Exhibit 4.2.1
FIRST AMENDMENT dated as of June 21, 2000 (this
"Amendment"), to the Credit Agreement dated as
of April 3, 2000 (the "Credit Agreement"), among
Cellco Partnership, d/b/a Verizon Wireless, a
Delaware general partnership ("Verizon"), Xxxx
Atlantic Mobile of Rochester, L.P., New York
SMSA Limited Partnership, Syracuse SMSA Limited
Partnership, the Initial Obligors named therein,
the financial institutions from time to time
party thereto (the "Lenders"), Citibank, N.A.,
as co-administrative agent, and The Chase
Manhattan Bank, a New York banking corporation,
as co-administrative agent, funding agent and
paying agent.
A. The parties hereto have entered into the Credit Agreement,
pursuant to which the Lenders have agreed to extend credit to the Borrowers (as
defined in the Credit Agreement) on the terms and subject to the conditions set
forth therein.
B. The Borrowers have requested that the Lenders agree to amend
certain provisions of the Credit Agreement, and the Lenders are willing, on the
terms and subject to the conditions set forth below, to amend the Credit
Agreement as provided herein.
C. Capitalized terms used and not otherwise defined herein shall
have the meanings assigned to them in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendment of Credit Agreement. The Credit Agreement
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is hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby amended by
deleting the definition of "Term Maturity Date" and replacing it with following:
"Term Maturity Date" means the date that is two years after the
last day of the Term Availability Period or, if the Conversion Date shall have
occurred prior to the last day of the Term Availability Period, the date that
is two years after the Conversion Date.
(b) Section 1.01 of the Credit Agreement is hereby amended by
adding the following new definitions in their alphabetical positions:
"Conversion Date" means such date during the Term Availability
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Period as the Term Borrowers may elect in a notice to the Administrative Agent
for the purpose of fixing the Term Maturity Date in accordance with the
definition thereof.
"Secondary Liable" means, with respect to the Special
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Distribution Loan, that PCS Nucleus shall be liable to the Administrative Agent
and the Lenders for the collection of principal and interest on the Special
Distribution Loan, as outstanding from time to time; provided that (a) PCS
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Nucleus shall have no obligation of payment in respect of the Special
Distribution Loan and no demand shall be made on PCS Nucleus for payment of the
Special Distribution Loan, unless (i) Cellco's payment obligations in respect of
the Special Distribution Loan shall have become due and payable, whether by
acceleration or at the stated maturity thereof or otherwise, (ii) the
Administrative Agent and the Lenders have exercised all of their rights with
respect to any collateral securing the Special Distribution Loan, if any, (iii)
to the extent any assets of Cellco do not secure
the Special Distribution Loan and the Administrative Agent and the Lenders have
reduced their claim to a final judgement, such judgement has been executed
against such remaining assets and such execution has been returned unsatisfied
in whole or in part, and (iv) the Lenders have made a written demand upon PCS
Nucleus, which demand shall annex a proof of claim including a certified copy of
the unsatisfied judgement and evidence reasonably satisfactory to PCS Nucleus
that the execution thereof has been returned unsatisfied in whole or in part and
(b) each Lender agrees that (i) the Administrative Agent and the Lenders shall
have no recourse in respect of the Special Distribution Loan against PCS Nucleus
except as described in the preceding clause (a), (ii) the Administrative Agent
and the Lenders shall have no recourse in respect of the Special Distribution
Loan against the general partner of PCS Nucleus nor any other partner or
Affiliate of PCS Nucleus (other than the Borrowers, for whom the liability under
this Agreement shall not be reduced by this proviso), and (iii) if (x) PCS
Nucleus shall become a debtor in possession under applicable bankruptcy law, (y)
PCS Nucleus, as debtor in possession in such proceeding, or its trustee
appointed therein, shall recover from any partner in PCS Nucleus all or any
portion of the proceeds of the Special Distribution Loan further distributed by
PCS Nucleus to any partner or Affiliate of PCS Nucleus, and (z) any Lender shall
at any time receive, or have received, any payment from PCS Nucleus or its
estate in respect of a claim hereunder for payment of the Special Distribution
Loan, then, promptly following the later to occur of the events specified in the
foregoing sub-clauses (y) and (z), such Lender shall remit to the applicable
partner of PCS Nucleus, without offset or other diminution, an amount equal to
the amount of the payment so received by such Lender from PCS Nucleus or its
estate, as the case may be.
"Special Distribution" means the directed special distribution in the
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amount of $500,000,000 that Cellco intends to pay solely to PCS Nucleus
following the Stage I Contribution Date.
"Special Distribution Loan" means a Revolving Loan, borrowed and so
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designated by Cellco, to fully fund the Special Distribution.
(c) Section 2.01(a) of the Credit Agreements is hereby amended by adding
before the period at the end of the last sentence thereof ":provided, that the
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Term Borrowers may borrow, prepay and reborrow Term Loans during the Term
Availability Period prior to the Conversion Date".
(d) Section 2.01(b) of the Credit Agreement is hereby amended by
deleting the words "hereunder (and such obligations shall automatically be
assumed by Cellco)" in clause (iii) thereof and replacing such words with the
following:
in respect of the Loans made available prior to the Stage I Contribution Date
(and such obligations shall automatically be assumed by Cellco), provided,
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however that PCS Nucleus shall become and remain Secondarily Liable for the
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Special Distribution Loan
(e) Section 2.02(c) of the Credit Agreement is hereby amended by
deleting "ten" where it appears in the final proviso therein and inserting in
its place the word "twenty".
(f) Section 2.08(a) of the Credit Agreement is hereby amended by
deleting therein the words ", and shall be permanently reduced on the date each
Term Loan is made by the aggregate amount of Term Loans made on such date".
(g) Section 5.08 of the Credit Agreement is hereby amended by inserting
the words "(including the Special Distribution)" after the words "effectuate
cash distributions" in clause (b) of the second sentence therein.
(h) Section 10.14 of the Credit Agreement is hereby amended by
inserting, before the period at the end of the first sentence thereof, the
following:
except in respect to the Special Distribution Loan, for which PCS Nucleus
shall be Secondarily Liable to the Administrative Agent and the Lenders
SECTION 2. Representations and Warranties. Each of the undersigned
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Borrowers, individually and solely on behalf of itself, represents and warrants
to each Lender that, on and as of the date hereof:
(a) The representations and warranties of such Borrower set forth in
Article III of the Credit Agreement are true and correct in all material
respects with the same effect as if made on and as of the date hereof,
except to the extent such representations and warranties expressly relate
to an earlier date.
(b) No Event of Default or Default attributable to such Borrower has
occurred and is continuing.
SECTION 3. Effectiveness. This Amendment shall become effective upon
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the execution of counterparts of the signature pages hereto by the Borrowers,
the Administrative Agent, each Term Lender and Lenders constituting the Required
Lenders; provided, that this Amendment shall not become effective unless the
Administrative Agent shall have received all such signature pages on or prior to
the earlier of (i) the date of the initial borrowing of Term Loans or (ii) the
last day of the Term Availability Period. The Administrative Agent shall notify
the Lenders of the effectiveness of this Amendment, and such notice shall, in
the absence of manifest error, conclusively evidence the effectiveness of this
Amendment.
SECTION 4. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
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ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 5. Expenses. The Borrowers shall pay all reasonable
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out-of-pocket fees and expenses incurred by the Administrative Agent in
connection with the preparation, negotiation, execution and delivery of this
Amendment, including, but not limited to, the reasonable fees, disbursements and
other charges of Cravath, Swaine & Xxxxx, counsel to the Administrative Agent.
SECTION 6. Counterparts. This Amendment may be executed in any number
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of counterparts, each of which shall be an original but all of which, when taken
together, shall constitute but one instrument. Delivery of an executed
counterpart of a signature page of this Amendment by facsimile transmission
shall be as effective as delivery of a manually executed counterpart of this
Amendment.
SECTION 7. Headings. Section headings used herein are for convenience
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of reference only, are not part of this Amendment and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Amendment.
SECTION 8. Effect of Amendment. Except as specifically stated herein,
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the Credit Agreement shall continue in full force and effect in accordance with
the provisions thereof. As used therein, the term "Agreement", "herein",
"hereunder", "hereinafter", "hereto", "hereof" and words of similar import
shall, unless the context otherwise requires, refer to the Credit Agreement as
modified hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the date first
above written.
CELLCO PARTNERSHIP, d/b/a
VERIZON WIRELESS,
by /s/ Xxxxxx Xxxxxxxx
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Name: XXXXXX XXXXXXXX
Title: VICE PRESIDENT & CHIEF
FINANCIAL OFFICER
XXXX ATLANTIC MOBILE OF ROCHESTER, L.P.,
by Cellco Partnership, d/b/a Verizon Wireless,
its General Partner,
by /s/ Xxxxxx Xxxxxxxx
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Name: XXXXXX XXXXXXXX
Title: VICE PRESIDENT & CHIEF
FINANCIAL OFFICER
NEW YORK SMSA LIMITED PARTNERSHIP,
by Cellco Partnership, d/b/a Verizon Wireless,
its General Partner,
by /s/ Xxxxxx Xxxxxxxx
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Name: XXXXXX XXXXXXXX
Title: VICE PRESIDENT & CHIEF
FINANCIAL OFFICER
5
SYRACUSE SMSA LIMITED PARTNERSHIP,
by Upstate Cellular Network d/b/a
Verizon Wireless, its General Partner
by /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President, Chief
Financial Officer & Treasurer
THE CHASE MANHATTAN BANK, individually and
as Co-Administrative Agent, Funding Agent and Paying
Agent,
by /s/ Xxxxxxxxx X. Xxxxxxx
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Name:
Title:
CITIBANK, N.A., individually and as
Co-Administrative Agent,
by /s/ Xxxxxxx Xxxxxxx
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Name:
Title:
BANK OF AMERICA, N.A.,
by /s/ A. Cacheria
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Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
FIRST UNION NATIONAL BANK,
by /s/ Xxxxx X. Xxxxx
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Name:
Title:
NATIONAL AUSTRALIA BANK LIMITED, A.C.N.
004044937,
by /s/ Xxxxxx X. XxXxxxx, III
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Name: Xxxxxx X. XxXxxxx, III
Title: Vice President
