Exhibit 10.39
FOURTH AMENDMENT AND CONSENT
FOURTH AMENDMENT AND CONSENT (this "Amendment"), dated as of March
14, 2000, among MJD COMMUNICATIONS, INC., a Delaware corporation (the
"Borrower"), the lenders from time to time party to the Credit Agreement
referred to below (the "Lenders"), FIRST UNION NATIONAL BANK, as Documentation
Agent (the "Documentation Agent"), BANK OF AMERICA, N.A. (f/k/a Bank of America
National Trust and Savings Association, successor by merger to Bank of America,
N.A., f/k/a Nationsbank, N.A., successor by merger to NATIONSBANK OF TEXAS,
N.A.), as Syndication Agent (the "Syndication Agent"), and BANKERS TRUST
COMPANY, as Administrative Agent (the "Administrative Agent" and, together with
the Documentation Agent and the Syndication Agent, collectively, the "Agents").
Unless otherwise indicated, all capitalized terms used herein and not otherwise
defined shall have the respective meanings provided such terms in the Credit
Agreement referred to below.
WITNESSETH:
WHEREAS, the Borrower, the Lenders, the Administrative Agent and the
Syndication Agent are parties to a Credit Agreement, dated as of March 30, 1998
(as amended, modified or supplemented to but not including the date hereof, the
"Credit Agreement");
WHEREAS, the Borrower desires to acquire, directly or indirectly
through a Wholly-Owned Subsidiary of the Borrower, all of the capital stock of
TPG Communications, Inc. ("TPG"), pursuant to, and in accordance with the terms
of, a definitive stock purchase agreement, dated as of December 23, 1999 among
the Borrower, TPG and the selling shareholders specified therein and furnished
to the Agents prior to the date hereof (with such amendments, modifications and
waivers thereto as may be consented to by the Agents after the date hereof, the
"TPG Stock Purchase Agreement"), which acquisition (the "TPG Acquisition"),
after giving effect to this Amendment, will constitute a Permitted Acquisition
effected in accordance with the requirements of the Credit Agreement as amended
by this Amendment; and
WHEREAS, subject to and on the terms and conditions set forth
herein, the parties hereto wish to amend the Credit Agreement and the Lenders
wish to grant certain consents to the Credit Agreement, in each case as provided
below;
NOW, THEREFORE, it is agreed:
1. Notwithstanding anything to the contrary contained in the Credit
Agreement, the Lenders hereby acknowledge and agree that the TPG Acquisition may
be effected as a Permitted Acquisition under the Credit Agreement (and thereupon
constitute a "Permitted Acquisition" for all purposes of the Credit Agreement),
so long as:
(i) the TPG Acquisition shall be effected as a "Permitted
Acquisition" in accordance with all applicable terms of (and meet all
applicable requirements for a Permitted Acquisition under) the Credit
Agreement, including, without limitation, Section 7.07 thereof;
(ii) on or prior to the date of the consummation of the TPG
Acquisition (the "TPG Acquisition Date"), there shall have been delivered
to the Administrative Agent true and correct copies of the TPG Stock
Purchase Agreement and all other documents entered into in connection with
the TPG Acquisition (the "TPG Acquisition Documents"), certified as such
by an Authorized Officer of the Borrower;
(iii) on the TPG Acquisition Date, (w) all TPG Acquisition Documents
shall have been duly executed and delivered by the parties thereto and
shall be in full force and effect, (x) the representations and warranties
set forth in the TPG Acquisition Documents shall be true and correct in
all material respects, (y) each of the conditions precedent to the
Borrower's and its Subsidiaries' obligations to consummate the TPG
Acquisition as set forth in the TPG Acquisition Documents shall have been
satisfied or waived with the consent of the Agents (with all conditions
stated to require the approval or satisfaction of, or to be acceptable to,
the Borrower and/or any of its Subsidiaries to require the approval or
reasonable satisfaction of, or to be reasonably acceptable to, the
Agents), and (z) the TPG Acquisition shall have been consummated in
accordance with all applicable laws and the TPG Acquisition Documents
(without giving effect to any amendment or modification thereof or waiver
with respect thereto unless consented to by the Agents);
(iv) on or prior to the TPG Acquisition Date, the Administrative
Agent shall have received from Paul, Hastings, Xxxxxxxx & Xxxxxx LLP,
special counsel to the Credit Parties, an opinion addressed to the Agents,
the Collateral Agent and each of the Lenders and dated the TPG Acquisition
Date, which opinion shall be in form and substance reasonably satisfactory
to the Administrative Agent and shall cover the matters contained in
Exhibit D-1 relevant to an acquisition similar to the TPG Acquisition and
the Persons becoming Credit Parties as a result of the TPG Acquisition
(including the perfection of security interests in the equity interests
and promissory notes of, or held by, TPG and its Subsidiaries granted
pursuant to the Pledge Agreement);
(v) on the TPG Acquisition Date, all necessary and material
governmental (domestic and foreign) and third party approvals in
connection with the TPG Acquisition and the transactions contemplated by
the TPG Acquisition Documents and this Amendment and otherwise referred to
therein or herein, shall have been obtained and remain in effect, and all
applicable waiting periods shall have expired without any action being
taken by any competent authority which restrains, prevents or imposes, in
the judgment of the Agents, materially adverse conditions upon the
consummation of the TPG Acquisition;
(vi) on the TPG Acquisition Date, after giving effect to the TPG
Acquisition, nothing shall have occurred since December 31, 1999 (and no
Agent shall have become
aware of any facts or conditions not previously known) which any Agent
shall reasonably determine has had, or is reasonably likely to have, (x) a
material adverse effect on the rights or remedies of the Agents or the
Lenders under the Credit Documents or on the ability of the Credit Parties
taken as a whole to perform their respective obligations to the Agents and
the Lenders under the Credit Documents, (y) a Material Adverse Effect or
(z) a material adverse effect on the business, properties, assets,
liabilities or condition (financial or otherwise) of TPG and its
Subsidiaries taken as a whole;
(vii) on the TPG Acquisition Date, no actions, suits or proceedings
shall be pending or, to the knowledge of the Borrower, threatened (a) with
respect to any TPG Acquisition Document or (b) which any Agent shall
reasonably determine (x) has had, or is reasonably likely to have, (I) a
material adverse effect on the rights or remedies of the Agents or the
Lenders under the Credit Documents or on the ability of the Credit Parties
taken as a whole to perform their respective obligations to the Agents and
the Lenders under the Credit Documents or (II) a Material Adverse Effect
or (y) is reasonably likely to have a material adverse effect on the
business, properties, assets, liabilities or condition (financial or
otherwise) of TPG and its Subsidiaries taken as a whole;
(viii) on the TPG Acquisition Date, each of the Administrative Agent
and the trustee under the Permitted Subordinated Debt shall have received
a certificate from the chief financial officer of the Borrower, dated the
TPG Acquisition Date, in form and substance reasonably satisfactory to the
Administrative Agent, containing a representation and warranty that (x)
the incurrence of AF Loans on such date does not violate the terms of any
Permitted Subordinated Debt and (y) the Indebtedness evidenced by the AF
Loans constitutes "Senior Debt" under the documentation governing the
Permitted Subordinated Debt; and
(ix) on the TPG Acquisition Date, the Administrative Agent shall
have received a certificate, dated the TPG Acquisition Date and signed on
behalf of the Borrower by an Authorized Officer of the Borrower, stating
all of the conditions in clauses (i), (ii), (iii), (v), (vi), (vii) and
(viii) above and Sections 4.03 and 4.04 of the Credit Agreement have been
satisfied on such date.
2. Section 4.03(c) of the Credit Agreement is hereby amended by
deleting the ratio "4.0 to 1.0" appearing in said Section and inserting the
ratio "4.5 to 1.0" in lieu thereof.
3. The last paragraph appearing in Section 4 of the Credit Agreement
is hereby amended by (i) deleting the text "and/or 4.03 (in the case of all
Loans)" appearing in the first sentence of said paragraph and inserting ", 4.03
(in the case of all Loans) and/or 4.04 (in the case of AF Loans)" in lieu
thereof and (ii) deleting the text "and 4.02" appearing in the second sentence
of said paragraph and inserting the text ", 4.02 and 4.04" in lieu thereof.
4. Section 4 of the Credit Agreement is hereby amended by inserting
the following new Section 4.04 immediately after Section 4.03 appearing therein:
"4.04 Condition Precedent to Initial AF Loans. The obligation of
each AF Lender to make AF Loans pursuant to the initial Borrowing of such Loans
is subject, at the time of the making of each such AF Loan, to the receipt by
each of the Administrative Agent and the trustee under the Permitted
Subordinated Debt of a certificate from the chief financial officer of the
Borrower, dated the date of the Borrowing of such AF Loans, in form and
substance reasonably satisfactory to the Administrative Agent, containing a
representation and warranty that (x) the incurrence of AF Loans on such date
does not violate the terms of any Permitted Subordinated Debt and (y) the
Indebtedness evidenced by the AF Loans constitutes "Senior Debt" under the
documentation governing the Permitted Subordinated Debt."
5. Section 7.13(b) of the Credit Agreement is hereby amended by
deleting the table appearing in said Section in its entirety and inserting the
following new table in lieu thereof:
"Fiscal Quarter Ending: Ratio
----------------------- -----
Trigger Date
through December 31, 2001 4.50 to 1.0
March 31, 2002
through September 30, 2002 4.00 to 1.0
December 31, 2002
through September 30, 2003 3.50 to 1.0
Thereafter 3.25 to 1.0".
6. The definition of "Permitted CLEC Expenditures" appearing in
Section 9 of the Credit Agreement is hereby amended by deleting the ratio "4.0
to 1.0" appearing in said definition and inserting the ratio "4.5 to 1.0" in
lieu thereof.
7. Each Lender whose name appears on Annex I hereto (each, a
"Committing Lender") hereby notifies the Borrower and the Administrative Agent
that the amount specified on Annex I hereto opposite its name shall be its
Acquisition Commitment and Annex I to the Credit Agreement is hereby amended by
supplementing said Annex with the information appearing in Annex I attached
hereto.
8. In order to induce the Lenders to enter into this Amendment, the
Borrower hereby (i) makes each of the representations, warranties and agreements
contained in Section 5 of the Credit Agreement and (ii) represents and warrants
that there exists no Default or Event of Default, in each case on the Fourth
Amendment Effective Date (as defined below), both before and after giving effect
to this Amendment.
9. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
10. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed
and delivered shall be an original, but all of which shall together constitute
one and the same instrument. A complete set of counterparts shall be lodged with
the Borrower and the Administrative Agent.
11. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
12. This Amendment shall become effective on the date (the "Fourth
Amendment Effective Date") when each of the following conditions shall have been
satisfied:
(i) the Administrative Agent shall have received for the account of
each AF Lender an AF Note, in the amount, maturity and as otherwise
provided in Section 1.05 of the Credit Agreement;
(ii) the Administrative Agent shall have received from each Credit
Party certified copies of resolutions of the Board of Directors of such
Credit Party with respect to the matters set forth in this Amendment and
such resolutions shall be satisfactory to the Administrative Agent;
(iii) except to the extent otherwise agreed in writing by the
Borrower and the respective Committing Lender, the Borrower shall have
paid to (x) each Committing Lender that has provided an Acquisition
Commitment pursuant to Section 7 hereof in an amount that, when added to
the Revolving Commitment (if any) of such Committing Lender and the
aggregate outstanding amount of all Term Loans (if any) made by such
Committing Lender, equals or exceeds $20.0 million, a financing fee of 1/2
of 1% on the amount of such Committing Lender's Acquisition Commitment and
(y) each Committing Lender that has provided an Acquisition Commitment
pursuant to Section 7 hereof in an amount that, when added to the
Revolving Commitment (if any) of such Committing Lender and the aggregate
outstanding amount of all Term Loans (if any) made by such Committing
Lender, is less than $20.0 million, a financing fee of 3/8 of 1% of such
Committing Lender's Acquisition Commitment;
(iv) the Borrower shall have paid to each Agent and the Lenders all
other fees, costs and expenses (including, without limitation, legal fees
and expenses) payable to such Agent and the Lenders to the extent then
due; and
(v) each of the Borrower, each Subsidiary Guarantor, the Lenders
constituting the Required Lenders and each Committing Lender shall have
signed a counterpart hereof (whether the same or different counterparts)
and shall have delivered (including by way of facsimile transmission) the
same to White & Case LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx (facsimile number 212-354-8113).
13. By executing and delivering a copy hereof, each Credit Party
hereby agrees that all Loans (including, without limitation, the AF Loans) shall
be fully guaranteed
pursuant to the Subsidiary Guaranty in accordance with the terms and provisions
thereof and shall be fully secured pursuant to the Pledge Agreement.
14. From and after the Fourth Amendment Effective Date, all
references to the Credit Agreement in the Credit Agreement and the other Credit
Documents shall be deemed to be references to the Credit Agreement as modified
hereby.
* * *
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
MJD COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President of Finance &
Treasurer
BANKERS TRUST COMPANY, Individually
and as Administrative Agent
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
BANK OF AMERICA, N.A., Individually and
as Syndication Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
FIRST UNION NATIONAL BANK,
Individually and as Documentation
Agent
By: /s/ C. Brand Xxxxxxx
------------------------------------
Name: C. Brand Xxxxxxx
Title: Vice President
COBANK, ACB
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
XXXXXX XXXXXXX XXXX XXXXXX
PRIME INCOME TRUST
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
XXXXXX FINANCIAL, INC.
By: /s/ X. Xxxxx Gallebegh
------------------------------------
Name: X. Xxxxx Gallebegh
Title: Vice President
THE TRAVELERS INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Investment Officer
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
CENTURA BANK
By: /s/ Xxxxxxx X. Greek
------------------------------------
Name: Xxxxxxx X. Greek
Title: Corporate Financial Officer
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By: /s/ Daniele X. X. Xxxxxxxx
------------------------------------
Name: Daniele X. X. Xxxxxxxx
Title: Assistant Vice President
FLEET NATIONAL BANK
By: /s/ Xxx Xxxxx
------------------------------------
Name: Xxx Xxxxx
Title: AVP
DELANO COMPANY
By: Pacific Investment Management
Company as its Investment Advisor
By:
------------------------------------
Name:
Title: AVP
MEESPIERSON CAPITAL CORP.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
SENIOR DEBT PORTFOLIO
By BOSTON MANAGEMENT AND
RESEARCH, as Investment Manger
By: /s/ Payson X. Xxxxxxxxx
------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
OXFORD STRATEGIC INCOME FUND
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Duly Authorized Signatory
MERCANTILE BANK NATIONAL
ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
NATIONAL CITY BANK
By: /s/ Xxxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Corporate Banking Officer
Each of the undersigned, each being a Subsidiary Guarantor under,
and as defined in, the Credit Agreement referenced in the foregoing Fourth
Amendment, hereby consents to the entering into of the Fourth Amendment, and
agrees to the provisions thereof (including, without limitation, Sections 13 and
14 thereof).
MJD HOLDINGS CORP.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President of Finance
MID VENTURES, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President of Finance
MJD SERVICES CORP.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President of Finance
ST ENTERPRISES LTD.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President of Finance
ANNEX I
Lender Acquisition Commitment
------ ----------------------
Bankers Trust Company $21,500,000
Bank of America, N.A. $21,500,000
First Union National Bank $21,500,000
Fleet National Bank $20,500,000
Union Bank of California, N.A. $15,000,000
The CIT Group/Equipment Financing, Inc. $10,000,000
National City Bank $25,000,000
Mercantile Bank National Association $15,000,000
General Electric Capital Corporation $15,000,000
------------------------------------ ---------------
Total: $165,000,000.00
