Exhibit 10.1
EXECUTION COPY
MADISON RIVER CAPITAL, LLC
AMENDMENT NO. 1 AND WAIVER
Dated as of January 27, 2006
AMENDMENT NO. 1 TO THE CREDIT AGREEMENT AND WAIVER (this "Amendment"),
among MADISON RIVER CAPITAL, LLC, a Delaware limited liability company (the
"Borrower"), the banks, financial institutions and other lenders party
hereto, ▇▇▇▇▇▇ COMMERCIAL PAPER INC., as administrative agent (the
"Administrative Agent"), and ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED, as Arranger.
W I T N E S S E T H:
WHEREAS, the Borrower, Madison River Telephone Company LLC, as Holdings,
the other Guarantors party thereto, the Lenders party thereto, the
Administrative Agent and the other Agents party thereto are parties to that
certain Credit Agreement dated as of July 29, 2005 (as amended, supplemented
or otherwise modified through the date hereof, the "Credit Agreement").
Capitalized terms not otherwise defined in this Amendment have the same
meanings as specified in the Credit Agreement;
WHEREAS, the Borrower desires to refinance the Term B Advances currently
outstanding under the Credit Agreement (collectively, the "Original Term B
Advances") with a new class of Term B-1 Advances under the Credit Agreement
(the "Term B-1 Advances") having identical terms with, and having the same
rights and obligations under the Loan Documents and in the same aggregate
principal amounts as, the Original Term B Advances, in each case as set forth
in the Loan Documents, except as such terms are amended hereby;
WHEREAS, each Term B Lender that executes and delivers this Amendment
shall be deemed, upon the effectiveness of this Amendment, to have exchanged
and converted its Term B Commitment currently provided for under the Credit
Agreement (collectively, the "Original Term B Commitments") and Original Term
B Advances (which Original Term B Commitment and Original Term B Advances
shall thereafter be deemed terminated and refinanced in full) for a Term B-1
Commitment (a "Term B-1 Commitment") and Term B-1 Advances in the same
aggregate principal amount as such Lender's Original Term B Advances as set
forth on Schedule I to the Credit Agreement, as amended as of the Amendment
No. 1 Effective Date (as hereinafter defined), and such Lender shall
thereafter become a Term B-1 Lender (each, a "Term B-1 Lender");
WHEREAS, each Person that executes and delivers this Amendment as an
additional Term B-1 Lender (each, an "Additional Term B-1 Lender"), will make
Term B-1 Advances on the Amendment No. 1 Effective Date (each, an "Additional
Term B-1 Advance") to the Borrower in an aggregate principal amount equal to
the amount set forth opposite its name on Schedule I to the Credit Agreement,
as amended as of the Amendment No. 1 Effective Date, the proceeds of which
will be used by the Borrower to refinance in full the outstanding principal
amount of Original Term B Advances of Term B Lenders, if any, who do not
execute and deliver this Amendment, it being understood that an Additional
Term B-1 Lender may be a Term B Lender prior to the Amendment No. 1 Effective
Date; and
WHEREAS, the Borrower, the Administrative Agent and each of the Lenders
party hereto have agreed to further amend the Credit Agreement in certain
respects and each of the Lenders party hereto have agreed to waive certain
provisions of the Credit Agreement, in each case as set forth below;
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NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which is hereby
acknowledged), the parties hereto hereby agree as follows:
Section 1. Amendment of Credit Agreement.
(a) Section 1.01 of the Credit Agreement is hereby amended as
follows:
(i) By amending the definition of "Applicable Margin" in its
entirety and replacing it with the following:
"'Applicable Margin' means (a) in respect of the Term B-1
Facility, prior to a Qualified IPO, 1.25% per annum for Base
Rate Advances and 2.25% per annum for Eurodollar Rate
Advances, and after a Qualified IPO, 0.75% per annum for Base
Rate Advances and 1.75% per annum for Eurodollar Rate
Advances, and (b) in respect of the Revolving Credit
Facility, 0.50% per annum.";
(ii) By amending the definition of "Commitment" in its entirety
and replacing it with the following:
"'Commitment' means a Term B-1 Commitment or the Revolving
Credit Commitment.";
(iii) By amending the definition of "Lenders" in its entirety and
replacing it with the following:
"'Lenders' means each Term B-1 Lender listed on the signature
pages of Amendment No. 1 and each Revolving Credit Lender
listed on the signature pages hereto and each other Person
that becomes a Lender hereunder pursuant to, and in
accordance with, Section 10.07 for so long as such Person
shall be a party to this Agreement.";
(iv) By amending the definition of "Loan Documents" in its
entirety and replacing it with the following:
"'Loan Documents' means (a) this Agreement, (b) the Notes,
(c) the Guaranties, (d) the Collateral Documents and (e) each
agreement or instrument agreed to by the Borrower and related
to any Letter of Credit, and in the case of each of the
foregoing clauses (a) though (e) as amended.";
(v) By amending the definition of "Term B Lender" in its entirety
and replacing it with the following:
"'Term B Lender' has the meaning specified in Section 1.01 of
this Credit Agreement, as in effect prior to the Amendment
No. 1 Effective Date.";
(vi) By inserting the following new definitions therein in the
appropriate alphabetical order:
"Additional Term B-1 Advance" has the meaning set forth in
Section 2.01(a)(ii).
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"Additional Term B-1 Borrowing" means a borrowing consisting
of simultaneous Additional Term B-1 Advances of the same Type
made by the Additional Term B-1 Lenders.
"Additional Term B-1 Commitment" means, with respect to an
Additional Term B-1 Lender, the commitment of such Additional
Term B-1 Lender to make Additional Term B-1 Advances on the
Amendment No. 1 Effective Date, in the amount set forth next
to the name of such Additional Term B-1 Lender on Annex I to
Amendment No. 1 under the caption "Additional Term B-1
Commitment". The aggregate amount of the Additional Term B-1
Commitments shall equal the outstanding principal amount of
Term B Advances of Term B Lenders that do not execute and
deliver Amendment No. 1 on or prior to the Amendment No. 1
Effective Date.
"Additional Term B-1 Lender" means a Person with an
Additional Term B-1 Commitment to make Additional Term B-1
Advances to the Borrower on the Amendment No. 1 Effective
Date, it being understood that an Additional Term B-1 Lender
may be a Term B Lender prior to the Amendment No. 1 Effective
Date.
"Amendment No. 1" means Amendment No. 1 dated as of January
27, 2006 to this Agreement among the Borrower, the
Administrative Agent and the Lenders party thereto.
"Amendment No. 1 Effective Date" has the meaning specified in
Section 2 of Amendment No. 1.
"Original Term B Advance" has the meaning specified for the
phrase "Term B Advance" in Section 1.01 of this Credit
Agreement, as in effect prior to the Amendment No. 1
Effective Date.
"Term B-1 Advance" has the meaning set forth in Section
2.01(a).
"Term B-1 Borrowing" means a borrowing consisting of
simultaneous Term B-1 Advances of the same Type made by the
Term B-1 Lenders.
"Term B-1 Commitment" means, with respect to any applicable
Lender at any time, the amount set forth opposite such
Lender's name on Schedule I hereto under the caption 'Term B-
1 Commitment' or, if such Lender has entered into one or more
Assignment and Acceptances, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to
Section 10.07(d) as such Lender's 'Term B-1 Commitment'. The
original aggregate amount of the Term B-1 Commitments and the
Additional Term B-1 Commitments of all Term B-1 Lenders is
$475,000,000.
"Term B-1 Facility" means, at any time, the aggregate amount
of the Term B-1 Lenders' Term B-1 Commitments at such time.
"Term B-1 Lender" means, collectively, (a) each Term B Lender
that executes and delivers Amendment No. 1 on or prior to the
Amendment No. 1 Effective Date, (b) each Additional Term B-1
Lender and (c) each other Person that becomes a Term B-1
Lender hereunder pursuant to, and in accordance with, Section
10.07 for so long as such Person shall be a party to this
Agreement."
(b) Section 2.01(a) is hereby amended in its entirety and
replaced by the following:
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"(a) The Term B-1 Advances. (i) Exchange and Conversion.
Subject to the terms and conditions hereof, each Term B
Lender with a Term B-1 Commitment severally agrees to
exchange and convert its Original Term B Advances for a like
principal amount of advances (together with the Additional
Term B-1 Advances, the "Term B-1 Advances") to the Borrower
on the Amendment No. 1 Effective Date, and from and after the
Amendment No. 1 Effective date such Term B Advance shall be
deemed refinanced in full and such Term B-1 Advances shall be
deemed made hereunder. Term B-1 Advances borrowed under this
Section 2.01(a)(i) and repaid or prepaid may not be
reborrowed.
(ii) The Additional Term B-1 Advances. Each Additional Term
B-1 Lender severally agrees, on the terms and conditions
hereinafter set forth, to make a single advance (an
"Additional Term B-1 Advance") to the Borrower on the
Amendment No. 1 Effective Date in an amount not to exceed
such Lender's Additional Term B-1 Commitment at such time.
The Additional Term B-1 Borrowing shall consist of Additional
Term B-1 Advances made simultaneously by the Additional Term
B-1 Lenders ratably according to their Additional Term B-1
Commitments. Amounts borrowed under this Section 2.01(a)(ii)
and repaid or prepaid may not be reborrowed. It is further
understood and agreed that the Additional Term B-1 Advances
shall have the same Interest Period or Periods as the
Original Term B Advances exchanged for Term B-1 Advances and
shall bear interest at the same Eurodollar Rate or Base Rate
(but with the Applicable Margin in effect on and after the
Amendment No. 1 Effective Date) for the remainder of such
Interest Periods.
(iii) Interest. On the Amendment No. 1 Effective Date the
Borrower shall pay all accrued and unpaid interest on the
Original Term B Advances to the Term B Lenders; provided,
however, that the Interest Periods in effect on the Amendment
No. 1 Effective Date of the Original Term B Advances that
have been exchanged for, and converted into, Term B-1
Advances in accordance with clause (i) above shall continue
in respect of such Term B-1 Advances on and after the
Amendment No. 1 Effective Date and shall accrue interest at
the Eurodollar Rates then in effect for such Original Term B
Advances plus the Applicable Margin (at the rate theretofore
in effect for periods up to the Amendment No. 1 Effective
Date and at the Eurodollar Rate plus the Applicable Margin
provided for pursuant to Amendment No. 1 thereafter).
Anything contained in this Agreement to the contrary
notwithstanding, the initial Interest Periods with respect to
the Additional Term B-1 Advances shall commence on the
Amendment No. 1 Effective Date and shall end simultaneously
with the Interest Periods that have been continued pursuant
to the preceding sentence (which Interest Periods commenced
January 6, 2006 for a period of three months) and the
Additional Term B-1 Advances shall bear interest at the same
Eurodollar Rate or Base Rate for such Interest Period."
(c) Section 2.05 is hereby amended by adding a new subsection (c)
to the end thereof to read as follows:
"(c) Anything contained in Section 2.05 to the contrary
notwithstanding, any prepayment of Term B-1 Advances pursuant
to this Section 2.05 effected on or before the date one year
after the Amendment No. 1 Effective Date with the proceeds of
a substantially concurrent incurrence of additional Term B-1
Advances under this Agreement (or other advances having
substantially similar terms as the Term B-1 Advances, whether
or not under this Agreement) , shall be accompanied by a
prepayment fee equal to 1.00% of the aggregate principal
amount of such prepayment if, immediately prior to such
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prepayment, the Applicable Margin relating to the Term B-1
Advances exceeds the Applicable Margin relating to such
additional Term B-1 Advances (or applicable margins of such
other advances)."
(d) Section 2.14 of the Credit Agreement is hereby amended in its
entirety and replaced by the following:
"Section 2.14. Use of Proceeds. The proceeds of the
Advances and issuances of Letters of Credit shall be
available (and the Borrower agrees that it shall use such
proceeds and Letters of Credit) solely (a) in the case of the
Additional Term B-1 Advances, to repay Obligations owing to
those Term B Lenders that are not exchanging their Original
Term B Advances for Term B-1 Advances pursuant to Section
2.01(a)(i), (b) in the case of the Revolving Credit Facility,
for working capital and general business purposes, including
capital expenditures and acquisitions, of the Parent and its
Subsidiaries and (c) in the case of any Commitment Increase,
to prepay any Term B-1 Advance outstanding prior to such
Commitment Increase and/or for working capital and general
business purposes, including capital expenditures and
acquisitions, of the Parent and its Subsidiaries.
(e) Schedule I to the Credit Agreement is hereby deleted in its
entirety and replaced by Annex I to this Amendment No. 1.
(f) Upon the Amendment No. 1 Effective Date, (i) the Term B-1
Advances shall have the same terms, rights and obligations as
the Original Term B Advances as set forth in the Loan
Documents, and (ii) all references to "Term B Advances",
"Term B Commitment", "Term B Facility", "Term B Note", "Term
B Lenders" and "Term B Borrowings" in the Loan Documents
shall be deemed to be references to "Term B-1 Advances",
"Term B-1 Commitment", "Term B-1 Facility", "Term B-1 Note",
"Term B-1 Lenders" and "Term B-1 Borrowings", respectively.
Section 2. Waiver and Agreement. The Lenders hereby waive any
Default or Event of Default under the Credit Agreement as a result of a
restatement by the Parent in respect of or arising out of the matters
referred to in the Borrower's Form 8-K filed with the Securities Exchange
Commission on January 20, 2006 of the consolidated financial statements of
the Parent and its Subsidiaries previously delivered to the Lenders.
(b) The Lenders hereby waive the obligation of the Parent to
deliver the financial statements, reports, schedules, opinion and other
documents required to be delivered under (i) Section 6.03(b) of the Credit
Agreement within 90 days after the end of Fiscal Year 2005 (collectively, the
"2005 Annual Financial Reports") and (ii) Section 6.03(c) of the Credit
Agreement within 45 days after the end of the first quarter of Fiscal Year
2006 (collectively, the "2006 First Quarter Financial Reports"). The Parent
covenants and agrees to deliver to the Administrative Agent no later than May
31, 2006, the 2005 Annual Financial Reports and the 2006 First Quarter
Financial Reports. Accordingly, the parties hereto agree that it shall
constitute an Event of Default under the Loan Documents if Parent fails to
deliver to the Administrative Agent the 2005 Annual Financial Reports and the
2006 First Quarter Financial Reports by such date.
Section 3. Conditions to Effectiveness. This Amendment and the
amendments contained herein shall become effective as of the date hereof (the
"Amendment No. 1 Effective Date") when each of the conditions set forth in
this Section 2 to this Amendment shall have been fulfilled or waived to the
satisfaction of the Administrative Agent; provided that the waiver contained
in Section 2(a) herein shall become effective as of July 29, 2005 when each
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of the conditions set forth in this Section 3 to this Amendment shall have
been fulfilled or waived to the satisfaction of the Administrative Agent.
The Administrative Agent shall give the Borrower prompt written notice that
this Amendment has become effective..
(i) Execution of Counterparts. The Administrative Agent shall
have received counterparts of this Amendment, duly executed and delivered on
behalf of each of (a) the Borrower, (b) the Administrative Agent, (c) the
Required Lenders and (d) each Term B Lender, or in lieu of one or more Term B
Lenders, one or more Additional Term B-1 Lenders providing Additional Term B-
1 Commitments in an amount sufficient to refinance all of the principal of
the Term B Advances owed to non-consenting Term B Lenders or, as to any of
the foregoing parties, advice reasonably satisfactory to the Administrative
Agent that each of the foregoing parties has executed a counterpart of this
Amendment.
(ii) Notices of Borrowing/Conversion. (a) The Borrower shall have
provided the Administrative Agent with a Notice of Borrowing substantially in
the form of the Notice of Borrowing required by Section 2.02(a) of the Credit
Agreement prior to the Amendment No. 1 Effective Date with respect to the
borrowing of the Additional Term B-1 Advances on the Amendment No. 1
Effective Date.
(b) Each Term B Lender exchanging and converting Original Term
B Advances shall have provided the Administrative Agent with an
Exchange/Conversion Notice substantially in the form of Annex II to this
Amendment.
(iii) Notice of Prepayment. The Borrower shall have provided the
Administrative Agent with a notice of prepayment in accordance with the
requirements of Section 2.05(a) of the Credit Agreement prior to the
Amendment No. 1 Effective Date with respect to the prepayment of the Original
Term B Advances owing to the non-consenting Term B Lenders on the Amendment
No. 1 Effective Date.
(iv) Payment of Fees and Expenses. The Borrower shall have paid
all reasonable and documented out-of-pocket expenses (including the
reasonable fees and expenses of Shearman & Sterling LLP) of the Agents and
the Arranger incurred in connection with the preparation, negotiation and
execution of this Amendment and other matters relating to the Credit
Agreement to the extent invoiced prior to the Amendment No. 1 Effective
Date.
(v) Evidence of Debt. Each Term B-1 Lender shall have received,
if requested, a Note payable to the order of such Lender duly executed by the
Borrower in substantially the form of Exhibit A-2 to the Credit Agreement, as
modified by this Amendment, evidencing the Term B-1 Advances.
(vi) Interest, Etc. Simultaneously with the making of the Term B-
1 Advances, the Borrower shall have paid to all the Term B Lenders all
accrued and unpaid interest on the Original Term B Advances to the Amendment
No. 1 Effective Date, plus any amounts payable pursuant to Section 10.04 of
the Credit Agreement.
(vii) Execution of Consent. The Administrative Agent shall have
received counterparts of a Consent substantially in the form of Exhibit A to
this Amendment, duly executed by each of the entities listed therein.
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(viii) Resolutions. The Administrative Agent shall have received
certified copies of (A) the resolutions of the Board of Directors of the
Borrower evidencing approval for this Amendment and all matters contemplated
hereby and (B) all documents evidencing other necessary corporate action and
governmental and other third party approvals and consents if any, with
respect to this Amendment and the matters contemplated hereby.
(ix) Certificates. The Administrative Agent shall have received
a certificate of the Secretary or an Assistant Secretary of the Borrower on
behalf of the Borrower certifying (A) the names and true signatures of the
officers of the Borrower authorized to sign this Amendment and the other
documents to be delivered hereunder, (B) the truth in all material respects
of the representations and warranties contained in Section 3 of this
Amendment and (C) no event has occurred and is continuing that constitutes a
Default.
(x) Legal Opinions. The Administrative Agent shall have
received opinions of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, outside
counsel for the Loan Parties, and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, in-house counsel for the
Loan Parties, in forms to be agreed, in each case addressed to each Agent and
each Lender.
(xi) No Default. No Default shall have occurred and be
continuing, or would occur as a result of the transactions contemplated by
this Amendment after giving effect to this Amendment.
Section 4. Confirmation of Representations and Warranties
The Borrower hereby represents and warrants, on and as of the
date hereof, that the representations and warranties contained in the Credit
Agreement are correct in all material respects on and as of the Amendment No.
1 Effective Date, after giving effect to this Amendment, as though made on
and as of the date hereof, other than any such representations or warranties
made only as of, or relating to, an earlier date.
Section 5. Reference to and Effect on the Transaction Documents.
On and after the effectiveness of this Amendment, each reference
in the Credit Agreement to "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the other
transaction documents to the "Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement as modified and waived by this Amendment.
(b) The Credit Agreement, the Notes and each of the other Loan
Documents, as specifically amended and otherwise modified and waived by this
Amendment, are and shall continue to be in full force and effect and are
hereby in all respects ratified and confirmed. Without limiting the
generality of the foregoing, the Collateral Documents and all of the
Collateral described therein do and shall continue to secure the payment of
all Obligations of the Loan Parties under the Loan Documents, in each case as
amended and waived by this Amendment.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Lender or any Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
(d) Each Term B Lender executing this Amendment hereby expressly
(i) consents to all of the terms and provisions hereof and (ii) acknowledges
and agrees that all of its Original Term B Advances have been exchanged for,
and converted into, Term B-1 Advances for a like principal amount in
accordance with Section 2.01(a)(i) of the Credit Agreement, as amended by
this Amendment.
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Section 6. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute but one and the
same agreement. Delivery of an executed counterpart of a signature page to
this Amendment by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment.
Section 7. Governing Law. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York, and
shall be subject to the jurisdictional and service provisions of the Credit
Agreement, as if this were a part of the Credit Agreement.
Section 8. Entire Agreement; Modification. This Amendment
constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof, there being no other agreements or understandings,
oral, written or otherwise, respecting such subject matter, any such
agreement or understanding being superseded hereby, shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns, and may not be amended, extended or otherwise modified, except
in a writing executed in whole or in counterparts by each party hereto.
[Rest of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their respective authorized
officers as of the day and year first above written.
Borrower:
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MADISON RIVER CAPITAL, LLC
By:/s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
Agent:
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▇▇▇▇▇▇ COMMERCIAL PAPER INC.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
Arranger:
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▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
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[Lenders Signature Pages]
EXHIBIT A TO AMENDMENT NO. 1
CONSENT
Reference is made to the Credit Agreement and Waiver, dated as
of July 29, 2005, as amended by Amendment No. 1 to the Credit Agreement,
dated as of January 27, 2006, among Madison River Capital, LLC, as
Borrower, Madison River Telephone Company LLC, as Holdings, the other
Guarantors party thereto, the Lender Parties (as defined therein) party
thereto, ▇▇▇▇▇▇ Commercial Paper Inc., as collateral agent and administrative
agent for the Lender Parties, and the other Agents party thereto (such Credit
Agreement, as so amended, the "Credit Agreement"; capitalized terms used but
not defined herein have the same meanings as specified in the Credit
Agreement).
Each of the undersigned confirms and agrees that (a)
notwithstanding the effectiveness of the foregoing Amendment No. 1 to the
Credit Agreement and Waiver, each Loan Document to which such Person is a
party is, and shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects, in each case as amended by Amendment
No. 1 to the Credit Agreement, and (b) the Collateral Documents to which such
Person is a party and all of the Collateral described therein do, and shall
continue to, secure the payment of all of the Secured Obligations and the
Guaranteed Obligations, respectively (in each case, as defined therein).
MADISON RIVER TELEPHONE COMPANY LLC
MADISON RIVER COMMUNICATIONS, LLC
MADISON RIVER FINANCE CORP.
MADISON RIVER HOLDINGS CORP.
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer