EXHIBIT 10.37
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FIRST AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT AND CONSENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND CONSENT
(this "Agreement") dated as of the 23/rd/ day of February, 2001 (the "Agreement
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Date"), by and among iPCS WIRELESS, INC. (the "Borrower"), a Delaware
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corporation, iPCS, INC., ("Holdings"), a Delaware corporation, iPCS EQUIPMENT,
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INC. ("Equipmentco"), a Delaware corporation (collectively with the Borrower and
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Holdings, the "Loan Parties"), the Lenders (as defined in the Credit Agreement
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defined below), and TORONTO DOMINION (TEXAS), INC., as administrative agent (the
"Administrative Agent").
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W I T N E S W E T H:
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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 (the "Credit Agreement");
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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
WHEREAS, the Borrower has requested that the Lenders, and the Lenders have
agreed to, subject to the terms hereof, consent to the acquisition by the
Borrower of the assets relating to BTA Nos. 70 and 205 (the "Option Territory
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Acquisition) from Sprint, in accordance with Section 9.3(c)(ii)(B) of the Credit
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Agreement;
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 1.1. Section 1.1, Definitions, of the Credit
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Agreement, is hereby amended by deleting each of the definitions of "EBITDA" and
"Total Debt" in its entirety and by substituting in lieu thereof the following:
"`EBITDA' means, for any period, without duplication, the sum of the
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following for the Borrower and its Consolidated Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP: (a)
Adjusted Net Income, plus (b) Consolidated Interest Expense, plus (c)
income and franchise taxes to the extent deducted in determining Adjusted
Net Income, plus (d) depreciation and amortization expense and other non-
cash items to the extent deducted in determining Adjusted Net Income, minus
(e) non-cash income (or losses) to the extent included in determining
Adjusted Net Income. Notwithstanding the foregoing, for the quarter ending
December 31, 2000,
EBITDA shall exclude expenses paid by the Borrower in connection with the
postponed initial public offering in an amount not to exceed $1,324,000."
"`Total Debt' means, as of any date of determination and with respect
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to any Person and its Consolidated Subsidiaries, the aggregate principal
amount of all Debt outstanding, determined on a consolidated basis in
accordance with GAAP; provided, however, that the aggregate amount of any
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Debt issued at a discount shall be valued at the then accreted amount of
such Debt at the date of determination. The Total Debt of Holdings and
Borrower shall not include any intercompany Debt owed to Holdings or any of
its Wholly Owned Subsidiaries."
2. Amendment to Section 2.7. Section 2.7, Mandatory Prepayments, of the
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Credit Agreement is hereby amended by deleting subsection (a) in its entirety
and by substituting in lieu thereof the following:
"(a) Asset Dispositions, etc. The Borrower will, within two (2)
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Business Days after any Loan Party receives any Net Proceeds of any Asset
Disposition, proceeds of any Insurance Recovery or proceeds of condemnation
awards aggregating in excess of $1,000,000 during any calendar year (the
amount of such Net Proceeds or proceeds exceeding $1,000,000 received
during any such period are herein called the "Excess Proceeds Amount"), pay
to the Administrative Agent, as a prepayment of the Loans, an aggregate
amount equal to the Excess Proceeds Amount; provided, however, that no such
prepayment will be required (i) if and to the extent that the Excess
Proceeds Amount is fully re-invested in productive assets used in the
ordinary course of such Loan Party's business within 270 days of the
receipt of such Excess Proceeds Amount or (ii) with respect to any Excess
Proceeds Amount arising from tower sales permitted pursuant to Section
9.8(b) made after the effective date of the First Amendment to this
Agreement that are not re-invested in accordance with clause (i) above,
Excess Proceeds Amount that does not exceed $10,000,000 in the aggregate."
3. Amendments to Article 8.
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(a) Amendment to Section 8.1. Section 8.1, Reporting Requirements,
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of the Credit Agreement is hereby amended by deleting subsection (j) in its
entirety and by substituting in lieu thereof the following:
"(j) Business Plan, Material Contracts, etc. At or prior to
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the end of each year, an update of the Business Plan in reasonable detail
generally consistent with the form and substance of the Business Plan
provided to the Administrative Agent on or before the Effective Date;
promptly upon the Borrower's preparation thereof, any material amendment,
modification or supplement to the Business Plan; and, in a reasonably
prompt fashion after the creation thereof, a true and correct copy of each
Material Contract (other than purchase orders entered into in the ordinary
course of business) of the Loan Parties which is not identified on Schedule
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7.22;"
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(b) Amendment to Section 8.12. Section 8.12, Interest Rate
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Protection, of the Credit Agreement is hereby amended by deleting such Section
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in its entirety and by substituting in lieu thereof the following:
"Section 8.12 Interest Rate Protection. Within six (6) months
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from the Effective Date, the Borrower will maintain in full force and
effect through the Maturity Date one or more Interest Rate Protection
Agreements reasonably satisfactory to the Administrative Agent with one or
more of the Lenders or Affiliates of the Lenders or with other
counterparties reasonably acceptable to the Administrative Agent, which
Lenders or Affiliates or other counterparties shall in each case be rated
in one of the two of the highest rating categories of Standard & Poors
Corporation or Xxxxx'x Investors Services, Inc. and otherwise reasonably
acceptable to the Administrative Agent, that enable the Borrower, for a
period of the lesser of three years or the date ending on the earlier to
occur of the Maturity Date or the date upon which all of the Loans have
been paid in full and all Commitments have terminated or expired, to fix or
place a limit on the interest rate with respect to not less than fifty
percent (50%) of the aggregate principal amount of the Total Debt of
Holdings and its Subsidiaries."
4. Amendment to Section 9.9. Section 9.9, Sale and Leaseback, of the
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Credit Agreement is hereby amended by deleting such Section in its entirety and
by substituting in lieu thereof the following:
"Section 9.9 Sale and Leaseback. None of the Loan Parties will enter
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into any arrangement with any Person pursuant to which it leases from such
Person real or personal Property that has been or is to be sold or
transferred, directly or indirectly, by it to such Person, other than, (a)
such arrangements involving the sale and leaseback of towers consistent
with the Business Plan as to which the aggregate rent payable during any
calendar year shall not exceed $5,000,000, and (b) sale and leasebacks
between Borrower and Equipmentco."
5. Amendments to Article 10.
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(a) Amendment to Section 10.3. Section 10.3, Quarterly Minimum
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Revenue Levels, of the Credit Agreement is hereby amended by deleting such
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Section in its entirety and by substituting in lieu thereof the following:
"Section 10.3 Quarterly Minimum Revenue Levels. Until June 29, 2003,
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the Borrower will not permit Gross Revenues, exclusive of any and all
revenues attributable to the sale, lease or license of handsets,
accessories and other inventory, for any calendar quarter during any of the
periods set forth below to be less than the amount set forth opposite such
date:
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Period Minimum Revenue Level
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From the Effective Date through September 30, 2000 $ 3,180,000
From October 1, 2000 through December 31, 2000 $ 4,970,000
From January 1, 2001 through March 31, 2001 $ 10,460,000
From April 1, 2001 through June 30, 2001 $ 14,330,000
From July 1, 2001 through September 30, 2001 $ 16,930,000
From October 1, 2001 through December 31, 2001 $ 20,540,000
From January 1, 2002 through March 31, 2002 $ 26,740,000
From April 1, 2002 through June 30, 2002 $ 30,870,000
From July 1, 2002 through September 30, 2002 $ 34,540,000
From October 1, 2002 through December 31, 2002 $ 38,690,000
From January 1, 2003 through June 29, 2003 $ 42,300,000"
(b) Amendment to Section 10.4. Section 10.4, Annualized EBITDA, of
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the Credit Agreement is hereby amended by deleting such Section in its entirety
and by substituting in lieu thereof the following:
"Section 10.4 Annualized EBITDA. Until June 29, 2003, the Borrower
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will not permit Annualized EBITDA at the end of any calendar quarter during
any of the periods set forth below to be less than the amount set forth
opposite such date:
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Period Annualized EBITDA
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From the Effective Date through September 30, 2000 ($24,270,000)
From October 1, 2000 through December 31, 2000 ($30,600,000)
From January 1, 2001 through March 31, 2001 ($38,940,000)
From April 1, 2001 through June 30, 2001 ($31,260,000)
From July 1, 2001 through September 30, 2001 ($45,250,000)
From October 1, 2001 through December 31, 2001 ($61,100,000)
From January 1, 2002 through March 31, 2002 ($50,760,000)
From April 1, 2002 through June 30, 2002 ($21,090,000)
From July 1, 2002 through September 30, 2002 ($8,510,000)
From October 1, 2002 through December 31, 2002 ($10,880,000)
From January 1, 2003 through June 29, 2003 $1,150,000"
(c) Amendment to Section 10.5. Section 10.5, Wireless Subscribers,
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of the Credit Agreement is hereby amended by deleting such Section in its
entirety and by substituting in lieu thereof the following:
"Section 10.5 Wireless Subscribers. Until June 29, 2003, the
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Borrower will not permit Wireless Subscribers at the end of any calendar
quarter during any of the periods set forth below to be less than the
amount set forth opposite such date:
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Period Minimum Subscribers
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From the Effective Date through September 30, 2000 16,000
From October 1, 2000 through December 31, 2000 25,600
From January 1, 2001 through March 31, 2001 54,900
From April 1, 2001 through June 30, 2001 65,700
From July 1, 2001 through September 30, 2001 82,600
From October 1, 2001 through December 31, 2001 106,600
From January 1, 2002 through March 31, 2002 131,200
From April 1, 2002 through June 30, 2002 148,200
From July 1, 2002 through September 30, 2002 167,200
From October 1, 2002 through December 31, 2002 197,600
From January 1, 2003 through June 29, 2003 216,600"
(d) Amendment to Section 10.6. Section 10.6, Capital Expenditures, of
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the Credit Agreement is hereby amended by deleting such Section in its entirety
and by substituting in lieu thereof the following:
"Section 10.6 Capital Expenditures. Until March 30, 2004, the
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Borrower will not permit cumulative Capital Expenditures for the period
beginning on January 1, 2000 and at the end of each calendar quarter during
the periods set forth below to exceed the amount set forth opposite such
date, provided that cumulative Capital Expenditures shall exclude, if and
to the extent applicable, an amount equal to the net proceeds paid to the
Borrower or any of its Consolidated Subsidiaries in connection with the
sale of certain capital assets for which such Capital Expenditure was made,
such sale being made pursuant to Section 9.9(a) hereof:
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Cumulative Capital
Period Expenditures
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From the Effective Date through September 30, 2000 $ 94,000,000
From October 1, 2000 through December 31, 2000 $ 112,880,000
From January 1, 2001 through March 31, 2001 $ 180,080,000
From April 1, 2001 through June 30, 2001 $ 217,510,000
From July 1, 2001 through September 30, 2001 $ 252,550,000
From October 1, 2001 through December 31, 2001 $ 268,160,000
From January 1, 2002 through March 31, 2002 $ 272,830,000
From April 1, 2002 through June 30, 2002 $ 276,590,000
From July 1, 2002 through September 30, 2002 $ 280,350,000
From October 1, 2002 through December 31, 2002 $ 283,820,000
From January 1, 2003 through March 31, 2003 $ 287,590,000
From April 1, 2003 through June 30, 2003 $ 291,640,000
From July 1, 2003 through September 30, 2003 $ 295,700,000
From October 1, 2003 through March 30, 2004 $ 299,470,000"
(e) Amendment to Section 10.7. Section 10.7, Leverage Ratio, of the
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Credit Agreement is hereby amended by deleting such Section in its entirety and
by substituting in lieu thereof the following:
"Section 10.7 Leverage Ratio. The Borrower will not permit the
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Leverage Ratio at the end of any calendar quarter during any of the period
set forth below to exceed the ratio set forth opposite such date:
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Period Leverage Ratio
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On June 30, 2003 20.00:1
From July 1, 2003 through September 30, 2003 16.00:1
From October 1, 2003 through December 31, 2003 15.00:1
From January 1, 2004 through December 31, 2004 8.00:1
From January 1, 2005 through December 31, 2005 5.50:1
From January 1, 2006 through December 31, 2006 4.00:1
From January 1, 2007 through the Maturity Date 3.00:1"
(f) Amendment to Section 10.8. Section 10.8, Senior Leverage Ratio,
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of the Credit Agreement is hereby amended by deleting such Section in its
entirety and by substituting in lieu thereof the following:
"Section 10.8 Senior Leverage Ratio. The Borrower will not permit the
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Senior Leverage Ratio at the end of any calendar quarter during any of the
periods set forth below to exceed the ratio set forth opposite such date:
Period Senior Leverage Ratio
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On June 30, 2003 7.00:1
From July 1, 2003 through September 30, 2003 6.00:1
From October 1, 2003 through December 31, 2003 5.00:1
From January 1, 2004 through December 31, 2004 3.00:1
From January 1, 2005 through the Maturity Date 2.00:1"
(g) Amendment to Section 10.10. Section 10.10, Fixed Charge Coverage,
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of the Credit Agreement is hereby amended by deleting such Section in its
entirety and by substituting in lieu thereof the following:
"Section 10.10 Fixed Charge Coverage. The Borrower will not permit
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the ratio of (a) Annualized EBITDA for any calendar quarter during any of
the periods ending on any of the dates set forth below to (b) Consolidated
Fixed Charges for the immediately preceding four (4) calendar quarters, to
be less than the ratio set forth opposite such date:
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Period Fixed Charge Coverage
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Ratio
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From January 1, 2004 through December 31, 2006 1.25:1
From January 1, 2007 through the Maturity Date 1.50:1"
(h) Amendment to Section 10.11. Section 10.11, Pro Forma Debt
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Service, of the Credit Agreement is hereby amended by deleting such Section in
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its entirety and by substituting in lieu thereof the following:
"Section 10.11 Pro Forma Debt Service. The Borrower will not permit
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the ratio of (a) Annualized EBITDA for any calendar quarter during any of
the periods ending on any of the dates set forth below to (b) Pro Forma
Debt Service, to be less than the ratio set forth opposite such date:
Period Pro Forma Debt Service
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On June 30, 2003 1.10:1
From July 1, 2003 through December 31, 2004 1.10:1
From January 1, 2005 through December 31, 2005 1.10:1
From January 1, 2006 through December 31, 2006 1.50:1
From January 1, 2007 through December 31, 2007 1.75:1
From January 1, 2008 through the Maturity Date 1.75:1"
6. Consent to the Option Territory Acquisition. Subject to the terms and
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conditions hereof, notwithstanding any provisions of the Loan Documents to the
contrary, the undersigned Lenders hereby consent to the consummation of the
Option Territory Acquisition and approve the revised Business Plan; provided,
that on or prior to the consummation of the Option Territory Acquisition, the
Borrower shall provide to the Administrative Agent, in form and substance
reasonably satisfactory to the Administrative Agent: (i) evidence that the
Option Territory Acquisition has been consummated on substantially the terms and
conditions set forth in Asset Purchase Agreement for the Option Territory
Acquisition; (ii) amendments to Security Documents sufficient to ensure that all
assets acquired in connection with the Option Territory Acquisition have become
part of the Collateral; (iii) the revised Business Plan of the Borrower; (iv)
evidence of the Borrower's and Holdings' compliance with Sections 10.1, 10.2,
10.3, 10.4, 10.5 and 10.6 of the Credit Agreement, after giving effect to this
Agreement and the Option Territory Acquisition; (v) certificate of a Responsible
Officer of the Borrower that a Default does not exist both before and after
giving effect to the consummation of the Option Territory
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Acquisition, after giving effect to the amendments contemplated herein and (vi)
opinions of counsel, if any, relating to the consummation of the Option
Territory Acquisition.
7. Confirmation of Guaranties and Security Documents. After giving
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effect to this Agreement and the Option Territory Acquisition: (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.
8. No Other Amendment or Waiver. Notwithstanding the agreement of the
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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.
9. Representations and Warranties. The Loan Parties hereby represent and
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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
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(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.
10. Conditions Precedent; Effective Date.
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(a) the provisions set forth in Sections 1, 2, 3, 4 and 6 of this
Agreement shall be effective as of the Agreement Date subject to satisfaction of
each of the following conditions precedent:
(i) all of the representations and warranties of the Borrower
under Section 9 hereof which are made as of the date hereof, being true and
correct in all material respects; and
(ii) receipt by the Administrative Agent of counterparts hereof
executed by the Required Lenders and each of the Loan Parties.
(b) the provisions of Section 5 of this Agreement shall be effective
upon consummation of the Option Territory Acquisition subject to satisfaction of
each of the following conditions precedent:
(i) all of the representations and warranties of the Borrower
under Section 9 hereof which are made as of the date hereof, being true and
correct in all material respects;
(ii) receipt by the Administrative Agent, on behalf of the
Lenders executing and delivering this Agreement on or before February 23,
2001, of an amendment fee in the amount of 0.125% of the aggregate
Commitments of such Lenders (such sum, the "Amendment Fee"), which
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Amendment Fee shall be fully earned when due and non-refundable when paid;
(iii) receipt by the Administrative Agent of counterparts hereof
executed by the Required Lenders and each of the Loan Parties; and
(iv) satisfaction of each of the conditions to the Consent set
forth in Section 6 hereof.
11. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute one and the same instrument.
12. Loan Documents. Each reference in the Credit Agreement or any other
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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.
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13. Governing Law. This Agreement shall be construed in accordance with
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and governed by the internal laws of the State of New York, applicable to
agreements made and to be performed in New York.
14. Severability. Any provision of this Agreement which is prohibited or
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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.
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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/ Xxx Xxxxx
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Name: Xxx Xxxxx
Title: President & CEO
HOLDINGS: iPCS, INC., a Delaware corporation
By: /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
Title: President and CEO
EQUIPMENTCO: iPCS EQUIPMENT, INC.,
a Delaware corporation
By: /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
Title: President and CEO
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
Title: Vice President
GE CAPITAL CORPORATION, as a Lender
By: /s/ Xxxxxx XxXxxx
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Name: Xxxxxx XxXxxx
Title: Manager, Portfolio Compliance
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ Xxx X. Xxxxxxx
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Name: Xxx X. Xxxxxxx
Title Authorized Signatory
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
CITY NATIONAL BANK, as a Lender
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice President
FORTIS CAPITAL CORP., as a Lender
By: /s/ Xxxxx Xxxx
---------------------------------
Name: Xxxxx Xxxx
Title: Managing Director
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Assistant Vice President
IBM CREDIT CORPORATION, as a Lender
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Manager of Credit, Commercial and
Specialty Financing
NATIONAL CITY BANK, as a Lender
By: /s/ Xxxxxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION, as a
Lender
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
