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Exhibit 4.3.10
SECOND AMENDMENT
SECOND AMENDMENT, dated as of September 28, 2000 (this
"AMENDMENT"), to the SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
April 28, 1998 (as amended by the Amendment, dated as of March 31, 2000, and as
further 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 party thereto (the
"LENDERS") and UNION BANK OF CALIFORNIA, N.A., as Agent.
W I T N E S S E T H:
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WHEREAS, the Borrower, the Lenders and the Agent are parties
to the Credit Agreement; and
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, THERFORE, in consideration of the premises and mutual
agreements contained herein, the parties hereto agree as follows:
1. DEFINITIONS. Unless otherwise defined herein, capitalized
terms which are used herein shall have the meanings assigned thereto in the
Credit Agreement.
2. AMENDMENTS TO SECTION 1.1 (DEFINED TERMS). (a) Section 1.1
is hereby amended by deleting the definition of "Leverage Ratio" and therein and
substituting in lieu thereof the following new definition:
"LEVERAGE RATIO": at any date of determination, the ratio of
(a) Consolidated Senior Debt of the Borrower and its Subsidiaries on
such date to (b) the product of Consolidated Operating Cash Flow for
the six month period ended on the last day of the month for which the
Borrower shall have then most recently delivered financial statements
pursuant to subsection 5.1(b)(i) MULTIPLIED by two.
(b) Section 1.1 is further amended by adding the following new
definitions in the appropriate alphabetical order:
"ACQUIRED INDEBTEDNESS": Indebtedness of a Person existing at
the time such Person becomes a Subsidiary or assumed in connection with the
acquisition of assets from such Person.
"CONSOLIDATED SENIOR DEBT": at any date, the aggregate
principal amount of all Consolidated Total Debt (other than Subordinated
Indebtedness) outstanding on such date.
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"SECOND AMENDMENT": the Second Amendment, dated as of
September 28, 2000, to this Agreement.
"SECOND AMENDMENT EFFECTIVE DATE": the date on which each of
the conditions precedent specified in the Second Amendment shall have been
satisfied.
"SUBORDINATED INDEBTEDNESS": the subordinated Indebtedness of
the Borrower and its Subsidiaries (a) no part of the principal of which is
stated to be payable or is required to be paid (whether by way of mandatory
sinking fund, mandatory redemption or otherwise) prior to June 30, 2002, and the
payment of the principal of and interest on which and other obligations of the
Borrower and its Subsidiaries in respect thereof are subordinated to the prior
payment in full of the principal of and interest on (including post-petition
interest) of the Loans on terms and conditions no less favorable to the Lenders
than the terms and conditions of the Senior Subordinated Notes and (b) which
otherwise contains terms and conditions no less favorable to the Lenders than
the terms and conditions of the Senior Subordinated Notes.
3. AMENDMENT TO SECTION 2.3 (INSTALLMENTS). Section 2.3 is
hereby amended by deleting the chart therein in its entirety and substituting in
lieu thereof the following new chart:
Installment Date Principal Amount
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December 31, 2000 $ 6,100,000
March 31, 2001 6,100,000
June 30, 2001 6,100,000
September 30, 2001 6,100,000
December 31, 2001 6,100,000
March 31, 2002 45,750,000
June 30, 2002 45,750,000
4. AMENDMENT TO SECTION 5.13 (INTEREST RESERVE). Section
5.13(b) is hereby amended by deleting it in its entirety and substituting in
lieu therefor the following new Section 5.13(b):
"Deposit, on January 1, 2001, and on the last Business Day of
each fiscal quarter of the Borrower occurring on or about March 31, 2001 and
thereafter, into the Cash Collateral Account, an amount which, when added to the
Cumulative Interest Deposits as of such date, is equal to the product of (i) the
sum of (A) the aggregate principal amount of Loans outstanding on such date
multiplied by the Estimated Rate AND (B) the Interest Protection Amount,
multiplied by (ii) a fraction, the numerator of which is the lesser of (x) 360
and (y) the number of actual days from and including such date of determination
to June 30, 2002, based on a 360-day year and the denominator of which is 360."
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5. AMENDMENTS TO SECTION 6.1 (FINANCIAL CONDITION COVENANTS).
(a) Section 6.1(a) is hereby amended by deleting the chart therein in its
entirety and substituting in lieu thereof the following new chart:
Period Leverage Ratio
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March 31, 2001 and thereafter 4.75:1.00
(b) Section 6.1(b) is hereby amended by deleting it in its
entirety and substituting in lieu thereof the following new Section 6.1(b):
"Permit the ratio of (y) the product of Consolidated Operating Cash Flow for the
consecutive two quarter period ending on the last day of each calendar quarter
occurring during the periods specified below MULTIPLIED by two to (z)
Consolidated Cash Interest Expense for the four quarter period ending on the
last day of such calendar quarter, to be less than 2.50:1.00."
(c) Section 6.1(c) is hereby amended by deleting it in its
entirety and substituting in lieu thereof the following new Section 6.1(c):
"Permit the ratio of (y) the product of Consolidated Operating Cash Flow for the
consecutive two quarter period ending on the last day of each calendar quarter
occurring during the periods specified below MULTIPLIED by two to (z)
Consolidated Fixed Charges of the Borrower and it Subsidiaries for the period of
consecutive four quarter period ended as of the last day of any calendar quarter
ending as on or after March 31, 2001, to be less than 1.10:1.00."
(d) Section 6.1(e) is hereby amended by deleting it in its
entirety and substituting in lieu therefor the following new Section 6.1(c):
"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, for the
fiscal quarter ended March 31, 2001 and each fiscal quarter occurring
thereafter, deposit into the Cash Collateral Account on the date on
which the Borrower delivers 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 calendar quarter immediately succeeding such fiscal quarter."
(e) Section 6.1 is hereby further amended by adding the
following new Section 6.1(f) to the end thereof:
"(f) MAINTENANCE OF CASH AND CASH EQUIVALENTS. Permit
at any time the amount of Cash and Cash Equivalents held by the
Borrower and its Subsidiaries free of any Liens to be less than
$20,000,000 (including any amounts held in or on deposit in the Cash
Collateral Account pursuant to Section 5.14 to cover the payment of
principal hereunder and excluding any amounts held in or on deposit in
the Cash Collateral Agreement pursuant to Section 5.13 in respect of
the interest reserve for the Loans)."
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(f) AMENDMENT TO SECTION 6.2 (INDEBTEDNESS). Section 6.2(h) is
hereby amended by deleting the words "$10,000,000" therein and substituting in
lieu therefor the words "$5,000,000."
6. AMENDMENT TO SECTION 6.7 (RESTRICTION ON FUNDAMENTAL
CHANGES; ASSET SALES). Section 6.7(g) is hereby amended by (i) deleting the "."
at the end of Section 6.7(g) and substituting in lieu therefor the words ";" and
(ii) adding the following new paragraphs:
"(h) the sale of the communications towers and
related equipment owned by the Borrower and its Subsidiaries; and
(i) the sale, encumbrance or other disposition
without recourse of accounts receivable and related ancillary rights;
PROVIDED that at no time shall more than $35,000,000 in book value as
determined by GAAP of such accounts receivable (and related ancillary
rights) be subject to an agreement for their sale, encumbrance or other
disposition."
7. AMENDMENT TO THE CREDIT AGREEMENT. The Credit Agreement is
hereby further amended by adding the following new Section 9.18:
"9.18 RELEASES OF GUARANTEES AND LIENS. (a) Notwithstanding
anything to the contrary contained herein or in any other Loan
Document, the Administrative Agent is hereby irrevocably authorized by
each Lender (without requirement of notice to or consent of any Lender
except as expressly required by Section 9.1) to take any action
requested by the Borrower having the effect of releasing any Collateral
or guarantee obligations (i) to the extent necessary to permit
consummation of any transaction not prohibited by any Loan Document or
that has been consented to in accordance with Section 9.1 or (ii) under
the circumstances described in paragraph (b) below.
(b) At such time as the Loans and the other obligations under
the Loan Documents (other than obligations under or in respect of
Interest Rate Agreements) shall have been paid in full and the
Commitments have been terminated, the Collateral shall be released from
the Liens created by the Security Documents, and the Security Documents
and all obligations (other than those expressly stated to survive such
termination) of the Administrative Agent and each Loan Party under the
Security Documents shall terminate, all without delivery of any
instrument or performance of any act by any Person."
8. CONSENT. The Lenders hereby consent to the amendment of
Section 8 of the Cash Collateral Agreement to insert immediately following the
words "at any time interest" the words "or scheduled payments of principal."
9. 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 each of the Lenders; and
(b) the Borrower shall have paid to the Agent an amendment fee
of equal to $305,000 which shall be shared ratably with each Lender.
10. 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
(a) as of the date hereof, no Default or Event of Default has occurred and is
continuing and (b) this Amendment shall be a "Loan Document.".
11. 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.
12. 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.
13. 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:
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Name:
Title:
UNION BANK OF CALIFORNIA, N.A., as Agent
and as a Lender
By:
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Name:
Title:
By:
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Name:
Title:
KZH ING-2 LLC
By:
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Name:
Title:
KZH SOLEIL LLC
By:
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Name:
Title:
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KZH SOLEIL-2 LLC
By:
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Name:
Title:
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors LLC, as
Collateral Manager
By:
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Name:
Title:
THE ING CAPITAL SENIOR SECURED HIGH
INCOME FUND HOLDINGS, LTD.
By: ING Capital Advisors Inc., as
Investment Manager
By:
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Name:
Title:
ELF FUNDING TRUST I
By: Highland Capital Management, L.P.,
as Collateral Manager
By:
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Name:
Title:
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GALAXY CLO 1999-1, LTD.
By: SAI Investment Advisor, Inc., its
Collateral Manager
By:
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Name:
Title:
KZH HIGHLAND-2 LLC
By:
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Name:
Title:
GLENEAGLES TRADING LLC
By:
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Name:
Title:
KZH STERLING LLC
By:
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Name:
Title:
ARCHIMEDES FUNDING III, LTD.
By: ING Capital Advisors LLC, as
Collateral Manager
By:
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Name:
Title:
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COOPERATIVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A.
By:
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Name:
Title:
