Exhibit 10.1
EXECUTION COPY
FOURTH AMENDMENT dated as of October 16, 2002 (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 (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"), and JPMORGAN CHASE BANK (f/k/a 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, on the terms and subject to the conditions set forth
herein, to agree to such modifications as provided for in this Amendment.
NOW, THEREFORE, in consideration of these premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used and not defined
herein shall have the meanings given to them in the Credit Agreement, as amended
hereby.
SECTION 2. Amendments to the Credit Agreement. (a) Amendment of
Section 1.01. The definition of "Permitted Investments" is hereby amended as
follows:
(i) the phrase "or allowing for liquidation at original par value at
the option of the holder" is hereby inserted immediately following the
phrase "in each case maturing" in clause (a) thereof; and
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(ii) the phrase "maturing, or subject to tender at the option of the
holder thereof," is hereby replaced with the phrase "maturing, or subject
to liquidation at original par value at the option of the holder thereof,"
in clause (e) thereof.
(b) Amendment of Section 6.12(i). The table set forth in Section
6.12(i) is hereby amended and restated in its entirety as follows:
"Fiscal Quarter Ending On Ratio
------------------------- -----
March 31, 2002 9 to 1
June 30, 2002 7 to 1
September 30, 2002 6 to 1
December 31, 2002 3 to 1".
and thereafter
(c) Amendment of Section 6.12(j). The table set forth in Section
6.12(j) is hereby amended and restated in its entirety as follows:
"Fiscal Quarter Ending On Ratio
------------------------- -----
March 31, 2002 19.00 to 1
June 30, 2002 17.00 to 1
September 30, 2002 14.00 to 1
December 31, 2002 11.00 to 1
March 31, 2003 9.50 to 1
June 30, 2003 8.25 to 1
September 30, 2003 7.25 to 1
December 31, 2003 7.25 to 1
March 31, 2004 7.00 to 1
June 30, 2004 6.00 to 1
September 30, 2004 5.50 to 1
December 31, 2004 5.50 to 1
March 31, 2005 5.00 to 1
June 30, 2005 and thereafter 4.50 to 1".
(d) Amendment of Section 6.12(k). The table set forth in Section
6.12(k) is hereby amended and restated in its entirety as follows:
"Date of Test Period Ratio
-------------------- -----
September 30, 2002 - December 31, 2002 1.50 to 1
March 31, 2003 - December 31, 2004 1.75 to 1
March 31, 2005 and thereafter 2.00 to 1".
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SECTION 3. No Other Amendments; Confirmation. Except as expressly
set forth herein, this Amendment shall not by implication or otherwise limit,
impair, constitute a waiver of, or otherwise affect the rights and remedies of
the Lenders or the Administrative Agent under the Credit Agreement or any other
Loan Document, and shall not alter, modify, amend or in any way affect any of
the terms, conditions, obligations, covenants or agreements contained in the
Credit Agreement or any other Loan Document, all of which are ratified and
affirmed in all respects and shall continue in full force and effect. Nothing
herein shall be deemed to entitle any Loan Party to a consent to, or a waiver,
amendment, modification or other change of, any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement or any
other Loan Document in similar or different circumstances. This Amendment shall
apply and be effective only with respect to the provisions of the Credit
Agreement specifically referred to herein. After the date hereof, any reference
to the Credit Agreement shall mean the Credit Agreement, as modified hereby.
This Amendment shall constitute a "Loan Document" for all purposes of the Credit
Agreement and the other Loan Documents.
SECTION 4. Optional Reduction of Term Loan Commitments; Optional
Prepayment. (a) Pursuant to the terms of Section 2.06(c) of the Credit
Agreement, the Borrower hereby provides notice to the Administrative Agent of
its election to reduce the Term Loan D Commitments in an aggregate principal
amount of $10,000,000 and the Term Loan E Commitments in an aggregate principal
amount of $10,000,000. The Administrative Agent and the Lenders, by execution of
this Amendment, hereby waive the three Business Day notice requirement set forth
in Section 2.06(c) of the Credit Agreement with respect to the Commitment
reduction set forth in this Section 4(a), and such reduction will be deemed
effective at such time as this Amendment becomes effective pursuant to Section 6
hereto.
(b) Pursuant to the terms of Section 2.08(g) and 2.09(f) of the
Credit Agreement, the Borrower hereby provides notice to the Administrative
Agent of its election to prepay outstanding Term Borrowings under the Credit
Agreement on the date of this Amendment in an aggregate principal amount of
$30,000,000. With respect to the portion of the Term Loan B Borrowings that will
be prepaid pursuant to this Section 4(b), the Borrower hereby elects to first
prepay the Borrowings the Interest Period with respect to which ends on October
31, 2002. The Administrative Agent and the Lenders, by execution of this
Amendment, hereby waive the three Business Day notice requirement set forth in
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Section 2.08(g) and 2.09(f) of the Credit Agreement with respect to the
prepayment set forth in this Section 4(b), and acknowledge that the notice of
prepayment set forth in this Section 4(b) shall be deemed to satisfy the
requirements of Section 2.08(g) and 2.09(f) with respect to such prepayment.
SECTION 5. Representations and Warranties. Each of the 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 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, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
(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, which
representations were true and correct in all material respects as of such
earlier date) are true and correct in all material respects as of the date
hereof.
SECTION 6. 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 and the
Required Lenders;
(b) The Borrower shall have paid all reasonable out-of-pocket
expenses of the Administrative Agent
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subject to reimbursement or payment pursuant to Section 9.03 of the Credit
Agreement or Section 7 hereof, in each case to the extent invoiced prior
to the date of effectiveness hereof; and
(c) The Borrower shall have prepaid outstanding Term Borrowings in
an aggregate principal amount of $30,000,000.
SECTION 7. 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 & ▇▇▇▇▇, counsel for the Administrative Agent.
SECTION 8. 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.
SECTION 9. Headings. The headings of this Amendment are for purposes
of reference only and shall not limit or otherwise affect the meaning 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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President & Treasurer
TRITON PCS HOLDINGS, INC.,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President & Treasurer
JPMORGAN CHASE BANK,
individually and as Administrative Agent,
by /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
SIGNATURE PAGE FOR
FOURTH AMENDMENT
TO TRITON PCS
CREDIT AGREEMENT
To Approve this Amendment:
Institution: Bank of Tokyo-Mitsubishi Trust Company
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Institution: Bayerische Hypo-und Vereinsbank AG
NY Branch
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Associate Director
Institution: CIBC Inc.
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Director, CIBC World
Markets Corp., as agent
Institution: CoBank, ACB
by /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Institution: Cooperatieve Centrale Raiffeisen-
Boerenleen Bank B.A., "Rabobank
Nederland", New York Branch
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Director
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
Institution: Credit Lyonnais New York Branch
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: First Vice President
Institution: Fortis Capital Corp.
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
by /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
Institution: General Electric Capital Corporation
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Manager, Operations
Institution: IBM Credit Corporation
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Manager of Credit
Institution: ▇▇▇▇▇▇ Commercial Paper Inc.
by /s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
Institution: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding
by /s/ Jaap L. Tonckens
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Name: Jaap L. Tonckens
Title: Vice President
Institution: Natexis Banques Populaires
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: VP, Group Manager
Institution: National City Bank
by /s/ ▇▇▇▇▇▇▇ Bienville ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ Bienville ▇▇▇▇▇▇
Title: Senior Vice President
Institution: NIB Capital Bank N.V.
by /s/ ▇. ▇▇▇▇▇
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Name: ▇. ▇▇▇▇▇
Title: Special Credits
by /s/ ▇▇▇▇▇ ▇. Th. Spanjaard
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Name: ▇▇▇▇▇ ▇. Th. Spanjaard
Title: Head Special Credits
Institution: Nordea Bank Finland PLC
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
Institution: PB Capital
by /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
Institution: The Bank of Nova Scotia
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Authorized Signatory
Institution: Seneca Capital Management LLC
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Seneca Capital Management as
Portfolio Manager for Seneca
CBO III, Limited
Institution: Seneca Capital Management LLC
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Seneca Capital Management
Portfolio Manager for Seneca
CBO IV, Limited
Institution: SunTrust Bank
by /s/ J. ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: J. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
Institution: U.S. Bank National Association
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Institution: Wachovia Bank N.A. f/k/a First Union Bank
by /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Director