EXHIBIT 10.31.3
AMENDMENT NO. 3 TO CREDIT AGREEMENT
This AMENDMENT NO. 3 TO THE CREDIT AGREEMENT, dated as of November
8, 2004 (this "Amendment"), among XXXXXX CELLULAR SYSTEMS, INC., an Oklahoma
corporation (the "Borrower"), XXXXXX COMMUNICATIONS CORPORATION, an Oklahoma
corporation (the "Parent"), XXXXXX OPERATING CO., L.L.C., an Oklahoma limited
liability company ("DOC"), the Lenders (as defined below) party hereto and the
Administrative Agent (as defined below), amends certain provisions of the Credit
Agreement, dated as of October 23, 2003 and amended by Amendment No. 1, dated as
of March 19, 2004 and Amendment Xx. 0, xxxxx xx xx Xxx 0, 0000, (xx amended, the
"Credit Agreement"), among the Borrower, the Parent, DOC, the several banks and
other financial institutions or entities from time to time party thereto (the
"Lenders"), XXXXXX COMMERCIAL PAPER INC., as administrative agent for the
Lenders (in such capacity, the "Administrative Agent"), XXXXXX BROTHERS INC. and
BEAR, XXXXXXX & CO. INC., as joint lead arrangers and joint book runners, BEAR
XXXXXXX CORPORATE LENDING INC. as syndication agent and XXXXXX XXXXXXX SENIOR
FUNDING, INC., as co- arranger and documentation agent.
W I T N E S S E T H:
WHEREAS, the parties to this Amendment are party to the Credit
Agreement. Capitalized terms defined in the Credit Agreement and not otherwise
defined in this Amendment are used herein as therein defined; and
WHEREAS, the parties hereto have agreed to amend the Credit Agreement
as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1.AMENDMENTS AND WAIVER. Effective upon the Effective Date as
defined in Section 3 hereof, the Credit Agreement is hereby amended as follows:
(A) (I) The following definitions are hereby inserted in Section 1.1
(Defined Terms) of the Credit Agreement, each in the appropriate place to
preserve the alphabetical order of the definitions in such Section 1.1 (and,
where applicable, such definitions shall replace in their entireties the
existing definitions for the corresponding terms in such Section 1.1):
(i) "Commitment Fee Rate": 5/8 of 1% per annum.
(ii) "DOC Interest Coverage Ratio": for any period, the ratio of (a)
Consolidated EBITDA of DOC for such period to (b) Consolidated Interest
Expense of DOC for such period; provided, that for the purposes of the
calculation of Consolidated Interest Expense of DOC pursuant to this
definition there shall be excluded any interest with respect to
Indebtedness of DOC and its Subsidiaries which is owed to the Parent or
any of its Subsidiaries to the extent that such interest is not paid in
cash.
(iii)"DOC Leverage Ratio": as at the last day of any period of four
consecutive fiscal quarters of DOC, the ratio of (a) the aggregate
principal amount of Consolidated Total Debt of DOC which is secured by a
first priority Lien on any assets of DOC or its Subsidiaries (including
Capital Lease Obligations) on such day to (b) Consolidated EBITDA of DOC
for
such period; provided that for purposes of calculating Consolidated
EBITDA of DOC for any period, (i) the Consolidated EBITDA of any Person
acquired by DOC or its Subsidiaries during such period shall be included
on a pro forma basis for such period (assuming the consummation of such
acquisition occurred on the first day of such period) if the consolidated
balance sheet of such acquired Person and its consolidated Subsidiaries as
at the end of the period preceding the acquisition of such Person and the
related consolidated statements of income and stockholders' equity and of
cash flows for the period in respect of which Consolidated EBITDA is to be
calculated (x) have been previously provided to the Administrative Agent
and the Lenders and (y) either (1) have been reported on without a
qualification arising out of the scope of the audit by independent
certified public accountants of nationally recognized standing or (2) have
been found acceptable by the Administrative Agent and (ii) the
Consolidated EBITDA of any Person Disposed of by DOC or its Subsidiaries
during such period shall be excluded for such period (assuming the
consummation of such Disposition and the repayment of any Indebtedness in
connection therewith occurred on the first day of such period).
(iv) "Intercreditor Agreement": the intercreditor agreement, dated as
of November 8, 2004, by and among the Borrower, each of the other Loan
Parties, the Administrative Agent, the Collateral Trustee (as defined in
the 2004 First Lien Indenture) and the Collateral Trustee (as defined in
the 2004 Second Lien Indenture), as the same may be amended, amended and
restated, supplemented or otherwise modified from time to time in
accordance with its terms.
(v) "1998 Credit Agreements": (i) the Third Amended and Restated
Credit Agreement, dated as of March 25, 1998, among Xxxxxx Operating
Company as borrower, Corestates Bank, N.A., as administrative agent,
Toronto Dominion (Texas), Inc., as documentation agent, Nationsbank of
Texas, N.A., as syndication agent and the lenders party thereto, (ii) the
Revolving Credit Agreement, dated as of March 25, 1998, among Xxxxxx
Cellular Operations Company as borrower, First Union National Bank as
syndication agent, Toronto Dominion (Texas), Inc. as documentation agent
and Nationsbank of Texas, N.A., as administrative agent and the lenders
party thereto, and (iii) the 364-Day Revolving Credit and Term Loan
Agreement, dated as of March 25, 1998, among Xxxxxx Cellular Operations
Company as borrower, First Union National Bank as syndication agent,
Toronto Dominion (Texas), Inc., as documentation agent, Nationsbank of
Texas, N.A., as administrative agent and the lenders party thereto.
(vi) "Parent Interest Coverage Ratio": for any period, the ratio of
(a) Consolidated EBITDA of the Parent for such period to (b) Consolidated
Interest Expense of the Parent for such period; provided, that for the
purposes of the calculation of Consolidated Interest Expense of the Parent
pursuant to this definition there shall be excluded any interest with
respect to Indebtedness of DOC and its Subsidiaries which is owed to the
Parent or any of its Subsidiaries to the extent that such interest is not
paid in cash.
(vii) "Revolving Credit Termination Date": October 23, 2008 (or such
earlier date on which the Loans become due and payable pursuant to Section
9).
(viii) "Tower Asset Sale" a Disposition of any telecommunications
tower (including any equipment, real property interests and fixtures which
are appurtenant and integral to such tower).
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(ix) "2004 First Lien Indenture": the indenture, dated as of November
8, 2004, entered into by the Borrower and the Collateral Trustee party
thereto in connection with the issuance of the 2004 First Lien Notes,
together with all instruments and other agreements entered into by the
Borrower and the other Loan Parties in connection therewith, as the same
may be amended, supplemented or otherwise modified from time to time.
(x) "2004 First Lien Notes": (a) the 8-3/8% Fixed Rate Notes due 2011
in a principal amount up to $250,000,000 and (b) the Floating Rate Notes
due 2011 in a principal amount up to $250,000,000, in each case issued by
the Borrower and guaranteed by Parent, DOC and certain of the Borrower's
Subsidiaries, pursuant to the 2004 First Lien Indenture.
(xi) "2004 Notes": (a) the 2004 First Lien Notes and (b) the 2004
Second Lien Notes.
(xii)"2004 Second Lien Indenture": the indenture, dated as of
November 8, 2004, entered into by the Borrower and the Collateral Trustee
party thereto in connection with the issuance of the 2004 Second Lien
Notes, together with all instruments and other agreements entered into by
the Borrower and the other Loan Parties in connection therewith, as the
same may be amended, supplemented or otherwise modified from time to time.
(xiii) "2004 Second Lien Notes": the 9-7/8% Fixed Rate Notes due 2012
in a principal amount up to $325,000,000 issued by the Borrower and
guaranteed by Parent, DOC and certain of the Borrower's Subsidiaries,
pursuant to the 2004 Second Lien Indenture.
(xiv) "Triggering Event" means the occurrence of any Default, other
than a Default resulting from the breach of any representation or warranty
set forth in Section 4; provided, however, that any Default which results
solely from the breach of any financial covenant set forth in Sections 7
and 8 shall not be deemed to be a "Triggering Event" to the extent that,
with respect to a Restricted Payment to be made pursuant to Section
7.6(c)(ii), the Borrower provides a certificate which is reasonably
satisfactory to the Administrative Agent demonstrating that, pursuant to
the 1998 Credit Agreements, a "Triggering Event" (as respectively defined
therein) would not have occurred with respect to the financial covenants
respectively set forth in the 1998 Credit Agreements (prepared on the
assumption that all such financial covenants are in effect at the time of
determination, with such adjustments thereto as are reasonably acceptable
to the Administrative Agent to give effect to such assumption), each of
the foregoing to be determined on a pro forma basis after giving effect to
the applicable Restricted Payment to be made pursuant to Section
7.6(c)(ii).
(II) (i) The definition of Change of Control in Section 1.1 (Defined
Terms) of the Credit Agreement is hereby amended by deleting, in each place
where it appears in such definition, the parenthetical "(except Liens created
pursuant to the Guarantee and Collateral Agreement)" and replacing it in each
case with the following:
(except Liens created pursuant to the Guarantee and Collateral
Agreement and, in accordance with the Intercreditor Agreement, Liens
securing the 2004 Notes)
(ii) the definition of Parent Preferred Stock in Section 1.1
(Defined Terms) of the Credit Agreement is hereby amended by inserting
immediately at the end thereof the following:
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and any other preferred stock of the Parent that refinances or
replaces any of the forgoing, to the extent the principal amount thereof
is not increased and the terms thereof are not materially less favorable
to the Loan Parties and the Lenders than the terms of the preferred stock
so refinanced or replaced.
(III) Any defined term contained in Section 1.1 (Defined Terms) of
the Credit Agreement shall be deemed deleted to the extent that it is no longer
used in the other provisions of the Credit Agreement, after giving effect to the
repayment of the Term Loans and the provisions of this Agreement.
(B) Section 2.12(b) (Mandatory Prepayments) of the Credit Agreement
shall be deleted in its entirety and replaced with the following:
(b) Unless the Required Prepayment Lenders shall otherwise agree,
subject to the Intercreditor Agreement, if on any date DOC or any of its
Subsidiaries shall receive Net Cash Proceeds from any Asset Sale, Purchase
Price Refund or Recovery Event then, unless a Reinvestment Notice shall be
delivered in respect thereof (which may be delivered, and pursuant to
which any such reinvestment may be made, only if no Default or Event of
Default has occurred which is continuing) within 20 days following the
date of receipt by DOC or any of its Subsidiaries of such Net Cash
Proceeds, the Loans shall be prepaid by an amount equal to the amount of
such Net Cash Proceeds, as set forth in Section 2.12(d); provided however
that, (i) subject to the Intercreditor Agreement, on each Reinvestment
Prepayment Date the Loans shall be prepaid by an amount equal to the
Reinvestment Prepayment Amount with respect to the relevant Reinvestment
Event, as set forth in Section 2.12(d); (ii) to the extent that such Net
Cash Proceeds represent proceeds of Primary Collateral (as defined in the
Intercreditor Agreement), the amount of Loans prepaid as a result of the
receipt thereof under this Section shall be equal to the amount necessary
to cause the Lenders and the holders of the other First Lien Obligations
(as defined in the Intercreditor Agreement with respect to such Primary
Collateral) to share in such Net Cash Proceeds on a pro rata basis to the
extent required by the 2004 First Lien Indenture, as in effect on the date
hereof; and (iii) to the extent that such Net Cash Proceeds are
attributable to a Tower Asset Sale then such Net Cash Proceeds shall not
be required to be applied in mandatory prepayment of the Loans pursuant to
this Section unless a Default or an Event of Default shall have occurred
and be continuing at the time such Net Cash Proceeds are received by DOC
or its Subsidiaries. The provisions of this Section do not constitute a
consent to the consummation of any Disposition not permitted by Section
7.5.
(C) Section 2.12(c) (Mandatory Prepayments) of the Credit Agreement
shall be deleted in its entirety.
(D) Section 6.10 (Additional Collateral, Etc.) of the Credit
Agreement shall be amended by inserting immediately after clause (e) thereof,
the following new clause (f)
(f) The foregoing requirements of this Section 6.10 (including the
provision of additional Collateral) shall be subject to the terms and
conditions of the Intercreditor Agreement.
(E) Section 6.11 (Further Assurances) of the Credit Agreement shall
be amended by replacing the word "From" in the first line thereof with the text
"Subject to the provisions of the Intercreditor Agreement, from".
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(F) Section 7.1(a) (DOC Leverage Ratio) of the Credit Agreement shall
be deleted in its entirety and replaced with the following:
(a) DOC Leverage Ratio. Permit, on any date on which there are
Revolving Extensions of Credit outstanding, the DOC Leverage Ratio for the
last day of the four consecutive fiscal quarters of DOC most recently
ended before such date to be less than the ratio set forth opposite the
last day of such four fiscal quarters below:
Fiscal Quarter Ended DOC Leverage Ratio
-------------------- ------------------
September 30, 2004 3.85:1
December 31, 2004 3.85:1
March 31, 2005 3.85:1
June 30, 2005 3.85:1
September 30, 2005 3.85:1
December 31, 2005 3.85:1
March 31, 2006 3.75:1
June 30, 2006 3.65:1
September 30, 2006 3.65:1
December 31, 2006 3.65:1
March 31, 2007 3.50:1
June 30, 2007 3.50:1
September 30, 2007 3.50:1
December 31, 2007 3.25:1
March 31, 2008 3.25:1
June 30, 2008 3.00:1
September 30, 2008 and 3.00:1
each fiscal quarter
ended thereafter
(G) Section 7.1(b) (Parent Leverage Ratio) of the Credit Agreement
shall be deleted in its entirety.
(H) Section 7.1(c) (Parent Interest Coverage Ratio) of the Credit
Agreement shall be deleted in its entirety and replaced with the following:
(c) DOC Interest Coverage Ratio. Permit, on any date on which there
are Revolving Extensions of Credit outstanding, the DOC Interest Coverage
Ratio for the last day of the four consecutive fiscal quarters of DOC most
recently ended before such date to be less than the ratio set forth
opposite the last day of such four fiscal quarters below:
DOC
Fiscal Quarter Ended Interest Coverage Ratio
-------------------- -----------------------
September 30, 2004 2.00:1
December 31, 2004 2.00:1
March 31, 2005 2.00:1
June 30, 2005 2.00:1
September 30, 2005 2.00:1
December 31, 2005 2.00:1
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March 31, 2006 2.00:1
June 30, 2006 2.00:1
September 30, 2006 2.00:1
December 31, 2006 2.00:1
March 31, 2007 2.00:1
June 30, 2007 2.15:1
September 30, 2007 2.25:1
December 31, 2007 2.25:1
March 31, 2008 2.35:1
June 30, 2008 2.45:1
September 30, 2008 and 2.50:1
each fiscal quarter
ended thereafter
(I) Section 7.1(d) (DOC Fixed Charge Coverage Ratio) of the Credit
Agreement shall be deleted in its entirety.
(J) Section 7.1(e) (Limitation on Capital Expenditures) of the Credit
Agreement shall be deleted in its entirety and replaced with the following:
(e) Limitation on Capital Expenditures. Make or commit to make
any Capital Expenditure, except Capital Expenditures of DOC and its
Subsidiaries in the ordinary course of business not exceeding in any
fiscal year of DOC, an amount equal to the sum of (w) $150,000,000, (x)
33.33% of the amount of increase (if any) of Consolidated EBITDA of DOC
for the preceding fiscal year compared to the previous fiscal year
thereto, (y) the amount of cash capital contributions made by the Parent
to DOC or any of its Subsidiaries during such fiscal year for the purpose
of making Capital Expenditures in such fiscal year and (z) the amount of
any Supplemental Capital Expenditures permitted to be made during such
fiscal year in connection with a Permitted Acquisition; provided that (A)
100% of any such amount referred to above, if not so expended in cash in
the fiscal year for which it is permitted, may be carried over for
expenditure in the next succeeding fiscal year only and (B) Capital
Expenditures made during any fiscal year shall be deemed made, first, in
respect of amounts permitted for such fiscal year as provided above and
second, in respect of amounts carried over from the prior fiscal year
pursuant to clause (A) above.
(K) Section 7.2 (Limitation on Indebtedness) of the Credit Agreement
shall be amended by (x) inserting in clause (d) thereof, immediately after the
words "or extensions thereof", the words "or of any other Indebtedness incurred
in accordance with the provisions of this Agreement", and (y) deleting the "and"
at the end of clause (k) thereof, replacing the period at the end of clause (l)
thereof with the a semicolon and inserting new clauses (m) and (n) at the end
thereof to read in their entireties as follows:
(m) Indebtedness of any Loan Party arising from sales and
leasebacks of Tower Assets in an aggregate principal amount not to
exceed $75,000,000; and
(n) Indebtedness of any Loan Party outstanding pursuant to the
2004 First Lien Indenture, the 2004 Second Lien Indenture and the
2004 Notes issued thereunder.
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(L) Section 7.3 (Limitation on Liens) of the Credit Agreement shall
be amended by deleting the "and" at the end of clause (j) thereof, replacing the
period at the end of clause (k) thereof with the text "; and" and inserting a
new clause (l) at the end thereof to read in its entirety as follows:
(l) Subject to the provisions set forth in the Intercreditor
Agreement, (x) Liens created pursuant to the 2004 First Lien
Indenture and the security documents from time to time delivered in
respect thereof, to secure any obligations arising under the 2004
First Lien Notes, and (y) Liens created pursuant to the 2004 Second
Lien Indenture and the security documents from time to time delivered
in respect thereof, to secure any obligations arising under the 2004
Second Lien Notes.
(M) Section 7.5 (Limitation on Disposition of Property) of the Credit
Agreement shall be amended by deleting the "and" at the end of clause (f)
thereof, replacing the period at the end of clause (g) thereof with the text ";
and" and inserting a new clause (h) at the end thereof to read in its entirety
as follows:
(h) provided that no Default has occurred and is continuing or
would result therefrom, any Tower Asset Sale on arms length terms for not
less than the Fair Market Value.
(N) Section 7.5(e) (Limitation on Disposition of Property) of the
Credit Agreement shall be deleted in its entirety and replaced with the
following:
(e) Dispositions of assets which are Permitted Asset Swaps,
having a Fair Market Value not to exceed in aggregate (i) $350,000,000 in
any fiscal year of DOC (provided that the Maryland/Michigan Swap shall be
deemed consummated in the fiscal year of DOC ended December 31, 2003 for
the purposes of the foregoing dollar limitation) and (ii) $700,000,000
during the term of this Agreement; provided that in calculating the Fair
Market Value with respect to each Permitted Asset Swap pursuant to this
Section 7.5(e), there shall be subtracted from such amount of Fair Market
Value the amount of any cash consideration received pursuant to such
Permitted Asset Swap to the extent that such cash consideration exceeds
30% of the total consideration received pursuant to such Permitted Asset
Swap (such subtracted amount to be in the amount of such excess);
(O) Section 7.6(c) (Limitation on Restricted Payments) of the Credit
Agreement shall be deleted in its entirety and replaced with the following:
(c) (i) so long as no Default shall have occurred and be
continuing or would result therefrom (determined on a pro forma basis
after giving effect thereto), the Borrower may pay dividends or make loans
to DOC and DOC may pay dividends to the Parent: (1) to pay corporate
overhead expenses incurred in the ordinary course of business (which have
been allocated to DOC and its Subsidiaries, and are in amounts, in
accordance with Section 8.7); (2) to pay Taxes which are then due and
payable by the Parent and DOC as part of a consolidated group pursuant to
the Tax Sharing Agreement (except any such Taxes which are attributable to
Subsidiaries of the Parent other than DOC and its Subsidiaries); (3) to
pay regularly scheduled interest payments which are due and payable with
respect to the Parent Notes; (4) to pay regularly scheduled dividends
which are then due and payable with respect to the Parent Preferred Stock
(to the extent required, or elected by the Parent, to be paid in cash);
and (5) for any other purpose; provided that, with respect to any such
Restricted
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Payment made pursuant to this clause (5), the amount of Liquidity
immediately before and after giving effect thereto, shall not be less than
$10,000,000; and
(ii) so long as no Triggering Event shall have occurred and
be continuing or would result therefrom, the Borrower may declare and make
Restricted Payments, pay dividends or make loans to DOC and DOC may
declare and make Restricted Payments, pay dividends to the Parent to pay
regularly-scheduled cash distributions or cash interest payments on each
series of Parent Preferred Stock and the related exchange debentures, if
any. If any Triggering Event has occurred and is continuing, the Borrower
and DOC may only declare and make such Restricted Payments, dividends or
loans in accordance with the following terms, conditions, and limitations:
(1) the amount of any such Restricted Payment (when aggregated with the
amounts of all other Restricted Payments, dividends, loans and investments
for such purposes from all other Subsidiaries of the Parent) shall not
exceed (A) amounts then required to make any cash payment of dividends on
the Parent Preferred Stock or interest on the related exchange debentures,
if issued, which cash payments are past due, by reason of such Triggering
Event and (B) the next regularly scheduled cash payment of the dividend on
the Parent Preferred Stock or interest on the exchange debenture, if
issued; provided, that the restrictions in this clause (1) shall terminate
on the date which 180 days following the date of notice by the
Administrative Agent to the Borrower of the existence of the applicable
Triggering Event (or from the date of such notice of the earliest such
Triggering Event, if more than one exists); (2) such Triggering Event is
not a Default set forth in Sections 9(a), 9(f) or 9(m); and (3) the Loans
and other Obligations shall not have been accelerated pursuant to Section
9.
(P) Section 7.7(e) (Limitation on Investments) of the Credit
Agreement shall be deleted in its entirety and replaced with the following:
(e) Permitted Acquisitions, the Purchase Price of which shall
not exceed (i) with respect to any Permitted Acquisitions which are
Permitted Asset Swaps, in aggregate, (x) $350,000,000 in any fiscal year
of DOC (provided that the Maryland/Michigan Swap shall be deemed
consummated in the fiscal year of DOC ended December 31, 2003 for the
purposes of the foregoing dollar limitation) and (y) $700,000,000 during
the term of this Agreement and (ii) with respect to all other Permitted
Acquisitions, (x) $60,000,000 individually, (y) $125,000,000 in aggregate
in any fiscal year of DOC and (z) $475,000,000 in aggregate during the
term of this Agreement; provided that any Permitted Acquisition financed
with (A) the proceeds of a capital contribution made by the Parent to DOC
and its Subsidiaries for the purposes of consummating such Permitted
Acquisition (and so applied within 90 days of the Parent making such
capital contribution) or (B) the cash portion of the consideration
received pursuant to a Permitted Asset Swap or any other Disposition of
Cellular/PCS Assets (to the extent that such cash is used within 12 months
of receipt by DOC, the Borrower or any Subsidiary Guarantor in
consummating a Permitted Acquisition of Cellular/PCS Assets), shall not be
subject to the foregoing dollar limitations set forth in this clause (e);
and
(Q) Section 7.8(a) (Limitation on Optional Payments and Modifications
of Debt Instruments, etc.) of the Credit Agreement shall be amended by
inserting, immediately after the words "long-term indebtedness of the Parent or
its Subsidiaries" the following text: "(including the 2004 Second Lien Notes but
excluding the 2004 First Lien Notes)".
(R) Section 7.8(b) (Limitation on Optional Payments and
Modifications of Debt Instruments, etc.) of the Credit Agreement shall be
amended by inserting, immediately after the words
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"long-term indebtedness of the Parent or its Subsidiaries" the following text:
"(including the 2004 Notes)".
(S) Section 7.10 (Limitation on Sales and Leasebacks) of the Credit
Agreement shall be amended by inserting at the end of such Section the
following:
other than sales and leasebacks with respect to Tower Assets to
the extent permitted by the other provisions of this Agreement.
(T) Section 7.12 (Limitation on Negative Pledge Clauses) of the
Credit Agreement shall be amended by replacing the "and" at the end of clause
(b) thereof with a comma, replacing the period at the end of clause (c) thereof
with the text " and" and inserting a new clause (d) at the end thereof to read
in its entirety as follows:
(d) the 2004 First Lien Indenture and the 2004 Second Lien
Indenture.
(U) Section 7.13 (Limitation on Restrictions on Subsidiary
Distributions) of the Credit Agreement shall be amended by replacing the "and"
at the end of clause (i) thereof with a comma, replacing the period at the end
of clause (ii) thereof with the text " and" and inserting a new clause (iii) at
the end thereof to read in its entirety as follows:
(iii)any restrictions with respect to a Subsidiary imposed
pursuant to the 2004 First Lien Indenture, the 2004 Second Lien Indenture
and the 2004 Notes.
(V) Section 8.1 (Limitation on Indebtedness) of the Credit Agreement
shall be deleted in its entirety and replaced with the following:
Limitation on Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness, except (i) Indebtedness existing on the Closing
Date set forth on Schedule 8.1 and any refinancings, refundings, renewals
or extensions thereof or of any other Indebtedness incurred in accordance
with the provisions of this Agreement (without any increase in the
principal amount thereof outstanding at the time of such refinancing,
refunding, renewal or extension, or any shortening of the maturity of any
principal amount thereof (except where such shorter maturity is not
earlier than the date which is six months following to the Revolving
Credit Termination Date) and otherwise on terms not materially less
favorable to the Parent and the Lenders than under the refinanced,
refunded, renewed or extended Indebtedness); (ii) Indebtedness (including
Capital Lease Obligations) secured by Liens permitted by Section 8.2(g) in
an aggregate principal amount not to exceed $20,000,000 at any one time
outstanding; (iii) additional unsecured Indebtedness (x) on terms which
are not materially less favorable to the Parent and the Lenders than those
contained in the New Parent Notes Indenture and (y) the aggregate amount
of which shall not exceed $200,000,000; provided, that upon the incurrence
of any such Indebtedness pursuant to this clause (y), the Parent Interest
Coverage Ratio for the four fiscal quarter period of the Parent most
recently ended prior to the date of such Incurrence shall be at least 1.15
to 1 (determined on a pro forma basis giving effect to the incurrence of
such Indebtedness on the first day of such period); (iv) its Guarantee
Obligations pursuant to the Guarantee and Collateral Agreement; and (v)
Guarantee Obligations with respect to any other Indebtedness of Borrower
or any Subsidiary Guarantor which is permitted to be incurred by Section
7.2.
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(W) Section 8.2 (Liens) of the Credit Agreement shall be amended by
replacing the "and" at the end of clause (f) thereof with a comma, replacing the
comma at the end of clause (g) thereof with the text " and" and inserting a new
clause (h) at the end thereof to read in its entirety as follows:
(h) Subject to the provisions set forth in the Intercreditor
Agreement, (x) Liens created pursuant to the 2004 First Lien Indenture and the
security documents from time to time delivered in respect thereof, to secure any
obligations arising under the 2004 First Lien Notes, and (y) Liens created
pursuant to the 2004 Second Lien Indenture and the security documents from time
to time delivered in respect thereof, to secure any obligations arising under
the 2004 Second Lien Notes.
(X) Section 8.3 (Limitation on Restricted Payments and Investments)
of the Credit Agreement shall be deleted in its entirety.
(Y) Section 8.4 (Limitation on Optional Payments and Modifications of
Debt Instruments) of the Credit Agreement shall be deleted in its entirety.
(Z) Section 8.5 (Limitation on Negative Pledge Clauses) of the Credit
Agreement shall be amended by replacing the "and" at the end of clause (b)
thereof with a comma, replacing the period at the end of clause (c) thereof with
the text " and" and inserting a new clause (d) at the end thereof to read in its
entirety as follows:
(d) the 2004 First Lien Indenture, the 2004 Second Lien
Indenture and the 2004 Notes.
(AA) Section 8.10 (Holding Company Status) of the Credit Agreement
shall be deleted in its entirety.
(BB) Section 10.1 (Appointment) of the Credit Agreement shall be
amended by inserting the text "In addition, each Lender irrevocably authorizes
each Agent, in such capacity, to execute the Intercreditor Agreement on its
behalf." immediately after the text "together with such other powers as are
reasonably incidental thereto." in the 6th line thereof.
(CC) Section 11.15 (Release of Collateral and Guarantee Obligations)
of the Credit Agreement shall be amended by replacing the word "Notwithstanding"
in the first line of clauses (a) and (b) thereof with the text "Subject to the
provisions of the Intercreditor Agreement, notwithstanding".
(DD) Any Default or Event of Default, which arises solely from the
issuance of the 2004 Notes and the granting of Liens (in accordance with the
Intercreditor Agreement) with respect thereto immediately prior to the
occurrence of the Effective Date, is hereby waived as of the Effective Date.
SECTION 2.PREPAYMENT OF TERM LOANS AND REDUCTION OF REVOLVING CREDIT
COMMITMENTS.
(A) Pursuant to Section 2.11 (Optional Prepayments) of the Credit
Agreement, by its execution of this Amendment, the Borrower hereby gives
irrevocable notice to the Administrative Agent that it shall prepay the
aggregate amount of the Term Loans in full on the Effective Date.
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(B) Pursuant to Section 2.10 (Termination or Reduction of Revolving
Credit Commitments) of the Credit Agreement, by its execution of this Amendment,
the Borrower hereby gives irrevocable notice to the Administrative Agent that,
effective on the Effective Date, the aggregate amount of Revolving Credit
Commitments shall be permanently reduced to $75,000,000 (such reduction to be
made ratably among the Revolving Credit Commitments of each Lender).
SECTION 3.CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective when each of the following conditions precedent have been satisfied
(the "Effective Date") or duly waived by the Administrative Agent:
(A) Documents: The Administrative Agent shall have received in each
case in form and substance satisfactory to the Administrative Agent:
(i) this Amendment, executed and delivered by the Borrower, the
Parent, DOC and those Lenders constituting the Required Lenders upon
giving effect to this Amendment or, as to any of such Lenders, evidence
satisfactory to the Administrative Agent that such Lender has executed
this Amendment;
(ii) the Consent of Grantors in the form attached hereto,
executed and delivered by each Grantor;
(iii)copies of the 2004 First Lien Indenture and the 2004 Second
Lien Indenture and all security and other documents executed and delivered
by the Borrower and the Guarantors in respect thereof;
(iv) the Intercreditor Agreement, executed and delivered by the
Borrower, each other Loan Party party thereto, the Administrative Agent,
the Collateral Trustee (as defined in the 2004 First Lien Notes) and the
Collateral Trustee (as defined in the 2004 Second Lien Indenture); and
(v) a legal opinion of counsel to the Loan Parties in form and
substance reasonably satisfactory to the Administrative Agent.
(B) Transactions: The Borrower shall have received not less than
$825,000,000 in aggregate principal amount of gross proceeds from the issuance
of the 2004 Notes, which shall have been immediately applied, to the extent
necessary, in repayment to the Lenders of the aggregate principal amount of the
Term Loans and the Revolving Extensions of Credit in full, together with all
accrued unpaid interest with respect thereto.
(C) Fees and Expenses.
(i) the Borrower shall have paid to the Administrative Agent,
for the account of each Lender that has delivered a signature page to this
Amendment duly executed by it to the Administrative Agent or its counsel
by not later than 5.00 pm (New York time) on November 8, 2004, an
amendment fee equal to 0.50% of such Lender's Revolving Credit Commitments
as of the Effective Date (calculated after giving effect to the reduction
of the Revolving Credit Commitments pursuant to Section 2(B) above); and
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(ii) the Borrower shall have paid to the Administrative Agent
all accrued and invoiced expenses payable pursuant to Section 11.5
(Payment of Expenses) of the Credit Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Each of the Borrower and
DOC hereby represents and warrants that each of the representations and
warranties made by it in the Credit Agreement, as amended hereby, and the other
Loan Documents to which it is a party or by which it is bound, shall be true and
correct in all material respects on and as of the date hereof (other than
representations and warranties in any such Loan Document which expressly speak
as of a specific date, which shall have been true and correct in all material
respects as of such specific date) and no Default or Event of Default has
occurred and is continuing as of the date hereof.
SECTION 5. EXECUTION IN COUNTERPARTS. This Amendment may be executed
in any number of counterparts and by different parties in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Signature
pages may be detached from multiple separate counterparts and attached to a
single counterpart so that all signature pages are attached to the same
document. Delivery of an executed counterpart by telecopy shall be effective as
delivery of a manually executed counterpart of this Amendment.
SECTION 6. CONSTRUCTION WITH THE LOAN DOCUMENTS; MISCELLANEOUS. On
and after satisfaction of the conditions set forth in Section 2 hereof, each
reference in the Credit Agreement to "this Agreement," "hereunder," "hereof,"
"herein," or words of like import, and each reference in the other Loan
Documents to the Credit Agreement, shall mean and be a reference to the Credit
Agreement as amended hereby, and this Amendment and the Credit Agreement shall
be read together and construed as a single instrument. The table of contents,
signature pages and list of Exhibits and Schedules of the Credit Agreement shall
be modified, and all provisions relating solely to the Term Loans shall be
deemed deleted upon the payment in full of the Term Loans together with all
other Obligations with respect thereto, in each case to reflect the changes made
in this Amendment as of the Effective Date. Except as expressly amended hereby
or specifically waived above, all of the terms and provisions of the Credit
Agreement and all other Loan Documents are and shall remain in full force and
effect and are hereby ratified and confirmed. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of the Lenders, the Issuing
Lender, the Arrangers, the Administrative Agent or any other Agent under any of
the Loan Documents, nor constitute a waiver or amendment of any other provision
of any of the Loan Documents or for any purpose except as expressly set forth
herein. Each Required Lender hereby authorizes and instructs the Administrative
Agent to enter into the Intercreditor Agreement and agrees that, in the event of
any conflict between any provision of the Intercreditor Agreement and any
provisions of the Collateral Documents, such provision of Intercreditor
Agreement shall, to the extent of such conflict, control. This Amendment and the
Intercreditor Agreement are each a Loan Document.
SECTION 7. GOVERNING LAW. This Amendment is governed by the law of
the State of New York.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
XXXXXX CELLULAR SYSTEMS, INC.,
as Borrower
By:
--------------------------
Name:
Title:
XXXXXX OPERATING CO., L.L.C.
By:
--------------------------
Name:
Title:
XXXXXX COMMUNICATIONS CORPORATION
By:
--------------------------
Name:
Title:
XXXXXX COMMERCIAL PAPER INC.,
as Administrative Agent, Swingline Lender
and a Lender
By:
--------------------------
Name:
Title:
[insert Lender name]
By:
--------------------------
Name:
Title:
CONSENT OF GRANTORS
Dated as of , 2004
-----------
Each of the undersigned, as a Grantor under the Guarantee and
Collateral Agreement dated as of October 23, 2003 (the "Guarantee and Collateral
Agreement"), in favor of Xxxxxx Commercial Paper Inc., as Administrative Agent
under the Credit Agreement referred to in the foregoing Amendment No. 3, hereby
consents to such Amendment and hereby confirms and agrees that notwithstanding
the effectiveness of such Amendment, the Guarantee and Collateral Agreement is,
and shall continue to be, in full force and effect and is hereby ratified and
confirmed in all respects, except that, on and after the effectiveness of such
Amendment, each reference in the Guarantee and Collateral Agreement to the
"Credit Agreement", "thereunder", "thereof" or words of like import shall mean
and be a reference to the Credit Agreement, as amended by such Amendment.
XXXXXX CELLULAR SYSTEMS, INC.,
as Borrower and a Subsidiary Grantor
By:
--------------------------
Name:
Title:
XXXXXX OPERATING CO., L.L.C.,
as a Guarantor and Subsidiary Grantor
By:
--------------------------
Name:
Title:
XXXXXX COMMUNICATIONS CORPORATION,
as Parent and a Grantor
By:
--------------------------
Name:
Title:
DOC LEASE CO., LLC,
as a Guarantor and Subsidiary Grantor
By:
--------------------------
Name:
Title:
