Exhibit 10.1
FIRST AMENDMENT TO MANAGEMENT AGREEMENT
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This First Amendment to Management Agreement ("Amendment") is entered
into as of January 3, 2005, by and among US Unwired Inc., a Louisiana
corporation ("USU"), IWO Holdings, Inc., a Delaware corporation ("Holdings'),
Independent Wireless One Corporation, a Delaware corporation ("Independent"),
and Independent Wireless One Leased Realty Corporation, a Delaware corporation
("Realty") (Realty, Independent and Holdings are collectively referred to as
"IWO").
RECITALS
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A. USU and IWO are parties to that certain Management
Agreement entered into as of April 1, 2004 (the
"Management Agreement").
B. USU and IWO have agreed to enter into this Amendment to
provide with respect to the coordination and
implementation of transition arrangements prior to the
actual commencement of the Transition Period as provided
in the Management Agreement.
NOW, THEREFORE, for and in consideration of the premises, the
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged by the
execution and delivery hereof, the parties agree as follows:
1. IWO intends to pursue a restructuring pursuant to a prepackaged
Chapter 11 plan of reorganization under the United States Bankruptcy Code. As a
result of the contemplated plan of reorganization, the Management Agreement will
be terminated and USU will be obligated to provide the transition arrangements
as set forth in Section 5(e) of the Management Agreement. USU agrees,
notwithstanding the fact that a termination of the Management Agreement has not
occurred, that USU will upon the execution of this Amendment commence to provide
full and immediate cooperation to IWO on transition related topics as may be
reasonably requested by the Chief Restructuring Officer. Such cooperation shall
include, without limitation, (i) providing free access to IWO's Albany central
office location and to IWO's personnel to those persons designated by the Chief
Restructuring Officer (who shall include, without limitation, Xxxx Xxxxxxx and
Xxxxxxx Xxxxxx) and (ii) consulting with, and taking direction from, the Chief
Restructuring Officer and those persons designated by him on products and
services to be offered and the marketing of such products and services.
2. Section 4(d)(i) of the Management Agreement is hereby deleted in
its entirety and the following is inserted in lieu thereof:
(i) A monthly payment of $100,000.00 (the "Restructuring
Premium") for the period beginning May 1, 2004 and ending on December
31, 2004 or the last day of the month during which the Effective Date
occurs, whichever is earlier, and if such Effective Date does not
occur by December 31, 2004, a monthly payment of $75,000.00 for the
period beginning January 1, 2005 and ending on the last day of the
month in which the Transition Period (as defined below) ends. The
Restructuring Premium shall be paid monthly.
3. Section 4(f) of the Management Agreement is hereby deleted in its
entirety and the following is inserted in lieu thereof:
(f) Early Termination Fee. In the event IWO terminates this
Agreement without cause prior to the Effective Date or upon the
termination of this Agreement on the Effective Date, USU will also
receive a $2,500,000 termination fee. Fifty (50%) percent of this
termination fee is payable on the earlier of (x) the effective date
of termination of this Agreement or (y) the Effective Date with the
remainder payable on the termination of the Transition Period.
4. Section 5(b) of the Management Agreement is hereby amended to add
the following as an additional sentence thereto: "Notwithstanding the foregoing,
this Agreement shall terminate on the Effective Date".
5. Section 5(d) of the Management Agreement is hereby amended to add
the words "as set forth in Section 5(e)(i) hereof" after the comma and prior to
the word "no" in the second line thereof.
6. Section 5(e)(i) of the Management Agreement is hereby amended to
add the following as an additional sentence thereto: "In accordance with Section
5(d) hereof, during the Transition Period, (x) USU shall, at the request of the
New Provider, continue to provide each of the Management Services set forth in
Section 3(a) hereof and (y) the New Provider may by notice to USU discontinue
any one of such Management Services but continue to receive the remaining
Management Services.
7. Section 5(e)(ii) of the Management Agreement is hereby deleted in
its entirety and the following is inserted in lieu thereof:
(ii) "Transition Period" means the period commencing on the
earlier of (x) the effective date of termination of this Agreement or
(y) the Effective Date and expiring on the four month anniversary of
such commencement date. During the Transition Period, USU will
receive a Management Fee of $541,666.66 a month.
8. Commencing January 1, 2005 and continuing until the Effective
Date, and notwithstanding any provision of Section 4(c) to the contrary, USU
shall be entitled to receive a Quarterly Adjustment of $625,000.00 for each
calendar quarter (or such lesser prorated amount for a portion of a quarter if
the Effective Date occurs prior to the end of a calendar quarter).
9. Section 1 of this Amendment shall become effective on execution.
The remaining provisions of this Amendment shall become effective on the
consummation of IWO's currently proposed prepackaged Chapter 11 plan of
reorganization.
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10. Except as expressly amended hereby, all of the other terms and
provisions of the Management Agreement shall remain unmodified and in full force
and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the date first written above.
IWO HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Secretary
INDEPENDENT WIRELESS ONE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Secretary
INDEPENDENT WIRELESS ONE LEASED REALTY CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Secretary
US UNWIRED INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
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