Exhibit 10.1.6
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of August 1, 2003 (this "Amendment and Waiver"),
to the credit agreement dated as of January 7, 1999, as amended and restated as
of February 29, 2000, as amended by Amendment No. 1 dated as of July 28, 2000,
Amendment No. 2 dated as of August 3, 2001, Amendment No. 3 dated as of
September 5, 2001 and Amendment No. 4 dated as of June 19, 2003 (as so amended,
as hereby amended and as otherwise amended, restated, modified or supplemented
from time to time, the "Credit Agreement"), among CENTENNIAL CELLULAR OPERATING
CO. LLC, as Borrower; CENTENNIAL PUERTO RICO OPERATIONS CORP., as PR Borrower;
CENTENNIAL COMMUNICATIONS CORP. (formerly known as Centennial Cellular Corp.),
as a Guarantor ("Parent"); the other Guarantors party thereto; each of the
lenders from time to time party thereto (individually, a "Lender" and,
collectively, the "Lenders"); XX XXXXXX XXXXX BANK (formerly known as The Chase
Manhattan Bank), as co-lead arranger and co-syndication agent (in such capacity,
together with its successors in such capacity, "XX Xxxxxx Xxxxx"); XXXXXXX XXXXX
& CO. and XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED, as co-lead
arrangers and co-syndication agents (in such capacity, together with their
successors in such capacity, and XX Xxxxxx Chase, the "Co-Syndication Agents");
BANK OF AMERICA, N.A., as arranger and administrative agent (in such capacity,
together with its successors in such capacity, the "Administrative Agent"); and
THE BANK OF NOVA SCOTIA, as documentation agent (in such capacity, together with
its successors in such capacity, the "Documentation Agent"). Capitalized terms
used herein and not otherwise defined shall have the meanings ascribed to them
in the Credit Agreement, as amended hereby.
INTRODUCTION
(A) Borrower and PR Borrower have requested, and the Majority Lenders and
the Administrative Agent have agreed, to certain waivers and modifications of
the Credit Agreement as hereinafter set forth.
(B) From and after the Effective Date (as hereinafter defined) of this
Amendment and Waiver, the provisions of the Credit Agreement specified below
shall be waived or amended, as the case may be, but only upon and subject to the
terms and conditions set forth herein.
(C) In consideration of the mutual agreements contained herein and other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto hereby agree as follows:
ARTICLE I
WAIVERS
Section 1.1. Waivers.
(a) On the terms and subject to the conditions set forth in this Amendment
and Waiver, the Administrative Agent and the Majority Lenders hereby waive the
Obligor's obligations under Section 2.10(a)(ii) of the Credit Agreement solely
to the extent that the Net Available Proceeds resulting from the Fifth Amendment
Equity Issuance (as hereinafter defined) are used to prepay outstanding Parent
Subordinated Notes (including, without limitation, any accrued and unpaid
interest) (it being expressly acknowledged and agreed for the avoidance of doubt
that the terms of Section 2.10(a)(ii) of the Credit Agreement shall apply to and
be fully effective with respect to any Net Available Proceeds resulting from
(i) the Fifth Amendment Equity Issuance in excess of the amount used to prepay
outstanding Parent Subordinated Notes (including, without limitation, any
accrued and unpaid interest), or (ii) any other Equity Issuance).
(b) On the terms and subject to the conditions set forth in this Amendment
and Waiver, the Administrative Agent and the Majority Lenders hereby waive the
Obligor's obligations under Section 9.23(a) of the Credit Agreement solely to
the extent necessary to permit the Parent, in accordance with Section 1.1(a)
above, to prepay outstanding Parent Subordinated Notes (including, without
limitation, any accrued and unpaid interest) from the Net Available Proceeds
resulting from the Fifth Amendment Equity Issuance.
ARTICLE II
AMENDMENTS TO THE CREDIT AGREEMENT
Section 2.1. Amendments.
(a) Section 1.01 of the Credit Agreement is hereby amended by inserting
the following new definitions therein in correct alphabetical order:
"Amendment No. 5" shall mean Amendment No. 5 dated as of August 1,
2003 to this Agreement.
"Amendment No. 5 Effective Date" shall mean the Effective Date, as
such term is defined in Amendment No. 5.
"Fifth Amendment Equity Issuance" shall mean the issuance by the
Parent of up to $250 million of common stock on or prior to January
31, 2004 pursuant to a registered public offering.
"Fifth Amendment Equity Issuance Documents" shall mean any
underwriting agreement relating to the Fifth Amendment Equity
Issuance and any documents to be executed and delivered by the
Obligors pursuant to such underwriting agreement.
"Fifth Amendment Equity Issuance Proceeds" shall mean the gross
proceeds resulting from the Fifth Amendment Equity Issuance.
(b) Section 9.21 of the Credit Agreement is hereby amended by adding the
following sentence at the end thereof:
"Notwithstanding anything herein to the contrary, so long as no
Default has occurred and is continuing or would otherwise arise therefrom,
the Parent may enter into customary underwriting or purchase agreements in
connection with any Equity Issuance or Debt Issuance otherwise permissible
under the terms of this Agreement and the other Credit Documents."
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ARTICLE III
AUTHORIZATIONS AND CONSENTS
Section 3.1. Fifth Amendment Equity Issuance. The Administrative Agent and the
Majority Lenders hereby consent to the Fifth Amendment Equity Issuance;
provided, that the Fifth Amendment Equity Issuance shall be consummated not
later than January 31, 2004.
ARTICLE IV
ADDITIONAL AGREEMENTS
In order to induce the Administrative Agent and the Majority Lenders to enter
into this Amendment and Waiver, the Borrower and each of the Obligors hereby
agree as follows:
Section 4.1. Use of Fifth Amendment Equity Issuance Proceeds. The Fifth
Amendment Equity Issuance Proceeds shall be used solely (i) for the prepayment
of the Parent Subordinated Notes (including, without limitation, any accrued and
unpaid interest), (ii) for the payment of reasonable and customary transaction
costs incurred in connection with the Fifth Amendment Equity Issuance, and (iii)
for general corporate purposes in accordance with the terms and provisions of
the Credit Agreement.
Section 4.2. Fee to Approving Lenders. As an inducement to the Lenders and the
Administrative Agent to enter into this Amendment and Waiver, the Borrower
agrees to pay to the Administrative Agent, for the benefit of each Lender that
executes and delivers this Amendment and Waiver on or prior to 11:00 a.m.
(Eastern time) on August 1, 2003 (each such Lender an "Amendment No. 5 Approving
Lender"), a fee (an "Approving Lenders Fee") in an amount equal to 0.125%
(one-eighth of one percent) of the sum of (i) the aggregate outstanding
principal amount of such Amendment No. 5 Approving Lender's Term Loans and (ii)
such Amendment No. 5 Approving Lender's Revolving Credit Commitment. Such
Approving Lenders Fee shall be earned only upon and shall be payable upon the
closing date of the Fifth Amendment Equity Issuance.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.1. Representations and Warranties. Each of the Obligors represents and
warrants (which representations and warranties shall survive the execution and
delivery hereof) to the Creditors that:
(a) it has the corporate power and authority to execute, deliver and
perform the terms and provisions of this Amendment and Waiver and the
transactions contemplated hereby and has taken or caused to be taken all
necessary corporate action to authorize the execution, delivery and performance
of this Amendment and Waiver and the transactions contemplated hereby;
(b) no Default or Event of Default shall have occurred and be continuing;
(c) the representations and warranties of the Obligors contained in the
Credit Agreement and in the other Credit Documents are true and complete in all
material respects on and as of the Effective Date (as defined in Section 6.1
below) with the same force and effect as if made on and as of the Effective Date
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(except to the extent that such representations and warranties expressly relate
to an earlier date, in which case such representations and warranties shall be
true and correct in all material respects as of such earlier date;
(d) as of July 31, 2003, the outstanding principal amount of the Parent
Subordinated Notes, together with all accrued and unpaid interest thereon was
approximately $207,833,733;
(e) giving effect to this Amendment and Waiver, the Fifth Amendment Equity
Issuance shall not cause a Default or Event of Default under the Credit
Documents, the Parent Financing Documents, the Senior Subordinated Notes
Financing Documents or any other agreements to which the Obligors may be a
party; and
(f) the execution, delivery and performance of this Amendment and Waiver,
and the other instruments and documents contemplated hereby will not violate any
law, statute or regulation, or any order or decree of any court or governmental
instrumentality, or conflict with, or result in the breach of, or constitute a
default under any contractual obligation of such party.
ARTICLE VI
EFFECTIVENESS
Section 6.1. Effective Date. This Amendment and Waiver shall become effective on
the date on which all of the following conditions precedent shall have been
satisfied, or waived in writing (such date being referred to herein as the
"Effective Date"):
(a) the Administrative Agent shall have received fully executed
counterparts of this Amendment and Waiver executed by (i) the Obligors, (ii) the
Administrative Agent and (iii) the Majority Lenders;
(b) the Administrative Agent shall have received a reasonably detailed
list of all fees and transaction costs incurred in connection with the Fifth
Amendment Equity Issuance;
(c) the Administrative Agent shall have received fully executed copies of
each of the Fifth Amendment Equity Issuance Documents;
(d) all representations and warranties contained in this Amendment and
Waiver or otherwise made in writing to the Administrative Agent and the Lenders
in connection herewith shall be true and correct in all material respects;
(e) the Administrative Agent and the Lenders shall have received payment
of all fees and other amounts due and payable on or prior to the Effective Date,
including to the extent invoiced, reimbursement or payment of all out-of-pocket
expenses (including, without limitation, the reasonable fees and disbursements
of Xxxxxxxx Chance US LLP and FTI Consulting, Inc., financial advisor to
Xxxxxxxx Chance US LLP ("FTI")), required to be reimbursed or paid by any
Obligor hereunder or under any other Credit Document;
(f) the Administrative Agent and its counsel shall have received such
approvals, information, materials and documentation as the Administrative Agent
or its counsel may reasonably request, which approvals, information, materials
and documentation shall be satisfactory in form and substance to the
Administrative Agent and its counsel; and
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(g) all legal matters incident to this Amendment and Waiver and the
effects hereof or any of the Credit Documents shall be acceptable to the
Administrative Agent and its counsel.
ARTICLE VII
ACKNOWLEDGEMENTS
Section 7.1. Confirmation and Acknowledgement of the Obligations. Each of
Borrower, Parent and PR Borrower hereby reaffirms and admits the validity and
enforceability of the Credit Agreement and the Credit Documents and the Liens on
the Collateral which were granted pursuant to any of the Credit Documents or
otherwise.
Section 7.2. Acknowledgement and Consent by Guarantors.
(a) Each of the Guarantors hereby acknowledges that it has read this
Amendment and Waiver and consents to the terms hereof and further confirms and
agrees that, notwithstanding the effectiveness of this Amendment and Waiver, its
obligations pursuant to the Credit Documents shall not be impaired and its
guarantee pursuant to the Credit Agreement is, and shall continue to be, in full
force and effect and is hereby confirmed and ratified in all respects.
(b) Each of the Guarantors hereby reaffirms and admits the validity and
enforceability of the Credit Agreement and the Credit Documents to which it is a
party and the Liens on the Collateral which were granted by it pursuant to any
of the Credit Documents or otherwise.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Consultation with Advisors. Each of the Obligors acknowledges that
it has consulted with counsel and with such other experts and advisors as it has
deemed necessary in connection with the negotiation, execution and delivery of
this Amendment and Waiver.
Section 8.2. Limited Waiver or Modification; Ratification of Credit Agreement.
(a) Except to the extent hereby expressly waived or modified, the Credit
Agreement and each of the Credit Documents remain in full force and effect and
are hereby ratified and confirmed.
(b) This Amendment and Waiver shall be limited precisely as written and
shall not be deemed: (i) to be a consent granted pursuant to, or a waiver or
modification of, any other term or condition of the Credit Agreement or any of
the instruments or agreements referred to therein or a waiver of any Default or
Event of Default under the Credit Agreement, whether or not known to the
Creditors; or (ii) to prejudice any right or rights which the Creditors may now
have or have in the future under or in connection with any Credit Document or
any of the instruments or agreements referred to in a Credit Document. Except to
the extent hereby modified, the Credit Agreement and each of the Credit
Documents shall continue in full force and effect in accordance with the
provisions thereof on the date hereof and the Credit Agreement as heretofore
amended or modified and as modified by this Amendment and Waiver are hereby
ratified and confirmed.
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Section 8.3. References. All references to the "Credit Agreement," "this
Agreement," "herein," "hereafter," "hereto," "hereof," and words of similar
import appearing in the Credit Agreement, shall, unless the context otherwise
requires, mean the Credit Agreement as modified by this Amendment and Waiver.
Reference to the terms "Agreement" or "Credit Agreement" appearing in the
Exhibits or Schedules to the Credit Agreement or in the other Credit Documents
shall, unless the context otherwise requires, mean the Credit Agreement as
modified by this Amendment and Waiver. This Amendment and Waiver shall be deemed
to have been jointly drafted, and no provision of it shall be interpreted or
construed for or against any party hereto because such party purportedly
prepared or requested such provision, any other provision, or this Amendment and
Waiver as a whole.
Section 8.4. Counterparts. This Amendment and Waiver may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument. Delivery of an executed signature page to this Amendment and
Waiver by facsimile shall be as effective as delivery of a manually executed
counterpart of this Amendment and Waiver.
Section 8.5. Credit Document. This Amendment and Waiver is a Credit Document
pursuant to the Credit Agreement and shall (unless expressly indicated herein or
therein) be construed, administered, and applied, in accordance with all of the
terms and provisions of the Credit Agreement.
Section 8.6. Severability. Any provision of this Amendment and Waiver which is
invalid, illegal or unenforceable under the applicable law of any jurisdiction,
shall, as to such jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability without invalidating the remaining provisions
hereof, and any such invalidity, illegality or unenforceability in any
jurisdiction shall not invalidate such provision in any other jurisdiction.
Section 8.7. GOVERNING LAW. THIS AMENDMENT AND WAIVER AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 8.8. Further Assurance. The parties hereto shall, at any time and from
time to time following the execution of this Amendment and Waiver, execute and
deliver all such further instruments and take all such further action as may be
reasonably necessary or appropriate in order to carry out the provisions of this
Amendment and Waiver.
Section 8.9. Successors and Assigns. The provisions of this Amendment and Waiver
shall be binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns.
Section 8.10. Headings. The headings of this Amendment and Waiver are for the
purposes of reference only and shall not affect the construction of, or be taken
into consideration in interpreting, this Amendment and Waiver.
Section 8.11. Relationship. The Obligors agree that the relationship between the
Administrative Agent and the Lenders, on the one hand, and the Obligors, on the
other hand, is that of creditor and debtor and not that of partners or joint
venturers. This Amendment and Waiver does not constitute a partnership agreement
or any other association between the Administrative Agent, the Lenders and the
Obligors. The Obligors acknowledge that the Administrative Agent and the Lenders
have acted at all times only as creditors to the Obligors within the normal and
usual scope of the activities normally undertaken by a
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creditor and in no event have the Administrative Agent or any of the Lenders
attempted to exercise any control over the Obligors or their respective
businesses or affairs.
Section 8.12. No Third Party Beneficiaries. This Amendment and Waiver is made
and entered into for the sole protection and benefit of the Obligors, the
Administrative Agent and the Lenders and no other person or entity shall have
any right of action herein, right to claim any right or benefit from the terms
contained herein, or be deemed a third party beneficiary hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the day and the year first above written.
BORROWER:
CENTENNIAL CELLULAR OPERATING CO. LLC
By: /s/ XXXX X. XXXX
----------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President,
General Counsel
PR BORROWER:
CENTENNIAL PUERTO RICO OPERATIONS CORP.
By: /s/ XXXX X. XXXX
----------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President,
General Counsel
PARENT AND GUARANTOR:
CENTENNIAL COMMUNICATIONS CORP.
(formerly known as Centennial Cellular
Corp.)
By: /s/ XXXX X. XXXX
----------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President,
General Counsel
AGENTS AND LENDERS:
BANK OF AMERICA, N.A., individually and
as Administrative Agent
By: /s/ XXXX X. XXXXXXX
----------------------------------
Name: Xxxx X. Xxxxxxx III
Title: Managing Director
XX XXXXXX XXXXX BANK (formerly known as
The Chase Manhattan Bank), individually
and as Co-Syndication Agent
By: /s/ XXXXX X. XXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXXX XXXXX & CO. and XXXXXXX LYNCH,
PIERCE, XXXXXX & XXXXX INCORPORATED,
individually and as Co-Syndication Agent
By: /s/ XXXXXX XXXXXXXXX
----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Managing Director
THE BANK OF NOVA SCOTIA, individually
and as Documentation Agent
By: /s/ XXXXXXX X. XXXX
----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Director
