AMENDMENT NO. 1
TO
SECURITIES PURCHASE AGREEMENT
This Amendment No. 1, dated as of February 26, 1997, is entered into by
and among Xxxxxx Communications Corporation, an Oklahoma corporation (the
"Company"), Xxxxxx Holdings Corporation, an Oklahoma corporation
("Holdings"), Fleet Equity Partners VI, L.P., a Delaware limited partnership
("FEP"), Fleet Venture Resources, Inc., a Rhode Island corporation ("FVR"),
and Xxxxxxx Plaza Partners, a Rhode Island general partnership ("KPP" and
together with FEP and FVR, the "Purchasers") (said Amendment being referred
to as "this Amendment") Capitalized terms used in this Amendment and not
otherwise defined herein shall have the meanings ascribed thereto in the
Purchase Agreement as amended hereby.
W I T N E S S E T H:
WHEREAS, the Company and the Purchasers are parties to that certain
Securities Purchase Agreement, dated as of March 19, 1996 (the "Purchase
Agreement");
WHEREAS, the Company, Holdings, the Purchasers, Xxxxxx XX Limited
Partnership, an Oklahoma limited partnership ("DCC"), Xxxxxx Telephone
Company, Inc., an Oklahoma corporation ("DTC"), and Xxxxxxx X. Xxxxxx
("Xxxxxx") have agreed to enter into that certain Agreement and Plan of
Reorganization, dated as of the date hereof (the "Reorganization Agreement"),
pursuant to which, among other things, the Purchasers, DCC, DTC and Xxxxxx
have agreed to exchange all of their shares in the Company for shares issued
by Holdings; and
WHEREAS, the Purchasers have required, as a condition precedent to the
transactions contemplated by the Reorganization Agreement, that the Company
and Holdings enter into this Amendment;
NOW THEREFORE, in consideration of the terms and conditions set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the
parties hereto hereby agree as follows:
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SECTION 1. AMENDMENT TO PURCHASE AGREEMENT. Effective as of the date
hereof, the Purchase Agreement is hereby amended as follows:
1.1 Holdings is hereby added as a party to the Purchase Agreement.
1.2 The definition of the term "Affiliate" is hereby deleted in its
entirety and the following is substituted therefor:
"AFFILIATE" shall mean (i) at any time prior to February 26,
1997, any Person directly or indirectly controlling,
controlled by or under direct or indirect common control with
the Company, including, without limitation, (a) any Person who
is a director, limited partner or executive officer of the
Company or the beneficial owner of at least 5% of the then
outstanding equity interests (on a fully diluted basis) of the
Company (or other specified Person) and Family Members of any
of such Persons, (b) any Person of which the Company (or other
specified Person) or an Affiliate (as defined in the
immediately preceding clause (a) above) of the Company (or
other specified Person) shall, directly or indirectly, either
beneficially own at least 5% of the then outstanding equity
securities (on a fully diluted basis) or constitute at least a
5% equity participant, and (c) in the case a specified Person
is an individual, Family Members of such Person, and (ii) on
or after February 26, 1997, any Person directly or indirectly
controlling, controlled by or under direct or indirect common
control with Holdings, including, without limitation, (a) any
Person who is a director, limited partner or executive officer
of Holdings or the beneficial owner of at least 5% of the then
outstanding equity interests (on a fully diluted basis) of
Holdings (or other specified Person) and Family Members of any
of such Persons, (b) any Person of which Holdings (or other
specified Person) or an Affiliate (as defined in the
immediately preceding clause (a) above) of Holdings (or other
specified Person) shall, directly or indirectly, either
beneficially own at least 5% of the then outstanding equity
securities (on a fully diluted basis) or constitute at least a
5% equity participant, and (c) in the case a specified Person
is an individual, Family Members of such Person; PROVIDED,
HOWEVER, that in no event shall any of the Purchasers be
considered an Affiliate of the Company, Holdings or any
Related Entity.
1.3 The definition of the term "Common Shares" is hereby deleted in its
entirety and the following is substituted therefor:
"COMMON SHARES" shall mean (i) at any time prior to February 26,
1997, the shares of Class A Voting Common Stock of the Company,
$1.00 par value per share, issued or issuable upon conversion of
the Preferred Shares, and (ii) on or after February 26, 1997,
the shares of Class A Voting Common Stock of Holdings, $1.00
par value per share, issued or issuable upon conversion of
Holdings Purchased Securities.
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1.4 The definition of the term "ERISA Affiliate" is hereby deleted in its
entirety and the following is substituted therefor:
"ERISA AFFILIATE" shall mean (i) at any time prior to
February 26, 1997, any Person which is treated as a single
employer with the Company under Section 414 of the Code, and
(ii) at any time on or after February 26, 1997, any Person which
is treated as a single employer with Holdings under Section 414
of the Code.
1.5 The definition of the term "Financing Agreements" is hereby deleted in
its entirety and the following is substituted therefor:
"FINANCING AGREEMENT" shall mean this Agreement, the
Certificate of Designation, the Charter Amendment, the
Shareholders' Agreement, the Option Agreement, the Texas 2
Option Agreement, the Reorganization Agreement, the Holdings
Shareholders' Agreement, the Holdings Certificates of
Designation and the Holdings Charter Amendment.
1.6 The definition of the term "Guaranteed Pension Plan" is hereby
deleted in its entirety and the following is substituted therefor:
"GUARANTEED PENSION PLAN" shall mean (i) at any time prior to
February 26, 1997, any employee pension benefit plan within
the meaning of Section 3(2) of ERISA maintained or contributed
to by the Company or any ERISA Affiliate the benefits of which
are guaranteed on termination in full or in part by the PBGC
pursuant to Title IV of ERISA, other than a Multiemployer
Plan, and (ii) at any time on or after February 26, 1997, any
employee pension benefit plan within the meaning of Section 3(2)
of ERISA maintained or contributed to by Holdings or any ERISA
Affiliate the benefits of which are guaranteed on termination
in full or in part by the PBGC pursuant to Title IV of ERISA,
other than a Multiemployer Plan.
1.7 The definition of the term "Multiemployer Plan" is hereby deleted in
its entirety and the following is substituted therefor:
"MULTIEMPLOYER PLAN" shall mean (i) at any time prior to
February 26, 1997, any multiemployer plan within the meaning
of Section 3(37) of ERISA at any time maintained or
contributed to by the Company or any ERISA Affiliate or to
which the Company or any ERISA Affiliate is or was obligated
to contribute, and (ii) at any time on or after February 26,
1997, any multiemployer plan within the meaning of Section 3(37)
of ERISA at any time maintained or contributed to by Holdings
or any ERISA Affiliate or to which Holdings or any ERISA
Affiliate is or was obligated to contribute.
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1.8 The definition of the term "Purchased Securities" is hereby deleted in
its entirety and the following is substituted therefor:
"PURCHASED SECURITIES" shall mean (i) at any time prior to
February 26, 1997, the Preferred Shares being purchased by the
Purchasers pursuant to this Agreement, and (ii) on or after
February 26, 1997, the Holdings Purchased Securities.
1.9 The definition of the term "Subsidiary" is hereby deleted in its
entirety and the following is substituted therefor:
"SUBSIDIARY" shall mean any Person listed on SCHEDULE 3.2 and
(a) any corporation in which Holdings or such Person, directly
or indirectly, owns more than fifty percent (50%) of the
outstanding capital stock or other equity interests of the
class or classes having general voting power under ordinary
circumstances to elect at least a majority of the directors of
such corporation (irrespective of whether at the time capital
stock of any other class or classes of such corporation shall
have or might have voting power by reason of the happening of
any contingency); (b) any partnership, association, joint
venture or other unincorporated organization or entity with
respect to which Holdings or such Person, directly or
indirectly, owns equity securities in an amount sufficient to
control the management of such partnership, association, joint
venture or other unincorporated organization or entity; and
(c) any corporation, partnership, association, joint venture
or other unincorporated organization or entity in which
Holdings or such Person, directly or indirectly, has more than
a fifty percent (50%) equity interest.
1.10 The following definitions are hereby added to SECTION 1.1 of the
Purchase Agreement in the correct alphabetical order:
"HOLDINGS" shall mean Xxxxxx Holdings Corporation, an Oklahoma corporation.
"HOLDINGS CERTIFICATES OF DESIGNATION" shall mean,
collectively, (i) that certain Certificate of Designation of
Holdings providing for the authorization of Class B
Convertible Preferred Stock of Holdings, in the form of
EXHIBIT H hereto, and (ii) that certain Certificate of
Designation of Holdings providing for the authorization of
Class C Preferred Stock of the Company, in the form of
EXHIBIT A hereto
"HOLDINGS CHARTER AMENDMENT" shall mean that certain
Certificate of Amendment to Certificate of Incorporation of
Holdings in the form of EXHIBIT I hereto.
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"HOLDINGS PURCHASED SECURITIES" shall mean the 100,000 shares
of Class B Convertible Preferred Stock of Holdings issued to
the Purchasers pursuant to the Reorganization Agreement, and
the 100,000 shares of Class C Preferred Stock of Holdings
issued to Purchasers as of February 26, 1997.
"HOLDINGS SHAREHOLDERS' AGREEMENT" shall mean that certain
Shareholders' Agreement, dated as of February 26, 1997, by and
among Holdings, the Purchasers and certain other stockholders
of Holdings, in the form of EXHIBIT J hereto, as the same may
be amended, supplemented, restated, replaced or otherwise
modified, in each case from time to time and whether in whole
or in part.
"REORGANIZATION AGREEMENT" shall mean that certain Agreement
and Plan of Reorganization, dated as of the date hereof, by
and among the Company, Holdings, the Purchasers, Xxxxxx XX
Limited Partnership, an Oklahoma limited partnership ("DCC"),
Xxxxxx Telephone Company, Inc., an Oklahoma corporation
("DTC"), and Xxxxxxx X. Xxxxxx, in the form of EXHIBIT K
hereto, as the same may be amended, supplemented, restated,
replaced or otherwise modified, in each case from time to time
and whether in whole or in part.
1.11 The Purchase Agreement is hereby amended to add a copy of the
Holdings Certificates of Designation (copies of which are attached hereto as
EXHIBIT A and made a part hereof) as EXHIBIT H thereto.
1.12 The Purchase Agreement is hereby amended to add a copy of the
Holdings Charter Amendment (a copy of which is attached hereto as EXHIBIT B and
made a part hereof) as EXHIBIT I thereto.
1.13 The Purchase Agreement is hereby amended to add a copy of the
Holdings Shareholders' Agreement (a copy of which is attached hereto as EXHIBIT
C and made a part hereof) as EXHIBIT J thereto.
1.14 The Purchase Agreement is hereby amended to add a copy of the
Reorganization Agreement (a copy of which is attached hereto as EXHIBIT D and
made a part hereof) as EXHIBIT K thereto.
1.15 The Purchase Agreement is hereby amended to add (a) SCHEDULE 6.2, a
copy of which is attached hereto as SCHEDULE 6.2 and made a part hereof, (b)
SCHEDULE 6.11, a copy of which is attached hereto as SCHEDULE 6.11 and made a
part hereof, and (c) SCHEDULE 6.17, a copy of which is attached hereto as
SCHEDULE 6.17 and made a part hereof.
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1.16 The second sentence of SECTION 2.4 of the Purchase Agreement is
hereby deleted in its entirety and the following is substituted therefor:
Holdings agrees to provide the Purchasers with reasonable
access to the records of the Company and Holdings for
purposes of verifying that the proceeds from the sale of the
Purchased Securities are used solely for the purposes set
forth in this SECTION 2.4.
1.17 ARTICLE VI of the Purchase Agreement is hereby deleted in its
entirety and the following is substituted therefor:
Holdings covenants that while any of the Purchased Securities
or any of the Common Shares are held by any Purchaser, it
will comply, and Holdings will cause each of the Subsidiaries
to comply, with the following provisions unless otherwise
consented to in writing by the Purchasers:
SECTION 6.1. RECORDS AND ACCOUNTS. Each of Holdings and the
Subsidiaries will keep true and accurate records and books of
account in which full, true and correct entries will be made
in accordance with GAAP and in all other respects consistent
with industry practices.
SECTION 6.2. EXISTENCE; RELATED SECURITIES; MAINTENANCE OF
PROPERTIES. Each of Holdings and the Related Entities will
preserve and keep in full force and effect and in good
standing its corporate or partnership existence, as the case
may be, rights and franchises except for any Related Entity
which is combined or merged with and into another Related
Entity, Holdings or the Company. Holdings shall at all times
own, directly or indirectly, the equity interest in the
Company and each Related Entity as reflected in SCHEDULE 6.2
except for any Related Entity which is combined or merged
with and into another Related Entity, Holdings or the
Company. Holdings, the Company and the Related Entities will
not engage in any business or business ventures other than
(a) those presently conducted by such Person, (b) those
businesses reasonably ancillary or similar thereto, and (c)
those businesses which require investments by such Person of
less than $50,000 in the aggregate. Each of Holdings, the
Company and the Related Entities will maintain all of its
properties used or useful in the conduct of its business in
conformity with industry standards and cause to be made all
necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of Holdings may
be necessary so that the business carried on is consistent
with industry standards.
SECTION 6.3. INSURANCE. Each of Holdings and the
Subsidiaries will maintain with financially sound and
reputable insurance companies, funds or underwriters
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insurance of the kinds, covering the risks and in the
relative proportionate amounts usually carried by reasonable
and prudent companies conducting businesses similar to that
of Holdings and the Subsidiaries.
SECTION 6.4. TAXES. Each of Holdings and the Subsidiaries
will pay and discharge, or cause to be paid and discharged,
before the same shall become overdue, all Taxes, assessments
and other governmental charges imposed upon it and its real
properties, sales and activities, or any part thereof, or
upon the income or profits therefrom, as well as all claims
for labor, materials or supplies, which if unpaid might by
law become a Lien upon any of their properties; PROVIDED,
HOWEVER, that any such Tax, assessment, charge, levy or claim
need not be paid if the validity or amount thereof shall
currently be contested in good faith by appropriate
proceedings and if Holdings or the applicable Subsidiary
shall have set aside on its books adequate reserves with
respect thereto; and PROVIDED, FURTHER, that Holdings and the
applicable Subsidiary will pay or cause to be paid all such
Taxes, assessments, charges, levies or claims forthwith upon
the commencement of foreclosure on any Lien which may have
attached as security therefor.
SECTION 6.5. INSPECTION OF PROPERTIES AND BOOKS. Each of
Holdings and the Subsidiaries shall permit each Purchaser or
any of its designated representatives, at the Holdings's
cost, to visit and inspect any of its properties, to examine
its books of account (and to make copies thereof and extracts
therefrom), and to discuss its affairs, finances and accounts
with, and to be advised as to the same by, officers or
partners of such Persons, all at such times and intervals as
such Purchaser may reasonably request.
SECTION 6.6. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES AND
PERMITS. Each of Holdings and the Subsidiaries will comply
with (a) all FCC laws and regulations, all Oklahoma
Corporations Commission laws and regulations and all other
material laws and regulations wherever its business is
conducted, (b) the provisions of its Charter and by-laws, (c)
the Franchises, Necessary Contracts and all other material
agreements and instruments by which it or any of its
properties may be bound (including, without limitation, the
Related Agreements and the agreements, documents and
instruments executed and delivered by it in connection with
the CoreStates Financing), (d) all applicable decrees, orders
and judgments, and (e) all required FCC and Oklahoma
Corporations Commission approvals, permits and licenses and
all other material approvals, permits and licenses. If at
any time any authorization, consent, approval, permit or
license from any officer, agency or instrumentality of any
government shall become necessary or be required in order
that any of Holdings or the Subsidiaries may fulfill any of
their respective obligations hereunder, each of Holdings and
the Subsidiaries will promptly take or cause to be
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taken all reasonable steps within its power to obtain such
authorization, consent, approval, permit or license and
furnish the Purchasers with evidence thereof.
SECTION 6.7. EMPLOYEE BENEFIT PLANS. Neither Holdings nor
any ERISA Affiliate will:
(a) engage in any "prohibited transaction" within the
meaning of Section 406 of ERISA or Section 4975 of the Code;
(b) permit any Guaranteed Pension Plan to incur an
"accumulated funding deficiency", as such term is defined in
Section 302 of ERISA, whether or not such deficiency is or
may be waived;
(c) fail to contribute to any Guaranteed Pension Plan to an
extent which, or terminate any Guaranteed Pension Plan in a
manner which, could result in the imposition of a lien or
encumbrance on the assets of Holdings or any of the
Subsidiaries pursuant to Section 302(f) or Section 4068 of
ERISA; or
(d) permit or take any action which would result in the
aggregate benefit liabilities (with the meaning of Section
4001 of ERISA) of all Guaranteed Pension Plans exceeding the
value of the aggregate assets of such Plans, disregarding for
this purpose the benefit liabilities and assets of any such
Plan with assets in excess of benefit liabilities.
Holdings will (i) promptly upon filing the same with the
Department of Labor or Internal Revenue Service, furnish to
Fleet a copy of the most recent actuarial statement required
to be submitted under Section 103(d) of ERISA and Annual
Report, Form 5500, with all required attachments, in respect
of each Guaranteed Pension Plan, and (ii) promptly upon
receipt or dispatch, furnish to each Purchaser any notice,
report or demand sent or received in respect of a Guaranteed
Pension Plan under Sections 302, 4041, 4042, 4043, 4063,
4065, 4066 and 4068 of ERISA, or in respect of a
Multiemployer Plan, under Section 4041A, 4202, 4219, 4242 or
4245 of ERISA.
SECTION 6.8. FURTHER ASSURANCES. Each of Holdings and the
Subsidiaries will cooperate with the Purchasers and execute
such further instruments and documents as the Purchasers
shall reasonably request to carry out to the satisfaction of
the Purchasers the transactions contemplated by this
Agreement or any other Related Agreement.
SECTION 6.9. NOTICES. Holdings will promptly notify the
Purchasers in writing of the occurrence of a Noncompliance
Event or if any Person shall give any notice or take
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any other action in respect of a claimed default with respect
to any material agreement to which Holdings or any of the
Subsidiaries is a party. Holdings also covenants and agrees
to promptly provide the Purchasers with written notice: (a)
upon Holdings or any of the Subsidiaries obtaining knowledge
of any violation of any Environmental Law regarding the
property or the operations of Holdings or any of the
Subsidiaries; (b) upon Holdings or any of its Subsidiaries
obtaining knowledge of any potential or known release, or
threat of release, of any Hazardous Substances at, from, or
into the property which it reports in writing or is
reportable by it in writing to any governmental authority;
(c) upon Holdings or any of the Subsidiaries receipt of any
notice of violation of any Environmental Laws or of any
release or threatened release of Hazardous Substances,
including a notice or claim of liability or potential
responsibility from any third party (including, without
limitation, any federal, state or local governmental
officials) and including notice of any formal inquiry,
proceeding, demand, investigation or other action with regard
to (i) Holdings's, any of the Subsidiaries' or any other
Person's operation of the property, (ii) contamination on,
from or into the property, or (iii) investigation or
remediation of off site locations at which Holdings, any of
the Subsidiaries or any of their predecessors are alleged to
have directly or indirectly disposed of Hazardous Substances;
or (d) upon Holdings or any of the Subsidiaries obtaining
knowledge that any expense or loss has been incurred by such
governmental authority in connection with the assessment,
containment, removal or remediation of any Hazardous
Substances with respect to which Holdings or any of its
Subsidiaries may be liable or for which a Lien may be imposed
on the property.
SECTION 6.10. DISTRIBUTIONS. Neither Holdings, the Company
nor any Related Entity shall make any Distribution except (a)
the Company may redeem from TDS the outstanding shares of 10%
Cumulative, Compounded, Convertible, Redeemable Class A
Preferred Stock of the Company, (b) the Company may pay
dividends, in accordance with the Certificate of Designation,
to Xxxxxx XX Limited Partnership, the majority shareholder of
the Company (the "Partnership"), for the purpose of making
distributions to the Trusts in order to permit the Trusts to
service the Trust Loan, provided that pro rata dividends are
simultaneously declared to the holders of Holdings' Class B
Preferred Stock and paid in accordance with the Certificate
of Designation of Holdings for its Class B Preferred Stock
and the other holders of Common Stock as provided in the
Certificate of Designation, and (c) Holdings may redeem the
Purchased Securities in accordance with the terms of the
Financing Agreements.
SECTION 6.11. DILUTION PROTECTION. Except for the issuance
of Purchased Securities and except for the issuance of the
Qualified Options, neither Holdings nor any Subsidiary will
(a) issue, sell, give away or otherwise transfer, (b) grant
any rights
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(either preemptive or other) or options to subscribe for or
purchase, or (c) enter into any agreements or issue any
warrants providing for the issuance of, any of its capital
stock or other equity interest (or any stock or securities
convertible into or exchangeable for any of their capital
stock or other equity interest). Neither Holdings nor any of
the Subsidiaries shall authorize any additional class or
series of shares or increase the number of shares of
authorized capital from that set forth in SCHEDULE 6.11
hereto.
SECTION 6.12. MERGER, CONSOLIDATION, SALE OF ASSETS OR OTHER
DISPOSITIONS. Except for the merger of a Subsidiary with and
into Holdings or any other Subsidiary, neither Holdings nor
any Subsidiary will become a party to any merger or
consolidation, or sell, lease, sublease or otherwise transfer
or dispose of any shares of or other equity interests in a
Subsidiary or any substantial portion of its assets, rights
and licenses to any Person, whether directly or indirectly or
in a single transaction or a series of related transactions,
other than (a) sales of inventory, used equipment and other
assets not in the aggregate material to the business in the
ordinary course of business and transfers constituting
Permitted Liens or turn over the management of, or enter into
a management contract with respect to, any of its assets or
properties, rights and licenses
SECTION 6.13. TRANSACTIONS WITH AFFILIATES. Neither
Holdings nor any Subsidiary will engage in any transaction
with any of its Affiliates other than the Purchasers and
their Affiliates except for (a) transactions permitted under
the Related Agreements, and (b) arms length transactions not
exceeding $100,000 in the aggregate in any fiscal year.
SECTION 6.14. SALE AND LEASEBACK OF PROPERTY. Neither
Holdings nor any Subsidiary will enter into any arrangement,
directly or indirectly, with any Person whereby it shall sell
or transfer any property, whether real, personal or a
combination thereof, used or useful in its business, whether
now owned or hereinafter acquired, and thereafter rent or
lease such property.
SECTION 6.15. JOINT VENTURES. Neither Holdings nor any
Subsidiary will cause or consent to any joint venture
engaging in any activity which would result in the joint
venture being in breach of any representation, warranty,
covenant or agreement set forth in this Agreement or any
other Related Agreement as if the joint venture were a
Subsidiary.
SECTION 6.16. INVESTMENTS. Holdings will not, and will not
permit any Subsidiary to, have outstanding or acquire or
commit itself to acquire or hold any Investment except
Investments in: (a) marketable direct obligations issued or
guaranteed by the
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Xxxxxx Xxxxxx xx Xxxxxxx which mature within one year from
the date of acquisition thereof or which are subject to a
repurchase agreement, exercisable within 90 days from the
date of acquisition of such agreement, with any commercial
bank or trust company incorporated under the laws of the
United States of America or any State thereof or the District
of Columbia, (b) commercial paper maturing within one year
from the date of acquisition thereof and having, at the date
of acquisition thereof, the highest rating obtainable from
Xxxxx'x Investors Service, Inc. or Standard & Poor's
Corporation, (c) bankers' acceptances eligible for rediscount
under Federal Reserve Board requirements accepted by any
commercial bank or trust company referred to in clause (a)
hereof, (d) certificates of deposit maturing within one year
from the date of acquisition thereof issued by any commercial
bank or trust company referred to in clause (a) hereof and
having capital and surplus of at least $25,000,000, (e)
certificates of deposit issued by banks organized under the
laws of any other jurisdiction, each having combined capital
and surplus of not less than $25,000,000, and (f) Investments
by the Company and each Subsidiary existing on the date of
this Agreement.
SECTION 6.17. SENIOR MANAGEMENT; COMPENSATION. (a) The
aggregate compensation paid by Holdings and its Subsidiaries
to any officer set forth in SCHEDULE 6.17 for any fiscal year
of Holdings shall not be greater than the amount set forth
opposite such Person's name on such Schedule.
SECTION 6.18. COMPLIANCE WITH CAPITAL BUDGET. (a) Except as
set forth in Section 6.18(b) below, Holdings and each
Subsidiary shall at all times comply with the Budget approved
by Holdings and the Purchasers prior to the beginning of each
fiscal year in accordance with SECTION 7.3(a). In the event
any Budget for a particular fiscal year is not approved by
Holdings and the Purchasers in accordance with this SECTION
6.18, then the applicable expenditures for such fiscal year
shall not exceed the greater of (x) the amount set forth in
the Projections for such fiscal year or (y) the amount set
forth in the most recent Budget which was approved by
Holdings and the Purchasers pursuant to SECTION 7.3(a) for
such fiscal year.
(b) Neither Holdings nor any Subsidiary will incur
expenditures for any capital expenditure item in any fiscal
year if as a result thereof the amount which would be
expended for such item would exceed 115% of the amount
budgeted for such item in the Budget for such fiscal year;
provided that Holdings or any Subsidiary may incur
expenditures for a capital expenditure item in excess of 115%
of the amount budgeted for such item in the Budget (the
"Excess Amount") for such fiscal year so long as the
aggregate Excess Amount for all such items which exceed 115%
of the amount budgeted therefor does not exceed $300,000 in
any fiscal year.
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SECTION 6.19. RESPONSE ACTIONS. Holdings covenants and
agrees that if any release or disposal of Hazardous
Substances shall occur or shall have occurred on the premises
occupied by Holdings or any Subsidiary, Holdings will cause
the prompt containment and removal of such Hazardous
Substances and remediation of the property as necessary to
comply in all material respects with all Environmental Laws
or to preserve in all material respects the value of the
property.
SECTION 6.20. MERGER, CONSOLIDATION OR OTHER ACQUISITIONS.
Neither Holdings nor any Subsidiary shall directly or
indirectly, by operation of law or otherwise, merge with,
consolidate with, acquire all or substantially all of the
assets (other than purchases of inventory made in the
ordinary course of its business) or capital stock of, or
otherwise combine with, any Person except for a merger,
consolidation or acquisition having a purchase price less
than $500,000 in any single transaction or for mergers,
consolidations and acquisitions having an aggregate purchase
price less than $1.0 million in any twelve-month period.
SECTION 6.21. CHARTER AMENDMENTS. The Charter and by-laws
of Holdings, the Company and each Related Entity shall not be
amended or modified if such amendment or modification has, or
would have, directly or indirectly, any material adverse
effect on any holder of any then outstanding Purchased
Securities or on the rights or remedies of such holder
hereunder or under any of the Related Agreements.
SECTION 6.22. CONTROL OF SYSTEMS. Notwithstanding any
provision of this Agreement that may be construed to the
contrary, the Cellular Subsidiaries and Acquiring
Subsidiaries shall maintain actual (DE FACTO) and legal (DE
JURE) control over their respective Systems and FCC licenses.
Specifically, and without limitation, the responsibility for
the operation of each of the Systems shall reside with the
Cellular Subsidiary or Acquiring Subsidiary holding the FCC
license therefor, including (but not limited to)
responsibility for the following matters: (a) access to and
the use of facilities and equipment; (b) control of daily
operation; (c) creation and implementation of policy
decisions; (d) employment, supervision and dismissal of
employees; (e) payment of financing obligations and expenses
incurred in the operation and construction of the Systems;
(f) receipt and distribution of monies and profits derived
from the operation of the Systems; and (g) execution and
approval of all contracts and applications prepared and filed
before regulatory agencies.
SECTION 6.23. TRUST LOAN REPAYMENT. So long as the Trusts
are the borrowers under the Trust Loan, the Company shall not
make any distributions to the Trusts to service the Trust
Loan except by paying dividends to the Partnership which
shall then distribute such monies to the Trust to make
principal, interest and other payments due in respect of the
Trust Loan.
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SECTION 6.24. PAYMENT OF AFFILIATE NOTES. None of the
Promissory Notes listed on SCHEDULE 3.8 will be forgiven, and
each such Promissory Note issued by an Affiliate listed on
SCHEDULE 3.8 will not be amended, extended or modified and
the Company and Holdings shall cause the applicable payee of
such Promissory Note to collect all outstanding principal and
accrued but unpaid interest on such Promissory Note in
accordance with the terms set forth in such Promissory Note.
1.18 ARTICLE VII of the Purchase Agreement is hereby deleted in its
entirety and the following is substituted therefor:
Holdings hereby agrees that so long as any of the Purchased
Securities or any of the Common Shares are held by any
Purchaser, it will comply with, and it will cause each
Subsidiary to comply with, the following provisions:
SECTION 7.1. ANNUAL STATEMENTS. (a) As soon as available
and in any event within 90 days after the close of each
fiscal year of the Company commencing with the fiscal year
ending on December 31, 1995 up to and including the fiscal
year ending on December 31, 1996, the Company will deliver to
each Purchaser audited consolidated and unaudited
consolidating balance sheets and statements of income and
retained earnings and of cash flows of the Company audited by
Xxxxxx Xxxxxxxx, L.L.P. or any other public accounting firm
selected by Holdings and reasonably acceptable to the
Purchasers, showing the financial condition of the Company as
of the close of such fiscal year and the results of the
Company's operations during such fiscal year, all on a
consolidated basis.
(b) As soon as available and in any event within 90 days
after the close of each fiscal year of Holdings commencing
with the fiscal year ending on December 31, 1997, Holdings
will deliver to each Purchaser audited consolidated and
unaudited consolidating balance sheets and statements of
income and retained earnings and of cash flows of Holdings
audited by Xxxxxx Xxxxxxxx, L.L.P. or any other public
accounting firm selected by Holdings and reasonably
acceptable to the Purchasers, showing the financial condition
of Holdings as of the close of such fiscal year and the
results of Holdings's operations during such fiscal year, all
on a consolidated basis.
(c) Each of the financial statements delivered pursuant to
this SECTION 7.1 shall be certified without qualification by
the applicable accounting firm to have been prepared in
accordance with GAAP consistently applied and if such firm in
the course of its audit shall have obtained knowledge of any
Noncompliance Event or so
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advises the Company or Holdings, Holdings shall cause such
firm to notify each Purchaser in writing of the nature
thereof.
SECTION 7.2. QUARTERLY STATEMENTS. (a) Within forty-five
(45) days after the end of each quarter commencing with the
quarter ending December 31, 1995 up to and including the
quarter ending on December 31, 1996, the Company will deliver
to each Purchaser consolidated and consolidating unaudited
balance sheets and statements of income and retained earnings
and of cash flows of the Company as of the end of each such
quarter and for the period of the then current fiscal year to
the end of such month, and presenting on a comparative basis
the corresponding figures for such period in the preceding
fiscal year and the then current Budget, in each case by
region, certified by the Chief Financial Officer of Holdings
to be true and correct and to have been prepared in
accordance with GAAP subject to normal year-end adjustments
described in reasonable detail.
(b) Within forty-five (45) days after the end of each quarter
commencing with the quarter ending March 31, 1997, Holdings
will deliver to each Purchaser consolidated and consolidating
unaudited balance sheets and statements of income and
retained earnings and of cash flows of Holdings as of the end
of each such quarter and for the period of the then current
fiscal year to the end of such month, and presenting on a
comparative basis the corresponding figures for such period
in the preceding fiscal year and the then current Budget, in
each case by region, certified by the Chief Financial Officer
of Holdings to be true and correct and to have been prepared
in accordance with GAAP subject to normal year-end
adjustments described in reasonable detail.
SECTION 7.3. BUDGETS AND OTHER REPORTS. (a) Holdings will
deliver to the Purchasers, within thirty (30) days prior to
the commencement of each fiscal year project spending and
capital budgets for the five immediately succeeding fiscal
years, projected monthly statements of income and cash flow
for such fiscal years (the "Budget"), projected quarterly
balance sheets for such fiscal years and as soon as practical
after preparation thereof, complete and correct copies of all
quarterly (if any) or annual budgetary analyses or forecasts
of Holdings and the Subsidiaries in the form customarily
prepared by management for its own internal use or the use of
Holdings. Holdings and the Purchasers shall once each
calendar year, commencing with the Holdings's 1997 fiscal
year, conduct an annual off-site meeting to review Holdings's
projections and business plans with respect to such fiscal
year and the immediately succeeding four fiscal years.
(b) Holdings shall also furnish to each Purchaser (i) within
five (5) days of the Holdings's receipt thereof, copies of
all management letters of Holdings's
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accountants; (ii) within five (5) days of Holdings's receipt
thereof, notice with respect to any material pending or
threatened litigation to which Holdings or any Subsidiary is
or may become a party; (iii) within five (5) days of
Holdings's receipt thereof, notice of any default or event of
default with respect to any material agreement to which
Holdings or any Subsidiary is a party; (iv) within five (5)
days of the filing thereof, copies of all material filings
made by or on behalf of Holdings or any Subsidiary with any
governmental regulatory agency; and (v) such other
information as any Purchaser may reasonably request from time
to time.
(c) Within fifteen (15) days after the end of each calendar
month commencing with the calendar month ending February 28,
1997, Holdings will deliver to each Purchaser monthly and
year-to-date summaries, on a consolidated basis broken down
for each market in which Holdings or any Subsidiary operates
any System, of the following: (a) number of Pops, (b) number
of subscribers, (c) gross activations, (d) net activations,
(e) deactivations (and setting forth the reason therefor),
(f) acquisition cost per gross activation, (g) average
monthly revenue per subscriber, (h) total number of roaming
minutes, (i) total roaming revenue and (j) any other
information which the Purchasers may request from time to
time.
1.19 ARTICLE VIII of the Purchase Agreement is hereby deleted in its
entirety and the following is substituted therefor:
SECTION 8.1. NONCOMPLIANCE EVENTS. The Purchasers shall be
entitled to exercise the remedies provided in SECTION 8.2 in
accordance with the terms thereof if any one or more of the
following events (each a "Noncompliance Event") shall occur:
(a) Holdings or any Subsidiary shall fail to perform or
observe any of the covenants, agreements or provisions to be
performed or observed by it under this Agreement or any of
the other Related Agreements, except that for purposes of
SECTION 9 of the Shareholders' Agreement and Section 9 of the
Holdings Shareholders' Agreement (i) the failure of Holdings
or any Subsidiary to perform or observe the provisions of
Sections 6.3, 6.4, 6.5, 6.7, 6.8, 6.9, 6.16, 6.18, 6.19
and/or 7.3 of this Agreement shall not be a Noncompliance
Event and (ii) the failure of Holdings or the Company to
comply with the provisions of SECTIONS 7.1 and/or 7.2 of this
Agreement shall not be a Noncompliance Event until such
failure to so comply has continued for 60 days; or
(b) any representation or warranty made by Holdings or any
Subsidiary to any Purchaser in or in connection with this
Agreement or any other Related Agreement shall prove to have
been materially false on the date as of which it was made; or
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(c) a default with respect to Indebtedness for borrowed
money of Holdings or any Subsidiary shall occur, and such
default shall continue, without having been duly cured,
waived or consented to, beyond the period of grace, if any,
therein specified and so as to permit the acceleration
thereof, if any acceleration is provided for therein, and
such default shall continue uncured and unwaived for 120 days
after the expiration of such grace period unless, during such
120-day period, the applicable Indebtedness for borrowed
money is accelerated; PROVIDED, HOWEVER, that so long as the
applicable Indebtedness for borrowed money is not
accelerated, for purposes of SECTION 9 of the Shareholders'
Agreement or SECTION 9 of the Holdings Shareholders'
Agreement, a violation of this subparagraph (c) of SECTION
8.1 shall not be a Noncompliance Event; or
(d) a final judgment which in the aggregate with other
outstanding final judgments against Holdings or any
Subsidiary exceeds $5.0 million (in excess of available
insurance recoveries) in any 12-month period shall be
rendered against such Person and, within sixty (60) days
after entry thereof, such judgment shall not have been
satisfied and discharged or stayed pending appeal or bonded,
or within sixty (60) days after expiration of such stay such
judgment shall not have been discharged; PROVIDED, HOWEVER,
that for purposes of SECTION 9 of the Shareholders' Agreement
and Section 9 of the Holdings Shareholders' Agreement, a
violation of this subparagraph (d) of SECTION 8.1 shall not
be a Noncompliance Event; or
(e) Holdings or any Subsidiary shall:
(i) commence a voluntary case under Title 11 of the United
State Bankruptcy Code as from time to time in effect, or
authorize, by appropriate proceedings of its board of
directors or other governing body, the commencement of such a
voluntary case;
(ii) have filed against it a petition commencing an
involuntary case under said Title 11 and such petition shall
not have been dismissed or stayed within sixty (60) days;
(iii) seek relief as a debtor under any applicable law,
other than said Title 11, of any jurisdiction relating to the
liquidation or reorganization of debtors or to the
modification or alteration of the rights of creditors, or
consent to or acquiesce in such relief; or
(iv) have entered against it an order by a court of
competent jurisdiction (x) finding it to be bankrupt or
insolvent, (y) ordering or approving its liquidation,
reorganization or any modification or alteration of the
rights of its creditors, or (z) assuming custody of, or
appointing a receiver or other custodian for, all or a
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substantial part of its property; which order shall not be
vacated, denied, set aside or stayed within sixty (60) days
from the date of entry thereof; or
(v) make an assignment of all or a substantial part of its
assets for the benefit of, or enter into a composition with,
its creditors, or appoint or consent to the appointment of a
receiver or other custodian for all or a substantial part of
its assets; or
(f) Xxxxxx shall die, become disabled or shall otherwise
cease for any reason to serve as the President of Holdings
unless replaced by a Person of comparable experience and
expertise acceptable to the Purchasers within six months of
the termination of Xxxxxx'x service; or
(g) any of the proceeds from the sale of the Preferred
Shares are used for a purpose not set forth in SECTION 2.4
above; or
(h) with respect to any Guaranteed Pension Plan, an ERISA
Reportable Event shall have occurred and the Purchasers shall
have determined in their reasonable discretion that such
event reasonably could be expected to result in liability of
Holdings or any of its Subsidiaries to the PBGC or such Plan
and such event in the circumstances occurring reasonably
could constitute grounds for the termination of such Plan by
the PBGC or for the appointment by the appropriate United
States District Court of a trustee to administer such Plan;
or a trustee shall have been appointed by the United States
District Court to administer such Plan; or the PBGC shall
have instituted proceedings to terminate such Plan; or
(i) Xxxxxx does not at all times have voting control over
the securities of Holdings owned by the Partnership (the
"Partnership Block") or Xxxxxx does not own at all times,
beneficially, at least ninety percent (90%) of the economic
interests of the Partnership Block on a fully diluted basis
which Xxxxxx owned on March 19, 1996; or
(j) So long as the Trust Borrowers are the Borrowers under
the Trust Loan, if any document, instrument or agreement
executed in connection with the Trust Loan is amended or
modified without the prior approval of the Purchasers.
SECTION 8.2. REMEDIES. Upon the occurrence of any
Noncompliance Event then, in each and every such case, the
Purchasers may proceed to protect and enforce their rights by
suit in equity, action at law or other appropriate proceeding
either for specific performance of any covenant, provision or
condition contained or incorporated by reference in this
Agreement or any other Related Agreement or in
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aid of the exercise of any power or right granted in this
Agreement or any other Related Agreement.
SECTION 8.3. WAIVERS. Each of Holdings and the Subsidiaries
hereby waives, to the extent not prohibited by applicable
law, (a) all presentments, demands for performance and
notices on nonperformance (except to the extent specifically
required by the provisions hereof), and (b) any requirement
of diligence or promptness on the part of any holder of
Preferred Shares or Common Shares in the enforcement of its
rights under the provisions of this Agreement or any Related
Agreement.
1.20 ARTICLE IX of the Purchase Agreement is hereby deleted in its
entirety and the following is substituted therefor:
SECTION 9.1. REGISTRATION, TRANSFER AND EXCHANGE OF
PURCHASED SECURITIES.
(a) Prior to February 26, 1997 the Company shall, and on and
after February 26, 1997 Holdings shall, keep at its principal
office a register in which shall be entered the names and
addresses of the holders of the Purchased Securities and the
Common Shares and the particulars (including without
limitation the class thereof) of the Purchased Securities and
the Common Shares held by them and of all transfers of shares
of its Purchased Securities and Common Shares. References to
the "holder" or "holder of record" of any shares of Purchased
Securities and Common Shares shall mean the holder thereof
unless the holder shall have presented the certificates
evidencing same to the Company for transfer and the
transferee shall have been entered in said register as a
subsequent holder, in which case the terms shall mean such
subsequent holder. The ownership of any of the Purchased
Securities and the Common Shares shall be proven by such
register and the Company and Holdings, as the case may be,
may conclusively rely upon such register.
(b) Upon surrender at the principal office of Holdings of
any certificate representing shares of Purchased Securities
or Common Shares for registration of exchange or transfer,
Holdings shall, or shall cause the Company to, issue, at
Holdings's expense, one or more new certificates, in such
denomination or denominations as may be requested, for
Purchased Securities or Common Shares (as applicable) and
registered as such holder may request. Any certificate
representing shares of Purchased Securities or Common Shares
surrendered for registration of transfer shall be duly
endorsed, or accompanied by a written instrument of transfer
duly executed by the holder of such certificate or his
attorney duly authorized in writing. Prior to any transfer
of any Purchased Securities or Common Shares which are not
registered under an effective registration statement under
the Securities Act, no holder thereof
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shall transfer any such Purchased Securities or Common Shares
unless (i) such transfer is effected pursuant to Rule 144 or
any comparable rule under the Securities Act or (ii) prior to
such transfer, the Company shall receive a written opinion
reasonably satisfactory in form and substance to the Company
of counsel designated by such holder and reasonably
satisfactory to the Company that the proposed transfer may be
effected without registration under the Securities Act.
Holdings will pay shipping and insurance charges, from and to
each holder's principal office, upon any transfer, exchange
or conversion provided for in this SECTION 9.1.
(c) Each certificate evidencing Purchased Securities and
Common Shares, whether originally or in substitution for, or
upon transfer or exchange of any Purchased Securities or
Common Shares shall be registered on the date of execution
thereof by the Company or Holdings, as the case may be. The
registered holder of record shall be deemed to be the owner
of the Purchased Securities or Common Shares (as applicable)
for all purposes of this Agreement. All notices given
hereunder to the holder of record shall be deemed validly
given if given in the manner specified in ARTICLE XII hereof.
So long as appropriate, the following legend shall be
imprinted on each certificate evidencing the Purchased
Securities and Common Shares:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN
EXEMPTION FROM REGISTRATION THEREUNDER."
SECTION 9.2. REPLACEMENT PURCHASED SECURITIES. Upon receipt
of evidence and indemnity reasonably satisfactory to Holdings
of the loss, theft, destruction or mutilation of any
Purchased Securities or Common Share and, in the case of any
such mutilation, upon the surrender of such Purchased
Securities or Common Share for cancellation to the Company or
Holdings, as the case may be, at its principal office, the
Company or Holdings, as the case may be, will execute and
deliver, in lieu thereof, a new Purchased Security or Common
Share of like tenor. Any Purchased Security or Common Share
in lieu of which any such new Purchased Security or Common
Share has been so executed and delivered by the Company or
Holdings, as the case may be, shall not be deemed to be
outstanding for any purpose of this Agreement.
1.21 ARTICLE X of the Purchase Agreement is hereby deleted in its entirety
and the following is substituted therefor:
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SECTION 10.1. EXPENSES. Each of Holdings and the Company
jointly and severally hereby agrees to pay on demand all
reasonable fees, costs and expenses incurred by the
Purchasers, in connection with the transactions contemplated
by this Agreement and the other Related Agreements and in
connection with any amendments or waivers (whether or not the
same become effective) hereof or thereof and all reasonable
expenses incurred by the Purchasers in connection with the
enforcement of any rights hereunder or under any other
Related Agreement including, without limitation, (a) the cost
and expenses of due diligence and of preparing and
duplicating this Agreement and each other Related Agreement;
(b) the fees, expenses and disbursements of Purchasers'
counsel in connection with the preparation, administration or
interpretation of this Agreement and the other Related
Agreements and other instruments mentioned herein, the
Closing, any amendments, modifications, approvals, consents
or waivers hereto, thereto, hereunder or thereunder; (c) the
fees, expenses and disbursements of the Purchasers'
accountants, in connection with the Purchasers due diligence
investigation of Holdings and the Subsidiaries; and (d) all
taxes (other than taxes determined with respect to income and
taxes relating to any transfer of any shares of Purchased
Securities other than to the Company or Holdings), including
any recording fees and filing fees and documentary stamp and
similar taxes at any time payable in respect of this
Agreement or any other Related Agreement. Further, Holdings
agrees to pay all reasonable out-of-pocket expenses
(including, without limitation, reasonable attorneys' fees
and costs, all costs associated with any rights of board
attendance, observation or inspection and travel and lodging
expenses related thereto and accounting fees) incurred by any
Purchaser in connection with the enforcement of or
preservation of rights under this Agreement or any other
Related Agreements or the administration thereof whether
before or after the occurrence of a Noncompliance Event.
SECTION 10.2. INDEMNIFICATION. Each of Holdings and the
Company jointly and severally hereby further agrees to
indemnify, exonerate and hold each Purchaser and its (if
applicable) general and limited partners and their respective
Affiliates, shareholders, officers, directors, employees and
agents free and harmless from and against any and all
actions, causes of action, suits, losses, liabilities,
damages and expenses, including, without limitation,
reasonable attorneys' fees and disbursements, incurred in any
capacity by any of the indemnities as a result of or relating
to (a) any transaction financed or to be financed in whole or
in part directly or indirectly with proceeds from the sale of
any of the Purchased Securities, (b) the execution, delivery,
performance or enforcement of this Agreement, any Related
Agreement or any agreement, document or instrument
contemplated hereby or thereby (including, without
limitation, any failure by any Person other than the
Purchasers to comply with any of its covenants hereunder or
thereunder), (c) any violation of any
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Environmental Laws with respect to conditions at the property
owned or used by Holdings or a Subsidiary or the operations
conducted thereon, or (d) the investigation or remediation of
offsite locations at which Holdings, any of the Subsidiaries
or their respective predecessors are alleged to have directly
or indirectly disposed of Hazardous Substances.
SECTION 10.3. BROKERS' FEES. Each of Holdings and the
Company jointly and severally hereby indemnifies each
Purchaser against and agrees that it will hold it harmless
from any claim, demand or liability for any broker's,
finder's or placement fees or lender's incentive fees alleged
to have been incurred by it or any Subsidiary in connection
with the transactions contemplated by this Agreement or any
Related Agreement.
SECTION 10.4. SURVIVAL OF OBLIGATIONS. The obligations of
Holdings and the Company under this ARTICLE X shall survive
the termination of this Agreement.
SECTION 10.5. COURSE OF DEALING. No course of dealing
between Holdings on the one hand, and the Purchasers, on the
other hand, shall operate as a waiver of any Purchaser's
rights under this Agreement or any other Related Agreement.
No delay or omission in exercising any right under this
Agreement or any other Related Agreement shall operate as a
waiver of such right or any other right. A waiver on any one
occasion shall not be construed as a bar to or waiver of any
right or remedy on any other occasion.
SECTION 10.6. BINDING EFFECT. The provisions of this
Agreement and the other Related Agreements that are for the
benefit of the Purchasers as the holders of any Purchased
Securities are also for the benefit of, and enforceable by
and binding upon, all subsequent holders of Purchased
Securities who may acquire such shares, and the provisions of
this Agreement and the other Related Agreements that subject
the Purchasers, as holders of any Purchased Securities, to
obligations also subject all subsequent holders of any of the
Purchased Securities thereto.
1.22 Clause (i) of ARTICLE XI of the Purchase Agreement is hereby deleted
in its entirety and the following is substituted therefor:
(i) If to the Company or Holdings, then to it at 00000 X.
Xxxxxxxx Xxxxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000, Attn:
Xxxxxxx X. Xxxxxx, Telecopy No.: (000) 000-0000, Telephone
No.: (000) 000-0000, or at such other address as such Person
shall have specified by notice actually received by each
Purchaser.
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1.23 ARTICLE XIII of the Purchase Agreement is hereby deleted in its
entirety and the following is substituted therefor:
Except as otherwise expressly provided herein, any term of
this Agreement may be amended and the observance of any term
of this Agreement may be waived (either generally or in a
particular instance and either retroactively or
prospectively) only with the written consent of Holdings and
each of the Purchasers.
1.24 ARTICLE XIV of the Purchase Agreement is hereby deleted in its
entirety and the following is substituted therefor:
EACH OF HOLDINGS AND THE COMPANY HEREBY AGREES TO SUBMIT TO
THE NON-EXCLUSIVE JURISDICTION OF THE COURTS IN AND OF THE
STATE OF DELAWARE AND TO JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF DELAWARE AND TO THE COURTS
TO WHICH AN APPEAL OF THE DECISIONS OF SUCH COURTS MAY BE
TAKEN, AND CONSENTS THAT SERVICE OF PROCESS WITH RESPECT TO
ALL COURTS IN AND OF THE STATE OF DELAWARE AND THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MAY BE
MADE BY REGISTERED MAIL TO IT AT ITS ADDRESS SET FORTH IN
ARTICLE XI HEREOF.
1.25 ARTICLE XV of the Purchase Agreement is hereby deleted in its
entirety and the following is substituted therefor:
EACH OF HOLDINGS, THE COMPANY AND THE PURCHASERS HEREBY
EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL IN ANY
SUIT, ACTION OR PROCEEDING EXISTING UNDER OR RELATING TO THIS
AGREEMENT OR ANY OF THE RELATED DOCUMENTS.
1.26 ARTICLE XVII of the Purchase Agreement is hereby deleted in its
entirety and the following is substituted therefor:
Each of Holdings and the Company hereby acknowledges that the
Purchasers will have the right, subject to the reasonable
prior written approval of the Company and Holdings, to
publicize their investment in the Company and Holdings as
contemplated hereby by means of a tombstone advertisement or
other customary advertisement in newspapers and other
periodicals.
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1.27 ARTICLE XVIII of the Purchase Agreement is hereby deleted in its
entirety and the following is substituted therefor:
Each of Holdings and the Company, on the one hand, and the
Purchasers, on the other hand, upon the request of the other
party hereto, whether before or after the Closing, shall do,
execute, acknowledge and deliver or cause to be done,
executed, acknowledged or delivered all such further acts,
deeds, documents, assignments, transfers, conveyances, powers
of attorney and assurances as may be reasonably necessary or
desirable to effect complete consummation of the transactions
contemplated by this Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
2.1 Each of Holdings and the Company hereby represents and warrants that
(i) it has full power and authority to execute and deliver this Amendment and to
perform its obligations hereunder, (ii) it has taken all corporate action
necessary for the execution and delivery by it of this Amendment and the
performance by it of its obligations hereunder, and (iii) this Amendment
constitutes its valid and binding obligation enforceable against it in
accordance with its terms except to the extent enforceability may be subject to
bankruptcy, insolvency, moratorium and other similar laws affecting the rights
of creditors generally or the application of principles of equity, whether in an
action at law or proceeding in equity.
2.2 Holdings (a) is a corporation, duly organized, legally existing and in
good standing under the laws of the State of Oklahoma (b) has the corporate
power and authority to own its properties and carry on its business as now being
conducted and is qualified to do business in every jurisdiction in which the
nature of its business or the ownership or leasing of its property requires such
qualification; and (c) has the corporate power and authority to enter into and
perform its obligations under the Purchase Agreement and each of the other
Related Agreements (as defined in the Purchase Agreement as amended hereby) to
which it is a party and to undertake the transactions contemplated hereby and
thereby. All necessary and proper corporate action has been taken by Holdings
with respect to the authorization, execution and delivery of the Purchase
Agreement and each of the other Related Agreements (as defined in the Purchase
Agreement as amended hereby) to which it is a party and the Purchase Agreement
and each of the other Related Agreements (as defined in the Purchase Agreement
as amended hereby) constitute the legal, valid and binding obligations of
Holdings enforceable against it in accordance with their terms except to the
extent enforceability may be subject to bankruptcy, insolvency, moratorium and
similar laws affecting the rights of creditors generally or the application of
principles of equity, whether in an action at law or proceeding in equity, and
subject to the availability of the remedy of specific performance or of any
other equitable remedy or relief to enforce any right under any such agreement.
The execution, delivery and performance of the Purchase Agreement and each of
the other Related Agreements (as defined in the Purchase Agreement as amended
hereby) to which Holdings is a party will not violate any
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provision of law applicable to Holdings, any order of any court or other
agency of government applicable to Holdings, Holdings 's corporate charter or
by-laws or any indenture, agreement or other instrument to which Holdings is
a party or by which it is bound or be in conflict with, result in a breach
of, or constitute (with due notice or lapse of time or both) a default under,
or except as may be provided in the Purchase Agreement, result in the
creation or imposition of any Lien upon any of the property or assets of
Holdings pursuant to, any such indenture, agreement or instrument. No
registrations, filings, applications, notices, transfers, consents,
approvals, audits, qualifications, waivers or other action of any kind is
required by virtue of the execution and delivery of the Purchase Agreement
and each of the other Related Agreements (as defined in the Purchase
Agreement as amended hereby) or of the consummation of the transactions
contemplated hereby or thereby.
2.3 A statement of the capital structure of Holdings, the Company and
each Related Entity, indicating its authorized and issued debt and equity
interests, and identifying the holders of such interests, as of the date of
this Agreement giving effect to the transactions contemplated by the Related
Agreements, is annexed hereto as SCHEDULE 2.3 (the "Capital Structure
Schedule"). The Capital Structure Schedule also indicates (a) which
securities, if any, carry preemptive rights; (b) whether there are any
outstanding subscriptions, warrants, options or other agreements to purchase
any securities; (c) whether Holdings, the Company or a Related Entity is
obligated to redeem any of its securities, and the details of any such
committed redemption; (d) all commitments, loan agreements or arrangements by
Holdings, the Company or a Related Entity to incur indebtedness; (e) any
commitment to convert debt into equity interests of Holdings, the Company or
a Related Entity; (f) capital call arrangements; and (g) any other agreement,
arrangement or plan which will directly or indirectly affect the capital
structure of Holdings, the Company or a Related Entity.
2.4 As of the Closing Date, the only outstanding equity interests of
Holdings, the Company and each Related Entity will be as described in the
Capital Structure Schedule and owned by the Persons listed on said Schedule,
all of which equity interests (i) have been validly issued in conformity with
all applicable state and federal laws, (ii) are fully paid and
non-assessable, and (iii) are free and clear of all Liens other than the
pledge of shares of Common Stock of the Company in connection with the
CoreStates Financing. Except as set forth on SCHEDULE 2.3, Holdings has no
Subsidiaries nor does it own or hold of record or beneficially any shares of
any class of the capital of any corporation or any legal or beneficial
ownership interest in any general or limited partnership, association, joint
venture or in any other unincorporated organization or entity. There are no
commitments for the purchase or sale of, and except as set forth on the
Capital Structure Schedule, no options, warrants or other rights to subscribe
for or purchase, any equity securities of Holdings, the Company or any
Related Entity. Holdings, the Company and each Related Entity other than
Western Financial Services Corp. is engaged solely in the business of owning,
operating or investing in telephone systems (including long distance) and
cellular systems and Western Financial Services Corp. is engaged in
miscellaneous investments, including real estate.
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2.5 Each Purchaser hereby represents and warrants to the Company that
it is acquiring the Purchased Securities to be purchased by it pursuant to
SECTION 2.1 for investment and not with a view towards the sale or
distribution of its rights hereunder or thereunder.
2.6 Each Purchaser represents that this Agreement and the other Related
Agreements (as defined in the Purchase Agreement as amended hereby) to which
it is a party have been executed by a duly authorized Person on its behalf
and the execution, delivery and performance hereof and thereof have been duly
authorized by all appropriate action.
SECTION 3. REFERENCE TO AND EFFECT UPON THE PURCHASE AGREEMENT.
3.1 Except as specifically amended above, the Purchase Agreement shall
remain in full force and effect and is hereby ratified and confirmed.
3.2 The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of any Purchaser under
the Purchase Agreement, nor constitute an amendment of any provision of the
Purchase Agreement, except as specifically set forth herein. Upon the
effectiveness of this Amendment (i) each reference in the Purchase Agreement
to "this Agreement", "hereunder", "hereof", "herein" or words of similar
import shall mean and be a reference to the Purchase Agreement as amended
hereby; and (ii) each reference in any "Related Agreement" (as defined in the
Purchase Agreement as amended hereby) to the Purchase Agreement shall mean
and be a reference to the Purchase Agreement as amended hereby.
SECTION 4. COSTS AND EXPENSES. Holdings hereby agrees to pay on demand
all reasonable fees, costs and expenses (including, without limitation,
reasonable fees, costs and expenses of counsel to the Purchasers ) incurred
by the Purchasers in connection with negotiation, preparation, administration
and enforcement of this Amendment.
SECTION 5. GOVERNING LAW. THIS AMENDMENT SHALL BE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF DELAWARE WITHOUT GIVING EFFECT
TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE THAT WOULD CAUSE THE
APPLICATION OF THE DOMESTIC SUBSTANTIVE LAWS OF ANY OTHER STATE, AND SHALL
BIND AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS.
SECTION 6. SECTION TITLES. The section titles contained in this
Amendment are and shall be without substance, meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
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SECTION 7. COUNTERPARTS. This Amendment may be executed in any number
of counterparts, each of which when so executed shall be deemed an original
but all such counterparts shall constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by the parties hereto as of the day and year first above written.
XXXXXX COMMUNICATIONS CORPORATION
BY: /s/ XXXXXXX X. XXXXXX
-----------------------------
XXXXXXX X. XXXXXX
PRESIDENT
XXXXXX HOLDINGS CORPORATION
BY:
-----------------------------
NAME:
-----------------------------
TITLE:
-----------------------------
PURCHASERS
FLEET EQUITY PARTNERS VI, L.P.
BY: FLEET GROWTH RESOURCES II, INC.,
A GENERAL PARTNER
BY: /s/ XXXXXXX X. XXXXXXXX
---------------------------------
XXXXXXX X. XXXXXXXX
SENIOR VICE PRESIDENT
Address for Notices:
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Att: Xxxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
-00-
XXXXX XXXXXXX RESOURCES, INC.
BY: /s/ XXXXXXX X. XXXXXXXX
---------------------------------
XXXXXXX X. XXXXXXXX
SENIOR VICE PRESIDENT
Address for Notices:
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Att: Xxxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
XXXXXXX PLAZA PARTNERS
BY: /s/ XXXXXXX X. XXXXXXXX
---------------------------------
TITLE:
Address for Notices:
c/o Fleet Equity Partners
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Att: Xxxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
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