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SECOND AMENDMENT TO
THIRD AMENDED AND RESTATED LOAN AGREEMENT
THIS SECOND AMENDMENT TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
dated as of August 12, 1996 (the "Amendment") by and among XXXXXX WIRELESS,
INC., a Delaware corporation (the "Borrower"); PNC BANK, NATIONAL ASSOCIATION,
THE TORONTO-DOMINION BANK, NATIONSBANK OF TEXAS, N.A., CORESTATES BANK, N.A.,
FLEET BANK, N.A., FIRST NATIONAL BANK OF MARYLAND, THE FIRST NATIONAL BANK OF
BOSTON, CIBC INC., FIRST UNION NATIONAL BANK OF NORTH CAROLINA, ROYAL BANK OF
CANADA, FLEET NATIONAL BANK, BANQUE NATIONALE DE PARIS, UNION BANK OF
CALIFORNIA, N.A. (FORMERLY KNOWN AS UNION BANK AND THE BANK OF CALIFORNIA,
N.A.), BANK OF HAWAII, XXXXXX BANK LTD, BANK OF MONTREAL, CHICAGO BRANCH,
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION EUROPEENNE, FIRST HAWAIIAN BANK,
SOCIETE GENERALE, KEYBANK NATIONAL ASSOCIATION (FORMERLY KNOWN AS SOCIETY
NATIONAL BANK) and CREDIT LYONNAIS CAYMAN ISLAND BRANCH (collectively, and
together with any financial institution which subsequently becomes a 'Bank'
under the Loan Agreement, as such term is defined therein, the "Banks");
CORESTATES BANK, N.A., NATIONSBANK OF TEXAS, N.A. AND FLEET BANK, N.A., as
co-agents (collectively, in such capacity, the "Co-Agents"); THE
TORONTO-DOMINION BANK, as documentation agent (in such capacity, the
"Documentation Agent"); PNC BANK, NATIONAL ASSOCIATION, as administrative agent
(in such capacity, the Administrative Agent); and TORONTO DOMINION (TEXAS),
INC., as collateral agent for the Administrative Agent, the Documentation
Agent, the Co-Agents and the Banks (the "Collateral Agent," and together with
the Administrative Agent, the Documentation Agent and the Co-Agents, the
"Agents"),
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks and the Agents are parties to that
certain Third Amended and Restated Loan Agreement dated as of December 1, 1995,
as amended by that certain First Amendment to Third Amended and Restated Loan
Agreement dated as of May 31, 1996 (as hereafter amended, modified and
supplemented from time to time, the "Loan Agreement"); and
WHEREAS, the Borrower wishes to amend covenants in the Loan Agreement
dealing with the Borrower's acquisition of PCS Systems (as defined 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 parties hereto agree that all capitalized terms used herein shall have
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the meanings ascribed thereto in the Loan Agreement and further agree as
follows:
1. Amendments to Article 1. Article 1 of the Loan Agreement,
"Definitions" is hereby amended by deleting the definitions of "Auction
License," "Capital Expenditures," "Cellular System," "PCS 10MHz System," and
"PCS Subsidiary" in their entireties and by substituting the following in lieu
thereof:
"'Auction License' shall mean any License to operate a PCS
System initially sold through an auction conducted by the FCC, whether
acquired through such auction or otherwise."
"'Capital Expenditures' shall mean, in respect of any Person,
expenditures for the purchase of assets of long-term use which would
be required to be capitalized on the balance sheet of such Person in
accordance with GAAP; provided, however, that "Capital Expenditures"
shall not include expenditures by any PCS Subsidiary with respect to
any PCS System."
"'Cellular System' means a cellular mobile radio telephone
system constructed and operated in an MSA or an RSA, or a PCS System
constructed and operated in a BTA."
"'PCS System' shall mean any broad band personal
communications services telecommunications system operating on up to
20MHz of radio spectrum in a BTA, or a License or Licenses to operate
such a system."
"'PCS Subsidiary' shall mean any Subsidiary of Xxxxxx PCS Co.
or any of its Subsidiaries holding or formed to hold, as its only
assets, Auction Licenses, PCS Systems and other assets directly
related to such Auction Licenses or PCS Systems, including, without
limitation, equity interests in, or loans to, PCS Investments and PCS
Subsidiaries."
2. Further Amendment to Article 1. Article 1, Definitions, is
hereby further amended by adding the following definitions appropriately
alphabetized:
"'Xxxxxx PCS Co.' shall mean Xxxxxx PCS Co., a Delaware
corporation and a wholly-owned Subsidiary of the Borrower, which has
(or will have) as its only assets Auction Licenses, PCS Subsidiaries
and PCS Investments (and other assets directly relating thereto)."
"'PCS Investment' shall mean a Person in which less than fifty
and one one-hundredth of a percent (50.01%) of
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the ownership interests of such Person are owned by a PCS Subsidiary
and which holds, or is formed to hold, an Auction License or operates,
or is formed to operate, PCS Systems."
3. Amendments to Section 5.10.
(a) Section 5.10, Use of Proceeds, is hereby amended by
deleting references to "PCS 10MHz System" in subsections 5.10(a) and 5.10(f)
and substituting therefor the term "PCS System".
(b) Subsection 5.10(j) is hereby amended by deleting the
existing subsection (j) in its entirety and by substituting the following in
lieu thereof:
"(j) so long as any Auction License acquired is for a PCS
System which is (x) located entirely in one or more of Florida,
Georgia or Alabama or (y) primarily within the same geographic area as
or contiguous to a Cellular System then owned by the Borrower or any
of its Subsidiaries, to (i) fund the downpayment in connection with
the acquisition by any PCS Subsidiary of one or more Auction Licenses
acquired directly through an auction conducted by the FCC, (ii) make
interest payments in respect of FCC Indebtedness, (iii) fund
construction and buildout of PCS Systems owned by PCS Subsidiaries and
PCS Investments, and (iv) acquire PCS Investments (and loans to PCS
Investments); provided that the aggregate amount of the proceeds
available under this subsection (j) shall not exceed $50,000,000; and"
4. Amendment to Section 5.14. Section 5.14 to the Loan
Agreement, Covenants Regarding Formation of Subsidiaries and Acquisitions;
Partnership, Subsidiaries, is hereby amended by deleting the existing Section
5.14 in its entirety and by substituting the following in lieu thereof:
"Section 5.14 Covenants Regarding Formation of Subsidiaries
and Acquisitions; Partnership, Subsidiaries. At the time of (i) any
Acquisition permitted hereunder, (ii) the purchase by the Borrower or
any of its Subsidiaries of all minority interests in any Subsidiary of
the Borrower, or (iii) the formation of any new Subsidiary of the
Borrower or any of its Subsidiaries which is permitted under this
Agreement, the Borrower will, and will cause its Subsidiaries, as
appropriate, to (a) provide to the Collateral Agent an executed
Subsidiary Security Agreement for such new Subsidiary, in
substantially the form of Exhibit F attached hereto, together with
appropriate UCC-1 financing statements, as well as an executed
Subsidiary Guaranty for such new Subsidiary, in substantially the form
of Exhibit D attached hereto, which shall constitute both
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Security Documents and Loan Documents for purposes of this Agreement,
as well as a loan certificate for such new Subsidiary, substantially
in the form of Exhibit P attached hereto, together with appropriate
attachments; (b) pledge to the Collateral Agent all of the stock or
partnership interests (or other instruments or securities evidencing
ownership) of such Subsidiary or Person which is acquired or formed,
beneficially owned by the Borrower or any of the Borrower's
Subsidiaries, as the case may be, as additional Collateral for the
Obligations to be held by the Collateral Agent in accordance with the
terms of the Borrower's Pledge Agreement, an existing Subsidiary
Pledge Agreement, or a new Subsidiary Pledge Agreement in
substantially the form of Exhibit E attached hereto, and execute and
deliver to the Collateral Agent all such documentation for such pledge
as, in the reasonable opinion of the Managing Agents, is appropriate;
and (c) provide revised financial projections for the remainder of the
fiscal year and for each subsequent year until the Maturity Date which
reflect such Acquisition or formation, certified by the Chief
Financial Officer of the Borrower, together with a statement by such
Person that no Default exists or would be caused by such Acquisition
or formation, and all other documentation, including one or more
opinions of counsel, reasonably satisfactory to the Managing Agents
which in their reasonable opinion is appropriate with respect to such
Acquisition or the formation of such Subsidiary. Notwithstanding the
foregoing provisions of this Section 5.14, PCS Investments and PCS
Subsidiaries (which, in each case, are less than wholly-owned by the
Borrower) are excluded from the requirements of Section 5.14(iii)(a)
hereof until such time as such PCS Investment becomes a wholly-owned
Subsidiary of the Borrower. Any document, agreement or instrument
executed or issued pursuant to this Section 5.14 shall be a 'Loan
Document' for purposes of this Agreement."
5. Amendments to Section 7.6. Section 7.6 of the Loan Agreement,
Investments and Acquisitions, is hereby amended as follows:
(a) Subsection 7.6(c) is hereby amended by deleting the
existing subsection (c) in its entirety and by substituting the following in
lieu thereof:
"(c) The Borrower may use the cash proceeds of any
issuance of equity interest in the Borrower (to the extent permitted
hereunder), or the issuance of Indebtedness permitted pursuant to
Section 7.1(i) hereof solely as follows:
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(i) for the acquisition (including
reasonable and customary costs and expenses related to such
Acquisition) of not less than fifty and one one-hundredth
percent (50.01%) of the ownership interest (after giving
effect to any ownership interest acquired on or prior to the
date of such Acquisition pursuant to Section 7.6(e) hereof or
otherwise) in Cellular Systems, or the right to construct a
Cellular System (including without limitation, associated
construction costs), in an RSA or an MSA or a BTA (in the case
of a PCS System) which is (x) located entirely in one or more
of South Carolina, Florida, Georgia or Alabama or (y)
primarily within the same geographic area as or contiguous to
a Cellular System then owned by the Borrower or any of its
Subsidiaries, in each case, without the consent of the Banks
(and if an Acquisition referred to in this Section 7.6(c) is
an Acquisition by any PCS Subsidiary of an Auction License,
the provisions of Section 11.20 hereof shall apply in addition
to the provisions of this Section 7.6(c)), provided, that,
except as set forth in Section 11.20 hereof, (A) the Borrower
shall not enter into any binding agreement with respect to
such Acquisition unless (1) the Borrower shall have received
sufficient funds to make such Acquisition or (2) such
agreement shall contain a commercially reasonable liquidated
damages provision, (B) prior to entering into any binding
agreement with respect to such Acquisition, the Borrower shall
deliver to the Managing Agents and the Banks a certificate
reflecting pro forma projections and compliance with the terms
and conditions of this Agreement from the date of such
Acquisition through the Maturity Date after giving effect to
such Acquisition and using reasonable assumptions in the
opinion of the Majority Banks, (C) contemporaneously with the
completion of the Acquisition, the Borrower shall grant to the
Collateral Agent a first priority Lien upon any assets
(including without limitation, capital stock and partnership
interests) acquired in connection with such Acquisition to the
same extent as required hereunder for existing Subsidiaries of
the Borrower, and (D) if a binding agreement for such
Acquisition is not executed within twelve (12) months from the
date of receipt of the proceeds of the issuance of such equity
interest in the Borrower or such Indebtedness, as the case may
be, or such Acquisition is not concluded within eighteen (18)
months from the date of receipt of the proceeds of the
issuance of equity or Indebtedness, as the case may be, the
consent of the Majority Banks shall be required for such
Acquisition. The Borrower agrees to grant to the Collateral
Agent (on behalf of the Managing Agents
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and the Banks) a security interest in the proceeds of the
issuance of such equity interest in the Borrower or such
Indebtedness, as the case may be, until such time as such
proceeds are used in connection with an Acquisition or applied
to the Obligations pursuant to Section 7.6(h) hereof; and
(ii) for PCS Investments and loans to PCS
Investments; provided that the PCS Subsidiary provides the
ownership interests evidencing such investment and evidences
of Indebtedness with respect to such loans to the Collateral
Agent to be held as additional collateral for the
Obligations;"
(b) Subsection 7.6(e) is hereby amended by deleting the
existing subsection (e) in its entirety and by substituting the following in
lieu thereof:
"(e) Subject to compliance with Section 5.14
hereof, the Borrower may use Advances as permitted by Section 5.10
hereof in whole or in part as follows:
(i) for the acquisition (including
reasonable and customary costs and expenses related to such
Acquisition) of not less than fifty and one one-hundredth
percent (50.01%) of the ownership interest (after giving
effect to any ownership interest acquired on or prior to the
date of such Acquisition as permitted hereunder) in Cellular
Systems, or the right to construct a Cellular System
(including, without limitation, associated construction
costs), in an RSA or an MSA or a BTA (in the case of a PCS
System) which is (A) located entirely in one or more of South
Carolina, Florida, Georgia, or Alabama or (B) primarily within
the same geographic area as or contiguous to a Cellular System
then owned by the Borrower or any of its Subsidiaries, in each
case, without the consent of the Banks (and if an Acquisition
referred to in this Section 7.6(e) is an Acquisition by any
PCS Subsidiary of an Auction License, the provisions of
Section 11.20 hereof shall apply in addition to the provisions
of this Section 7.6(e)); and
(ii) for PCS Investment and loans to PCS
Investments; provided that the PCS Subsidiary provides the
ownership interests evidencing such investment and evidences
of Indebtedness with respect to such loans to the Collateral
Agent to be held as additional collateral for the
Obligations;"
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(c) Subsection 7.6(f) is hereby amended by deleting the
existing subsection (f) in its entirety and by substituting the following in
lieu thereof:
"(f) Subject to compliance with Section 5.14
hereof, the Borrower may use Advances as permitted by Section 5.10
hereof in whole or in part for the acquisition by any PCS Subsidiary
or a PCS Investment (including reasonable and customary costs and
expenses related to such Acquisition) of Auction Licenses (or an
interest in Auction Licenses) for any PCS System in a BTA which is (x)
located entirely in one or more of South Carolina, Florida, Georgia,
or Alabama or (y) primarily within the same geographic area as or
contiguous to a Cellular System then owned by the Borrower or any of
its Subsidiaries, in each case, without the consent of the Banks. The
provisions of Section 11.20 hereof shall apply in addition to the
provisions of this Section 7.6(f); and"
(d) Subsection 7.6(g) is hereby amended by deleting the
existing subsection (g) in its entirety and by substituting the following in
lieu thereof:
"(g) So long as no Auction License has been
terminated or revoked, the Borrower or any of its Subsidiaries may
make additional investments in any PCS Subsidiary and any PCS
Investment; provided, however, that such investments shall be made
from (i) Excess Cash Flow in an amount not to exceed (A) for each
fiscal year prior to 1998, fifty percent (50%) of Excess Cash Flow for
the immediately preceding fiscal year, and (B) for 1998 and each
fiscal year thereafter, forty percent (40%) of Excess Cash Flow for
the immediately preceding fiscal year, (ii) Advances as permitted by
Section 5.10 hereof, or (iii) proceeds from any issuance of equity
interest in the Borrower (to the extent permitted hereunder)."
6. Amendment to Section 7.7. Section 7.7 of the Loan Agreement,
Restricted Payments and Purchases, is hereby amended by deleting existing
subsection 7.7(c) in its entirety and by substituting the following in lieu
thereof:
"(c) any PCS Subsidiary and any PCS Investment may make
payments on FCC Indebtedness; provided, however, that such payments
shall be paid from (i) Advances in accordance with Section 5.10(f)
hereof, (ii) investments permitted under Section 7.6(g) hereof or
(iii) the revenues of such Person."
7. Consents. Notwithstanding anything to the contrary in the
Loan Agreement, but subject to Sections 5.10, 7.6 and 7.7 of the Loan
Agreement, the Majority Banks hereby consent to the
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Borrower's making loans to Xxxxxx PCS Co., provided that (i) such loans shall
at all times be evidenced by a promissory note in form and substance
satisfactory to the Collateral Agent (the "Xxxxxx PCS Note"); (ii) the Borrower
shall promptly deliver the Xxxxxx PCS Note to the Collateral Agent, duly
endorsed to the Collateral Agent (in form satisfactory to the Collateral Agent)
as Collateral for the Obligations pursuant to the Borrower Security Agreement;
and (iii) the Borrower shall not use the outstanding principal amount of the
Xxxxxx PCS Note nor the interest accrued thereon when calculating the
Borrower's compliance with Sections 7.8, 7.9, 7.10, 7.11 and 7.12 of the Loan
Agreement.
8. 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 counterparts shall together constitute but one and the same
instrument.
9. Governing Law. This Amendment shall be construed in
accordance with and governed by the laws of the State of New York.
10. Severability. Any provision of this Amendment which is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
11. No Other Amendment or Waiver. Except for the amendments set
forth above, the text of the Loan Agreement and all other Loan Documents shall
remain unchanged and in full force and effect. No waiver by the Collateral
Agent, the other Agents or the Banks under the Loan Agreement or any other Loan
Document is granted or intended except as expressly set forth herein, and the
Collateral Agent, the other Agents and the Banks expressly reserve the right to
require strict compliance in all other respects (whether or not in connection
with any Requests for Advance). Except as set forth herein, the amendments
agreed to herein shall not constitute a modification of the Loan Agreement or
any of the other Loan Documents, or a course of dealing with the Collateral
Agent, the other Agents and the Banks, or any of them, at variance with the
Loan Agreement or any of the other Loan Documents, such as to require further
notice by the Collateral Agent, the other Agents, the Banks, the Majority
Banks, or any of them, to require strict compliance with the terms of the Loan
Agreement and the other Loan Documents in the future.
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12. Representations and Warranties. The Borrower hereby
represents and warrants in favor of the Agents and the Banks as follows:
(a) The Borrower has the corporate power and authority (i) to
enter into this Amendment and (ii) to do all other acts and things as are
required or contemplated hereunder to be done, observed and performed by it;
(b) This Amendment has been duly authorized, validly executed and
delivered by one or more Authorized Signatories of the Borrower and constitutes
the legal, valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its terms, subject, as to enforcement of
remedies, to the following qualifications: (i) 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 (ii)
enforcement may be limited by bankruptcy, insolvency, liquidation,
reorganization, reconstruction and other similar laws affecting enforcement of
creditors' rights generally (insofar as any such law relates to the bankruptcy,
insolvency or similar event of the Borrower);
(c) Each of the representations and warranties set forth in
Section 4.1 of the Loan Agreement are true and correct as of the date hereof;
and
(d) There does not exist on the date hereof any Default or Event
of Default.
13. Loan Documents. This document shall be deemed to be a Loan
Document for all purposes.
14. Effectiveness. Upon receipt by the Administrative Agent of
executed signature pages of this Amendment from the Borrower and the Majority
Banks, this Amendment shall automatically be effective.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment or
caused it to be executed by their duly authorized officers, all as of the day
and year first above written.
BORROWER: XXXXXX WIRELESS, INC., a Delaware corporation
By: /s/ M. XXXXX XXXXXXXX
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Its: Vice-President
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ADMINISTRATIVE AGENT: PNC BANK, NATIONAL ASSOCIATION
By: /s/ XXXXXX X. XXXXXX
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Its: VICE PRESIDENT
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DOCUMENTATION AGENT: THE TORONTO-DOMINION BANK
By: /s/ XXXXX XXXXXX
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Its:
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COLLATERAL AGENT: TORONTO DOMINION (TEXAS), INC.
By: /s/ XXXXX XXXXXX
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Its: Vice President
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BANKS: PNC BANK, NATIONAL ASSOCIATION
By: /s/ XXXXXX X. XXXXXX
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Its: VICE PRESIDENT
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SECOND AMENDMENT TO LOAN AGREEMENT
XXXXXX WIRELESS, INC.
Signature Page 1
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THE TORONTO-DOMINION BANK
By: /s/ XXXXX XXXXXX
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Its:
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NATIONSBANK OF TEXAS, N.A.
By: [SIG]
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Its: Vice President
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CORESTATES BANK, N.A.
By: [SIG]
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Its: Vice President
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FLEET BANK, N.A.
By: /s/ XXXXX X. XXXXXXXX
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Its: VICE PRESIDENT
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FLEET NATIONAL BANK
By: /s/ XXXXX X. XXXXXXXX
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Its: VICE PRESIDENT
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FIRST NATIONAL BANK OF MARYLAND
By: [SIG]
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Its: VICE PRESIDENT
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SECOND AMENDMENT TO LOAN AGREEMENT
XXXXXX WIRELESS, INC.
Signature Page 2
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THE FIRST NATIONAL BANK OF BOSTON
By: /s/ XXXX X. XXXXXXX
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Its: Director
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CIBC INC.
By: /s/ XXXXXX XXXXXX
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Its: Director, CIBC Wood Gundy Securities Corp acting as Agent
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for CIBC, Inc.
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FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By: /s/ XXXX XXXXXX
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Its: Senior Vice President
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ROYAL BANK OF CANADA
By: /s/ XXXXXX XXXXX
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Its: Senior Manager
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BANQUE NATIONALE DE PARIS
By: /s/ XXXXX XXXXXXXXX /s/ XXXXXX XXXXXX
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Its: V.P. Team Leader Assistant Treasurer
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UNION BANK OF CALIFORNIA, N.A. (formerly known as Union Bank and The
Bank of California, N.A.)
By: /s/ J. XXXXX XXXXXXX
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Its: Vice President
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SECOND AMENDMENT TO LOAN AGREEMENT
XXXXXX WIRELESS, INC.
Signature Page 3
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BANK OF HAWAII
By: /s/ XXXXX XXXXXXX
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Its: Coorporate Banking Officer
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XXXXXX BANK LTD
By: /s/ XXXXXXX X. XXXXXXXXX [SIG]
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Its: Vice President Vice President
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BANK OF MONTREAL, CHICAGO BRANCH
By: /s/ XXXXXX XXX
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Its: SENIOR VICE PRESIDENT
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COMPAGNIE FINANCIERE DE CIC ET DE L'UNION EUROPEENNE
By: /s/ XXXXXX XXXXXX /s/ XXXX XXXXXXX
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Its: Vice President First Vice Presidnet
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FIRST HAWAIIAN BANK
By: /s/ XXXXXX X. XXXXX
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Its: Assistant Vice President
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SOCIETE GENERALE
By: /s/ XXXXX X. XXXXXXXXX
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Its: Vice President
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SECOND AMENDMENT TO LOAN AGREEMENT
XXXXXX WIRELESS, INC.
Signature Page 4
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KEYBANK NATIONAL ASSOCIATION (formerly known as Society National Bank)
By: /s/ XXXXXXXX XXXXXX
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Its: Senior Vice President
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CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: /s/ XXXX XXXXXXXXX
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Its: Vice President
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SECOND AMENDMENT TO LOAN AGREEMENT
XXXXXX WIRELESS, INC.
Signature Page 5
