Exhibit 10.6.3
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SECOND AMENDMENT dated as of December 8, 2000 to the Credit
Agreement (as previously amended, the "Credit Agreement") dated as of
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December 20, 1999, among INDEPENDENT WIRELESS ONE CORPORATION, a
Delaware corporation (the "Borrower"), the several lenders from time
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to time parties thereto (the "Lenders"), CHASE SECURITIES INC. ("CSI")
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as Book Manager and Lead Arranger (in such capacities, the "Book
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Manager" and "Lead Arranger"), FIRST UNION NATIONAL BANK ("First
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Union"), and BNP Paribas ("Paribas") as Senior Managing Agents (First
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Union and Paribas, collectively, in such capacities, the "Senior
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Managing Agents"), UBS AG, Stamford Branch ("UBS") as Documentation
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Agent (in such capacity, the "Documentation Agent") and THE CHASE
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MANHATTAN BANK, a New York banking corporation, as Administrative
Agent for the Lenders (in such capacity, the "Administrative Agent").
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WHEREAS, the Borrower (such term and each other capitalized term used
but not otherwise defined herein having the meaning assigned to it in the Credit
Agreement) has requested that the Lenders approve amendments to certain
provisions of the Credit Agreement;
WHEREAS, the undersigned Lenders are willing, on the terms and subject
to the conditions set forth herein, to approve such amendments to the Credit
Agreement;
NOW, THEREFORE, in consideration of these premises, the Borrower and
the undersigned Lenders hereby agree as follows:
SECTION 1. Amendments. Effective as of the Second Amendment
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Effective Date (as defined in Section 3 hereof), the Credit Agreement is hereby
amended as follows:
(a) The words "senior subordinated discount notes (the "Senior
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Subordinated Notes") in a public offering or in a Rule 144A or other private
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placement for aggregate gross
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proceeds of at least approximately $100,000,000" are deleted from clause (b) of
the eighth WHEREAS clause of the preamble and the words "Senior Subordinated
Notes" are substituted in lieu thereof.
(b) The phrase "prior to June 30, 2000," is deleted from clause
(b)(y) of the eighth WHEREAS clause of the preamble.
(c) The following definitions are inserted in appropriate alphabetical
positions in Section 1.1:
"Additional Lender": as defined in Section 2.5.
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"Incremental Commitment": as defined in Section 2.5.
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"Incremental Term Loans": as defined in Section 2.5.
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"Interest Reserve Account": an interest reserve account or other
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similar escrow arrangement into which the Interest Reserve Account Amount
shall be deposited on the date of issuance of the Senior Interest Reserve
Notes and in which the holders of the Senior Interest Reserve Notes shall
be granted a first priority security interest; provided, however, that the
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mere establishment of the Interest Reserve Account shall not be construed
to relieve the Borrower or Holdings, as the case may be, from the
obligation to pay the first six semi-annual interest payments as provided
by the terms of the Senior Interest Reserve Notes.
"Interest Reserve Account Amount": an amount equal to the first six
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semi-annual interest payments in respect of the Senior Interest Reserve
Notes; provided that such amount is funded from the proceeds of the
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issuance of the Senior Interest Reserve Notes only.
"New Equity Contribution": a contribution of $50,000,000 to the equity
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of the Borrower made through Holdings after December 1, 2000 on terms and
conditions satisfactory in all respects to the Administrative Agent.
"New Equity Contribution Condition": the Administrative Agent shall
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have received a certificate of the Chief Executive Officer or the Chief
Financial Officer of the Borrower confirming that the Borrower has received
$50,000,000 in proceeds from the New Equity Contribution.
"Offer Period": as defined in Section 2.5.
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"Senior Interest Reserve Notes": senior interest reserve notes issued
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by the Borrower or Holdings for aggregate cash proceeds (net of the
Interest Reserve Account Amount) of at least $100,000,000, provided that
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(a) the Interest Reserve Account shall be established on the date of
issuance of such notes, (b) such notes are not guaranteed by any Special
Purpose Subsidiary and (c) any obligation of the Borrower under such notes
and any guarantee of such notes by the Borrower and its subsidiaries shall
be subordinated to all of the obligations under the Credit Documents on
terms and conditions satisfactory in all respects to the Administrative
Agent.
(d) Each of the following definitions in Section 1.1 is amended and
restated in its entirety as follows:
"Additional Financing Event Condition": the Borrower shall have
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received at least $100,000,000 either (i) in borrowings from the
Subordinated Facility, (ii) in gross cash proceeds from the issuance of the
Senior Subordinated Notes (in the case of Senior Interest Reserve Notes,
net of any requirement to deposit any proceeds thereof into any interest
reserve account or similar escrow arrangement) or (iii) in gross cash
proceeds from the Equity Offering or from a combination thereof (after
giving effect to any prepayments made with the proceeds thereof); provided
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that (A) the Subordinated Facility or the Senior Subordinated Notes, as the
case may be (a) shall be subordinated to the obligations hereunder and
under the Guarantees (except in the case of the Senior Interest Reserve
Notes in connection with the Parent Guarantee) on terms and conditions
satisfactory in all respects to the Administrative Agent, (b) shall mature
on a date at least six months subsequent to the Tranche B Maturity Date,
(c) shall not amortize prior to the Tranche B Maturity Date, (d) shall not
require the payment of cash interest until five years from the initial
issuance of the Senior Subordinated Notes or the Subordinated Facility
(whichever occurs first), except in the case of the Senior Interest Reserve
Notes (the first six semi-annual interest payments in respect of which may
be paid from the Interest Reserve Account only and from any source
thereafter), (e) shall not contain covenants, events of default or
prepayment events (but excluding call protection provisions) that are more
restrictive than those contained in this
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Agreement (other than the covenant in the Subordinated Commitment Letter
relating to investments in Special Purpose Subsidiaries) and (f) shall
otherwise be on market terms and conditions and, except in the case of
Senior Interest Reserve Notes, shall otherwise be issued and subordinated
on the terms and conditions set forth in the Subordinated Commitment Letter
and (B) the proceeds of any Senior Subordinated Notes and/or the Equity
Offering issued by Holdings, and/or the Subordinated Facility borrowed by
Holdings, to meet the requirements of this definition shall be contributed
to the Borrower as common equity and/or loaned to the Borrower on a deeply
subordinated basis pursuant to terms and conditions satisfactory in all
respects to the Administrative Agent.
"Commitment": as to any Lender at any time, such Lender's Swing Line
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Commitment, Tranche A Term Loan Commitment, Tranche B Term Loan Commitment,
Revolving Credit Commitment and/or Incremental Commitment (if any);
collectively, as to all the Lenders, the "Commitments".
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"Senior Subordinated Notes": (a) senior subordinated discount notes
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issued by the Borrower or Holdings in a public offering or in a Rule 144A
or other private placement for aggregate gross proceeds of at least
$100,000,000 or (b) Senior Interest Reserve Notes.
"Subordinated Commitment Letter": the commitment letter delivered to
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the Administrative Agent pursuant to Section 6.1(q) on December 20, 1999,
as amended by amendments to such commitment letter dated June 30, 2000 and
December 8, 2000.
"Subordinated Debt": the Senior Subordinated Notes or the
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Subordinated Facility and refinancings thereof permitted hereunder;
provided that the Subordinated Facility, the Senior Subordinated Notes and
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any refinancings thereof, as the case may be (a) shall be subordinated to
the obligations hereunder and under the Guarantees (except in the case of
the Senior Interest Reserve Notes in connection with the Parent Guarantee)
on terms and conditions satisfactory in all respects to the Administrative
Agent, (b) shall mature on a date at least six months subsequent to the
Tranche B Maturity Date, (c) shall not amortize prior
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to the Tranche B Maturity Date, (d) shall not require the payment of cash
interest until five years from the initial issuance of the Senior
Subordinated Notes or the Subordinated Facility which ever occurs first,
except in the case of the Senior Interest Reserve Notes (the first six
semi-annual interest payments in respect of which may be paid from the
Interest Reserve Account only and from any source thereafter), (e) shall
not contain covenants, events of default or prepayment events (but
excluding any call protection provisions) that are more restrictive than
those contained in this Agreement (other than the covenant in the
Subordinated Commitment Letter relating to investments in Special Purpose
Subsidiaries) and (f) shall otherwise be on market terms and conditions
and, except in the case of Senior Interest Reserve Notes, shall otherwise
be issued and subordinated on the terms and conditions set forth in the
Subordinated Commitment Letter.
"Tranche A Commitment Period": the period from and including the later
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of (x) the Effective Date and (y) the date the Additional Financing Event
Condition is satisfied to but excluding the earlier of the second
anniversary of the Effective Date and the date of termination of the
Tranche A Term Loan Commitments as provided herein. Notwithstanding the
foregoing, (A) an aggregate of $30,000,000 of the Tranche A Term Loan
Commitments shall be available during the period from and including June
30, 2000 to but excluding the earlier of (x) the second anniversary of the
Effective Date and (y) the date of the termination of Tranche A Commitments
as provided herein and (B) an additional $30,000,000 of the Tranche A Term
Loan Commitments shall be available during the period from and including
the date on which the New Equity Contribution Condition is satisfied to but
excluding the earlier of (x) the second anniversary of the Effective Date
and (y) the date of the termination of Tranche A Commitments as provided
herein
(e) A new Section 2.5 is inserted immediately following Section 2.4
and shall read as follows:
Section 2.5. Incremental Term Loans. On or prior to the last
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day of the Tranche A Commitment Period, the Borrower may, by notice to the
Administrative Agent (which shall promptly deliver a copy to each of the
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Lenders), request the addition of a new tranche of term loans (the
"Incremental Term Loans"); provided, however, that both (x) at the time of
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any such request and (y) after giving effect to any such Incremental Term
Loans, no Default shall exist and the Borrower shall be in compliance with
each financial covenant (calculated, in the case of clause (y), on a pro
forma basis to give effect to any borrowing of Incremental Term Loans).
The Incremental Term Loans shall (i) be in an aggregate principal amount
not in excess of $25,000,000, (ii) rank pari passu in right of payment and
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of security with the other Loans, (iii) have an average weighted life equal
to or longer than the Tranche A Term Loans, (iv) be drawn on or prior to
the last day of the Tranche A Commitment Period; provided that,
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notwithstanding anything to the contrary set forth herein, no Incremental
Term Loans shall be drawn until the Additional Financing Event Condition
shall have been satisfied, (v) have such pricing as may be agreed by the
Borrower and the Persons providing such Incremental Term Loans and (vi)
otherwise be treated hereunder no more favorably than the Tranche A Term
Loans. Such notice shall set forth the requested amount of Incremental
Term Loans, and shall offer each Lender the opportunity to offer a
commitment (the "Incremental Commitment") to provide Incremental Term Loans
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by giving written notice of such offered commitment to the Administrative
Agent and the Borrower within a time period (the "Offer Period") to be
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specified in the Borrower's notice; provided, however, that no existing
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Lender will be obligated to subscribe for any portion of such commitments.
In the event that, at the expiration of the Offer Period, Lenders shall
have provided commitments in an aggregate amount less than the total amount
of the Incremental Term Loans requested by the Borrower, the Borrower shall
have the right to arrange for one or more banks or other financial
institutions (any such bank or other financial institution being called an
"Additional Lender") to extend commitments to provide Incremental Term
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Loans in an aggregate amount equal to the unsubscribed amount; provided
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that each Additional Lender shall be subject to the approval of the
Administrative Agent (which approval shall not be unreasonably withheld);
and provided further that the Additional Lenders shall be offered the
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opportunity to provide the Incremental Term Loans only on terms previously
offered to the existing Lenders pursuant to
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the immediately preceding sentence. Commitments in respect of Incremental
Term Loans shall become Commitments under this Agreement pursuant to an
Incremental Facility Amendment executed by each of the Borrower, Holdings,
each Subsidiary that is party to a Subsidiary Guarantee, if any, each
Lender agreeing to provide such Commitment, if any, each Additional Lender,
if any, and the Administrative Agent. The effectiveness of any Incremental
Facility Amendment shall be subject to (A) the satisfaction on the date
thereof and, if different, on the date on which the Incremental Term Loans
are made, of each of the conditions set forth in Section 6.3 and (B) the
receipt by the Administrative Agent of opinions of counsel to the Borrower,
addressed to the Lenders and the Administrative Agent and dated the date of
the Incremental Facility Amendment, from counsel, and in form and
substance, satisfactory to the Administrative Agent.
(f) A new clause (v) is inserted immediately after the word
"excluding," and immediately before clause (w) in the parenthetical phrase in
Section 4.4(b)(i) and shall read as follows: "(v) the New Equity Contribution,".
(g) Clause (x) of the proviso to clause (B) of Section 8.1(i) is
amended and restated in its entirety to read as follows: "(x) $190,000,000 in
the case of Senior Interest Reserve Notes and $150,000,000 in all other cases".
(h) The proviso immediately following clause (C) of Section 8.1(i) is
amended and restated in its entirety to read as follows:
"; provided further that (i) all such Subordinated Debt and any such
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refinancings shall be issued on market terms and conditions, (ii) no part
of the principal amount of any such Indebtedness shall have a maturity date
earlier than the six month anniversary of the final Tranche B Installment
Payment Date, (iii) such Indebtedness shall not require the payment of cash
interest until five years from the initial issuance of the Senior
Subordinated Notes or the Subordinated Facility whichever occurs first,
except in the case of the Senior Interest Reserve Notes (the first six
semi-annual interest payments in respect of which may be paid from the
Interest Reserve Account only
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and from any source thereafter), (iv) the representations, warranties,
covenants (other than the covenant in the Subordinated Commitment Letter
relating to investments in Special Purpose Subsidiaries) and events of
default (but excluding any call protection provisions) relating thereto
shall be no more restrictive than those under this Agreement as of the date
hereof and any financial covenants shall be incurrence rather than
maintenance covenants, and (v) any such Indebtedness shall be subordinated
to the obligations of the Credit Parties under the Credit Documents on
substantially the same terms as the Senior Subordinated Notes or the
Subordinated Facility or otherwise on customary terms and conditions
approved by the Administrative Agent (such approval not to be unreasonably
withheld or delayed) or, except in the case of the Senior Interest Reserve
Notes, shall otherwise be issued and subordinated on the terms and
conditions set forth in the Subordinated Commitment Letter"
(i) A new subsection (n) is inserted at the end of Section 8.2 and
shall read as follows:
(n) Liens on the Interest Reserve Account in favor of the holders
of the Senior Interest Reserve Notes.
(j) Section 8.9 (h) is amended and restated in its entirety to read as
follows:
(h) Interest Coverage Ratio. (A) In the event that the
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Additional Financing Event Condition is satisfied other than by the
issuance of Senior Interest Reserve Notes, permit the Interest
Coverage Ratio for any period of four consecutive fiscal quarters
beginning and ending prior to on the last day of any fiscal quarter on
any date or during any period set forth below to be less than the
ratio set forth opposite such date or period.
Date or Period Ratio
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03/31/04 1.00 to 1
06/30/04 1.25 to 1
09/30/04 1.50 to 1
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Date or Period Ratio
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12/31/04 2.00 to 1
03/31/05 2.25 to 1
06/30/05 2.50 to 1
09/30/05 2.00 to 1
09/30/06 and thereafter 2.25 to 1
(B) In the event that the Additional Financing Event Condition
is satisfied by the issuance of Senior Interest Reserve Notes, permit the
Interest Coverage Ratio for any period of four consecutive fiscal quarters
beginning and ending prior to on the last day of any fiscal quarter on any
date or during any period set forth below to be less than the ratio set
forth opposite such date or period.
Date or Period Ratio
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09/30/04 1.00 to 1
12/31/04 1.25 to 1
06/30/05 1.50 to 1
12/31/05 2.00 to 1
09/30/06 2.25 to 1
03/31/07 and thereafter 2.50 to 1
(k) Section 8.9 (i) is amended and restated in its entirety to read as
follows:
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(i) Fixed Charges Ratio. (A) In the event that the Additional
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Financing Event Condition is satisfied other than by the issuance of Senior
Interest Reserve Notes, permit the ratio of Consolidated EBITDA to Fixed
Charges for any period of four consecutive fiscal quarters ending on the
last day of any fiscal quarter on any date or during any period set forth
below to Fixed Charges for such period or four consecutive fiscal quarters
to be less than the ratio set forth opposite such date or period.
Date or Period Ratio
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9/30/04-12/31/07 1.1 to 1
3/31/08 1.2 to 1
and thereafter
(B) In the event that the Additional Financing Event Condition
is satisfied by the issuance of Senior Interest Reserve Notes, permit the
ratio of Consolidated EBITDA to Fixed Charges for any period of four
consecutive fiscal quarters ending on the last day of any fiscal quarter on
any date or during any period set forth below to Fixed Charges for such
period or four consecutive fiscal quarters to be less than the ratio set
forth opposite such date or period.
Date or Period Ratio
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6/30/05 - 12/31/06 1.1 to 1
3/31/07
and thereafter 1.2 to 1
(l) Clause (b) of Section 8.16 is amended and restated to read in its
entirety as follows:
"(b) make any cash interest payments with respect to and any Indebtedness
outstanding pursuant to subsection 8.1(i) (except with respect to the
Senior Interest Reserve Notes and refinancings thereof) prior to five years
from the initial issuance of the Subordinated Facility or the Senior
Subordinated Notes, which ever occurs first (other than as permitted by
clause (a) above) or"
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(m) Section 9(l) is hereby amended by deleting the reference therein
to "December 30, 2000" and inserting in lieu thereof a reference to "March 31,
2001".
SECTION 2. Representations and Warranties. The Borrower represents
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and warrants to each of the Lenders that, after giving effect to the amendments
contemplated hereby, (a) the representations and warranties of the Borrower set
forth in the Credit Agreement are true and correct in all material respects on
and as of the date of this Amendment, except to the extent such representations
and warranties expressly relate to an earlier date (in which case such
representations and warranties shall be true and correct in all material
respects as of the earlier date) and (b) no Default has occurred and is
continuing.
SECTION 3. Effectiveness. This Amendment shall become effective as
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of the date (the "Second Amendment Effective Date") when the following
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conditions shall have been satisfied:
(a) The Administrative Agent (or its counsel) shall have received
copies hereof that, when taken together, bear the signatures of the
Borrower and the Required Lenders.
(b) The Administrative Agent shall have received a certificate of the
Chief Executive Officer or the Chief Financial Officer of the Borrower
confirming compliance as of the Second Amendment Effective Date with the
conditions set forth in clauses (a), (b) and (c) of Section 6.3 of the
Credit Agreement.
(c) The Administrative Agent and the Lenders shall have received all
fees, expenses and other consideration presented for payment on or before
the date hereof.
SECTION 4. Amendment Fee. The Borrower agrees to pay to the
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undersigned Lenders such amendment fees, and at such times, as have been
separately agreed upon.
SECTION 5. Applicable Law. THIS AMENDMENT SHALL BE CONSTRUED IN
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ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 6. No Other Amendments. Except as expressly set forth
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herein, this Amendment shall not by
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implication or otherwise limit, impair, constitute a waiver of, or otherwise
affect the rights and remedies of any party under, the Credit Agreement, nor
alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement, all of
which are ratified and affirmed in all respects and shall continue in full force
and effect. This Amendment shall apply and be effective only with respect to the
provisions of the Credit Agreement specifically referred to herein.
SECTION 7. Counterparts. This Amendment may be executed in two or
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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 of this Amendment by facsimile transmission
shall be as effective as delivery of a manually executed counterpart of this
Amendment.
SECTION 8. Headings. Section headings used herein are for
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convenience of reference only, are not part of this Amendment and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Amendment.
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IN WITNESS WHEREOF, the Borrower and the undersigned Lenders have
caused this Amendment to be duly executed by their duly authorized officers, all
as of the date first above written.
INDEPENDENT WIRELESS ONE CORPORATION,
by:
/s/ Xxxxx X. Standing
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Name: Xxxxx X. Standing
Title: Chief Operating
Officer
THE CHASE MANHATTAN BANK, as Lender and
Administrative Agent,
by:
/s/ Xxxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
UBS AG, STAMFORD BRANCH,
by:
/s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Managing Director
Leveraged Finance
by:
/s/ Xxxxxx X. Xxxx III
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Name: Xxxxxx X. Xxxx III
Title: Executive Director
FIRST UNION NATIONAL BANK,
by:
/s/ Xxxxx Northern
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Name: Xxxxx Northern
Title: Director / SVP
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BNP PARIBAS,
by:
/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Managing Director
by:
/s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Vice President
DLJ CAPITAL FUNDING, INC.,
by:
/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Sen. Vice President
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
by:
/s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Associate Director
by:
/s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Associate Director
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
by:
/s/ S. Akita
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Name: S. Akita
Title: Vice President
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XXX XXXX XX XXXX XXXXXX,
by:
/s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title:Authorized Signatory
THE CIT GROUP/EQUIPMENT FINANCING,
by:
/s/ Xxxx X. Xxxxxx, XX
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Name: Xxxx X. Xxxxxx, XX
Title: Vice President
IBM CREDIT CORPORATION,
by:
/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Manager of Credit,
Commercial and
Specialty Financing
FORTIS CAPITAL CORP.,
by:
/s/ Xxxx X. XxXxxxxxx
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Name: Xxxx X. XxXxxxxxx
Title: Managing Director
KZH ING-1 LLC,
by:
/s/ Xxxxxxxx Xxxx
--------------------------
Name: Xxxxxxxx Xxxx
Title: Authorized Agent
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KZH ING-2 LLC,
by:
/s/ Xxxxxxxx Xxxx
--------------------------
Name: Xxxxxxxx Xxxx
Title: Authorized Agent
KZH ING-3 LLC,
by:
/s/ Xxxxxxxx Xxxx
--------------------------
Name: Xxxxxxxx Xxxx
Title: Authorized Agent
ING CAPITAL SENIOR SECURED HIGH INCOME FUND, L.P.,
by ING CAPITAL ADVISORS LLC,
as investment advisor,
by:
/s/ Xxxxxxxx Xxxxx
----------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President
