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Exhibit 4.3.9
AMENDMENT
AMENDMENT, dated as of March 31, 2000 (this "AMENDMENT"), to
the Second Amended and Restated Credit Agreement, dated as of April 28, 1998 (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among Xxxxxx Communications Corporation, a Delaware corporation
(the "BORROWER"), the lenders from time to time parties thereto (the "LENDERS")
and Union Bank of California, N.A., as Agent.
W I T N E S S E T H :
--------------------
WHEREAS, the Borrower, the Lenders and the Agent are parties
to the Credit Agreement;
WHEREAS, the Borrower has requested that the Agent and the
Lenders agree to amend certain provisions of the Credit Agreement, as more fully
described herein; and
WHEREAS, the Agent and the Lenders are willing to amend such
provisions of the Credit Agreement, but only upon the terms and subject to the
conditions set forth herein;
NOW THEREFORE, in consideration of the premises contained
herein, the parties hereto agree as follows:
1. DEFINED TERMS. Unless otherwise defined herein, capitalized
terms which are used herein shall have the meanings assigned thereto in the
Credit Agreement.
2. AMENDMENT TO SECTION 1.1. (a) Section 1.1 is hereby amended
by deleting the definition of "Applicable Margin" therein and substituting in
lieu thereof the following new definition:
'"APPLICABLE MARGIN": for Base Rate Loans, 2.00% per annum;
and for Eurodollar Loans, 3.00% per annum.'
(b) Section 1.1 is hereby further amended by adding thereto
the following new definitions in the appropriate alphabetical order:
"Cumulative Interest Deposits": as of any date of
determination, an amount equal to (X) the sum of (i) the balance in the Cash
Collateral Account as of March 31, 2000 PLUS (ii) deposits made by the Borrower
pursuant to subsection 5.13 hereof into the Cash Collateral Account, PLUS (iii)
interest earned on all amounts in the Cash Collateral Account from March 31,
2000 through such date of determination, LESS (Y) any amounts applied against
scheduled interest payments pursuant to subsection 2.9 hereof."
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'"ESTIMATED RATE": at any date of determination a percentage
equal to the Eurodollar Rate on such date for Eurodollar deposits of 12
months duration, PLUS the Applicable Margin for Eurodollar Loans.'
'"INTEREST PROTECTION AMOUNT": with respect to any calculation
of an amount to be deposited into the Cash Collateral Account on any
date pursuant to Section 5.13 hereof, an amount equal to the product of
(i) the aggregate outstanding principal amount of the Loans used as the
basis for such calculation and (ii) ten percent (10%) of the Eurodollar
Rate on such date for Eurodollar Deposits of 12 months duration.'
3. AMENDMENT TO SECTION 5. Section 5 is hereby amended by
adding the following new subsections to the end thereof:
"5.13 INTEREST RESERVE. (a) Deposit, on March 31, 2000, into
the Cash Collateral Account, an amount which, when added to the
Cumulative Interest Deposits as of such date, is equal to the sum of
(i) the aggregate principal amount of the Loans outstanding at such
time multiplied by the Estimated Rate AND (ii) the Interest Protection
Amount.
(b) Deposit, on the last business day of each fiscal quarter
of the Borrower occurring on or after to June 30, 2001, into the Cash
Collateral Account, an amount which, when added to the Cumulative
Interest Deposits as of such date, is equal to the sum of (i) the
aggregate principal amount of Loans outstanding on such date multiplied
by the Estimated Rate AND (ii) the Interest Protection Amount.
5.14 PRINCIPAL RESERVE. (a) Deposit, on or prior to September
30, 2000, an amount into the Cash Collateral Account which is
sufficient to cover the scheduled principal amount due and payable on
December 31, 2000 pursuant to subsection 2.3 hereof.
(b) Deposit, on or prior to December 31, 2000, an amount into
the Cash Collateral Account which is sufficient to cover the scheduled
principal amount due and payable on March 31, 2001 pursuant to
subsection 2.3 hereof.
(c) Deposit, on or before the last day of each fiscal quarter
ended March 31, 2001 or thereafter, the amount required pursuant to
subsection 6.1(e) thereof in order for the Borrower to be in compliance
with subsections 6.1(a), (b), (c), and (d) thereof."
4. AMENDMENT TO SUBSECTION 6.1. The Credit Agreement is hereby
amended by deleting Section 6.1 in its entirety and substituting in lieu thereof
the following new subsection 6.1:
"6.1 FINANCIAL CONDITION COVENANTS. (a) LEVERAGE RATIO. Permit
the Leverage Ratio as of the last day of each calendar quarter
occurring during any of the periods set forth below to be greater than
the correlative ratio indicated:
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Period Leverage Ratio
------ --------------
March 31, 2001 - June 30, 2001 4.25 :1.00
July 1, 2001 - December 31, 2001 3.75 :1.00
January 1, 2002 - thereafter 3.50 :1.00
(b) CASH INTEREST COVERAGE. Permit the ratio of (y)
Consolidated Operating Cash Flow to (z) Consolidated Cash Interest
Expense of the Borrower and its Subsidiaries for any consecutive four
quarter period ending on March 31, 2001 or on the last day of any
calendar quarter occurring thereafter to be less than 2.50:1.00
(c) FIXED CHARGE COVERAGE. Permit the ratio of (y)
Consolidated Operating Cash Flow to (z) Consolidated Fixed Charges of
the Borrower and its Subsidiaries for the twelve consecutive month
period ending as of the last day of any calendar quarter ending on or
after March 31, 2001 to be less than 1.10:1.00.
(d) CASH FLOW FROM LMA AGREEMENTS. On or after March 31, 2001,
permit more than 25% of Consolidated Operating Cash Flow to be earned
or generated pursuant to LMA Agreements for any fiscal period.
(e) Notwithstanding the foregoing, in lieu of the Borrower
complying with the requirements of subsection 6.1 (a), (b), (c) or (d)
hereof on or after March 31, 2001, the Borrower may instead, (i) for
the fiscal quarter ended March 31, 2001, deposit into the Cash
Collateral Account on the date on which the Borrower deliver's the
Officer's Certificate under subsection 5.1 (b) (iv) hereof for such
fiscal quarter, an amount equal to the aggregate scheduled principal
payments due under Section 2.3 on the last day of the two calender
quarters immediately succeeding the fiscal quarter ended March 31,
2001, and (ii) for the fiscal quarter ended June 30, 2001 and the last
day of each fiscal quarter occurring thereafter, deposit into the Cash
Collateral Account on the date on which the Borrower deliver's the
Officer's Certificate under subsection 5.1 (b) (iv) hereof for such
fiscal quarter, an amount equal to the scheduled principal payment due
under Section 2.3 on the last day of the second calendar quarter
immediately succeeding such fiscal quarter."
5. AMENDMENT TO CASH COLLATERAL AGREEMENT. The Cash Collateral
Agreement is hereby amended and restated in its entirety in the form attached as
Exhibit A hereto.
6. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective on the date upon which the following conditions precedent shall have
been satisfied (the "EFFECTIVE DATE"):
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(a) the Agent shall have received counterparts of this
Amendment, executed and delivered by a duly authorized officer of the
Borrower, the Agent and the Required Lenders;
(b) the Borrower shall have deposited into the Cash Collateral
Account the amount required by subsection 5.13(a) of the Credit
Agreement (as amended by this Amendment).
(c) the Borrower shall have paid to the Agent an amendment fee
of equal to $152,500 which shall be shared ratably with each Lender;
and
(d) The Borrower shall have taken all measures and executed
all financing statements and other documents which the Agent may
reasonably request to perfect its security interest in the Cash
Collateral Account and the contents thereof.
7. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
confirms, reaffirms and restates the representations and warranties set forth in
Section 3 of the Credit Agreement; PROVIDED that each reference to the Credit
Agreement therein shall be deemed to be a reference to the Credit Agreement
after giving effect to this Amendment. The Borrower represents and warrants
that, as of the date hereof, no Default or Event of Default has occurred and is
continuing.
8. CONTINUING EFFECT OF LOAN DOCUMENTS. This Amendment shall
not constitute a waiver or amendment of any other provision of the Credit
Agreement or any other Loan Document not expressly referred to herein and shall
not be construed as a waiver or consent to any further or future action on the
part of the Borrower that would require a waiver or consent of the Agent or the
Lenders. Except as expressly amended hereby, the provisions of the Credit
Agreement and the other Loan Documents are and shall remain in full force and
effect.
9. COUNTERPARTS. This Amendment may be executed by the parties
hereto in any number of counterparts, and all of such counterparts taken
together shall be deemed to constitute one and the same instrument.
10. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their respective duly authorized
officers as of the date first above written.
XXXXXX COMMUNICATIONS CORPORATION
By:
----------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A., as Agent
By:
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Name:
Title:
By:
----------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A., as a
Lender
By:
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Name:
Title:
By:
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Name:
Title:
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KZH ING-2 LLC
By:
--------------------------------
Name:
Title:
KZH SOLEIL LLC
By:
--------------------------------
Name
Title:
KZH SOLEIL-2 LLC
By:
--------------------------------
Name:
Title:
ARCHIMEDES FUNDING LLC
By:
--------------------------------
Name:
Title:
THE ING CAPITAL SENIOR SECURED HIGH
INCOME FUND, L.P.
By:
--------------------------------
Name:
Title:
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HIGHLAND CAPITAL MANAGEMENT, L.P.
By:
----------------------------------------
Name:
Title:
ELF FUNDING TRUST I
By:
----------------------------------------
Name:
Title:
GALAXY CLO 1999-1, LTD.
By:
----------------------------------------
Name:
Title:
PACIFICA PARTNERS I, L.P.
By:
----------------------------------------
Name:
Title:
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KZH HIGHLAND-2 LLC
By:
----------------------------------------
Name:
Title:
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GLENEAGLES TRADING LLC
By:
----------------------------------------
Name:
Title:
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EXHIBIT A
AMENDED AND RESTATED CASH COLLATERAL AGREEMENT
AMENDED AND RESTATED CASH COLLATERAL AGREEMENT dated as of March 31,
2000, between Xxxxxx Communications Corporation, a Delaware corporation (the
"BORROWER") and Union Bank of California, N.A., as Agent (in such capacity, the
"AGENT") for the Lenders parties to the Second Amended and Restated Credit
Agreement, dated as of April 28, 1998 (as amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among the Borrower, the
Agent and such Lenders.
W I T N E S S E T H:
-------------------
WHEREAS, pursuant to the Credit Agreement, the Lenders severally have
agreed to make Loans to the Borrower upon the terms and subject to the
conditions set forth therein; and
WHEREAS, it is a condition precedent to the effectiveness of the Credit
Agreement dated as of the date hereof that the Borrower shall have executed and
delivered to the Agent this Agreement;
NOW, THEREFORE, in consideration of the premises and to induce the
Agent and the Lenders to enter into the Credit Agreement, the Borrower hereby
agrees with the Agent for the benefit of the Lenders as follows:
I. DEFINED TERMS. 1. Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
2. The following terms shall have the following meanings:
"AGREEMENT": this Cash Collateral Agreement, as the same may be
amended, modified or otherwise supplemented from time to time.
"CASH COLLATERAL": the collective reference to:
(a) all cash, instruments, securities and funds deposited from time to
time in the Cash Collateral Account;
(b) all investments of funds in the Cash Collateral Account and all
instruments and securities evidencing such investments; and
(c) all interest, dividends, cash, instruments, securities and other
property received in respect of, or as proceeds of, or in substitution or
exchange for, any of the foregoing.
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"CASH COLLATERAL ACCOUNT": account no. 252000300-01 established at the
office of Union Bank of California, N.A., Domestic Customer Service at 000
Xxxxxxx Xxxxxx, Xxxxx 0000 Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, designated
"UBOC--Xxxxxx Communications Corporation."
"CODE": the Uniform Commercial Code from time to time in effect in the
State of New York.
"COLLATERAL": the collective reference to the Cash Collateral and the
Cash Collateral Account.
3. The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and section and paragraph
references are to this Agreement unless otherwise specified.
4. The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
II. GRANT OF SECURITY INTEREST. As collateral security for the prompt
and complete payment and performance when due (whether at the stated maturity,
by acceleration or otherwise) of the Obligations, the Borrower hereby grants to
the Agent for the benefit of the Lenders a security interest in the Collateral.
III. MAINTENANCE OF CASH COLLATERAL ACCOUNT. 1. The Cash Collateral
Account shall be maintained until the Obligations have been paid and performed
in full and the Commitments are terminated.
2. The Collateral shall be subject to the exclusive dominion and
control of the Agent, which shall hold the Cash Collateral and administer the
Cash Collateral Account subject to the terms and conditions of this Agreement.
The Borrower shall have no right of withdrawal from the Cash Collateral Account
nor any other right or power with respect to the Collateral, except as expressly
provided herein.
IV. DEPOSIT OF FUNDS. (a) As of March 31, 2000, the Cash Collateral in
the Cash Collateral Account together with any deposits by Borrower as of such
date was equal to $ .
(b) The Borrower shall deposit the amounts required to be deposited
into the Cash Collateral Account pursuant to subsection 5.13 and subsection 5.14
of the Credit Agreement, on the dates specified therein.
V. REPRESENTATION AND WARRANTY. The Borrower represents and warrants to
the Agent that this Agreement creates in favor of the Agent a perfected, first
priority security interest in the Collateral, enforceable in accordance with its
terms, except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
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creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
VI. COVENANTS. The Borrower covenants and agrees with the Agent that:
1. The Borrower will not (I) sell, assign, transfer, exchange, or
otherwise dispose of, or grant any option with respect to, the Collateral, or
(ii) create, incur or permit to exist any Lien or option in favor of, or any
claim of any Person with respect to, any of the Collateral, or any interest
therein, except for the security interest created by this Agreement.
2. The Borrower will maintain the security interest created by this
Agreement as a first, perfected security interest and defend the right, title
and interest of the Agent and the Lenders in and to the Collateral against the
claims and demands of all Persons whomsoever. At any time and from time to time,
upon the written request of the Agent, and at the sole expense of the Borrower,
the Borrower will promptly and duly execute and deliver such further instruments
and documents and take such further actions as the Agent reasonably may request
for the purposes of obtaining or preserving the full benefits of this Agreement
and of the rights and powers herein granted, including, without limitation, of
financing statements under the Code.
VII. INVESTMENT OF CASH COLLATERAL. 1. Subject to the provisions of
paragraph 7(b), collected funds on deposit in the Cash Collateral Account shall
be invested by the Agent from time to time in Cash Equivalents; PROVIDED,
HOWEVER, that so long as no Default or Event of Default shall have occurred and
be continuing, the Agent shall make such investments at the direction of the
Borrower. All investments shall be made in the name of the Agent or a nominee of
the Agent and in a manner, determined by the Agent in its sole discretion, that
preserves the Agent's perfected, first priority security interest in such
investments.
2. The Agent shall have no obligation to invest collected funds during
the first night after their collection.
3. The Agent shall have no responsibility to the Borrower for any loss
or liability arising in respect of such investments of the Cash Collateral
(including, without limitation, as a result of the liquidation of any thereof
before maturity), except to the extent that such loss or liability arises from
the Agent's gross negligence or willful misconduct.
4. The Borrower will pay or reimburse the Agent for any and all costs,
expenses and liabilities of the Agent incurred in connection with this
Agreement, the reasonable maintenance and operation of the Cash Collateral
Account and the investment of the Cash Collateral, including, without
limitation, any investment, brokerage or placement commissions and fees incurred
by the Agent in connection with the investment or reinvestment of Cash
Collateral, which prior to the occurrence and continuance of a Default or Event
of Default shall be agreed to by the Borrower and the Agent.
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VIII. RELEASE OF CASH COLLATERAL. Cash Collateral shall be released by
the Agent to pay to the Lenders interest and scheduled payments of principal
under Subsection 2.3 under the Credit Agreement at any time interest is due and
payable thereunder.
IX. REMEDIES. 1. Upon the occurrence of an Event of Default, the Agent
may, without notice of any kind, except for notices required by law which may
not be waived, apply the Collateral, after deducting all reasonable costs and
expenses of every kind incurred in respect thereof or incidental to the care or
safekeeping of any of the Collateral or in any way relating to the Collateral or
the rights of the Agent and the Lenders hereunder, including, without
limitation, reasonable attorneys' fees and disbursements of counsel to the
Agent, to the payment in whole or in part of the Obligations, in such order as
the Agent in its sole discretion may elect, and only after such application and
after the payment by the Agent of any other amount required by any provision of
law, including, without limitation, Section 9-504(1)(c) of the Code, need the
Agent account for the surplus, if any, to the Borrower. In addition to the
rights, powers and remedies granted to it under this Agreement and in any other
agreement securing, evidencing or relating to the Obligations, the Agent shall
have all the rights, powers and remedies available at law, including, without
limitation, the rights and remedies of a secured party under the Code. To the
extent permitted by law, the Pledgor waives presentment, demand, protest and all
notices of any kind and all claims, damages and demands it may acquire against
the Agent or any Lender arising out of the exercise by them of any rights
hereunder.
2. The Borrower shall remain liable for any deficiency if the proceeds
of any sale or other disposition of the Collateral are insufficient to pay the
Obligations and the fees and disbursements of any attorneys employed by the
Agent or any Lender to collect such deficiency.
X. AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT. 1. The Borrower hereby
irrevocably constitutes and appoints the Agent and any officer or agent of the
Agent, with full power of substitution, as its true and lawful attorney-in-fact
with full irrevocable power and authority in the place and stead of the Borrower
and in the name of the Borrower or in the Agent's own name, from time to time in
the Agent's discretion, for the purpose of carrying out the terms of this
Agreement, to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of this Agreement, including, without limitation, any financing
statements, endorsements, assignments or other instruments of transfer.
2. The Borrower hereby ratifies all that said attorneys shall lawfully
do or cause to be done pursuant to the power of attorney granted in paragraph
10(a). All powers, authorizations and agencies contained in this Agreement are
coupled with an interest and are irrevocable until this Agreement is terminated
and the security interests created hereby are released.
XI. DUTY OF AGENT. The Agent's sole duty with respect to the custody,
safekeeping and physical preservation of the Collateral in its possession, under
Section 9-207 of the Code or otherwise, shall be to comply with the specific
duties and responsibilities set forth herein. The powers conferred on the Agent
in this Agreement are solely for the protection of the Agent's and the Lenders'
interests in the Collateral and shall not impose any duty upon the Agent or any
Lender to exercise any such powers. Neither the Agent nor any
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Lender nor its or their directors, officers, employees or agents shall be liable
for any action lawfully taken or omitted to be taken by any of them under or in
connection with the Collateral or this Agreement, except for its or their gross
negligence or willful misconduct.
XII. EXECUTION OF FINANCING STATEMENTS. Pursuant to Section 9-402 of
the Code, the Borrower authorizes the Agent to file financing statements with
respect to the Collateral without the signature of the Borrower in such form and
in such filing offices as the Agent reasonably determines appropriate to perfect
the security interests of the Agent under this Agreement. A carbon, photographic
or other reproduction of this Agreement shall be sufficient as a financing
statement for filing in any jurisdiction.
XIII. AUTHORITY OF AGENT. The Borrower acknowledges that the rights and
responsibilities of the Agent under this Agreement with respect to any action
taken by the Agent or the exercise or non-exercise by the Agent of any option,
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between the Agent and the
Lenders, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Agent and the Borrower, the Agent shall be conclusively presumed to be acting as
agent for the Lenders with full and valid authority so to act or refrain from
acting, and the Borrower shall not be under any obligation, or entitlement, to
make any inquiry respecting such authority.
XIV. NOTICES. All notices, requests and demands to or upon the Agent or
the Borrower to be effective shall be provided in accordance with subsection 9.2
of the Credit Agreement.
XV. SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
XVI. AMENDMENTS IN WRITING; NO WAIVER; CUMULATIVE REMEDIES. 1. None of
the terms or provisions of this Agreement may be waived, amended, supplemented
or otherwise modified except by a written instrument executed by the Borrower
and the Agent, PROVIDED that any provision of this Agreement may be waived by
the Agent and the Lenders in a letter or agreement executed by the
Agent.
2. Neither the Agent nor any Lender shall by any act (except by a
written instrument pursuant to paragraph 16(a) hereof), delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Default or Event of Default or in any breach of any of
the terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Agent or any Lender, any right, power or
privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by the Agent or any Lender of any right or remedy hereunder on
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any one occasion shall not be construed as a bar to any right or remedy which
the Agent or such Lender would otherwise have on any future occasion.
3. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
XVII. SECTION HEADINGS. The section headings used in this Agreement are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
XVIII. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
successors and assigns of the Borrower and shall inure to the benefit of the
Agent and the Lenders and their successors and assigns.
XIX. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
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IN WITNESS WHEREOF, the Borrower and the Agent have caused this Cash
Collateral Agreement to be duly executed and delivered as of the date first
above written.
XXXXXX COMMUNICATIONS
CORPORATION
By:
----------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
as Agent
By:
----------------------------------------
Name:
Title:
