Exhibit 10.4
THIRD AMENDMENT, dated as of March 8, 2002 (this
"Amendment"), to the Second Amended and Restated Credit
Agreement, dated as of February 3, 1998, as amended and
restated as of September 22, 1999 and September 14, 2000 (as
amended, supplemented or otherwise modified from time to time,
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"), JPMORGAN CHASE BANK (formerly known as The
Chase Manhattan Bank), as administrative agent (the
"Administrative Agent") for the Lenders, FIRST UNION NATIONAL
BANK, as Tranche E syndication agent (the "Tranche E
Syndication Agent") and THE BANK OF NOVA SCOTIA, as Tranche E
documentation agent (the "Tranche E Documentation Agent").
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed
to make certain loans to the Borrower;
WHEREAS, pursuant to Section 2.19 of the Credit Agreement, the
Borrower has requested to borrow Incremental Term Loans in the form of Tranche E
Term Loans (as defined below); 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.
2. Amendments to the Credit Agreement.
(a) Section 1.01 of the Credit Agreement is hereby amended by:
2
(i) deleting the definition of "Applicable Margin" and substituting
the following therefor:
"`Applicable Margin' means, (i) with respect to any Tranche B Term
Loan, the applicable Tranche B Rate, (ii) with respect to any Tranche E Term
Loan, the applicable Tranche E Rate, or (iii) with respect to a Revolving Loan,
a Tranche A Term Loan, a Tranche C Term Loan or a Tranche D Term Loan, the
applicable rate per annum for a Revolving Loan, a Tranche A Term Loan, a Tranche
C Term Loan or a Tranche D Term Loan based upon the Leverage Ratio as of the
most recent determination date as set forth below under the caption "ABR Spread"
or "Eurodollar Spread", as the case may be; provided, however, that unless
Consolidated EBITDA for the most recent fiscal quarter for which financial
statements have been delivered pursuant to Section 5.01 is positive, the
"Applicable Margin" for purposes of clause (ii) shall be the applicable rate per
annum set forth below in Category 1:
------------------------------------------------------------------------------
ABR Eurodollar
Leverage Ratio: Spread Spread
------------------------------------------------------------------------------
Category 1
Not Applicable 1.250% 2.250%
------------------------------------------------------------------------------
Category 2
Greater than or equal to
10.0 to 1.00 1.000% 2.000%
------------------------------------------------------------------------------
Category 3
Greater than or equal to
9.0 to 1.00 but less
than 10.0 to 1.00 0.875% 1.875%
------------------------------------------------------------------------------
Category 4
Greater than or equal to
8.0 to 1.00 but less
than 9.0 to 1.00 0.750% 1.750%
------------------------------------------------------------------------------
Category 5
Greater than or equal to
6.0 to 1.00 but less
than 8.0 to 1.00 0.500% 1.500%
------------------------------------------------------------------------------
Category 6
Greater than or equal to
5.0 to 1.00 but less
than 6.0 to 1.00 0.250% 1.250%
------------------------------------------------------------------------------
3
------------------------------------------------------------------------------
ABR Eurodollar
Leverage Ratio: Spread Spread
------------------------------------------------------------------------------
Category 7
Less than 5.0 to 1.00 -- 1.000%
------------------------------------------------------------------------------
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's
fiscal year based upon the Borrower's consolidated financial
statements delivered pursuant to Section 5.01(a) or (b) and (ii)
each change in the Applicable Margin resulting from a change in the
Leverage Ratio shall be effective during the period commencing on
and including the date of delivery to the Administrative Agent of
such consolidated financial statements indicating such change and
ending on the date immediately preceding the effective date of the
next such change; provided that the Leverage Ratio shall be deemed
to be in Category 1 (A) at any time that an Event of Default ss. ss.
has occurred and is continuing or (B) if the Borrower fails to
deliver the consolidated financial statements required to be
delivered by it pursuant to Section 5.01(a) or (b), during the
period from the expiration of the time for delivery thereof until
such consolidated financial statements are delivered."
(ii) deleting the definition of "Applicable Rate" and substituting
the following therefor:
"`Applicable Rate' means with respect to the commitment fees payable
hereunder, the applicable rate per annum set forth below based upon the Leverage
Ratio as of the most recent determination date; provided, however, that unless
Consolidated EBITDA for the most recent fiscal quarter for which financial
statements have been delivered pursuant to Section 5.01 is positive, the
Applicable Rate shall be the applicable rate per annum set forth below in
Category 1:
-------------------------------------------------------------------
Commitment
Leverage Ratio: Fee Rate
--------------------------------------------------------------------
Category 1
Not Applicable 0.50%
--------------------------------------------------------------------
Category 2
Greater than or equal to 10.0 to 1 0.50%
--------------------------------------------------------------------
4
------------------------------------------------------------------------------
ABR Eurodollar
Leverage Ratio: Spread Spread
------------------------------------------------------------------------------
Category 3
Less than 10.0 to 1 0.375%
--------------------------------------------------------------------
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's
fiscal year based upon the Borrower's consolidated financial
statements delivered pursuant to Section 5.01(a) or (b) and (ii)
each change in the Applicable Rate resulting from a change in the
Leverage Ratio shall be effective during the period commencing on
and including the date of delivery to the Administrative Agent of
such consolidated financial statements indicating such change and
ending on the date immediately preceding the effective date of the
next such change; provided that the Leverage Ratio shall be deemed
to be in Category 1 (A) at any time that an Event of Default has
occurred and is continuing or (B) if the Borrower fails to deliver
the consolidated financial statements required to be delivered by it
pursuant to Section 5.01(a) or (b), during the period from the
expiration of the time for delivery thereof until such consolidated
financial statements are delivered."
(iii) deleting the definition of "Class" and substituting the
following therefor:
"`Class', when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing,
are Revolving Loans, Tranche A Term Loans, Tranche B Term Loans,
Tranche C Term Loans, Tranche D Term Loans, Tranche E Term Loans,
Incremental Term Loans, if any, or Swingline Loans and, when used in
reference to any Commitment, refers to whether such Commitment is a
Revolving Commitment, Tranche A Commitment, Tranche B Commitment,
Tranche C Commitment, Tranche D Commitment, Tranche E Commitment or
Incremental Commitment, if any."
(iv) deleting the definition of "Commitment" and substituting the
following therefor:
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"`Commitment' means a Revolving Commitment, Tranche A
Commitment, Tranche B Commitment, Tranche C Commitment, Tranche D
Commitment, Tranche E Commitment or Incremental Commitment, if any,
or any combination thereof (as the context requires)."
(v) deleting the definition of "Revolving Loan" and substituting the
following therefor:
"`Revolving Loan' means a Loan made pursuant to clause (f) of
Section 2.01."
(vi) deleting the definition of "Term Loans" and substituting the
following therefor:
"`Term Loans' means Tranche A Term Loans, Tranche B Term
Loans, Tranche C Term Loans, Tranche D Term Loans, Tranche E Term
Loans and Incremental Term Loans."
(vii) adding the following definitions in their appropriate
alphabetical order:
"`Tranche E Availability Period' means the period from and
including the Tranche E Effective Date to but excluding the earlier
of March 8, 2003 and the date of termination of the Tranche E
Commitments."
"`Tranche E Commitment' means with respect to each Lender, the
commitment, if any, of such Lender to make Tranche E Loans
hereunder, expressed as an amount representing the maximum principal
amount of Tranche E Term Loans hereunder, as such commitment may be
(a) reduced pursuant to Section 2.06 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's
Tranche E Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have
assumed its Tranche E Commitment. The initial aggregate amount of
the Lenders' Tranche E Commitment is $125,000,000."
"`Tranche E Effective Date' means the date on which the
conditions specified in Section 5 of the Third Amendment are
satisfied (or waived)."
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"`Tranche E Execution Date' means March 8, 2002, the date of
execution of the third amendment (the "Third Amendment") to this
Agreement."
"`Tranche E Lender' means a Lender with a Tranche E Commitment
or an outstanding Tranche E Term Loan."
"`Tranche E Maturity Date' means February 4, 2007."
"`Tranche E Rate' means, with respect to any Tranche E Term
Loan (a) 2.00% per annum, in the case of an ABR Loan, and (b) 3.00%
per annum, in the case of an Eurodollar Loan."
"`Tranche E Term Loan' means a loan made pursuant to clause
(e) of Section 2.01."
(b) Section 2.01 of the Credit Agreement is hereby amended by
deleting "and (e)" therefrom and substituting the following therefor:
", (e) to make Tranche E Term Loans to the Borrower during the
Tranche E Availability Period in an aggregate principal amount not
exceeding its Tranche E Commitment and (f)"
(c) Section 2.02(d) is hereby amended by deleting "or the Tranche D
Maturity Date" therefrom and inserting therefor the following:
", Tranche D Maturity Date or the Tranche E Maturity Date"
(d) Clause (i) of Section 2.03 of the Credit Agreement is hereby
amended by deleting therefrom "or Tranche D Term Borrowing" and substituting
therefor the following:
", Tranche D Term Borrowing or Tranche E Term Borrowing"
(e) Section 2.06(a) of the Credit Agreement is hereby amended by
deleting "and (v)" therefrom and substituting therefor the following:
", (v) the Tranche E Commitments shall terminate at 5:00 p.m.
New York City time, on the last day of the Tranche E Availability
Period and (vi)"
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(f) Section 2.08 is hereby deleted in its entirety and the following
substituted therefor:
"SECTION 2.08. Automatic Revolving Commitment Reductions;
Amortization of Term Loans. (a) The aggregate amount of the Lenders'
Revolving Commitments shall automatically and permanently reduce in
eight consecutive quarterly reductions occurring on August 4, 2004,
and on each successive date thereafter which is three months after
the preceding reduction date, in the aggregate amount set forth
below for each reduction:
Reduction Amount
--------- ------
1-2 $ 5,000,000
3-6 $10,000,000
7-8 $25,000,000
(b) Subject to adjustment pursuant to paragraph (f) of this
Section, the Borrower shall repay each of the Tranche A Term Loans,
the Tranche C Term Loans and Tranche D Term Loans in 18 consecutive
quarterly installments, payable on February 4, 2002, and on each
successive date thereafter which is three months after the preceding
installment date, in the aggregate amount set forth below for each
installment:
Tranche A Tranche C Tranche D
Installment Amount Amount Amount
----------- --------- --------- ---------
1-4 $ 4,375,000 $ 4,375,000 $ 3,750,000
5-8 $ 6,562,500 $ 6,562,500 $ 5,625,000
9-12 $ 8,750,000 $ 8,750,000 $ 7,500,000
13-16 $10,937,500 $10,937,500 $ 9,375,000
17-18 $26,250,000 $26,250,000 $22,500,000
(c) Subject to adjustment pursuant to paragraph (f) of this
Section, the Borrower shall repay each of the Tranche B Term Loans
in 21 consecutive quarterly installments, payable on February 4,
2002, and on each successive date
thereafter which is three months after the preceding installment
date, in the aggregate amount set forth below for each installment:
Tranche B
Installment Amount
----------- ---------
1-4 $ 375,000
5-8 $ 375,000
9-12 $ 375,000
13-16 $ 375,000
17-20 $ 7,500,000
21 $114,000,000
(d) Subject to adjustment pursuant to paragraph (f) of this
Section, the Borrower shall repay each of the Tranche E Term Loans
in 16 consecutive quarterly installments, payable on May 4, 2003,
and on each successive date thereafter which is three months after
the preceding installment date, in the aggregate amount set forth
below for each installment:
Installment Tranche E Amount
----------- ----------------
1-11 $ 312,500
12-15 $ 6,250,000
16 $96,562,500
(e) To the extent not previously paid, (i) all Tranche A Term
Loans shall be due and payable on the Tranche A Maturity Date, (ii)
all Tranche B Term Loans shall be due and payable on the Tranche B
Maturity Date, (iii) all Tranche C Term Loans shall be due and
payable on the Tranche C Maturity Date, (iv) all Tranche D Term
Loans shall be due and payable on the Tranche D Maturity Date and
(v) all Tranche E Term Loans shall be due and payable on the Tranche
E Maturity Date.
(f) If the initial aggregate amount of the Lenders' Term
Commitments of any Class exceeds the aggregate principal amount of
Term Loans of such Class that are made during the Tranche A
Availability Period, the Tranche B Availability Period, the Tranche
C Availability Period, the Tranche D Availability Period or the
Tranche E Availability Period, as the case may be, then the
scheduled repayments of Term Borrowings of such
9
Class to be made pursuant to this Section shall be reduced ratably
by an aggregate amount equal to such excess. Any prepayment of a
Term Borrowing of any Class shall be applied to reduce the
subsequent scheduled repayments of the Term Borrowings of such Class
to be made pursuant to this Section ratably.
(g) Prior to any repayment of any Term Borrowings of any Class
hereunder, the Borrower shall select the Borrowing or Borrowings of
the applicable Class to be repaid and shall notify the
Administrative Agent by telephone (confirmed by telecopy) of such
selection not later than 11:00 a.m., New York City time, three
Business Days before the scheduled date of such repayment; provided
that each repayment of Term Borrowings of any Class shall be applied
to repay any outstanding ABR Term Borrowings of such Class before
any other Borrowings of such Class. Each repayment of a Borrowing
shall be applied ratably to the Loans included in the repaid
Borrowing. Repayments of Term Borrowings shall be accompanied by
accrued interest on the amount repaid."
(g) Section 2.09 of the Credit Agreement is hereby deleted in its
entirety and the following substituted therefor:
"SECTION 2.09. Prepayment of Loans. (a) The Borrower shall
have the right at any time and from time to time to prepay any
Borrowing in whole or in part, subject to the requirements of this
Section.
(b) In the event and on each occasion that any Net Proceeds
are received by or on behalf of the Borrower or any Subsidiary in
respect of any Prepayment Event, immediately after such Net Proceeds
are received, the Borrower shall prepay Term Borrowings (to be
applied ratably among the Tranche A Term Loans, the Tranche B Term
Loans, the Tranche C Term Loans, the Tranche D Term Loans, the
Tranche E Term Loans and the Incremental Term Loans, if any, based
on their then respective amounts) equal to 100% of such Net
Proceeds.
(c) Following the end of the fiscal year of the Borrower
ending December 31, 2001 and following the end of each subsequent
fiscal year,
10
the Borrower shall prepay Term Borrowings (to be applied ratably
among the Tranche A Term Loans, the Tranche B Term Loans, the
Tranche C Term Loans, the Tranche D Term Loans, the Tranche E Term
Loans and the Incremental Term Loans, if any, based on their then
respective amounts) equal to 50% of Excess Cash Flow for such fiscal
year. Each prepayment pursuant to this paragraph shall be made on or
before the date on which financial statements are delivered pursuant
to Section 5.01 with respect to the fiscal year for which Excess
Cash Flow is being calculated (and in any event within 105 days
after the end of such fiscal year).
(d) Prior to any optional or mandatory prepayment of
Borrowings hereunder, the Borrower shall select the Borrowing or
Borrowings to be prepaid and shall specify such selection in the
notice of such prepayment pursuant to paragraph (f) of this Section;
provided that each prepayment of Borrowings of any Class shall be
applied to prepay ABR Borrowings of such Class before any other
Borrowings of such Class. In the event of any optional or mandatory
prepayment of Term Borrowings made at a time when Term Borrowings of
more than one Class remain outstanding, the Borrower shall select
Term Borrowings to be prepaid so that the aggregate amount of such
prepayment is allocated among the Tranche A Term Borrowings, Tranche
B Term Borrowings, Tranche C Term Borrowings, Tranche D Term
Borrowings, Tranche E Term Borrowings and Incremental Term
Borrowings, if any, pro rata based on the aggregate principal amount
of outstanding Borrowings of each such Class; provided that any
Tranche B Lender may elect, by notice to the Administrative Agent by
telephone (confirmed by telecopy) at least one Business Day prior to
the prepayment date, to decline all or any portion of any prepayment
of its Tranche B Term Loans pursuant to this Section (other than an
optional prepayment pursuant to paragraph (a) of this Section, which
may not be declined), in which case the Net Proceeds or Excess Cash
Flow that would have been applied to prepay Tranche B Term Loans but
were so declined shall be applied to prepay Tranche A Term Loans,
Tranche C Term Loans, Tranche D Term Loans, Tranche E Term Loans and
Incremental Term Loans, if any, on a pro rata basis based on their
then respective amounts.
11
(e) The amount of any optional or mandatory prepayments
allocated to Tranche A Term Loans, Tranche B Term Loans, Tranche C
Term Loans, Tranche D Term Loans, Tranche E Term Loans and
Incremental Term Loans, if any, shall be applied pro rata to reduce
the principal amount of the then remaining amortization installments
applicable to such Loans set forth in Section 2.08. The amount of
any optional commitment reductions allocated to the Revolving Loans
shall be applied pro rata to reduce the principal amount of the then
remaining reductions applicable to such Commitments set forth in
Section 2.08. Any reduction of the Revolving Commitments shall be
accompanied by prepayment of Revolving Loans to the extent the
aggregate amount of such loans outstanding exceeds the total amount
of the Revolving Commitments as so reduced.
(f) The Borrower shall notify the Administrative Agent (and,
in the case of prepayment of a Swingline Loan, the Swingline Lender)
by telephone (confirmed by telecopy) of any prepayment hereunder (i)
in the case of prepayment of a Eurodollar Revolving Borrowing, not
later than 11:00 a.m., New York City time, three Business Days
before the date of prepayment, (ii) in the case of prepayment of an
ABR Revolving Borrowing for which the Tranche B Lenders may make the
election described in the proviso to the second sentence of Section
2.09(d), not later than 11:00 a.m., New York City time, on the
Business Day before the date of prepayment and, for all other ABR
Borrowings, not later than 11:00 a.m., New York City time, on the
date of prepayment, and (iii) in the case of prepayment of a
Swingline Loan, not later than 12:00 noon, New York City time, on
the date of prepayment, or such other time as may be agreed by the
Borrower and the Swingline Lender. Each such notice shall be
irrevocable and shall specify the prepayment date, the principal
amount of each Borrowing or portion thereof to be prepaid and, in
the case of a mandatory prepayment, a reasonably detailed
calculation of the amount of such prepayment; provided that, if a
notice of optional prepayment is given in connection with a
conditional notice of termination of the Revolving Commitments as
contemplated by Section 2.06, then such notice of prepayment may be
revoked if such notice of termination is revoked in accordance with
12
Section 2.06. Promptly following receipt of any such notice (other
than a notice relating solely to Swingline Loans), the
Administrative Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Borrowing shall be in an
amount that would be permitted in the case of an advance of a
Borrowing of the same Type as provided in Section 2.02, except as
necessary to apply fully the required amount of a mandatory
prepayment. Each prepayment of a Borrowing shall be applied ratably
to the Loans included in the prepaid Borrowing. Prepayments shall be
accompanied by accrued interest to the extent required by Section
2.11."
(h) Section 2.10(a) is hereby amended by deleting Clause (iii) of
the first sentence thereof and substituting the following therefor:
", (iii) with respect to any Tranche D Commitment, from and
including the Second Amendment and Restatement Execution Date to but
excluding the date on which such Commitment terminates and (iv) with
respect to any Tranche E Commitment, from and including the Tranche
E Execution Date to but excluding the date on which such Commitment
terminates."
(i) Section 2.16(c) is hereby deleted in its entirety and the
following substituted therefor:
"(c) If any Lender shall, by exercising any right of set off
or counterclaim or otherwise, obtain payment in respect of any Loan
or participation in LC Disbursements as a result of which the unpaid
principal portion of its Tranche A Term Loans, Tranche B Term Loans,
Tranche C Term Loans, Tranche D Term Loans, Tranche E Term Loans,
Incremental Term Loans (if any), Revolving Loans or participations
in LC Disbursements shall be proportionately less than the unpaid
principal portion of the Tranche A Term Loans, Tranche B Term Loans,
Tranche C Term Loans, Tranche D Term Loans, Tranche E Term Loans,
Incremental Term Loans (if any), Revolving Loans or participations
in LC Disbursements of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at face
value, and shall promptly pay to such other Lender the purchase
price for, a participation in the Tranche A Term Loans, Tranche B
Term Loans,
00
Xxxxxxx X Xxxx Xxxxx, Xxxxxxx D Term Loans, Tranche E Term Loans,
Incremental Term Loans (if any), Revolving Loans or participations
in LC Disbursements, as the case may be, of such other Lender, so
that the aggregate unpaid principal amount of the Tranche A Term
Loans, Tranche B Term Loans, Tranche C Term Loans, Tranche D Term
Loans, Tranche E Term Loans, Incremental Term Loans (if any),
Revolving Loans and participations in LC Disbursements and
participations in Tranche A Term Loans, Tranche B Term Loans,
Tranche C Term Loans, Tranche D Term Loans, Tranche E Term Loans,
Incremental Term Loans (if any), Revolving Loans or participations
in LC Disbursements held by each Lender shall be in the same
proportion to the aggregate unpaid principal amount of all Tranche A
Term Loans, Tranche B Term Loans, Tranche C Term Loans, Tranche D
Term Loans, Tranche E Term Loans, Incremental Term Loans (if any),
Revolving Loans or participations in LC Disbursements then
outstanding as the principal amount of its Tranche A Term Loans,
Tranche B Term Loans, Tranche C Term Loans, Tranche D Term Loans,
Tranche E Term Loans, Incremental Term Loans (if any), Revolving
Loans or participations in LC Disbursements outstanding prior to
such exercise of any right of setoff or counterclaim or other event
was to the principal amount of all Tranche A Term Loans, Tranche B
Term Loans, Tranche C Term Loans, Tranche D Term Loans, Tranche E
Term Loans, Incremental Term Loans (if any), Revolving Loans or
participations in LC Disbursements outstanding prior to such
exercise of any right of setoff or counterclaim or other event;
provided that (i) if any such participations are purchased and all
or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to
the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender
as consideration for the assignment of or sale of a participation in
any of its Loans or participations in LC Disbursements to any
assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may
14
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise
against the Borrower rights of setoff and counterclaim with respect
to such participation as fully as if such Lender were a direct
creditor of the Borrower in the amount of such participation."
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. The Borrower 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 the 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 the 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 (other than representations or
warranties expressly made only on and as of the Effective Date or as of
some other specified date) are true and correct in all material respects
as of the date hereof.
5. Effectiveness. The Amendment shall become effective as of the
date first written above on the date (the "Closing Date") on which the following
conditions precedent are satisfied:
(a) The Administrative Agent shall have received counterparts
hereof, duly executed and delivered by the Borrower, Holdings, and the
Tranche E Lenders;
15
(b) The Administrative Agent shall have received such opinions and
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 to the Administrative Agent, for
the account of each Tranche E Lender participation fees (the
"Participation Fees") in the amounts heretofore agreed upon with X.X.
Xxxxxx Securities Inc. The Participation Fees shall be payable on the
Closing Date in immediately available funds. Once paid, the Participation
Fees shall not be refundable under any circumstances.
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.
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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 & Treasurer
TRITON PCS HOLDINGS, INC.,
by /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: SVP & Treasurer
JPMORGAN CHASE BANK,
individually and as Administrative Agent,
by /s/ Xxxxxx Xxxxx Xxxxx
----------------------------------------
Name: Xxxxxx Xxxxx Eqing
Title: Vice President
FIRST UNION NATIONAL BANK,
individually and as Tranche E
Syndication Agent,
by /s/ C. Brand Xxxxxxx
----------------------------------------
Name: C. Brand Xxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA,
individually and as Tranche E
Documentation Agent,
by /s/ Xxxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
17
GENERAL ELECTRIC CAPITAL CORP.,
as a Tranche E Lender,
by /s/ Xxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Manager, Operations
FLEET NATIONAL BANK, as a Tranche E Lender,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx D. Rainie
Title: Managing Director
BAYERESCHE HYPO-UND VEREINSBANK,
as a Tranche E Lender,
by /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: AVP
by /s/ Xxxxxxxxx Xxxxxxxxxxx
----------------------------------------
Name: Xxxxxxxxx Xxxxxxxxxxx
Title: AVP
SUNTRUST BANK, as a Tranche E Lender,
by /s/ J. Xxxx Xxxxxxx
----------------------------------------
Name: J. Xxxx Xxxxxxx
Title: Director
NATIONAL CITY BANK, as a Tranche E Lender,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
