Exhibit 10.2
FIRST AMENDMENT dated as of September 26, 2001 (this
"Amendment"), to the Second Amended and Restated Credit
Agreement, dated as of February 3, 1998, as amended and
restated as of September 14, 2000 (the "Credit Agreement"),
among TRITON PCS, INC., a corporation organized under the laws
of the State of Delaware (the "Borrower"), TRITON PCS
HOLDINGS, INC., a corporation organized under the laws of the
State of Delaware ("Holdings"), the several banks and other
financial institutions and entities from time to time parties
thereto (the "Lenders"), and THE CHASE MANHATTAN BANK, as
administrative agent (the "Administrative Agent") for the
Lenders.
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed
to make certain loans to the Borrower; and
WHEREAS the Borrower has requested that certain provisions of the
Credit Agreement be modified in the manner provided for in this Amendment, and
the Lenders are willing to agree to such modifications as provided for in this
Amendment.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used and not defined herein
shall have the meanings given to them in the Credit Agreement, as amended
hereby. For the purposes of this Amendment, the term "Consenting Tranche D
Lender" means each Tranche D Lender that approves this Amendment, and the term
"Nonconsenting Tranche D Lender" means each Tranche D Lender that does not
approve this Amendment.
2. Amendments to the Credit Agreement. (a) Notwithstanding anything
to the contrary contained in the definition of "Tranche D Availability Period"
or elsewhere in the Credit Agreement, the Tranche D Availability Period in
respect of the Tranche D Commitment of each Consenting Tranche D Lender shall be
the period from and including the Second Amendment and Restatement Date to but
excluding the earlier of December 31, 2002, and the date of termination of the
Tranche D Commitments (other than the
expiration of Tranche D Commitments of Nonconsenting Tranche D Lenders on
December 31, 2001).
(b) Notwithstanding anything to the contrary contained in the Credit
Agreement, including Section 2.02 thereof, prior to December 31, 2001, the
Borrower may, at its option, effect Borrowings of Tranche D Term Loans on any
Borrowing date either (i) from all Tranche D Lenders, pro rata in accordance
with their Tranche D Commitments, or (ii) solely from Nonconsenting Tranche D
Lenders, pro rata in accordance with the Tranche D Commitments of such
Nonconsenting Tranche D Lenders. Each Borrowing Request in respect of a
Borrowing of Tranche D Term Loans prior to December 31, 2001, shall specify
whether such Borrowing is being made from all Tranche D Lenders or solely from
Nonconsenting Tranche D Lenders. Notwithstanding the foregoing, all Tranche D
Commitments of Consenting Tranche D Lenders must be drawn by December 31, 2002.
3. No Other Amendments; Confirmation. Except as expressly amended,
waived, modified and supplemented hereby, the provisions of the Credit Agreement
are and shall remain in full force and effect.
4. Representations and Warranties. Each of Borrower and Holdings
hereby represents and warrants to the Administrative Agent and the Lenders as of
the date hereof:
(a) No Default or Event of Default has occurred and is continuing.
(b) The execution, delivery and performance by each of Borrower and
Holdings of this Amendment have been duly authorized by all necessary
corporate and other action and do not and will not require any
registration with, consent or approval of, notice to or action by, any
person (including any governmental agency) in order to be effective and
enforceable. The Credit Agreement as amended by this Amendment constitutes
the legal, valid and binding obligation of each of Borrower and Holdings,
enforceable against each in accordance with its terms, subject only to the
operation of the Bankruptcy Code and other similar statutes for the
benefit of debtors generally and to the application of general equitable
principles.
(c) All representations and warranties of the Borrower and Holdings
contained in the Credit Agreement (except with respect to representations
and warranties expressly made only as of an earlier date) are true and
correct in all material respects as of the date hereof.
5. Effectiveness. This Amendment shall become effective only upon
the satisfaction in full of the following conditions precedent:
(a) The Administrative Agent shall have received counterparts
hereof, duly executed and delivered by the Borrower, Holdings, the
Required Lenders and Tranche D Lenders having more than 50% of the sum of
outstanding Tranche D Term Loans and unused Tranche D Commitments;
(b) The Administrative Agent shall have received such certificates
from the Borrower and Holdings as it may reasonably request in form
reasonably satisfactory to its counsel; and
(c) The Borrower shall have paid all reasonable out-of-pocket
expenses of the Administrative Agent subject to reimbursement or payment
pursuant to Section 9.03 of the Credit Agreement or Section 6 hereof, in
each case to the extent invoiced prior to the date of effectiveness
hereof.
6. Expenses. The Borrower agrees to reimburse the Administrative
Agent for its reasonable out-of-pocket expenses in connection with this
Amendment, including the reasonable fees, charges and disbursements of Cravath,
Swaine & Xxxxx, counsel for the Administrative Agent.
7. Governing Law; Counterparts. (a) This Amendment and the rights
and obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
(b) This Amendment may be executed by one or more of the parties to
this Amendment on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. This Amendment may be delivered by facsimile transmission of the
relevant signature pages hereof.
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.
TRITON PCS, INC.,
by /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: SVP of Finance & Treasurer
TRITON PCS HOLDINGS, INC.,
by /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: SVP of Finance & Treasurer
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent,
by /s/ Xxxxxx Xxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx Xxxxx
Title: Vice President
ABN AMRO Bank N.V.
by /s/ Xxxxx X. Xxxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Group Vice President
by /s/ Xxxxxx Xxxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Assistant Vice President
CITIBANK, N.A.
by /s/ Xxxx X. Judge ,
--------------------------------
as a Lender
Name: Xxxx X. Judge
Title: Vice President
by /s/ Xxxx X. Judge ,
--------------------------------
as a Tranche D Lender
Name: Xxxx X. Judge
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
by /s/ Xxxxxxx XxXxxxxx ,
--------------------------------
as a Lender
Name: Xxxxxxx XxXxxxxx
Title: Vice President
by /s/ Xxxxxxx XxXxxxxx ,
--------------------------------
as a Tranche D Lender
Name: Xxxxxxx XxXxxxxx
Title: Vice President
HYPOVEREINSBANK
by /s/ X. Xxxxx ,
--------------------------------
as a Tranche D Lender
Name: X. Xxxxx
Title: VP
by /s/ X. Xxxx ,
--------------------------------
as a Tranche D Lender
Name: X. Xxxx
Title: Head of Tele-com,
Global Project Finance
XXXXXX XXXXXXX SENIOR FUNDING, INC.
by /s/ Xxxxxxx Xxxxxx ,
---------------------------------
as a Tranche D Lender
Name: Xxxxxxx Xxxxxx
Title: Vice President
NATIONAL CITY BANK
by /s/ Xxxxxxx Bienville Xxxxxx ,
---------------------------------
as a Lender
Name: Xxxxxxx Bienville Xxxxxx
Title: Senior Vice President
by /s/ Xxxxxxx Bienville Xxxxxx ,
---------------------------------
as a Tranche D Lender
Name: Xxxxxxx Bienville Xxxxxx
Title: Senior Vice President
SUNTRUST BANK
by /s/ J. Xxxx Xxxxxxx ,
---------------------------------
as a Lender
Name: J. Xxxx Xxxxxxx
Title: Director
by /s/ J. Xxxx Xxxxxxx ,
---------------------------------
as a Tranche D Lender
Name: J. Xxxx Xxxxxxx
Title: Director
THE BANK OF NEW YORK
by /s/ Xxxxxxxx X. Xxxxxx ,
---------------------------------
as a Lender
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
by /s/ Xxxxxxxx X. Xxxxxx ,
---------------------------------
as a Tranche D Lender
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
TORONTO DOMINION (TEXAS), INC.
by /s/ Xxxxxx X. Xxxxxx ,
---------------------------------
as a Lender
Name: Xxxxxx X. Xxxxxx
Title: Vice President
by /s/ Xxxxxx X. Xxxxxx ,
---------------------------------
as a Tranche D Lender
Name: Xxxxxx X. Xxxxxx
Title: Vice President
