Exhibit 10.14
EXECUTION VERSION
FIFTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
AND WAIVER
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND WAIVER
(this "Amendment") is entered into as of November 1, 2002, by and among iPCS
WIRELESS, INC., a Delaware corporation (the "Borrower"), iPCS, INC., a Delaware
corporation ("Holdings"), iPCS EQUIPMENT, INC., a Delaware corporation
("Equipmentco" and 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, as amended by that
certain Second Amendment to Amended and Restated Credit Agreement and Consent
dated as of September 28, 2001, as amended by that certain Third Amendment to
Amended and Restated Credit Agreement dated as of December 19, 2001, and as
further amended by that certain Fourth Amendment to Amended and Restated Credit
Agreement and Consent dated as of February 14, 2002 (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"); and
WHEREAS, the parties have agreed to, subject to the terms hereof, amend the
Credit Agreement as fully set forth herein;
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, as amended
hereby, and further agree, subject to the conditions precedent to this Amendment
hereinafter set forth, as follows:
1. Amendments to Section 1.1.
(a) Section 1.1 of the Credit Agreement, Definitions, is hereby amended by
adding the following new definition of Fifth Amendment Date, in appropriate
alphabetical order:
"`Fifth Amendment Date' shall mean November 1, 2002."
(b) Section 1.1 of the Credit Agreement, Definitions, is hereby further
amended by deleting the last sentence of the definition of "Tranche A
Commitment" and by substituting "As of the Fifth Amendment Date, the aggregate
principal amount of the Tranche A Commitments is $80,000,000." in lieu thereof.
2. Amendment to Section 10.12. Section 10.12 of the Credit Agreement,
Minimum Cash Balance/Availability, is hereby deleted in its entirety.
3. Amendment to Section 13.13. Section 13.13 of the Credit Agreement,
Notices, is hereby amended by deleting subsections (a) and (b) in their entirety
and by substituting the following in lieu thereof:
"(a) If to the Borrower, Holdings or Equipmentco, to it at:
"iPCS Wireless, Inc./iPCS, Inc./iPCS Equipment, Inc.
x/x XxxXxxx XXX, Xxx.
Xxxxxx Xxxxx, Xxxxx 0000
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
"with a copy to:
"AirGate PCS, Inc.
Xxxxxx Tower, Suite 1700
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
"(b) If to the Administrative Agent, to it at:
"Toronto Dominion (Texas), Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx and Xxxxx Xxxxxx
Telecopy No.: (000) 000-0000
"with a copy to:
"Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, III, Esq.
Telecopy No.: (000) 000-0000"
4. Reduction of Tranche A Commitments. The Borrower and the Lenders hereby
agree that the aggregate principal amount of the Tranche A Commitments shall be
permanently reduced by the aggregate amount of $10,000,000 to be effective as of
the Fifth Amendment Date. This reduction of the aggregate principal amount of
the Tranche A Commitments is reflected in the amendments to the Credit Agreement
set forth above. The Borrower and the Lenders hereby agree that (a) the
aggregate principal amount of the Tranche A Commitments shall be permanently
reduced to $80,000,000 as of the Fifth Amendment Date and (b) such reduction
shall be applied to reduce the Tranche A Commitments of the Lenders on a pro
rata basis.
5. Waiver. The Agents and the Lenders hereby waive (a) any Default or Event
of Default that may occur as a result of the Borrower's failure to have at least
the minimum number of Wireless Subscribers required by Section 10.5 of the
Credit Agreement as of the last day of the calendar quarter ended December 31,
2002 (the "Minimum Subscriber Default"), and (b) their rights and remedies under
the Credit Agreement and the other Loan Documents which may arise as a result of
the Minimum Subscriber Default. The waivers contained in the foregoing sentence
shall not waive any other requirement or hinder, restrict or otherwise modify
the rights and remedies of the Agents and the Lenders following the occurrence
of any other present or future Default or Event of Default (whether or not
related to the Minimum Subscriber Default) under the Credit Agreement or any
other Loan Document.
6. Confirmation of Guaranties and Security Documents. After giving effect
to this Amendment, (a) Holdings hereby acknowledges and agrees that the terms
and conditions of its Guaranty Agreement shall remain in full force and effect;
(b) Equipmentco hereby acknowledges and agrees that the terms and conditions of
its Guaranty Agreement shall remain in full force and effect; and (c) the Loan
Parties hereby acknowledge and agree that the terms and conditions of each of
the Security Documents shall remain in full force and effect.
7. No Other Amendments or Waivers. Notwithstanding the agreement of the
Lenders to the terms and provisions of this Amendment, the Loan Parties
acknowledge and expressly agree that this Amendment 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 Amendment. 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.
8. Representations and Warranties. The Loan Parties hereby represent and
warrant in favor of the Administrative Agent and each Lender that:
(a) Each of the Loan Parties has the corporate power and authority (i)
to enter into this Amendment 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 Amendment has been duly and validly executed and delivered by
each of the Loan Parties, and this Amendment constitutes the legal, valid
and binding obligations of the Loan Parties party thereto, enforceable
against each of the Loan Parties in accordance with their respective terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally and by
the application of general equitable principles;
(c) The execution and delivery of this Amendment 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;
(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
Amendment, 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; and
(e) After giving effect to this Amendment, no Default or Event of
Default shall have occurred and be continuing.
9. Conditions to Effectiveness. This Amendment shall be effective as of the
Fifth Amendment Date subject to satisfaction of each of the following conditions
precedent:
(a) All of the representations and warranties of the Loan Parties
under Section 8 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 duly
executed by the Required Lenders and each of the Loan Parties.
10. Counterparts. This Amendment may be executed in any number of separate
counterparts and by the different parties hereto on separate counterparts, each
of which shall be deemed an original and all of which, taken together, shall be
deemed to constitute one and the same instrument. In proving this Amendment in
any judicial proceedings, it shall not be necessary to produce or account for
more than one such counterpart signed by the party against whom such enforcement
is sought. Any signatures delivered by a party by facsimile transmission shall
be deemed an original signature hereto.
11. 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.
This Amendment shall be deemed to be a Loan Document for all purposes.
12. Governing Law. This Amendment 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.
13. Severability. Any provision of this Amendment 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 THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment 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/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
--------------------------------------
Title: President & CEO
-------------------------------------
HOLDINGS: iPCS, INC., a Delaware corporation
By:/s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
--------------------------------------
Title: President & CEO
-------------------------------------
EQUIPMENTCO: iPCS EQUIPMENT, INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
--------------------------------------
Title: President & CEO
-------------------------------------
ADMINISTRATIVE AGENT
AND LENDERS: TORONTO DOMINION (TEXAS), INC., as
Administrative Agent and as a Lender
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
--------------------------------------
Title: VP
-------------------------------------
GE CAPITAL CORPORATION, as a Lender
By: /s/ Xxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxxx
--------------------------------------
Title: SVP - Special Assets
-------------------------------------
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ P.A. Xxxxxxxxxxxxx
----------------------------------------
Name: P.A. Xxxxxxxxxxxxx
--------------------------------------
Title: Authorized Signatory
-------------------------------------
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as a Lender
By: /s/ Xxxxxx Moraver
----------------------------------------
Name: Xxxxxx Moraver
--------------------------------------
Title: Vice President
-------------------------------------
CITY NATIONAL BANK, as a Lender
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
FORTIS CAPITAL CORP., as a Lender
By: /s/ Xxxx X. XxXxxxxxx
----------------------------------------
Name: Xxxx X. XxXxxxxxx
--------------------------------------
Title: Managing Director
-------------------------------------
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
--------------------------------------
Title: Assistant Vice President
-------------------------------------
IBM CREDIT CORPORATION, as a Lender
By:/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------------------
Title: Manager of Credit
-------------------------------------
NATIONAL CITY BANK, as a Lender
By: /s/ Xxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxxx
--------------------------------------
Title: Senior Vice President
-------------------------------------
High Income Portfolio, Boston Management &
Research as investment advisor
By: /s/ Xxxxxxx Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
Boston Income Portfolio, Boston Management
& Research as investment advisor
By: /s/ Xxxxxxx Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
Diversified Investors High Yield Bond Fund
Boston Management & Research as investment
advisor
By: /s/ Xxxxxxx Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
