AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
("Amendment No. 1") is made this 22nd day of April, 1997 by and among XXXXXX
OPERATING COMPANY, an Oklahoma corporation with offices at 00000 X. Xxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxxxx 00000 ("Borrower"), CORESTATES
BANK, N.A., a national banking association with offices at 0000 Xxxxxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 ("CoreStates", and in its capacity
as administrative agent under the Credit Agreement referenced below,
"Administrative Agent"), NATIONSBANK OF TEXAS, N.A., a national banking
association ("NationsBank"), FIRST UNION NATIONAL BANK OF NORTH CAROLINA, a
national banking association ("First Union") and the banks listed on Schedule
1 attached hereto (CoreStates and such additional banks, individually a
"Bank" and collectively the "Banks"). Each of the Guarantors has executed
this Amendment No. 1 for the limited purposes provided for in the Credit
Agreement referenced below.
WITNESSETH:
WHEREAS, Borrower entered into a Second Amended and Restated Credit
Agreement dated February 28, 1997 (as amended, the "Credit Agreement") with
the Managing Agents, the Administrative Agent and the Banks pursuant to which
the Banks agreed to make loans and advances to the Borrower up to an
aggregate principal amount outstanding at any time of Two Hundred Million
Dollars ($200,000,000), subject to the terms and conditions set forth
therein; and
WHEREAS, Banks, the Administrative Agent, the Managing Agents and
Borrower wish to enter into this Amendment No. 1 to add additional Banks to
the Credit Agreement and to modify certain definitions and covenants.
NOW, THEREFORE, in consideration of the premises and the agreements
herein set forth and intending to be legally bound hereby, the parties hereto
agree as follows:
I. CREDIT AGREEMENT AMENDMENTS.
1. DEFINITIONS.
a. GENERAL. Capitalized terms used but not defined in this
Amendment No. 1 shall have the meanings given to them in the Credit Agreement.
b. NEW DEFINITION. The following definition is hereby added to
Paragraph 1.1 of the Credit Agreement:
"AMENDMENT NO. 1" means Amendment No. 1 to Credit Agreement dated
April __, 1997 among Administrative Agent, the Managing Agents, Banks
and Borrower.
c. AMENDED DEFINITION. The definition of "Permitted Investment" in
Paragraph 1.1 of the Credit Agreement is hereby amended to add the following
Subsection (v) thereto:
(v) Participation Certificates in CoBank (as defined in Paragraph 5.27
hereof).
2. SCHEDULE 1. Schedule 1 to the Credit Agreement referenced in
Paragraph 2.3 thereof is hereby amended and restated in its entirety as set
forth on Amended Schedule 1 attached hereto.
3. PROMISSORY NOTES. Exhibit B of the Credit Agreement is hereby
amended and restated in its entirety as set forth on Amended Exhibit B
attached hereto.
4. REDUCTIONS IN COMMITMENT. The first sentence of Paragraph
2.5(a)(ii) of the Credit Agreement is hereby amended and restated in its
entirety as follows:
(ii) On June 30, 2000 and on the last Business Day of each March,
June, September and December thereafter until September 30, 2005 (each, a
"Commitment Reduction Date"), the Commitment shall be reduced by an amount
equal to the Commitment as in effect on June 30, 2000 multiplied by the
percentages set forth below.
5. AVAILABILITY OF CREDITS. Paragraph 2A.1(c) of the Credit Agreement
is hereby amended and restated in its entirety as follows:
(c) the final expiration date of each Letter of Credit shall be on
or before the earlier of (i) one year from the date of issuance thereof or
(ii) the Final Maturity Date;
6. COMMUNICATIONS LEVERAGE RATIO. Paragraph 5.19 of the Credit
Agreement is hereby amended and restated in its entirety as follows:
5.19 COMMUNICATIONS LEVERAGE RATIO. Maintain at all times during the
periods set forth in the left-hand column, Communications Leverage Ratio
measured as of the last day of
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the most recently ended quarter of not more than the ratio set forth in the
right-hand column:
PERIOD MAXIMUM RATIO
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Date hereof through 3/31/98 10.50:1
4/1/98 - 9/30/98 10.25:1
10/1/98 - 12/31/98 10.00:1
1/1/99 - 3/31/99 9.50:1
4/1/99 - 9/30/99 9.00:1
10/1/99 - 3/31/00 8.00:1
4/1/00 - 12/31/00 6.50:1
1/1/01 - 12/31/01 5.50:1
1/1/02 and thereafter 4.50:1
7. ADDITIONAL AFFIRMATIVE COVENANTS. The following Paragraph 5.27 is
hereby added to Credit Agreement:
5.27. COBANK PARTICIPATION. At all times during which CoBank,
ACB ("CoBank") is a Bank hereunder, acquire and maintain participation
certificates in CoBank (the "Participation Certificates") in such
amounts and at such times as CoBank may from time to time require in
accordance with its Bylaws and Capital Plan (as each may be amended
from time to time); provided, however, that the maximum amount of
Participation Certificates that the Borrower may be required to
purchase may not exceed the maximum amount permitted by CoBank's
Bylaws on the date hereof. The rights and obligations of the parties
with respect to the Participation Certificates and any other patronage
or other distributions shall be governed by CoBank's Bylaws.
8. LIENS AND ENCUMBRANCES. Paragraph 7.4 of the Credit Agreement is
hereby amended to add the following subparagraph (x) thereto:
(x) statutory liens on the Participation Certificates in CoBank held
by Borrower to secure Borrower's obligations to CoBank hereunder, the
proceeds of such Participation Certificates (as and when received)
which CoBank hereby agrees shall be shared among the Banks pursuant to
Paragraph 10.2 hereof.
9. CONSENT TO AMENDMENT OF ARTICLES. Notwithstanding Paragraph 7.7 of
the Credit Agreement, the Banks hereby consent
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to the amendment to Communications' Amended Articles of Incorporation as set
forth in the letter dated April 16, 1997 from counsel to Communications to
counsel to Administrative Agent attached hereto.
10. MODIFICATIONS AND WAIVERS. Paragraph 10.3 of the Credit Agreement is
hereby amended and restated in its entirety as follows:
10.3 MODIFICATIONS AND WAIVERS. No modification or amendment
hereof, consent hereunder or waiver of Event of Default shall be effective
except by written consent of the Required Banks, provided, however, that (a)
the written consent of all Banks shall be required to: (i) decrease the rate
of interest, (ii) modify the amount of the Commitment, or the Banks'
respective shares thereof, (iii) change the dates of required payments of
interest and fees hereunder or of required Commitment reductions hereunder,
(iv) decrease the commitment fee or Letter of Credit fee, (v) consent to the
taking of any action which is prohibited by Paragraph 6.12 hereof, (vi)
change the Final Maturity Date, (vii) release any Guarantor or Collateral
except as expressly permitted to be sold or transferred pursuant to Paragraph
6.7(a) hereof or otherwise expressly specified herein, (viii) approve the
terms of Subordinated Debt, (ix) amend the definition of Required Banks, or
(x) modify or waive the provisions of this Paragraph 10.3. Any amendment or
waiver made pursuant to this Section 10.3 shall apply to and bind all of the
Banks and any future holder of any Notes.
11. REPRESENTATIONS AND WARRANTIES. The Borrower, Communications and
the Guarantors hereby jointly and severally represent and warrant to Banks as
follows:
a. REPRESENTATIONS. The representations and warranties of the
Borrower, Communications and the Guarantors as set forth in Section Three of
the Credit Agreement are true and correct in all material respects as of the
date hereof; no Event of Default or Default under the Credit Agreement is in
existence; and there has been no event or circumstance which is reasonably
likely to cause a Material Adverse Effect since February 28, 1997.
b. POWER AND AUTHORITY; ENFORCEABILITY. The Borrower,
Communications and each Guarantor has the power and authority under, as
applicable, its Partnership Agreement or articles of incorporation and
bylaws, to enter into and perform, to the extent applicable to it, this
Amendment No. 1, the Notes and all other agreements and documents required
hereunder (hereinafter collectively referred to as the "Amendment
Documents");
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and all actions necessary or appropriate for the execution and performance by
the Borrower, Communications and each Guarantor, to the extent applicable to
it, of the Amendment Documents have been taken and upon their execution, the
same will constitute the legal, valid and binding obligations of the
Borrower, Communications and each Guarantor (to the extent that each is a
party thereto) enforceable in accordance with their terms.
c. NO VIOLATION OF LAWS OR AGREEMENTS. The making and performance
of the Amendment Documents and actions required of Borrower, Communications
and each Guarantor hereunder and thereunder will not violate any provisions
of any federal, state or local law or regulation, the Partnership Agreement
or articles of incorporation and bylaws of such Borrower, Communications or
Guarantor, as applicable, or result in any breach or violation of, or
constitute a default under, any agreement by which the Borrower,
Communications or any Guarantor or their respective property may be bound.
12. CONDITIONS TO EFFECTIVENESS OF AMENDMENT. This Amendment No. 1
shall be effective upon Administrative Agent's receipt of the following
documents, each in form satisfactory to Banks:
a. AMENDMENT NO. 1. This Amendment No. 1, duly executed by
Administrative Agent, Banks, the Borrower, Communications and the Guarantors.
b. AMENDED AND RESTATED NOTES. Third Amended and Restated
Promissory Notes in the form of Exhibit B attached hereto, duly executed by
the Borrower in favor of Banks.
c. ASSIGNMENT AND ASSUMPTION AGREEMENTS. Assignment and
Assumption Agreements in the form of Exhibit I attached to the Credit
Agreement, duly executed by the Banks.
d. OTHER DOCUMENTS. Such additional documents as Agent on behalf
of Banks shall reasonably request.
13. CONFIRMATION. Banks, Administrative Agent, the Managing Agents,
Borrower, Communications and Guarantors (to the extent applicable) hereby
confirm all of the provisions of the Credit Agreement, as amended, including
by this Amendment No. 1, the Third Amended and Restated Promissory Notes and
the Amendment Documents to the extent that each is a party thereto and agree
that the terms and conditions of the Credit Agreement, the Third Amended and
Restated Promissory Notes and the Amendment Documents shall continue in full
force and effect as supplemented and amended hereby.
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14. MISCELLANEOUS.
a. This Amendment No. 1, the Third Amended and Restated Promissory
Notes, and any other Amendment Document shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
b. Borrower agrees to reimburse Administrative Agent for all
reasonable costs and expenses (including but not limited to, reasonable
attorneys' fees and reasonable disbursements) which Administrative Agent may
pay or incur in connection with the preparation of this Amendment No. 1, the
Third Amended and Restated Promissory Notes, the other Amendment Documents,
the Assignment and Assumption Agreements, and the preparation or review of
other documents executed or delivered in connection herewith.
c. All terms and provisions of this Amendment No. 1, the Third
Amended and Restated Promissory Notes, the other Amendment Documents and the
Assignment and Assumption Agreements shall be for the benefit of and be
binding upon and enforceable by the respective successors and assigns of the
parties hereto.
d. This Amendment No. 1 may be executed in any number of
counterparts with the same effect as if all the signatures on such
counterparts appeared on one document and each such counterpart shall be
deemed an original.
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e. The execution, delivery and performance of this Amendment No. 1
shall not effect a waiver of any right, power or remedy of Banks under
applicable law or under the Credit Agreement and the agreements and documents
executed in connection therewith or constitute a waiver of any provision
thereof.
IN WITNESS WHEREOF, the undersigned by their duly authorized
officers, have executed this Amendment No. 1 the day and year first written
above.
XXXXXX OPERATING COMPANY
By: /s/ XXXXXXX X. XXXXXX
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
CORESTATES BANK, N.A., for itself, as
Administrative Agent and as Managing Agent
By: /s/ XXXXXX X. XXXXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
FIRST UNION NATIONAL
BANK OF NORTH CAROLINA,
for itself, as Documentation Agent
and as Managing Agent
By: /s/ XXX X. XXXXXX
-----------------------------
Name: Xxx X. Xxxxxx
Title: Senior Vice President
NATIONSBANK OF TEXAS, N.A, for itself, as
Syndication Agent and as Managing Agent
By: /s/ XXXXX X. XXXXXX
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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GUARANTORS, for the purposes set forth in the
Credit Agreement:
XXXXXX COMMUNICATIONS CORPORATION
By: /s/ XXXXXXX X. XXXXXX
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
XXXXXX CELLULAR SYSTEMS, INC.
By: /s/ G. XXXXXX XXXXX
-----------------------------
Name: G. Xxxxxx Xxxxx
Title: President
XXXXXX CELLULAR OF XXXXXXXX, INC.
By: /s/ G. XXXXXX XXXXX
-----------------------------
Name: G. Xxxxxx Xxxxx
Title: President
XXXXXX CELLULAR OF XXXX, INC.
By: /s/ G. XXXXXX XXXXX
-----------------------------
Name: G. Xxxxxx Xxxxx
Title: President
XXXXXX FIBER COMPANY, INC.
By: /s/ XXXXXXX X. XXXXXX
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman of the Board and
Chief Executive Officer
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XXXXXX CELLULAR OF KANSAS/MISSOURI, INC.
By: /s/ G. XXXXXX XXXXX
-----------------------------
Name: G. Xxxxxx Xxxxx
Title: President
XXXXXX CELLULAR OF MARYLAND, INC.
By: /s/ G. XXXXXX XXXXX
-----------------------------
Name: G. Xxxxxx Xxxxx
Title: President
XXXXXX CELLULAR OF ARIZONA, INC.
By: /s/ G. XXXXXX XXXXX
-----------------------------
Name: G. Xxxxxx Xxxxx
Title: President
TEXAS RSA NO. 2 LIMITED PARTNERSHIP
By: Xxxxxx Cellular Systems, Inc.,
Its Managing General Partner
By: /s/ G. XXXXXX XXXXX
------------------------
Name: G. Xxxxxx Xxxxx
Title: President
OKLAHOMA RSA 5 LIMITED PARTNERSHIP
By: Xxxxxx Cellular Systems, Inc.,
Its Managing General Partner
By: /s/ G. XXXXXX XXXXX
------------------------
Name: G. Xxxxxx Xxxxx
Title: President
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OKLAHOMA RSA 7 LIMITED PARTNERSHIP
By: Xxxxxx Cellular Systems, Inc.,
Its Managing General Partner
By: /s/ G. XXXXXX XXXXX
------------------------
Name: G. Xxxxxx Xxxxx
Title: President
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