Exhibit 4.1
AMENDMENT NO. 5 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 5 TO CREDIT AGREEMENT, is dated as of September 28,
2001 (this "Amendment"), among the following:
(i) XXXXX TELECOM INC., a Delaware corporation (herein, together with its
successors and assigns, the "Borrower");
(ii) the Lenders party to the Credit Agreement, as hereinafter defined;
(iii) BANK ONE, MICHIGAN (successor in interest to NBD Bank) as a Lender
and as Documentation Agent (the "Documentation Agent"); and
(iv) KEYBANK NATIONAL ASSOCIATION, a national banking association, as a
Lender and as the Administrative Agent and the Collateral Agent under the Credit
Agreement (the "Administrative Agent"):
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders, the Documentation Agent and the
Administrative Agent are parties to the Credit Agreement, dated as of
December 31, 1998 (as amended and as the same may from time to time be further
amended, restated or otherwise modified, the "Credit Agreement"; the terms
defined therein are used herein as so defined).
(2) The parties hereto desire to modify certain terms and provisions of
the Credit Agreement, all as more fully set forth below.
NOW, THEREFORE, the parties hereby agree as follows:
Section 1. AMENDMENTS.
1.1. AMENDED DEFINITIONS. Section 1.1 of the Credit Agreement is hereby
amended to delete the definitions of "APPLICABLE FACILITY FEE RATE", "PERMITTED
ACQUISITION" and "UCC" therefrom and to insert in place thereof, respectively,
the following:
"APPLICABLE FACILITY FEE RATE" shall mean:
(a) for any date prior to September 28, 2001, as determined in
accordance with section 4.1(a)(ii) of this Agreement as in effect prior
to September 28, 2001;
(b) from September 28, 2001 through November 30, 2001, 50 basis
points; and
(c) commencing with the fiscal quarter of the Borrower ended
September 30, 2001, and continuing with each fiscal quarter thereafter,
the number of basis points determined by the Administrative Agent in
accordance with the Pricing Grid Table, based upon the Leverage Ratio.
Changes in the Applicable Facility Fee Rate shall become effective on the
first day of the month following the receipt by the Administrative Agent,
pursuant to section 8.1(a) or (b) of the financial statements of the
Borrower; PROVIDED,
HOWEVER, that, notwithstanding the foregoing, unless otherwise agreed by
the Required Lenders, during any period when (i) the Borrower shall have
failed to timely deliver its financial statements referred to in Section
8.1(a) or (b), (ii) a Default under section 10.1(a) shall have occurred
and be continuing, or (iii) an Event of Default shall have occurred and
be continuing, the Applicable Facility Fee Rate shall be the highest
number of basis points indicated therefor in the Pricing Grid Table,
regardless of the Leverage Ratio at such time. Any changes in the
Applicable Facility Fee Rate shall be determined by the Administrative
Agent in accordance with the above provisions and the Administrative
Agent shall promptly provide notice of such determinations to the
Borrower and the Lenders, which determinations by the Administrative
Agent shall be conclusive and binding absent manifest error.
"PERMITTED ACQUISITION" shall mean and include any Acquisition that:
(a) is not actively opposed by the Board of Directors (or similar
governing body) of the selling Person or the Person whose equity
interests are to be acquired, UNLESS all of the Lenders specifically
approve or consent to such Acquisition in writing;
(b) if such Acquisition involves cash consideration, including cash
consideration to be used to prepay or otherwise retire any Indebtedness
of the business being acquired, whether such cash consideration is
payable immediately or on a deferred or contingent basis ("CASH
CONSIDERATION"), then, unless the Required Lenders specifically approve
or consent to such Acquisition in writing, (i) for any period prior to
September 28, 2001, the aggregate Cash Consideration for such Acquisition
does not and will not aggregate in excess of $20,000,000, and (ii) on and
after September 28, 2001, no Acquisition may be made by the Borrower if
such Acquisition involves any Cash Consideration, EXCEPT the Borrower may
make the Target Acquisition so long as (A) the Target Acquisition shall
have been completed on or before December 31, 2001, and (B) prior to or
concurrently with the consummation of the Target Acquisition, the
Borrower shall have received the proceeds of the issuance of additional
equity of the Borrower, which proceeds shall have been (1) in an amount
greater than or equal to 2.5 times the Cash Consideration to be paid in
connection with the Target Acquisition, and (2) applied by the Borrower
(after deducting taxes, fees and expenses actually paid in connection
with the issuance of such equity) on the date such proceeds are received
to (y) repay any Loans outstanding on such date, or (z) pay all or a
portion of the Cash Consideration for the Target Acquisition;
(c) if such Acquisition results in any new Subsidiary or
Subsidiaries of the Borrower, there are no holder or holders of minority
equity interests therein; and
(d) after giving effect thereto, the Borrower would be in
compliance, on a PRO FORMA basis, with the financial covenants contained
in sections 9.8, 9.9, 9.10 and 9.11.
The term Permitted Acquisition does not include any loans, advances or
minority investments otherwise permitted pursuant to section 9.5.
"UCC" shall mean the Uniform Commercial Code, as in effect from time
to time in the State of Ohio.
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1.2. NEW DEFINITIONS. Section 1.1 of the Credit Agreement is hereby
amended to add the following new definitions thereto:
"ADJUSTED COVENANT DATE" shall mean the date upon which the Target
Acquisition shall have been consummated in accordance with section 9.2(c)
hereof.
"APPLICABLE MARGIN" shall mean:
(a) for any date prior to September 28, 2001, as determined in
accordance with section 2.8(h) of this Agreement as in effect prior to
September 28, 2001;
(b) from September 28, 2001 through November 30, 2001, (i) 250 basis
points for General Revolving Loans that are Eurocurrency Loans, and (ii)
50 basis points for General Revolving Loans that are Prime Rate Loans;
and
(c) commencing with the fiscal quarter of the Borrower ended
September 30, 2001, and continuing with each fiscal quarter thereafter,
the number of basis points determined by the Administrative Agent in
accordance with the Pricing Grid Table, based upon the Leverage Ratio.
Changes in the Applicable Margin shall become effective on the first day
of the month following the receipt by the Administrative Agent, pursuant
to section 8.1(a) or (b) of the financial statements of the Borrower;
PROVIDED, HOWEVER, that, notwithstanding the foregoing, unless otherwise
agreed by the Required Lenders, during any period when (i) the Borrower
shall have failed to timely deliver its financial statements referred to
in section 8.1(a) or (b), (ii) a Default under section 10.1(a) shall have
occurred and be continuing, or (iii) an Event of Default shall have
occurred and be continuing, the Applicable Margin for Loans shall be the
highest number of basis points indicated therefor in the Pricing Grid
Table, regardless of the Leverage Ratio at such time. Any changes in the
Applicable Margin shall be determined by the Administrative Agent in
accordance with the above provisions and the Administrative Agent shall
promptly provide notice of such determinations to the Borrower and the
Lenders, which determinations by the Administrative Agent shall be
conclusive and binding absent manifest error.
"CONSOLIDATED CURRENT ASSETS" shall mean, at any date, current
assets, as determined on a Consolidated basis and in accordance with
GAAP.
"CONSOLIDATED CURRENT LIABILITIES" shall mean, at any date, current
liabilities, as determined on a Consolidated basis and in accordance with
GAAP, PROVIDED THAT, included in Consolidated Current Liabilities shall
be (i) the aggregate outstanding principal amount of all Loans, (ii) the
aggregate amount of the Letter of Credit Outstandings, and (iii) the
aggregate outstanding principal amount of the Senior Notes.
"FIXED CHARGE COVERAGE RATIO" shall mean, for the most recently
completed Testing Period, the ratio of (a) Consolidated EBITDA for such
Testing Period, LESS Consolidated Capital Expenditures for such Testing
Period, to (b) the sum of Consolidated Interest Expense, Consolidated
Income Tax Expense and the aggregate amount expended in cash or property
(other than capital stock of the Borrower which is not Redeemable Stock)
for Dividends, for such Testing Period, PLUS the amount representing the
current
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portion (determined in accordance with GAAP) of its Consolidated Total
Long Term Debt as of the end of such Testing Period.
"INTEREST COVERAGE RATIO" shall mean, for the most recently
completed Testing Period, the ratio of (a) Consolidated EBIT to (b)
Consolidated Interest Expense.
"LEVERAGE RATIO" shall mean, for the most recently completed Testing
Period, the ratio of (a) Consolidated Total Debt as of the end of the
most recently completed fiscal quarter to (b) Consolidated EBITDA.
"LIQUIDITY RATIO" shall mean, for the most recently completed
Testing Period, the ratio of (a) Consolidated Current Assets to (b)
Consolidated Current Liabilities.
"PRICING GRID TABLE" shall mean the following pricing grid table:
PRICING GRID TABLE
(Expressed in Basis Points)
-------------------------------------------------------------------------------------------------------------
Applicable Margin Applicable Margin Applicable
for Eurocurrency for Prime Rate Facility Fee Rate
Leverage Ratio Loans Loans
-------------------------------------------------------------------------------------------------------------
Greater than 4.00 to 1.00 300.00 100.00 50.00
-------------------------------------------------------------------------------------------------------------
Greater than 3.50 to 1.00 275.00 75.00 50.00
but less than or equal to
4.00 to 1.00
-------------------------------------------------------------------------------------------------------------
Greater than 3.00 to 1.00 250.00 50.00 50.00
but less than or equal to
3.50 to 1.00
-------------------------------------------------------------------------------------------------------------
Greater than 2.50 to 1.00 225.00 0.00 37.50
but less than or equal to
3.00 to 1.00
-------------------------------------------------------------------------------------------------------------
Greater than 2.00 to 1.00 200.00 0.00 37.50
but less than or equal to
2.50 to 1.00
-------------------------------------------------------------------------------------------------------------
Less than or equal to 2.00 175.00 0.00 25.00
to 1.00
-------------------------------------------------------------------------------------------------------------
"TARGET ACQUISITION" shall mean the acquisition by the Borrower of
substantially all of the net assets of the Person identified by the
Borrower in the materials distributed to the Lenders on September 19,
2001, on terms and conditions consistent with those set forth in such
materials.
1.3. DELETED DEFINITIONS. Section 1.1 of the Credit Agreement is
hereby amended to delete the following definition: "APPLICABLE
EUROCURRENCY MARGIN".
1.4. AMENDMENT TO SECTION 2.8. Section 2.8 of the Credit Agreement
is hereby amended to delete subparts (a), (b) and (h) therefrom and to
insert in place thereof the following:
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(a) INTEREST ON PRIME RATE LOANS. The unpaid principal amount of
each General Revolving Loan or Swing Line Revolving Loan that is a Prime
Rate Loan shall bear interest from the date of the Borrowing thereof
(including any date of Conversion or Redenomination thereof) until
maturity (whether by acceleration or otherwise) at a fluctuating rate per
annum which shall at all times be equal to the Applicable Margin PLUS the
Prime Rate from time to time in effect.
(b) INTEREST ON EUROCURRENCY LOANS. The unpaid principal amount of
each General Revolving Loan that is a Eurocurrency Loan shall bear
interest from the date of the Borrowing thereof (including any
Continuation, Conversion or Redenomination thereof) until maturity
(whether by acceleration or otherwise) at a rate per annum which shall at
all times during the Interest Period applicable thereto be the Applicable
Margin for such Eurocurrency Loan PLUS the relevant Adjusted Eurocurrency
Rate for such Interest Period.
(h) [Intentionally Deleted].
1.5. AMENDMENT TO SECTION 4.1. The Credit Agreement is hereby amended to
delete subpart (ii) from section 4.1(a) thereof and to insert in place thereof
the following:
(ii) [Intentionally Deleted].
1.6. AMENDMENT TO CERTAIN FINANCIAL COVENANTS. Sections 9.6, 9.7, 9.8,
9.9, 9.10 and 9.11 of the Credit Agreement are hereby amended such that, for any
date prior to September 30, 2001, the Borrower shall be required to comply with
such sections as in effect prior to the Amendment Effective Date (as defined
below), and, on September 30, 2001 and thereafter, such sections shall be
amended in their entirety to read, respectively, as follows:
9.6. DIVIDENDS, ETC. The Borrower will not (a) directly or
indirectly declare, order, pay or make any dividend (other than dividends
payable solely in capital stock of the Borrower) or other distribution on
or in respect of any capital stock of any class of the Borrower, whether
by reduction of capital or otherwise (collectively "DIVIDENDS"), or (b)
directly or indirectly make, or permit any of its Subsidiaries to
directly or indirectly make, any purchase, redemption, retirement or
other acquisition of any capital stock of any class of the Borrower
(other than for a consideration consisting solely of capital stock of the
same class of the Borrower) or of any warrants, rights or options to
acquire or any securities convertible into or exchangeable for any
capital stock of the Borrower (collectively, "STOCK REPURCHASES"),
UNLESS, immediately prior to and immediately after giving effect to any
such action, (i) no Default under section 10.1(a) or Event of Default
shall have occurred and be continuing, (ii) the Borrower shall be in
compliance with section 9.7, (iii) the Leverage Ratio shall be less than
3.00 to 1.00, and (iii) the Interest Coverage Ratio shall be greater than
2.00 to 1.00.
9.7. MINIMUM CONSOLIDATED NET WORTH. The Borrower will not permit
its Consolidated Net Worth at any time to be less than $216,585,000,
EXCEPT that (i) effective as of the end of the Borrower's fiscal quarter
ended on or nearest to June 30, 2001, and as of the end of each fiscal
quarter thereafter, the foregoing amount (as it may from time to time be
adjusted as herein provided) shall be positively increased by 50% of the
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Consolidated Net Income of the Borrower for the fiscal quarter ended on
such date, if any (there being no reduction in the case of any such
Consolidated Net Income which reflects a deficit), (ii) the foregoing
amount (as it may from time to time be adjusted as herein provided) shall
be increased by an amount equal to 75% of the cash proceeds (net of
underwriting discounts and commissions and other customary fees and costs
associated therewith) from any sale or issuance of equity by the Borrower
after June 30, 2001 (other than any sale or issuance to management or
employees or employee benefit plans pursuant to employee benefit plans of
general application), (iii) the foregoing amount (as it may from time to
time be adjusted as herein provided) shall be positively increased by 75%
of the increase in Consolidated Net Worth attributable to the issuance,
subsequent to June 30, 2001, of common stock or other equity interests as
consideration in any Acquisitions permitted under section 9.2, and (iv)
the foregoing amount (as it may from time to time be adjusted as herein
provided) shall be decreased (but not by more than a maximum of
$50,000,000) by 100% of the aggregate value of the consideration paid by
the Borrower and its Subsidiaries in cash or property for Stock
Repurchases made after December 31, 1999.
9.8. LEVERAGE RATIO. The Borrower shall not permit at any time the
Leverage Ratio to exceed the maximum permitted for any Testing Period
(depending upon whether or not the Adjusted Covenant Date shall have
occurred) pursuant to the table set forth below for the time period set
forth below:
MAXIMUM AMOUNT MAXIMUM AMOUNT
PERMITTED PRIOR TO THE PERMITTED ON AND AFTER
TIME PERIOD ADJUSTED COVENANT THE ADJUSTED COVENANT
DATE DATE
----------------------------------------------------------------------------------------------------------------
September 30, 2001 through December 30, 2001 3.60 to 1.00 3.15 to 1.00
----------------------------------------------------------------------------------------------------------------
December 31, 2001 through March 30, 2002 3.75 to 1.00 3.40 to 1.00
----------------------------------------------------------------------------------------------------------------
March 31, 2002 through June 29, 2002 4.25 to 1.00 3.75 to 1.00
----------------------------------------------------------------------------------------------------------------
June 30, 2002 through September 29, 2002 4.30 to 1.00 3.75 to 1.00
----------------------------------------------------------------------------------------------------------------
September 30, 2002 through December 30, 2002 3.75 to 1.00 3.15 to 1.00
----------------------------------------------------------------------------------------------------------------
December 31, 2002 through March 30, 2003 3.45 to 1.00 3.00 to 1.00
----------------------------------------------------------------------------------------------------------------
March 31, 2003 through June 29, 2003 3.10 to 1.00 3.00 to 1.00
----------------------------------------------------------------------------------------------------------------
June 30, 2003 and thereafter 3.00 to 1.00 3.00 to 1.00
----------------------------------------------------------------------------------------------------------------
9.9. MINIMUM CONSOLIDATED EBITDA. The Borrower shall not permit at
any time Consolidated EBITDA for its Testing Period most recently ended
to be less than the minimum amount required (depending upon whether or
not the Adjusted Covenant Date shall have occurred) pursuant to the table
set forth below for the time period set forth below:
----------------------------------------------------------------------------------------------------------------
MINIMUM AMOUNT MINIMUM AMOUNT
REQUIRED PRIOR TO THE REQUIRED ON AND AFTER
TIME PERIOD ADJUSTED COVENANT THE ADJUSTED COVENANT
DATE DATE
----------------------------------------------------------------------------------------------------------------
September 30, 2001 through December 30, 2001 $48,200,000 $47,200,000
----------------------------------------------------------------------------------------------------------------
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December 31, 2001 through March 30, 2002 $43,000,000 $41,700,000
----------------------------------------------------------------------------------------------------------------
March 31, 2002 through June 29, 2002 $37,800,000 $37,700,000
----------------------------------------------------------------------------------------------------------------
June 30, 2002 through September 29, 2002 $37,400,000 $38,100,000
----------------------------------------------------------------------------------------------------------------
September 30, 2002 through December 30, 2002 $40,500,000 $41,400,000
----------------------------------------------------------------------------------------------------------------
December 31, 2002 through March 30, 2003 $43,600,000 $47,500,000
----------------------------------------------------------------------------------------------------------------
March 31, 2003 through June 29, 2003 $48,000,000 $55,000,000
----------------------------------------------------------------------------------------------------------------
June 30, 2003 through September 29, 2003 $50,000,000 $55,000,000
----------------------------------------------------------------------------------------------------------------
September 30, 2003 through December 30, 2003 $52,500,000 $55,000,000
----------------------------------------------------------------------------------------------------------------
December 31, 2003 and thereafter $55,000,000 $55,000,000
----------------------------------------------------------------------------------------------------------------
9.10. FIXED CHARGE COVERAGE RATIO. The Borrower shall not permit at
any time the Fixed Charge Coverage Ratio to be less than the minimum
required for any Testing Period (depending upon whether or not the
Adjusted Covenant Date shall have occurred) pursuant to the table set
forth below for the time period set forth below:
----------------------------------------------------------------------------------------------------------------
MINIMUM REQUIRED MINIMUM REQUIRED ON
PRIOR TO THE ADJUSTED AND AFTER THE ADJUSTED
TIME PERIOD COVENANT DATE COVENANT DATE
----------------------------------------------------------------------------------------------------------------
September 30, 2001 through December 30, 2001 1.70 to 1.00 1.50 to 1.00
----------------------------------------------------------------------------------------------------------------
December 31, 2001 through March 30, 2002 1.25 to 1.00 1.25 to 1.00
----------------------------------------------------------------------------------------------------------------
March 31, 2002 through June 29, 2002 1.07 to 1.00 1.15 to 1.00
----------------------------------------------------------------------------------------------------------------
June 30, 2002 through September 29, 2002 1.00 to 1.00 1.10 to 1.00
----------------------------------------------------------------------------------------------------------------
September 30, 2002 through December 30, 2002 1.00 to 1.00 1.10 to 1.00
----------------------------------------------------------------------------------------------------------------
December 31, 2002 through March 30, 2003 1.03 to 1.00 1.25 to 1.00
----------------------------------------------------------------------------------------------------------------
March 31, 2003 through June 29, 2003 1.15 to 1.00 1.40 to 1.00
----------------------------------------------------------------------------------------------------------------
June 30, 2003 through September 29, 2003 1.25 to 1.00 1.45 to 1.00
----------------------------------------------------------------------------------------------------------------
September 30, 2003 through December 30, 2003 1.30 to 1.00 1.50 to 1.00
----------------------------------------------------------------------------------------------------------------
December 31, 2003 and thereafter 1.50 to 1.00 1.50 to 1.00
----------------------------------------------------------------------------------------------------------------
9.11. LIQUIDITY RATIO. The Borrower shall not permit at any time the
Liquidity Ratio to be less than the minimum required for any Testing
Period (depending upon whether or not the Adjusted Covenant Date shall
have occurred) pursuant to the table set forth below for the time period
set forth below:
----------------------------------------------------------------------------------------------------------------
MINIMUM REQUIRED MINIMUM REQUIRED ON
PRIOR TO THE ADJUSTED AND AFTER THE ADJUSTED
TIME PERIOD COVENANT DATE COVENANT DATE
----------------------------------------------------------------------------------------------------------------
September 30, 2001 through December 30, 2001 0.95 to 1.00 1.05 to 1.00
----------------------------------------------------------------------------------------------------------------
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December 31, 2001 through March 30, 2002 0.95 to 1.00 1.05 to 1.00
----------------------------------------------------------------------------------------------------------------
March 31, 2002 through June 29, 2002 0.95 to 1.00 1.05 to 1.00
----------------------------------------------------------------------------------------------------------------
June 30, 2002 through September 29, 2002 0.95 to 1.00 1.05 to 1.00
----------------------------------------------------------------------------------------------------------------
September 30, 2002 through December 30, 2002 0.95 to 1.00 1.10 to 1.00
----------------------------------------------------------------------------------------------------------------
December 31, 2002 through March 30, 2003 0.95 to 1.00 1.10 to 1.00
----------------------------------------------------------------------------------------------------------------
March 31, 2003 through June 29, 2003 1.00 to 1.00 1.15 to 1.00
----------------------------------------------------------------------------------------------------------------
June 30, 2003 through September 29, 2003 1.00 to 1.00 1.20 to 1.00
----------------------------------------------------------------------------------------------------------------
September 30, 2003 through December 30, 2003 1.05 to 1.00 1.20 to 1.00
----------------------------------------------------------------------------------------------------------------
December 31, 2003 and thereafter 1.05 to 1.00 1.20 to 1.00
----------------------------------------------------------------------------------------------------------------
Section 2. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants as follows:
2.1. AUTHORIZATION AND VALIDITY OF AMENDMENT. This Amendment has been
duly authorized by all necessary corporate action on the part of the Borrower,
has been duly executed and delivered by a duly authorized officer of the
Borrower, and constitutes the valid and binding agreement of the Borrower,
enforceable against the Borrower in accordance with its terms.
2.2. REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Credit Parties contained in the Credit Agreement and in the other Credit
Documents are true and correct in all material respects on and as of the
Amendment Effective Date, as though made on and as of the Amendment Effective
Date, except to the extent that such representations and warranties expressly
relate to an earlier specified date, in which case such representations and
warranties are hereby reaffirmed as true and correct in all material respects as
of the date when made.
2.3. NO EVENT OF DEFAULT. No Default or Event of Default exists or
hereafter will begin to exist.
2.4. COMPLIANCE. The Borrower is in full compliance with all covenants
and agreements contained in the Credit Agreement, as amended hereby, and the
other Credit Documents to which it is a party.
2.5. NO CLAIMS. The Borrower is not aware of any claim or offset against,
or defense or counterclaim to, any of its obligations or liabilities under the
Credit Agreement or any other Credit Document.
Section 3. RATIFICATIONS.
Except as expressly modified and superseded by this Amendment, the terms
and provisions of the Credit Agreement are ratified and confirmed and shall
continue in full force and effect.
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Section 4. BINDING EFFECT.
This Amendment shall become effective on the date set forth in the
opening paragraph of this Amendment (the "Amendment Effective Date"), subject to
the satisfaction of the following conditions on or before such date:
(a) the Borrower, the Administrative Agent and the Required
Lenders shall have executed this Amendment;
(b) the Borrower shall have paid to the Administrative Agent, for
the pro rata benefit of the Lenders that shall have executed this
Amendment by 5:00 P.M. (Eastern Daylight Time) on September 28, 2001, an
amendment fee in an amount equal to (i) 40 basis points times (ii) the
aggregate amount of the Commitments of all of the Lenders executing this
Amendment by such time;
(c) the Borrower shall have paid to the Administrative Agent the
agent fees set forth in the letter dated as of September 13, 2001 from
the Administrative Agent to the Borrower;
(d) the Borrower shall have paid all reasonable legal fees and
expenses of the Administrative Agent in connection with this Amendment
and the documents executed in connection therewith; and
(e) the Borrower shall have provided such other items and shall
have satisfied such other conditions as may be reasonably required by the
Administrative Agent and the Lenders.
Section 5. MISCELLANEOUS.
5.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made in this Amendment shall survive the execution and delivery of
this Amendment, and no investigation by the Administrative Agent or any Lender
or any subsequent Loan or other Credit Event shall affect the representations
and warranties or the right of the Administrative Agent or any Lender to rely
upon them.
5.2. REFERENCE TO CREDIT AGREEMENT. The Credit Agreement and any and all
other agreements, instruments or documentation now or hereafter executed and
delivered pursuant to the terms of the Credit Agreement as amended hereby, are
hereby amended so that any reference therein to the Credit Agreement shall mean
a reference to the Credit Agreement as amended hereby.
5.3. SEVERABILITY. Any term or provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall be
confined to the term or provision so held to be invalid or unenforceable.
5.4. APPLICABLE LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Ohio without regard to conflicts of
laws provisions.
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5.5. HEADINGS. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
5.6. ENTIRE AGREEMENT. This Amendment is specifically limited to the
matters expressly set forth herein. This Amendment and all other instruments,
agreements and documentation executed and delivered in connection with this
Amendment embody the final, entire agreement among the parties hereto with
respect to the subject matter hereof and supersede any and all prior
commitments, agreements, representations and understandings, whether written or
oral, relating to the matters covered by this Amendment, and may not be
contradicted or varied by evidence of prior, contemporaneous or subsequent oral
agreements or discussions of the parties hereto. There are no oral agreements
among the parties hereto relating to the subject matter hereof or any other
subject matter relating to the Credit Agreement. Except as set forth herein, the
Credit Agreement shall remain in full force and effect and be unaffected hereby.
5.7. WAIVER OF CLAIMS. The Borrower, by signing below, hereby waives and
releases the Administrative Agent and each of the Lenders and their respective
directors, officers, employees, attorneys, affiliates and subsidiaries from any
and all claims, offsets, defenses and counterclaims of which the Borrower is
aware, such waiver and release being with full knowledge and understanding of
the circumstances and effect thereof and after having consulted legal counsel
with respect thereto.
5.8. COUNTERPARTS. This Amendment may be executed by the parties hereto
separately in one or more counterparts and by facsimile signature, each of which
when so executed shall be deemed to be an original, but all of which when taken
together shall constitute one and the same agreement.
[Remainder of page intentionally left
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5.9. JURY TRIAL WAIVER. EACH OF THE PARTIES TO THIS AMENDMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AMENDMENT, THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO
HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AMENDMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
as of the date first above written.
XXXXX TELECOM INC. KEYBANK NATIONAL ASSOCIATION,
individually as the Swing Line Lender,
By:_______________________________ a Lender, a Letter of Credit Issuer,
and as the Syndication Agent and
Name:_____________________________ the Administrative Agent
Title:____________________________
By:_________________________________
Xxxxxxxx X. Xxxx, Senior Vice
President
BANK ONE, MICHIGAN FIRSTAR BANK, NATIONAL ASSOCIATION
(formerly NBD Bank), (formerly Star Bank,
individually as a Lender and National Association)
as Documentation Agent
By:_________________________________
By:_______________________________
Name:_______________________________
Name:_____________________________
Title:______________________________
Title:____________________________
FIFTH THIRD BANK, NORTHEASTERN OHIO LaSALLE BANK NATIONAL ASSOCIATION
(formerly LaSalle National Bank)
By:_______________________________
Name:_____________________________ By:_________________________________
Title:____________________________ Name:_______________________________
Title:______________________________
00
XXXXXXXX XXXX XX,
Xxx Xxxx and Grand Cayman Branches
By:_______________________________
Name:_____________________________
Title:____________________________
and:______________________________
Name:_____________________________
Title:____________________________
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================================================================================
================================================================================
XXXXX TELECOM INC.
as the Borrower
THE LENDERS NAMED HEREIN
as the Lenders
BANK ONE, MICHIGAN
as the Documentation Agent
and
KEYBANK NATIONAL ASSOCIATION
as the Administrative Agent
---------------------
AMENDMENT NO. 5
dated as of
September 28, 2001
to
the CREDIT AGREEMENT
dated as of
December 31, 1998
---------------------
================================================================================
================================================================================
