: Boston Management and Research as
Investment Advisor
By: XXXXX X. PAGE
Name: Xxxxx X. Page
Title: Vice President
SEQUILS I, LTD, as a Lender
By: TCW Advisors Inc., as its
Collateral Manager
By: XXXX X. GOLD
Name: Xxxx X. Gold
Title: Managing Director
By: XXXXXXXX X. XXXXXX
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice
President
SEQUILS-ING I (HBDGM), LTD
By: ING Capital Advisors LLC as
Collateral Manager
By: XXXXXXXX XXXXX
Name: Xxxxxxxx Xxxxx
Title: Vice President
SRF TRADING, INC., as a Lender
By: XXXXXX X. XXXXXXXX
Name: Xxxxxx X. Xxxxxxxx
Title: Assistant Vice President
LIBERTY-XXXXX XXX ADVISOR FLOATING RATE
ADVANTAGE FUND, as a Lender
By: Xxxxx Xxx & Farnham Incorporated,
as Advisor
By: XXXXX X. GOOD
Name: Xxxxx X. Good
Title: Senior Vice
President & Portfolio Manager
XXXXX XXX FLOATING RATE LIMITED
LIABILITY COMPANY, as a Lender
By: XXXXX X. GOOD
Name: Xxxxx X. Good
Title: Senior Vice President
Xxxxx Xxx & Farnham
Incorporated, as Advisor to
the Xxxxx Xxx Floating Rate
Limited Liability Company
SUMMIT BANK, as a Lender
By: XXXXXX X. XXXXX, XX.
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
FRANKLIN FLOATING RATE MASTER SERIES, as
a Lender
By: XXXXXXXX XXXXXX
Name: Xxxxxxxx Xxxxxx
Title: Vice President
FRANKLIN FLOATING RATE TRUST, as a
Lender
By: XXXXXXXX XXXXXX
Name: Xxxxxxxx Xxxxxx
Title: Vice President
THE FUJI BANK, LIMITED, as a Lender
By: MASAHITO EUKUDA
Name: Masahito Eukuda
Title: Senior Vice President
KEY CORPORATE CAPITAL INC. , as a Lender
By: XXXXX X. XXXXXX
Name: Xxxxx X. Xxxxxx
Title: Corporate Banking Officer
FRANKLIN FLOATING RATE MASTER SERIES, as
a Lender
By: XXXXXXXX XXXXXX
Name: Xxxxxxxx Xxxxxx
Title: Vice President
SUNTRUST BANK, as a Lender
By: W. XXXXX XXXXXX
Name: W. Xxxxx Xxxxxx
Title: Vice President
SWISS LIFE US RAINBOW LIMITED
By: ING Capital Advisors LLC, as
Investment Manager
By: XXXXXXXX XXXXX
Name: Xxxxxxxx Xxxxx
Title: Vice President
SYNDICATED LOAN FUNDING TRUST, as a
Lender
By: Xxxxxx Commercial Paper Inc., not
in its individual capacity, but
solely as Asset Manager
By: G. XXXXXX XXXXX
Name: G. Xxxxxx Xxxxx
Title: Authorized Signatory
TORONTO DOMINION (TEXAS), INC. , as a
Lender
By: XXX X. XXXXXX
Name: Xxx X. Xxxxxx
Title: Vice President
TRAVELERS CORPORATE LOAN FUND INC., as a
Lender
By: Travelers Asset Management
International Company LLC
By: XXXX X. XXXXXXXX
Name: Xxxx X. Xxxxxxxx
Title: Second Vice
President
THE TRAVELERS INSURANCE COMPANY, as a
Lender
By: XXXX X. XXXXXXXX
Name: Xxxx X. Xxxxxxxx
Title: Second Vice President
UNION BANK OF CALIFORNIA, N.A., as a
Lender
By: XXXXX X. COPPER
Name: Xxxxx X. Copper
Title: Assistant Vice President
UNITED OF OMAHA LIFE INSURANCE COMPANY
By: TCW Asset Management Company, its
Investment Advisor
By: XXXX X. GOLD
Name: Xxxx X. Gold
Title: Managing Director
By: XXXXXXXX X. XXXXXX
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice
President
U.S. BANK NATIONAL ASSOCIATION, as a
Lender
By: XXXX XXXXXXXX
Name: Xxxx XxXxxxxx
Title: Senior Vice President
XXX XXXXXX PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory
Corp.
By: XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: Vice President
XXXXXXX BANK, as a Lender
By: TCW Asset Management Company, its
Investment Advisor
By: XXXXXXX X. XXXXXXXXX
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
XXXXXX FLOATING RATE FUND, as a Lender
By: XXXXX X. XXXXXX
Name: Xxxxx X. Xxxxxx
Title: Managing Director
EXHIBIT E-2
REVISED FORM OF PERMITTED ACQUISITION COMPLIANCE CERTIFICATE
DATE: ,
ADMINISTRATIVE AGENT: Bank of America, N.A.
BORROWER: Xxxxxx Operating Co., L.L.C.
(successor by merger with Xxxxxx
Operating Company and Xxxxxx
Cellular Operations Company)
This Permitted Acquisition Compliance Certificate (the
"Certificate") is delivered under the Amended, Restated, and
Consolidated Revolving Credit and Term Loan Agreement, dated as
of January 18, 2000 (as amended, modified, supplemented, or
restated from time to time, the "Credit Agreement"), among
Borrower, Administrative Agent, and Lenders party thereto.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings given to such terms in the Credit
Agreement.
1. Notification of Proposed Acquisition.
Borrower hereby notifies Administrative Agent that
[Borrower or any Restricted
Subsidiary of Borrower] intends to acquire the [stock/assets] of
(the "Subject Acquisition"), on , 20
(the "Acquisition Date") [in exchange for ].
In connection with the Subject Acquisition and in satisfaction of
certain conditions precedent to the qualification of the Subject
Acquisition as a "Permitted Acquisition" under the Loan
Documents, the following is attached hereto:
Annex A: which demonstrates compliance with the Purchase
Price requirements for a "Permitted Acquisition" and
the required availability under the Revolver Facility;
Annex B: which sets forth calculations demonstrating pro
forma compliance with the financial covenants in
Section 9.29 and additional covenants in Sections 9.12,
9.13, 9.20, and 9.22 of the Credit Agreement, after
giving effect to the Subject Acquisition;
Annex C: which sets forth a pro forma income and balance
sheet for the Companies, after giving effect to the
Subject Acquisition;
Annex D: which sets forth cash flow projections for
the Subject Acquisition through the last-to-occur of
the then-effective Termination Dates ; and
Annex E: which sets forth the Capital Expenditures
projected for the Subject Acquisition from the
consummation date of the Subject Acquisition through
the last-to occur of the then-effective Termination
Dates (the "Supplemental Capital Expenditures Budget").
2. Certifications. On and as of the date of this
Certificate, Borrower certifies to Administrative Agent and
Lenders that the following statements are true and correct on
the date hereof and will be true and correct on the closing
date of the Subject Acquisition:
(a) All of the representations and warranties in the
Credit Agreement are true and correct (except to the
extent that (i) the representations and warranties
speak to a specific date or (ii) the facts on which
such representations and warranties are based have been
changed by transactions permitted by the Loan Documents
and, if applicable, supplemental Schedules have been
delivered with respect thereto and, when necessary,
approved by Required Lenders);
(b) No Default or Potential Default exists nor will
occur as a result of, and after giving effect to, the
Subject Acquisition;
(c) The company(ies) being acquired is (are) engaged
in, or the assets being acquired are used in, the
domestic cellular industry;
(d) To the extent the Subject Acquisition is
structured as a merger, Borrower (or if such merger is
with any Restricted Subsidiary of Borrower, then a
domestic entity that is or becomes a Restricted
Subsidiary) is the surviving entity after giving effect
to such merger;
(e) To the extent that the Subject Acquisition is
structured as a stock/equity acquisition, the acquiring
Company will own not less than 75% of the entity being
acquired and such acquired entity will be a domestic
entity that is or becomes a Restricted Subsidiary;
(f) A true and correct copy of the Purchase Agreement
and all amendments, exhibits, and schedules thereto
(the "Purchase Documents") have been delivered to
Administrative Agent no later than the dates required
by the Loan Documents and such Purchase Documents
continue to be true and correct, and except for
amendments, modifications, or supplements attached
hereto as Annex F, such Purchase Documents have not
been amended, modified, or supplemented since delivered
to Administrative Agent;
(g) The Purchase Price for the Subject Acquisition
does not exceed $200,000,000, and when aggregated with
the purchase prices of all other Acquisitions and
Permitted Asset Swaps consummated during the calendar
year, does not exceed $400,000,000;
(h) To the extent the Subject Acquisition is a
Permitted Asset Swap, the Subject Acquisition satisfies
the requirements for a Permitted Asset Swap; and
(i) Immediately prior to the Subject Acquisition and
after giving effect thereto and all Borrowings under
the Revolver Facility to be made in connection
therewith, there is at least $25 million of
availability under the Revolver Commitment and all
calculations required by Administrative Agent showing
the same are attached hereto.
3. Acknowledgments and Confirmation.
Borrower acknowledges that this Certificate and the attached
documents are being delivered in partial satisfaction of the
requirements for a "Permitted Acquisition," and further confirms
its understanding that the Subject Acquisition will not be a
"Permitted Acquisition" until satisfaction of each of the
criteria specified in the definition of "Permitted Acquisition"
in Section 1.1 of the Credit Agreement, including, without
limitation, satisfaction of the conditions precedent set forth in
Section 7.2 and on Schedule 7.2.
4. Further Assurances.
Borrower shall timely deliver to Administrative Agent, upon
reasonable request by Administrative Agent, any documents,
certificates, or information relating to the Subject Acquisition
(including, without limitation, all information necessary to
enable Administrative Agent to complete any due diligence related
to the Company(ies) or the assets being acquired), which
documents or certificates shall be in form and substance
acceptable to Administrative Agent.
XXXXXX OPERATING CO., L.L.C.
(successor by merger with Xxxxxx
Operating Company and Xxxxxx
Cellular Operations Company)
By:
Name:
Title:
ANNEX A
TO PERMITTED ACQUISITION COMPLIANCE CERTIFICATE
Compliance with Purchase Price Requirements
A. Purchase Price
1. Purchase Price of Subject Acquisition (not to exceed $200,000,000),
the components of which are, as follows: $____________
A. Cash $____________
B. Value of Capital Stock $____________
C. Assumed Liabilities $____________
D. Value of Property Exchanged
(excluded from Purchase Price
calculation for Permitted Asset
Swaps only) $____________
E. Consulting Contracts $____________
F. Non-Compete Agreements $____________
2. Purchase Price of all other Permitted Acquisitions and
Permitted Asset Swaps consummated in the calendar
year $____________
3. The sum of Lines 1 and 2 does not exceed $400,000,000 Yes/No
4. The fair market value of the Cellular Assets of the Companies
exchanged in the Subject Acquisition $____________
5. The fair market value of the Cellular Assets of the Companies
exchanged in all other Permitted Asset Swaps since the
Closing Date $____________
6. The sum of Lines 5 and 6 does not exceed $200,000,000 Yes/No
B. Revolver Availability
1. Availability under the Revolver Commitment immediately prior to the
consummation of the Subject Acquisition $____________
2. Principal amount of Borrowings under the Revolver Facility on the
closing date of the Subject Acquisition $____________
3. The difference between Lines 1 and 2 does not exceed $25,000,000
Yes/No
ANNEX B
TO PERMITTED ACQUISITION COMPLIANCE CERTIFICATE
FINANCIAL COVENANTS
Status of Compliance with Sections 9.12, 9.13, 9.20, 9.22, and 9.29
of the Credit Agreement(1)
(Unless otherwise indicated, all calculations are made on a consolidated
pro forma basis for the Companies (after giving effect to the Subject
Acquisition) with respect to the most recently-ended Rolling Period)
Calculations are to be submitted in a form substantially similar
to those utilized in the Compliance Certificate and in detail and
scope acceptable to Administrative Agent.
---------------
(1) All as more particularly determined in accordance with the terms of
the Credit Agreement, which control in the event of conflicts with
this form.
ANNEX C
TO PERMITTED ACQUISITION COMPLIANCE CERTIFICATE
Date:
Subject Acquisition:
PRO FORMA INCOME AND BALANCE SHEET
(TO BE PROVIDED BY BORROWER)
ANNEX D
TO PERMITTED ACQUISITION COMPLIANCE CERTIFICATE
Date:
Subject Acquisition:
CASH FLOW PROJECTIONS
(TO BE PROVIDED BY BORROWER)
ANNEX E
TO PERMITTED ACQUISITION COMPLIANCE CERTIFICATE
Date:
Subject Acquisition:
SUPPLEMENTAL CAPITAL EXPENDITURE BUDGET
(TO BE PROVIDED BY BORROWER)
ANNEX F
TO PERMITTED ACQUISITION COMPLIANCE CERTIFICATE
Date:
Subject Acquisition:
PURCHASE AGREEMENT
(TO BE PROVIDED BY BORROWER)
