AMENDMENT AND CONSENT
THIS AMENDMENT and CONSENT (this "AMENDMENT") is entered into as of
November 22, 2000, among XXXXXX OPERATING CO., L.L.C., an Oklahoma limited
liability company ("DOC"), the Required Tranche Lenders (hereinafter defined)
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 Paragraph references herein are to Paragraphs in this
Amendment.
R E C I T A L S
A. DOC proposes to loan $100,000,000 to DCC PCS, Inc. ("DCCPCS"), a
Subsidiary of Xxxxxx Communications Corporation ("COMMUNICATIONS"), in the
form of a subordinated loan ("DCCPCS LOAN"). Because the amount of the
proposed DCCPCS Loan is greater than the amount of investment in PCS Systems
currently permitted by SECTION 9.20(f), DOC requests an amendment to such
Section so that the DCCPCS Loan is permitted.
B. Communications proposes to issue up to $200,000,000 of convertible
preferred stock (the "AT&T PREFERRED STOCK"), to AT&T Wireless Services, Inc.
Either (i) not less than $50,000,000 of the proceeds of the AT&T Preferred
Stock will be used to fund an equity investment in DCCPCS by Communications,
and DCCPCS will use the equity proceeds to repay at least $50,000,000 of the
DCCPCS Loan or (ii) Communications will cause the Revolver Principal Debt to
be prepaid in an amount not less than $50,000,000. DOC and Communications
have requested that the Net Cash Proceeds from the issuance of the AT&T
Preferred Stock be excluded from the mandatory prepayment requirements of the
Credit Agreement.
C. DOC and Communications have requested certain amendments under the
Credit Agreement, and Required Tranche Lenders are willing to grant and agree
to such amendments, but only upon the conditions, among other things, that
DOC, Guarantors, and Required Tranche Lenders shall have executed and
delivered this Amendment and shall have agreed to the terms and conditions of
this Amendment. As used herein,
"REQUIRED TRANCHE LENDERS" means (i) the Term Loan A Lenders holding at least
50.1% of the Term Loan A Principal Debt; (ii) the Term Loan B Lenders holding
at least 50.1% of the Term Loan B Principal Debt; (iii) the Revolver Lenders
holding at least 50.1% of the Revolver Commitment; and (iv) the Discretionary
Term B Lenders holding at least 50.1% of the Discretionary Term B Loan
Principal Debt under all Discretionary Term B Loans.
D. DOC and Communications request consent of Required Lenders to the
designation of DCCPCS as an "UNRESTRICTED SUBSIDIARY" of Communications under
the Credit Agreement.
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. AMENDMENTS.
DEFINITIONS. The following definitions of "AT&T PREFERRED
STOCK," "DCCPCS," and "DCCPCS Loan" shall be alphabetically inserted in
SECTION 1.1 to read as follows:
"AT&T PREFERRED STOCK means $200,000,000 of convertible Class A
preferred stock issued by Communications to AT&T Wireless
Services, Inc., on terms and conditions reasonably satisfactory
to Administrative Agent."
"DCCPCS means DCC PCS, Inc., an Oklahoma corporation and a
Subsidiary of Communications."
"DCCPCS LOAN means the unsecured, subordinated loan from
Borrower to DCCPCS in an amount not to exceed $100,000,000, on
terms and conditions satisfactory to Administrative Agent."
. MANDATORY PREPAYMENTS.
(a) SECTION 3.3(b)(iii) is amended by deleting the "AND" immediately
prior to CLAUSE (D) in such Section and adding the following CLAUSE (E)
thereto:
", and (E) up to $200,000,000 of Net Cash Proceeds from the
issuance of the AT&T Preferred Stock, SO LONG AS (x) at least
$50,000,000 of such Net Cash Proceeds are contributed to DCCPCS
or (y) Communications causes at least $50,000,000 of the Revolver
Principal Debt to be prepaid."
(b) A new Section 3.3(b)(vii) is added as follows:
" (vii) Concurrently with the prepayment or repayment of all
or any portion of the DCCPCS Loan, the Revolver Principal Debt
shall be prepaid by an amount equal to 100% of the amount received
by any Company as a prepayment or repayment of the DCCPCS Loan.
Such mandatory prepayment of Revolver Principal Debt shall reduce
the Revolver Principal Debt (but not the Revolver Commitment
unless a Default or Potential Default then exists or arises
whereupon any prepayment or repayment shall be applied to the
Principal Debt in accordance with SECTION 3.12(b)) and shall be
applied ratably among the
Revolver Lenders in proportion to the amount of their respective
Revolver Principal Debt."
(c) The first sentence in the paragraph following SECTION
3.3(b)(vii) shall be deleted in its entirety and replaced with the following:
"Each commitment reduction or prepayment under this Section
3.3(b) (OTHER THAN SECTIONS 3.3(b)(vi) and 3.3(b)(vii)) shall be
applied as follows unless a Default or Potential Default then
exists or arises as a result therefrom (whereupon the provisions
of SECTION 3.12(b) shall apply):"
. TRANSACTIONS WITH AFFILIATES. SECTION 9.14 is amended by
deleting the "OR" immediately prior to CLAUSE (a)(iii) in such Section and
adding the following CLAUSES (a)(iv) and (v) thereto:
", (iv) an investment by Communications in DCCPCS in an amount
not to exceed the Net Cash Proceeds received by Communications
from the issuance of the AT&T Preferred Stock, which investment
must be on terms reasonably acceptable to Administrative Agent,
or (v) an investment by Communications in DCCPCS in an amount
not to exceed $50,000,000, which investment must be on terms
reasonably acceptable to Administrative Agent,"
. LOANS, ADVANCES, INVESTMENTS, AND RESTRICTED PAYMENTS. SECTION
9.20(f) shall be deleted in its entirety and the following is substituted
therefor:
"(f) Either (i) an investment in DCCPCS in an amount not to
exceed $50,000,000 or (ii) the DCCPCS Loan;"
. COVENANTS. SECTIONS 9.3(a), (b), and (i) are amended by
inserting the word "RESTRICTED" before each occurrence of "SUBSIDIARY" or
"SUBSIDIARIES" in such Sections.
. COVENANTS OF COMMUNICATIONS. SECTION 9.30 is amended by adding
the following CLAUSE (h) thereto:
" (h) AT&T PREFERRED STOCK. Immediately upon receipt by
Communications of any Net Cash Proceeds from the issuance of the
AT&T Preferred Stock, Communications shall (i) make an equity
investment in DCCPCS in an amount not less than $50,000,000 or
(ii) cause not less than $50,000,000 of the Revolver Principal
Debt to be repaid ."
. DEFAULTS.
(a) SECTIONS 10.3 and 10.5 are amended by inserting the phrase
"(OTHER THAN DCCPCS)" immediately after each occurrence of "SUBSIDIARY" in
such Sections.
(b) A new SECTION 10.20 shall be added as follows:
" 10.20 DCCPCS LOAN. At least (a) $50,000,000 of the DCCPCS Loan has not
been prepaid (and the appropriate mandatory prepayment pursuant to SECTION
3.3(b)(vii) has not been made) by the earlier of (i) June 30, 2001, or (ii) 3
Business Days after receipt of all or any portion of the Net Cash Proceeds
from the issuance of the AT&T Preferred Stock or (b) $50,000,000 of the
Revolver Principal Debt has not been prepaid by the earlier of (i) June 30,
2001, or (ii) 3 Business Days after receipt of all or any portion of the Net
Cash Proceeds from the issuance of the AT&T Preferred Stock."
PARAGRAPH. UNRESTRICTED SUBSIDIARY. By execution hereof, Borrower and
Communications certify that DCCPCS has been designated as an "UNRESTRICTED
SUBSIDIARY" under the Credit Agreement by Communications' Board of Directors
and that all requirements in CLAUSES (A) through (F) of the definition of
"UNRESTRICTED SUBSIDIARY" in SECTION 1.1 have been met. Upon and after the
Effective Date (hereinafter defined), DCCPCS shall be an Unrestricted
Subsidiary of Communications under the Credit Agreement.
PARAGRAPH. AMENDMENT FEES. On the Effective Date, Borrower shall pay (a) to
Administrative Agent (for the ratable benefit of all Revolver Lenders), an
amendment fee in an amount equal to 0.100% of the aggregate Committed Sums
under the Revolver Facility as of the Effective Date, (b) to Administrative
Agent (for the ratable benefit of the Term Loan A Lenders, Term Loan B
Lenders, and the Discretionary Lenders), an amendment fee in an amount equal
to 0.100% of the aggregate Term Loan A Principal Debt, Term Loan B Principal
Debt, or Discretionary Principal Debt as of the Effective Date; (c) to
Administrative Agent (for the ratable benefit of the Revolver Lenders
consenting to this Amendment on or prior to Monday, November 20, 2000, the
"CONSENTING REVOLVER LENDERS"), an amendment fee in an amount equal to 0.150%
of the aggregate Committed Sums under the Revolver Facility of each
Consenting Revolver Lender as of the Effective Date, and (d) to
Administrative Agent (for the ratable benefit of the Term Loan A Lenders, the
Term Loan B Lenders, and the Discretionary Lenders consenting to this
Amendment on or prior to Monday, November 20, 2000, the "CONSENTING TERM LOAN
LENDERS"), an amendment fee in an amount equal to 0.150% of the aggregate
Term Loan A Principal Debt, Term Loan B Principal Debt, or Discretionary
Principal Debt owed to the Consenting Term Loan Lenders as of the Effective
Date. The failure of Borrower to comply with the provisions of this
PARAGRAPH 3 shall constitute a payment Default entitling Lenders to exercise
their respective Rights under the Loan Documents.
PARAGRAPH. 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; (b) Administrative
Agent receives an opinion of counsel acceptable to Administrative Agent
addressed to Administrative Agent and the Lenders that the transaction
contemplated in this Amendment do 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; (c) Administrative Agent receives counterparts of this
Amendment executed by DOC, each Guarantor, and Required Tranche Lenders; (d)
Administrative Agent receives all documents, opinions, resolutions, and other
certificates required to be delivered pursuant to SECTION 9.30(f) with
respect to the designation of DCCPCS as an Unrestricted Subsidiary; (e)
Administrative Agent receives all documents and opinions supporting the
DCCPCS Loan and such other documents as Administrative Agent may reasonably
request; (f) Administrative Agent receives a collateral assignment of the
promissory note representing the DCCPCS Loan; and (g) payment of the
amendment fees required to be paid to consenting Lenders and Administrative
Agent on the Effective Date pursuant to
PARAGRAPH 3 hereof. On the Business Day upon which all of the preceding
conditions precedent are satisfied, this Amendment shall be effective (the
"EFFECTIVE DATE").
PARAGRAPH. COMPLIANCE WITH AMENDMENT REQUIREMENTS. The failure of DOC, its
Subsidiaries, or any Guarantor to comply with the conditions (including,
without limitation, the conditions set forth in PARAGRAPH 4(a)) or
limitations set forth in this Amendment on and after the Effective Date
hereof shall constitute a Default under the Credit Agreement, entitling the
Lenders to exercise their Rights under the Loan Documents.
PARAGRAPH. 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 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. 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. 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. MISCELLANEOUS.
. This Amendment is a "LOAN DOCUMENT" referred to in the Credit
Agreement, and the provisions of SECTIONS 13 of the Credit Agreement are
incorporated herein by reference. Unless stated otherwise (a) the singular
number includes the plural and VICE VERSA and words of any gender include
each other gender, in each case, as appropriate, (b) headings and captions
may not be construed in interpreting provisions,
(c) this Amendment must be construed, and its performance enforced, under New
York law, and (d) this Amendment may be executed in any number of
counterparts with the same effect as if all signatories had signed the same
document, and all of those counterparts must be construed together to
constitute the same document.
. 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.
. Each Lender executing this Amendment, agrees and acknowledges
that such Lender's approval of this Amendment shall constitute approval by
such Lender for all Facilities of which such Lender holds a commitment.
PARAGRAPH. 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. 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.]
XXXXXX OPERATING CO., L.L.C.,
as BORROWER
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
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 Tranche Lenders, and
Guarantors.
XXXXXX COMMUNICATIONS CORPORATION,
AS GUARANTOR
By:
---------------------------------
Name:
----------------------------
Title:
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XXXXXX CELLULAR SYSTEMS, INC.,
as GUARANTOR
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
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:
--------------------------
Name:
---------------------
Title:
--------------------
SIGNATURE PAGE TO AMENDMENT
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 Tranche Lenders, and
Guarantors.
OKLAHOMA RSA 7 LIMITED PARTNERSHIP, as
GUARANTOR
By: OKLAHOMA INDEPENDENT RSA 7
PARTNERSHIP, ITS MANAGING GENERAL
PARTNER
By: XXXXXX CELLULAR SYSTEMS, INC.,
AS MANAGING GENERAL PARTNER
By:
--------------------------
Name:
---------------------
Title:
--------------------
TEXAS RSA NO. 2 LIMITED PARTNERSHIP, as
GUARANTOR
By: XXXXXX CELLULAR SYSTEMS,
By:
------------------------------
Name:
-------------------------
Title:
------------------------
SANTA XXXX CELLULAR TELEPHONE, INC., as
GUARANTOR
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
SIGNATURE PAGE TO AMENDMENT
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 Tranche Lenders, and
Guarantors.
BANK OF AMERICA, N.A., as ADMINISTRATIVE
AGENT and a LENDER
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
SIGNATURE PAGE TO AMENDMENT
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 Tranche Lenders, and
Guarantors.
______________________,
AS A LENDER
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
SIGNATURE PAGE TO AMENDMENT
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 Tranche Lenders, and
Guarantors.
______________________,
AS A LENDER
By:
---------------------------------
Name:
----------------------------
Title:
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By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
SIGNATURE PAGE TO AMENDMENT
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 Tranche Lenders, and
Guarantors.
______________________,
AS A LENDER
By:
---------------------------------
its
----------------------------
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
SIGNATURE PAGE TO AMENDMENT
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 Tranche Lenders, and
Guarantors.
______________________,
AS A LENDER
By:
---------------------------------
its
----------------------------
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
SIGNATURE PAGE TO AMENDMENT
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 Tranche Lenders, and
Guarantors.
______________________,
AS A LENDER
By:
---------------------------------
as
----------------------------
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
SIGNATURE PAGE TO AMENDMENT
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 Tranche Lenders, and
Guarantors.
______________________,
AS A LENDER
By:
---------------------------------
as
----------------------------
By:
---------------------------------
Name:
----------------------------
Title:
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By:
---------------------------------
Name:
----------------------------
Title:
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SIGNATURE PAGE TO AMENDMENT
