Exhibit 10.1
AMENDMENT
THIS AMENDMENT (this "Amendment") is entered into as of
April 30, 1999, between XXXXXX OPERATING COMPANY, an Oklahoma
corporation ("DOC"), XXXXXX CELLULAR OPERATIONS COMPANY, an
Oklahoma corporation ("DCOC"), the Required Lenders under the DOC
Credit Agreement (hereinafter defined), the Required Lenders under
each of the DCOC Credit Agreements (hereinafter defined), FIRST
UNION NATIONAL BANK (successor-in-interest by merger to CoreStates
Bank, N.A.), in its capacity as Administrative Agent for the Lenders
under the DOC Credit Agreement (hereinafter defined) ("DOC Administrative
Agent"), NATIONSBANK, N.A., dba BANK OF AMERICA, N.A. (successor-in-
interest by merger to NationsBank of Texas, N.A.), in its capacity as
Administrative Agent for the Lenders under each of the DCOC Credit
Agreements ("DCOC Administrative Agent"), and Guarantors under the
Credit Agreements (hereinafter defined).
Reference is made to the following agreements: (i) the Revolving
Credit Agreement, dated as of March 25, 1998 (as amended, modified,
supplemented, or restated from time to time, the "DCOC Revolver"), among DCOC,
as Borrower, DCOC Administrative Agent, First Union National Bank, as
Syndication Agent, Toronto Dominion (Texas), Inc., as Documentation Agent,
certain Managing Agents, and Co-Agents defined therein, and the Lenders party
thereto; (ii) the 364-Day Revolving Credit and Term Loan Agreement, dated as of
March 25, 1998 (as amended, modified, supplemented, or restated from time to
time, the "364-Day Agreement" and collectively with the DCOC Revolver, the "DCOC
Credit Agreements"), among DCOC, as Borrower, DCOC Administrative Agent,
First Union National Bank, as Syndication Agent, Toronto Dominion (Texas),
Inc., as Documentation Agent, certain Managing Agents, and Co-Agents
defined therein, and the Lenders party thereto (collectively, with the Lenders
under the DCOC Revolver, the "DCOC Lenders"); and (iii) the Third Amended and
Restated Credit Agreement, dated as of March 25, 1998 (as amended to date, the
"DOC Credit Agreement"), among DOC, as Borrower, DOC Administrative Agent,
NationsBank, N.A. (successor-in-interest by merger to NationsBank of Texas,
N.A.), as Syndication Agent, Toronto Dominion (Texas), Inc., as Documentation
Agent, certain Managing Agents, and Co-Agents defined therein, and the
Lenders party thereto (the "DOC Lenders"). The DCOC Credit Agreements and the
DOC Credit Agreement are sometimes collectively referred to herein as the
"Credit Agreements."
Unless otherwise defined in this Amendment, capitalized terms used
herein with reference to a certain Credit Agreement shall have the meaning set
forth in that Credit Agreement; provided, however, that, unless otherwise
stated herein, capitalized terms used herein without reference to a certain
Credit Agreement shall have the meanings set forth in the DCOC Revolver.
Unless otherwise indicated, all Paragraph references herein are to Paragraphs
in this Amendment.
R E C I T A L S
A. DOC has requested that Required Lenders under the DOC Credit
Agreement agree to amend the DOC Credit Agreement: (i) to provide that the
Fixed Charge Coverage Ratio for fiscal year 1999 be calculated on an
annualized basis, rather than on a Rolling Period basis; and (ii) to permit
Communications and the Companies to enter into additional Interest Rate
Agreements (as well as those expressly required by the DOC Credit Agreement),
including, without limitation, additional Interest Rate Agreements between DOC
and Communications.
B. DCOC has requested that the Required Lenders under the DCOC
Credit Agreements agree to amend the DCOC Credit Agreements: (i) to
allow DCOC to calculate the Fixed Charge Coverage Ratio for the last two
quarters of fiscal year 1999 (compliance for the first two fiscal quarters
of fiscal year 1999 having been waived by that certain Waiver and Consent
dated as of December 2, 1998, between DOC, DCOC, DOC Lenders, the Required
Lenders under each of the DCOC Credit Agreements, DOC Administrative Agent,
DCOC Administrative Agent, and Guarantors under the Credit Agreements) on an
annualized basis, rather than on a Rolling Period basis; and (ii) to allow
the Companies to purchase additional Financial Xxxxxx, as well as those
expressly required by the DCOC Credit Agreements.
C. Required Lenders under the Credit Agreements are willing to
amend the respective Credit Agreements to make the changes requested by
DOC and DCOC, but only upon the conditions, among other things, that DOC,
DCOC, Guarantors under the Credit Agreements, and Required Lenders
under the Credit Agreements 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 Under the DOC Credit Agreement.
1.1 DOC and Required Lenders under the DOC Credit Agreement hereby
agree to amend the DOC Credit Agreement to allow DOC to calculate the Fixed
Charge Coverage Ratio for fiscal year 1999 on an annualized basis, rather than
on a Rolling Period basis; accordingly, the DOC Credit Agreement is amended as
follows:
(a) The following additional definition shall be
alphabetically inserted (as appropriate) in Section 1 to read, as follows:
"Fixed Charges means, for any Person, calculated at any date
of determination with respect to the most recently ending
Rolling Period (unless otherwise indicated), the sum of
(a) mandatory prepayments and regularly scheduled principal
payments or Commitment reductions with respect to Total Debt
of the Companies required to be paid during such period,
(b) the amount paid for Capital Expenditures of the
Companies, (c) cash Interest Expense of the Companies,
(d) cash taxes of the Companies, to the extent allocable to
them pursuant to the Tax Sharing Agreement, and
(e) distributions and dividends paid by Borrower, including,
without limitation, any amounts paid to fund interest on the
Communications Bond Debt, the Preferred Stock, and the
Exchange Debentures, but excluding distributions otherwise
permitted by Section 9.6(a)."
(b) The definition of "Fixed Charge Coverage Ratio" in
Section 1 of the DOC Credit Agreement is amended in its entirety to read as
follows:
"Fixed Charge Coverage Ratio means, as of any date of
determination, (a) for the fiscal quarter ending March 31,
1999, the ratio of (i) the Operating Cash Flow of the
Companies for the period from January 1, 1999, through March
31, 1999, multiplied by four to (ii) the Fixed Charges of
the Companies for the period from January 1, 1999, through
March 31, 1999, multiplied by four; (b) for the fiscal
quarter ending June 30, 1999, the ratio of (i) the
Operating Cash Flow of the Companies for the period from
January 1, 1999, through June 30, 1999, multiplied by 2 to
(ii) the Fixed Charges of the Companies for the period from
January 1, 1999, through June 30, 1999, multiplied by 2; (c)
for the fiscal quarter ending September 30, 1999, the ratio
of (i) the Operating Cash Flow of the Companies for the
period from January 1, 1999, through September 30, 1999,
multiplied by 4/3 to (ii) the Fixed Charges of the Companies
for the period from January 1, 1999, through September 30,
1999, multiplied by 4/3; and (d) thereafter for the Rolling
Period then-ending, the ratio of (i) the Operating Cash Flow
of the Companies to (ii) the Fixed Charges of the
Companies."
1.2 DOC and Required Lenders under the DOC Credit Agreement
hereby agree to amend the DOC Credit Agreement (i) to permit
Communications and DOC to enter into Interest Rate Agreements in addition to
those expressly required in Section 8.21; and (ii) to allow the Companies and
Communications to incur Indebtedness arising under any Interest Rate Agreements
obtained in compliance with the Loan Papers; accordingly, the DOC Credit
Agreement is amended as follows:
(a) To avoid triggering a mandatory prepayment event by
virtue of the Companies' or Communications' entering into an Interest Rate
Agreement, the definition of "Debt Issuance" set forth in Section 1.1 is
amended in its entirety to exclude Indebtedness under Interest Rate Agreements
incurred by the Companies or Communications and shall read as follows:
"Debt Issuance means any Indebtedness of any Company or
Communications, as the case may be, for borrowed money
issued or incurred after the Closing Date, other than, (i)
in the case of the Companies, Indebtedness permitted under
Section 9.1 (a) - (f) and (ii) Indebtedness incurred under
Interest Rate Agreements permitted by, and in compliance
with, the Loan Papers."
(b) To clarify the definition of Interest Rate Agreements
and to include Interest Rate Agreements entered into by Communications,
as well as by the Companies, the definition of "Interest Rate Agreement" set
forth in Section 1.1 is amended by inserting the following clause at the
end of the definition:
"entered into by any Company or Guarantor, which is intended
to reduce or eliminate any Company's or Guarantor's risk of
fluctuations in interest rates and which complies with the
applicable requirements of Section 8.21(c) and is otherwise
in compliance with the Loan Papers."
(c) The definition of "Permitted Investment" set forth
in Section 1.1 is amended to include Interest Rate Agreements by deleting the
word "and" before clause (h) and by inserting the following new clause (i)
immediately after clause (h):
"; and (i) Interest Rate Agreements permitted by, and in
compliance with, the Loan Papers."
(d) Section 8.21 of the DOC Credit Agreement is hereby
amended to clarify that: (i) any Indebtedness owed to Lenders or their
Affiliates by the Companies arising under an Interest Rate Agreement that
complies with Section 8.21(c) of the DOC Credit Agreement will be afforded the
benefit of pari passu liens in the Collateral; and (ii) all Interest Rate
Agreements (whether with third parties or Lenders or Affiliates of Lenders)
must satisfy certain requirements; accordingly, Section 8.21 is amended in its
entirely to read, as follows:
"8.21 Interest Rate Protection.
(a) Within 60 days from the date hereof, enter into
one or more fixed rate Interest Rate Agreements (which may
include the Existing Interest Rate Agreement), in form
acceptable to Administrative Agent, with one or more Lenders
or institutions acceptable to Administrative Agent, with
respect to at least fifty percent (50%) of the
Communications Total Debt outstanding on the Effective Date,
with a duration at least two years; provided, however, that
the protected rate shall be no greater than 2.5% above the
all-in rate as of the Effective Date hereof.
(b) To the extent any Lender or its Affiliate enters into
an Interest Rate Agreement with any Company, including, without
limitation, any Interest Rate Agreements with Lenders or their
Affiliates obtained in satisfaction of the requirements of
Section 8.21(a), such Lender or its Affiliate are afforded the
benefits of (and Borrower [or any other Company by execution of
Collateral Security Documents] hereby confirms a grant of) a
security interest in and to the Collateral as evidenced by the
Collateral Security Documents to the extent of such Lender's (or
Affiliate thereof's) credit exposure under such Interest Rate
Agreements; such security interest is pari passu with that of
Administrative Agent on behalf of the Lenders; and by acceptance
of such security interest, each Affiliate of Lender entering into
an Interest Rate Agreement agrees (i) to appoint NationsBank,
N.A. as its nominee and agent, to act for and on behalf of such
Affiliate, in connection with the Collateral Security Documents
and (ii) to be bound by the terms of Section 13, whereupon all
references to "Lender" in Section 13 and in the Collateral
Security Documents shall include, on any date of determination,
an Affiliate of any Lender that is party to a then-effective
Interest Rate Agreement.
(c) Interest Rate Agreements entered into by any Company
whether in satisfaction of the requirements of this Section 8.21
or as otherwise permitted by the Loan Papers, shall be subject to
the following: (i) each such Lender or other institution
entering into an Interest Rate Agreement shall calculate its credit
exposure in a reasonable and customary manner; and (ii) all
documentation for such Interest Rate Agreement shall conform to
ISDA standards and must be acceptable to Administrative Agent
with respect to intercreditor issues."
(e) To permit the Companies to enter into Interest Rate Agreements in
addition to those expressly required by Section 8.21, Section 9.1(d) is
amended by deleting the phrase "entered into pursuant to Section 8.21 hereof".
(f) To permit Interest Rate Agreements among the Companies and
Communications, the limitation on payments to Affiliates under Section 9.9 is
amended, by adding the following phrase prior to the period (.) at the end
thereof:
"or under Interest Rate Agreements between Companies or
between any Company and Communications, so long as such
Interest Rate Agreement is permitted by, and in compliance
with, the Loan Papers."
(g) Section 10.1 is amended to permit Communications to incur
Indebtedness under Interest Rate Agreements by deleting the word "and"
immediately before clause (b) and by inserting the following new clause (c)
immediately after clause (b):
"; and (c) Indebtedness arising under Interest Rate
Agreements permitted by, and in compliance with, the Loan
Papers".
(h) To clarify that the Obligation, including obligations under
Interest Rate Agreements with Lenders or Affiliates of Lenders, may be
collateralized by Liens on assets of Communications, Section 10.4 is amended
by (i) changing the word "Loan" in the fourth line thereof to "Obligation" and
(ii) deleting the word "and" immediately before clause (k) and inserting the
following new clause (l) immediately after clause (k):
"; and (l) liens securing Indebtedness and obligations under
Interest Rate Agreements permitted by, and in compliance
with, the Loan Papers."
(i) To clarify that Interest Rate Agreements between the Companies
and Communications are permitted under the Loan Papers, Section 10.10
is amended by inserting the following phrase at the end of such Section,
immediately prior to the period (.):
"or under any Interest Rate Agreement between Companies or
between any Company and Communications, so long as such
Interest Rate Agreement is permitted by, and in compliance
with, the Loan Papers."
(j) In order to clarify that the "Agreement Among Lenders" in
Section 13 includes Lenders or Affiliates thereof issuing an Interest Rate
Agreement with the Companies or Communications, Sections 13.2 and 13.3 are
hereby amended by substituting the words "ratable portion" for each reference
to "Pro Rata Part;"and Section 13.4 is hereby amended by substituting the word
"Obligation" for each reference to "Principal Debt."
Paragraph 2. Amendments Under the DCOC Credit Agreements.
2.1 DCOC and Required Lenders under the DCOC Credit Agreements
hereby agree to amend the DCOC Credit Agreements to allow DCOC to
calculate the Fixed Charge Coverage Ratio for the last two quarters of fiscal
year 1999 based on an annualized basis, rather than a Rolling Period basis;
accordingly, the DCOC Credit Agreement are amended as follows:
(a) The following additional definition shall be
alphabetically inserted (as appropriate) in Section 1 of the DCOC Credit
Agreements to read, as follows:
"Fixed Charges means, for any Person, calculated at any date
of determination with respect to the most recently ending
Rolling Period (unless otherwise indicated), the sum of
(a) all mandatory prepayments and regularly-scheduled
principal payments with respect to Total Debt of the
Companies required to be paid; (b) the amount paid for
Capital Expenditures of the Companies, (c) cash Interest
Expense of the Companies, (d) cash taxes of the Companies,
to the extent allocable to them pursuant to the Tax Sharing
Agreement, and (e) distributions and dividends paid by
Borrower, including, without limitation, any amounts paid to
fund interest on the Communications Bond Debt, the Preferred
Stock, and the Exchange Debentures, but excluding
distributions otherwise permitted by Section 9.6(a)."
(b) The definition of "Fixed Charge Coverage Ratio" in
Section 1 of the DCOC Credit Agreements is amended to read in its entirety as
follows:
"Fixed Charge Coverage Ratio means, as of any date of
determination, (a) for the fiscal quarter ending September
30, 1999, the ratio of (i) the Operating Cash Flow of the
Companies for the period from July 1, 1999, through
September 30, 1999, multiplied by four to (ii) the Fixed
Charges of the Companies for the period from July 1, 1999,
through September 30, 1999, multiplied by four; (b) for the
fiscal quarter ending December 31, 1999, the ratio of
(i) the Operating Cash Flow of the Companies for the period
from July 1, 1999, through December 31, 1999, multiplied
by 2 to (ii) the Fixed Charges of the Companies for the
period from July 1, 1999, through December 31, 1999,
multiplied by 2; and (c) thereafter, for the Rolling Period
then-ending, the ratio of (i) the Operating Cash Flow of the
Companies to (ii) the Fixed Charges of the Companies."
2.2 DCOC and Required Lenders under the DCOC Credit Agreements
hereby agree to amend the DCOC Credit Agreements (i) to permit DCOC to
obtain Financial Xxxxxx in addition to those expressly required in
Section 9.27; and (ii) to allow the Companies to incur Debt arising under any
Financial Hedge obtained in compliance with the Loan Papers; accordingly, the
DCOC Credit Agreements are amended as follows:
(a) The definition of Financial Hedge set forth in Section
1.1 of the DCOC Credit Agreements is clarified to read in its entirety, as
follows:
"Financial Hedge means a swap, collar, floor, cap, or other
contract which is intended to reduce or eliminate the risk
of fluctuations in interest rates and which complies with
the applicable requirements of Section 9.27(c) and is
otherwise in compliance with the requirements of the Loan
Papers."
(b) To clarify that the Companies may incur Debt under
Financial Xxxxxx in addition to those Financial Xxxxxx required by the Loan
Papers, Section 9.12(a)(iii) is amended in its entirety to read, as
follows:
"(iii) Debt incurred by the Companies under any Financial
Hedge permitted by, and in compliance with, the Loan Papers;"
(c) To clarify that Financial Xxxxxx permitted by the
DCOC Credit Agreements are permitted investments, Section 9.20 is hereby
amended by deleting the word "and" before clause (j) and by inserting the
following new clause (k) immediately after clause (j):
"(k) Financial Xxxxxx permitted by, and in compliance with,
the Loan Papers."
(d) Section 9.27 of the DCOC Revolver is hereby amended
to clarify that: (i) any Debt owed to Lenders or their Affiliates by the
Companies arising under a Financial Hedge that complies with Section
9.27(c) of the DCOC Revolver will be afforded the benefit of pari passu Liens
in the Collateral; and (ii) all Financial Xxxxxx (whether with third parties or
Lenders or Affiliates of Lenders) must satisfy certain requirements;
accordingly, Section 9.27 of the DCOC Revolver is amended in its entirely to
read, as follows:
"9.27 Financial Xxxxxx.
(a) The Companies shall, within 60 days from the
date hereof, enter into Financial Xxxxxx in a form and upon
terms acceptable to Administrative Agent, issued by one or
more Lenders or an institution acceptable to Administrative
Agent with a duration of a period of at least two years,
with respect to at least fifty percent (50%) of the Total
Debt of the Companies outstanding on the Closing Date;
provided, however, that the protected rate shall be no
greater than 2.5% above the all-in rate on the Closing Date
hereof.
(b) To the extent any Lender or its Affiliate issues
a Financial Hedge to any Company, including, without
limitation, any Financial Xxxxxx with Lenders or their
Affiliates obtained in satisfaction of the requirements of
Section 9.27(a), such Lender or its Affiliate are afforded
the benefits of (and Borrower [or any Company by execution
of Collateral Documents] hereby confirms a grant of) Liens
in and to the Collateral as evidenced by the Collateral
Documents to the extent of such Lender's (or Affiliate
thereof's) credit exposure under such Financial Hedge; such
Lien is pari passu with that of Collateral Agent on behalf
of the Lenders and the 364-Day Facility Lenders; and by
acceptance of such Liens, each Affiliate of Lender issuing a
Financial Hedge agrees (i) to appoint Collateral Agent as
its nominee and agent, to act for and on behalf of such
Affiliate, in connection with the Collateral Documents and
(ii) to be bound by the terms of Section 12, whereupon all
references to "Lender" in Section 12 and in the Collateral
Documents shall include, on any date of determination, an
Affiliate of any Lender that is party to a then-effective
Financial Hedge.
(c) Financial Xxxxxx held by any Company whether in
satisfaction of the requirements of this Section 9.27 or as
otherwise permitted by the Loan Papers, shall be subject to
the following: (i) each such Lender or other institution
issuing a Financial Hedge shall calculate its credit
exposure in a reasonable and customary manner; and (ii) all
documentation for such Financial Hedge shall conform to ISDA
standards and must be acceptable to Administrative Agent
with respect to intercreditor issues."
(e) Section 9.27 of the 364-Day Agreement is hereby
amended to clarify that: (i) any Debt owed to Lenders or their Affiliates by
the Companies arising under a Financial Hedge that complies with Section
9.27(c) of the 364-Day Agreement will be afforded the benefit of pari passu
Liens in the Collateral; and (ii) all Financial Xxxxxx (whether with third
parties or Lenders or Affiliates of Lenders) must satisfy certain requirements;
accordingly, Section 9.27 of the 364-Day Agreement is amended in its entirely
to read, as follows:
"9.27 Financial Xxxxxx.
(a) The Companies shall, within 60 days from the
date hereof, enter into Financial Xxxxxx in a form and upon
terms acceptable to Administrative Agent, issued by one or
more Lenders or an institution acceptable to Administrative
Agent with a duration of a period of at least two years,
with respect to at least fifty percent (50%) of the Total
Debt of the Companies outstanding on the Closing Date;
provided, however, that the protected rate shall be no
greater than 2.5% above the all-in rate on the Closing Date
hereof.
(b) To the extent any Lender or its Affiliate issues
a Financial Hedge to any Company, including, without
limitation, any Financial Xxxxxx with Lenders or their
Affiliates obtained in satisfaction of the requirements of
Section 9.27(a), such Lender or its Affiliate are afforded
the benefits of (and Borrower [or any other Company by
execution of Collateral Documents] hereby confirms a grant
of) Liens in and to the Collateral as evidenced by the
Collateral Documents to the extent of such Lender's (or
Affiliate thereof's) credit exposure under such Financial
Hedge; such Lien is pari passu with that of Collateral Agent
on behalf of the Lenders and the Revolver/Acquisition
Lenders; and by acceptance of such Liens, each Affiliate of
Lender issuing a Financial Hedge agrees (i) to appoint
Collateral Agent as its nominee and agent, to act for and on
behalf of such Affiliate, in connection with the Collateral
Documents and (ii) to be bound by the terms of Section 12,
whereupon all references to "Lender" in Section 12 and in
the Collateral Documents shall include, on any date of
determination, an Affiliate of any Lender that is party to a
then-effective Financial Hedge.
(c) Financial Xxxxxx held by any Company whether in
satisfaction of the requirements of this Section 9.27 or as
otherwise permitted by the Loan Papers, shall be subject to
the following: (i) each such Lender or other institution
issuing a Financial Hedge shall calculate its credit
exposure in a reasonable and customary manner; and (ii) all
documentation for such Financial Hedge shall conform to ISDA
standards and must be acceptable to Administrative Agent
with respect to intercreditor issues."
(f) In order to clarify that the "Agreement Among Lenders"
in Section 12 of the DCOC Credit Agreements includes Lenders or Affiliates
thereof issuing Financial Xxxxxx, Sections 12.2 and 12.3 of the DCOC Credit
Agreements are hereby amended by substituting the words "ratable portion" for
each reference to "Pro Rata Part;"and Section 12.4 is hereby amended by
substituting the word "Obligation" for each reference to "Principal Debt."
Paragraph 3. Effective Date. This Amendment shall be effective on the
date (the "Effective Date") upon which each of the following requirements have
been satisfied: DCOC Administrative Agent receives counterparts of this
Amendment executed by DOC, DCOC, each Guarantor under the Credit Agreements,
Required Lenders under each of the DOC Credit Agreement and the DCOC Credit
Agreements, DOC Administrative Agent, and DCOC Administrative Agent.
Paragraph 4. Acknowledgment and Ratification. As a material inducement
to DOC Administrative Agent, DCOC Administrative Agent, the DCOC Lenders, and
the DOC Lenders to execute and deliver this Amendment, DCOC, 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 DCOC, DOC, or Guarantors under their respective
Collateral Security Documents under the DOC Credit Agreement or the Collateral
Documents under the DCOC Credit Agreements, which Collateral Security
Documents and Collateral Documents shall remain in full force and effect, and
all liens, guaranties, and rights thereunder are hereby ratified and confirmed.
Paragraph 5. Representations. As a material inducement to DOC Administrative
Agent, DCOC Administrative Agent, the DCOC Lenders, and the DOC
Lenders to execute and deliver this Amendment, DCOC, DOC, and each Guarantor
represent and warrant to such parties (with the knowledge and intent that the
DOC Lenders, Lenders under the DCOC Credit Agreements, DOC Administrative
Agent, and DCOC 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 DOC Credit Agreement and related Loan Papers and the DCOC
Credit Agreements and related Loan Papers 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 contemplated or permitted by
the applicable Credit Agreements; (b) no Event of Default or Default exists
under the DOC Credit Agreement and related Loan Papers, and no Default or
Potential Default exists under the DCOC Credit Agreements and related Loan
Papers; 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, DCOC, and each Guarantor in accordance with its terms.
Paragraph 6. Expenses. DOC and DCOC shall pay all costs, fees, and
expenses paid or incurred by DCOC Administrative Agent incident to this
Amendment, including, without limitation, the reasonable fees and expenses of
DCOC Administrative Agent's counsel in connection with the negotiation,
preparation, delivery, and execution of this Amendment and any related
documents.
Paragraph 7. Miscellaneous.
7.1 This Amendment is one of the "Loan Papers" referred to in the
Credit Agreements and the provisions of Section 14 of the DOC Credit Agreement
relating to the DOC Credit Agreement and the related Loan Papers and the
provisions of Sections 13 of the DCOC Credit Agreements relating to the DCOC
Credit Agreements and the related Loan Papers 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 Texas 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.
7.2 The Credit Agreements and all related Loan Papers 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 "DCOC Credit Agreements" shall be to the
DCOC Credit Agreements as herein amended and all reference to the "DOC Credit
Agreement" shall be to the DOC 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 the DOC
Lenders or DCOC Lenders under the Credit Agreements or any Loan Papers, nor
constitute a waiver under the Credit Agreements or any other provision of the
Loan Papers.
Paragraph 8. 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 9. Parties. This Amendment binds and inures to DOC, DCOC, DOC
Administrative Agent, DCOC Administrative Agent, DOC Lenders, DCOC 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 the Effective Date.
XXXXXX OPERATING COMPANY,
as Borrower under DOC Credit Agreement
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx.
Treasurer
XXXXXX CELLULAR OPERATIONS COMPANY,
as Borrower under DCOC Credit Agreements
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx.
Treasurer
XXXXXX COMMUNICATIONS CORPORATION,
as Guarantor under DOC Credit Agreement
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx.
ASSOCIATED TELECOMMUNICATIONS AND
TECHNOLOGIES, INC., as Guarantor under
DOC Credit Agreement
XXXXXX CELLULAR OF ARIZONA, INC., as
Guarantor under DOC Credit Agreement
XXXXXX CELLULAR OF XXXX, INC.,
as Guarantor under DOC Credit Agreement
XXXXXX CELLULAR OF KANSAS/MISSOURI, INC.,
as Guarantor under DOC Credit Agreement
XXXXXX CELLULAR OF MARYLAND, INC., as
Guarantor under DOC Credit Agreement
XXXXXX CELLULAR OF SANDUSKY, INC., as
Guarantor under DOC Credit Agreement
XXXXXX CELLULAR OF XXXXXXX INC.
(f/k/a Xxxxxx Cellular of Southern
California, Inc.), as Guarantor under
DOC Credit Agreement
XXXXXX CELLULAR OF XXXXXXXX, INC., as
Guarantor under DOC Credit Agreement
XXXXXX CELLULAR SYSTEMS, INC., as
Guarantor under DOC Credit Agreement
DOC CELLULAR SUBSIDIARY COMPANY,
as Guarantor under DOC Credit Agreement
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx.
Treasurer
OKLAHOMA INDEPENDENT RSA 5 PARTNERSHIP,
as Guarantor under DOC Credit Agreement
By: XXXXXX CELLULAR SYSTEMS, INC.,
its Managing General Partner
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx.
OKLAHOMA INDEPENDENT RSA 7 PARTNERSHIP,
as Guarantor under DOC Credit Agreement
By: XXXXXX CELLULAR SYSTEMS, INC.,
its Managing General Partner
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx.
OKLAHOMA RSA 5 LIMITED PARTNERSHIP, as
Guarantor under DOC Credit Agreement
By: OKLAHOMA INDEPENDENT RSA 5
PARTNERSHIP, its Managing General
Partner
By: XXXXXX CELLULAR SYSTEMS, INC.,
as Managing General Partner
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx.
OKLAHOMA RSA 7 LIMITED PARTNERSHIP, as
Guarantor under DOC Credit Agreement
By: OKLAHOMA INDEPENDENT RSA 7
PARTNERSHIP, its Managing General
Partner
By: XXXXXX CELLULAR SYSTEMS, INC.,
its Managing General Partner
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx.
TEXAS RSA NO. 2 LIMITED PARTNERSHIP, as
Guarantor under DOC Credit Agreement
By: XXXXXX CELLULAR SYSTEMS, INC.,
its Managing General Partner
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx.
XXXXXX CELLULAR OF TEXAS, INC.,
as Guarantor under DCOC Credit Agreements
XXXXXX CELLULAR OF CALIFORNIA, INC., as
Guarantor under DCOC Credit Agreements
CELLULAR 2000 TELEPHONE CO., as
Guarantor under DCOC Credit Agreements
RSA 339, INC., as Guarantor under
DCOC Credit Agreements
SANTA XXXX CELLULAR TELEPHONE, INC., as
Guarantor under DCOC Credit Agreements
XXXXXX CELLULAR OF IMPERIAL, INC., as
Guarantor under DCOC Credit Agreements
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx.
CELLULAR 2000, as Guarantor under DCOC
Credit Agreements
By: CELLULAR 2000 TELEPHONE CO., its two-
thirds majority interest holder
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx.
NATIONSBANK, N.A. (as successor-in-
interest by merger to NationsBank of
Texas, N.A.), as DCOC Administrative
Agent, a DOC Lender, and a DCOC Lender
XXXXX X. XXXXXX
Xxxxx X. Xxxxxx
Vice President
(Remaining signatures intentionally omitted)
