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Exhibit 10(a)
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XXXXX TELECOM INC.
AS BORROWER
THE LENDERS NAMED HEREIN
AS LENDERS
NBD BANK
AS DOCUMENTATION AGENT
AND
[KEYBANK LOGO]
KEYBANK NATIONAL ASSOCIATION
AS A LENDER,
THE SWING LINE LENDER, A LETTER OF CREDIT ISSUER
AND AS THE SYNDICATION AGENT, THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
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AMENDMENT NO. 2
DATED AS OF
APRIL 19, 2000
TO
CREDIT AGREEMENT
DATED AS OF
DECEMBER 31, 1998
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AMENDMENT NO. 2 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT, dated as of April 19, 2000
("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 hereto;
(iii) NBD BANK as a Lender and as Documentation Agent (the
"DOCUMENTATION AGENT"); and
(iv) KEYBANK NATIONAL ASSOCIATION, a national banking
association, as a Lender, the Swing Line Lender, the Letter of Credit
Issuer, and as the Syndication Agent, the Administrative Agent and the
Collateral Agent under the Credit Agreement:
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders named therein, the Swing Line Lender, the
Letter of Credit Issuers, the Documentation Agent, the Syndication Agent and the
Administrative Agent entered into the Credit Agreement, dated as of December 31,
1998, as amended by Amendment No. 1 thereto, dated as of July 30, 1999 (as so
amended, the "CREDIT AGREEMENT"; with the terms defined therein, or the
definitions of which are incorporated therein, being used herein as so defined).
(2) The parties hereto desire to change certain of the terms and
provisions of the Credit Agreement, all as more fully set forth below.
NOW, THEREFORE, the parties hereby agree as follows:
10 AMENDMENTS, ETC. With retroactive effect to March 31, 2000, section
9.9 of the Credit Agreement is amended to read in its entirety as follows:
9.9. MINIMUM CONSOLIDATED EBITDA. The Borrower will not at any
time permit its Consolidated EBITDA for its Testing Period most
recently ended to be less than the amount indicated below:
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TESTING PERIOD AMOUNT
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Any Testing Period ended on or prior to $45,000,000
December 31, 1998
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Any Testing Period ended thereafter and on or prior to $36,000,000
September 30, 1999
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Testing Period ended December 31, 1999 $41,000,000
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Testing Period ended March 31, 2000 $41,000,000
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TESTING PERIOD AMOUNT
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Testing Period ended June 30, 2000 $42,000,000
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Testing Period ended September 30, 2000 $42,000,000
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Any Testing Period thereafter $45,000,000
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20 REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants
to the Lenders, the Swing Line Lender, the Letter of Credit Issuer, the
Documentation Agent, the Administrative Agent and the Collateral Agent as
follows:
(a) AUTHORIZATION AND VALIDITY OF AMENDMENT, ETC. 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, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law).
(b) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Credit Parties contained in the Credit Agreement or
in the other Credit Documents are true and correct in all material
respects on and as of the date hereof as though made on and as of the
date hereof, 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.
(c) NO EVENT OF DEFAULT. No condition or event has occurred or
exists which constitutes or which, after notice or lapse of time or
both, would constitute an Event of Default.
(d) 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; and
without limitation of the foregoing, each Subsidiary of the Borrower
which, as of the date hereof, is required to be a Subsidiary Guarantor,
has as on or prior to the date hereof become a Subsidiary Guarantor
under the Subsidiary Guaranty.
(e) FINANCIAL STATEMENTS, ETC. The Borrower has furnished to
the Lenders and the Administrative Agent complete and correct copies of
the audited consolidated balance sheets of the Borrower and its
consolidated subsidiaries as of December 31, 1998, and December 31,
1999, and the related audited consolidated statements of income,
stockholders' equity, and cash flows for the fiscal years then ended,
accompanied by the unqualified report thereon of the Borrower's
independent accountants. All such financial statements have been
prepared in accordance with GAAP, consistently applied (except as
stated therein), and fairly present the financial position of the
Borrower and its consolidated subsidiaries as of the respective dates
indicated and the consolidated results of their operations and cash
flows for the respective periods indicated.
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30 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.
40 BINDING EFFECT. This Amendment shall become effective on April 19,
2000 (the "EFFECTIVE Date"), if the following conditions shall have been
satisfied on and as of such date:
(a) this Amendment shall have been executed by the Borrower
and the Administrative Agent, and counterparts hereof as so executed
shall have been delivered to the Administrative Agent;
(b) the Administrative Agent shall have been notified by the
Required Lenders that such Lenders have executed this Amendment (which
notification may be by facsimile or other written confirmation of such
execution);
(c) the Borrower shall have paid to the Administrative Agent,
in immediately available funds, for the account of each Lender which
shall have executed this Amendment and delivered its signed signature
page (via physical delivery or facsimile transmission) to the
Administrative Agent by 5:00 P.M. (local time at the Notice Office) on
the Effective Date, an amendment fee computed at the rate of 5 basis
points on the General Revolving Commitment of any such applicable
Lender (the Administrative Agent shall promptly pay over to each such
signing Lender its amendment fee as aforesaid);
and thereafter this Amendment shall be binding upon and inure to the benefit of
the Borrower, each Lender, the Swing Line Lender, the Letter of Credit Issuers,
the Documentation Agent, the Syndication Agent, the Administrative Agent and the
Collateral Agent and their respective successors and assigns. After this
Amendment becomes effective, the Administrative Agent will promptly furnish a
copy of this Amendment to each Lender and the Borrower and advise them of the
Effective Date.
50 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. EXPENSES. As provided in the Credit Agreement, but without
limiting any terms or provisions thereof, the Borrower shall pay on demand all
reasonable costs and expenses incurred by the Administrative Agent in connection
with the preparation, negotiation, and execution of this Amendment, including
without limitation the reasonable costs and fees of the Administrative Agent's
special legal counsel, regardless of whether this Amendment becomes effective in
accordance with the terms hereof, and all reasonable costs and expenses incurred
by the Administrative Agent or any Lender in connection with the enforcement or
preservation of any rights under the Credit Agreement, as amended hereby.
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5.4. 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.
5.5. APPLICABLE LAW. This Amendment shall be governed by and construed
in accordance with the laws of the State of Ohio.
5.6. HEADINGS. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
5.7. 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.
5.8. 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.
5.9. COUNTERPARTS. This Amendment may be executed by the parties hereto
separately in one or more counterparts, 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.
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
as of the date first above written.
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XXXXX TELECOM INC. KEYBANK NATIONAL ASSOCIATION,
INDIVIDUALLY AS THE SWING LINE LENDER,
A LENDER, A LETTER OF CREDIT ISSUER,
AND AS THE SYNDICATION AGENT AND
THE ADMINISTRATIVE AGENT
BY:
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VICE PRESIDENT--FINANCE
BY:
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SENIOR VICE PRESIDENT
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BANK ONE, MICHIGAN FIRSTAR BANK, NATIONAL ASSOCIATION
(SUCCESSOR TO NBD BANK), (FORMERLY STAR BANK, NATIONAL ASSOCIATION)
INDIVIDUALLY AS A LENDER AND
AS DOCUMENTATION AGENT
BY:
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TITLE:
BY:
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TITLE:
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DRESDNER BANK AG, SANPAOLO IMI, S. P. A.,
NEW YORK AND GRAND CAYMAN BRANCHES, NEW YORK BRANCH
INDIVIDUALLY AS A LENDER AND AS
A LETTER OF CREDIT ISSUER
BY:
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TITLE:
BY:
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TITLE:
BY: BY:
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TITLE: TITLE:
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FIFTH THIRD BANK, NORTHEASTERN OHIO LASALLE BANK, NATIONAL ASSOCIATION
(FORMERLY LASALLE NATIONAL BANK)
BY:
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TITLE: BY:
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TITLE:
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