AMENDMENT TO AGREEMENT AND PLAN OF MERGER
AMENDMENT, dated as of November 29, 1998 (the 'Amendment'), to
the Agreement and Plan of Merger, dated as of July 2, 1998 (the 'Merger
Agreement'), by and between CCW Acquisition Corp., a Delaware corporation
('Acquisition'), and Centennial Cellular Corp., a Delaware corporation (the
'Company').
WHEREAS, Acquisition and the Company desire that the Merger
Agreement be amended as provided herein;
WHEREAS, all capitalized terms not otherwise defined in this
Amendment shall have the meanings assigned to them in the Merger Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, and intending to be legally bound hereby, the
parties agree as follows:
1. Section 1.2(b)(ii) of the Merger Agreement is hereby amended by
replacing '$43.50' with '$41.50.'
2. Section 4.9 of the Merger Agreement is hereby amended by deleting
such Section in its entirety and replacing it with the following:
Acquisition has received and executed commitment letters each dated
November 29, 1998 (together with the exhibits and attachments thereto,
the 'Commitment Letters,' and together with any fee letters and any
other documents executed in connection therewith and any amendments or
supplements thereto permitted under this Section 4.9 being collectively
referred to as the 'Financing Documents'), from (i) Xxxxxxx Xxxxx,
Xxxxxx Xxxxxx and Xxxxx Incorporated and certain other financial
institutions (the 'Lead Agents') pursuant to which they have committed,
subject to the terms and conditions set forth therein, to provide
Acquisition and certain existing or future subsidiaries of the Company
with up to $1.05 billion of financing under available senior secured
credit facilities and $310.0 million (plus interest escrow) in aggregate
principal amount of financing in the form of senior subordinated notes,
(ii) WCAS Capital Partners III, L.P. ('WCAS Capital'), pursuant to which
it has committed, subject to the terms and conditions set forth therein,
to purchase $180.0 million in aggregate principal amount of subordinated
notes of the Company (the 'Subordinated Notes') and (iii) Welsh, Carson,
Xxxxxxxx & Xxxxx VIII, L.P. ('WCAS') pursuant to which it has committed
to provide to Acquisition $400.0 million in equity (the 'Equity
Contribution') to consummate the Merger, pay the Merger Consideration
and pay the related transaction expenses (the financings referred to in
clauses (i), (ii) and (iii) above being collectively referred to as the
'Financing'). Such Financing is adequate to pay in full in cash at
closing the Cash Merger Consideration together with all fees and
expenses of Acquisition associated with the transactions contemplated
hereby, and to make any other payments necessary to consummate the
transactions contemplated hereby. True and complete copies of the
Commitment Letters have been furnished to the Company. Neither
Acquisition, WCAS nor their affiliates will terminate, amend, modify or
supplement in any respect the terms or conditions of the Financing or
the Financing Documents, without the prior written consent of the
Company, except to amend or modify in a manner more favorable to
Acquisition, WCAS or their affiliates the interest rates relating to the
Financing or the terms of the covenants to be in effect following
consummation of the Merger, but only to the extent that such amendment
or modification will not adversely affect the probability that such
Financing will be actually funded, or the timing thereof. Acquisition or
WCAS has fully paid any and all commitment fees or other fees required
by such Financing Documents to be paid as of the date hereof (and will
fully pay any such fees after the date hereof). The Financing Documents
are valid and in full force and effect and no event has occurred which
(with or without notice, lapse of time or both) would constitute a
default on the part of WCAS or Acquisition thereunder or would adversely
affect the probability that such Financing will actually be funded.
Acquisition will, and will cause its affiliates to, perform all of its
obligations under such Financing Documents and satisfy all conditions
precedent to the funding thereunder that are within its control and use
reasonable best efforts to satisfy all conditions precedent to the
funding thereunder that
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are not within its control. The $400.0 million equity investment of WCAS
will be used solely to acquire common stock of Acquisition at a price of
$41.50 per share.
3. Section 8.2(e) of the Merger Agreement is hereby amended by
deleting such Section in its entirety and replacing it with the following:
(e) Financing. Acquisition shall have obtained the portion of the
Financing described in clause (i) of Section 4.9 substantially on terms
contemplated by the Financing Documents relating thereto or alternative
financing on terms no less favorable than those set forth in such
Financing Documents; provided, however, that the condition of this
Section 8.2(e) shall be deemed to have been satisfied if the failure to
obtain such Financing was the result of (i) a failure by Acquisition,
WCAS or any of their affiliates to perform any covenant or obligation
contained in the Financing Documents or the inaccuracy of any
representation or warranty of Acquisition contained therein (other than
any representation or warranty made by Acquisition as to the Company's
business, operations or financial condition, other than to the extent
any such representation or warranty relates to (A) any matter that gives
effect to consummation of the Merger or the Financing, (B) any
information prepared by Acquisition, WCAS or any of their affiliates
regarding the Company's future operations or pro forma financial
information, (C) the granting, perfection, maintenance and any other
matters in respect of the security interests contemplated in the
Financing Documents, (D) any approvals or consents relating to the
Financing, (E) any information or reports given to lenders regarding any
matters described in clauses (A) through (J) of this Section 8.2(e)(i),
(F) the authorization, execution and delivery of the documentation
relating to the Financing, (G) the use of proceeds from the Financing,
(H) the solvency of the Company, (I) the corporate structure necessary
to give effect to the Financing or (J) year 2000 compliance other than
to the extent disclosed in the Company's public filings, (ii) a failure
of WCAS to provide the Equity Contribution or a failure by WCAS Capital
to purchase the Subordinated Notes, (iii) a failure of Acquisition to
accept modifications, amendments, terms or conditions as contemplated
under the terms of such Financing Documents or (iv) a breach by
Acquisition of its obligations under Section 4.9.
4. Section 9.1(e) of the Merger Agreement is hereby amended by
replacing 'January 31, 1999' with 'March 31, 1999'.
5. Acquisition undertakes to use its reasonable best efforts to cause
the Lead Agents to amend the Financing Documents relating to the portion of
the Financing described in clause (i) of Section 4.9 to extend the
termination dates thereunder until March 31, 1999, it being understood that
reasonable best efforts shall not require Acquisition to accept less
favorable terms than those contemplated by the Financing Documents.
6. The parties acknowledge and agree that, in the event the Merger
Agreement is terminated and Acquisition shall have liability thereunder for
breach, any damages shall be calculated as if the amendment to Section
1.2(b)(ii) hereto had not been made and the Cash Election Price shall be
deemed to be $43.50 for purposes of calculating damages.
7. Other than as expressly set forth herein, the Merger Agreement is
hereby ratified and shall remain unchanged in all other respects.
8. This Amendment shall be construed in accordance with and governed
by the law of the State of Delaware applicable to agreements entered into
and to be performed wholly within such State.
9. This Amendment may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Amendment shall
become effective when each party hereto shall have received counterparts
hereof signed by the other party hereto.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
be duly executed by its respective authorized officer as of the day and year
first above written.
CCW ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxxxx
____________________________________
Name:
Title:
CENTENNIAL CELLULAR CORP.
By:
____________________________________
Name:
Title:
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IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
be duly executed by its respective authorized officer as of the day and year
first above written.
CCW ACQUISITION CORP.
By:
____________________________________
Name:
Title:
CENTENNIAL CELLULAR CORP.
By: /s/ Xxxxx X. Xxxxxxxxxx
____________________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Secretary
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