EXHIBIT 10.1.5
EXECUTION COPY
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of June 19, 2003 (this "Amendment"), to the
credit agreement dated as of January 7, 1999, as amended and restated as of
February 29, 2000, as amended by Amendment No. 1 dated as of July 28, 2000,
Amendment No. 2 dated as of August 3, 2001 and Amendment No. 3 dated as of
September 5, 2001 (as so amended, as hereby amended and as otherwise amended,
restated, modified or supplemented from time to time, the "Credit Agreement"),
among CENTENNIAL CELLULAR OPERATING CO. LLC, as Borrower; CENTENNIAL PUERTO RICO
OPERATIONS CORP., as PR Borrower; CENTENNIAL COMMUNICATIONS CORP. (formerly
known as Centennial Cellular Corp.), as a Guarantor ("Parent"); the other
Guarantors party thereto; each of the lenders from time to time party thereto
(individually, a "Lender" and, collectively, the "Lenders"); XX XXXXXX XXXXX
BANK (formerly known as The Chase Manhattan Bank), as co-lead arranger and
co-syndication agent (in such capacity, together with its successors in such
capacity, "XX Xxxxxx Xxxxx"); XXXXXXX XXXXX & CO. and XXXXXXX LYNCH, PIERCE,
XXXXXX & XXXXX INCORPORATED, as co-lead arrangers and co-syndication agents (in
such capacity, together with their successors in such capacity, and XX Xxxxxx
Chase, the "Co-Syndication Agents"); BANK OF AMERICA, N.A., as arranger and
administrative agent (in such capacity, together with its successors in such
capacity, the "Administrative Agent", and together with XX Xxxxxx Xxxxx, the
"Amendment Arrangers"); and THE BANK OF NOVA SCOTIA, as documentation agent (in
such capacity, together with its successors in such capacity, the "Documentation
Agent"). Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Credit Agreement, as amended hereby.
INTRODUCTION
(A) Borrower and PR Borrower have requested, and the Majority Lenders
and the Administrative Agent have agreed, to amend the Credit Agreement as
hereinafter set forth.
(B) From and after the Effective Date (as hereinafter defined) of this
Amendment, the Credit Agreement shall be amended, but only upon and subject to
the terms and conditions set forth herein.
(C) In consideration of the mutual agreements contained herein and
other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
AMENDMENTS TO THE CREDIT AGREEMENT
Section 1.1. Amendments.
(a) Section 1.01 of the Credit Agreement is hereby amended by inserting
the following new definitions therein in correct alphabetical order:
"Amendment No. 4" shall mean Amendment No. 4 dated as of June
19, 2003 to this Agreement.
"Amendment No. 4 Effective Date" shall mean the Effective
Date, as such term is defined in Amendment No. 4.
"Cash Balance" shall mean, at any time, the aggregate amount
of all cash and Permitted Investments of Borrower and its
Subsidiaries at such time, but only to the extent that such
cash and Permitted Investments constitute Pledged Collateral
under the Security Agreement.
"Senior Exchange Indenture" shall mean the indenture pursuant
to which the Senior Exchange Notes are issued.
"Senior Exchange Notes" shall have the meaning given to such
term in the definition of "Senior Notes" set forth in this
Section 1.01.
"Senior Exchange Offer" shall have the meaning given to such
term in the definition of "Senior Notes" set forth in this
Section 1.01.
"Senior Notes" shall mean the 10?% Senior Notes due 2013 of
Borrower and Parent in an aggregate principal amount of at
least $300 million and no more than $600 million issued in
accordance with the terms and conditions set forth in the
Senior Notes Offering Circular, including the senior notes
issued pursuant to a registered exchange offer (the "Senior
Exchange Offer") therefor made pursuant to the registration
rights agreement entered into in connection with the issuance
thereof on the date of issuance thereof (the "Senior Exchange
Notes").
"Senior Notes Documents" shall mean the Senior Notes Indenture
and all other documents relating to the issuance of the Senior
Notes.
"Senior Notes Indenture" shall mean the Indenture dated June
20, 2003 pursuant to which the Senior Notes were (and the
Senior Exchange Notes will be) issued.
"Senior Notes Offering Circular" shall mean the confidential
offering circular, dated as of June 16, 2003, relating to the
offering of the Senior Notes.
"Senior Notes Proceeds" shall mean the aggregate gross
proceeds resulting from all issuances of the Senior Notes.
(b) The following definitions found in Section 1.01 of the Credit
Agreement are hereby amended to read in their entirety as follows:
"Additional Senior Subordinated Notes" shall mean any senior
subordinated notes of Borrower or PR Borrower or any senior
notes of any direct or indirect parent of Borrower or
Centennial Caribbean Holding Corp. for gross proceeds of up to
$300.0 million (which $300.0 million shall be reduced by the
amount of Senior Notes Proceeds), including without
duplication the senior subordinated notes or senior notes (as
the case may be) issued pursuant to a registered exchange
offer therefor, which notes shall in any event (i) have
covenants, events of default, redemption and repurchase
provisions and modification provisions in the aggregate not
materially less favorable to the Companies and the Lenders
than the covenants, events of default, redemption and
repurchase provisions and modification provisions of the
Senior Subordinated Notes, as reasonably determined by
Borrower and PR Borrower, (ii) mature after the Final Maturity
Date (or,
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if later, the final maturity date of any Incremental
Facility), (iii) be unsecured, and (iv) in the case of any
such notes issued by Borrower or PR Borrower have
subordination terms substantially similar to the Senior
Subordinated Notes.
"Financial Maintenance Covenants" shall mean the covenants set
forth in Section 9.11(a) through (d).
"Operating Cash Flow" shall mean, for any period:
(a) for all purposes other than the calculation of the Total
Leverage Ratio in connection with determining the Applicable
Margin, the sum (without duplication) of the amounts for such
period of Adjusted Net Income, plus, in each case to the
extent deducted in calculating such Adjusted Net Income,
(x)(1) income tax expense, (2) withholding tax expense
incurred in connection with cross border transactions, (3)
consolidated interest expense (including in respect of the
Senior Subordinated Notes and (if issued by Borrower or any
Subsidiary of Borrower) the Additional Senior Subordinated
Notes), (4) depreciation and amortization expense, (5) other
non-cash items of expense, other than to the extent requiring
an accrual or reserve for future cash expenses, (6) monitoring
and management fees actually paid to any Permitted Holder as
permitted by Section 9.15 all as determined on a consolidated
basis for Borrower and its Consolidated Subsidiaries, and (7)
all tax expense, interest expense (including accretion of
original issue discount), restructuring fees and other charges
arising in connection with the Senior Notes (at closing and
any time during their term); provided, that the cost of
handsets sold to post-paid customers in Puerto Rico or
elsewhere shall not be added back to Adjusted Net Income
pursuant to any of the foregoing clauses, and minus, to the
extent not otherwise deducted in calculating such Adjusted Net
Income, (y)(1) cash dividends or other distributions paid by
Borrower to Parent pursuant to Section 9.10(c)(i), (2)
distributions received from all Minority Interests during such
period to the extent included in calculating such Adjusted Net
Income, and (3) capital expenditures for wireless handsets
purchased by the Obligors and rented to subscribers for rental
purposes in Puerto Rico or elsewhere; and
(b) for any calculation of the Total Leverage Ratio in
connection with determining the Applicable Margin, the sum
(without duplication) of the amounts for such period of
Adjusted Net Income, plus, in each case to the extent deducted
in calculating such Adjusted Net Income, (1) income tax
expense, (2) withholding tax expense incurred in connection
with cross border transactions, (3) consolidated interest
expense (including in respect of the Senior Subordinated Notes
and (if issued by Borrower or any Subsidiary of Borrower) the
Additional Senior Subordinated Notes), (4) depreciation and
amortization expense, (5) other non-cash items of expense,
other than to the extent requiring an accrual or reserve for
future cash expenses, and (6) monitoring and management fees
actually paid to any Permitted Holder as permitted by Section
9.15 all as determined on a consolidated basis for Borrower
and its Consolidated Subsidiaries; and minus (1) cash
dividends or other distributions paid by Borrower to Parent
pursuant to Section 9.10(c)(i) and (2) distributions received
from all Minority Interests during such period to the extent
included in calculating such Adjusted Net Income.
Operating Cash Flow shall be calculated on a pro forma basis
and otherwise in accordance with GAAP to give effect to any
Acquisition or Disposition of any System consummated during
the fiscal period of Borrower ended on such Test Date as if
each such Acquisition had been effected on the first day of
such period and as if each such
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Disposition had been consummated on the day prior to the first
day of such period; provided, that any such pro forma
calculation may include adjustments for the pro forma effect
of (a) any cost savings accounted for on an annualized basis
as a result of an Acquisition by Borrower or any of its
Consolidated Subsidiaries which, in the good faith judgment of
Borrower (as evidenced by an Officers' Certificate delivered
to Administrative Agent), will be eliminated or realized
within one year after the date of such transaction (provided
that any such cost savings are calculated in accordance with
Regulation S-X under the Securities Act of 1933, as amended)
or (b) any direct quantifiable savings from the conversion of
roaming expense which Borrower will obtain within one year of
the transaction in the good faith judgment of Borrower from
the Acquisition of a third party which prior to such
Acquisition had a contract with Borrower or any of its
Consolidated Subsidiaries for roaming services. For purposes
of the foregoing sentence, when calculating Operating Cash
Flow for any Person or business, Operating Cash Flow and all
defined terms used herein (or in any such defined term) shall
be deemed to refer to such Person or business.
(c) The definition of "Change of Control" is hereby amended by
inserting a comma followed by the words "Senior Notes Documents" immediately
after the phrase "Senior Subordinated Notes Financing Documents."
(d) The definition of "Excess Cash Flow" is hereby amended by inserting
the words "Senior Notes" followed by a comma immediately after the phrase
"Senior Subordinated Notes."
(e) The following definitions found in Section 1.01 of the Credit
Agreement are hereby deleted in their entirety:
"Fixed Charge Coverage Ratio"
"Fixed Charges"
"Interest Coverage Ratio"
"Senior Debt"
"Senior Leverage Ratio"
(f) Section 1.02 of the Credit Agreement is hereby amended by adding at
the end of the first sentence thereof:
"; provided that, if Borrower notifies the Administrative
Agent that Borrower desires to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof
(or if the Administrative Agent notifies Borrower that it desires to
eliminate the effect of any such change), regardless of whether any
such notice is given before or after such change in GAAP or in the
application thereof, then the Total Leverage Ratio, the Pro Forma Debt
Service Coverage Ratio, Operating Cash Flow and all components thereof
shall be determined on the bases of GAAP as in effect and applied
before such change shall have become effective."
(g) Section 2.10(a)(ii) of the Credit Agreement is hereby amended to
read in its entirety as follows:
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"(ii) Equity Issuance. In an aggregate principal amount equal
to 50% of the Net Available Proceeds of all Equity Issuances after the
Effectiveness Date, other than (a) the first $125.0 million of Net
Available Proceeds received from Equity Issuances after the
Effectiveness Date and (b) the Net Available Proceeds received from any
Equity Issuance to the extent that it is effected to maintain
compliance, or cure non-compliance in accordance with Section 10, with
the Financial Maintenance Covenant in Section 9.11(d) hereof (provided,
that the amount of such Net Available Proceeds resulting from such
Equity Issuance that may be excluded from this subsection (ii) pursuant
to this clause (b) shall in no event exceed by more than $5.0 million
the minimum amount required at the time of issuance to maintain
compliance, or cure non-compliance in accordance with Section 10, with
the Financial Maintenance Covenant set forth in Section 9.11(d))."
(h) Section 3.02(a) of the Credit Agreement is hereby amended by adding
the phrase "plus an additional 0.25%" after the phrase "plus the Applicable
Margin" in clauses 3.02(a)(i) and 3.02(a)(ii).
(i) Section 7.01 (iv) of the Credit Agreement is hereby amended adding
the phrase ", Senior Notes Documents" after the phrase "Parent Financing
Documents" appearing in the third line thereof.
(j) Section 8 of the Credit Agreement is hereby amended by adding the
following new Section at the end thereof:
"8.25. Tax Shelter Regulations. Except to the extent Borrower or PR
Borrower has otherwise notified the Administrative Agent in writing,
Borrower or PR Borrower, as applicable, does not intend to treat the
Loans and/or Letters of Credit and the related transactions hereunder
as being a "reportable transaction" (within the meaning of Treasury
Regulation Section 1.6011-4)."
(k) Section 9.01(a) of the Credit Agreement is hereby amended by (i)
replacing the phrase "each of the first three quarterly fiscal periods of each
fiscal year beginning with the fiscal quarter ending November 30, 1998" with
"each quarterly fiscal period of each fiscal year" and (ii) adding, after the
phrase "year-end audit adjustments" and before the close parentheses at the end
thereof, the phrase "and absence of footnotes."
(l) Section 9.01 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of clause (p) thereof, (ii) redesignating
clause (q) thereof as clause (r) and (iii) adding, immediately following clause
(p) thereof, a new clause (q) to read in its entirety as follows:
"(q) Monthly Report. Within 15 days after the end of each
calendar month, a summary report setting forth a summary of the
consolidated operations and financial performance of the Borrower and
its Subsidiaries for such month; and"
(m) Section 9.06 of the Credit Agreement is hereby amended (i) by
deleting the word "and" at the end of clause (q) thereof, (ii) replacing the
period at the end of clause (r) thereof with "; and" and (iii) adding,
immediately after clause (r) thereof, a new clause (s) to read in its entirety
as follows:
"(s) Borrower or any Subsidiary may effect any Disposition
(other than any Disposition of Equity Interests in Borrower (unless
such Equity Interests are acquired by Parent and Parent duly pledges
such Equity Interests under the Security Agreement) or, except as
permitted by Section 9.06(q), PR Borrower or any direct parent thereof)
for fair market value; provided, that (1) the aggregate book value of
all assets disposed of pursuant to Dispositions permitted under this
subsection (s) shall not exceed in the aggregate $250.0 million, (2)
not less than 80% of the consideration received in respect of such
Disposition is paid in cash, (3) 100% of
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the Net Available Proceeds therefrom are applied within one (1)
Business Day of receipt thereof to prepay Loans in accordance with
Section 2.10(b) and (4) the Obligors shall grant to the Administrative
Agent, for the ratable benefit of the Lenders, a first priority
security interest in any non-cash consideration received in respect of
such Disposition, which non-cash consideration shall be deemed Pledged
Collateral in accordance with the Security Agreement."
(n) The second to last paragraph of Section 9.07 of the Credit
Agreement is hereby amended by adding the phrase "the Senior Notes Documents,"
immediately after the phrase "Additional Senior Subordinated Notes Documents,".
(o) Section 9.08(i) of the Credit Agreement is hereby amended by
replacing the reference therein to "$30.0 million" with "$75.0 million".
(p) Section 9.08(o) of the Credit Agreement is hereby amended by
replacing the phrase "$20.0 million at any time, or with the prior approval of
the terms and conditions thereof by the Administrative Agent and the
Co-Syndication Agents, $50.0 million at any time" with "$50.0 million at any
time (provided that 50% of the Net Available Proceeds from such transactions
exceeding, in the aggregate, $20.0 million shall be applied to prepay Term
Loans, pro rata, in accordance with Section 2.10(b))".
(q) Section 9.08 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of Section 9.08(p), (ii) replacing the period
at the end of Section 9.08(q) with a semicolon and (iii) adding new subsections
9.08(r) and 9.08(s), which shall read in their entirety as follows:
"(r) the Senior Notes and guarantees of the Senior Notes; and
(s) Subordinated Debt in an amount not to exceed (i) the
minimum amount necessary at the time of issuance in order to maintain
compliance, or cure non-compliance in accordance with Section 10, with
the Financial Maintenance Covenant in Section 9.11(d); plus (ii) $5.0
million; provided, that such Subordinated Debt shall include
subordination terms acceptable to the Administrative Agent."
(r) The final paragraph of Section 9.08 is hereby amended by replacing
the reference therein to "$30.0 million" with "$60.0 million".
(s) Section 9.11 of the Credit Agreement is hereby amended to read in
its entirety as follows:
"(a) Maximum Total Leverage Ratio. The Total Leverage Ratio
shall not, as of any Test Date during any period set forth in the table
below, exceed the ratio set forth opposite such period in the table
below:
PERIOD RATIO
------ -----
3/1/03 - 5/31/03....................................... 7.85
6/1/03 - 8/31/03....................................... 7.65
9/1/03 - 11/30/03...................................... 7.25
12/1/03 - 2/28/04...................................... 7.15
3/1/04 - 5/31/04....................................... 7.00
6/1/04 - 8/31/04....................................... 6.50
9/1/04 - 11/30/04...................................... 6.50
12/1/04 - 2/28/05...................................... 6.15
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PERIOD RATIO
------ -----
3/1/05 - 5/31/05....................................... 6.00
6/1/05 - 8/31/05....................................... 5.75
9/1/05 - 11/30/05...................................... 5.50
12/1/05 - 2/28/06...................................... 5.25
3/1/06 - 5/31/06....................................... 4.25
6/1/06 - 8/31/06....................................... 4.00
9/1/06 - 11/30/06...................................... 3.50
12/1/06 - 2/28/07...................................... 3.45
3/1/07 and thereafter.................................. 2.50
(b) Minimum Pro Forma Debt Service Coverage Ratio. The Pro Forma Debt
Service Coverage Ratio shall not, as of any Test Date during any period set
forth in the table below, be less than the ratio set forth opposite such period
in the table below:
PERIOD RATIO
------ -----
3/1/03 - 5/31/03....................................... 1.00
6/1/03 - 8/31/03....................................... 1.00
9/1/03 - 11/30/03...................................... 1.00
12/1/03 - 2/28/04...................................... 1.00
3/1/04 - 5/31/04....................................... 1.00
6/1/04 - 8/31/04....................................... 1.00
9/1/04 - 11/30/04...................................... 1.00
12/1/04 - 2/28/05...................................... 1.00
3/1/05 - 5/31/05....................................... 1.00
6/1/05 - 8/31/05....................................... 1.00
9/1/05 - 11/30/05...................................... 1.00
12/1/05 and thereafter................................. 1.15
(c) Minimum Operating Cash Flow. The Operating Cash Flow of Borrower
and its Consolidated Subsidiaries shall not, for the four fiscal quarters ending
on any Test Date during any period set forth in the table below, be less than
the amount set forth opposite such period in the table below:
PERIOD AMOUNT
------ ------
3/1/03 - 5/31/03....................................... $200.0 million
6/1/03 - 8/31/03....................................... $200.0 million
9/1/03 - 11/30/03...................................... $205.0 million
12/1/03 - 2/28/04...................................... $210.0 million
3/1/04 - 5/31/04....................................... $215.0 million
6/1/04 - 8/31/04....................................... $220.0 million
9/1/04 - 11/30/04...................................... $225.0 million
12/1/04 - 2/28/05...................................... $230.0 million
3/1/05 - 5/31/05....................................... $235.0 million
6/1/05 - 8/31/05....................................... $245.0 million
9/1/05 - 11/30/05...................................... $250.0 million
12/1/05 - 2/28/06...................................... $270.0 million
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PERIOD AMOUNT
------ ------
3/1/06 - 5/31/06....................................... $310.0 million
6/1/06 - 8/31/06....................................... $320.0 million
9/1/06 - 11/30/06...................................... $325.0 million
12/1/06 - 2/28/07...................................... $330.0 million
3/1/07 and thereafter.................................. $340.0 million
In the case of a Disposition, the levels in the table above
for periods after the sale shall be automatically reduced by an amount
equal to the operating cash flow attributable to the assets sold in the
most recently completed twelve (12) month period prior to the date upon
which the calculation specified in the following sentence is delivered
pursuant to clause (i) of such sentence. For purposes of the foregoing,
"operating cash flow" shall be calculated in a manner consistent with
the definition of "Operating Cash Flow" in this Agreement, which
calculation (i) shall be delivered to the Administrative Agent at least
fifteen (15) days prior to the closing of such Disposition, (ii) to the
extent available, shall be based on historical accounting records of
Borrower and its Consolidated Subsidiaries for the relevant calculation
period and (iii) shall be subject to disapproval by the Administrative
Agent for ten (10) days after it is delivered to the Administrative
Agent. In case of disapproval, the Administrative Agent and Borrower
shall negotiate in good faith in order to agree on an acceptable
calculation and resultant covenant levels within twenty (20) days. If
the Administrative Agent and Borrower shall not be able to agree on an
acceptable calculation and resultant covenant levels within such twenty
(20) day period, then an independent third party mutually acceptable to
the Administrative Agent and Borrower shall be appointed within five
(5) days of the expiration of such twenty (20) day period and shall
determine, within ten (10) days of its appointment, such calculation
and resultant covenant levels, such third party's determination to be
binding on the parties hereto.
(d) Minimum Liquidity. At no time after the Amendment No. 4
Effective Date shall the sum of (x) the Cash Balance plus (y) the
aggregate amount of the Unutilized Revolving Credit Commitments of all
of the Lenders be less than $45,000,000."
(t) Section 9.17 of the Credit Agreement is hereby amended by (i)
replacing the comma after the phrase "Marketing Agreements" with the words "or
the", and (ii) deleting the phrase "or the Facilities Agreement" at the end of
such section.
(u) Section 9.19(c)(i)(z) of the Credit Agreement is hereby amended to
read in its entirety as follows:
"(z) the Senior Subordinated Notes Financing Documents as in
effect on the Original Closing Date, the Additional Senior Subordinated
Notes Documents, the Parent Refinanced Notes Documents, the Senior
Notes Documents and any Permitted Refinancing of any thereof so long as
such restriction in such Additional Senior Subordinated Notes
Documents, the Parent Refinanced Notes Documents, the Senior Notes
Documents or such Permitted Refinancing is not more disadvantageous to
the Creditors or Borrower than the Senior Subordinated Notes Financing
Documents as in effect on the Original Closing Date or, in the case of
the Senior Notes Documents or any Permitted Refinancing thereof, the
Senior Notes Documents as in effect on the Amendment No. 4 Effective
Date,"
(v) Section 9.21 of the Credit Agreement is hereby amended by (i)
replacing the word "and" following the phrase "the Additional Senior
Subordinated Notes Documents" with a comma and
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(ii) adding, following the words "Parent Refinancing Notes Documents" and before
the comma, the phrase "and the Senior Notes Documents".
(w) Section 9.23(a) of the Credit Agreement is hereby amended to read
in its entirety as follows:
"(a) make any payment or prepayment (optional or otherwise) on
or with respect to (including any sinking fund payment), or redeem,
defease or repurchase (whether in cash, securities or other Property)
or otherwise acquire or retire for value any of, the Senior
Subordinated Notes, the Parent Subordinated Notes, any Existing Notes,
any Additional Senior Subordinated Notes, any Parent Refinanced Notes,
any Senior Notes or any Permitted Refinancing of any of the foregoing,
except (1) regularly scheduled mandatory payments of interest, (2) the
conversion or exchange of any Indebtedness into shares of common Equity
Interests of Parent, and (3) the exchange of Senior Subordinated Notes,
Additional Senior Subordinated Notes, Parent Refinanced Notes or Senior
Notes for exchange notes, as contemplated by the respective definitions
thereof;"
(x) Section 9.23(b) of the Credit Agreement is hereby amended by adding
the phrase "Senior Notes Documents," immediately after the phrase "Parent
Financing Documents," appearing in the second line of such Section.
(y) Section 9.23(c) of the Credit Agreement is hereby amended to read
in its entirety as follows:
"(c) effect any material change in (i) the Senior Subordinated
Notes Indenture in connection with the Exchange Offer or enter into an
Exchange Indenture which is different in any material respect from the
Senior Subordinated Notes Indenture in connection with the Exchange
Offer, in each case unless the terms thereof are reasonably acceptable
to Agents and the Majority Lenders, or (ii) the Senior Notes Indenture
in connection with the Senior Exchange Offer or enter into a Senior
Exchange Indenture which is different in any material respect from the
Senior Notes Indenture in connection with the Senior Exchange Offer, in
each case unless the terms thereof are reasonably acceptable to Agents
and the Majority Lenders."
(z) Section 9.28 of the Credit Agreement is hereby deleted in its
entirety.
(aa) Section 10(p) of the Credit Agreement is hereby deleted in its
entirety.
(bb) Section 10 of the Credit Agreement is hereby amended by adding the
following at the end thereof:
"Notwithstanding anything herein to the contrary, if at any time (i) a
Default or Event of Default shall occur and be continuing pursuant to
Section 10(d) solely as a result of any failure of the Obligors to
comply with Section 9.11(d), (ii) within 5 days of the occurrence of
such Default or Event of Default (without giving effect to the five (5)
Business Days grace period contained in Section 10(d) hereof) the
Obligors shall have received Net Available Proceeds of any Equity
Issuance or issuance of Subordinated Debt and (iii) following the
receipt of such Net Available Proceeds the Obligors shall be in
compliance with Section 9.11(d), then, such Default or Event of Default
shall be deemed cured and shall cease to exist as of the date of its
first occurrence and all rights and remedies of the Credit Parties
under this Agreement and the other Credit Documents consequent thereon
shall cease to be of any force or effect in respect thereof."
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(cc) Section 12.11 of the Credit Agreement is hereby amended by adding
the following sentence at the end thereof:
"Notwithstanding anything herein to the contrary,
"Information" shall not include, and the Administrative Agent, each
Lender and each Obligor, may disclose without limitation of any kind,
any information with respect to the "tax treatment" and "tax structure"
(in each case, within the meaning of Treasury Regulation Section
1.6011-4) of the transactions contemplated hereby and all materials of
any kind (including, without limitation, opinions or other tax
analyses) that are provided to the Administrative Agent, such Lender or
such Obligor relating to such tax treatment and tax structure; provided
that with respect to any document or similar item that in either case
contains information concerning the tax treatment or tax structure of
the transaction as well as other information, this sentence shall only
apply to such portions of the document or similar item that relate to
the tax treatment or tax structure of the Loans, Letters of Credit and
transactions contemplated hereby."
(dd) Exhibit L to the Credit Agreement is hereby amended in its
entirety and replaced with Exhibit L attached hereto.
ARTICLE II
AUTHORIZATIONS AND CONSENTS
Section 2.1. Issuance of Senior Notes.
(a) The Administrative Agent and the Majority Lenders hereby consent to
the issuance of the Senior Notes; provided, that the issuance of the Senior
Notes shall be consummated not later than July 30, 2003.
(b) The Administrative Agent and the Majority Lenders hereby approve
the terms and forms of the Senior Note Documents delivered to the Administrative
Agent on or prior to the Effective Date.
Section 2.2. Amended and Restated Security Agreement. The
Administrative Agent and the Majority Lenders hereby consent to the execution
and delivery of the Amended and Restated Security Agreement among the Borrower,
the PR Borrower, each of the Guarantors and the Administrative Agent in the form
of Exhibit A hereto.
ARTICLE III
ADDITIONAL AGREEMENTS
In order to induce the Administrative Agent and the Majority Lenders to enter
into this Amendment, the Borrower and each of the Obligors hereby agree as
follows:
Section 3.1. Allocation of Proceeds of Senior Notes. Notwithstanding any other
term or provision contained in the Credit Agreement or the other Credit
Documents, the Senior Notes Proceeds shall be allocated as follows:
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(a) Sixty percent (60%) of the Senior Notes Proceeds shall be applied
in accordance with Section 3.2 below to prepay Term Loans.
(b) Forty percent (40%) of the Senior Notes Proceeds shall be retained
by the Borrower (i) for the payment of reasonable and customary transaction
costs incurred in connection with the issuance of the Senior Notes, and (ii) for
general corporate purposes in accordance with the terms and provisions of the
Credit Agreement.
Section 3.2. Application of Proceeds of Senior Notes. Notwithstanding any other
term or provision contained in the Credit Agreement or the other Credit
Documents, the portion of the Senior Notes Proceeds allocated to prepay Term
Loans in accordance with Section 3.1(a) above shall be applied as follows:
(a) First, the first $180.0 million of such proceeds shall be applied
to prepay Term Loans in accordance with Section 2.09(c)(ii) of the Credit
Agreement; and
(b) Second, any such proceeds in excess of $180.0 million shall be
applied to prepay Term Loans in accordance with Section 2.10(b)(i)(B) of the
Credit Agreement.
Section 3.3. Fee to Approving Lenders. As an inducement to the Lenders and the
Administrative Agent to enter into this Amendment, upon the effectiveness of
this Amendment, Borrower agrees to pay to the Administrative Agent, for the
benefit of each Lender that executes this Amendment on or prior to 1:00 p.m.
(Eastern time) on June 19, 2003 (each such Lender an "Amendment No. 4 Approving
Lender"), a fee (an "Approving Lenders Fee") in an amount equal to 0.50% (1/2
of one percent) of the sum of (i) the aggregate outstanding principal amount of
such Amendment No. 4 Approving Lender's Term Loans and (ii) such Amendment No. 4
Approving Lender's Revolving Credit Commitment (in each case prior to giving
effect to this Amendment) and the application of Senior Notes proceeds pursuant
to Section 3.2 hereof.
Section 3.4. Perfection Certificate. The Borrower hereby agrees that it shall
execute and deliver to the Administrative Agent as soon as practicable, but in
no event later than July 20, 2003, a duly completed perfection certificate
(together with all attachments thereto) in form and substance reasonably
satisfactory to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties. Each of the Obligors
represents and warrants (which representations and warranties shall survive the
execution and delivery hereof) to the Creditors that:
(a) No Default or Event of Default shall have occurred and be
continuing;
(b) the representations and warranties of the Obligors contained in the
Credit Agreement and in the other Credit Documents are true and complete in all
material respects on and as of the Effective Date (as defined in Section 5.1
below) with the same force and effect as if made on and as of the Effective Date
(except to the extent that such representations and warranties expressly relate
to an earlier date, in which case such representations and warranties shall be
true and correct in all material respects as of such earlier date;
11
(c) since February 28, 2003, there has not occurred any Material
Adverse Effect;
(d) there are no existing claims by it against any of the Creditors and
there are no offsets or defenses by it to the payment of any amounts required
under the Credit Documents or otherwise to the enforcement by the Creditors of
the Credit Documents; and
(e) all of the obligations in connection with the issuance of the
Senior Notes have been met; all Companies party to the Senior Notes Documents
have the power and authority to execute, deliver and carry out the terms and
provisions of the Senior Notes Documents and the transactions contemplated
thereby and have taken or caused to be taken all necessary corporate or other
action to authorize the execution, delivery and performance of the Senior Notes
Documents and the transactions contemplated thereby; and the issuance of the
Senior Notes would not cause a Default or Event of Default under the Credit
Documents, the Parent Financing Documents, the Senior Subordinated Notes
Financing Documents or any other agreements to which the Obligors may be a
party.
ARTICLE V
EFFECTIVENESS
Section 5.1. Effective Date. This Amendment shall become effective on the date
on which all of the following conditions precedent shall have been satisfied, or
waived in writing (such date being referred to herein as the "Effective Date"):
(a) The Administrative Agent shall have received fully executed
counterparts of this Amendment executed by (i) the Obligors, (ii) the
Administrative Agent and (iii) the Majority Lenders;
(b) The Administrative Agent shall have received the favorable written
opinions (addressed to the Administrative Agent and the Lenders and dated as of
the Effective Date) of (i) Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for Borrower and
the PR Borrower, and (ii) the Borrower's general counsel, each in form and
substance satisfactory to the Administrative Agent and to Xxxxxxxx Chance US
LLP, counsel to the Administrative Agent, and covering such matters related to,
among other things, the transactions contemplated by this Amendment and the
Senior Notes Documents as the Administrative Agent may reasonably require;
(c) Borrower and its Subsidiaries shall have received gross proceeds
from the issuance of the Senior Notes of not less than $500 million;
(d) The Administrative Agent shall have received fully executed copies
of each of the Senior Notes Documents in form and substance satisfactory to the
Administrative Agent;
(e) All representations and warranties contained in this Amendment or
otherwise made in writing to the Administrative Agent and the Lenders in
connection herewith shall be true and correct in all material respects;
(f) The Administrative Agent and the Lenders shall have received
payment of all fees (including, without limitation, the Approving Lenders Fee)
and other amounts due and payable on or prior to the Effective Date, including
to the extent invoiced, reimbursement or payment of all out-of-pocket expenses
(including, without limitation, the reasonable fees and disbursements of
Xxxxxxxx Chance US LLP and FTI Consulting, Inc., financial advisor to Xxxxxxxx
Chance US LLP ("FTI")), required to be reimbursed or paid by any Obligor
hereunder or under any other Credit Document;
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(g) The Administrative Agent shall have received fully executed
originals of the Amended and Restated Security Agreement attached hereto as
Exhibit A;
(h) The Borrower shall have delivered to the Administrative Agent an
Officers' Certificate or other evidence satisfactory to the Administrative Agent
confirming the dissolution of Centennial US Wireless, LLC;
(i) The Administrative Agent and its counsel shall have received such
approvals, information, materials and documentation as the Administrative Agent
or its counsel may reasonably request, which approvals, information, materials
and documentation shall be satisfactory in form and substance to the
Administrative Agent and its counsel; and
(j) All legal matters incident to this Amendment and the effects hereof
or any of the Credit Documents shall be acceptable to the Administrative Agent
and its counsel.
ARTICLE VI
ACKNOWLEDGEMENTS
Section 6.1. Confirmation and Acknowledgement of the Obligations; Release. Each
of Borrower, Parent and PR Borrower hereby (i) confirms and acknowledges to the
Administrative Agent and the Lenders that it is validly and justly indebted to
the Administrative Agent and the Lenders for the payment of all obligations
without offset, defense, cause of action, demand or counterclaim of any kind or
nature whatsoever under the Credit Documents pursuant to the terms thereof and
(ii) reaffirms and admits the validity and enforceability of the Credit
Agreement and the Credit Documents and the Liens on the Collateral which were
granted pursuant to any of the Credit Documents or otherwise. Each of the
Obligors, on its own behalf and on behalf of its successors and assigns, hereby
waives, releases and discharges the Administrative Agent and each Lender and all
of the affiliates of the Administrative Agent and each Lender, and all of the
directors, officers, employees, attorneys, agents, successors and assigns of the
Administrative Agent, each Lender and such affiliates, from any and all claims,
demands, actions or causes of action (known and unknown) arising out of or in
any way relating to any of the Credit Documents and any documents, agreements,
dealings or other matters connected with any of the Credit Documents, in each
case to the extent arising on or prior to the date hereof or out of, or relating
to, actions, dealings or matters occurring on or prior to the date hereof.
Section 6.2. Acknowledgement and Consent by Guarantors.
(a) Each of the Guarantors hereby acknowledges that it has read this
Amendment and consents to the terms hereof and further confirms and agrees that,
notwithstanding the effectiveness of this Amendment, its obligations pursuant to
the Credit Documents shall not be impaired and its guarantee pursuant to the
Credit Agreement is, and shall continue to be, in full force and effect and is
hereby confirmed and ratified in all respects.
(b) Each of the Guarantors hereby confirms and acknowledges that it is
validly and justly indebted to the Administrative Agent and the Lenders for the
payment of all of its obligations which it has guaranteed, without offset,
defense, cause of action or counterclaim of any kind of nature whatsoever under
the Credit Documents pursuant to the terms thereof.
13
(c) Each of the Guarantors hereby reaffirms and admits the validity and
enforceability of the Credit Agreement and the Credit Documents to which it is a
party and the Liens on the Collateral which were granted by it pursuant to any
of the Credit Documents or otherwise.
ARTICLE VII
MISCELLANEOUS
Section 7.1. Costs and Expenses. The Obligors acknowledge and agree that their
obligations set forth in Section 12.03(a)(i) of the Credit Agreement include
reasonable out-of-pocket costs and expenses of the Amendment Arrangers in
connection with the preparation, execution and delivery of this Amendment and
any other documentation contemplated hereby (whether or not this Amendment
becomes effective or the transactions contemplated hereby are consummated),
including, but not limited to, the reasonable fees and disbursements of Xxxxxxxx
Chance US LLP, counsel to the Administrative Agent, and FTI.
Section 7.2. Cooperation of Financial Advisor. The Obligors shall, and shall
instruct their financial advisor to, cooperate with FTI in connection with FTI's
engagement, including, without limitation, FTI's review and evaluation of the
operations and financial performance of Borrower and the other Obligors.
Section 7.3. Consultation with Advisors. Each of the Obligors acknowledges that
it has consulted with counsel and with such other experts and advisors as it has
deemed necessary in connection with the negotiation, execution and delivery of
this Amendment.
Section 7.4. Limited Waiver or Modification; Ratification of Credit Agreement.
(a) Except to the extent hereby expressly waived or modified, the
Credit Agreement and each of the Credit Documents remain in full force and
effect and are hereby ratified and confirmed.
(b) This Amendment shall be limited precisely as written and shall not
be deemed: (i) to be a consent granted pursuant to, or a waiver or modification
of, any other term or condition of the Credit Agreement or any of the
instruments or agreements referred to therein or a waiver of any Default or
Event of Default under the Credit Agreement, whether or not known to the
Creditors; or (ii) to prejudice any right or rights which the Creditors may now
have or have in the future under or in connection with any Credit Document or
any of the instruments or agreements referred to in a Credit Document. Except to
the extent hereby modified, the Credit Agreement and each of the Credit
Documents shall continue in full force and effect in accordance with the
provisions thereof on the date hereof and the Credit Agreement as heretofore
amended or modified and as modified by this Amendment are hereby ratified and
confirmed.
Section 7.5. References. All references to the "Credit Agreement," "this
Agreement," "herein," "hereafter," "hereto," "hereof," and words of similar
import appearing in the Credit Agreement, shall, unless the context otherwise
requires, mean the Credit Agreement as modified by this Amendment. Reference to
the terms "Agreement" or "Credit Agreement" appearing in the Exhibits or
Schedules to the Credit Agreement or in the other Credit Documents shall, unless
the context otherwise requires, mean the Credit Agreement as modified by this
Amendment. This Amendment shall be deemed to have been jointly drafted, and no
provision of it shall be interpreted or construed for or against any party
hereto because such party purportedly prepared or requested such provision, any
other provision, or this Amendment as a whole.
Section 7.6. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall
14
be deemed to be an original and all of which taken together shall constitute but
one and the same instrument. Delivery of an executed signature page to this
Amendment by facsimile shall be as effective as delivery of a manually executed
counterpart of this Amendment.
Section 7.7. Credit Document. This Amendment is a Credit Document pursuant to
the Credit Agreement and shall (unless expressly indicated herein or therein) be
construed, administered, and applied, in accordance with all of the terms and
provisions of the Credit Agreement.
Section 7.8. Severability. Any provision of this Amendment which is invalid,
illegal or unenforceable under the applicable law of any jurisdiction, shall, as
to such jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability without invalidating the remaining provisions
hereof, and any such invalidity, illegality or unenforceability in any
jurisdiction shall not invalidate such provision in any other jurisdiction.
Section 7.9. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES
THEREOF.
Section 7.10. Further Assurance. The parties hereto shall, at any time and from
time to time following the execution of this Amendment, execute and deliver all
such further instruments and take all such further action as may be reasonably
necessary or appropriate in order to carry out the provisions of this Amendment.
Section 7.11. Successors and Assigns. The provisions of this Amendment shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns.
Section 7.12. Headings. The headings of this Amendment are for the purposes of
reference only and shall not affect the construction of, or be taken into
consideration in interpreting, this Amendment.
Section 7.13. Relationship. The Obligors agree that the relationship between the
Administrative Agent and the Lenders, on the one hand, and the Obligors, on the
other hand, is that of creditor and debtor and not that of partners or joint
venturers. This Amendment does not constitute a partnership agreement or any
other association between the Administrative Agent, the Lenders and the
Obligors. The Obligors acknowledge that the Administrative Agent and the Lenders
have acted at all times only as creditors to the Obligors within the normal and
usual scope of the activities normally undertaken by a creditor and in no event
have the Administrative Agent or any of the Lenders attempted to exercise any
control over the Obligors or their respective businesses or affairs.
Section 7.14. No Third Party Beneficiaries. This Amendment is made and entered
into for the sole protection and benefit of the Obligors, the Administrative
Agent and the Lenders and no other person or entity shall have any right of
action herein, right to claim any right or benefit from the terms contained
herein, or be deemed a third party beneficiary hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and the year first above written.
BORROWER:
CENTENNIAL CELLULAR OPERATING CO. LLC
By: /s/ XXXX X. XXXX
---------------------------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President, General Counsel
PR BORROWER:
CENTENNIAL PUERTO RICO OPERATIONS CORP.
By: /s/ XXXX X. XXXX
---------------------------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President, General Counsel
PARENT AND GUARANTOR:
CENTENNIAL COMMUNICATIONS CORP. (formerly known as
Centennial Cellular Corp.)
By: /s/ XXXX X. XXXX
---------------------------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President, General Counsel
AGENTS AND LENDERS:
BANK OF AMERICA, N.A., individually and as
Administrative Agent and as Amendment Arranger
By: /s/ XXXX X. XXXXXXX
---------------------------------------------------
Name: Xxxx X. Xxxxxxx III
Title: Managing Director
XX XXXXXX CHASE BANK (formerly known as The Chase
Manhattan Bank), individually and as Co-Syndication
Agent and as Amendment Arranger
By: /s/ XXXXX X. XXXXXX
-----------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXXX XXXXX & CO., and XXXXXXX LYNCH, PIERCE,
XXXXXX & XXXXX INCORPORATED, individually and as
Co-Syndication Agent
By: /s/ XXXXX XXXXX
-----------------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
THE BANK OF NOVA SCOTIA, individually and as
Documentation Agent
By: /s/ XXXXXXX X. XXXX
------------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Director
