EXHIBIT 10.8.6
CONFORMED COPY
FIFTH AMENDMENT AND ACCEPTANCE, dated as of April 7, 1999 (this
"Amendment"), to the Credit Agreement, dated as of July 17, 1998 (as amended,
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supplemented or otherwise modified from time to time, the "Credit Agreement"),
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among TELECORP PCS, INC., a corporation organized under the laws of the State of
Delaware (the "Borrower"), the several banks and other financial institutions
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and entities from time to time parties thereto (the "Lenders"), and THE CHASE
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MANHATTAN BANK, as administrative agent (the "Administrative Agent") for the
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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 Credit Agreement be amended in
the manner provided for in this Amendment and that the Lenders accept the terms
of certain Subordinated Debt to be issued by the Borrower, and the Lenders party
hereto are willing to agree to such modifications and give such acceptance 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
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shall have the meanings given to them in the Credit Agreement, as amended
hereby.
2. Amendment to Section 1.01 of the Credit Agreement. Section 1.01 of
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the Credit Agreement is hereby amended by inserting immediately before the
period at the end of the definition of "Indebtedness" the proviso";
provided that solely for the purposes of determining compliance with the
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covenants set forth in paragraphs (b), (f) and (g) of Section 6.12, Indebtedness
of the Borrower shall not include the Series A Bonds".
3. Amendment to Section 6.01(a) of the Credit Agreement. Section
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6.01(a) of the Credit Agreement is hereby amended by:
(a) deleting the phrase "in an aggregate principal amount not to exceed
$350,000,000 minus the principal amount of" in clause (ii) thereof and
substituting therefor the phrase "with gross proceeds therefrom not to exceed
$350,000,000 minus the gross proceeds from"; and
(b) deleting the phrase "in an aggregate principal amount" in each place
it appears in clause (v) thereof and substituting therefor the phrase "with
gross proceeds therefrom".
4. Acceptance. For the purposes of determining whether debt issued
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on such terms constitutes Subordinated Debt, the Lenders party hereto hereby
accept the terms of the debt set forth in the description of notes attached
hereto as Exhibit A (or any terms substantially identical thereto and no more
adverse to the interests of the Lenders than are the terms set forth in such
description of notes).
5. No Other Amendments; Confirmation. Except as expressly amended,
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waived, modified and supplemented hereby, the provisions of the Credit Agreement
are and shall remain in full force and effect.
6. Representations and Warranties. The Borrower hereby represents
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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 the Borrower 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 the Borrower,
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 contained in
the Credit Agreement (other than representations or warranties expressly made
only on and as of the Effective Date) are true and correct as of the date
hereof.
7. Effectiveness. This Amendment shall become effective only upon
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the satisfaction in full of the following conditions precedent:
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(a) The Administrative Agent shall have received counterparts hereof,
duly executed and delivered by the Borrower and the Required Lenders.
(b) The Administrative Agent shall have received such opinions and
certificates from the Borrower and its counsel relating to this Amendment as it
may reasonably request in form reasonably satisfactory to its counsel.
(c) The Administrative Agent shall have received proof, reasonably
satisfactory to it, that the Equity Commitments shall have been increased to
$30,000,000.
8. Expenses. The Borrower agrees to reimburse the Administrative
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Agent for its 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.
9. Governing Law; Counterparts. (a) This Amendment and the rights
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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.
TELECORP, PCS, INC.
by
/s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: CFO
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THE CHASE MANHATTAN BANK,
by /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
THE BANK OF NEW YORK,
by /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
BANK OF TOKYO MITSUBISHI TRUST COMPANY,
by /s/ [SIGNATURE ILLEGIBLE]
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Name:
Title:
BANKBOSTON, N.A.,
by /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
BANKERS TRUST COMPANY,
by /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Principal
CANADIAN IMPERIAL BANK OF COMMERCE,
by CIBC Xxxxxxxxxxx Corp., as Agent
by /s/ [SIGNATURE ILLEGIBLE]
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Name:
Title:
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CIT GROUP/EQUIPMENT FINANCING,
by
/s/ X.X. Xxxxxx
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Name: X.X. Xxxxxx
Title: Assistant Vice President
CAPTIVA III FINANCE, LTD., as
advised by Pacific Investment
Management Company,
by
/s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Director
DELANO COMPANY, by Pacific Investment
Management Company as its Investment
Advisor,
by
/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
FLEET NATIONAL BANK,
by
/s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Assistant Vice President
GENERAL ELECTRIC CAPITAL CORPORATION,
by
/s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Manager-Operations
KZH APPALOOSA LLC,
by
/s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
KZH IV LLC,
by
/s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
KZH PAMCO LLC,
by
/s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
PAMCO CAYMAN LTD., by Highland
Capital Management, L.P., as
Collateral Manager,
by
/s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx, CFA, CPA
Title: President
SYNDICATED LOAN FUNDING TRUST, by
Xxxxxx Commercial Paper Inc., not in
its individual capacity but solely
as Asset Manager,
by
/s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
XXXXXX COMMERCIAL PAPER INC.
by
/s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
TORONTO DOMINION [TEXAS], INC.,
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by
/s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Vice President
XXX XXXXXX PRIME RATE INCOME TRUST,
by
/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Director
XXX XXXXXX SENIOR FLOATING RATE FUND,
by
/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Director
XXX XXXXXX SENIOR INCOME TRUST,
by
/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Director
MOUNTAIN CLO TRUST,
by
/s/ signature illegible
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Name:
Title:
FRANKLIN FLOATING RATE TRUST,
by
/s/ signature illegible
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Name:
Title:
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XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK,
by
/s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Vice President
DEBT STRATEGIES FUND, INC.
by
__________________________________
Name:
Title:
XXXXXXX XXXXX ASSET MANAGEMENT,
by
__________________________________
Name:
Title:
XXXXXXX XXXXX PRIME RATE PORTFOLIO, INC.,
by
__________________________________
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE FUND,
INC.,
by
__________________________________
Name:
Title:
SENIOR HIGH INCOME PORTFOLIO, INC.,
by
__________________________________
Name:
Title:
