Exhibit 4
AMENDMENT NO. 1 TO CREDIT AGREEMENT
This AMENDMENT NO. 1 TO THE CREDIT AGREEMENT, dated as of March 19, 2004
(this "Amendment"), among XXXXXX CELLULAR SYSTEMS, INC., an Oklahoma corporation
(the "Borrower"), XXXXXX COMMUNICATIONS CORPORATION, an Oklahoma corporation
(the "Parent"), XXXXXX OPERATING CO., L.L.C., an Oklahoma limited liability
company ("DOC"), the Lenders (as defined below) party hereto and the
Administrative Agent (as defined below), amends certain provisions of the Credit
Agreement, dated as of October 23, 2003 (as amended, the "Credit Agreement"),
among the Borrower, the Parent, DOC, the several banks and other financial
institutions or entities from time to time party thereto (the "Lenders"), XXXXXX
COMMERCIAL PAPER INC., as administrative agent for the Lenders (in such
capacity, the "Administrative Agent"), XXXXXX BROTHERS INC. and BEAR, XXXXXXX &
CO. INC., as joint lead arrangers and joint book runners, BEAR XXXXXXX CORPORATE
LENDING INC. as syndication agent and XXXXXX XXXXXXX SENIOR FUNDING, INC., as
co- arranger and documentation agent.
W I T N E S S E T H:
WHEREAS, the parties to this Amendment are party to the Credit Agreement.
Capitalized terms defined in the Credit Agreement and not otherwise defined in
this Amendment are used herein as therein defined; and
WHEREAS, the parties hereto have agreed to amend the Credit Agreement as
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. AMENDMENTS. Subject to the satisfaction of the conditions
precedent set forth in Section 2 hereof, the Credit Agreement is hereby amended
as follows:
(a) Section 7.1(a) (DOC Leverage Ratio) of the Credit Agreement is
amended by deleting the parenthetical "(or, if less, the number of full fiscal
quarters subsequent to the Closing Date, in which case the applicable amounts
used in determining such ratio shall be Annualized)".
(b) Section 7.1(b) (Parent Leverage Ratio) of the Credit Agreement is
amended by deleting the parenthetical "(or, if less, the number of full fiscal
quarters subsequent to the Closing Date, in which case the applicable amounts
used in determining such ratio shall be Annualized)".
SECTION 2. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective as of the date hereof on the first date when each of the following
conditions precedent have been satisfied:
(a) the Administrative Agent shall have received counterparts of this
Amendment executed by the Borrower, the Parent, DOC and the Required Lenders or,
as to any of the Lenders, evidence satisfactory to the Administrative Agent that
such Lender has executed this Amendment;
(b) each Grantor shall have executed a consent to this Amendment in
the form attached hereto; and
(c) the Borrower shall have paid to the Administrative Agent, for the
account of each Lender that has delivered a signature page to this Amendment
duly executed by it to the Administrative Agent or its counsel by not later than
5.00pm (New York time) on March 19, 2004, an amendment fee equal to 0.10% of
such Lender's Term Loans and Revolving Credit Commitments on such date.
SECTION 3. REPRESENTATIONS AND WARRANTIES. Each of the Borrower and DOC
hereby represents and warrants that each of the representations and warranties
made by it in the Credit Agreement, as amended hereby, and the other Loan
Documents to which it is a party or by which it is bound, shall be true and
correct in all material respects on and as of the date hereof (other than
representations and warranties in any such Loan Document which expressly speak
as of a specific date, which shall have been true and correct in all material
respects as of such specific date) and no Default or Event of Default has
occurred and is continuing as of the date hereof.
SECTION 4. EXECUTION IN COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are attached to the same document.
Delivery of an executed counterpart by telecopy shall be effective as delivery
of a manually executed counterpart of this Amendment.
SECTION 5. CONSTRUCTION WITH THE LOAN DOCUMENTS. On and after satisfaction
of the conditions set forth in Section 2 hereof, each reference in the Credit
Agreement to "this Agreement," "hereunder," "hereof," "herein," or words of like
import, and each reference in the other Loan Documents to the Credit Agreement,
shall mean and be a reference to the Credit Agreement as amended hereby, and
this Amendment and the Credit Agreement shall be read together and construed as
a single instrument. In addition, the misspelling of "Xxxxxx Commercial Paper
Inc." as Administrative Agent, Swingline Lender and a Lender on the signature
page to the Credit Agreement shall be deemed corrected by this Amendment. The
table of contents, signature pages and list of Exhibits and Schedules of the
Credit Agreement shall be modified to reflect the changes made in this Amendment
as of the Amendment Effective Date. Except as expressly amended hereby or
specifically waived above, all of the terms and provisions of the Credit
Agreement and all other Loan Documents are and shall remain in full force and
effect and are hereby ratified and confirmed. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of the Lenders, the Issuing
Lender, the Arrangers, the Administrative Agent or any other Agent under any of
the Loan Documents, nor constitute a waiver or amendment of any other provision
of any of the Loan Documents or for any purpose except as expressly set forth
herein. This Amendment is a Loan Document.
SECTION 6. GOVERNING LAW. This Amendment is governed by the law of the
State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
XXXXXX CELLULAR SYSTEMS, INC.,
as Borrower
By: XXXXX X. XXXXXXXXXXX
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
XXXXXX OPERATING CO., L.L.C.
By: XXXXX X. XXXXXXXXXXX
Name: Xxxxx X. Xxxxxxxxxxx
Title: Co-Manager
XXXXXX COMMUNICATIONS CORPORATION
By: XXXXX X. XXXXXXXXXXX
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
XXXXXX COMMERCIAL PAPER INC.,
as Administrative Agent, Swingline Lender
and a Lender
By: XXXXX X. XXXXXX
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
CONSENT OF GRANTORS
Dated as of March 19, 2004
Each of the undersigned, as a Grantor under the Guarantee and Collateral
Agreement dated as of October 23, 2003 (the "Guarantee and Collateral
Agreement"), in favor of Xxxxxx Commercial Paper Inc., as Administrative Agent
under the Credit Agreement referred to in the foregoing Amendment, hereby
consents to such Amendment and hereby confirms and agrees that notwithstanding
the effectiveness of such Amendment, the Guarantee and Collateral Agreement is,
and shall continue to be, in full force and effect and is hereby ratified and
confirmed in all respects, except that, on and after the effectiveness of such
Amendment, each reference in the Guarantee and Collateral Agreement to the
"Credit Agreement", "thereunder", "thereof" or words of like import shall mean
and be a reference to the Credit Agreement, as amended by such Amendment.
XXXXXX CELLULAR SYSTEMS, INC.,
as Borrower and a Subsidiary Grantor
By: XXXXX X. XXXXXXXXXXX
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
XXXXXX OPERATING CO., L.L.C.,
as a Guarantor and Subsidiary Grantor
By: XXXXX X. XXXXXXXXXXX
Name: Xxxxx X. Xxxxxxxxxxx
Title: Co-manager
XXXXXX COMMUNICATIONS CORPORATION,
as Parent and a Grantor
By: XXXXX X. XXXXXXXXXXX
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
DOC LEASE CO., LLC,
as a Guarantor and Subsidiary Grantor
By: XXXXX X. XXXXXXXXXXX
Name: Xxxxx X. Xxxxxxxxxxx
Title: Co-Manager
MICHIGAN RSA SUB LLC,
as a Guarantor and Subsidiary Grantor
By: XXXXX X. XXXXXXXXXXX
Name: Xxxxx X. Xxxxxxxxxxx
Title: Co-Manager
