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FIRST AMENDMENT TO
THIRD AMENDED AND RESTATED LOAN AGREEMENT
THIS FIRST AMENDMENT TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
dated as of May 31, 1996 (the "Amendment") by and among XXXXXX WIRELESS, INC.,
a Delaware corporation (the "Borrower"); PNC BANK, NATIONAL ASSOCIATION, THE
TORONTO-DOMINION BANK, NATIONSBANK OF TEXAS, N.A., CORESTATES BANK, N.A., FLEET
BANK, N.A. (FORMERLY KNOWN AS NATWEST BANK N.A.), FIRST NATIONAL BANK OF
MARYLAND, THE FIRST NATIONAL BANK OF BOSTON, CIBC INC., FIRST UNION NATIONAL
BANK OF NORTH CAROLINA, ROYAL BANK OF CANADA, FLEET NATIONAL BANK (FORMERLY
KNOWN AS SHAWMUT BANK CONNECTICUT, N.A.), BANQUE NATIONALE DE PARIS, UNION
BANK, BANK OF HAWAII, XXXXXX BANK LTD, BANK OF MONTREAL, CHICAGO BRANCH,
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION EUROPEENNE, FIRST HAWAIIAN BANK,
SOCIETE GENERALE, THE BANK OF CALIFORNIA, N.A., SOCIETY NATIONAL BANK and
CREDIT LYONNAIS CAYMAN ISLAND BRANCH (collectively, and together with any
financial institution which subsequently becomes a 'Bank' under the Loan
Agreement, as such term is defined therein, the "Banks"); CORESTATES BANK,
N.A., NATIONSBANK OF TEXAS, N.A. AND FLEET BANK, N.A. (FORMERLY KNOWN AS
NATWEST BANK N.A.), as co-agents (collectively, in such capacity, the
"Co-Agents"); THE TORONTO-DOMINION BANK, as documentation agent (in such
capacity, the "Documentation Agent"); PNC BANK, NATIONAL ASSOCIATION, as
administrative agent (in such capacity, the Administrative Agent); and TORONTO
DOMINION (TEXAS), INC., as collateral agent for the Administrative Agent, the
Documentation Agent, the Co-Agents and the Banks (the "Collateral Agent," and
together with the Administrative Agent, the Documentation Agent and the
Co-Agents, the "Agents"),
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks and the Agents are parties to that
certain Third Amended and Restated Loan Agreement dated as of December 1, 1995
(as hereafter amended, modified and supplemented from time to time, the "Loan
Agreement"); and
WHEREAS, the Borrower wishes to make certain loans to Xxxxxx Wireless
Holdings, Inc., a Delaware corporation ("Holdings") and a Subsidiary (as that
term is defined in the Loan Agreement) of the Borrower; and
WHEREAS, due to changes in anticipated assumed revenues resulting from
recent acquisitions, the Borrower has requested that the Banks amend certain
provisions of the Loan Agreement; and
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WHEREAS, the Banks are willing to consent to the loans to Holdings and
to amend Sections 7.8 and 7.13 of the Loan Agreement all as more particularly
set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree that all capitalized terms used herein shall have the
meanings ascribed thereto in the Loan Agreement and further agree as follows:
1. Amendment to Article 5. Section 5.10 of the Agreement, Use of
Proceeds, is hereby amended by deleting Subsections 5(b) and (c) thereof in
their entireties and by substituting in lieu thereof the following:
"(b) to pay the Panama City Obligations, in an aggregate
amount not to exceed the principal amount of such obligations on the
Agreement Date together with accrued interest thereon through the date
of such payments; provided, however, that the sum of (i) the aggregate
amount of proceeds used for the purpose herein, plus (ii) the amount
used for the purpose set forth in Section 5.10(c) hereof shall not
exceed $10,000,000;"
"(c) to pay Additional Consideration (as defined in the
Panama City Purchase Agreement) to Brien X. X'Xxxxx pursuant to
Section 2.2.3 of the Panama City Purchase Agreement; provided,
however, that no such payment shall be made prior to July 25, 1996
unless the Appraised Fair Market Per Pop Value (as defined in the
Panama City Purchase Agreement) does not exceed $175 and, provided
further, however that the sum of (i) the aggregate amount of proceeds
used for the purpose contained herein, plus (ii) the amount used for
the purpose set forth in Section 5.10(b) hereof shall not exceed
$10,000,000;"
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2. Amendments to Article 7.
(a) Section 7.8 of the Loan Agreement, Minimum Annualized
Operating Cash Flow, is hereby amended by deleting the table contained therein
in its entirety and by substituting the following table in lieu thereof:
"Quarter Ending Amount
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March 31, 1996 $52,000,000
June 30, 1996 $58,000,000
September 30, 1996 $64,000,000
December 31, 1996 $69,000,000
March 31, 1997 $74,000,000
June 30, 1997 $79,000,000
September 30, 1997 $84,500,000
December 31, 1997 $86,000,000"
(b) Section 7.13, of the Loan Agreement, Limitation on
Capital Expenditures, is hereby amended by deleting the existing table therein
in its entirety and by substituting the following table in lieu thereof:
"Period Dollar Amount
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From January 1, 1996 $41,000,000
through December 31, 1996
From January 1, 1997 $35,000,000
through December 31, 1997
From January 1, 1998 $30,000,000
through December 31, 1998
From January 1, 1999 $25,000,000"
through December 31, 1999
and each calendar year period
thereafter
3. Consents.
(a) Notwithstanding anything to the contrary in the Loan
Agreement, the Majority Banks hereby consent to the Borrower's making loans to
Holdings, provided that (i) such loans shall at all times be evidenced by a
promissory note in form and substance satisfactory to the Collateral Agent (the
"Holdings Note"); (ii) the Borrower shall promptly deliver the Holdings Note to
the Collateral Agent, duly endorsed to the Collateral Agent (in form
satisfactory to the Collateral Agent) as Collateral for the Obligations
pursuant to the Borrower Security Agreement; and (iii) the Borrower shall not
use the outstanding principal amount
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of the Holdings Note nor the interest accrued thereon when calculating the
Borrower's compliance with Sections 7.8, 7.9, 7.10, 7.11 and 7.12 of the Loan
Agreement.
(b) Notwithstanding anything to the contrary in the Loan Agreement
(but otherwise subject to the terms and conditions of the Consent of the Banks
dated February 22, 1996), the Majority Banks hereby consent to the Acquisition
of Georgia RSA #6 by Macon Cellular Telephone Systems Limited Partnership
("Macon") and Columbus Cellular Telephone Company ("Columbus"), two
non-wholly-owned Subsidiaries of the Borrower, with the proceeds of
intercompany loans by Holdings to each of Macon and Columbus; provided,
however, that (i) such loans are secured by the Georgia RSA #6 assets acquired
by such entities (which Lien is expressly consented to by the Majority Banks);
(ii) such loans shall at all times be evidenced by promissory notes of Macon
and Columbus payable to Holdings; (iii) the Borrower shall promptly deliver the
foregoing to the Collateral Agent, duly endorsed to the Collateral Agent,
together with appropriate assignments of the underlying collateral for such
notes (all in form satisfactory to the Collateral Agent) as Collateral for the
Obligations pursuant to the Borrower Security Agreement; and (iv) the Borrower
shall not use the outstanding principal amount of such notes nor the interest
accrued thereon when calculating the Borrower's compliance with Sections 7.8,
7.9, 7.10, 7.11 and 7.12 of the Loan Agreement.
4. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same
instrument.
5. Governing Law. This Amendment shall be construed in
accordance with and governed by the laws of the State of New York.
6. Severability. Any provision of this Amendment which is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
7. No Other Amendment or Waiver. Except for the amendments set
forth above, the text of the Loan Agreement and all other Loan Documents shall
remain unchanged and in full force and effect. No waiver by the Collateral
Agent, the other Agents or the Banks under the Loan Agreement or any other Loan
Document is granted or intended except as expressly set forth herein, and the
Collateral Agent, the other Agents and the Banks expressly reserve the right to
require strict compliance in all other
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respects (whether or not in connection with any Requests for Advance). Except
as set forth herein, the amendments agreed to herein shall not constitute a
modification of the Loan Agreement or any of the other Loan Documents, or a
course of dealing with the Collateral Agent, the other Agents and the Banks, or
any of them, at variance with the Loan Agreement or any of the other Loan
Documents, such as to require further notice by the Collateral Agent, the other
Agents, the Banks, the Majority Banks, or any of them, to require strict
compliance with the terms of the Loan Agreement and the other Loan Documents in
the future.
8. Representations and Warranties. The Borrower hereby
represents and warrants in favor of the Agents and the Banks as follows:
(a) The Borrower has the corporate power and authority (i) to
enter into this Amendment and (ii) to do all other acts and things as are
required or contemplated hereunder to be done, observed and performed by it;
(b) This Amendment has been duly authorized, validly executed and
delivered by one or more Authorized Signatories of the Borrower and constitutes
the legal, valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its terms, subject, as to enforcement of
remedies, to the following qualifications: (i) an order of specific performance
and an injunction are discretionary remedies and, in particular, may not be
available where damages are considered an adequate remedy at law, and (ii)
enforcement may be limited by bankruptcy, insolvency, liquidation,
reorganization, reconstruction and other similar laws affecting enforcement of
creditors' rights generally (insofar as any such law relates to the bankruptcy,
insolvency or similar event of the Borrower);
(c) Each of the representations and warranties set forth in
Section 4.1 of the Loan Agreement are true and correct as of the date hereof;
and
(d) There does not exist on the date hereof any Default or Event
of Default.
9. Loan Documents. This document shall be deemed to be a Loan
Document for all purposes.
10. Effectiveness. Upon receipt by the Administrative Agent of
executed signature pages of this Amendment from the Borrower and the Majority
Banks, this Amendment shall automatically be effective.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment or
caused it to be executed by their duly authorized officers, all as of the day
and year first above written.
BORROWER: XXXXXX WIRELESS, INC., a Delaware corporation
By: /s/ M. XXXXX XXXXXXXX
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Its: Vice-President
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ADMINISTRATIVE AGENT: PNC BANK, NATIONAL ASSOCIATION
By: /s/ XXXXXX X. XXXXXX
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Its: Vice-President
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DOCUMENTATION AGENT: THE TORONTO-DOMINION BANK
By: /s/ XXXXX XXXXXX
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Its: MGR. SYNDICATIONS & CREDIT ADMIN
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COLLATERAL AGENT: TORONTO DOMINION (TEXAS), INC.
By: /s/ XXXXX XXXXXX
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Its: MGR. SYNDICATIONS & CREDIT ADMIN
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BANKS: PNC BANK, NATIONAL ASSOCIATION
By: /s/ XXXXXX X. XXXXXX
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Its: Vice-President
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FIRST AMENDMENT TO LOAN AGREEMENT
XXXXXX WIRELESS, INC.
Signature Page 1
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THE TORONTO-DOMINION BANK
By: /s/ XXXXX XXXXXX
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Its: MGR. SYNDICATIONS & CREDIT ADMIN
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NATIONSBANK OF TEXAS, N.A.
By: /s/ XXXXXXXX XXXXXX
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Its: Vice-President
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CORESTATES BANK, N.A.
By: [SIG]
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Its: VP
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FLEET BANK, N.A. (formerly known as NatWest Bank N.A.)
By: [SIG]
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Its: Senior Vice-President
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FLEET NATIONAL BANK (formerly known as Shawmut Bank Connecticut, N.A.)
By: [SIG]
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Its: Officer
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FIRST NATIONAL BANK OF MARYLAND
By: [SIG]
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Its: Senior Vice-President
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FIRST AMENDMENT TO LOAN AGREEMENT
XXXXXX WIRELESS, INC.
Signature Page 2
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THE FIRST NATIONAL BANK OF BOSTON
By: /s/ M.E. MEDUSKI
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Its: Director
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CIBC INC.
By: /s/ XXXXXX XXXXXX
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Its: Authorized Signatory
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FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By: /s/ XXXX XXXXXX
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Its: Senior Vice-President
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ROYAL BANK OF CANADA
By: /s/ XXXXXX XXXXX
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Its: Manager
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BANQUE NATIONALE DE PARIS
By: /s/ SERGE DESRYAUD /s/ XXXXXX XXXXXX
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Its: V.P. / Team Leader Assistant Treasurer
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UNION BANK
By: /s/ J. XXXXX XXXXXXX
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Its: ASST. VICE-PRESIDENT
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FIRST AMENDMENT TO LOAN AGREEMENT
XXXXXX WIRELESS, INC.
Signature Page 3
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BANK OF HAWAII
By: /s/ XXXXXXXXX XXXXXXX
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Its: VICE PRESIDENT
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XXXXXX BANK LTD
By: /s/ XXXXXXX X. XXXXXXXXX [SIG]
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Its: Vice President Vice President
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BANK OF MONTREAL, CHICAGO BRANCH
By: /s/ XXXXXXX XXXXXXXX
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Its: DIRECTOR
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COMPAGNIE FINANCIERE DE CIC ET DE L'UNION EUROPEENNE
By: /s/ XXXXXX XXXXXX /s/ XXXXX X'XXXXX
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Its: Vice Presidents
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FIRST HAWAIIAN BANK
By: /s/ XXXXXX X. XXXXX
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Its: Assistant Vice President
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SOCIETE GENERALE
By: /s/ XXXX XXXXX
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Its: VICE PRESIDET
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FIRST AMENDMENT TO LOAN AGREEMENT
XXXXXX WIRELESS, INC.
Signature Page 4
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XXXXX XXXX XX XXXXXXXXXX, N.A., formerly known as
THE BANK OF CALIFORNIA, N.A.
By: /s/ XXXXXX X. XXXXX
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Its: VICE PRESIDENT
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SOCIETY NATIONAL BANK
By: [SIG]
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Its: Assitant Vice President
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CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: /s/ XXXX XXXXXXXXX
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Its: Authorized Signature
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FIRST AMENDMENT TO LOAN AGREEMENT
XXXXXX WIRELESS, INC.
Signature Page 5
