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EXHIBIT 10(f)
EXECUTION
POWERTEL, INC.
AMENDMENT NO. 3
TO THE CREDIT AGREEMENT
This AMENDMENT NO. 3 TO THE CREDIT AGREEMENT (this
"AMENDMENT") is dated as of June 26, 1997, and entered into by and among
POWERTEL PCS, INC., a Delaware corporation (formerly known as InterCel PCS
Services, Inc. and Powertel, Inc.) (the "BORROWER"), the financial institutions
listed on the signature pages hereof ("LENDERS"), and ERICSSON INC., as agent
for Lenders ("AGENT") and, for purposes of Section 5 hereof only, the other
Loan Parties listed on the signature pages hereof, and is made with reference
to that certain Credit Agreement, dated as of March 4, 1996, as amended by that
certain Amendment No. 1 to the Credit Agreement dated as of October 31, 1996
and that certain Amendment No. 2 to the Credit Agreement dated as of March 31,
1997 (as so amended, the "CREDIT AGREEMENT"), by and among the Borrower,
Lenders and Agent. Capitalized terms used herein without definition shall have
the same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, the Borrower and Lenders desire to amend the Credit
Agreement (i) to modify certain financial covenants and ratios applicable to
the Borrower and (ii) to make certain other amendments as set forth below;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENTS TO CERTAIN DEFINITIONS AND AMENDMENTS TO
SECTION 1: PROVISIONS RELATING TO DEFINED TERMS
A. References in the Credit Agreement, exhibits thereto
and any other Loan Documents (i) to "Powertel, Inc." shall be deleted and
"Powertel PSC, Inc." substituted therefor; and (ii) to "InterCel, Inc." and
"InterCel" shall be deleted and "Powertel, Inc." and "Powertel," respectively,
substituted therefor.
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B. Subsection 1.01 of the Credit Agreement is hereby
amended by adding thereto the following definitions, which shall be inserted in
proper alphabetical order:
""ATLANTA MTA" means the MTA for Atlanta, Georgia.
"INTEREST PERIOD" means a three-month period."
C. Subsection 1.01 of the Credit Agreement is hereby
further amended by deleting the definitions of "Eurodollar Rate" and "License
Subsidiaries" therefrom in their entirety and substituting the following
therefor:
"EURODOLLAR RATE" means for any Interest Period, the rate of
interest per annum equal to the rate per annum obtained by dividing
(a) the rate for deposits in U.S. dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period
(i) appearing on page 3750 of the Telerate service as of 11:00 a.m.
(London time) two (2) business days prior to the beginning of such
Interest Period; provided however that in the event such rate does not
appear on page 3750 of the Telerate service (or otherwise on such
service), such rate shall be the rate per annum equal to the rate at
which deposits in U.S. dollars are offered by the principal office of
Citibank, N.A. in London, England to prime banks in the London
interbank market at 11:00 a.m. (London time) two (2) business days
before the first day of such Interest Period (rounded upward to the
nearest 1/16th of 1%), in each case for a period equal to the Interest
Period by (b) a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage for such period.
"LICENSE SUBSIDIARY" means each of Powertel Jacksonville
Licenses, Inc., Powertel Memphis Licenses, Inc., Powertel Birmingham
Licenses, Inc., Powertel Atlanta Licenses, Inc., and any other Person
established solely for the purpose of holding the Licenses now or
hereafter acquired or owned by the Borrower and its Subsidiaries,
which Person shall be a wholly owned Subsidiary of the Borrower."
1.2 AMENDMENT TO SECTION 2.02: MAKING THE ADVANCES
Section 2.02(a) of the Credit Agreement is hereby amended by
deleting the first three sentences thereof in their entirety and substituting
the following therefor:
"Each Borrowing shall be in a minimum amount of
$5,000,000 and shall be made on notice, given not later than
11:00 A.M. (New York City time) on the third Business Day
prior to the date of the proposed Borrowing to the Agent,
which shall give to each Lender prompt notice thereof by telex
or telecopier. Each such notice of a Borrowing (a
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"Notice of Borrowing") shall be deemed a request by the
Borrower to finance the payment of an invoice or invoices
delivered by Ericsson pursuant to the Equipment Purchase
Agreement. Each Notice of Borrowing shall be by telephone,
confirmed immediately in writing, or telex or telecopier, in
substantially the form of Exhibit B hereto, specifying therein
the requested (i) date of such Borrowing, (ii) aggregate
amount of such Borrowing, and (iii) identifying the invoices
to be financed with the proceeds of such Borrowing; provided
that if the Borrower elects to pay an invoice and subsequently
finance such invoice with a Borrowing, such Borrowing must
occur within ninety days of the date of the invoice being
financed."
1.3 AMENDMENTS TO SECTION 2.04: PREPAYMENTS
A. Section 2.04(a) of the Credit Agreement is hereby
amended by deleting the last sentence thereof and substituting the
following therefor:
"Each such prepayment shall be applied to reduce the
scheduled installments due pursuant to Section 2.03 of the
Advances being prepaid (i) first in inverse order of maturity
to installments due after December 31, 2005 to the full extent
thereof and (ii) second ratably to installments due on or
before December 31, 2005."
B. Section 2.04(b) of the Credit Agreement is hereby
amended by deleting clause (iv) thereof in its entirety and amending
clause (iii) thereof to read in its entirety as follows:
"(iii) All prepayments under this Section 2.04(b) shall be
made together with accrued interest to the date of such
prepayment on the principal amount prepaid and shall be
applied to reduce the scheduled installments due pursuant to
Section 2.03 hereof in inverse order of maturity."
1.4 AMENDMENTS TO SECTION 2.05: INTEREST
A. Section 2.05(a)(i) and Section 2.05(c) of the Credit
Agreement are each hereby amended by deleting the references contained
therein to "each calendar quarter" and substituting therefor "each
Interest Period."
B. Section 2.05(d) of the Credit Agreement is hereby
deleted in its entirety and the following substituted therefor:
"(d) Compensation for Breakage or Noncommencement of
Interest Periods. The Borrower shall compensate each Lender,
upon request of that Lender (which request shall set forth the
basis for
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requesting such amounts), for all reasonable losses, expenses
and liabilities (including any interest paid by that Lender to
lenders of funds borrowed by it to make or carry its Advances
and any loss, expense or liability sustained by that Lender in
connection with the liquidation or reemployment of such funds)
which that Lender may sustain (i) if for any reason (other
than a default by that Lender) a borrowing of any Advances
bearing interest at the Eurodollar Rate does not occur on a
date specified therefor in a Notice of Borrowing or a
telephonic request for borrowing, (ii) if any prepayment
(including prepayments pursuant to Section 2.04(b)) or other
principal payment of any Advance bearing interest at the
Eurodollar Rate occurs on a date prior to the last day of an
Interest Period applicable to that Advance, (iii) if any
prepayment of an Advance bearing interest at the Eurodollar
Rate is not made on any date specified in a notice of
prepayment given by the Borrower, or (iv) as a consequence of
any other default by the Borrower in the repayment of any
Advances bearing interest at the Eurodollar Rate when required
by the terms of this Agreement."
1.5 AMENDMENTS TO SECTION 4: THE BORROWER'S
REPRESENTATIONS AND WARRANTIES
A. Section 4.01(h) of the Credit Agreement is hereby
amended by deleting the parenthetical "(other than the Disclosed
Litigation)" therefrom.
B. Subsection 4.01(l) is hereby amended to read in its
entirety as follows:
"(l) The operations and properties of each Loan
Party and each of its Subsidiaries comply in all material
respects with all applicable Environmental Laws and no
circumstances exist, no event or condition has occurred and is
continuing with respect to the Borrower or any of its
Subsidiaries relating to compliance with any Environmental
Laws or any release of hazardous materials which, individually
or in the aggregate, has had or will have a Material Adverse
Effect, and no circumstances exist that could cause any
property of any Loan Party or any Subsidiary thereof to be
subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law except where the
failure to so comply would not have a Material Adverse
Effect."
1.6 AMENDMENT TO SECTION 5.01: AFFIRMATIVE COVENANTS
Section 5.01 of the Credit Agreement is hereby amended by
adding the following Section 5.01(m) thereto:
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"(m) License Subsidiaries. All Licenses now
or hereafter owned by the Borrower and its
Subsidiaries shall be owned and held by License
Subsidiaries, which License Subsidiaries shall (i) at
all times be wholly owned Subsidiaries of the
Borrower or a wholly owned Subsidiary of the
Borrower, (ii) shall have executed and delivered a
Subsidiary Guaranty, and (iii) and all of the
outstanding capital stock of such License
Subsidiaries shall be pledged to the Agent to secure
the Obligations hereunder. License Subsidiaries
shall not engage in any business other than the
holding of the Licenses and the performance of their
respective obligations under their respective
Subsidiary Guaranties. License Subsidiaries shall
not own any assets other than the Licenses."
1.7 AMENDMENTS TO SECTION 5.03: REPORTING REQUIREMENTS
A. Section 5.03(b) is hereby amended to delete
the references to "Section 6.01(o) through 6.01(r)" contained
therein and to substitute therefor "Section 6.01(o) through
6.01(v)."
B. Section 5.03(c) is hereby amended to delete
the references contained therein to "Section 6.01(o) through
6.01(r)" and "Section 6.01(o) through 6.01(p)" and to
substitute therefor "Sections 6.01(o) through 6.01(v)."
1.8 AMENDMENTS TO SECTION 6.01. EVENTS OF DEFAULT
A. Section 6.01(p) of the Credit Agreement is
hereby deleted in its entirety and the following is
substituted therefor: "[Intentionally left blank]."
B. Section 6.01(r) of the Credit Agreement is
hereby deleted in its entirety and the following is
substituted therefor: "[Intentionally left blank]."
1.9 AMENDMENT TO SECTION 8.01
Section 8.01 of the Credit Agreement is hereby amended by
deleting the phrase "and other Debt owing to any other Person" at the end of
clause (iii) thereof.
1.10 MODIFICATION OF SCHEDULES
(a) Schedule I to the Credit Agreement is hereby
deleted in its entirety and replaced with a new Schedule I in
the form of Annex A hereto.
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(b) Schedule 6.01(o) to the Credit Agreement is
hereby deleted in its entirety and replaced with a new
Schedule 6.01(o) in the form of Annex B hereto.
(c) Schedule 6.01(p) to the Credit Agreement is
hereby deleted in its entirety.
(d) Schedule 6.01(q) to the Credit Agreement is
hereby deleted in its entirety and replaced with a new
Schedule 6.01(q) in the form of Annex C to this Amendment.
(e) Schedule 6.01(r) to the Credit Agreement is
hereby deleted in its entirety.
(f) Schedule 6.01(s) to the Credit Agreement is
hereby deleted in its entirety and replaced with a new
Schedule 6.01(s) in the form of Annex D to this Amendment.
(g) Schedule 6.01(t) is hereby deleted in its
entirety and replaced with a new Schedule 6.01(t) in the form
attached as Annex E to this Amendment.
(h) Schedule 6.01(u) to the Credit Agreement is
hereby deleted in its entirety and replaced with a new
Schedule 6.01(u) in the form of Annex F to this Amendment.
(i) Schedule 6.01(v) to the Credit Agreement is
hereby deleted in its entirety and replaced with a new
Schedule 6.01(v) in the form of Annex G to this Amendment.
1.11 MODIFICATION OF EXHIBIT
Exhibit A to the Credit Agreement is hereby deleted in its
entirety and replaced with a new Exhibit A in the form of Annex H to this
Amendment.
SECTION 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon
the satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "THIRD
AMENDMENT EFFECTIVE DATE"):
A. On or before the Third Amendment Effective Date, the
Borrower and the Loan Parties shall deliver to Lenders (or to Agent for Lenders
with sufficient originally executed copies for each Lender and its counsel)
fully executed copies of this Amendment.
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B. Lenders and their respective counsel shall have
received originally executed copies of a favorable written opinion of in-house
counsel for the Borrower, in form and substance reasonably satisfactory to
Agent and its counsel, dated as of the Third Amendment Effective Date with
respect to (i) the due incorporation, good standing, and corporate power and
authority of the Borrower and Powertel, Inc. (formerly InterCel, Inc.) and (ii)
the due authorization, execution and delivery and enforceability of the Amended
Agreement (as hereinafter defined) by the Borrower and the Guaranty Amendment
(as hereinafter defined) by Powertel, Inc. and as to such other matters as
Agent acting on behalf of Lenders may reasonably request (including without
limitation that such amendments do not conflict with the terms of any material
agreements of the Borrower or Powertel, Inc.).
C. On or before the Third Amendment Effective Date,
Powertel, Inc. shall have delivered an amendment to the Parent Guaranty (the
"GUARANTY AMENDMENT") in substantially in the form of Annex I to this
Amendment.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE
BORROWER
In order to induce Lenders to enter into this Amendment and to
amend the Credit Agreement in the manner provided herein, the Borrower
represents and warrants to each Lender that the following statements are true,
correct and complete:
(a) The execution, delivery and performance by the
Borrower of this Amendment and the Loan Documents, as amended hereby, to which
it is a party are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action and do not (i) contravene the
Borrower's charter or bylaws, (ii) violate any law, rule or regulation
(including, without limitation, Regulation X of the Board of Governors of the
Federal Reserve System), or any order, writ, judgment, injunction, decree,
determination or award, binding on or affecting the Borrower or any of its
Subsidiaries or any of their properties, the effect of which would have a
Material Adverse Effect, or (iii) conflict with or result in the breach of, or
constitute a default under, any contract, loan agreement, indenture, mortgage,
deed of trust, lease or other instrument binding on or affecting the Borrower,
or any of its Subsidiaries or any of their properties except where such
conflict would not have a Material Adverse Effect.
(b) No authorization or approval or other action by, and
no notice to or filing with, any governmental authority or regulatory body or
any other third party is required for the due execution, delivery or
performance by the Borrower of this Amendment or any of the Loan Documents, as
amended hereby, to which it is a party.
(c) This Amendment has been duly executed and delivered
by the Borrower. This Amendment and each of the other Loan Documents, as
amended
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hereby, to which the Borrower is a party are legal, valid and binding
obligations of the Borrower enforceable against the Borrower in accordance with
their respective terms.
(d) Except as disclosed on Annex J hereto, the
representations and warranties contained in Article IV of the Credit Agreement
are and will be true, correct and complete in all material respects on and as
of the Third Amendment Effective Date 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.
(e) No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute a Default.
SECTION 5. ACKNOWLEDGEMENT AND CONSENT BY CREDIT SUPPORT
PARTIES.
Powertel, Inc. is a party to the Parent Guaranty, each
Operating Subsidiary is party to a Subsidiary Guaranty and a Subsidiary
Security Agreement, and each License Subsidiary is party to a Subsidiary
Guaranty. Powertel, Inc., the Operating Subsidiaries and the License
Subsidiaries are referred to herein collectively as the "CREDIT SUPPORT
PARTIES" and the Parent Guaranty, the Subsidiary Guaranties and the Subsidiary
Security Agreements are herein collectively referred to as the "CREDIT SUPPORT
DOCUMENTS."
Each Credit Support Party hereby acknowledges that it has
reviewed the terms and provisions of the Credit Agreement and this Amendment
and consents to the Amendment of the Credit Agreement effected pursuant to this
Amendment. Each Credit Support Party hereby confirms that each Credit Support
Document to which it is a party or otherwise bound and all Collateral
encumbered thereby will continue to guaranty or secure, as the case may be, to
the fullest extent possible the payment and performance of all the "Guaranteed
Obligations" and "Secured Obligations," as the case may be (in each case as
such terms are defined in the applicable Credit Support Document), including
without limitation the Obligations of the Borrower now or hereafter existing
under or in respect of the Amended Agreement (as hereinafter defined) and the
Notes defined therein.
Each Credit Support Party acknowledges and agrees that any of
the Credit Support Documents 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 Amendment. Each Credit Support Party
acknowledges and agrees that (i) notwithstanding the conditions to
effectiveness set forth in this Amendment, such
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Credit Support Party 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 Amendment and (ii) nothing in the Credit Agreement,
this Amendment or any other Loan Document should be deemed to require the
consent of such Credit Support Party to any future amendments to the Credit
Agreement.
SECTION 6. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND
THE OTHER LOAN DOCUMENTS.
(i) On and after the Third Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Credit
Agreement, and each reference in the other Loan 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 amended by this Amendment (the "AMENDED
AGREEMENT").
(ii) Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full
force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, constitute a
waiver of any provision of, or operate as a waiver of any right, power
or remedy of Agent or any Lender under, the Credit Agreement or any of
the other Loan Documents.
B. FEES AND EXPENSES. The Borrower agrees to pay on
demand all costs and expenses of the Agent in connection with the preparation,
execution, and delivery and administration, modification and amendment of this
Amendment and the other instruments and documents to be delivered hereunder
(including, without limitation, the reasonable fees and expenses of counsel for
the Agent).
C. HEADINGS. Section and subsection headings in this
Amendment are included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose or be given any
substantive effect.
D. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
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E. COUNTERPARTS; EFFECTIVENESS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment (other than the
provisions of Section 1 hereof, the effectiveness of which is governed by
Section 2 hereof) shall become effective upon the execution of a counterpart
hereof by the Borrower, Required Lenders and each of the Credit Support Parties
and receipt by the Borrower and Agent of written or telephonic notification of
such execution and authorization of delivery thereof.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
POWERTEL PCS, INC.
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Title: Executive Vice President
------------------------------------
and Chief Financial Officer
ERICSSON INC., as Agent
By: /s/ Xxxxxx Xxxxx
---------------------------------------
Title: Vice President - Finance
------------------------------------
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
as a Lender
/s/ Xxxx X. Xxxxx
-------------------------------------------
Authorized Signatory
For purposes of Section 5 of this Amendment
only:
POWERTEL, INC.
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Title: Executive Vice President
------------------------------------
and Chief Financial Officer
POWERTEL/JACKSONVILLE, INC.
POWERTEL/MEMPHIS, INC.
POWERTEL/BIRMINGHAM, INC.
POWERTEL/ATLANTA, INC.
POWERTEL/JACKSONVILLE LICENSES, INC.
POWERTEL/MEMPHIS LICENSES, INC.
POWERTEL/BIRMINGHAM LICENSES, INC.
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POWERTEL/ATLANTA LICENSES, INC.
By: /s/ Xxxxx Xxxxx
-----------------------------------
Xxxxx Xxxxx
President of each of the foregoing
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ANNEX A
SCHEDULE I
Commitments
Name of Lender Commitment
-------------- ----------
Xxxxxxx Sachs Credit Partners L.P. $165,000,000
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ANNEX B
SCHEDULE 6.01(O)
Minimum PCS Revenue
Fiscal Quarter Ended Minimum PCS Revenue
-------------------- -------------------
June 30, 1997 $8,400,000
September 30, 1997 $11,400,000
December 31, 1997 $15,000,000
March 31, 1998 $21,000,000
June 30, 1998 $26,900,000
September 30, 1998 $32,000,000
December 31, 1998 $37,000,000
March 31, 1999 $35,100,000
June 30, 1999 $54,700,000
September 30, 1999 $59,600,000
December 31, 1999 $67,000,000
March 31, 2000 $72,000,000
June 30, 2000 $85,500,000
September 30, 2000 $90,900,000
December 31, 2000 $99,000,000
March 31, 2001 $101,300,000
June 30, 2001 $108,900,000
September 30, 2001 $115,500,000
December 31, 2001 $126,000,000
March 31, 2002 $123,800,000
June 30, 2002 $123,800,000
September 30, 2002 $131,500,000
December 31, 2002 $144,000,000
March 31, 2003 $137,600,000
June 30, 2003 $141,500,000
September 30, 2003 $151,300,000
December 31, 2003 $164,900,000
March 31, 2004 $152,500,000
June 30, 2004 $155,500,000
September 30, 2004 $166,300,000
December 31, 2004 $181,100,000
March 31, 2005 $167,300,000
June 30, 2005 $168,300,000
September 30, 2005 $179,200,000
December 31, 2005 $195,000,000
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ANNEX C
SCHEDULE 6.01(Q)
Net Worth
FISCAL QUARTER ENDED NET WORTH MINIMUM
-------------------- -----------------
June 30, 1997 $ 346,000,000
September 30, 1997 $ 305,000,000
December 31, 1997 $ 261,000,000
March 31, 1998 $ 208,500,000
June 30, 1998 $ 156,000,000
September 30, 1998 $ 103,500,000
December 31, 1998 $ 51,000,000
March 31, 1999 $ (12,750,000)
June 30, 1999 $ (76,500,000)
September 30, 1999 $(140,250,000)
December 31, 1999 $(204,000,000)
March 31, 2000 $(247,500,000)
June 30, 2000 $(291,000,000)
September 30, 2000 $(334,500,000)
December 31, 2000 $(378,000,000)
March 31, 2001 $(397,000,000)
June 30, 2001 $(416,000,000)
September 30, 2001 $(435,000,000)
December 31, 2001 $(454,000,000)
March 31, 2002 $(451,500,000)
June 30, 2002 $(449,000,000)
September 30, 2002 $(446,500,000)
December 31, 2002 $(444,000,000)
March 31, 2003 $(422,500,000)
June 30, 2003 $(401,000,000)
September 30, 2003 $(379,500,000)
December 31, 2003 $(358,000,000)
March 31, 2004 $(317,500,000)
June 30, 2004 $(277,000,000)
September 30, 2004 $(236,500,000)
December 31, 2004 $(196,000,000)
March 31, 2005 $(136,000,000)
June 30, 2005 $ (76,000,000)
September 30, 2005 $ (16,000,000)
December 31, 2005 $ 44,000,000
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ANNEX D
SCHEDULE 6.01(S)
Subscribers
Fiscal Quarter Ended Number of Subscribers
-------------------- ---------------------
June 30, 1997 38,000
September 30, 1997 54,500
December 31, 1997 71,000
March 31, 1998 95,000
June 30, 1998 120,000
September 30, 1998 150,000
December 31, 1998 188,000
March 31, 1999 218,000
June 30, 1999 260,000
September 30, 1999 305,000
December 31, 1999 374,000
March 31, 2000 425,000
June 30, 2000 475,000
September 30, 2000 525,000
December 31, 2000 600,000
March 31, 2001 600,000
June 30, 2001 600,000
September 30, 2001 600,000
December 31, 2001 600,000
March 31, 2002 600,000
June 30, 2002 600,000
September 30, 2002 600,000
December 31, 2002 600,000
March 31, 2003 600,000
June 30, 2003 600,000
September 30, 2003 600,000
December 31, 2003 600,000
March 31, 2004 600,000
June 30, 2004 600,000
September 30, 2004 600,000
December 31, 2004 600,000
March 31, 2005 600,000
June 30, 2005 600,000
September 30, 2005 600,000
December 31, 2005 600,000
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ANNEX E
SCHEDULE 6.01(T)
Ratio of Consolidated EBITDA to Consolidated Debt Service
Fiscal Quarter Ended Ratio
-------------------- -----
March 31, 1997 N/A
June 30, 1997 N/A
September 30, 1997 N/A
December 31, 1997 N/A
March 31, 1998 N/A
June 30, 1998 N/A
September 30, 1998 N/A
December 31, 1998 N/A
March 31, 1999 N/A
June 30, 1999 N/A
September 30, 1999 N/A
December 31, 1999 N/A
March 31, 2000 N/A
June 30, 2000 N/A
September 30, 2000 N/A
December 31, 2000 N/A
March 31, 2001 N/A
June 30, 2001 N/A
September 30, 2001 N/A
December 31, 2001 0.90:1
March 31, 2002 0.90:1
June 30, 2002 1.00:1
September 30, 2002 1.00:1
December 31, 2002 1.00:1
March 31, 2003 1.10:1
June 30, 2003 1.15:1
September 30, 2003 1.20:1
December 31, 2003 1.25:1
March 31, 2004 1.25:1
June 30, 2004 1.25:1
September 30, 2004 1.25:1
December 31, 2004 1.25:1
March 31, 2005 N/A
June 30, 2005 N/A
September 30, 2005 N/A
December 31, 2005 N/A
X-0
00
XXXXX X
XXXXXXXX 0.00(X)
Ratio of Consolidated Total Debt to Annualized Consolidated EBITDA.
Fiscal Quarter Ended Ratio
-------------------- -----
March 31, 1997 N/A
June 30, 1997 N/A
September 30, 1997 N/A
December 31, 1997 N/A
March 31, 1998 N/A
June 30, 1998 N/A
September 30, 1998 N/A
December 31, 1998 N/A
March 31, 1999 N/A
June 30, 1999 N/A
September 30, 1999 N/A
December 31, 1999 N/A
March 31, 2000 N/A
June 30, 2000 N/A
September 30, 2000 N/A
December 31, 2000 16.00:1
March 31, 2001 14.00:1
June 30, 2001 12.00:1
September 30, 2001 10.00:1
December 31, 2001 8.00:1
March 31, 2002 7.50:1
June 30, 2002 7.00:1
September 30, 2002 6.50:1
December 31, 2002 6.00:1
March 31, 2003 5.75:1
June 30, 2003 5.50:1
September 30, 2003 5.25:1
December 31, 2003 5.00:1
March 31, 2004 4.75:1
June 30, 2004 4.50:1
September 30, 2004 4.25:1
December 31, 2004 4.00:1
March 31, 2005 4.00:1
June 30, 2005 4.00:1
September 30, 2005 4.00:1
December 31, 2005 4.00:1
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ANNEX G
SCHEDULE 6.01(V)
Maximum Aggregate Capital Expenditures
Year Total
---- -----
1997 N/A
1998 N/A
1999 $796,000,000
2000 $857,000,000
2001 $910,000,000
2002 $982,000,000
2003 $1,075,000,000
2004 $1,115,000,000
2005 $1,180,000,000
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ANNEX H
EXHIBIT A
[FORM OF PROMISSORY NOTE]
PROMISSORY NOTE
$___________ Dated: _________
FOR VALUE RECEIVED, the undersigned, POWERTEL PCS, INC., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_____________ (the "Lender") for the account of its Lending Office (as defined
in the Credit Agreement referred to below) the aggregate principal amount of
the Advances (as defined in the Credit Agreement referenced below) owing to the
Lender by the Borrower pursuant to the Credit Agreement dated as of March 4,
1996 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"; terms defined therein being used herein as therein defined)
among the Borrower, the Lender and certain other lenders party thereto, and
Ericsson Inc. as Agent for the Lenders, on the dates and in the amounts
specified in the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal
amount of each Advance from the date of such Advance until such principal
amount is paid in full, at such interest rates, and payable at such times, as
are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Ericsson Inc., as Agent, at 000 Xxxx Xxxxxxxx Xxxx,
Xxxxxxxxxx Xxxxx 00000, in same day funds. Each Advance owing to the Lender by
the Borrower and the maturity thereof, and all payments made on account of
principal thereof, shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto, which is part of this Promissory
Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Advances by the Lender to
the Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each Advance being evidenced by this Promissory
Note, and (ii) contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon
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the terms and conditions therein specified. The obligations of the Borrower
under this Promissory Note, and the obligations of the other Loan Parties under
the Loan Documents, are secured by the Collateral as provided in the Loan
Documents.
POWERTEL PCS, INC.
By __________________________
Title:
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ADVANCES AND PAYMENTS OF PRINCIPAL
AMOUNT OF UNPAID
AMOUNT OF PRINCIPAL PAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
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23
ANNEX I
[FORM OF AMENDMENT TO PARENT GUARANTY]
POWERTEL, INC.
FIRST AMENDMENT TO GUARANTY
This FIRST AMENDMENT TO PARENT GUARANTY (this "AMENDMENT") is
dated as of June 26, 1997, and entered into by POWERTEL, INC. (formerly
InterCel, Inc.) (the "GUARANTOR") in favor of Secured Parties (as defined in
the Credit Agreement referred to below) and is made with reference to that
certain Guaranty, dated October 31, 1996, made by the Guarantor in favor of the
Secured Parties, as defined in that certain Credit Agreement, dated as of March
4, 1996, by and among POWERTEL PCS, INC. (formerly known as InterCel PCS
Services, Inc. and Powertel, Inc.), the Lenders party thereto and Ericsson
Inc., as Agent for the Lenders (said Credit Agreement as it may be amended,
modified or supplemented from time to time, the "CREDIT AGREEMENT").
Capitalized terms used herein without definition shall have the meanings given
such terms in the Guaranty or Credit Agreement as applicable.
RECITALS
WHEREAS, the Lenders have agreed to make certain amendments
requested by the Borrower to the Credit Agreement; and
WHEREAS, it is a condition precedent to the effectiveness of
such amendments that the Guarantor execute and deliver this Amendment to the
Guaranty;
NOW, THEREFORE, in consideration of the premises and in order
to induce the Lenders to enter into the amendments to the Credit Agreement, the
Guarantor hereby agrees as follows:
SECTION 1. AMENDMENTS TO THE GUARANTY
A. Section 6(a) of the Guaranty is hereby amended by
adding the following proviso at the end thereof:
"provided, however, for purposes of compliance with this
Section 6(a), (i) the reference to "Closing Date" contained in
Clause (C)(2) of Section 4.04 of said Indenture shall be
deemed to mean the effective date of that certain
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Amendment No. 3 to the Credit Agreement, dated as of June 26,
1997, by and among the Borrower, Secured Parties, Agent and
the other Loan Parties, and (ii) "Restricted Payments" as
defined in Section 4.04 of said Indenture shall be deemed to
include any voluntary or optional principal payment, or
voluntary or optional redemption, repurchase, defeasance, or
other acquisition or retirement for value which is not
required to be made pursuant to the terms of said Indenture
(which shall be deemed to include without limitation any offer
to purchase said notes upon a sale of assets), of any of the
12% Senior Discount Notes due 2006 (whether issued pursuant to
the Indenture dated February 7, 1996 or April 19, 1996) or the
11-1/8% Senior Notes due 2007 of the Guarantor.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE
GUARANTOR
The Guarantor represents and warrants to each Secured Party
that the following statements are true, correct and complete:
(a) The execution, delivery and performance by the
Guarantor of this Amendment and the Guaranty, as amended hereby, are within the
Guarantor's corporate power, have been duly authorized by all necessary
corporate action and do not (i) contravene the Guarantor's charter or bylaws
(ii) violate any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award, the effect of which would have a Material
Adverse Effect, (iii) conflict with or result in a breach of, or constitute a
default under, any contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument binding on or affecting the Guarantor, any of
its Subsidiaries or any of their respective properties, the effect of which
would have a Material Adverse Effect or (iv) except for the Liens created under
the Loan Documents, result in or require the creation or imposition of any Lien
upon or with respect to any of the properties of the Guarantor or any of its
Subsidiaries.
(b) No authorization or approval or other action by, and
no notice to or filing with, any governmental authority or regulatory body or
any third party is required for the execution, delivery, recordation, filing or
performance by the Guarantor of this Amendment or the Guaranty, as amended
hereby.
(c) This Amendment has been duly executed and delivered by
the Guarantor. This Amendment and the Guaranty, as amended hereby, are the
legal, valid and binding obligations of the Guarantor enforceable against the
Guarantor in accordance with their respective terms.
(d) The representations and warranties contained in
Section 5 of the Guaranty are true, correct and complete in all material
respects as of the date hereof to the same extent as though made on and as of
such date, except to the extent such
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representations and warranties specifically related to an earlier date, in
which case they were true, correct and complete in all material respects on and
as of such earlier date.
SECTION 3. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE GUARANTY AND THE OTHER
LOAN DOCUMENTS. On and after the date hereof, each reference to the Guaranty
contained in any of the Loan Documents shall mean and be a reference to the
Guaranty as amended by this Amendment. Except as specifically amended by this
Amendment, the Guaranty shall remain in full force and effect and is hereby
ratified and confirmed by the Guarantor.
B. APPLICABLE LAW. This Amendment and the rights and
obligations of the parties hereunder shall be governed by, and shall be
construed and enforced in accordance with, the internal laws of the State of
New York (including without limitation Section 5-1401 of the General
Obligations Law of the State of New York), without regard to conflicts of law
principles.
IN WITNESS WHEREOF, the Guarantor has caused this Amendment to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
POWERTEL, INC.
By: __________________________
Title: ________________________
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ANNEX J
EXCEPTION TO SECTION 3(D)
Powertel/Birmingham, Inc. ("Powertel/Birmingham") has been
served with a complaint filed on April 4, 1997 by American Page One, Inc d/b/a
American Mobile Wireless Communications ("Plaintiff") in the Circuit Court of
Macon County, Alabama. Plaintiff claims that Powertel/Birmingham has breached
its agency contract and has committed other torts with respect to Plaintiff by
failing to accurately track Plaintiff's account with respect to inventory
invoicing and commissions, failing to pay timely commissions, failing to
provide services to Plaintiff's customers in a competent and accurate manner,
billing Plaintiff's customers inaccurately and in excessive amounts, and making
false representations with regard to its customer service and operational
capabilities. Plaintiff is seeking unspecified damages. The Borrower believes
the Plaintiff's claims are without merit and intends to defend itself
vigorously. The Borrower does not believe that this lawsuit is reasonably
likely to be decided adversely to the Borrower or Powertel/Birmingham.
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