EXHIBIT 10.32.2
AMENDMENT NO. 2 TO CREDIT AGREEMENT
This AMENDMENT NO. 2 TO THE CREDIT AGREEMENT, dated as of May
7, 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 Xx. 0, xxxxx xx
xx Xxxxx 00, 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.
WITNESSETH:
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. Subject to the satisfaction of the
conditions precedent set forth in Section 2 hereof, the Credit Agreement is
hereby amended as follows:
(a) The definition of "Applicable Margin" set forth in Section
1.1 (Defined Terms) of the Credit Agreement shall be deleted in its entirety and
replaced with the following:
"Applicable Margin": for each Type of Loan under each
Facility, the rate per annum set forth opposite such Facility under the
relevant column heading below:
Base Rate Eurocurrency
Loans Loans
------------ ------------
Revolving Credit Facility 2.50% 3.50%
(including Swing Line Loans)
Tern Loan Facility 2.50% 3.50%
provided that on and after financial statements with respect to the
period ended March 31, 2005 are delivered to the Lenders pursuant to
Section 6.1 of the
Credit Agreement, the Applicable Margin with respect
to Revolving Credit Facility (including Swing Line Loans) and with
respect to the Term Loan Facility will each be determined pursuant to
the Pricing Grid.
(b) The definition of "DOC Fixed Charge Coverage Ratio" set
forth in Section 1.1 (Defined Terms) of the Credit Agreement shall be deleted in
its entirety and replaced with the following:
"DOC Fixed Charge Coverage Ratio": for any period, the ratio
of (a) Consolidated EBITDA of DOC for such period minus the aggregate
amount actually paid by DOC in cash during such period on account of
Capital Expenditures to (b) Consolidated Fixed Charges for such period;
provided that:
(x) Capital Expenditures made in cash in the following periods
for the GSM build-out by DOC and its Subsidiaries shall not be included
as Capital Expenditures in calculating the DOC Fixed Charge Coverage
Ratio up to the following respective amounts (without duplication) for
the four fiscal quarter periods of DOC ending on the following dates:
(i) December 31, 2003, $75,000,000, (ii) March 31, 2004, $95,000,000,
(iii) June 30, 2004, $80,000,000, (iv) September 30, 2004, $70,000,000,
(v) December 31, 2004, $34,000,000, (vi) March 31, 2005, $20,000,000
and (vii) June 30, 2005, $5,000,000;
(y) Capital Expenditures made in cash to upgrade, enhance,
equip, build out (including the removal of assets included in the
current network) or otherwise improve properties acquired as part of
any Permitted Acquisition by DOC and its Subsidiaries during the period
of twelve months following the consummation of such Permitted
Acquisition shall not be included as Capital Expenditures in
calculating the DOC Fixed Charge Coverage Ratio but only to the extent
that the aggregate amount of such Capital Expenditures (in connection
with all Permitted Acquisitions) during the period of four full fiscal
quarters ending on the last day of any measurement period does not
exceed $35,000,000; and
(z) Capital Expenditures made in cash to comply with "enhanced
911" regulatory requirements in the following periods by DOC and its
Subsidiaries shall not be included as Capital Expenditures in
calculating the DOC Fixed Charge Coverage Ratio up to the following
respective amounts (without duplication) for the four fiscal quarter
periods of DOC ending on the following dates: (i) March 31, 2005,
$8,000,000, (ii) June 30, 2005, $17,000,000, (iii) September 30, 2005,
$28,000,000, (iv) December 31, 2005, $39,000,000, (v) March 31, 2006,
$33,000,000, (vi) June 30, 2006, $24,000,000 and (vii) September 30,
2006, $12,000,000.
(c) The definition of "DOC Leverage Ratio" set forth in
Section 1.1 of the Credit Agreement shall be amended by inserting, in clause (a)
thereof immediately after the words "Consolidated Total Debt of DOC", the
following:
(excluding any Indebtedness of DOC and its Subsidiaries which
is owed to the Parent or any of its Subsidiaries and which (i) is
subordinated to the payment in full of the Obligations, (ii) does not
require any payment, including of interest, in cash at any time prior
to the payment in full of the Term Loans and (iii) is on terms
acceptable to the Administrative Agent).
(d) The definition of "Parent Leverage Ratio" set forth in
Section 1.1 of the Credit Agreement shall be amended by inserting, in clause (a)
thereof immediately after the words "Consolidated Total Debt of Parent", the
following:
2
(excluding any Indebtedness of DOC or any of its Subsidiaries
which is owed to the Parent or any of its Subsidiaries and which (i) is
subordinated to the payment in full of the Obligations, (ii) does not
require any payment, including of interest, in cash at any time prior
to the payment in full of the Term Loans and (iii) is on terms
acceptable to the Administrative Agent).
(e) Section 3.3 of the Credit Agreement (Fees and Other
Charges) shall be amended by inserting the following new subsection (c):
(c) in addition to the foregoing fees, in the event that the
Borrower shall prepay, prior to May 6, 2005, any portion of the Term
Loans with (a) proceeds of any new Loans (other than proceeds of
Revolving Credit Loans used to make mandatory prepayments under Section
2.12) or (b) proceeds of one or more senior secured credit facilities
provided by banks or other financial institutions with an aggregate
principal commitment thereunder of less than $750,000,000, then the
Borrower shall pay to the Term Loan Lenders, in their respective pro
rata shares, on the date of such prepayment, a fee in an amount equal
to 1% of the aggregate principal amount of the Term Loans so prepaid.
(f) Section 7.1(a) (DOC Leverage Ratio) of the Credit
Agreement shall be deleted in its entirety and replaced with the following:
DOC Leverage Ratio. Permit the DOC Leverage Ratio as at the
last day of any period of four consecutive fiscal quarters of DOC
ending on the last day of any fiscal quarter set forth below to exceed
the ratio set forth below opposite such fiscal quarter:
Fiscal Quarter Ended DOC Leverage Ratio
-------------------- ------------------
March 31, 2004 2.25:1
June 30, 2004 3.00:1
September 30, 2004 3.00:1
December 31, 2004 3.00:1
March 31, 2005 3.00:1
June 30, 2005 3.00:1
September 30, 2005 2.90:1
December 31, 2005 2.90:1
March 31, 2006 2.90:1
June 30, 2006 2.80:1
September 30, 2006 2.70:1
December 31, 2006 2.50:1
March 31, 2007 1.65:1
June 30, 2007 1.60:1
September 30, 2007 1.60:1
December 31, 2007 1.60:1
March 31, 2008 1.55:1
June 30, 2008 1.55:1
September 30, 2008 and each 1.50:1
fiscal quarter ended thereafter
3
(g) Section 7.1(b) (Parent Leverage Ratio) of the Credit
Agreement shall be deleted in its entirety and replaced with the following:
Parent Leverage Ratio. Permit the Parent Leverage Ratio as at
the last day of any period of four consecutive fiscal quarters of the
Parent ending with the last day of any fiscal quarter set forth below
to exceed the ratio set forth below opposite such fiscal quarter:
Fiscal Quarter Ended Parent Leverage Ratio
-------------------- ---------------------
March 31, 2004 6.00:1
June 30, 2004 6.95:1
September 30, 2004 6.95:1
December 31, 2004 6.95:1
March 31, 2005 6.95:1
June 30, 2005 6.95:1
September 30, 2005 6.90:1
December 31, 2005 6.75:1
March 31, 2006 6.55:1
June 30, 2006 6.35:1
September 30, 2006 6.20:1
December 31, 2006 6.00:1
March 31, 2007 4.70:1
June 30, 2007 4.60:1
September 30, 2007 4.45:1
December 31, 2007 4.35:1
March 31, 2008 4.30:1
June 30, 2008 4.25:1
September 30, 2008 4.20:1
December 31, 2008 4.15:1
March 31, 2009 4.00:1
June 30, 2009 4.00:1
September 30,2009 3.75:1
December 31, 2009 and each 3.50:1
fiscal quarter ended thereafter
(h) Section 7.1(d) (DOC Fixed Charge Coverage Ratio) shall be
deleted in its entirety and replaced with the following:
DOC Fixed Charge Coverage Ratio. Permit the DOC Fixed Charge
Coverage Ratio for any period of four consecutive fiscal quarters of
DOC ending with any fiscal quarter set forth below to be less than the
ratio set forth below opposite such fiscal quarter:
DOC Fixed Charge
Fiscal Quarter Ended Coverage Ratio
-------------------- ----------------
March 31, 2004 1.10:1
June 30, 2004 1.00:1
September 30, 2004 1.00:1
December 31, 2004 1.00:1
4
March 31, 2005 1.00:1
June 30, 2005 1.00:1
September 30, 2005 1.05:1
December 31, 2005 1.05:1
March 31, 2006 1.05:1
June 30, 2006 1.05:1
September 30, 2006 1.05:1
December 31, 2006 1.05:1
March 31, 2007 1.15:1
June 30, 2007 1.15:1
September 30, 2007 1.15:1
December 31, 2007 1.15:1
March 31, 2008 1.15:1
June 30, 2008 1.20:1
September 30, 2008 1.20:1
December 31, 2008 1.20:1
March 31, 2009 and each fiscal 1.25:1
quarter ended thereafter
(i) Section 7.6(c)(v) (Limitation on Restricted Payments) of
the Credit Agreement shall be amended by deleting the words "and (C) the
Borrower shall have complied with its obligations pursuant to Section 2.12(c)"
at the end of such Section and replacing them with the following:
(C) the Parent Leverage Ratio shall be less than 6.0:1 both
immediately before and after giving effect to such Restricted Payment
(determined on a pro forma basis) and (D) the Borrower shall have
complied with its obligations pursuant to Section 2.12(c).
(j) Annex A (Pricing Grid) is amended and restated in its
entirety to the form of Annex A (Pricing Grid) attached hereto as Exhibit A.
SECTION 2. CONDITIONS TO EFFECTIVENESS. This Amendment shall
become effective as of the date hereof on the first date when each of the
following conditions precedent have been satisfied:
(a) the Administrative Agent shall have received counterparts
of this Amendment executed by the Borrower, the Parent, DOC and the Required
Lenders or, as to any of the Lenders, evidence satisfactory to the
Administrative Agent that such Lender has executed this Amendment;
(b) each Grantor shall have executed a consent to this
Amendment in the form attached hereto;
(c) 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 May 6, 2004, an amendment fee equal to
0.20% of such Lender's Term Loans and Revolving Credit Commitments on such date;
and
5
(d) 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 3. 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 4. 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 5. CONSTRUCTION WITH THE LOAN DOCUMENTS. 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 to reflect the changes made in this Amendment as of the Amendment
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. This
Amendment is a Loan Document.
SECTION 6. GOVERNING LAW. This Amendment is governed by the
law of the State of
New York.
[Signature Pages Follow]
6
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: /s/ XXXXX X. XXXXXXXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
XXXXXX OPERATING CO., L.L.C.
By: /s/ XXXXX X. XXXXXXXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
XXXXXX COMMUNICATIONS
CORPORATION
By: /s/ XXXXX X. XXXXXXXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
XXXXXX COMMERCIAL PAPER INC.,
as Administrative Agent, Swingline Lender
and a Lender
By: /s/ XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
TITLE: AUTHORIZED SIGNATORY
SIGNATURE PAGE TO AMENDMENT NO. 2 TO DCS CREDIT AGREEMENT
EXHIBIT A
TO AMENDMENT NO. 2 TO CREDIT AGREEMENT
Annex A
PRICING GRID FOR REVOLVING CREDIT LOANS, SWING LINE LOANS,
AND TERM LOANS
Applicable Margin for the Revolving Credit Facility
Parent Leverage Eurodollar Base Rate
Ratio Loans Loans
--------------- ---------- ----------
equal to or greater 3.50% 2.50%
than 5.0:1
less than 5.0:1 but 3.25% 2.25%
equal to or greater
than 4.5:1
less than 4.5:1 but 3.00% 2.00%
equal to or greater
than 4.0:1
less than 4.0:1 but 2.75% 1.75%
equal to or greater
than 3.5:1
less than 3.5:1 but 2.50% 1.50%
equal to or greater
than 3.0:1
less than 3.0:1 2.25% 1.25%
Applicable Margin for the Term Loan Facility
DOC Leverage Eurodollar Base Rate
Ratio Loans Loans
--------------- ---------- ----------
equal to or greater 3.50% 2.50%
than 1.75:1
less than 1.75:1 but 3.25% 2.25%
equal to or greater
than 1.0:1
less than 1.0:1 3.00% 2.00%
Changes in the Applicable Margin with respect to Revolving Credit Facility
resulting from changes in the Parent Leverage Ratio or the Term Loan Facility
resulting from changes in the DOC Leverage Ratio shall become effective on the
date (the "Adjustment Date") on which financial statements are delivered to the
Lenders pursuant to Section 6.1 of the Credit Agreement (but in any event not
later than the 60th day after the end of each of the first three quarterly
periods of each fiscal year or the 120th day after the end of each fiscal year,
as the case may be) and shall remain in effect until the next change to be
effected pursuant to this paragraph. If any financial statements referred to
above are not delivered within the time periods specified above, then, until
such financial statements are delivered, the Parent Leverage Ratio as at the end
of the fiscal period that would have been covered thereby shall for the purposes
of this Pricing Grid be deemed to be greater than 5.0 to 1 and the DOC Leverage
Ratio as at the end of the fiscal period that would have been covered thereby
shall for the purposes of this Pricing Grid be deemed to be greater than 1.75 to
1. In addition, at all times while an Event of Default shall have occurred and
be continuing, the Parent Leverage Ratio shall for the purposes of this Pricing
Grid be deemed to be greater than 5.0 to 1 and the DOC Leverage Ratio shall for
the purposes of this Pricing Grid be deemed to be greater than 1.75 to 1. Each
determination of the Parent Leverage Ratio and the DOC Leverage Ratio pursuant
to this Pricing Grid shall be made for the periods and in the manner
contemplated by Section 7.1 of the Credit Agreement.
CONSENT OF GRANTORS
Dated as of May 7, 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. 2, 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: /s/ XXXXX X. XXXXXXXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
XXXXXX OPERATING CO., L.L.C.
as a Guarantor and Subsidiary Grantor
By: /s/ XXXXX X. XXXXXXXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
XXXXXX COMMUNICATIONS
CORPORATION
as Parent and a Grantor
By: /s/ XXXXX X. XXXXXXXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
DOC LEASE CO., LLC,
as a Guarantor and Subsidiary Grantor
By: /s/ XXXXX X. XXXXXXXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Manager
