EXHIBIT 4.1.3
AMENDMENT AND CONSENT
THIS AMENDMENT AND CONSENT (this "AMENDMENT") is entered into as of May 4,
2001, among XXXXXX OPERATING CO., L.L.C., an Oklahoma limited liability company
("DOC"), the 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 Amended, Restated, and Consolidated Revolving
Credit and Term Loan Agreement, dated as of January 18, 2000 (as amended,
modified, supplemented, or restated from time to time, the "CREDIT AGREEMENT"),
among DOC, as Borrower, Administrative Agent, First Union National Bank and PNC
Bank, National Association, as Co-Documentation Agents, Toronto Dominion
(Texas), Inc. and Xxxxxx Commercial Paper Inc., as Co-Syndication Agents,
certain Managing Agents, and Co-Agents defined therein, and the 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 in the Credit
Agreement. Unless otherwise indicated, all Paragraph references herein are to
Paragraphs in this Amendment.
R E C I T A L S
X. Xxxxxx Communications Corporation ("COMMUNICATIONS") proposes to enter
into a Capital Lease for the acquisition of furniture and equipment for its
headquarters building in Oklahoma City, Oklahoma.
B. SECTION 9.30 prohibits Communications from incurring Debt (including
obligations under Capital Leases) or creating Liens, other than as specifically
permitted in such Section.
C. In addition, DOC has requested that the permitted Capital Expenditures
for calendar year 2001, in SECTION 9.29(E) be increased from $80,000,000 to
$109,000,000.
D. DOC and Communications have requested amendments to SECTIONS 9.20,
9.29, and 9.30 to (a) permit Communications to enter into Capital Leases up to
an aggregate amount of $12,000,000, (b) permit Restricted Payments, loans,
advances, or investments from Borrower to Communications for the purpose of
servicing such permitted Capital Leases, and (c) increase the amount of
permitted Capital Expenditures for calendar year 2001, and Required Lenders are
willing to grant and agree to such amendments, but only upon the conditions,
among other things, that DOC, 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 LOANS, ADVANCES, INVESTMENTS, AND RESTRICTED PAYMENTS. SECTION 9.20 is
amended by (a) deleting the word "and" after CLAUSE (t) thereof, and (b)
changing the period (.) at the end of CLAUSE (u) thereof to a semicolon (;) and
inserting the following after the semicolon:
"and (v) Restricted Payments, loans, advances, or investments made
by Borrower to Communications in an amount sufficient to pay
regularly-scheduled payments on the Capital Leases of Communications
to the extent such Capital Lease is permitted by SECTION
9.30(a)(v)."
1.2 CAPITAL EXPENDITURES. The Capital Expenditures limitation in SECTION
9.29(e) is amended by deleting the reference to "$80,000,000" in the chart
thereof and substituting therefor the amount "$109,000,000" and (ii) deleting
the reference to "$100,000,000" in line 5 of the proviso thereto and
substituting therefor the amount "$120,000,000".
1.3 COVENANTS OF COMMUNICATIONS.
(a) SECTION 9.30(a) is amended by (a) deleting the word "and" after CLAUSE
(III) thereof, and (b) changing the period (.) at the end of CLAUSE (IV) thereof
to a semicolon (;) and inserting the following after the semicolon:
"and (v) Debt of Communications arising under Capital Leases in an
amount not to exceed $12,000,000 in the aggregate' provided that,
(A) such Capital Leases contain covenants no more restrictive than
the covenants in this Agreement and (B) prior to the incurrence of
such Debt, Administrative Agent receives an opinion of counsel
acceptable to Administrative Agent addressed to Administrative Agent
and the Lenders that execution and performance of such Capital Lease
does not constitute a "default" or "event of default" or other
breach or noncompliance with the terms and provisions of the
Communications Bond Debt, the Exchange Debentures, or the Preferred
Stock, including any event which would create voting rights in the
holders of the Preferred Stock."
(b) SECTION 9.30(d) is amended (a) deleting the word "and" after CLAUSE
(VI) thereof, and (b) changing the period (.) at the end of CLAUSE (VII) thereof
to a semicolon (;) and inserting the following after the semicolon:
"and (viii) Liens securing Capital Leases permitted by SECTION
9.30(a)(v), so long as any such Lien does not extend to any asset
other than the asset financed by such Capital Lease."
(c) SECTION 9.30(e) is amended by deleting the parenthetical therein in
its entirety and substituting therefor the follow:
"(other than Restricted Payments, loans, advances, or investments
made pursuant to SECTIONS 9.20(p), (q), (s), (t), (u), or (v))"
PARAGRAPH 2. CONDITIONS. Notwithstanding any contrary provision, this Amendment
is not effective until the date upon which (a) the representations and
warranties in this Amendment are true and correct; and (b) Administrative Agent
receives counterparts of this Amendment executed by DOC, each Guarantor, and
Required Lenders. On the Business Day upon which all of the preceding conditions
precedent are satisfied, this Amendment shall be effective (the "EFFECTIVE
DATE").
PARAGRAPH 3. ACKNOWLEDGMENT AND RATIFICATION. As a material inducement to
Administrative Agent and the Lenders to execute and deliver this Amendment, DOC
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
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respective obligations of DOC 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 4. REPRESENTATIONS. As a material inducement to Administrative Agent
and Lenders to execute and deliver this Amendment, DOC and each 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 of this Amendment 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 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; and (c) this Amendment has been duly authorized and
approved by all necessary corporate action and requires the consent of no other
Person, and upon execution and delivery, this Amendment shall be binding and
enforceable against DOC and each Guarantor in accordance with its terms.
PARAGRAPH 5. EXPENSES. DOC 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 6. MISCELLANEOUS.
6.1 This Amendment is a "Loan Document" referred to in the Credit
Agreement, and the provisions of SECTION 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.
6.2 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 7. 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 8. PARTIES. This Amendment binds and inures to DOC, 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 Amendment and Consent dated as of the date first
stated above, among Xxxxxx Operating Co., L.L.C., as Borrower, Bank of America,
N.A., as Administrative Agent, Required Lenders, and Guarantors.
XXXXXX OPERATING CO., L.L.C.,
as Borrower
By: /s/ XXXXXXX XXXXXX
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Name: Xxxxxxx Xxxxxx
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Title: Treasurer
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SIGNATURE PAGE TO AMENDMENT AND CONSENT
Signature Page to that certain Amendment and Consent dated as of the date first
stated above, among Xxxxxx Operating Co., L.L.C., as Borrower, Bank of America,
N.A., as Administrative Agent, Required Lenders, and Guarantors.
XXXXXX COMMUNICATIONS CORPORATION,
as Guarantor
By: /s/ XXXXXXX XXXXXX
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Name: Xxxxxxx Xxxxxx
Title: Treasurer
XXXXXX CELLULAR SYSTEMS, INC., as
Guarantor
By: /s/ XXXXXXX XXXXXX
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Name: Xxxxxxx Xxxxxx
Title: Treasurer
OKLAHOMA RSA 5 LIMITED PARTNERSHIP, as
Guarantor
By: OKLAHOMA INDEPENDENT RSA 5
PARTNERSHIP, its Managing General Partner
By: XXXXXX CELLULAR SYSTEMS, INC., as
Managing General Partner
By: /s/ XXXXXXX XXXXXX
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Treasurer
OKLAHOMA RSA 7 LIMITED PARTNERSHIP, as
Guarantor
By: OKLAHOMA INDEPENDENT RSA 7
PARTNERSHIP, its Managing General Partner
By: XXXXXX CELLULAR SYSTEMS, INC., its
Managing General Partner
By: /s/ XXXXXXX XXXXXX
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Treasurer
SIGNATURE PAGE TO AMENDMENT AND CONSENT
Signature Page to that certain Amendment and Consent dated as of the date first
stated above, among Xxxxxx Operating Co., L.L.C., as Borrower, Bank of America,
N.A., as Administrative Agent, Required Lenders, and Guarantors.
TEXAS RSA NO. 2 LIMITED PARTNERSHIP, as
Guarantor
By: XXXXXX CELLULAR SYSTEMS,
INC., its Managing General Partner
By: /s/ XXXXXXX XXXXXX
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Treasurer
SANTA XXXX CELLULAR TELEPHONE, INC., as
Guarantor
By: /s/ XXXXXXX XXXXXX
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Name: Xxxxxxx Xxxxxx
Title: Treasurer
SIGNATURE PAGE TO AMENDMENT AND CONSENT
Signature Page to that certain Amendment dated as of the date first stated
above, among Xxxxxx Operating Co., L.L.C., 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: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
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Title: Senior Vice President
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SIGNATURE PAGE TO AMENDMENT
Signature Page to that certain Amendment dated as of the date first stated
above, among Xxxxxx Operating Co., L.L.C., as Borrower, Bank of America, N.A.,
as Administrative Agent, certain Lenders, and Guarantors.
The Bank of Nova Scotia, as a Lender
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Authorized Signatory
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SIGNATURE PAGE TO AMENDMENT
Signature Page to that certain Amendment dated
as of the date first stated above, among Xxxxxx
Operating Co., L.L.C., as Borrower, Bank of
America, N.A., as Administrative Agent, certain
Lenders, and Guarantors.
Barclays Bank PLC,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
-------------------------------------
Title: Director
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SIGNATURE PAGE TO AMENDMENT
Signature Page to that certain Amendment dated
as of the date first stated above, among Xxxxxx
Operating Co., L.L.C., as Borrower, Bank of
America, N.A., as Administrative Agent, certain
Lenders, and Guarantors.
CIBC Inc.,
as a Lender
By: /s/ Xxxxx X. Xxx
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Name: Xxxxx X. Xxx
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Title: Executive Director
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CIBC World Markets Corp. As Agent
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SIGNATURE PAGE TO AMENDMENT
Signature Page to that certain Amendment dated
as of the date first stated above, among Xxxxxx
Operating Co., L.L.C., as Borrower, Bank of
America, N.A., as Administrative Agent, certain
Lenders, and Guarantors.
Citizens Bank of Massachusetts,
as a Lender
By: /s/ Xxxxxxx X. Teasillager
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Name: Xxxxxxx X. Teasillager
--------------------------------
Title: Vice President
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SIGNATURE PAGE TO AMENDMENT
Signature Page to that certain Amendment dated
as of the date first stated above, among Xxxxxx
Operating Co., L.L.C., as Borrower, Bank of
America, N.A., as Administrative Agent, certain
Lenders, and Guarantors.
CoBank, ACB,
as a Lender
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
---------------------------------
Title: Vice President
--------------------------------
SIGNATURE PAGE TO AMENDMENT
Signature Page to that certain Amendment dated as of the date first stated
above, among Xxxxxx Operating Co., L.L.C., as Borrower, Bank of America, N.A.,
as Administrative Agent, certain Lenders, and Guarantors.
Columbus Loan Funding, LTd.,
as a Lender
By: Travelers Asset Management International Company, LLC,
as
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By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------------
Name: Xxxxxxx Xxxxxxx
--------------------------------------------
Title: Assistant Investment Officer
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Signature Page to that certain Amendment to Credit Agreement dated as of the
date first stated above, among Xxxxxx Operating Co., L.L.C., as Borrower, Bank
of America, N.A., in its capacity as Administrative Agent, Required Lenders, and
Guarantors.
FLEET NATIONAL BANK, as a Lender
By: /s/ Xxxxxxxxx Xxxxxxxxxx
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Name: Xxxxxxxxx Xxxxxxxxxx
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Title: Vice President
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Signature Page to Amendment
Signature Page to that certain Amendment to Credit Agreement dated as of the
date first stated above, among Xxxxxx Operating Co., L.L.C., as Borrower, Bank
of America, N.A., in its capacity as Administrative Agent, Required Lenders, and
Guarantors.
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES, as a Lender
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
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Title: Associate
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By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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Signature Page to Amendment
Signature Page to that certain Amendment to Credit Agreement dated as of the
date first stated above, among Xxxxxx Operating Co., L.L.C., as Borrower, Bank
of America, N.A., in its capacity as Administrative Agent, Required Lenders, and
Guarantors.
FIRST UNION NATIONAL BANK, as a Lender
By: /s/ Xxxxxxxx Xxxxxxxxx
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Name: Xxxxxxxx Xxxxxxxxx
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Title: Senior Vice President
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Signature Page to Amendment
Signature Page to that certain Amendment to Credit Agreement dated as of the
date first stated above, among Xxxxxx Operating Co., L.L.C., as Borrower, Bank
of America, N.A., in its capacity as Administrative Agent, Required Lenders, and
Guarantors.
SANKATY ADVISORS, LLC as Collateral Manager
for GREAT POINT CLO 1999-1 LTD., as Term Lender,
as a Lender
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Managing Director
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Portfolio Manager
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Signature Page to Amendment
Signature Page to that certain Amendment to Credit Agreement dated as of the
date first stated above, among Xxxxxx Operating Co., L.L.C., as Borrower, Bank
of America, N.A., in its capacity as Administrative Agent, Required Lenders, and
Guarantors.
FIRSTRUST BANK, as a Lender
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Vice President
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Signature Page to Amendment
Signature Page to that certain Amendment to Credit Agreement dated as of the
date first stated above, among Xxxxxx Operating Co., L.L.C., as Borrower, Bank
of America, N.A., in its capacity as Administrative Agent, Required Lenders, and
Guarantors.
XXXXXX COMMERCIAL PAPER INC., as a Lender
By: /s/ G. Xxxxxx Xxxxx
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Name: G. Xxxxxx Xxxxx
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Title: Authorized Signatory
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Signature Page to Amendment
Signature Page to that certain Amendment to Credit Agreement dated as of the
date first stated above, among Xxxxxx Operating Co., L.L.C., as Borrower, Bank
of America, N.A., in its capacity as Administrative Agent, Required Lenders, and
Guarantors.
NATEXIS BANQUES POPULAIRES, as a Lender
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: VP. Group Manager
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By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Date: Vice President
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Signature Page to Amendment
Signature Page to that certain Amendment to Credit Agreement dated as of the
date first stated above, among Xxxxxx Operating Co., L.L.C., as Borrower, Bank
of America, N.A., in its capacity as Administrative Agent, Required Lenders, and
Guarantors.
NATIONAL CITY BANK, as a Lender
By: /s/ Xxxxxxx Bienville Xxxxxx
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Name: Xxxxxxx Bienville Xxxxxx
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Title: Senior Vice President
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Signature Page to Amendment
Signature Page to that certain Amendment to Credit Agreement dated as of the
date first stated above, among Xxxxxx Operating Co., L.L.C., as Borrower, Bank
of America, N.A., in its capacity as Administrative Agent, Required Lenders, and
Guarantors.
BNP PARIBAS, as a Lender
By: /s/ Xxx Xxxxxxxxx
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Name: Xxx Xxxxxxxxx
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Title: Director
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Media & Telecom Finance
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
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Title: Director
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Media & Telecom Finance
Signature Page to Amendment
Signature Page to that certain Amendment to Credit Agreement dated as of the
date first stated above, among Xxxxxx Operating Co., L.L.C., as Borrower, Bank
of America, N.A., in its capacity as Administrative Agent, Required Lenders, and
Guarantors.
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEEN BANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH, as a Lender
By: /s/ Xxxxxxx Zylstaz
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Name: Xxxxxxx Zylstaz
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Title: Senior Vice President
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By: /s/ Xxxxx Xxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxx
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Title: Managing Director
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Signature Page to Amendment
Signature Page to that certain Amendment to Credit Agreement dated as of the
date first stated above, among Xxxxxx Operating Co., L.L.C., as Borrower, Bank
of America, N.A., in its capacity as Administrative Agent, Required Lenders, and
Guarantors.
SANKATY HIGH YIELD PARTNERS III, L.P.,
as a Lender
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Managing Director
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Portfolio Manager
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Signature Page to Amendment
Signature Page to that certain Amendment to Credit Agreement dated as of the
date first stated above, among Xxxxxx Operating Co., L.L.C., as Borrower, Bank
of America, N.A., in its capacity as Administrative Agent, Required Lenders, and
Guarantors.
TORONTO DOMINION (TEXAS), INC., as a Lender
By: /s/ Xxxxxxx Fasth
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Name: Xxxxxxx Fasth
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Title: Vice President
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Signature Page to Amendment
Signature Page to that certain Amendment to Credit Agreement dated as of the
date first stated above, among Xxxxxx Operating Co., L.L.C., as Borrower, Bank
of America, N.A., in its capacity as Administrative Agent, Required Lenders, and
Guarantors.
TRAVELERS CORPORATE LOAN FUND INC.,
as a Lender
By: Travelers Asset Management International
Company, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Assistant Investment Officer
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Signature Page to Amendment
Signature Page to that certain Amendment to Credit Agreement dated as of the
date first stated above, among Xxxxxx Operating Co., L.L.C., as Borrower, Bank
of America, N.A., in its capacity as Administrative Agent, Required Lenders, and
Guarantors.
THE TRAVELERS INSURANCE COMPANY,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Assistant Investment Officer
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Signature Page to Amendment
Signature Page to that certain Amendment to Credit Agreement dated as of the
date first stated above, among Xxxxxx Operating Co., L.L.C., as Borrower, Bank
of America, N.A., in its capacity as Administrative Agent, Required Lenders, and
Guarantors.
U.S. BANK NATIONAL ASSOCIATION,
F/K/A FIRSTAR BANK, N.A., as a Lender
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
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Title: VP
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Signature Page to Amendment
Signature Page to that certain Amendment dated as of the date first stated
above, among Xxxxxx Operating Co., L.L.C., as Borrower, Bank of America, N.A.,
as Administrative Agent, certain Lenders, and Guarantors.
KEY CORPORATE CAPITAL INC, as a Lender
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
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Title: Senior Vice President
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Signature Page to Amendment
Signature Page to that certain Amendment dated as of the date first stated
above, among Xxxxxx Operating Co., L.L.C., as Borrower, Bank of America, N.A.,
as Administrative Agent, certain Lenders, and Guarantors.
ELO (CAYMAN) LTD. 2001-1, as a Lender
By: /s/ First Union Institutional Debt Management
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as Collateral Manager
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By: /s/ Xxxxxxxx Musgrug
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Name: Xxxxxxxx Musgrug
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Title: Director
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Signature Page to Amendment
Signature Page to that certain Amendment dated as of the date first stated
above, among Xxxxxx Operating Co., L.L.C., as Borrower, Bank of America, N.A.,
as Administrative Agent, certain Lenders, and Guarantors.
XXXXXXX BANK, as a Lender
By: /s/ Xxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxx X. Xxxxx
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Title: Vice President
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Signature Page to Amendment
