Exhibit 10.2
AMENDMENT, WAIVER, AND CONSENT
THIS AMENDMENT, WAIVER, AND CONSENT (this "Amendment")
is entered into as of May 4, 1999, among XXXXXX OPERATING COMPANY, an Oklahoma
corporation ("DOC"), XXXXXX CELLULAR OPERATIONS COMPANY, an Oklahoma
corporation ("DCOC"), the Required Lenders under the DOC Credit Agreement
(hereinafter defined), the Required Lenders under each of the DCOC Credit
Agreements (hereinafter defined), FIRST UNION NATIONAL BANK (successor-in-
interest by merger to CoreStates Bank, N.A.), in its capacity as Administrative
Agent for the Lenders under the DOC Credit Agreement (hereinafter defined)
("DOC Administrative Agent"), NATIONSBANK, N.A., dba BANK OF AMERICA
(successor-in-interest by merger to NationsBank of Texas, N.A.), in its
capacity as Administrative Agent for the Lenders under each of the DCOC
Credit Agreements ("DCOC Administrative Agent"), and Guarantors under the Credit
Agreements (hereinafter defined).
Reference is made to the following agreements: (i) the Revolving
Credit Agreement, dated as of March 25, 1998 (as amended, modified,
supplemented, or restated from time to time, the "DCOC Revolver"), among DCOC,
as Borrower, DCOC Administrative Agent, First Union National Bank, as
Syndication Agent, Toronto Dominion (Texas), Inc., as Documentation Agent,
certain Managing Agents, and Co-Agents defined therein, and the Lenders party
thereto; (ii) the 364-Day Revolving Credit and Term Loan Agreement, dated as of
March 25, 1998 (as amended, modified, supplemented, or restated from time to
time, the "364-Day Agreement" and collectively with the DCOC Revolver, the "DCOC
Credit Agreements"), among DCOC, as Borrower, DCOC Administrative Agent,
First Union National Bank, as Syndication Agent, Toronto Dominion (Texas),
Inc., as Documentation Agent, certain Managing Agents, and Co-Agents
defined therein, and the Lenders party thereto (collectively, with the Lenders
under the DCOC Revolver, the "DCOC Lenders"); and (iii) the Third Amended and
Restated Credit Agreement, dated as of March 25, 1998 (as amended to date, the
"DOC Credit Agreement"), among DOC, as Borrower, DOC Administrative Agent,
NationsBank, N.A. (successor-in-interest by merger to NationsBank of Texas,
N.A.), as Syndication Agent, Toronto Dominion (Texas), Inc., as
Documentation Agent, certain Managing Agents, and Co-Agents defined therein,
and the Lenders party thereto (the "DOC Lenders"). The DCOC Credit Agreements
and the DOC Credit Agreement are sometimes collectively referred to herein as
the "Credit Agreements."
Unless otherwise defined in this Amendment, capitalized
terms used herein with reference to a certain Credit Agreement shall have
the meaning set forth in that Credit Agreement; provided, however, that, unless
otherwise stated herein, capitalized terms used herein without reference to
a certain Credit Agreement shall have the meanings set forth in the DCOC
Revolver. Unless otherwise indicated, all Paragraph references herein are
to Paragraphs in this Amendment.
R E C I T A L S
X. Xxxxxx Communications Corporation ("Communications") proposes to
issue a new series of Senior Exchangeable Preferred Stock (the
"New Preferred Stock") on materially similar or less restrictive terms (taken as
a whole) to the existing Preferred Stock. The issuance of the New Preferred
Stock is expected to generate up to $170,000,000 in proceeds, which
proceeds will be used as follows: (i) approximately $60,000,000 will be used to
redeem Classes F and G of the existing preferred stock of Communications, (ii)
approximately $100,000,000 (subject to adjustments, acceptable to DCOC
Administrative Agent, to effect compliance with the terms and requirements of
the existing Preferred Stock) will be used to reduce permanently the Total
Commitment under the DCOC Revolver and to make the related required prepayments
thereunder, and (iii) the remaining balance will be used to pay costs and
expenses associated with the issuance of the New Preferred Stock and for other
corporate purposes.
B. In connection with the issuance of the New Preferred Stock, DOC,
DCOC, and Communications have requested certain waivers, consents, and
amendments under the DOC Credit Agreement and the DCOC Credit Agreements, and
Required Lenders under the DOC Credit Agreement and the DCOC Credit Agreements
are willing to grant and agree to such waivers, consents, and amendments, but
only upon the conditions, among other things, that DOC, DCOC, Guarantors under
the Credit Agreements, and Required Lenders under the Credit Agreements shall
have executed and delivered this Amendment and shall have agreed to the terms
and conditions of this Amendment.
NOW, THEREFORE, in consideration of these premises and other valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree, as follows:
Paragraph 1. Waivers and Consents Under the DOC Credit Agreement Respect
to Issuance of New Preferred Stock. In accordance with the requirements of
Section 10.7, Required Lenders under the DOC Credit Agreement hereby consent
to the amendments to the Amended Articles of Incorporation of Communications
which are necessary to authorize, create, and effect the issuance of the New
Preferred Stock; provided that, (i) the terms of the New Preferred Stock
(including, without limitation, provisions prohibiting restrictions on loans,
advances, investments, and Restricted Payments to Communications) shall be
materially similar or less restrictive (taken as a whole) to those of the
existing Preferred Stock (as defined in the DOC Credit Agreement) and are
otherwise satisfactory to Managing Agents in all respects; (ii) Communications
will not issue or authorize more than 170,000 shares of the New Preferred
Stock (valued at $1,000 liquidation value), plus (x) up to an additional
170,000 shares of New Preferred Stock to be issued pursuant to a registration
right agreement in exchange for, and in replacement of, the originally issued
New Preferred Stock and (y) the number of additional shares of New Preferred
Stock required to be issued to pay permitted non-cash dividends on the New
Preferred Stock on or before July 15, 2004, being the Cash-Pay Date (as
hereinafter defined) for the New Preferred Stock; and (iii) the terms of such
amendments to the Amended Articles of Incorporation of Communications will
substantially reflect the terms set forth in the Offering Memorandum dated as
of April 29, 1999, with respect to the New Preferred Stock.
Paragraph 2. Amendment Under the DOC Credit Agreement and the DCOC Credit
Agreements. In connection with the issuance of the New Preferred Stock, DOC
and DCOC have requested that Required Lenders under the DOC Credit Agreement
and the DCOC Credit Agreements agree to amend the DOC Credit Agreement and the
DCOC Credit Agreements (i) to include the New Preferred Stock in the
definitions of "Preferred Stock" and to clarify the actual issuance amounts
for the two existing series of the Preferred Stock, (ii) to add a definition
of "Cash-Pay Date" to account for the fact that different issuances of the
Preferred Stock have differing dates after which all dividends must be paid in
cash, and (iii) to clarify Sections 2.4, 9.6(c), and 10.6 of the DOC Credit
Agreement and Section 9.21(d) of the DCOC Credit Agreements with respect to
the differing Cash-Pay Dates for the different series of Preferred Stock.
2.1 Required Lenders under the DOC Credit Agreement and the DCOC
Credit Agreements agree to amend their respective Credit Agreements, as the
case may be, to provide that the definition of "Preferred Stock" set forth in
Section 1.1 of each of the Credit Agreements is hereby amended in its entirety
to read, as follows:
"Preferred Stock means, collectively, (i) the 175,000
shares of the Senior Exchangeable Preferred Stock
(valued at $1,000 liquidation value) issued by
Communications which is mandatorily redeemable in
2008, together with additional Preferred Stock issued
in lieu of dividends on such Preferred Stock, all as
more particularly described in that certain Offering
Memorandum issued January 5, 1998, by Communications;
(ii) the 64,646 shares of additional Senior
Exchangeable Preferred Stock (valued at $1,000
liquidation value) issued in December 1998, by
Communications on terms materially similar or less
restrictive (taken as a whole) than the terms of the
Preferred Stock described in clause (i), and which is
mandatorily redeemable in 2008, together with
additional Preferred Stock issued in lieu of dividends
on the Preferred Stock described in this clause (ii);
and (iii) up to 170,000 shares of additional Senior
Exchangeable Preferred Stock (valued at $1,000
liquidation value) issued in unregistered form in May,
1999 (the "Restricted Shares"), by Communications on
terms substantially identical to the Preferred Stock
described in clauses (i) and (ii), and which is
mandatorily redeemable in 2009, together with (x) up
to an additional 170,000 shares of registered Senior
Exchangeable Preferred Stock issued in exchange for,
and replacement of, the Restricted Shares and issued
on substantially identical terms as the Restricted
Shares and (y) additional Preferred Stock issued in
lieu of dividends on, and in accordance with the terms
of, the Preferred Stock described in this clause
(iii)."
2.2 Required Lenders under the DOC Credit Agreement and the DCOC
Credit Agreements agree to amend their respective Credit Agreements, as the
case may be, to insert alphabetically the following definition of "Cash-Pay
Date" in Section 1.1 of each of the Credit Agreements:
"Cash-Pay Date means, with respect to any issue of
Preferred Stock or Exchange Debentures, the date
specified in the related Certificate of Designation or
Indentures for such series of Preferred Stock or
Exchange Debentures after which all dividends or
payments must be paid in cash."
2.3 Required Lenders under the DOC Credit Agreement agree to amend
Section 2.4 of the DOC Credit Agreement by deleting clause (ii) in its
entirety and substituting therefor the following:
"(ii) fund distributions and dividends to
Communications to enable Communications to pay
required cash dividends or distributions on each
series of Preferred Stock or required cash interest on
the related Exchange Debentures on and after the
respective Cash-Pay Dates for each such series of
Preferred Stock or Exchange Debentures, subject to
acceptable terms and conditions and determined by
Agents."
2.4 Required Lenders under the DOC Credit Agreement agree to
amend Section 9.6(c) of the DOC Credit Agreement by:
(a) Deleting clause (ii) which currently reads "(ii)
after January 15, 2003, to pay regularly-scheduled cash distributions
on the Preferred Stock or cash interest payments on the Exchange
Debentures, if issued," and substituting therefor the following:
"(ii) to pay regularly-scheduled required cash
distributions on any series of Preferred Stock
or regularly-scheduled required cash interest
payments on the related Exchange Debentures, if
issued, on and after the respective Cash-Pay
Date for such series of Preferred Stock or
Exchange Debentures;"
(b) In the proviso to such Section 9.6(c), deleting the
phrase "or after January 15, 2003, with respect to the Preferred Stock,"
and substituting the following therefor:
"on or after the respective Cash-Pay Date for
any series of such Preferred Stock or the
related Exchange Debentures".
2.5 Required Lenders under the DOC Credit Agreement agree to amend
Section 10.6 of the DOC Credit Agreement by deleting clause (ii) and
substituting therefor the following:
"(ii) regularly-scheduled required cash
dividends on each series of Preferred Stock on
and after the respective Cash-Pay Date for such
series of Preferred Stock,"
2.6 Required Lenders under the DCOC Credit Agreements agree to
amend Sections 9.21(d) of the DCOC Credit Agreements by:
(a) Deleting the introductory sentence of such Section
which currently reads "So long as no Triggering Event has occurred or
is created thereby (as determined on a pro forma basis), Distributions made
after January 15, 2003, by Borrower to Communications in amounts sufficient
(when aggregated with the amounts of all other loans, advances, or dividends
for such purposes from all other Subsidiaries of Communications) to pay cash
distributions or cash interest payments on the Preferred Stock and Exchange
Debentures, if any;" and substituting therefor the following:
"So long as no Triggering Event has occurred or
is created thereby (as determined on a pro forma
basis), Distributions made by Borrower to
Communications in amounts sufficient (when
aggregated with the amounts of all other loans,
advances, or dividends for such purposes from
all other Subsidiaries of Communications) to pay
regularly-scheduled required cash distributions
or required cash interest payments on each
series of Preferred Stock and the related
Exchange Debentures, if any, on and as of the
respective Cash-Pay Date for such series of
Preferred Stock or Exchange Debentures;"
(b) Inserting the phrase "required cash" before the word
"payment" in each of clauses (A) and (B) of such Section.
Paragraph 3. Conditions. The consent of Required Lenders to this
Amendment is expressly conditioned on the requirement that concurrently with
the issuance of the New Preferred Stock, DCOC shall permanently reduce the
Total Commitment under the DCOC Revolver in an amount approximately equal to
$100,000,000 (subject to such adjustments as may be required to effect
compliance with the terms and requirements of the existing Preferred Stock and
which adjustments are acceptable to DCOC Administrative Agent), together with
all prepayments required pursuant to Section 3.2(c) of the DCOC Revolver as a
result of such Total Commitment reduction. Furthermore, notwithstanding any
contrary provision, this Amendment is not effective until the date upon which
(a) the representations and warranties in this Amendment are true and correct;
(b) DCOC Administrative Agent receives an opinion of counsel acceptable to
DCOC Administrative Agent addressed to DCOC Administrative Agent, DOC
Administrative Agent, the DCOC Lenders, and the DOC Lenders that the issuance
of the New Preferred Stock does not constitute a "default" or "event of
default" or other breach or noncompliance with the terms and provisions of the
Communications Bond Debt, the Exchange Debentures, or the existing Preferred
Stock, including any event which would create voting rights in the holders of
the existing Preferred Stock; (c) DOC Administrative Agent receives
counterparts of this Amendment executed by DOC, each Guarantor under the DOC
Credit Agreement, and Required Lenders under the DOC Credit Agreement;
(d) DCOC Administrative Agent receives counterparts of this Amendment executed
by DCOC, each Guarantor under the DCOC Revolving Credit Agreement, and
Required Lenders under the DCOC Revolving Credit Agreement; and (e) DCOC
Administrative Agent receives counterparts of this Amendment executed by DCOC,
each Guarantor under the 364-Day Agreement, and Required Lenders under the
364-Day Agreement. On the Business Day upon which all of the preceding
conditions precedent are satisfied, this Amendment shall be effective (the
"Effective Date").
Paragraph 4. Compliance with Amendment Requirements. The failure of DOC,
DCOC, their Subsidiaries, or any Guarantor under the DOC Agreement or DCOC
Agreements to comply with the conditions (including, without limitation, the
conditions set forth in Paragraph 3(a)) or limitations set forth in this
Amendment on and after the Effective Date hereof shall constitute an Event of
Default under the Credit Agreements, entitling the DOC Lenders and DCOC
Lenders to exercise their respective Rights under the Credit Agreements and
related Loan Papers.
Paragraph 5. Acknowledgment and Ratification. As a material inducement
to DOC Administrative Agent, DCOC Administrative Agent, the DCOC Lenders, and
the DOC Lenders to execute and deliver this Amendment, DCOC, DOC, and each
Guarantor (i) consent to the agreements in this Amendment and (ii) agree and
acknowledge that the execution, delivery, and performance of this Amendment
shall in no way release, diminish, impair, reduce, or otherwise affect the
respective obligations of DCOC, DOC, or Guarantors under their respective
Collateral Security Documents under the DOC Credit Agreement or the Collateral
Documents under the DCOC Credit Agreements, which Collateral Security
Documents and Collateral Documents shall remain in full force and effect, and
all liens, guaranties, and rights thereunder are hereby ratified and
confirmed.
Paragraph 6. Representations. As a material inducement to DOC
Administrative Agent, DCOC Administrative Agent, the DCOC Lenders, and the DOC
Lenders to execute and deliver this Amendment, DCOC, DOC, and each Guarantor
represent and warrant to such parties (with the knowledge and intent that the
DOC Lenders, Lenders under the DCOC Credit Agreements, DOC Administrative
Agent, and DCOC Administrative Agent are relying upon the same in entering
into this Amendment) that as of the Effective Date of this Amendment and as of
the date of execution of this Amendment: (a) all representations and
warranties in the DOC Credit Agreement and related Loan Papers and the DCOC
Credit Agreements and related Loan Papers are true and correct in all material
respects as though made on the date hereof, except to the extent that (i) any
of them speak to a different specific date or (ii) the facts on which any of
them were based have been changed by transactions contemplated or permitted by
the applicable Credit Agreements; (b) no Event of Default or Default exists
under the DOC Credit Agreement and related Loan Papers, and no Default or
Potential Default exists under the DCOC Credit Agreements and related Loan
Papers; and (c) this Amendment has been duly authorized and approved by all
necessary corporate action and requires the consent of no other Person, and
upon execution and delivery, this Amendment shall be binding and enforceable
against DOC, DCOC, and each Guarantor in accordance with its terms.
Paragraph 7. Expenses. DOC and DCOC shall pay all costs, fees, and
expenses paid or incurred by DCOC Administrative Agent incident to this
Amendment, including, without limitation, the reasonable fees and expenses of
DCOC Administrative Agent's counsel in connection with the negotiation,
preparation, delivery, and execution of this Amendment and any related
documents.
Paragraph 8. Miscellaneous.
8.1 This Amendment is one of the "Loan Papers" referred to in the
Credit Agreements and the provisions of Section 14 of the DOC Credit Agreement
relating to the DOC Credit Agreement and the related Loan Papers and the
provisions of Sections 13 of the DCOC Credit Agreements relating to the DCOC
Credit Agreements and the related Loan Papers are incorporated herein by
reference. Unless stated otherwise (a) the singular number includes the plural
and vice versa and words of any gender include each other gender, in each
case, as appropriate, (b) headings and captions may not be construed in
interpreting provisions, (c) this Amendment must be construed, and its
performance enforced, under Texas law, and (d) this Amendment may be executed
in any number of counterparts with the same effect as if all signatories had
signed the same document, and all of those counterparts must be construed
together to constitute the same document.
8.2 The Credit Agreements and all related Loan Papers shall remain
unchanged and in full force and effect, except as provided in this Amendment,
and are hereby ratified and confirmed. On and after the Effective Date, all
references to the "DCOC Credit Agreements" shall be to the DCOC Credit
Agreements as herein amended and all reference to the "DOC Credit Agreement"
shall be to the DOC Credit Agreement as herein amended. The execution,
delivery, and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any Rights of the DOC Lenders or DCOC
Lenders under the Credit Agreements or any Loan Papers, nor constitute a
waiver under the Credit Agreements or any other provision of the Loan Papers.
Paragraph 9. ENTIRETIES. THIS AMENDMENT REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES ABOUT THE SUBJECT MATTER OF THIS AMENDMENT AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
Paragraph 9. Parties. This Amendment binds and inures to DOC, DCOC, DOC
Administrative Agent, DCOC Administrative Agent, DOC Lenders, DCOC Lenders,
Guarantors, and their respective successors and assigns.
The parties hereto have executed this Amendment in multiple
counterparts on the date stated on the signature pages hereto, but effective
as of Effective Date.
XXXXXX OPERATING COMPANY,
as Borrower under DOC Credit Agreement
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx.
Treasurer
XXXXXX CELLULAR OPERATIONS COMPANY,
as Borrower under DCOC Credit Agreements
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx.
Treasurer
XXXXXX COMMUNICATIONS CORPORATION,
as Guarantor under DOC Credit Agreement
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx.
ASSOCIATED TELECOMMUNICATIONS AND
TECHNOLOGIES, INC., as Guarantor under
DOC Credit Agreement
XXXXXX CELLULAR OF ARIZONA, INC., as
Guarantor under DOC Credit Agreement
XXXXXX CELLULAR OF XXXX, INC.,
as Guarantor under DOC Credit Agreement
XXXXXX CELLULAR OF KANSAS/MISSOURI, INC.,
as Guarantor under DOC Credit Agreement
XXXXXX CELLULAR OF MARYLAND, INC., as
Guarantor under DOC Credit Agreement
XXXXXX CELLULAR OF SANDUSKY, INC., as
Guarantor under DOC Credit Agreement
XXXXXX CELLULAR OF XXXXXXX INC.
(f/k/a Xxxxxx Cellular of Southern
California, Inc.), as Guarantor under
DOC Credit Agreement
XXXXXX CELLULAR OF XXXXXXXX, INC., as
Guarantor under DOC Credit Agreement
XXXXXX CELLULAR SYSTEMS, INC., as
Guarantor under DOC Credit Agreement
DOC CELLULAR SUBSIDIARY COMPANY,
as Guarantor under DOC Credit Agreement
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx.
Treasurer
OKLAHOMA INDEPENDENT RSA 5 PARTNERSHIP,
as Guarantor under DOC Credit Agreement
By: XXXXXX CELLULAR SYSTEMS, INC.,
its Managing General Partner
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx.
OKLAHOMA INDEPENDENT RSA 7 PARTNERSHIP,
as Guarantor under DOC Credit Agreement
By: XXXXXX CELLULAR SYSTEMS, INC.,
its Managing General Partner
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx.
OKLAHOMA RSA 5 LIMITED PARTNERSHIP, as
Guarantor under DOC Credit Agreement
By: OKLAHOMA INDEPENDENT RSA 5
PARTNERSHIP, its Managing General
Partner
By: XXXXXX CELLULAR SYSTEMS, INC.,
as Managing General Partner
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx.
OKLAHOMA RSA 7 LIMITED PARTNERSHIP, as
Guarantor under DOC Credit Agreement
By: OKLAHOMA INDEPENDENT RSA 7
PARTNERSHIP, its Managing General
Partner
By: XXXXXX CELLULAR SYSTEMS, INC.,
its Managing General Partner
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx.
TEXAS RSA NO. 2 LIMITED PARTNERSHIP, as
Guarantor under DOC Credit Agreement
By: XXXXXX CELLULAR SYSTEMS, INC.,
its Managing General Partner
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx.
XXXXXX CELLULAR OF TEXAS, INC.,
as Guarantor under DCOC Credit Agreements
XXXXXX CELLULAR OF CALIFORNIA, INC., as
Guarantor under DCOC Credit Agreements
CELLULAR 2000 TELEPHONE CO., as
Guarantor under DCOC Credit Agreements
RSA 339, INC., as Guarantor under
DCOC Credit Agreements
SANTA XXXX CELLULAR TELEPHONE, INC., as
Guarantor under DCOC Credit Agreements
XXXXXX CELLULAR OF IMPERIAL, INC., as
Guarantor under DCOC Credit Agreements
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx.
CELLULAR 2000, as Guarantor under DCOC
Credit Agreements
By: CELLULAR 2000 TELEPHONE CO., its two-
thirds majority interest holder
XXXXXXX X. XXXXXX, XX.
Xxxxxxx X. Xxxxxx, Xx.
NATIONSBANK, N.A. (as successor-in-
interest by merger to NationsBank of
Texas, N.A.), as DCOC Administrative
Agent, a DOC Lender, and a DCOC Lender
XXXXX X. XXXXXX
Xxxxx X. Xxxxxx
Vice President
(Remaining signatures intentionally
omitted)
