EXHIBIT 4.6
FIRST AMENDMENT TO THE
AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO THE AMENDED AND RESTATED NOTE PURCHASE
AGREEMENT, dated as of April 4, 2001 (this "Amendment") relates to that certain
---------
Amended and Restated Note Purchase Agreement dated as of October 29, 1999 (as
the same may be amended, supplemented, restated or otherwise modified from time
to time, the "Note Purchase Agreement") and is entered into between TeleCorp
-----------------------
Wireless, Inc. (f/k/a TeleCorp PCS, Inc.) (the "Company") and Lucent
-------
Technologies Inc. ("Lucent"). Capitalized terms used and not otherwise defined
------
herein shall have the meanings assigned to them in the Note Purchase Agreement.
W I T N E S S E T H
WHEREAS, the Company and Lucent have entered into the Note Purchase
Agreement;
WHEREAS, the Company has requested that Lucent amend the Note Purchase
Agreement pursuant to a request dated April 3, 2001;
WHEREAS, Lucent is willing to enter into such amendments on the terms
and conditions set forth herein;
NOW, THEREFORE, in consideration of the above premises, the Company
and Lucent agree as follows:
1. Amendments to the Note Purchase Agreement. Upon the "Effective Date" (as
-----------------------------------------
defined in Section 3 below), the Note Purchase Agreement is hereby amended as
---------
follows:
a. Amendment to Section 6.8(a) of the Disclosure Schedule.
------------------------------------------------------
Section 6.8(a) of the Disclosure Schedule (referred to in Section
6.8(a)) is hereby deleted and substituted therefor is the following:
"The authorized Capital Stock of the Company consists of 3,000 shares
of Common Stock, par value $.01 per share, of which 1,000 shares are
outstanding. All outstanding shares of Common Stock of the Company are
held by TeleCorp PCS, Inc."
b. Amendment to Section 6.21(e).
----------------------------
Subsection (e) of Section 6.21(e) is hereby amended by deleting the
first sentence thereof in its entirety.
c. Amendment to Section 10.4. Section 10.4 of the Note Purchase
-------------------------
Agreement is hereby amended by deleting the amount "$198,000,000" from each
place where it appears and substituting therefor the amount "$368,141,400".
d. Amendments to Section 11.4.
--------------------------
Section 11.4 is hereby deleted in its entirety and substituted
therefor is the following:
"Unless (a) no Event of Default or Potential Event of Default shall
exist which is continuing and (b) the Company shall have paid, in
cash, all interest on the Notes on each of the prior three Payment
Dates, the Company shall not declare or make any Restricted Payment;
provided that the restriction set forth in clause (b) shall not apply
--------
to Restricted Payments made by the Company to TeleCorp PCS, Inc. in
respect of (i) the repurchase or redemption of any Capital Stock of
TeleCorp PCS, Inc. held by any member of management of TeleCorp PCS,
Inc. or any Subsidiary thereof pursuant to a management subscription
agreement, stock option agreement, restricted stock option agreement,
put agreement or other similar agreement in an amount not to exceed
$10,000,000 in any twelve-month period (it being understood that any
portion which is not used in any twelve-month period may be carried
forward to one or more future twelve-month periods so long as the
aggregate of all unused amounts that may be carried forward to any
twelve-month period shall not exceed $20,000,000) and (ii) any purpose
of TeleCorp PCS, Inc. in an amount not to exceed $10,000,000 in any
fiscal year).
To the extent that proceeds of the sale of TeleCorp PCS, Inc.'s Parent
Notes are contributed by TeleCorp PCS, Inc. as a capital contribution
to the Company, the Company may make Restricted Payments to TeleCorp
PCS, Inc. or any of its subsidiaries (as directed by TeleCorp PCS,
Inc.) in cash, and without restriction, in an amount equal to such
equity proceeds, such amount not to exceed the amount of Excess Cash
Flow (as defined in the Credit Agreement) generated after the date
such equity investment first occurs or, if greater, an amount not in
excess of Excess Cash Flow (as defined in the Credit Agreement) for
the fiscal year most recently ended."
e. Amendments to Section 15.
------------------------
i. The definition of "Company" in Section 15 is hereby deleted in its
entirety and substituted therefor is the following:
"Company: TeleCorp Wireless, Inc."
-------
ii. The definition of "Credit Agreement" in Section 15 is hereby
deleted in its entirety and substituted therefor is the following:
"Credit Agreement: Amended and Restated Credit Agreement dated
----------------
as of October 2, 2000 among the Company, the Lenders, the
Administrative Agent, TD Securities (USA) Inc. as Syndication Agent
and Bankers Trust Company, as Documentation Agent."
2
iii. The definition of "Management Agreement" in Section 15 is hereby
deleted in its entirety and substituted therefor is the following:
"Management Agreement: the Management Agreement between TeleCorp
--------------------
PCS, Inc. and TeleCorp Management Corp. dated as of July 17, 1998 as
amended by Amendment No. 1 thereto dated as of May 25, 1999, as the
same may be amended from time to time."
iv. The definition of "POPs" in Section 15 is hereby deleted in its
entirety and substituted therefor is the following:
"POPs: as of any date, with respect to any BTA or MTA, the
----
population of such BTA or MTA as such number is published in the then
most recently issued retail marketing reports by Kagan Guide."
v. The definition of "Series A Note Commitment" in Section 15 is
hereby deleted in its entirety and substituted therefor is the following:
"Series A Note Commitment: your commitment to purchase
------------------------
$40,000,000 in aggregate principal amount of Series A Notes that
have previously been issued, and to purchase additional Series A
Notes in an aggregate principal amount equal to $37,500,000 pursuant
to Section 1 and Section 28 which amount shall be decreased on a
dollar for dollar basis to the extent the Company receives Net
Securities Proceeds from Equity Issuances in an aggregate principal
amount which exceeds $368,141,400."
vi. The definition of "Series A Note Commitment Termination Date" in
Section 15 is hereby deleted in its entirety and substituted therefor is
the following:
"Series A Note Commitment Termination Date: The earlier to occur
-----------------------------------------
of (a) October 31, 2001 or (b) such earlier date on which the Series A
Note Commitment shall terminate pursuant to the terms of the
Agreement."
vii. The definition of "Series B Availability Period" in Section 15 is
hereby deleted in its entirety and substituted therefor is the following:
"Series B Availability Period: the period commencing on October
----------------------------
29, 1999 and continuing to but excluding October 31, 2002."
viii. The definition of "Series B Note Commitment" in Section 15 is
hereby deleted in its entirety and substituted therefor is the following:
"Series B Note Commitment: your commitment to purchase Series B
------------------------
Notes in an aggregate principal amount equal to $37,500,000."
3
ix. The definition of "Series B Note Commitment Termination Date" in
Section 15 is hereby deleted in its entirety and substituted therefor is
the following:
"Series B Note Commitment Termination Date: October 31, 2002 or
-----------------------------------------
such earlier date on which the Series B Note Commitment shall
terminate pursuant to the terms of this Agreement."
x. The definition of "Stockholders' Agreement" in Section 15 is hereby
deleted in its entirety and substituted therefor is the following:
"Stockholders' Agreement: the Stockholders' Agreement dated as
-----------------------
of November 13, 2000, among AT&T PCS, TWR, the Cash Equity Investors,
the Management Stockholders and TeleCorp PCS, Inc., as such agreement
may be amended from time to time in accordance with the provisions of
such agreement, so long as the terms of any such amendment are no less
favorable to the holders of the Notes than the terms of the
Stockholders' Agreement in effect on the date of the Indenture."
xi. The definition of "TeleCorp Holdings" in Section 15 is hereby
deleted in its entirety and substituted therefor is the following:
"TeleCorp Holdings: TeleCorp Holding Corp., LLC, a Delaware
-----------------
limited liability company."
xii. The following definition of "Parent Notes" in Section 15 is
hereby added:
"Parent Notes: TeleCorp PCS, Inc. Senior Subordinated Discount
------------
Notes due 2011."
f. Amendment to Section 28.
-----------------------
i. Section 28 is hereby amended by inserting in the first paragraph
thereof, immediately after the phrase "provided that" and before the
--------
number "(i)", the following clause:
"after the Series A Note Commitment Termination Date all of the Notes
purchased by you shall have the same terms as the Series B Notes; and
provided further that"
-------- -------
ii. Section 28 is hereby amended by deleting therefrom the paragraph
that reads "Your exclusivity rights under the Procurement Contract with
respect to the Expansion Area shall not terminate if any of these
conditions are not satisfied and as a result you do not purchase any
Expansion Notes. The Company's and your obligations under this section 28
shall expire June 30, 2001" in its entirety and substituting therefor the
following:
4
"Your exclusivity rights under the Procurement Contract with
respect to the Expansion Area shall not terminate if any of these
conditions are not satisfied and as a result you do not purchase
any Expansion Notes. The Company's and your obligations under
this section 28 shall expire October 31, 2001 (with respect to
the Series A Notes) and October 31, 2002 (with respect to the
Series B Notes); provided that the Company may at any time
terminate the Commitments in whole but not in part; provided
further that if TeleCorp PCS, Inc. shall issue Parent Notes to
Lucent and the aggregate amount of gross proceeds received by
TeleCorp PCS, Inc. from the issuance of Parent Notes shall exceed
$350,000,000, then the aggregate amount of the Commitments will
be automatically reduced by the amount of such excess proceeds
(such reduction to apply equally to the then outstanding Series A
Note Commitment, if any, and the Series B Note Commitment; if the
Series A Note Commitment shall have expired without having been
fully drawn, then the Series B Note Commitment will be reduced by
an amount equal to the excess of (i) the aggregate amount of
gross proceeds received by TeleCorp PCS, Inc. from the issuance
of Parent Notes over (ii) the sum of $350,000,000 plus the amount
of the Series A Note Commitment that expired without having been
drawn); and provided further that Lucent may elect, in respect of
any request by the Company that Lucent purchase Expansion Notes,
to instead purchase Parent Notes from TeleCorp PCS, Inc. in an
amount that yields the same amount of gross proceeds to TeleCorp
PCS, Inc. as the Company would have received from the issuance of
the requested Expansion Notes."
iii. Section 28 of Note Purchase Agreement is hereby amended by
deleting the following provision:
"(i) modify the threshold amount of Net Securities Proceeds under
section 10.4 to an amount not to exceed the product of (X)
$198,000,000 multiplied by (Y) a fraction the numerator of which
is the sum of (A) 16,800,000 plus (B) the number of POPs in
Expansion Areas for which Expansion Notes have been or concurrent
therewith are being issued and the denominator of which is
16,800,000; and
(ii)"
2. Representations and Warranties. The Company hereby represents and
------------------------------
warrants to Lucent that, as of the Effective Date and after giving effect to
this Amendment:
a. All the representations and warranties of the Company contained
in this Amendment and the Note Purchase Agreement that are not qualified
by Material Adverse Effect are true and correct in all material respects
on and as of the Effective Date, as if then made (other than
representations and warranties which expressly speak as of a different
date, which shall be true and correct in all material respects as of
that
5
date, and other than the representation and warranty set forth in
the first sentence of Section 6.8(a), which is true and correct as of
the date of this Amendment), and all the representations and warranties
of the Company contained in this Amendment and the Note Purchase
Agreement that are qualified by Material Adverse Effect are true and
correct on and as of the Effective Date, as if then made (other than
representations and warranties which expressly speak as of a different
date, which shall be true and correct as of that date); and
b. No Event of Default or Potential Event of Default has occurred
and is continuing or will result after giving effect to this Amendment.
3. Effective Date. This Amendment shall become effective as of the
--------------
date first written above (the "Effective Date") upon the satisfaction of each of
--------------
the following conditions:
a. The Company shall have received each of the following documents,
in each case in form and substance satisfactory to the Company, prior to
5:00 p.m. (New York time) on April 6, 2001:
i. counterparts hereof executed by Lucent; and
ii. such additional documentation as the Company may reasonably
request.
b. Lucent shall have received each of the following documents, in
each case in form and substance satisfactory to Lucent, prior to 5:00
p.m. (New York time) on April 6, 2001;
i. counterparts hereof executed by the Company;
ii. a certificate of the Secretary or Assistant Secretary of the
Company dated the Effective Date certifying (A) that the bylaws of
the Company have not been amended or otherwise modified since the
date of the most recent certification thereof by the Secretary or
Assistant Secretary of the Company delivered to Lucent and remain in
full force and effect as of the Effective Date, (B) that the charter
of the Company has not been amended or otherwise modified since the
date of the most recent certification thereof by the Secretary of
State of the Company's jurisdiction of incorporation delivered to
Lucent and remain in full force and effect as of the Effective Date
and (C) that the execution, delivery and performance of this
Amendment have been duly authorized by all necessary or proper
corporate and shareholder action;
iii. an opinion from counsel to the Company stating that the
Amendment constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its
terms; and
iv. such additional documentation as Lucent may reasonably
request.
6
c. There shall be no suit, action, investigation, inquiry or other
proceeding by or before any Governmental Authority or any other Person
or any other legal or administrative proceeding, pending or, to the
Company's knowledge, threatened, which questions the validity or
legality of this Amendment or performance by the Company of its
obligations under the Note Purchase Agreement and seeks damages or
injunctive or other equitable relief in connection therewith;
d. All the representations and warranties of the Company contained
in this Amendment and the Note Purchase Agreement that are not qualified
by Material Adverse Effect shall be true and correct in all material
respects on and as of the Effective Date, as if then made (other than
representations and warranties which expressly speak as of a different
date, which shall be true and correct in all material respects as of
that date), and all the representations and warranties of the Company
contained in this Amendment and the Note Purchase Agreement that are
qualified by Material Adverse Effect shall be true and correct on and as
of the Effective Date, as if then made (other than representations and
warranties which expressly speak as of a different date, which shall be
true and correct as of that date);
e. All corporate and other proceedings, and all documents,
instruments and other legal matters in connection with the transactions
contemplated by this Amendment shall be satisfactory in all respects in
form and substance to Lucent and Lucent shall have received any other
documents, instruments and legal opinions in respect of any aspect or
consequence of this Amendment as it may reasonably request; and
f. No Event of Default or Potential Event of Default shall have
occurred and be continuing or will result after giving effect to this
Amendment.
4. Reference to and Effect on the Note Purchase Agreement.
------------------------------------------------------
a. Upon the Effective Date, each reference in the Note Purchase
Agreement to "this Agreement", "hereunder", "hereof" or words of like
import shall mean and be a reference to the Note Purchase Agreement as
amended and supplemented hereby.
b. Except to the extent specifically set forth herein, the
provisions of the Note Purchase Agreement shall not be amended,
modified, waived, impaired or otherwise affected hereby, and such Note
Purchase Agreement and the obligations thereunder are hereby confirmed
as being in full force and effect.
c. This Amendment shall be limited solely to the matters expressly
set forth herein and shall not (i) constitute an amendment or waiver of
any other term or condition of the Note Purchase Agreement, (ii)
prejudice any right or rights which Lucent or any Holder may now have or
may have in the future under or in connection with the Note Purchase
Agreement, (iii) require Lucent or any Holder to agree to a similar
transaction on a future occasion or (iv) create any right herein to
another Person or other beneficiary or otherwise, except to the extent
specifically provided herein.
7
5. Headings. The headings herein are for convenience of reference
--------
only and shall not alter or otherwise affect the meaning hereof.
6. Section Titles. The Section titles in this Amendment are and
--------------
shall be without substantive meaning or content of any kind whatsoever and are
not a part of the agreement between the parties hereto.
7. Counterparts. This Amendment may be executed by one or more of
------------
the parties to this Amendment on any number of separate counterparts (including
by telecopy), and all said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Amendment
signed by all the parties shall be lodged with the Company and Lucent.
8. GOVERNING LAW. THIS AMENDMENT, AND ALL MATTERS OF CONSTRUCTION,
-------------
VALIDITY AND PERFORMANCE HEREOF, SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF OTHER THAN SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK.
9. No Strict Construction. The parties hereto have participated
----------------------
jointly in the negotiation and drafting of this Amendment. In the event an
ambiguity or question of intent or interpretation arises, this Amendment shall
be construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Amendment.
8
IN WITNESS WHEREOF, the Company and Lucent have caused this Amendment
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
TELECORP WIRELESS, INC.
By: /s/ Thomas H. Sullivan
-------------------------
Name: Thomas H. Sullivan
Title: President
LUCENT TECHNOLOGIES INC.
By: /s/ Robert Grant
-------------------------
Name: Robert Grant
Title: Director
Signature Page