SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated as
of the 27th day of January, 1998, is made by and among XXXXXXX COMMUNICATIONS,
INC., a Delaware corporation (the "Borrower"), the FINANCIAL INSTITUTIONS
SIGNATORY HERETO and TORONTO DOMINION (TEXAS), INC., its capacity as
administrative agent (the "Administrative Agent" for the Lenders (as defined in
the Loan Agreement defined below).
WITNESSETH:
WHEREAS, the Borrower, the Administrative Agent, the Arranging Agents
(as defined therein) and the Lenders are parties to that certain Credit
Agreement dated as of June 27, 1996 (as heretofore and as hereafter amended,
modified or supplemented from time to time, the "Credit Agreement"); and
WHEREAS, the Borrower has requested that the Lenders consent to the
incurrence by the Borrower of additional Senior Debt and/or Subordinated Debt in
an aggregate principal amount not to exceed $300,000,000 as more particularly
described herein; and
WHEREAS, the Borrower and the Lenders have agreed to amend certain
provisions of the Credit Agreement on the terms and conditions set forth
herein'.
NOW THEREFORE, in consideration of the premises set forth above, the
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
par-ties hereto agree that all capitalized terms used and not defined herein
shall have the meanings ascribed thereto in the Credit Agreement, and further
agree as follows:
1. Amendments to Article 1.
(a) Article I of the Credit Agreement, Definitions, is hereby
amended by deleting the existing definitions of "Senior Subordinated Debt" and
"Senior Subordinated Debt Indenture" in their entireties and by substituting the
following definitions in lieu thereof-
"'Senior Subordinated Debt' shall mean, collectively, (a) the
1996 Senior Subordinated Debt and (b) the 1998 Senior Subordinated
Debt."
"'Senior Subordinated Debt Indenture' shall mean,
collectively, (a) the 1996 Senior Subordinated Debt Indenture and (b)
the 1998 Senior Subordinated Debt Indenture."
(b) Article I of the Credit Agreement, Definitions, is hereby
further amended by adding the following definitions of " 1996 Senior
Subordinated Debt," "1996
Senior Subordinated Debt Indenture," " 1998 Senior Subordinated Debt" and " 1998
Senior Subordinated Debt Indenture" in appropriate alphabetical order:
"'1996 Senior Subordinated Debt' shall mean the unsecured,
10-1/2% Senior Subordinated Notes issued by the Borrower pursuant to
the Senior Subordinated Debt Indenture."
"'1996 Senior Subordinated Debt Indenture' shall mean that
certain Indenture dated as of June 15, 1996 between the Borrower and
The Bank of New York, as trustee, with respect to the Borrower's
10-1/2% Senior Subordinated Notes due 2006."
"'1998 Senior Subordinated Debt' shall mean the unsecured
senior subordinated notes to be issued by the Borrower in early 1998
pursuant to the 1998 Senior Subordinated Debt Indenture."
"'1998 Senior Subordinated Debt Indenture' shall mean that
certain Indenture issued by the Borrower in early 1998 with respect to
the 1998 Senior Subordinated Debt."
2. Amendment to Article 2. Section 2.5(b)(v) of the Credit Agreement,
Payments Upon Issuance of Subordinated Debt, is hereby amended by deleting the
terms "Senior Subordinated Debt" and "Senior Subordinated Debt Indenture"
appearing in the second and third lines thereof and replacing them with the
terms "1996 Senior Subordinated Debt" and "1996 Senior Subordinated Debt
Indenture."
3. Amendments to Article 7.
(a) Section 7.1 of the Credit Agreement, Indebtedness of the
Borrower and the Restricted Subsidiaries, is hereby amended by deleting
subsection 7. 1(d) in its entirety and by substituting the following in lieu
thereof
"(d) 1996 Senior Subordinated Debt;"
(b) Section 7.1 of the Credit Agreement, Indebtedness of the
Borrower and the Restricted Subsidiaries, is hereby further amended (I) by
deleting the word "and" at the end of subsection (h) thereof and (II) by adding
thereto the following new subsections 7.1(j) and (k):
"(j) 1998 Senior Subordinated Debt in an amount not to
exceed, together with the Indebtedness permitted under Section 7.1(k),
$300,000,000 in the aggregate, provided, however, that, (i) such
Indebtedness is subordinated to the Obligations, on terms at least as
favorable to the Lenders as those contained in the 1996 Senior
Subordinated Debt Indenture and (ii) the proceeds of such Indebtedness
are used to permanently repay the Borrower's 11.30% Senior Notes due
2000 and 11.84% Senior
Notes due 1998, related transaction costs and the balance used to
prepay the Loans hereunder; and
(k) Unsecured Indebtedness for Money Borrowed in an amount
not to exceed, together with the Indebtedness permitted under Section
7.1(j), $300,000,000 in the aggregate; provided, however, that (i) the
Indebtedness has a weighted average life to maturity of not less than
one (1) year greater than the maturity of the Loans, (ii) the terms
governing such Indebtedness are no more restrictive than the terms of
the Loan Agreement and the other Loan Documents and (iii) the proceeds
of such Indebtedness are used to permanently repay the Borrower's
11.30% Senior Notes due 2000 and 11.84% Senior Notes due 1998, related
transaction costs and the balance used to prepay the Loans hereunder."
3. No Other Amendment or Waiver. Notwithstanding the agreement of the
Administrative Agent and the Lenders to the terms and provisions of this
Amendment, the Borrower acknowledges and expressly agrees that this Amendment is
limited to the extent expressly set forth herein and shall not constitute a
modification of the Credit Agreement or a course of dealing at variance with the
terms of the Credit Agreement (other than as expressly set forth above) so as to
require further notice by the Administrative Agent or the Lenders, or any of
them, of its or their intent to require strict adherence to the terms of the
Credit Agreement in the future. All of the terms, conditions, provisions and
covenants of the Credit Agreement and the other Loan Documents shall remain
unaltered and in full force and effect except as expressly modified by this
Amendment.
4. Representations and Warranties. The Borrower hereby represents and
warrants in favor of the Administrative Agent and each Lender, as follows:
(i) Each representation and warranty set forth in Article 4 of the
Credit Agreement is hereby restated and affirmed as true and correct in all
material respects as of the date hereof, except to the extent previously
fulfilled in accordance with the terms of the Credit Agreement, as amended
hereby, and to the extent relating specifically to the Agreement Date or
otherwise inapplicable
(ii) The Borrower has the corporate power and authority to enter
into this Amendment and to do all acts and things as are required or
contemplated hereunder to be done, observed and performed by it;
(iii) This Amendment has been duly authorized, validly executed and
delivered by Authorized Signatories, and constitutes the legal, valid and
binding obligation of the Borrower enforceable against it in accordance with its
terms, subject, as to enforcement of remedies, to the following qualifications:
(a) an order of specific performance and an injunction are discretionary
remedies and, in particular, may not be available where damages are considered
an adequate remedy at law, and (b) enforcement may be limited by bankruptcy,
insolvency, liquidation, reorganization, reconstruction and other similar laws
affecting
3
enforcement of creditors' rights generally (insofar as any such law relates to
the bankruptcy, insolvency or similar event of the Borrower); and
(iv) The execution and delivery of this Amendment and the
Borrower's performance hereunder do not and will not require the consent or
approval of any regulatory authority or governmental authority or agency having
jurisdiction over the Borrower, nor be in contravention of or in conflict with
the certificate of incorporation or the by-laws of the Borrower, or the
provision of any statute, judgment, order, indenture, instrument, agreement, or
undertaking to which the Borrower is party or by which the Borrower's assets or
properties are or may become bound.
5. Conditions Precedent to Effectiveness of Amendment. The
effectiveness of this Amendment is subject to the following:
(i) the truth and accuracy of the representations and
warranties contained in Section 4 hereof, and
(ii) receipt by the Administrative Agent and the Lenders of
the 1998 Senior Subordinated Debt Indenture, the documents evidencing the
Indebtedness permitted by Section 7.1(k) of the Credit Agreement and of all
other documents as the Administrative Agent shall reasonably request.
6. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counter-parts shall together constitute one and the same instrument.
7. Loan Documents. Each reference in the Credit Agreement or any other
Loan Document to the term "Credit Agreement" shall hereafter mean and refer to
the Credit Agreement as amended hereby or as the same may hereafter be amended.
8. Governing, Law. This Amendment shall be construed in accordance with
and governed by the laws of the State of New York, without giving effect to any
conflict of laws principles.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto cause their respective duly
authorized officers or representatives to execute and deliver this Amendment as
of the day and year first above written, to be effective as of the day and year
first above written.
BORROWER: XXXXXXX COMMUNICATIONS, INC., a
Delaware corporation
By: _______________________________
Its: __________________________
ADMINISTRATIVE AGENT
AND LENDERS: TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent and as a Lender
By: _______________________________
Its: __________________________
PNC BANK, NATIONAL
ASSOCIATION, as a Lender
By: _______________________________
Its: __________________________
NATIONSBANK OF TEXAS, N.A., as a
Lender
By: _______________________________
Its: __________________________
BANK OF MONTREAL, as a Lender
By: _______________________________
Its: __________________________
THE BANK OF NOVA SCOTIA, as a
Lender
By: _______________________________
Its: __________________________
BANQUE NATIONALE DE PARIS, as a
Lender
By: _______________________________
Its: __________________________
CIBC INC., as a Lender
By: _______________________________
Its: __________________________
CORESTATES BANK, N.A., as a Lender
By: _______________________________
Its: __________________________
CREDIT LYONNAIS NEW YORK
BRANCH, as a Lender
By: _______________________________
Its: __________________________
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN
BRANCHES, as a Lender
By: _______________________________
Its: __________________________
THE FIRST NATIONAL BANK OF
MARYLAND, as a Lender
By: _______________________________
Its: __________________________
LTCB TRUST COMPANY, as a Lender
By: _______________________________
Its: __________________________
MEESPIERSON CAPITAL CORP., as a
Lender
By: _______________________________
Its: __________________________
XXXXXX BANK LTD., GRAND
CAYMAN BRANCH, as Lender
By: _______________________________
Its: __________________________
By: _______________________________
Its: __________________________
ROYAL BANK OF CANADA, as Lender
By: _______________________________
Its: __________________________
THE SUMTOMO BANK, LTD., as a
Lender
By: _______________________________
Its: __________________________
THE BANK OF NEW YORK
COMPANY, INC., as a Lender
By: _______________________________
Its: __________________________
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST,
as a Lender
By: _______________________________
Its: __________________________
THE DAI-ICHI KANGYO BANK,
LIMITED, as a Lender
By: _______________________________
Its: __________________________
