Exhibit 10.3.3
EXECUTION COPY
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT AND CONSENT
(this "Agreement") dated as of the 31st day of October, 2000 (the "Agreement
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Date"), by and among Tritel PCS, Inc. (f/k/a Tritel Holding Corp.), a Delaware
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corporation (the "Borrower"), Tritel, Inc., a Delaware corporation (the
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"Parent"), the Lenders (as defined in the Loan Agreement defined below), and
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Toronto Dominion (Texas), Inc., as administrative agent (the "Administrative
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Agent").
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W I T N E S S E T H:
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WHEREAS, the Borrower, the Lenders and the Administrative Agent are parties
to that certain Amended and Restated Loan Agreement dated as of March 31, 1999,
as amended by that certain First Amendment thereto dated as of April 21, 1999
(as so amended, the "Loan Agreement");
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WHEREAS, the Borrower has requested that the Lenders, and the Lenders have
agreed to, subject to the terms hereof, amend the Loan Agreement as more fully
set forth herein; and
WHEREAS, the Borrower has requested that the Lenders, and the Lenders have
agreed to, subject to the terms hereof, consent to the mergers (collectively,
the "TeleCorp/Tritel Merger") contemplated by that certain Agreement and Plan
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of Reorganization and Contribution dated as of February 28, 2000, as amended (as
so amended, the "Merger Agreement") among the Parent, TeleCorp PCS, Inc. and
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AT&T Wireless Services, Inc., as more fully set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree that all capitalized terms used and not defined herein
shall have the meanings ascribed thereto in the Loan Agreement, and further
agree as follows:
1. Amendment to Section 1.1.
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(a) Section 1.1, Definitions, of the Loan Agreement, is hereby amended
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by deleting each of the definitions of "Change of Control Event", "Network
License Agreement", "Roaming Agreement" and "Stockholders Agreement" in its
entirety and by substituting in lieu thereof the following:
"`Change of Control Event' shall mean the occurrence or existence of
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any of the following: (a) (i) prior to the TeleCorp/Tritel Merger
Effective Date, any sale or other disposition by AT&T or TWR Cellular, Inc.
of any shares of Capital Stock of the Parent prior to January 7, 2002, such
that after giving effect thereto AT&T and TWR Cellular, Inc., collectively,
shall fail to own at least fifteen percent (15%) of the Capital Stock of
the Parent, other than any such sale or other disposition to an Affiliated
Successor and (ii)
on and after the TeleCorp/Tritel Merger Effective Date, any sale or other
disposition by AT&T or TWR Cellular, Inc. of any shares of Capital Stock of
Holdings prior to January 7, 2002, such that after giving effect thereto
AT&T and TWR Cellular, Inc., collectively, shall fail to own at least
fifteen percent (15%) of the Capital Stock of Holdings, other than any such
sale or other disposition to an Affiliated Successor; (b) (i) prior to the
TeleCorp/Tritel Merger Effective Date, the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of
the Securities and Exchange Commission thereunder as in effect on the date
hereof) other than the Parent, Persons owning Capital Stock of the Parent
on January 7, 1999 or any Affiliated Successor, of Capital Stock
representing more than twenty percent (20%) of the aggregate ordinary
voting power represented by the issued and outstanding Capital Stock of
either the Borrower or the Parent and (ii) on and after the TeleCorp/Tritel
Merger Effective Date, the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date
hereof) other than Holdings, Persons owning Capital Stock of Holdings on
the TeleCorp/Tritel Merger Effective Date or any Affiliated Successor, of
Capital Stock representing more than twenty percent (20%) of the aggregate
ordinary voting power represented by the issued and outstanding Capital
Stock of Holdings; (c) (i) prior to the TeleCorp/Tritel Merger Effective
Date, occupation of a majority of the seats (other than vacant seats) on
the board of directors of either the Parent or the Borrower, by Persons who
were not (x) nominated by the board of directors of the Parent (in the case
of the Parent's board) or the Borrower (in the case of the Borrower's
board), (y) appointed by directors so nominated, or (z) in the case of the
Parent, appointed by shareholders of the Parent who are or were
shareholders (or an Affiliated Successor of any such shareholder) of the
Parent on January 7, 1999, and (ii) on and after the TeleCorp/Tritel Merger
Effective Date, occupation of a majority of the seats (other than vacant
seats) on the board of directors of any of Holdings, the Parent or the
Borrower, by Persons who were not (X) nominated by the board of directors
of Holdings (in the case of Holdings' board) or the Parent (in the case of
the Parent's board) or the Borrower (in the case of the Borrower's board),
(Y) appointed by directors so nominated, or (Z) in the case of Holdings,
appointed by shareholders of Holdings who are or were shareholders (or an
Affiliated Successor of any such shareholder) of Holdings on the
TeleCorp/Tritel Merger Effective Date; or (d) (i) prior to the
TeleCorp/Tritel Merger Effective Date, the acquisition of direct or
indirect control of the Borrower or the Parent by any Person (and its
Affiliated Successors) owning Capital Stock of the Parent on January 7,
1999 and (ii) on and after the TeleCorp/Tritel Merger Effective Date, the
acquisition of direct or indirect control of Holdings, the Parent or the
Borrower by any Person (and its Affiliated Successors) owning Capital Stock
of Holdings on the TeleCorp/Tritel Merger Effective Date. Notwithstanding
the foregoing, none of the following shall constitute a "Change of Control
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Event": (A) (1) prior to the TeleCorp/Tritel Merger Effective Date, the
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sale by AT&T or TWR Cellular, Inc. of all or any of its Capital Stock of
the Parent subsequent to January 7, 2002 and (2) on and after the
TeleCorp/Tritel Merger Effective Date, the sale by AT&T or TWR Cellular,
Inc. of all or any of its Capital Stock of Holdings subsequent to January
7, 2002; (B) (1) prior to the TeleCorp/Tritel Merger Effective Date, the
public
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sale by the Parent of newly issued Capital Stock in a public offering and
(2) on and after the TeleCorp/Tritel Merger Effective Date, the public sale
by Holdings of newly issued Capital Stock in a public offering; and (C) (1)
prior to the TeleCorp/Tritel Merger Effective Date, the dilution of AT&T's
and TWR Cellular, Inc.'s collective percentage of Capital Stock of the
Parent as a result of an issuance of Capital Stock by the Parent and (2) on
and after the TeleCorp/Tritel Merger Effective Date, the dilution of AT&T's
and TWR Cellular, Inc.'s collective percentage of Capital Stock of Holdings
as a result of an issuance of Capital Stock by the Holdings.
`Network License Agreement' shall mean (i) prior to the
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TeleCorp/Tritel Merger, the Network Membership License Agreement, dated the
date hereof, by and between AT&T Corp. and the Parent and (ii) from and
after the TeleCorp/Tritel Merger, the Network License Agreement by and
between AT&T Wireless Services Inc. and Holdings, the Parent and/or the
Borrower substantially in the form attached as Exhibit K-1 to the Merger
Agreement.
`Roaming Agreement' shall mean (i) prior to the TeleCorp/Tritel
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Merger, the Intercarrier Roamer Service Agreement by and between AT&T
Wireless Services, Inc. and the Borrower in substantially the form attached
as Exhibit F to the Securities Purchase Agreement and (ii) from and after
the TeleCorp/Tritel Merger, the Intercarrier Roamer Service Agreement by
and between AT&T Wireless Services Inc. and Holdings, the Parent and/or the
Borrower substantially in the form attached as Exhibit K-2 to the Merger
Agreement.
`Stockholders' Agreement' shall mean (i) prior to the TeleCorp/Tritel
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Merger, the Stockholders' Agreement by and among AT&T Wireless Services,
Inc., the Parent, the Cash Equity Investors (as defined therein) and the
Management Stockholders (as defined therein), as stockholders, dated as of
January 7, 1999 and (ii) from and after the TeleCorp/Tritel Merger, the
Stockholders' Agreement by and among Holdings and the Stockholders named
therein dated the TeleCorp/Tritel Merger Effective Date."
(b) Section 1.1, Definitions, of the Loan Agreement is hereby amended
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by adding the following new definitions in their appropriate alphabetical order:
"`Holdings' shall mean TeleCorp-Tritel Holding Company, a Delaware
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corporation to be renamed TeleCorp PCS, Inc.
`Merger Agreement' shall mean that certain Agreement and Plan of
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Reorganization and Contribution among TeleCorp PCS, Inc., Tritel, Inc. and
AT&T Wireless Services, Inc. dated as of February 28, 2000, as amended.
`TeleCorp/Tritel Merger' shall mean the mergers contemplated under the
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Merger Agreement.
`TeleCorp/Tritel Merger Effective Date' shall mean the effective date
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of the TeleCorp/Tritel Merger pursuant to the Merger Agreement."
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2. Amendment to Section 4.1. Section 4.1(z), Parent Assets, of the Loan
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Agreement, is hereby amended by deleting such paragraph in its entirety and
substituting in lieu thereof the following:
"(z) Parent Assets. The Parent has no assets other than the Capital
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Stock of the Borrower, investments in the Borrower and/or the Borrower's
Subsidiaries permitted hereunder, rights under the Securities Purchase
Agreement, rights under the Stockholders Agreement, the Bid Equity
Commitments, so long as the proceeds of such Bid Equity Commitments are
disposed of in accordance with Section 5.17(b) hereof and such other assets
as are necessary in connection with the administration of, and the conduct
of its business by, the Parent."
3. Amendments to Article 5.
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(a) Amendment to Section 5.17. Section 5.17(b), Business of the
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Parent; Immediate Contributions to the Borrower, of the Loan Agreement, is
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hereby amended by deleting such paragraph in its entirety and by substituting in
lieu thereof the following:
"(b) The Parent shall immediately (i) contribute to the Borrower
upon receipt (A) any capital contributions and (B) net proceeds from
the issuance of any Indebtedness (excluding Subordinated Debt and,
from and after the TeleCorp/Tritel Merger Effective Date, any
Indebtedness of the Parent permitted under Section 7.1(m)) and (ii)
lend to the Borrower (x) the net proceeds of any Subordinated Debt,
which loan shall be subordinate to the Obligations hereunder on terms
reasonably satisfactory to the Required Lenders and (y) on and after
the TeleCorp/Tritel Merger Effective Date, the net proceeds of any
Indebtedness of the Parent permitted under Section 7.1(m), which loan
shall be subordinate to the Obligations on terms reasonably
satisfactory to the Administrative Agent and which loan shall have
terms no less advantageous to the Lenders than those of any loan under
subsection (x) of this Section 5.17(b)(ii)."
(b) Amendment to Section 5.20. Section 5.20, The Bid Equity
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Commitments, is hereby amended by deleting each reference to "$7,500,000"
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contained therein and by substituting in lieu thereof "$7,550,000".
4. Amendment to Section 6.4. Section 6.4, Copies of Other Reports, of
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the Loan Agreement, is hereby amended by deleting clause (g) in its entirety and
by substituting in lieu thereof the following:
"(g) Intentionally omitted."
5. Amendments to Article 7.
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(a) Section 7.1, Indebtedness of the Parent, the Borrower and the
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Borrower's Subsidiaries, of the Loan Agreement, is hereby amended by (i)
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deleting the reference to "$250,000,000" in clause (g) thereof and substituting
in lieu thereof "$750,000,000"; (ii) deleting the word "and" after clause (k)
thereof; (iii) deleting the period at the end of clause (l) thereof
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and substituting in lieu thereof "; and"; and (iv) adding at the end thereof a
new clause (m) to read as follows:
"(m) from and after the TeleCorp/Tritel Merger Effective Date,
subordinated Indebtedness of the Parent to Holdings, provided that (i)
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such Indebtedness shall be subordinated to all the Obligations and
evidenced by a promissory note containing subordination provisions
reasonably satisfactory to the Administrative Agent and shall require
no payments earlier than five years from the date of issuance thereof
and (ii) the aggregate amount of any payments required under such
Indebtedness shall not exceed the amount of any Excess Cash Flow not
required to be applied to prepay the Loans pursuant to Section
2.7(b)(iv)."
(b) Amendment to Section 7.4. Section 7.4(a), Liquidation, Merger or
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Disposition of Assets, of the Loan Agreement is hereby amended by (i) deleting
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the word "or" before clause (vi) thereof; (ii) deleting the period at the end of
clause (iv) and substituting in lieu thereof "; or," and (iii) adding at the
end thereof a new clause (v) to read as follows:
"(v) sale of any or all of licenses acquired from Digital PCS,
Inc. respecting Florida and Georgia to Panther Wireless, LLC or other
designee of AT&T Wireless Services, Inc.; provided, that the total
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consideration for such sale(s) shall not exceed $20,000,000 in the
aggregate."
(c) Amendment to Section 7.6. Section 7.6, Investments and
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Acquisitions, of the Loan Agreement, is hereby amended (i) by adding at the end
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of the first parenthetical thereof the following "and additional spectrum and
related assets under the Borrower's existing footprint"; and (ii) by deleting
each reference to "$7,500,000" contained in paragraph (e) thereof and by
substituting in lieu thereof "$7,550,000".
(d) Amendment to Section 7.7. Section 7.7, Limitations on
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Distributions, of the Loan Agreement, is hereby amended by deleting such Section
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in its entirety and by substituting in lieu thereof the following:
"Section 7.7 Limitation on Distributions. The Parent and the
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Borrower shall not, and shall not permit any of the Borrower's
Subsidiaries to, make any Restricted Payment or Restricted Purchase;
provided, however, that such Restricted Payments or Restricted
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Purchases may be made if (a) the Total Leverage Ratio is less than
5.00 to 1.00, (b) the Borrower has made all repayments from Excess
Cash Flow required under Section 2.7(b)(iv) hereof, and (c) no Default
or Event of Default exists, both before and after giving effect to
such Restricted Payments or Restricted Purchases. Notwithstanding any
of the foregoing, so long as no Default (or Event of Default in case
of clause (v) below) has occurred and is continuing both before and
after giving effect to the following Restricted Payments or Restricted
Purchases, the Parent, the Borrower and its Subsidiaries shall be
permitted to make Restricted Payments or Restricted Purchases (i) to
the Parent, and on and after the TeleCorp/Tritel Merger Effective
Date, Holdings, as applicable, to pay administrative and other similar
costs and
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franchise and other similar taxes required to be paid by the Parent,
and on and after the TeleCorp/Tritel Merger Effective Date, Holdings,
as applicable, in each case in an aggregate amount not to exceed
$1,000,000 per fiscal year, (ii) to fund, as and when due, payments of
regularly scheduled interest and principal in respect of any
Indebtedness incurred by the Parent that is permitted under Section
7.1 hereof, other than payments in respect of the Subordinated Debt
prohibited by the subordination provisions thereof, (iii) to Parent,
and, on and after the TeleCorp/Tritel Merger Effective Date, to
Holdings, as applicable, in an amount sufficient to enable Parent, or
Holdings, as applicable, to make Restricted Payments pursuant to and
in accordance with stock option plans or other benefit plans for
management or employees of the Parent, the Borrower or the Borrower's
Subsidiaries, in an aggregate amount not to exceed $1,000,000 per
fiscal year, (iv) on and after the TeleCorp/Tritel Merger Effective
Date, to Holdings and its Subsidiaries to pay management, consulting
or similar fees, or any interest thereon, on account of any cost
sharing or similar arrangements, provided that such fees and interest
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shall be no greater than those that would be payable in a third party
arm's-length transaction, (v) on and after the TeleCorp/Tritel Merger
Effective Date, with respect to its Capital Stock to fund the
obligations of the Parent or Holdings to repurchase, redeem, acquire
or retire for value, or make other payments of interest in respect of,
any Capital Stock of the Parent or Holdings held or previously held by
any member or former member of the management of the Borrower and its
Subsidiaries pursuant to any management equity subscription agreement,
stock option agreement, restricted stock agreement, put agreement or
other similar arrangements, provided that the aggregate amount of such
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Restricted Payments shall not exceed $10,000,000 in any fiscal year of
the Borrower, provided further that up to an aggregate of $20,000,000
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of unused amounts of permitted Restricted Payments during one or more
fiscal years may be carried forward to one or more future fiscal years
and (vi) on and after the TeleCorp/Tritel Merger Effective Date, by
the Borrower to the Parent in an aggregate amount not to exceed
$10,000,000 to fund the repurchase by the Parent of the shares of
voting preference shares of the Parent held by X.X. Xxxxxx in
connection with the TeleCorp/Tritel Merger. In addition,
notwithstanding any of the foregoing, from and after the
TeleCorp/Tritel Merger Effective Date, the Parent shall be permitted
to make Restricted Payments and Restricted Purchases to Holdings (and
the Borrower and its Subsidiaries shall be permitted to make
Restricted Payments and Restricted Purchases to the Parent to fund
such Restricted Payments and Restricted Purchases by the Parent to
Holdings) in an aggregate amount not to exceed the lesser of (i) the
aggregate amount contributed by Holdings to the Parent as capital or
lent by Holdings to the Parent (and by the Parent to the Borrower or
any of its Subsidiaries) and (ii) an amount not in excess of Excess
Cash Flow, provided the prepayments required by Section 2.7(b)(iv)
hereof have previously been made."
(e) Amendment to Section 7.13. Section 7.13 of the Loan Agreement,
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Maximum Capital Expenditures, is hereby amended by deleting such Section in its
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entirety and substituting in lieu thereof the following:
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"Section 7.13 Maximum Capital Expenditures. (a) As of each fiscal
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quarter end set forth below, and (b) at the time of any Advance hereunder
which, if funded, would increase the aggregate principal amount of the
Loans outstanding on such date of determination, the Borrower shall not
permit Capital Expenditures (excluding assets purchased with the proceeds
of obsolete, worn out or no longer useful assets as permitted by Section
7.4(a) hereof and, on and after the TeleCorp/Tritel Merger Effective Date,
excluding assets purchased with the proceeds of any capital contributed to
the Parent by Holdings or any loans made to the Parent by Holdings
permitted hereunder and contributed by the Parent to the Borrower as
capital or otherwise lent by the Parent to the Borrower) for the Borrower
and its Subsidiaries to exceed in any period:
Period Total Capital Expenditures
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The Agreement Date through December 31, 1999 $334,000,000
From January 1, 2000 through December 31, 2000 $411,000,000
From January 1, 2001 through December 31, 2001 $ 91,000,000
From January 1, 2002 through December 31, 2002 $ 15,000,000
From January 1, 2003 through December 31, 2003 $ 15,000,000
From January 1, 2004 through December 31, 2004 $ 15,000,000
From January 1, 2005 through December 31, 2005 $ 15,000,000
From January 1, 2006 through December 31, 2006 $ 15,000,000
From January 1, 2007 through December 31, 2007 $ 15,000,000
; provided that any permitted amount which is not spent in any period
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specified above (excluding any amount carried forward from the immediately
preceding period permitted to be spent during such period) may be carried
forward to the immediately subsequent period, and may be spent in addition
to the otherwise applicable limitation for such period; provided further
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that for purposes of calculating the amount of any carry-forward amount for
any period under this Section 7.13, any amount carried forward from the
preceding period shall be deemed to be the first amount spent during the
current period; provided, further, on and after the TeleCorp/Tritel Merger
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Effective Date, that in addition to the amounts otherwise permitted under
this Section 7.13, the Borrower and its Subsidiaries may make additional
Capital Expenditures in an aggregate amount not to exceed the product of
(x) $10.00 multiplied by (y) the number of aggregate POPs located within
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the network for the purposes of constructing voice, data, video and/or
other media communication systems using new technology pursuant to a
business plan and during periods approved of in advance in writing by the
Required Lenders."
6. Other Amendments. On and after the TeleCorp/Tritel Merger Effective
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Date, all references to the "Management Agreement" are deemed deleted.
7. Consent to the TeleCorp/Tritel Merger and Waiver.
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(a) Consent. Subject to the terms and conditions hereof,
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notwithstanding any provisions of the Loan Documents, the undersigned Lenders
hereby consent to the terms and conditions of the Merger Agreement and the other
documents contemplated thereby and to the
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consummation of the TeleCorp/Tritel Merger and the transactions contemplated
thereby pursuant to such terms and conditions, including, without limitation,
the transactions described on Schedule 1 hereto. The Lenders hereby consent to
the waiver by the parties to the TeleCorp/Tritel Merger of receipt of a final
order issued by the FCC prior to the consummation of the TeleCorp/Tritel Merger.
On or prior to the consummation of the TeleCorp/Tritel Merger, the Borrower and
the Parent shall provide to the Administrative Agent, in form and substance
reasonably satisfactory to the Administrative Agent, (i) certification to the
Administrative Agent and the Lenders of the Borrower's and the Parent's
compliance with Sections 7.8, 7.9, 7.10, 7.11, 7.12, 7.13, 7.14 and 7.15 of the
Loan Agreement, after giving effect to the TeleCorp/Tritel Merger; (ii)
certification to the Administrative Agent and the Lenders that a Default does
not exist under the Loan Agreement and will not be caused by the TeleCorp/Tritel
Merger, after giving effect to this Agreement; (iii) evidence reasonably
satisfactory to the Administrative Agent of the consummation of the
TeleCorp/Tritel Merger on substantially the terms and conditions set forth in
the Merger Agreement (except as provided in the second sentence of this Section
7(a)); (iv) receipt by the Administrative Agent and the Lenders of opinions of
corporate and special FCC counsel to the Parent and the Borrower, opining as to
the enforceability, validity and binding nature of the Loan Agreement and other
Loan Documents, after giving effect to the TeleCorp/Tritel Merger; and (v)
receipt by the Administrative Agent and the Lenders of confirmation by the
Parent, the Borrower and any Subsidiaries of the Borrower of each of their
Obligations under the Security Documents after giving effect to the
TeleCorp/Tritel Merger.
(b) Waivers. (i) Notwithstanding any provision of the Loan Agreement
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(including, without limitation, Sections 5.20 and 7.6 of the Loan Agreement),
the undersigned Lenders hereby waive any Default or Event of Default that may
have resulted from Bid Equity Commitments of the Parent and the Borrower in the
aggregate amount of $7,550,000 and (ii) notwithstanding any provision of the
Loan Agreement (including, without limitation, Sections 7.6 and 7.18 of the Loan
Agreement), the undersigned Lenders hereby waive any Default or Event of Default
that may have arisen from the Parent advancing in excess of $2,500,000 in the
aggregate principal amount at any time outstanding to the Mercury entities in
connection with the liquidity facility described in the third item on Schedule 5
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to the Loan Agreement.
8. No Other Amendment or Waiver. Notwithstanding the agreement of the
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Lenders to the terms and provisions of this Agreement, the Borrower and the
Parent acknowledge and expressly agree that this Agreement is limited to the
extent expressly set forth herein and shall not constitute a modification of the
Loan Agreement or any other Loan Documents or a course of dealing at variance
with the terms of the Loan Agreement or any other Loan Documents (other than as
expressly set forth above) so as to require further notice by the Administrative
Agent or the Lenders, or any of them, of its or their intent to require strict
adherence to the terms of the Loan Agreement and the other Loan Documents in the
future. All of the terms, conditions, provisions and covenants of the Loan
Agreement and the other Loan Documents shall remain unaltered and in full force
and effect except as expressly modified by this Agreement. The Loan Agreement
and each other Loan Document shall be deemed modified hereby solely to the
extent necessary to effect the waivers and amendments contemplated hereby.
9. Representations and Warranties. The Borrower and the Parent hereby
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represent and warrant in favor of the Administrative Agent and each Lender as
follows:
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(a) The Borrower and the Parent each has the corporate power and
authority (i) to enter into this Agreement and (ii) to do all other acts and
things as are required or contemplated hereunder to be done, observed and
performed by them;
(b) This Agreement has been duly authorized and validly executed and
delivered by one or more Authorized Signatories of the Borrower and the Parent
and constitutes the legal, valid and binding obligation of the Borrower and the
Parent, enforceable against each of them in accordance with its terms, subject
to the following qualifications: (i) an order of specific performance and an
injunction are discretionary remedies and, in particular, may not be available
where damages are considered an adequate remedy at law and (ii) applicable
bankruptcy, insolvency, liquidation, reorganization, reconstruction and other
similar laws affecting enforcement of creditors' rights generally (insofar as
any such law relates to the bankruptcy, insolvency or similar event of the
Borrower and the Parent);
(c) The execution and delivery of this Agreement and the performance
by the Borrower and the Parent under the Loan Agreement and the other Loan
Documents to which each is a party, as amended hereby, do not and will not
require the consent or approval of any regulatory authority or governmental
authority or agency having jurisdiction over the Parent, the Borrower or any of
its Subsidiaries which has not already been obtained, nor is in contravention of
or in conflict with the articles of incorporation, by-laws or partnership
agreements of the Parent, the Borrower or any of its Subsidiaries, or any
provision of any statute, judgment, order, or material indenture, instrument,
agreement, or undertaking to which the Parent, the Borrower or any of its
Subsidiaries is a party or by which any of their respective assets or properties
is or may become bound; and
(d) The representations and warranties contained in Section 4.1 of
the Loan Agreement and contained in the other Loan Documents remain true and
correct as of the date hereof, both before and after giving effect to this
Agreement, except to the extent previously fulfilled in accordance with the
terms of the Loan Agreement or such other Loan Document, as applicable, or to
the extent relating specifically to the Agreement Date. No Default now exists or
will be caused hereby.
10. Conditions Precedent. The effectiveness of this Agreement is subject
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to the receipt by the Administrative Agent of counterparts hereof executed by
the Required Lenders, the Borrower and the Parent.
11. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute one and the same instrument.
12. Loan Documents. Each reference in the Loan Agreement or any other
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Loan Document to the term "Loan Agreement" shall hereafter mean and refer to the
Loan Agreement as amended hereby and as the same may hereafter be amended.
13. Governing Law. This Agreement shall be construed in accordance with
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and governed by the internal laws of the State of New York, applicable to
agreements made and to be performed in New York.
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14. Effective Date. Upon satisfaction of the conditions precedent
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referred to in Section 10 hereof, the provisions of this Agreement shall (except
with respect to the consent to the TeleCorp/Tritel Merger pursuant to Section
7(a) hereof) be effective as of the Agreement Date, provided, that the consent
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to the TeleCorp/Tritel Merger shall be effective on the date of receipt of the
documents described in Section 7(a) hereof by the Administrative Agent.
15. Severability. Any provision of this Agreement which is prohibited or
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unenforceable in any jurisdiction shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof in that jurisdiction or affecting the validity or enforceability of such
provision in any other jurisdiction.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed under seal by their duly authorized officers, all as of
the day and year first above written.
BORROWER: TRITEL PCS, INC.,
a Delaware corporation
By: /s/ X.X. Xxxxxx, Xx.
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Name: X.X. Xxxxxx, Xx.
---------------------------------
Title: Executive Vice President/CFO
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PARENT: TRITEL, INC., a Delaware corporation
By: /s/ X.X. Xxxxxx, Xx.
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Name: X.X. Xxxxxx, Xx.
---------------------------------
Title: Executive Vice President/CFO
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SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 1
ADMINISTRATIVE AGENT
AND LENDER: TORONTO DOMINION (TEXAS), INC., as
Administrative Agent and as a Lender
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
----------------------------------
Title: Vice President
---------------------------------
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 2
BARCLAYS BANK PLC, as Lender
By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
----------------------------
Title: Director
---------------------------
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 3
BANK OF AMERICA, N.A., as Lender
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
---------------------------
Title: Managing Director
--------------------------
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 4
ABN AMRO BANK N.V., as a Lender
By: /s/ Xxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxxx
----------------------------
Title: Vice President
---------------------------
By: /s/ Xxxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxxxx
----------------------------
Title: Assistant Vice President
---------------------------
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 5
BANK OF MONTREAL, as a Lender
By: /s/ X. Xxxxx
---------------------------------
Name: X. Xxxxx
---------------------------
Title: Managing Director
--------------------------
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 6
THE BANK OF NEW YORK, as a Lender
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxx
-----------------------------
Title: Vice President
----------------------------
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 7
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ Xxx X. Xxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxx
------------------------------
Title: Authorized Signatory
-----------------------------
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 8
THE BANK OF TOKYO-MITSUBISHI
TRUST COMPANY, as a Lender
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
-------------------------------
Title: Vice President
------------------------------
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 9
CIBC INC., as a Lender
By: /s/ M. Xxxx Xxxxxx
---------------------------------------
Name: M. Xxxx Xxxxxx
---------------------------------
Title: Authorized Signatory
--------------------------------
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 10
THE CIT GROUP/EQUIPMENT FINANCING, INC., as a Lender
By:____________________________________________________
Name:_______________________________________________
Title:______________________________________________
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 11
CREDIT LYONNAIS NEW YORK BRANCH, as a Lender
By:/s/ Xxxx X. Judge
----------------------------------------------------
Name: Xxxx X. Judge
-----------------------------------------------
Title: Vice President
----------------------------------------------
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 12
CYPRESSTREE INSTITUTIONAL FUND, LLC, as a Lender
By: CypressTree Investment Management Company, Inc.,
its Managing Member
By:____________________________________________________
Name:_______________________________________________
Title:______________________________________________
NORTH AMERICAN SENIOR FLOATING RATE FUND, as a Lender
By: Cypress Tree Investment Management Company, Inc.,
as Portfolio Manager
By:_________________________________________________
Name:____________________________________________
Title:___________________________________________
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 13
DRESDNER BANK AG NEW YORK AND GRAND CAYMAN BRANCHES, as
a Lender
By: /s/ Xxxx Fleseler
----------------------------------------------------
Name: Xxxx Fleseler
-----------------------------------------------
Title: Senior Vice President
----------------------------------------------
By: /s/ Xxxxx Xxxxxxxxx
----------------------------------------------------
Name: Xxxxx Xxxxxxxxx
-----------------------------------------------
Title: Assistant Vice President
----------------------------------------------
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 14
XXXXX XXXXX SENIOR INCOME TRUST, as a Lender
By: Xxxxx Xxxxx Management, as Investment Advisor
By:____________________________________________________
Name:_______________________________________________
Title:______________________________________________
SENIOR DEBT PORTFOLIO, as a Lender
By: Boston Management and Research, as Investment
Advisor
By:____________________________________________________
Name:_______________________________________________
Title:______________________________________________
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 15
ELC (CAYMAN) LTD. CDO SERIES 1999-1, as a Lender
By:____________________________________________________
Name:_______________________________________________
Title:______________________________________________
APEX (IDM) CDO I LTD., as a Lender
By:____________________________________________________
Name:_______________________________________________
Title:______________________________________________
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 16
FIRST UNION NATIONAL BANK, as a Lender
By: /s/ Xxxxx Northern
----------------------------------------------------
Name: Xxxxx Northern
-----------------------------------------------
Title: Director/SVP
----------------------------------------------
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 17
FLOATING RATE PORTFOLIO, as a Lender
By: INVESCO Senior Secured Management, Inc. as
attorney in fact
By: /s/ Xxxxxxxx X. Xxxxxxxx
----------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
-----------------------------------------------
Title: Authorized Signatory
----------------------------------------------
AVALON CAPITAL LTD. 2, as a Lender
By: INVESCO Senior Secured Management, Inc. as
Portfolio Advisor
By: /s/ Xxxxxxxx X. Xxxxxxxx
----------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
-----------------------------------------------
Title: Authorized Signatory
----------------------------------------------
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 18
FORTIS CAPITAL CORP., as a Lender
By:____________________________________________________
Name:_______________________________________________
Title:______________________________________________
By:____________________________________________________
Name:_______________________________________________
Title:______________________________________________
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 19
FRANKLIN FLOATING RATE TRUST, as a Lender
By:____________________________________________________
Name:_______________________________________________
Title:______________________________________________
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 20
XXXXXX FINANCIAL, INC., as a Lender
By: /s/ X. Xxxxx Gallenhugh
---------------------------------------
Name: X. Xxxxx Gallenhugh
---------------------------------
Title: Senior Vice President
---------------------------------
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 21
KZH CYPRESSTREE-1 LLC, as a Lender
By:_______________________________________
Name:__________________________________
Title:_________________________________
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 22
XXXXXX BANK PLC, as a Lender
By:_______________________________________
Name:__________________________________
Title:_________________________________
By:_______________________________________
Name:__________________________________
Title:_________________________________
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 23
XXXXXXX XXXXX SENIOR FLOATING RATE FUND,
INC., as a Lender
By:_______________________________________
Name:__________________________________
Title:_________________________________
XXXXXXX XXXXX PRIME RATE PORTFOLIO, as a
Lender
By: Xxxxxxx Xxxxx Asset Management, L.P., as
Investment Advisor
By:
Name:__________________________________
Title:_________________________________
XXXXXXX XXXXX GLOBAL INVESTMENT SERIES:
INCOME STRATEGIES PORTFOLIO, as a Lender
By: Xxxxxxx Xxxxx Asset Management, L.P., as
Investment Advisor
By:_______________________________________
Name:__________________________________
Title:_________________________________
XXXXXXX XXXXX SENIOR FLOATING RATE FUND
II, INC., as a Lender
By:_______________________________________
Name:__________________________________
Title:_________________________________
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 24
DEBT STRATEGIES FUND II, INC., as a Lender
By:_______________________________________
Name:__________________________________
Title:_________________________________
DEBT STRATEGIES FUND III, INC., as a Lender
By:_______________________________________
Name:__________________________________
Title:_________________________________
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 25
METROPOLITAN LIFE INSURANCE COMPANY, as a
Lender
By:_______________________________________
Name:__________________________________
Title:_________________________________
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 26
NATIONAL WESTMINSTER BANK PLC, as a Lender
By: NatWest Capital Markets Limited, its Agent
By: Greenwich Capital Markets, Inc., its Agent
By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxxxxx
--------------------------------------
Title: Assistant Vice President
-------------------------------------
AMMC CDO I, LIMITED, as a Lender
By: American Money Management Corp., as Collateral
Manager
By: /s/ Xxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxx
--------------------------------------
Title: Vice President
-------------------------------------
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 27
PARIBAS CAPITAL FUNDING LLC, as a Lender
By:_____________________________________
Name:________________________________
Title:_______________________________
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 28
PNC BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
-----------------------------------
Title: Vice President
----------------------------------
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 29
ROYAL BANK OF CANADA, as a Lender
By:________________________________
Name:___________________________
Title:__________________________
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 30
SOCIETE GENERALE, as a Lender
By:_______________________________
Name:__________________________
Title:_________________________
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 31
XXXXX XXX & FARNHAM, INCORPORATED, as Agent
for KEYPORT LIFE INSURANCE COMPANY, as a
Lender
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------
Title: Sr. Vice President and Portfolio
-----------------------------------
Manager
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 32
XXX XXXXXX PRIME RATE INCOME TRUST, as a
Lender
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------
Title: Vice President
--------------------------------
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 33
VARIABLE INSURANCE PRODUCTS II: ASSET
MANAGER PORTFOLIO, as a Lender
By:___________________________________
Name:______________________________
Title:_____________________________
VARIABLE INSURANCE PRODUCTS II: ASSET
MANAGER: GROWTH PORTFOLIO, as a Lender
By:___________________________________
Name:______________________________
Title:_____________________________
FIDELITY ADVISOR SERIES II: FIDELITY
ADVISTOR FLOATING RATE HIGH FUND, as a
Lender
By:____________________________________
Name:_______________________________
Title:______________________________
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT AND CONSENT
Signature Page 34
SCHEDULE 1
----------
SUMMARY OF MERGER TRANSACTIONS
TeleCorp PCS, Inc. ("TeleCorp") formed a new company, TeleCorp-Tritel
Holding Company, with two subsidiaries, TTHC First Merger Sub, Inc. ("First
Merger Sub") and TTHC Second Merger Sub, Inc. ("Second Merger Sub"). At the time
the merger is completed:
. First Merger Sub will be merged into TeleCorp, TeleCorp will be the
surviving corporation and TeleCorp will change its name to TeleCorp
Wireless, Inc;
. Second Merger Sub will be merged into Tritel, Inc. ("Tritel"), Tritel
will be the surviving corporation and Tritel's Certificate of
Incorporation and By-Lays will be amended and restated in their
entirety to read as is set forth for the Second Merger Sub (the
"Second Merger");
. TeleCorp and Tritel stockholders will become stockholders of Holding
Company through the conversion of their respective capital stock for
Holding Company capital stock; and
. Holding Company will change its name to TeleCorp PCS, Inc.
As a result, TeleCorp and Tritel will each become a wholly owned
subsidiary of Holding Company.
