exv10w22



 



     Exhibit 10.22


     FIRST AMENDMENT, dated as of October 12, 2001
(this “Amendment”), to the CREDIT AGREEMENT, dated as of August 16, 1999, (as
heretofore amended, supplemented or otherwise modified, the “Credit
Agreement”), among AIRGATE PCS, INC., a Delaware corporation (the “Borrower”),
the Lenders parties thereto, STATE STREET BANK AND TRUST COMPANY, a
Massachusetts banking corporation, as Collateral Agent and LEHMAN COMMERCIAL
PAPER INC., as Administrative Agent.


WITNESSETH:


     WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, certain loans and other extensions of credit to the
Borrower;


     WHEREAS, the Borrower expects to acquire iPCS (as defined in Section II
below), and such acquisition will be accomplished through the merger of
Transitory Subsidiary (as defined in Section II below) with iPCS, after giving
effect to which the survivor of such merger will be a wholly owned subsidiary
of the Borrower; and


     WHEREAS, the Borrower has requested that certain provisions of the Credit
Agreement be amended in the manner provided for in this Amendment;


     NOW, THEREFORE, the parties hereto hereby agree as follows:


     I. Defined Terms. Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.


     II. Amendments to Credit Agreement.


     1. Amendments to Section 1.01. Section 1.01 of the Credit Agreement is
hereby amended as follows:


     (a) by deleting therefrom the definition of the following defined term in
its entirety and substituting in lieu thereof the following definition:


   “Subsidiary” means any subsidiary of the Borrower; provided
that neither Transitory Subsidiary nor iPCS nor any of its
subsidiaries shall be a Subsidiary for purposes of this Agreement.


     (b) by adding thereto the following definitions in their appropriate
alphabetical order:


   “iPCS” means iPCS Inc., a Delaware corporation, which term
shall include the surviving corporation of the merger between iPCS
Inc. and Transitory Subsidiary.


 







 


     2


   “Management Services Sharing Agreement” means an agreement
between and among either (i) Management Subsidiary, the Borrower
and iPCS, (ii) Management Subsidiary and the Borrower, (iii)
Management Subsidiary and iPCS or (iv) the Borrower and iPCS
setting forth the terms on which Management Subsidiary or the
Borrower, as the case may be, agrees to provide management and
accounting services to the Borrower and its subsidiaries (excluding
iPCS and its subsidiaries) or iPCS and its subsidiaries; provided
that such agreement and the transactions contemplated thereby shall
be, in the judgment of the Administrative Agent, on terms and
conditions not less favorable to the Borrower than could be
obtained on an arm’s-length basis from unrelated third parties.


   “Management Subsidiary” means a subsidiary of the Borrower
formed for the sole purpose of providing management and accounting
services to the Borrower and its subsidiaries.


   “Tax Sharing Agreement” means an agreement between and among
the Borrower and iPCS relating to the allocation of tax liabilities
between the Borrower and iPCS.


   “Transitory Subsidiary” means a subsidiary of the Borrower
formed to consummate the acquisition of iPCS through a merger of
Transitory Subsidiary and iPCS.


     2. Amendment to Section 5.11. Section 5.11 of the Credit Agreement is
hereby amended by adding to the end of that Section the following new sentence:


 The Borrower also may form Management Subsidiary, and each of
the Lenders hereby consents to the formation thereof, provided that
the Borrower shall take all actions required to be taken by it
pursuant to this Section 5.11.


     3. Amendment to Section 6.03. Section 6.03 of the Credit Agreement is
hereby amended by deleting paragraph (d) of said Section in its entirety.


     4. Amendments to Section 6.07. Section 6.07(a) of the Credit Agreement is
hereby amended by (a) deleting the word “and” at the end of clause (iii), (b)
deleting the “.” at the end of clause (iv) and substituting “and” in lieu
thereof and (c) adding the following new clause (v) immediately after clause
(iv) thereof:


     (v) transactions pursuant to a Management Services Sharing Agreement or
Tax Sharing Agreement.


     III. Conditions to Effectiveness. This Amendment shall become effective
on the date (the “Amendment Effective Date”) on which all of the following
conditions precedent have been satisfied or waived:


 







 


     3


     1. The Administrative Agent shall have received a counterpart hereof duly
executed and delivered by Borrower.


     2. The Administrative Agent shall have received executed Lender Consent
Letters, substantially in the form of Exhibit A hereto (“Lender Consent
Letters”), from Lenders constituting the Required Lenders.


     3. The Administrative Agent shall have received an executed Acknowledgment
and Consent (together with this Amendment, the “Amendment Documents”), in the
form set forth at the end of this Amendment, from AGW Leasing Company, Inc. and
AirGate Network Services, LLC (together with the Borrower, the “Amendment
Parties”).


     4. The Administrative Agent shall have received, to the extent that it has
not theretofore received, a certificate of the Secretary or Assistant Secretary
of each Amendment Party, dated the Amendment Effective Date, as to the
incumbency and signature of each of the officers signing the Amendment
Documents to which such Amendment Party is a party, and any other instrument or
document delivered by such Amendment Party in connection herewith, together
with evidence of the incumbency of such Secretary or Assistant Secretary.


     5. The Borrower and iPCS shall have entered into a Tax Sharing Agreement
reasonably satisfactory to the Administrative Agent.


     6. The Administrative Agent shall have received, on behalf of each Lender
executing and delivering this Amendment on or before October 12, 2001, an
amendment fee in an amount equal to 0.10% of the sum of (i) the aggregate
outstanding principal amount of Loans owing to such Lender and (ii) the
aggregate undrawn amount of Commitments of such Lender.


     IV. General.


     1. Representation and Warranties. To induce the Administrative Agent to
enter into this Amendment and to induce the Lenders to consent thereto, the
Borrower hereby represents and warrants to the Agents and all of the Lenders as
of the Amendment Effective Date that:


     (a) Each Amendment Party has the corporate power and authority, and the
legal right, to make and deliver the Amendment Documents to which it is a party
and to perform the Loan Documents to which it is a party, as amended by the
Amendment Documents, and has taken all necessary corporate action to authorize
the execution, delivery and performance of such Amendment Documents and the
performance of such Loan Documents, as so amended.


     (b) No consent or authorization of, approval by, notice to, filing with or
other act by or in respect of, any Governmental Authority or any other Person
is required in connection with the execution and delivery of the Amendment
Documents or with the performance, validity or enforceability of the Loan
Documents, as amended by the Amendment Documents.


 







 


     4


     (c) Each Amendment Document has been duly executed and delivered on behalf
of each Amendment Party.


     (d) Each Amendment Document and each Loan Document, as amended by the
Amendment Documents, constitutes a legal, valid and binding obligation of each
Amendment Party enforceable against such Amendment Party in accordance with its
terms, except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting the
enforcement of creditors’ rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.


     (e) The execution, delivery and performance of the Amendment Documents and
the performance of the Loan Documents, as amended by the Amendment Documents,
will not violate any Requirement of Law or Contractual Obligation of any
Amendment Party or of any of its Subsidiaries and will not result in, or
require, the creation or imposition of any Lien on any of its or their
respective properties or revenues pursuant to any such Requirement of Law or
Contractual Obligation.


     (f) The representations and warranties made by the Amendment Parties in
the Loan Documents are true and correct in all material respects on and as of
the Amendment Effective Date, before and after giving effect to the
effectiveness of this Amendment, as if made on and as of the Amendment
Effective Date.


     2. Payment of Expenses. The Borrower agrees to pay or reimburse the
Administrative Agent for all of its reasonable out-of-pocket costs and expenses
incurred in connection with the Amendment Documents, any other documents
prepared in connection herewith and the transactions contemplated hereby,
including, without limitation, the reasonable fees and disbursements of counsel
to the Administrative Agent.


     3. No Other Amendments; Confirmation. Except as expressly amended,
modified and supplemented hereby, the provisions of the Loan Documents are and
shall remain in full force and effect.


     4. Governing Law; Counterparts. (a) THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK


     (b) This Amendment may be executed by one or more of the parties to this
Agreement on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A
set of the copies of this Amendment, the Acknowledgment and Consent and the
Lender Consent Letters signed by all the parties shall be lodged with the
Borrower and the Administrative Agent. This Amendment may be delivered by
facsimile transmission of the relevant signature pages hereof.


 







 


     5


     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.



	 	 	 	 	 
	 	 	AIRGATE PCS, INC., as Borrower
	 	 	 	 	 
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

	 	 	
Title:	 	 
	 	 	 	 	 
	 	 	LEHMAN COMMERCIAL PAPER INC., as
	 	 	Administrative Agent
	 	 	 	 	 
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

	 	 	
Title:
	 	Authorized Signatory





 







 


ACKNOWLEDGMENT AND CONSENT


     Reference is made to the Credit Agreement described in the foregoing
Amendment (the “Credit Agreement”; terms defined in the Credit Agreement being
used in this Acknowledgement and Consent with the meanings given to such terms
in the Credit Agreement). Each of the undersigned parties to one or more Loan
Documents, in each case as amended, supplemented or otherwise modified from
time to time, hereby (a) consents to the foregoing Amendment and the
transactions contemplated thereby and (b) acknowledges and agrees that the
guarantees and grants of security interests contained in the Loan Documents
are, and shall remain, in full force and effect after giving effect to the
foregoing Amendment and all prior modifications to the Credit Agreement.



	 	 	 	 	 
	 	 	AGW LEASING COMPANY, INC
	 	 	 	 	 
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

Title:
	 	 	 	 	 
	 	 	AIRGATE NETWORK SERVICES, LLC
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

Title:









 



     EXHIBIT A


LENDER CONSENT LETTER


AIRGATE PCS, INC.

CREDIT AGREEMENT

DATED AS OF AUGUST 16, 1999



	 	 	 
	To:	 	
Lehman Commercial Paper Inc.,

as Administrative Agent

3 World Financial Center

New York, New York 10285





Ladies and Gentlemen:



     Reference is made to the Credit Agreement, dated as of August 16, 1999
(the “Credit Agreement”), among Airgate PCS, Inc., a Delaware corporation (the
“Borrower”), the Lenders parties thereto, State Street Bank and Trust Company,
a Massachusetts banking corporation, as Collateral Agent and Lehman Commercial
Paper Inc., as Administrative Agent. Unless otherwise defined herein,
capitalized terms used herein and defined in the Credit Agreement are used
herein as therein defined.


     The Borrower has requested that the Required Lenders consent to amend the
Credit Agreement on the terms described in the Amendment in the form attached
hereto as Exhibit A (the “Amendment”).


     Pursuant to Section 9.02 of the Credit Agreement, the undersigned Lender
hereby consents to the execution by the Administrative Agent of the Amendment.



	 	 	 	 	 	 	 
	 	 	 	 	Very truly yours,
	 	 	 	 	 	 	 
	 	 	 	 	(NAME OF LENDER)
	 	 	 	 	 	 	 
	 	 	 	 	By:	 	 
	 	 	 	 	Name:

Title:
	 	







Dated as of October    , 2001