SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is entered
into as of May 31, 2001, among AMERICAN CELLULAR CORPORATION (SUCCESSOR BY
MERGER TO ACC ACQUISITION CO.), a Delaware corporation ("BORROWER"), Required
Lenders under the Credit Agreement (hereinafter defined), BANK OF AMERICA, N.A.,
in its capacity as Administrative Agent for the Lenders under the Credit
Agreement ("ADMINISTRATIVE AGENT"), and Guarantors under the Credit Agreement
(hereinafter defined).
Reference is made to the Credit Agreement, dated as of February 25,
2000 (as amended, modified, supplemented, or restated from time to time, the
"CREDIT AGREEMENT"), among Borrower, as BORROWER, Administrative Agent, CIBC
World Markets Corp. and Barclays Bank PLC as CO-DOCUMENTATION AGENTS, Xxxxxx
Commercial Paper Inc. and TD Securities (USA) Inc., as CO-SYNDICATION AGENTS,
and certain Managing Agents, Co-Agents, and Lenders party thereto.
Unless otherwise defined in this Amendment, capitalized terms used
herein shall have the meaning set forth in the Credit Agreement. Unless
otherwise indicated, all Section references herein are to Sections of the Credit
Agreement, and all Paragraph references herein are to Paragraphs in this
Amendment.
R E C I T A L S
A. Borrower issued $450,000,000 of Subordinated Notes in March 2001.
Borrower proposes to issue $250,000,000 of Additional Subordinated Notes on
substantially the same terms as the March 2001 issuance (the "ADDITIONAL
SUBORDINATED NOTES"). A portion of the proceeds of the Additional Subordinated
Notes will be used as follows: (i) to pay fees, costs, and expenses associated
with the issuance of the Additional Subordinated Notes and this Amendment, (ii)
to fund an interest reserve account, which will be used to pay the initial four
semi-annual scheduled interest payments under the Additional Subordinated Notes,
and (iii) to prepay the Principal Debt in the manner required by SECTION 3.3(b).
B. Borrower has requested certain amendments under the Credit
Agreement, and the Lenders party hereto are willing to grant and agree to such
amendments, but only upon the conditions, among other things, that Borrower,
Guarantors, and Required Lenders shall have executed and delivered this
Amendment and shall have agreed to the terms and conditions of this Amendment.
NOW, THEREFORE, in consideration of these premises and other valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree, as follows:
PARAGRAPH 1. AMENDMENTS.
1.1 DEFINITIONS.
(a) The definition of "SUBORDINATED NOTES" is deleted in its entirety
and replaced with the following definition:
"SUBORDINATED NOTES means the March Subordinated Notes and the
Additional Subordinated Notes."
(b) The following definitions of "ADDITIONAL SUBORDINATED NOTES" and
"MARCH SUBORDINATED NOTES" shall be alphabetically inserted in SECTION 1.1 to
read, as follows:
"ADDITIONAL SUBORDINATED NOTES means the Additional
Subordinated Reserve Notes issued by Borrower in May or June
2001, SO LONG AS (a) the aggregate original principal amount
of such Additional Subordinated Notes does not exceed
$250,000,000, (b) the maturity date of such Additional
Subordinated Notes is no earlier than September 30, 2009, (c)
the interest payable under the Additional Subordinated Notes
for the initial four semi- annual scheduled interest payments
has been deposited in the Escrow Account, (d) such Additional
Subordinated Notes are unsecured and do not require any
principal payments prior to the maturity of the Additional
Subordinated Notes, and (e) all terms and conditions of the
Additional Subordinated Notes and the documents and agreements
evidencing and establishing the Additional Subordinated Notes
(including, without limitation, the subordination provisions)
shall be substantially the same as the March Subordinated
Notes (OTHER THAN the interest rate applicable to such
Additional Subordinated Notes), together with any permitted
refinancings, exchanges, or conversion thereof or
substitutions therefor by any Company issued in the form of
Debt or equity interests which satisfy the requirements of
SECTION 9.31(iii)."
"MARCH SUBORDINATED NOTES means the Subordinated Reserve Notes
issued by Borrower in March 2001, SO LONG AS (a) the aggregate
original principal amount of such March Subordinated Notes
does not exceed $450,000,000, (b) the maturity date of such
March Subordinated Notes is no earlier than September 30,
2009, (c) the interest payable under the March Subordinated
Notes for the initial four semi-annual scheduled interest
payments has been deposited in the Escrow Account, (d) such
March Subordinated Notes are unsecured and do not require any
principal payments prior to the maturity of the March
Subordinated Notes, and (e) all terms and conditions of the
March Subordinated Notes and the documents and agreements
evidencing and establishing the March Subordinated Notes
(including, without limitation, the subordination provisions)
are acceptable to Administrative Agent (in its sole
discretion), together with any permitted refinancings,
exchanges, or conversion thereof or substitutions therefor by
any Company issued in the form of Debt or equity interests
which satisfy the requirements of SECTION 9.31(III)."
1.2 MANDATORY PREPAYMENTS. SECTION 3.3(b)(vii) is amended by changing
all references to "SUBORDINATED NOTES" therein to "MARCH SUBORDINATED NOTES".
1.3 FINANCIAL COVENANTS.
(a) The Debt Service Coverage Ratio covenant set forth in SECTION
9.30(b) is amended by substituting the following table for the table set forth
at the end of such Section:
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PERIOD DEBT SERVICE COVERAGE RATIO
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On and after the Closing Date, to 1.10 to 1.00
and including March 30, 2001
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2
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PERIOD DEBT SERVICE COVERAGE RATIO
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On and after March 31, 2001, to 1.075 to 1.00
and including September 29,
2001
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On and after September 30, 2001, 1.10 to 1.00
to and including
December 30, 2001
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On and after December 31, 2001, 1.20 to 1.00
to and including March 30, 2002
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On and after March 31, 2002, to 1.25 to 1.00
and including
September 29, 2002
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On and after September 30, 2002, 1.30 to 1.00
to and including
December 30, 2002
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On and after December 31, 2002, 1.35 to 1.00
to and including March 30, 2003
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On and after the March 31, 2003 1.20 to 1.00
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(b) The Total Leverage Ratio covenant set forth in SECTION 9.30(f) is
amended by substituting the following table for the table set forth at the end
of such Section:
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PERIOD TOTAL LEVERAGE RATIO
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On and after March 31, 2001, to and 9.50 to 1.00
including June 29, 2001
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On and after June 30, 2001, to and 10.00 to 1.00
including September 29, 2001
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On and after September 30, 2001, to 9.85 to 1.00
and including December 30, 2001
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On and after December 31, 2001, to 9.25 to 1.00
and including June 29, 2002
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On and after June 30, 2002, 8.75 to 1.00
to and including September 29, 2002
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On and after September 30, 2002, 8.15 to 1.00
to and including December 30, 2002
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On and after December 31, 2002, 7.75 to 1.00
to and including March 30, 2003
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On and after March 31, 2003, to and 7.50 to 1.00
including December 30, 2003
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PERIOD TOTAL LEVERAGE RATIO
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On and after December 31, 2003, 6.50 to 1.00
to and including December 30, 2004
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On and after December 31, 2004, 5.50 to 1.00
to and including December 30, 2005
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On and after December 31, 2005, 4.50 to 1.00
to and including December 30, 2006
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On and after December 31, 2006 4.00 to 1.00
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PARAGRAPH 2. AMENDMENT FEES. On the Effective Date (hereinafter defined),
Borrower shall pay (a) to Administrative Agent (for the ratable benefit of the
Revolver Lenders consenting to this Amendment on or prior to 12:00 p.m. CST on
Thursday, May 31, 2001 (the "CONSENT DEADLINE"), the "CONSENTING REVOLVER
LENDERS"), an amendment fee in an amount equal to 0.10% of the aggregate
Committed Sums under the Revolver Facility of each Consenting Revolver Lender as
of the Effective Date and (b) to Administrative Agent (for the ratable benefit
of the Term Loan A Lenders, the Term Loan B Lenders, and the Term Loan C Lenders
consenting to this Amendment on or prior to the Consent Deadline, the
"CONSENTING TERM LOAN LENDERS"), an amendment fee in an amount equal to 0.10% of
the portion of the Term Loan Principal Debt owed to the Consenting Term Loan
Lenders as of the Effective Date but prior to the prepayment from the Net Cash
Proceeds of the Additional Subordinated Notes. The failure of Borrower to comply
with the provisions of this PARAGRAPH 2 shall constitute a payment Default
entitling Lenders to exercise their respective Rights under the Loan Documents.
PARAGRAPH 3. CONDITIONS. This Amendment shall be effective on the date (the
"EFFECTIVE DATE") upon which (a) the representations and warranties in this
Amendment are true and correct; (b) Administrative Agent receives counterparts
of this Amendment executed by Borrower, each Guarantor, and Required Lenders;
(c) Borrower has prepaid the Obligation by not less than 100% of the Net Cash
Proceeds from the issuance of the Additional Subordinated Notes in accordance
with the requirements of SECTION 3.3(B); and (d) Administrative Agent has
received payment from Borrower of the amendment fees required to be paid to
consenting Lenders and Administrative Agent on the Effective Date pursuant to
PARAGRAPH 2 hereof.
PARAGRAPH 4. COMPLIANCE WITH AMENDMENT REQUIREMENTS. On and after the Effective
Date, the failure of Borrower, its Subsidiaries, or any Guarantor to comply with
the conditions or limitations set forth in this Amendment shall constitute a
Default under the Credit Agreement, entitling the Lenders to exercise their
Rights under the Loan Documents.
PARAGRAPH 5. ACKNOWLEDGMENT AND RATIFICATION. As a material inducement to
Administrative Agent and the Lenders to execute and deliver this Amendment,
Borrower and each Guarantor (i) consent to the agreements in this Amendment and
(ii) agree and acknowledge that the execution, delivery, and performance of this
Amendment shall in no way release, diminish, impair, reduce, or otherwise affect
the respective obligations of Borrower or Guarantors under their respective
Collateral Documents, which Collateral Documents shall remain in full force and
effect, and all Liens, guaranties, and Rights thereunder are hereby ratified and
confirmed.
PARAGRAPH 6. REPRESENTATIONS. As a material inducement to Administrative Agent
and Lenders to execute and deliver this Amendment, Borrower, Parent, and each
other Guarantor represent and warrant to such parties (with the knowledge and
intent that the Lenders and Administrative Agent are relying upon the same in
entering into this Amendment) that as of the Effective Date and as of the date
of execution of this Amendment: (a) all representations and warranties in the
Loan Documents are true and correct in all material
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respects as though made on the date hereof, EXCEPT to the extent that (i) any of
them speak to a different specific date or (ii) the facts on which any of them
were based have been changed by transactions permitted by the Loan Documents;
(b) no Default or Potential Default exists, OTHER THAN such Defaults or
Potential Defaults existing on the date of execution hereof ,which are addressed
by this Amendment, and which will be cured on or prior to the Effective Date of
this Amendment; and (c) this Amendment has been duly authorized and approved by
all necessary corporate and limited liability company action and requires the
consent of no other Person, and upon execution and delivery, this Amendment
shall be binding and enforceable against Borrower, Parent, and each other
Guarantor in accordance with its terms.
PARAGRAPH 7. EXPENSES. Borrower shall pay all costs, fees, and expenses paid or
incurred by Administrative Agent incident to this Amendment, including, without
limitation, the reasonable fees and expenses of Administrative Agent's counsel
in connection with the negotiation, preparation, delivery, and execution of this
Amendment and any related documents.
PARAGRAPH 8. MISCELLANEOUS.
8.1 This Amendment is a "LOAN DOCUMENT" referred to in the Credit
Agreement, and the provisions of SECTIONS 13 of the Credit Agreement are
incorporated herein by reference. Unless stated otherwise (a) the singular
number includes the plural and VICE VERSA and words of any gender include each
other gender, in each case, as appropriate, (b) headings and captions may not be
construed in interpreting provisions, (c) this Amendment must be construed, and
its performance enforced, under New York law, and (d) this Amendment may be
executed in any number of counterparts with the same effect as if all
signatories had signed the same document, and all of those counterparts must be
construed together to constitute the same document.
8.2 The Loan Documents shall remain unchanged and in full force and
effect, except as provided in this Amendment, and are hereby ratified and
confirmed. On and after the Effective Date, all references to the "CREDIT
AGREEMENT" shall be to the Credit Agreement as herein amended. The execution,
delivery, and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any Rights of Lenders under any Loan
Document, nor constitute a waiver under any of the Loan Documents.
PARAGRAPH 9. ENTIRETIES. THIS AMENDMENT REPRESENTS THE FINAL AGREEMENT BETWEEN
THE PARTIES ABOUT THE SUBJECT MATTER OF THIS AMENDMENT AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
PARAGRAPH 10. PARTIES. This Amendment binds and inures to Borrower, Parent,
Administrative Agent, Lenders, Guarantors, and their respective successors
and assigns.
The parties hereto have executed this Amendment in multiple
counterparts on the date stated on the signature pages hereto, but effective as
of Effective Date.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.]
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Signature Page to that certain Second Amendment to Credit Agreement dated as of
the date first stated above, among American Cellular Corporation (successor by
merger to ACC Acquisition Co.), AS BORROWER, Bank of America, N.A., as
ADMINISTRATIVE AGENT, certain Lenders, and Guarantors.
AMERICAN CELLULAR CORPORATION (SUCCESSOR
BY MERGER TO ACC ACQUISITION CO.), as BORROWER
By:
-------------------------------------
Name:
----------------------------
Title:
----------------------------
SIGNATURE PAGE TO SECOND AMENDMENT
Signature Page to that certain Second Amendment to Credit Agreement dated as of
the date first stated above, among American Cellular Corporation (successor by
merger to ACC Acquisition Co.), AS BORROWER, Bank of America, N.A., as
ADMINISTRATIVE AGENT, certain Lenders, and Guarantors.
ACC ACQUISITION, LLC, PARENT, by its Members,
as GUARANTOR
AT&T WIRELESS SERVICES JV CO.
By:
-------------------------------------
Name:
----------------------------
Title:
----------------------------
XXXXXX XX COMPANY
By:
-------------------------------------
Name:
----------------------------
Title:
----------------------------
SIGNATURE PAGE TO SECOND AMENDMENT
Signature Page to that certain Second Amendment to Credit Agreement dated as of
the date first stated above, among American Cellular Corporation (successor by
merger to ACC Acquisition Co.), AS BORROWER, Bank of America, N.A., as
ADMINISTRATIVE AGENT, certain Lenders, and Guarantors.
GUARANTOR:
ACC OF KENTUCKY LLC
ACC KENTUCKY LICENSE LLC
ACC OF MICHIGAN CORPORATION
ACC MICHIGAN LICENSE LLC
ACC OF MINNESOTA CORPORATION
ACC MINNESOTA LICENSE LLC
ACC NEW YORK LICENSE I LLC
ACC NEW YORK LICENSE II LLC
ACC NEW YORK LICENSE III LLC
ACC OF OHIO CORPORATION
ACC OHIO LICENSE LLC
ACC OF PENNSYLVANIA LLC
ACC PENNSYLVANIA LICENSE LLC
ACC OF TENNESSEE LLC
ACC TENNESSEE LICENSE LLC
ACC OF WAUSAU CORPORATION
ACC WAUSAU LICENSE LLC
ACC OF WEST VIRGINIA CORPORATION
ACC WEST VIRGINIA LICENSE LLC
ACC OF WISCONSIN LLC
ACC WISCONSIN LICENSE LLC
ALEXANDRA CELLULAR CORPORATION
XXXXX CELLTELCO CELLULAR CORPORATION
XXXXX CELLTELCO PARTNERSHIP
AMERICAN CELLULAR WIRELESS LLC
CELLULAR INFORMATION SYSTEMS OF LAREDO, INC.
CHILL CELLULAR CORPORATION
DUTCHESS COUNTY CELLULAR TELEPHONE COMPANY, INC.
PCPCS CORPORATION
By:
---------------------------------------------
Name:
---------------------------------
Title:
---------------------------------
(for all of the above-referenced Guarantors)
SIGNATURE PAGE TO SECOND AMENDMENT
Signature Page to that certain Second Amendment to Credit Agreement dated as of
the date first stated above, among American Cellular Corporation (successor by
merger to ACC Acquisition Co.), AS BORROWER, Bank of America, N.A., as
ADMINISTRATIVE AGENT, certain Lenders, and Guarantors.
BANK OF AMERICA, N.A., as ADMINISTRATIVE
AGENT and a LENDER
By:
-------------------------------------
Name:
----------------------------
Title:
----------------------------
SIGNATURE PAGE TO SECOND AMENDMENT
Signature Page to that certain Second Amendment to Credit Agreement dated as of
the date first stated above, among American Cellular Corporation (successor by
merger to ACC Acquisition Co.), AS BORROWER, Bank of America, N.A., as
ADMINISTRATIVE AGENT, certain Lenders, and Guarantors.
---------------------------------------------,
AS A LENDER
By:
-------------------------------------
Name:
----------------------------
Title:
----------------------------
SIGNATURE PAGE TO SECOND AMENDMENT
Signature Page to that certain Second Amendment to Credit Agreement dated as of
the date first stated above, among American Cellular Corporation (successor by
merger to ACC Acquisition Co.), AS BORROWER, Bank of America, N.A., as
ADMINISTRATIVE AGENT, certain Lenders, and Guarantors.
---------------------------------------------,
AS A LENDER
By:
-------------------------------------
Name:
----------------------------
Title:
----------------------------
By:
-------------------------------------
Name:
----------------------------
Title:
----------------------------
SIGNATURE PAGE TO SECOND AMENDMENT
Signature Page to that certain Second Amendment to Credit Agreement dated as of
the date first stated above, among American Cellular Corporation (successor by
merger to ACC Acquisition Co.), AS BORROWER, Bank of America, N.A., as
ADMINISTRATIVE AGENT, certain Lenders, and Guarantors.
---------------------------------------------,
AS A LENDER
By:
------------------------------------,
its
--------------------------------
By:
---------------------------
Name:
----------------------------
Title:
---------------------------
SIGNATURE PAGE TO SECOND AMENDMENT
Signature Page to that certain Second Amendment to Credit Agreement dated as of
the date first stated above, among American Cellular Corporation (successor by
merger to ACC Acquisition Co.), AS BORROWER, Bank of America, N.A., as
ADMINISTRATIVE AGENT, certain Lenders, and Guarantors.
---------------------------------------------,
AS A LENDER
By:
------------------------------------,
its
--------------------------------
By:
---------------------------
Name:
----------------------------
Title:
---------------------------
By:
---------------------------
Name:
----------------------------
Title:
---------------------------
SIGNATURE PAGE TO SECOND AMENDMENT
Signature Page to that certain Second Amendment to Credit Agreement dated as of
the date first stated above, among American Cellular Corporation (successor by
merger to ACC Acquisition Co.), AS BORROWER, Bank of America, N.A., as
ADMINISTRATIVE AGENT, certain Lenders, and Guarantors.
---------------------------------------------,
AS A LENDER
By:
------------------------------------,
as
---------------------------------
By:
---------------------------
Name:
----------------------------
Title:
---------------------------
SIGNATURE PAGE TO SECOND AMENDMENT
Signature Page to that certain Second Amendment to Credit Agreement dated as of
the date first stated above, among American Cellular Corporation (successor by
merger to ACC Acquisition Co.), AS BORROWER, Bank of America, N.A., as
ADMINISTRATIVE AGENT, certain Lenders, and Guarantors.
---------------------------------------------,
AS A LENDER
By:
------------------------------------,
as
---------------------------------
By:
---------------------------
Name:
----------------------------
Title:
---------------------------
By:
---------------------------
Name:
----------------------------
Title:
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SIGNATURE PAGE TO SECOND AMENDMENT
