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Exhibit 10.26.10
CERTAIN MATERIAL (INDICATED BY AN ASTERISK) HAS BEEN OMITTED FROM THIS DOCUMENT
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
FIRST AMENDMENT dated as of November 24, 1999 (this
"Amendment"), to the Credit Agreement (the "Credit
Agreement") dated as of September 20, 1999, among
Cricket Communications, Inc. ("Holdings"), Cricket
Wireless Communications, Inc. (the "Borrower"), and
Lucent Technologies, Inc., as administrative agent.
Capitalized terms used herein and not defined herein
shall have the meanings assigned to such terms in the
Credit Agreement.
WHEREAS the Borrower has requested that certain provisions of
the Credit Agreement be amended in certain respects, and the Lenders and the
Administrative Agent are willing to amend such provisions for the limited
purposes described herein on the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, for and in consideration of the mutual
agreements contained in this Amendment and other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. Amendments. (a) The Table of Contents to the Credit
Agreement is hereby amended by inserting "Schedule 1.01(a) -- Airgate Licenses"
immediately before "Schedule 2.01".
(b) The Credit Agreement is hereby amended by attaching Exhibit A hereto
as Schedule 1.01(a) thereto.
(c) The preamble to the Credit Agreement is hereby amended by:
(i) deleting "CRICKET COMMUNICATIONS INC." therefrom and
substituting "CRICKET COMMUNICATIONS HOLDINGS, INC." in lieu thereof;
and
(ii) deleting "CRICKET WIRELESS COMMUNICATIONS INC." therefrom
and substituting "CRICKET COMMUNICATIONS, INC." in lieu thereof.
(d) Section 1.01 of the Credit Agreement is hereby amended by:
(i) inserting after the definition of "Agents" and before the
definition of "Alternate Base Rate" the following definition:
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"'Airgate Debt' means Permitted License Acquisition
Debt, in an amount not exceeding $7,100,000, owed to
Airgate Wireless, LLC as consideration for the licenses
listed on Schedule 1.01(a);
(ii) modifying the definition of "Borrower" by deleting
"Cricket Wireless Communications, Inc." therefrom and
substituting "Cricket Communications, Inc." in lieu thereof; and
(iii) modifying the definition of "Holdings" by deleting
"Cricket Communications, Inc." therefrom and substituting
"Cricket Communications Holdings, Inc." in lieu thereof.
(e) Paragraph (a) of Section 2.02 of the Credit Agreement is hereby
amended by inserting the following after "Availability Date)" and before "." in
the first sentence of such paragraph:
"; provided that if a Commitment is assigned by Lucent (in its capacity
as a Lender) after a receipt of a Borrowing Request in order to permit
the assignee to fund all or a portion of the Loan that otherwise would
have been funded by Lucent in connection with such Borrowing Request
(any such assigned Commitment, a "Fronting Commitment"), Lucent's
ratable share of such Borrowing shall equal (w) Lucent's ratable share
of such Borrowing calculated without giving effect to such assignment
minus (x) the amount of such Fronting Commitment, and the assignee's
ratable portion of such Borrowing shall equal the sum of (y) such
assignee's ratable share of such Borrowing calculated without giving
effect to any assignment under which such assignee was assigned a
Fronting Commitment plus (z) the amount of such Fronting Commitment".
(f) Clause (c) of Section 6.03 of the Credit Agreement is hereby deleted
and the following substituted therefor in its entirety:
"(c) The Borrower will conduct its business as an operating
company or through one or more operating Subsidiaries, which, together
with the Borrower, shall own all equipment and other assets (other than
FCC Licenses and Equipment Site Interests) used to conduct such
business."
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(g) Clause (d) of Section 6.03 of the Credit Agreement is hereby deleted
in its entirety and the following substituted therefor:
"(d) Each Subsidiary will be wholly owned by the Borrower and
will be either (i) an operating Subsidiary formed for the purpose of
conducting business in one or more geographical markets as contemplated
by paragraph (c) above or (ii) a Real Estate Subsidiary."
(h) Clause (i) of Section 6.01 of the Credit Agreement is hereby amended
by inserting the following after "* * * " and before ".":
"; provided further that for the purposes of sub-clause (ii) of this
clause (i) "Permitted License Acquisition Debt" shall not include any
portion of Airgate Debt that is repaid prior to September 20, 2000".
(i) Paragraph (b) of Section 9.04 of the Credit Agreement is hereby
amended by adding the following after "otherwise consents" and before "," in
clause (iii) of such paragraph:
"(except that this clause shall not prohibit the assignment of a
Fronting Commitment as contemplated by Section 2.02 in an amount greater
than or equal to $1,000,000)".
SECTION 2. Representations and Warranties. Holdings and the
Borrower hereby represent and warrant to the Lenders and the Administrative
Agent that (a) this Amendment has been duly authorized, executed and delivered
by Holdings and the Borrower and each of this Amendment and the Credit Agreement
as amended hereby constitutes a legal, valid and binding obligation of Holdings
and the Borrower, enforceable in accordance with its terms, (b) as of the date
hereof, and after giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing and (c) the representations and
warranties of Holdings and the Borrower contained in the Credit Agreement, other
than those expressly made as of a specific date, are true and correct in all
material respects as if made on the date hereof.
SECTION 3. Conditions to Effectiveness. This Amendment shall
become effective as of the date first set forth above only upon the occurrence
of the following conditions precedent:
[* * * Deleted pursuant to Confidential Treatment Request.]
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(a) The Administrative Agent shall have received duly executed
counterparts of this Amendment which, when taken together, bear the
signatures of all the parties hereto.
(b) The Administrative Agent and each Lender shall have received
all fees and other amounts then due and payable to it, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower in connection with
this Amendment.
SECTION 4. Applicable Law. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 5. Credit Agreement. Except as expressly amended hereby,
the Credit Agreement shall continue in full force and effect in accordance with
the provisions thereof. Any reference in the Credit Agreement, or in any
documents or instruments required thereunder or annexes or schedules thereto,
referring to the Credit Agreement shall be deemed to refer to the Credit
Agreement as amended by this Amendment.
SECTION 6. Expenses. The Borrower agrees to reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Amendment, including the fees, changes and disbursements of Cravath, Swaine &
Xxxxx, counsel for the Administrative Agent.
SECTION 7. Counterparts. This Amendment may be executed in two
or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract. Delivery of an
executed counterpart of a signature page by facsimile transmission
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shall be effective as delivery of a manually executed counterpart of this
Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first written above.
CRICKET COMMUNICATIONS
HOLDINGS, INC. (formerly known
as Cricket Communications, Inc.),
by
/s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
CRICKET COMMUNICATIONS, INC.
(formerly known as Cricket
Wireless Communications Inc.),
by
/s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
LUCENT TECHNOLOGIES, INC.,
individually and as
Administrative Agent,
by
/s/ Xxxxx X. Xxxxxxx
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Name:
Title:
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EXHIBIT A
Schedule 1.01(a)
Airgate Licenses
Market Name BTA Block
----------- --- -----
Xxxxxxxxx, XX 00 X
Xxxxxxxxxx, XX 000 X
Xxxxxxx, XX 000 X
Xxxxxxxxxx, XX 178 F
