Exhibit 10.1
AMENDMENT NO. 3 TO THE
CREDIT AGREEMENT
Dated as of March 6, 2002
AMENDMENT NO. 3 TO THE CREDIT AGREEMENT among NTELOS Inc.
(formerly known as CFW Communications Company), a Virginia corporation (the
"Borrower"), the banks, financial institutions and other institutional lenders
parties to the Credit Agreement referred to below (collectively, the "Lenders"),
Morgan Stanley Senior Funding, Inc., as Administrative Agent (the "Agent"),
First Union National Bank, as Syndication Agent, Suntrust Bank, as Documentation
Agent, Bank of America, N.A. and Branch Banking and Trust Company, as
Co-Managing Agents and Morgan Stanley & Co. Incorporated, as Collateral Agent.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders and the Agent have entered into
a Credit Agreement dated as of July 26, 2000, as amended by Amendment No. 1
dated as of July 23, 2001 and as further amended by Amendment No. 2 dated as of
November 14, 2001 (such Credit Agreement, as so amended, being the "Credit
Agreement"). Capitalized terms not otherwise defined in this Amendment have the
same meanings as specified in the Credit Agreement.
(2) The Borrower has requested that the Required Lenders agree
to amend the Credit Agreement as herein provided and to consent to certain
amendments to the bylaws of the Borrower.
(3) The Required Lenders are, on the terms and conditions
stated below, willing to grant the request of the Borrower and the Borrower and
the Required Lenders have agreed to amend the Credit Agreement as hereinafter
set forth.
SECTION 1. Amendments to the Credit Agreement
. The Credit Agreement is, effective as of the date hereof and
subject to the satisfaction of the conditions precedent set forth in Section 3,
hereby amended as follows:
(a) Section 1.01 is amended as follows:
(i) The definition of "Interest Expense" contained in
Section 1.01 is amended by inserting at the end of such definition, immediately
before the period, the following: "and including all amendment fees paid by the
Borrower during such period in respect of Debt under this Agreement".
(ii) The definition of "Net Cash Proceeds" contained in
Section 1.01 is amended by deleting the following text from the end thereof: ";
provided further that Net Cash Proceeds shall not include any such cash receipts
to the extent such cash receipts are reinvested in the business of the Borrower
and its Subsidiaries within 12 months following the date of receipt";
(iii) The definition of "Subscribers" contained in Section
1.01 is amended by substituting for the words "60 days" where they appear
therein, the words "90 days"; and
(iv) The following new definitions are added to such
Section 1.01 in the appropriate alphabetical position:
"Capital Expenditures Report" means a report substantially
in the form of Exhibit M hereto.
"Cash Reconciliation Report" has the meaning specified in
Section 5.03(p)."
"Cash Report" has the meaning specified in Section 3.02(b).";
and
"Subscriber Report" has the meaning specified in Section
5.03(p)."
(b) Exhibit B to the Credit Agreement is amended and
restated in its entirety to read as Exhibit B hereto.
(c) Section 2.02(a) is amended as follows:
(i) By substituting for the phrase "third Business Day"
where it appears in the third line thereof the phrase "fifth Business Day";
(ii) By substituting for the phrase "first Business Day"
where it appears in the fourth line thereof the phrase "third Business Day";
(iii) By inserting in the fifth line thereof, immediately
after the words "Base Rate Advances", the following parenthetical: "(provided,
that in the case of a Borrowing consisting of Base Rate Advances the proceeds of
which are to be used solely for purposes of repaying Swing Line Advances, such
notice may be given on the first Business Day prior to the date of the proposed
Borrowing)";
(iv) By inserting in the eighth line thereof, immediately
before the words "shall be by telephone", the following: "(A)"; and
(v) By inserting in the twelfth line thereof, immediately
after the words "(v) in the case of a Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for such Advances", the following: "and (B)
shall be accompanied by the certificate of the Chief Financial Officer of the
Borrower required by Section 3.02(b)".
(d) Exhibit J hereto is added as Exhibit J to the Credit
Agreement.
(e) The first sentence of Section 2.06(b)(ii) is amended
and restated in its entirety to read as follows:
"(ii) The Borrower shall, (A) promptly upon but in no event
later than three Business Days after receipt of the Net Cash Proceeds by the
Borrower or any of its Subsidiaries from the sale, lease, transfer or other
disposition of any assets of the Borrower or any of its Subsidiaries (other than
any sale, lease, transfer or other disposition of assets pursuant to clause (i)
or (ii) of Section 5.02(e)), prepay an aggregate principal amount of the
Advances comprising part of the same Borrowings in an amount equal to the amount
of such Net Cash Proceeds; provided that, except as provided below, no
prepayment shall be required to be made upon receipt of Net Cash Proceeds from
the sale, lease, transfer or other disposition of any assets of the Borrower or
any of its Subsidiaries pursuant to clause (iii), (iv), (v) or (vi) of Section
5.02(e) to the extent that such Net Cash Proceeds are reinvested in the business
of the Borrower and its Subsidiaries within one year of the receipt thereof;
provided further, however, the Borrower shall, promptly upon but in no event
later than three Business Days after receipt of any Net Cash Proceeds from the
sale, lease, transfer or other disposition of any assets of the Borrower or any
of its Subsidiaries pursuant to clause (iii) or (vi) of Section 5.02(e), prepay
an aggregate principal amount of the Advances comprising part of the same
Borrowings in an amount equal to 50% of the amount by which the aggregate Net
Cash Proceeds from all sales, leases, transfers or other dispositions of any
assets of the Borrower or any of its Subsidiaries pursuant to clauses (iii) and
(vi) of Section 5.02(e) exceeds $50 million and (B) on the date of receipt of
the Net Cash Proceeds by the Borrower or any of its Subsidiaries from any
Extraordinary Receipt received by or paid to or for the account of the Borrower
or any of its Subsidiaries and not otherwise included in clause (A) above,
prepay an aggregate principal amount of the Advances comprising part of the same
Borrowings in an amount equal to the amount of such Net Cash Proceeds."
(f) Section 3.02 is amended as follows:
(i) Section 3.02(a) is amended by (x) deleting the word
"and" at the end of clause (i) thereof, (y) inserting at the end of clause (ii)
thereof the word "and" and (z) inserting at the end of such Section the
following clause (iii):
"(iii) the relevant Cash Report shall reflect cash on hand
(after giving effect to such Borrowing and to any proposed disbursements) of not
more than $5,000,000."; and
(ii) A new subsection (b) is inserted immediately after
Section 3.02(a) to read as follows (and the existing subsection "(b)" of Section
3.02 is accordingly redesignated "(c)"):
"(b) The Administrative Agent and each of the Lenders shall
have received at the time of delivery of the Notice of Borrowing in respect of
such proposed Borrowing a certificate of the Chief Financial Officer of the
Borrower containing (A) a report in the form of Exhibit J hereto (each such
report, a "Cash Report"), (B) certifying that all of the cash receipts, the
disbursements and the proposed disbursements of cash set forth in such Cash
Report have occurred or will occur in the ordinary course of business,
consistent with past practices and are or will be in accordance with the Loan
Documents and the forecast most recently delivered pursuant to Section 5.03(d)
and (C) certifying as to the Senior Secured Debt to Total Capital of the
Borrower pursuant to Section 5.04(a)(i) after giving pro forma effect to such
Borrowing and setting forth the calculations used to arrive at such figure;".
(g) Section 5.02(e) is amended as follows:
(i) Clause (iii) of Section 5.02(e) is amended in its
entirety to read as follows:
"(iii) sales of assets listed on Schedule 5.02(e)(iii)
hereto for fair value, provided that at least 75% of the consideration for each
such sale shall be in cash;";
(ii) Schedule 5.02(e)(iii) hereto is added as Schedule
5.02(e)(iii) to the Credit Agreement;
(iii) Schedule 5.02(e) to the Credit Agreement is
redesignated "Schedule 5.02(e)(iv)", and each reference to "Schedule 5.02(e)" in
the Credit Agreement is amended to read "Schedule 5.02(e)(iv)";
(iv) (x) the word "and" is deleted from the end of clause
(iv) of Section 5.02(e), (y) the word "and" is added to the end of clause (v) of
Section 5.02(e) and (z) the following clause (vi) is added to Section 5.02(e)
immediately after clause (v):
"(vi) sales of assets for fair value in an aggregate amount
not to exceed $15 million, provided that at least 75% of the consideration for
each such sale shall be in cash; and provided further, that the consideration
received for any single transaction or series of related transactions pursuant
to this clause (vi) shall not exceed $3 million";
(v) the proviso at the end of Section 5.02(e) is amended
by substituting for the words "clause (iii), (iv) or (v)" where they appear
therein the following: "clause (iii), (iv), (v) or (vi)"; and
(vi) the following additional proviso is inserted at the
end of Section 5.02(e), immediately before the period: "; and provided further,
that promptly and in no event later than three Business Days after the date of
each sale, lease, transfer or other disposition of assets pursuant to this
Section 5.02(e), the Borrower shall deliver to the Administrative Agent a
certificate of the Chief Financial Officer of the Borrower certifying (A) that
attached to such certificate are revised Schedules 5.02(e)(iii) and 5.02(e)(iv),
as applicable, reflecting which transactions on such schedule have been
consummated since (x) in the case of Schedule 5.02(e)(iii), March 6, 2002
and (y) in the case of Schedule 5.02(e)(iv), the Effective Date; (B) that such
sale of assets has occurred in accordance with the terms of this Section 5.02(e)
(and setting forth the percentage of the proceeds of such sale received in cash
and the total consideration received for each single transaction or series of
related transactions) and (C) as to the aggregate amount of proceeds received up
to and including the date of such sale in respect of sales of assets pursuant to
clause (iii) and (vi) of this Section 5.02(e)".
(h) Section 5.03 is amended by inserting at the end
thereof the following additional subsection (p):
"(p) Monthly Financials. (i) As soon as available and in
no event later than the last day of each month, a Consolidated balance sheet of
the Borrower and its Subsidiaries as of the end of the previous month and
Consolidated and consolidating statements of income and a Consolidated Capital
Expenditures Report of the Borrower and its Subsidiaries for such previous month
and Consolidated and consolidating statements of income and a Consolidated
Capital Expenditures Report of the Borrower and its Subsidiaries for the period
commencing at the end
of the previous Fiscal Year and ending with the end of such previous month,
setting forth (A) in each case in comparative form the corresponding figures for
such month from the forecast most recently delivered pursuant to Section
5.03(d); (B) EBITDA for such month and the calculations used to arrive at such
EBITDA figure; (C) a report in the form of Exhibit K hereto (a "Subscriber
Report"); and
"(ii) as soon as available but in no event later than ten
Business Days after the end of each month, a report in the form of Exhibit L
hereto (a "Cash Reconciliation Report") demonstrating that within five Business
Days after the end of such month, the total amount of cash on hand of the
Borrower and its Subsidiaries was not more than the amount permitted by Section
5.04(a)(vi) or 5.04(b)(v), as applicable, all in reasonable detail and duly
certified by the Chief Financial Officer of the Borrower."
(i) Exhibits K, L and M hereto are added as Exhibits K,
L and M, respectively, to the Credit Agreement.
(j) Section 5.04 is amended and restated in its entirety
to read as follows:
"SECTION 5.04. Financial Covenants. So long as any Advance or
any other Obligation of any Loan Party under any Loan Document shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender Party shall have
any Commitment hereunder:
(a) Until the Transition Date:
(i) Senior Secured Debt to Total Capital. The Borrower
will not permit the ratio of Consolidated Debt for Borrowed Money of the
Borrower and its Subsidiaries (other than Subordinated Debt and any other Debt
for Borrowed Money that is not secured by Liens on any asset or property of the
Borrower and its Subsidiaries) to Total Capital in each case on any day on which
a Borrowing occurs and the last day of each fiscal quarter of the Borrower to
exceed 35%.
(ii) Total Debt to Total Capital. The Borrower will not
permit the ratio of Total Debt to Total Capital in each case on any day on which
a Borrowing occurs and the last day of each fiscal quarter of the Borrower to
exceed 75%.
(iii) Service Revenue. The Borrower will not permit
Aggregate Service Revenue for the four fiscal quarter period ending at the end
of each fiscal quarter of the Borrower set forth below to be less than Aggregate
Service Revenue set forth opposite such date:
Minimum Aggregate
Quarter Ending Service Revenue
6/30/01 $160 million
9/30/01 $172 million
12/31/01 $186 million
3/31/02 $198 million
6/30/02 $211 million
9/30/02 $223 million
12/31/02 $236 million
(iv) Subscribers. The Borrower will not permit the number of
Subscribers for the fiscal quarter of the Borrower ending on the date set forth
below to be less than the number of Subscribers set forth opposite such date:
Minimum
Date Subscribers
6/30/01 157 thousand
9/30/01 187 thousand
12/31/01 201 thousand
3/31/02 212 thousand
6/30/02 224 thousand
9/30/02 241 thousand
12/31/02 258 thousand
(v) Minimum EBITDA. The Borrower will not permit EBITDA for
the four fiscal quarter period ending at the end of each fiscal quarter of the
Borrower set forth below to be less than EBITDA set forth opposite such date:
Minimum
Date EBITDA
12/31/01 $17 million
3/31/02 $21.5 million
6/30/02 $28.2 million
9/30/02 $36.8 million
12/31/02 $49.6 million
(vi) Maximum Cash. The Borrower will not permit the amount of
cash of the Borrower and its Subsidiaries on hand on the last day of any
calendar month to exceed $5 million; provided that it shall not be a default
under this clause (vi) if within five Business Days after the end of such month
the Borrower shall have made disbursements permitted by the Loan Documents in an
aggregate amount sufficient to reduce the amount of cash on hand to an amount
permitted by this clause (vi).
(b) After the Transition Date, the Borrower will:
(i) Leverage Ratio. Maintain at the end of each fiscal
quarter of the Borrower set forth below, a Leverage Ratio of not more than the
ratio for such quarter set forth below:
Quarter Ending Ratio
3/31/03 9.00x
6/30/03 7.50x
9/30/03 7.00x
12/31/03 7.00x
Each fiscal quarter in the Fiscal Year ending:
12/31/04 5.00x
12/31/05 3.75x
12/31/06 3.75x
12/31/07 3.75x
12/31/08 3.75x
(ii) Senior Leverage Ratio. Maintain at the end of each
fiscal quarter of the Borrower set forth below, a Senior Leverage Ratio of not
more than the ratio for such year set forth below:
Quarter Ending Ratio
3/31/03 4.25x
6/30/03 3.50x
9/30/03 3.25x
12/31/03 3.00x
Each fiscal quarter in the Fiscal Year ending:
12/31/04 2.50x
12/31/05 2.50x
12/31/06 2.50x
12/31/07 2.50x
12/31/08 2.50x;
(iii) Interest Coverage Ratio. Maintain at the end of each
fiscal quarter of the Borrower ending during the year set forth below, an
Interest Coverage Ratio of not less than the ratio for such year set forth
below:
Year Ending Ratio
12/31/03 1.25x
12/31/04 1.50x
12/31/05 2.00x
12/31/06 2.50x
12/31/07 2.50x
12/31/08 2.50x
(iv) Fixed Charge Coverage Ratio. Maintain at the end of each
fiscal quarter of the Borrower ending during the year set forth below, a Fixed
Charge Coverage Ratio of not less than the ratio for such year set forth below:
Year Ending Ratio
12/31/03 1.25x
12/31/04 1.50x
12/31/05 1.75x
12/31/06 2.25x
12/31/07 2.50x
12/31/08 2.50x
(v) Maximum Cash. The Borrower will not permit the amount of
cash of the Borrower and its Subsidiaries on hand on the last day of any
calendar month to exceed $5 million; provided that it shall not be a default
under this clause (v) if within five Business Days after the end of such month
the Borrower shall have made disbursements permitted by the Loan Documents in an
aggregate amount sufficient to reduce the amount of cash on hand to an amount
permitted by this clause (v)."
SECTION 2. Consent
. In accordance with the provisions of Section 5.02(i), the
Lender Parties hereby consent, effective as of October 8, 2001 and October 30,
2001, respectively, to the amendments to the Borrower's bylaws reflected in the
constituent documents delivered pursuant to Section 3(b) hereof.
SECTION 3. Conditions of Effectiveness
. This Amendment shall become effective as of the date first
above written when, and only when,
(a) the Agent shall have received
(i) counterparts of this Amendment executed by the
Borrower and the Required Lenders or, as to any of the Lenders, advice
satisfactory to the Agent that such Lender has executed this Amendment;
(ii) (A) Schedule 5.02(e)(iv) revised to reflect which
asset dispositions contemplated by such schedule have already occurred and (B)
Schedule VI to the Security Agreement revised, as necessary, to reflect all bank
accounts of the Loan Parties, showing the average daily balance of each such
account for the three months prior to the date of this Amendment, each certified
by the Chief Financial Officer of the Borrower;
(iii) evidence satisfactory to the Agent that each Lender
executing this Amendment has received an amendment fee equal to 0.375% of such
Lender's outstanding Advances and unused Commitments;
(iv) the consent attached hereto executed by each Loan
Party; and
(v) such other information, certificates and documents as
the Agent may reasonably have requested; and
(b) each of the Lender Parties shall have received a
certificate of the Borrower signed on behalf of the Borrower by its Chief
Executive Officer, President, a Vice President or Secretary, as of the date
of this Amendment, certifying as to (i) the absence of any amendments to
the articles of incorporation of the Borrower since December 4, 2000 and
(ii) a true and correct copy of the bylaws of the Borrower as in effect on
the date of such certificate.
SECTION 4. Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) the representations and warranties contained in each
Loan Document are correct on and as of the date hereof, before and after
giving effect to this Amendment, as though made on and as of the date
hereof, other than any such representations or warranties that by their
terms, refer to a specific date, in which case, as of such specific date;
and
(b) no Default has occurred and is continuing under the
Credit Agreement, as amended hereby, or would result from this Amendment.
SECTION 5. Reference to and Effect on the Loan Documents. (a)
On and after the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the Notes and each of
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.
(b) The Credit Agreement, the Notes and each of the other
Loan Documents, as specifically amended by this Amendment, are and shall
continue to be in full force and effect and are hereby in all respects ratified
and confirmed. Without limiting the generality of the foregoing, the Collateral
Documents and all of the Collateral described therein do and shall continue to
secure the payment of all Obligations of the Loan Parties under the Loan
Documents, in each case as amended by this Amendment.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any Lender or the Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
SECTION 6. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 7. Governing Law. This Amendment shall be governed
by, and construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
NTELOS INC.
By:
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MORGAN STANLEY SENIOR FUNDING, INC.,
as Administrative Agent and as Lender
By:
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LENDERS
By:
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ETC.