Exhibit 10.12
EXECUTION COPY
THIRD AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Agreement") dated as of the 19th day of December, 2001 (the "Agreement"), by
and among iPCS WIRELESS, INC. (the "Borrower"), a Delaware corporation, iPCS,
INC., ("Holdings"), a Delaware corporation, iPCS EQUIPMENT, INC.
("Equipmentco"), a Delaware corporation (collectively with the Borrower and
Holdings, the "Loan Parties"), the Lenders (as defined in the Credit Agreement
defined below), and TORONTO DOMINION (TEXAS), INC., as administrative agent (the
"Administrative Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Loan Parties, the Lenders and the Administrative Agent are
parties to that certain Amended and Restated Credit Agreement dated as of July
12, 2000, as amended by that certain First Amendment to Amended and Restated
Credit Agreement and Consent dated as of February 23, 2001, and as further
amended by that certain Second Amendment to Amended and Restated Credit
Agreement and Consent dated as of September 28, 2001 (the "Credit Agreement");
WHEREAS, the Borrower has requested that the Lenders, and the Lenders have
agreed to, subject to the terms hereof, amend the Credit Agreement as more fully
set forth herein; and
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 and not defined herein
shall have the meanings ascribed thereto in the Credit Agreement, and further
agree as follows:
1. Amendment to Section 1.3. Section 1.3, Accounting Terms and
Determinations, of the Credit Agreement, is hereby amended by deleting
subsection (c) in its entirety and by substituting in lieu thereof the
following:
"(c) To enable the ready and consistent determination of compliance
with the covenants set forth in this Agreement, neither the Borrower nor
Holdings will change the last day of its fiscal year from September 30 or
the last days of its first three fiscal quarters in each of its fiscal
years from December 31, March 31 and June 30, respectively."
2. No Other Amendment or Waiver. Notwithstanding the agreement of the
Lenders to the terms and provisions of this Agreement, the Loan Parties
acknowledge and expressly agree that this Agreement is limited to the extent
expressly set forth herein and shall not constitute a modification of the Credit
Agreement or any other Loan Documents or a course of dealing at variance with
the terms of the Credit Agreement or any other Loan Documents (other than as
expressly set forth above) so as to require further notice by the Administrative
Agent or the Lenders, or any of them, of its or their intent to require strict
adherence to the terms of the Credit Agreement and the other Loan Documents in
the future. All of the terms, conditions, provisions and covenants of the Credit
Agreement and the other Loan Documents shall remain unaltered and in full force
and effect except as expressly modified by this Agreement. The Credit Agreement
and each other Loan Document shall be deemed modified hereby solely to the
extent necessary to effect the waivers and amendments contemplated hereby.
3. Representations and Warranties. The Loan Parties hereby represent and warrant
in favor of the Administrative Agent and each Lender as follows:
(a) Each of the Loan Parties has the corporate power and authority (i)
to enter into this Agreement and (ii) to do all other acts and things as
are required or contemplated hereunder to be done, observed and performed
by them;
(b) This Agreement has been duly and validly executed and delivered by
each of the Loan Parties that is a party thereto, and such Agreement
constitutes the legal, valid and binding obligations of such Persons,
enforceable against each such Person in accordance with their respective
terms, except as limited by bankruptcy, insolvency or other laws of general
application relating to the enforcement of creditors' rights and general
principles of equity.
(c) The execution and delivery of this Agreement and the performance
by the Loan Parties under the Credit Agreement and the other Loan Documents
to which each is a party, as amended hereby, do not and will not require
the consent or approval of any regulatory authority or governmental
authority or agency having jurisdiction over the Loan Parties or any of
their Subsidiaries which has not already been obtained, nor is in
contravention of or in conflict with the articles of incorporation, by-laws
or partnership agreements of the Loan Parties or any of their Subsidiaries,
or any provision of any statute, judgment, order, or material indenture,
instrument, agreement, or undertaking to which Loan Parties or any of their
Subsidiaries is a party or by which any of their respective assets or
properties is or may become bound; and
(d) The representations and warranties contained in Article 7 of the
Credit Agreement and contained in the other Loan Documents remain true and
correct as of the date hereof, both before and after giving effect to this
Agreement, except to the extent previously fulfilled in accordance with the
terms of the Credit Agreement or such other Loan Document, as applicable,
or to the extent relating specifically to the earlier date. No Default now
exists or will be caused hereby.
4. Conditions Precedent: Effective Date. This Agreement shall be effective
as of the Agreement Date subject to satisfaction of each of the following
conditions precedent:
(a) all of the representations and warranties of the Borrower under
Section 3 hereof which are made as of the date hereof, being true and
correct in all material respects; and
(b) receipt by the Administrative Agent of counterparts hereof
executed by the Required Lenders and each of the Loan Parties.
5. Guarantor Acknowledgment.
(a) Each of Holdings and Equipmentco has guarantied the Obligations.
Holdings and Equipmentco are collectively referred to herein as the
"Guarantors", and the Guaranty executed by each Guarantor are collectively
referred to herein as the "Guaranties".
(b) Each Guarantor hereby acknowledges that it has reviewed the terms
and provisions of the Credit Agreement and this Agreement. Each Guarantor
hereby confirms that the Guaranty to which it is a party or otherwise bound
will continue to guarantee, as the case may be, to the fullest extent
possible in accordance with such Guaranty the payment and performance of
all "Obligations" under each of the Guaranties, as the case may be (in each
case as such terms are defined in the applicable Guaranty), including
without limitation the payment and performance of all such "Obligations"
under each of the Guaranties, as the case may be, in respect of the
Obligations of the Borrower now or hereafter existing under or in respect
of the Credit Agreement and the Notes defined therein.
(c) Each Guarantor acknowledges and agrees that any of the Guaranties
to which it is a party or otherwise bound shall continue in full force and
effect and that all of its obligations thereunder shall be valid and
enforceable and shall not be impaired or limited by the execution or
effectiveness of this Agreement. Each Guarantor represents and warrants
that all representations and warranties contained in the Credit Agreement,
this Agreement and the Guaranty to which it is a party or otherwise bound
are true, correct and complete in all material respects on and as of the
date hereof to the same extent as though made on and as of that date,
except to the extent such representations and warranties specifically
relate to an earlier date, in which case they were true, correct and
complete in all material respects on and as of such earlier date.
(d) Each Guarantor acknowledges and agrees that (i) notwithstanding
the conditions to effectiveness set forth in this Agreement, such Guarantor
is not required by the terms of the Credit Agreement or any other Loan
Document to consent to the amendments of the Credit Agreement effected
pursuant to this Agreement and (ii) nothing in the Credit Agreement, this
Agreement or any other Loan Document shall be deemed to require the consent
of such Guarantor to any future amendments to the Credit Agreement.
6. Counterparts. This Agreement maybe executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute one and the same instrument.
7. Loan Documents. Each reference in the Credit Agreement or any other Loan
Document to the term "Credit Agreement" shall hereafter mean and refer to the
Credit Agreement as amended hereby and as the same may hereafter be amended.
8. Governing Law. This Agreement shall be construed in accordance with and
governed by the internal laws of the State of New York, applicable to agreements
made and to be performed in New York.
9. Severability. Any provision of this Agreement 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed under seal by their duly authorized officers, all as of
the day and year first above written.
BORROWER: iPCS WIRELESS, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
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Title: Chief Financial Officer
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HOLDINGS: iPCS, INC., a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
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Title: Chief Financial Officer
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EQUIPMENTCO: iPCS EQUIPMENT, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
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Title: Chief Financial Officer
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ADMINISTRATIVE AGENT
AND LENDERS: TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent and as a Lender
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Vice President
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GE CAPITAL CORPORATION, as a Lender
By:
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Name:
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Title:
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THE BANK OF NOVA SOCTIA, as a Lender
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Authorized Signatory
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BANK OF TOKYO-MITSUBISHI TRUST COMPANY, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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CITY NATIONAL BANK, as a Lender
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
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Title: Vice President
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FORTIS CAPITAL CORP., as a Lender
By: /s/ Xxxx X. XxXxxxxxx
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Name: Xxxx X. XxXxxxxxx
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Title: Managing Director
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By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: Assistant Vice President
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IBM CREDIT CORPORATION, as a Lender
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Manager of Credit
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NATIONAL CITY BANK, as a Lender
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
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Title: SVP
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PNC BANK, NATIONAL ASSOCIATION, as a Lender
By:
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Name:
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Title:
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