EXHIBIT 10.2
FIRST AMENDMENT, CONSENT AND WAIVER, dated as of April 24,
1998 (this "Amendment"), to the Credit Agreement, dated as of
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February 3, 1998 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among TRITON PCS,
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INC., a corporation organized under the laws of the State of
Delaware (the "Borrower"), TRITON PCS HOLDINGS, INC., a
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corporation organized under the laws of the State of Delaware
("Holdings"), the several banks and other financial institutions
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and entities from time to time parties thereto (the "Lenders"),
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and THE CHASE MANHATTAN BANK, as administrative agent (the
"Administrative Agent") for the Lenders.
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WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make certain loans to the Borrower; and
WHEREAS the Borrower has requested that certain provisions of the
Credit Agreement be modified in the manner provided for in this Amendment,
and the Lenders are willing to agree to such modifications as provided for
in this Amendment.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used and not defined herein
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shall have the meanings given to them in the Credit Agreement, as amended
hereby.
2. Amendments to the Credit Agreement.
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(a) Section 1.01 of the Credit Agreement is hereby amended by:
(i) inserting after the definition of "ABR" and before the definition
of "Adjusted EBITDA" the following definition:
"'Additional AW Licenses' has the meaning set forth in the definition
of AW Pops Acquisition.";
(ii) inserting after the definition of "AW Licenses" and before the
definition of "Board" the following definition:
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"'AW Pops Acquisition' means the acquisition by one or more of
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Triton PCS License Company, L.L.C., the Borrower or any Subsidiary
(the 'AW Pops Entities') of 20 MHz of the 30 MHz of PCS licenses owned
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by AW covering the Washington, DC BTA, the Atlanta, Georgia MTA, the
Charlotte, North Carolina MTA, the Greensboro, North Carolina BTA, the
Burlington, North Carolina BTA and the Raleigh-Durham, North Carolina
BTA (collectively, the "Additional AW Licenses"), in exchange for the
20 MHz of the 30 MHz of PCS licenses owned by the Borrower and its
Subsidiaries covering the Cumberland, Maryland BTA and the Hagerstown,
Maryland BTA (collectively, the "Exchanged Licenses") and the issuance
to AW of 21,249,019 shares of Series A Preferred Stock and 10,624,509
shares of Series D Preferred Stock, all in accordance with the
Preferred Stock Agreement.";
(iii) deleting the definition of "Change in Law" in its entirety and
inserting in lieu thereof the following:
"'Change in Law' means (a) the adoption of any law, rule or
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regulation after the date of this Agreement, (b) any change in any
law, rule or regulation or in the interpretation or application
thereof by any Governmental Authority after the date of this Agreement
or (c) compliance by any Lender or Issuing Bank (or, for purposes of
Section 2.15(b), by any lending office of such Lender or by such
Lender's or Issuing Bank's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this
Agreement.";
(iv) replacing the words "the Borrower" in the definition of
"Committed Equity" with the word "Holdings";
(v) replacing the words "the Borrower" in the definition of "Common
Stock" with the word "Holdings";
(vi) deleting the definition of "Contributed Equity" in its entirety
and inserting in lieu thereof the following:
"'Contributed Equity' means at any time or for any period, the
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aggregate amount which shall have been received by the Borrower and/or
Holdings prior to such time or during such period as consideration for
the issuance of stock of Holdings (valued, in the case of the AW
Licenses, at $109,850,200, the agreed value of
3
the AW Licenses in the Securities Purchase Agreement and, in the case
of the Additional AW Licenses, at $31,873,528, the agreed value of the
Additional AW Licenses in the Preferred Stock Agreement) less any
amounts contributed by Holdings to any Unrestricted Subsidiary.";
(vii) inserting after the definition of "Environmental Laws" and
before the definition of "ERISA" the following definition:
"'Equipment Subsidiary' means Triton PCS Equipment Company LLC
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and/or any Wholly Owned Subsidiary of the Borrower designated by the
Borrower as the Equipment Subsidiary by notice to the Administrative Agent;
provided, however, that (i) such Subsidiary has no obligations or
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liabilities other than as permitted by Section 3.13, (ii) the stock of such
Subsidiary is pledged to the Collateral Agent for the benefit of the
Lenders in accordance with the terms of the Pledge Agreement and (iii) the
Borrower and such Subsidiary have entered into a Special Purpose Subsidiary
Funding Agreement.";
(viii) amending the definition of "Excess Cash Flow" by deleting "."
at the end of clause (f) thereof and inserting in lieu thereof the
following:
"; plus
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(g) any cash dividends or any other cash distributions paid or
made by, and received from, any Unrestricted Subsidiary.";
(ix) inserting after the definition of "Interest Period" and before
the definition of "Lenders" the following definitions:
"'Issuing Bank' means each of the Lenders, in its capacity as
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an issuer of Letters of Credit hereunder. Each Issuing Bank may, in
its discretion, arrange for one or more Letters of Credit to be issued
by Affiliates of such Issuing Bank, in which case the term "Issuing
Bank" shall include any such Affiliate with respect to Letters of
Credit issued by such Affiliate.
'LC Disbursement' means a payment made by an Issuing Bank
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pursuant to a Letter of Credit.
'LC Exposure' means, at any time, the sum of (a) the aggregate
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undrawn amount of all outstanding
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Letters of Credit at such time plus (b) the aggregate amount of all LC
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Disbursements that have not yet been reimbursed by or on behalf of the
Borrower at such time.
'LC Obligations' means all obligations of the Borrower with
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respect to Letters of Credit in accordance with their terms and the
terms of any documentation the Borrower may enter into with any
Issuing Bank in connection with the issuance thereof, including any
letter of credit fees owed to the Issuing Banks and any payments in
respect of any Letter of Credit, when and as due, including payments
in respect of reimbursement of LC Disbursements, interest thereon and
obligations to provide cash collateral.";
(x) inserting after the definition of "Lenders" and before the
definition of "Leverage Ratio" the following definition:
"'Letter of Credit' means any letter of credit issued pursuant
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to this Agreement.";
(xi) inserting after the definition of "Multiemployer Plan" and
before the definition of "Net Proceeds" the following definition:
"'Myrtle Acquisition' means the acquisition by one or more of
Triton PCS License Company L.L.C., Triton Myrtle Acquisition, L.L.C.
or any other Subsidiary (the 'Myrtle Entities') of substantially all
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the assets of Vanguard Cellular Systems of South Carolina, Inc.
('Vanguard'), including the FCC cellular licence for the South
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Carolina 5--Georgetown RSA, Market 629A, for cash consideration of
$160,000,000 (subject to working capital and subscriber adjustments)
in accordance with the terms of the Asset Purchase Agreement (the
'Myrtle Asset Purchase Agreement') dated March 10, 1998, between the
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Borrower, the Myrtle Entities and Vanguard.";
(xii) inserting after the definition of "Net Working Capital" and
before the definition of "Obligations" the following definition:
"'Norfolk Acquisition' means the acquisition by one or more of
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Triton PCS License Company, L.L.C., the Borrower or any direct or
indirect subsidiary thereof (the 'Norfolk Entities') of substantially
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all the assets of AW that are used in or useful to the
5
operation of the PCS system operated in the Norfolk, Virginia BTA,
including 20 MHz of the 30 MHz of PCS licenses owned by AW covering
such market, for cash consideration of $95,000,000 and the issuance of
$10,000,000 of Series D Preferred Stock in accordance with the terms
of an asset purchase agreement (the 'Norfolk Asset Purchase
----------------------
Agreement') in form and substance reasonably satisfactory to the
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Lenders to be entered into between Holdings and AW.";
(xiii) inserting the phrase ", landlords'" after the word
"repairmen's" in clause (b) of the definition of "Permitted Encumbrances"
and deleting the words "Section 5.04" in clauses (a) and (b) of such
definition and substituting in lieu thereof the words "Section 5.05";
(xiv) inserting after the definition of "Pops" and before the
definition of "Prepayment Event" the following definition:
"'Preferred Stock Agreement' means the securities purchase
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agreement or agreements (or an amendment or amendments to the
Securities Purchase Agreement entered into for such purpose) to be
entered into by some or all of the current equity investors in
Holdings, relating to (i) the contribution by AW of the Additional AW
Licenses in exchange for the Exchanged Licenses, 21,249,019 shares of
Series A Preferred Stock and 10,624,509 shares of Series D Preferred
Stock and (ii) the purchase by some or all of the current equity
investors in Holdings of (a) $25,000,000 of equity securities of
Holdings for the purpose of funding a portion of the buildout of the
Network in the geographic areas covered by the Additional Licenses,
(b) $35,000,000 of equity securities of Holdings for the purpose of
funding a portion of the purchase price of the Myrtle Acquisition and
(c) $30,000,000 of equity securities of Holdings for the purpose of
funding a portion of the purchase price of the Norfolk Acquisition, in
each case in form and substance reasonably satisfactory to the
Lenders.";
(xv) deleting clause (c) of the definition of "Prepayment Event" in
its entirety and substituting in lieu thereof the following:
"(c) the issuance by Holdings, the Borrower or any Subsidiary
of any equity securities for cash, or the receipt by Holdings, the
Borrower or any Subsidiary of any capital contribution in cash, other
than, in the
6
case of the Borrower or any Subsidiary, any such issuance of equity
securities to, or receipt of any such capital contribution from, the
Borrower or a Subsidiary; provided that no such issuance or receipt
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shall constitute a Prepayment Event if (i) such equity is part of the
initial $140,000,000 cash contribution and commitment of capital to
Holdings pursuant to the Securities Purchase Agreement or the
immediate contribution by Holdings of such capital to the Borrower,
(ii) such equity is part of the $25,000,000 cash contribution to
Holdings pursuant to the Preferred Stock Agreement (without giving
effect to any amendments to or waivers of the Preferred Stock
Agreement (other than such amendments or waivers that are not adverse
in a material respect to the interests of the Lenders)) and the AW
Pops Acquisition is consummated substantially contemporaneously with
such issuance or receipt; (iii) such equity is part of the $35,000,000
contribution to Holdings pursuant to the Preferred Stock Agreement
(without giving effect to any amendments to or waivers of the
Preferred Stock Agreement (other than such amendments or waivers that
are not adverse in a material respect to the interests of the
Lenders)) and the Myrtle Acquisition is consummated substantially
contemporaneously with such issuance or receipt; (iv) such equity is
part of the $30,000,000 contribution to Holdings pursuant to the
Preferred Stock Agreement (without giving effect to any amendments to
or waivers of the Preferred Stock Agreement (other than such
amendments or waivers that are not adverse in a material respect to
the interests of the Lenders)) and the Norfolk Acquisition is
consummated substantially contemporaneously with such issuance or
receipt; (v) such equity is part of cash contributions in an aggregate
amount not to exceed $50,000,000 to be used by Holdings to capitalize
Unrestricted Subsidiaries in accordance with clause (vii) of the
definition of "Unrestricted Subsidiary" or (vi) after giving effect to
any such issuance or receipt, (x) Senior Leverage would be less than
5:1 and (y) the Borrower would be in Pro Forma Compliance; or";
(xvi) inserting the phrase "(other than Indebtedness of any
Unrestricted Subsidiary)" after the word "Holdings" in the definition of
"Total Debt"; and
(xvii) inserting after the definition of "UCC" and before the
definition of "Wholly Owned Subsidiary" the following definition:
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"'Unrestricted Subsidiary' means any subsidiary of Holdings or
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any other direct or indirect investment by Holdings in the Capital
Stock of any other person (other than the Borrower) so long as at the
time such subsidiary is acquired or created or such investment is made
(i) no Default or Event of Default shall have occurred and be
continuing or would result therefrom, (ii) Holdings shall have
notified the Administrative Agent of its acquisition or creation of
such subsidiary or its making of such investment and its ownership
interest therein and its designation thereof as an Unrestricted
Subsidiary concurrently with such acquisition, creation or investment
and the intended purposes of such subsidiary or investment, (iii) all
transactions related thereto shall be consummated in accordance with
applicable laws, (iv) Holdings and the Borrower shall be in Pro Forma
Compliance, (v) none of Holdings, the Borrower or any Subsidiary shall
have any contingent liability in respect thereof (other than any
contingent tax liabilities in respect of which there shall exist a tax
sharing agreement with the other owners of such Unrestricted
Subsidiary providing for an allocation of tax liabilities and benefits
customary in similar circumstances), (vi) any management or service
provided by Holdings, the Borrower or any Subsidiary to such
subsidiary or investment shall be provided in consideration of cash
remuneration in an amount not less than could have been obtained from
a third party on an arms' length basis and (vii) such subsidiary or
investment shall be capitalized solely from (A) contributions to the
capital of Holdings in an aggregate amount not to exceed $50,000,000
to be contributed substantially contemporaneously by Holdings to such
Unrestricted Subsidiary, (B) investments by persons other than
Holdings, the Borrower or any Subsidiary and (C) the proceeds of
Indebtedness of persons other than Holdings, the Borrower or any
Subsidiary."
(b) Article II of the Credit Agreement is hereby amended by:
(i) inserting at the end of Section 2.10 the following:
"(d) The Borrower will pay to each Issuing Bank a fronting fee,
which shall accrue at the rate or rates per annum separately agreed
upon between the Borrower and such Issuing Bank on the average daily
amount of such Issuing Bank's LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements),
8
as well as such Issuing Bank's standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or
any processing of drawings thereunder.";
(ii) deleting Section 2.13 in its entirety and inserting in lieu
thereof the following:
"SECTION 2.13. Increased Costs. (a) If any Change in Law shall:
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(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with
or for the account of, or credit extended by, any Lender (except
any such reserve requirement reflected in the Adjusted LIBO Rate)
or any Issuing Bank; or
(ii) impose on any Lender or any Issuing Bank or the London
interbank market any other condition (other than a condition
relating to a Tax) affecting this Agreement or Eurodollar Loans
made by such Lender;
and the result of any of the foregoing shall be to increase the cost
to such Lender of making or maintaining any Eurodollar Loan (or of
maintaining its obligation to make any such Loan) or to increase the
cost to such Issuing Bank of issuing or maintaining any Letter of
Credit or to reduce the amount of any sum received or receivable by
such Lender or such Issuing Bank hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to such Lender or
such Issuing Bank such additional amount or amounts as will compensate
such Lender or such Issuing Bank for such additional costs incurred or
reduction suffered.
(b) If any Lender or Issuing Bank determines that any Change in
Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or Issuing Bank's capital
or on the capital of such Lender's or Issuing Bank's holding company,
if any, as a consequence of this Agreement or the Loans made by such
Lender or the Letters of Credit issued by such Issuing Bank, to a
level below that which such Lender or Issuing Bank or such Lender's or
Issuing Bank's holding company could have achieved but for such Change
in Law (taking into consideration such Lender's or Issuing Bank's
policies and the policies of such Lender's or Issuing Bank's holding
company with
9
respect to capital adequacy), then from time to time the Borrower will
pay to such Lender or Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or Issuing
Bank or such Lender's or Issuing Bank's holding company for any such
reduction suffered.
(c) A certificate of a Lender or Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or Issuing Bank
or its holding company, as the case may be, as specified in paragraph
(a) or (b) of this Section shall be delivered to the Borrower and
shall be conclusive absent manifest error. The Borrower shall pay such
Lender or Issuing Bank the amount shown as due on any such certificate
within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or Issuing Bank
to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's or Issuing Bank's right to demand such
compensation; provided that the Borrower shall not be required to
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compensate a Lender or Issuing Bank pursuant to this Section for any
increased costs or reductions incurred more than 270 days prior to the
date that such Lender or Issuing Bank, as the case may be, notifies
the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender's or Issuing Bank's intention to
claim compensation therefor; provided further that, if the Change in
----------------
Law giving rise to such increased costs or reductions is retroactive,
then the 270-day period referred to above shall be extended to include
the period of retroactive effect thereof.";
(iii) inserting at the end of Article II the following:
"SECTION 2.18. Letters of Credit. Each Issuing Bank may issue,
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amend, renew or extend Letters of Credit for the account of the
Borrower, at any time and from time to time prior to the Revolving
Maturity Date, in a form and pursuant to documentation reasonably
acceptable to the Administrative Agent and such Issuing Bank, upon
the request of the Borrower submitted in acco rdance with such
Issuing Bank's standard procedures; provided that, after giving
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effect to such issuance, amendment, renewal or extension, the LC
Exposure shall not exceed $3,000,000; and, provided further, that such
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Issuing Bank shall promptly notify
10
the Administrative Agent of such issuance, amendment, renewal or
extension."
(c) Section 3.12(a) of the Credit Agreement is hereby amended by
inserting the phrase "or indirectly" after the word "directly" in the
second sentence thereof.
(d) Section 4.01 of the Credit Agreement is hereby amended by:
(i) deleting the phrase "within 30 days of the Effective Date" in
paragraph (p) thereof and substituting in lieu thereof the phrase "by April
15, 1998";
(ii) deleting the proviso in paragraph (r) thereof and inserting in
lieu thereof the following:
"provided, however, that the Consent to Assignment with respect to AW
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shall be set forth in the Network License Agreement and, with respect
to the Network License Agreement, such Consent to Assignment will not
permit the Administrative Agent to assign the Network License
Agreement to any person other than the Lenders without first obtaining
AW's consent."
(e) Section 5.01 of the Credit Agreement is hereby amended by:
(i) inserting the phrase "(excluding any Unrestricted Subsidiaries)"
after the word "Holdings" in paragraph (g) thereof;
(ii) deleting "and" at the end of paragraph (j) thereof; and
(iii) deleting paragraph (k) thereof in its entirety and inserting in
lieu thereof the following:
"(k) concurrently with any delivery of financial statements under
clause (a) or (b) above, a balance sheet and related statements of
operations, stockholders' equity and cash flows for each Unrestricted
Subsidiary for the applicable period (each of which may be unaudited);
and
(l) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of Holdings, the Borrower or any Subsidiary, or compliance
with the terms of any Loan Document, or such consolidating
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financial statements, or such financial statements showing the results
of operations of any Unrestricted Subsidiary, as the Administrative
Agent or any Lender may reasonably request."
(f) Section 5.03(a) of the Credit Agreement is hereby amended by
deleting the word "corporate" where it appears therein and inserting in
lieu thereof the word "legal".
(g) Section 5.13(b) of the Credit Agreement is hereby amended by:
(i) inserting the phrase "(other than assets held by Holdings in
or through an Unrestricted Subsidiary)" after the phrase "Loan Party"
in the third line thereof; and
(ii) inserting the phrase "or with respect to the leasehold in
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, Triton Management
Company Inc. ('Triton Management')" after the word "Subsidiary"
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at the end of clause (ii) thereof.
(h) Section 5.16 of the Credit Agreement is hereby amended to read in
its entirety:
"SECTION 5.16. Business of Holdings; Immediate Contributions to the
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Borrower. (a) Holdings shall not engage in any business other than
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holding the Capital Stock of the Borrower and any Unrestricted Subsidiary
and issuing Indebtedness permitted by Section 6.01.
(b) Holdings shall cause the management, business and affairs of each
of Holdings, the Subsidiaries and the Unrestricted Subsidiaries to be
conducted in such a manner so that each of Holdings and the Unrestricted
Subsidiaries will be perceived as a legal entity separate and distinct
from one another and the Subsidiaries.
(c) Holdings shall immediately contribute to the Borrower upon
receipt (i) any cash capital contributions (other than those permitted to
be contributed to an Unrestricted Subsidiary pursuant to clause (vii) of
the definition of "Unrestricted Subsidiary"), (ii) any cash dividends or
any other cash distributions paid or made by, and received from, any
Unrestricted Subsidiary and (iii) the proceeds of the issuance of any
Indebtedness."
(i) Section 5.17 of the Credit Agreement is hereby amended by
deleting the phrase "Within 30 days of the
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Closing Date," and inserting in lieu thereof the phrase "By April 15,
1998,".
(j) Section 6.01(a) of the Credit Agreement is hereby amended by:
(i) deleting clause (ii) thereof in its entirety and substituting in
lieu thereof the following:
"(ii)(A) Subordinated Debt issued on terms reasonably
satisfactory to the Lenders with an aggregate initial public offering
price or purchase price not to exceed $150,000,000; provided that the
proceeds of such Subordinated Debt shall be used by the Borrower
solely to fund the build-out of the Network;
(B) Subordinated Debt issued in connection with the AW Pops
Acquisition on terms reasonably satisfactory to the Lenders with an
aggregate initial public offering price or purchase price not to
exceed $75,000,000; provided that either (I) the AW Pops Acquisition
is consummated by the AW Pops Entities by December 31, 1998, and the
proceeds of such Subordinated Debt are used by the AW Pops Entities
solely to fund the build-out of a mobile wireless telecommunications
network utilizing TDMA IS-136 technology or its successor serving the
MTA's and BTA's acquired in the AW Pops Acquisition or (II) if the AW
Pops Acquisition is not consummated by the AW Pops Entities by
December 31, 1998, the Borrower shall prepay Term Borrowings and
permanently reduce Revolving Commitments (such prepayments and
reductions to be applied ratably among the Tranche A Term Loans, the
Tranche B Term Loans and the Revolving Commitments based on their then
respective amounts) in an aggregate amount equal to the proceeds of
any Subordinated Debt permitted by this clause (B);
(C) Subordinated Debt issued in connection with the Myrtle
Acquisition on terms reasonably satisfactory to the Lenders with an
aggregate initial public offering price or purchase price not to
exceed $125,000,000; provided that the proceeds of such Subordinated
Debt shall be used by October 31, 1998 by the Myrtle Entities solely
to finance a portion of the Myrtle Acquisition (including related fees
and expenses) or, if not so used by such date, shall be used to prepay
Term Borrowings and permanently reduce Revolving Commitments (such
prepayments and reductions to be applied ratably among the Tranche A
Term Loans,
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the Tranche B Term Loans and the Revolving Commitments based on their
respective amounts);
(D) Subordinated Debt issued in connection with the Norfolk
Acquisition on terms reasonably satisfactory to the Lenders with an
aggregate initial public offering or purchase price not to exceed
$75,000,000; provided that the proceeds of such Subordinated Debt
shall be used by December 31, 1998 by the Norfolk Entities solely to
finance a portion of the Norfolk Acquisition (including related fees
and expenses) or, if not so used by such date, shall be used to prepay
Term Borrowings and permanently reduce Revolving Commitments (such
prepayments and reductions to be applied ratably among the Tranche A
Term Loans, the Tranche B Term Loans and the Revolving Commitments
based on their respective amounts); and
(E) Subordinated Debt issued on terms reasonably satisfactory to
the Lenders with an aggregate initial public offering price or
purchase price not to exceed $25,000,000; provided that the proceeds
of such Subordinated Debt are used to pay fees and expenses incurred
in connection with the issuance and sale of the Subordinated Debt
permitted by clause (ii) of Section 6.01(a) or incurred in connection
with the AW Pops Acquisition, the Myrtle Acquisition or the Norfolk
Acquisition, or for other general corporate purposes;";
The Subordinated Debt permitted by clauses (A), (B), (C), (D)
and (E) of this Section 6.01(a)(ii) may be issued in any number of
issuances.
(ii) deleting the phrase "within 30 days of the Closing Date" in
clause (v) thereof and substituting in lieu thereof the phrase "by April
15, 1998"; and
(iii) deleting the phrase "and (x)" at the end of clause (ix) thereof
and inserting in lieu thereof the following:
"(x) the lease by Triton Management of the property located at
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(xi)".
(k) Section 6.01(b) of the Credit Agreement is hereby amended by
inserting the phrase "and the Preferred Stock Agreement" after the phrase
"Securities Purchase Agreement".
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(l) Section 6.05 of the Credit Agreement is hereby amended by deleting
"and" at the end of clause (e) thereof and deleting "." and adding the
following at the end of clause (f) thereof:
"; and
(g)(i) the acquisition of the Additional AW Licenses contemplated by
the Preferred Stock Agreement (without giving effect to any amendments to
or waivers of the Preferred Stock Agreement (other than such amendments or
waivers that are not adverse in a material respect to the interests of the
Lenders)), (ii) the purchase of assets contemplated by the Myrtle Asset
Purchase Agreement (without giving effect to any amendments to or waivers
of the Myrtle Asset Purchase Agreement (other than such amendments or
waivers that are not adverse in a material respect to the interests of the
Lenders)) and (iii) the purchase of assets contemplated by the Norfolk
Asset Purchase Agreement (without giving effect to any amendments to or
waivers of the Norfolk Asset Purchase Agreement (other than such amendments
or waivers that are not adverse in a material respect to the interests of
the Lenders))."
(m) Section 6.06 of the Credit Agreement is hereby amended by:
(i) inserting after the phrase "otherwise dispose of any asset" the
phrase "(other than assets of Holdings constituting an Unrestricted
Subsidiary)"; and
(ii) deleting "and" at the end of clause (b) thereof, deleting the
proviso at the end of Section 6.06 in its entirety and substituting in lieu
thereof the following:
"and
(d) the sale to AW of the Exchanged Licenses contemplated by
the Preferred Stock Agreement (without giving effect to any
amendments to or waivers of the Preferred Stock Agreement that
are not reasonably satisfactory to the Lenders);
provided that all sales, transfers, leases and other dispositions
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permitted hereby (other than those permitted by clause (d) above)
shall be made for fair value and solely for cash consideration."
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(n) Section 6.09 of the Credit Agreement is hereby amended by
deleting the phrase "and (c)" and inserting in lieu thereof the phrase ",
(c) the transactions contemplated by the Preferred Stock Agreement and the
Norfolk Asset Purchase Agreement and (d)".
(o) Section 6.12 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"SECTION 6.12. Financial Covenants. (a) Senior Debt to Total Capital.
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Holdings and the Borrower will not permit the ratio of Senior Debt to Total
Capital in each case on any day on which a Borrowing occurs and the last
day of each fiscal quarter to exceed .50 to 1; provided, however, that if
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(i) all Unfunded Commitments (as defined in the Securities Purchase
Agreement) have been contributed in full in cash to the Borrower and (ii)
Covered Pops meet or exceed 60% of the aggregate number of Pops within the
Licensed Territory (as defined in the Network License Agreement) then the
ratio of Senior Debt to Total Capital may exceed .50 to 1 but shall not
exceed .55 to 1.
(b) Total Debt to Total Capital. Holdings and the Borrower will not
----------------------------
permit the ratio of Total Debt to Total Capital in each case on any day on
which a Borrowing occurs and the last day of each fiscal quarter to exceed
(i) on or prior to March 31, 2005, .75 to 1 and (ii) thereafter, .70 to 1.
(c) Covered Pops. The Borrower will not permit Covered Pops as a
-------------
percentage of the total number of Pops in the BTAs and MTAs listed on
Schedule 3.14 on or after any date set forth below to be less than the
percentage set forth opposite such date.
Minimum Covered
---------------
Date Pops
---- ----
June 30, 1999 40%
June 30, 2000 60%
June 30, 2001 75%
June 30, 2002 and thereafter 80%
(d) Subscribers. The Borrower will not permit the number of
------------
Subscribers on or after any date set forth below to be less than the number
of Subscribers set forth opposite such date:
16
Minimum
Date Subscribers
---- -----------
December 31, 1999 155,000
June 30, 2000 210,000
December 31, 2000 295,000
June 30, 2001 345,000
December 31, 2001 and
thereafter 425,000
(e) Aggregate Service Revenue. The Borrower will not permit Aggregate
--------------------------
Service Revenue for any period of four consecutive fiscal quarters ending
on or after any date set forth below to be less than Aggregate Service
Revenue set forth opposite such date.
Minimum Aggregate
-----------------
Date Service Revenue
---- ---------------
June 30, 1999 $ 15,000,000
December 31, 1999 $ 35,000,000
June 30, 2000 $ 65,000,000
December 31, 2000 $ 95,000,000
June 30, 2001 $125,000,000
December 31, 2001 $155,000,000
June 30, 2002 $180,000,000
December 31, 2002 and
thereafter $205,000,000
(f) Total Debt to Annualized EBITDA. Holdings and the Borrower will
--------------------------------
not permit the ratio of (i) Total Debt outstanding on any day from and
including (A) the last day of any fiscal quarter set forth below through
(B) the day immediately preceding the last day of the immediately following
fiscal quarter to (ii) Annualized EBITDA for the period ending on the date
referred to in clause (i)(A) above to exceed the ratio set forth opposite
such date:
Fiscal Quarter
Ending On Ratio
----------- -----
December 31, 2001 19.0 to 1
March 31, 2002 17.0 to 1
June 30, 2002 14.0 to 1
September 30, 2002 11.0 to 1
December 31, 2002 8.0 to 1
March 31, 2003 8.0 to 1
June 30, 2003 8.0 to 1
September 30, 2003 6.0 to 1
December 31, 2003 6.0 to 1
March 31, 2004 6.0 to 1
June 30, 2004 6.0 to 1
September 30, 2004 and thereafter 4.5 to 1
17
(g) Total Debt to Annualized Adjusted EBITDA. Holdings and the
-----------------------------------------
Borrower will not permit the ratio of (i) Total Debt outstanding on any day
from and including (A) the last day of any fiscal quarter set forth below
through (B) the day immediately preceding the last day of the immediately
following fiscal quarter to (ii) Annualized Adjusted EBITDA for the period
ending on the date referred to in clause (i)(A) above to exceed the ratio
set forth opposite such date:
Fiscal Quarter
Ending On Ratio
--------- -------
September 30, 2000 23.0 to 1
December 31, 2000 17.0 to 1
March 31, 2001 14.0 to 1
June 30, 2001 12.0 to 1
September 30, 2001 10.0 to 1
December 31, 2001 8.0 to 1
March 31, 2002 and thereafter 6.0 to 1
(h) Senior Debt to Annualized EBITDA. Holdings and the Borrower will
---------------------------------
not permit the ratio of (i) Senior Debt outstanding on any day from and
including (A) the last day of any fiscal quarter set forth below through
(B) the day immediately preceding the last day of the immediately following
fiscal quarter to (ii) Annualized EBITDA for the period ending on the date
referred to in clause (i)(A) above to exceed the ratio set forth opposite
such date:
Fiscal Quarter
Ending On Ratio
------------- ---------
September 30, 2001 9.0 to 1
December 31, 2001 7.0 to 1
March 31, 2002 7.0 to 1
June 30, 2002 6.0 to 1
September 30, 2002 5.0 to 1
December 31, 2002 4.0 to 1
March 31, 2002 4.0 to 1
June 30, 2003 4.0 to 1
September 30, 2003 3.0 to 1
December 31, 2003 and thereafter 3.0 to 1
(i) Senior Debt to Annualized Adjusted EBITDA. Holdings and the
------------------------------------------
Borrower will not permit the ratio of (i) Senior Debt outstanding on any
day from and including (A) the last day of any fiscal quarter set forth
below through (B) the day immediately preceding the last day of the
immediately following fiscal quarter to (ii)
18
Annualized Adjusted EBITDA for the period ending on the date referred to in
clause (i)(A) above to exceed the ratio set forth opposite such date:
Fiscal Quarter
Ending On Ratio
------------ ---------
March 31, 2000 14.0 to 1
June 30, 2000 8.0 to 1
September 30, 2000 8.0 to 1
December 31, 2000 7.0 to 1
March 31, 2001 6.0 to 1
June 30, 2001 5.0 to 1
September 30, 2001 5.0 to 1
December 31, 2001 4.0 to 1
March 31, 2002 and thereafter 4.0 to 1
(j) Interest Coverage Ratio. Holdings and the Borrower will not
------------------------
permit the ratio of (i) Consolidated EBITDA for any period of four
consecutive fiscal quarters ending on any date or during any "Test Period"
set forth below to (ii) Cash Interest Expense for such period to be less
than the ratio set forth opposite such date or Test Period:
Date or Test Period Ratio
---------------------- ----------
September 30, 2002 1.25 to 1
December 31, 2002 -
March 31, 2004 1.50 to 1
June 30, 2004 - June 30, 2005 2.00 to 1
September 30, 2005 and thereafter 2.25 to 1
(k) Fixed Charges Ratio. Holdings and the Borrower will not permit
--------------------
the ratio of (i) Consolidated EBITDA for any period of four consecutive
fiscal quarters ending during any "Test Period" set forth below to Fixed
Charges for such period to be less than the ratio set forth opposite such
Test Period.
Test Period Ratio
------------ --------
September 30, 2002 -
June 30, 2003 1.05 to 1
September 30, 2003 and thereafter 1.10 to 1
19
(l) Capital Expenditures. The Borrower will not permit Capital
---------------------
Expenditures of the Borrower and its Subsidiaries for any period set forth
below to exceed the sum set forth opposite such period:
Period Amount
------- ---------
Date of formation through $275,000,000
December 31, 1998
January 1, 1999 - December 31, $275,000,000
1999
January 1, 2000 - December 31, $ 75,000,000
2000
January 1, 2001 - December 31, $ 15,000,000
2001
January 1, 2002 - December 31, $ 30,000,000
2002
; provided that any permitted amount which is not expended in any of the
--------
periods specified above may be carried over for expenditure in the
immediately subsequent period."
(p) Section 6.13(a) of the Credit Agreement is hereby amended by
inserting the phrase "; provided that a License Subsidiary may hold an
--------
asset which is to be immediately transferred in accordance with Section
5.13(b) hereof" after the word "Licenses".
3. Consent. The Lenders hereby consent to (a) the release by
--------
the Collateral Agent under the Security Documents of the Collateral necessary
to consummate the AW Pops Acquisition in accordance with the terms of the
Preferred Stock Agreement (without giving effect to any amendments to or
waivers of the Preferred Stock Agreement (other than such amendments or
waivers that are not adverse in a material respect to the interests of the
Lenders)), (b) the amendment of the Guarantee Agreement and the Security
Documents by the Borrower, the Administrative Agent and the Collateral Agent
(i) to include the Issuing Banks in the definition of "Secured Parties" and
(ii) to include the LC Obligations in the definition of "Obligations" and (c)
the amendment of the Pledge Agreement to exclude from the definition of
"Pledged Interests" thereunder any equity interests in Unrestricted
Subsidiaries held by Holdings.
4. Waiver. The Lenders hereby expressly waive any rights or
-------
remedies in connection with any breach of or failure to comply with any
provision of the Credit Agreement as in effect on the Effective Date to the
extent, and only to the extent, such provision is amended pursuant to Section
2 hereof.
20
5. 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.
6. Representations and Warranties. Each of Borrower and Holdings
------------------------------
hereby represents and warrants to the Administrative Agent and the Lenders
as of the date hereof:
(a) No Default or Event of Default has occurred and is continuing.
(b) The execution, delivery and performance by each of Borrower and
Holdings of this Amendment have been duly authorized by all necessary
corporate and other action and do not and will not require any registration
with, consent or approval of, notice to or action by, any person (including
any governmental agency) in order to be effective and enforceable. The
Credit Agreement as amended by this Amendment constitutes the legal, valid
and binding obligation of each of Borrower and Holdings, enforceable
against each in accordance with its terms, subject only to the operation of
the Bankruptcy Code and other similar statutes for the benefit of debtors
generally and to the application of general equitable principles.
(c) All representations and warranties of the Borrower and Holdings
contained in the Credit Agreement (other than representations or warranties
expressly made only on and as of the Effective Date) are true and correct
as of the date hereof.
7. Effectiveness. This Amendment shall become effective only
--------------
upon 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 Requisite
Lenders;
(b) The Administrative Agent shall have received such opinions and
certificates from the Borrower and Holdings and their counsel as it may
reasonably request in form reasonably satisfactory to its counsel;
(c) The Administrative Agent shall have received each of the following
from the Borrower and Holdings:
21
(i) A copy of resolutions passed by the board of directors of the
Borrower and Holdings, certified by the Secretary or an Assistant Secretary
of the Borrower and Holdings, as the case may be, as being in full force
and effect on the date hereof, authorizing the execution, delivery and
performance of this Amendment;
(ii) A certificate as to the name and signature of each officer of the
Borrower and Holdings authorized to sign this Amendment;
(iii) A certificate of the chief financial officer of the Borrower to
the effect that (x) all representations and warranties contained in this
Amendment are true and correct as of the date hereof, (y) since February 4,
1998, there has been no material adverse change in the business, assets,
operations, prospects, condition (financial or otherwise) of the Borrower
and its Subsidiaries taken as a whole, and (z) that no event has occurred
and is continuing which, under the terms hereof, is an Event of Default or
would, with the lapse of time or notice or both, become an Event of
Default; and
(d) The Borrower shall have paid to the Administrative Agent on
behalf of the Lenders that duly execute and deliver counterparts hereof on
or prior to April 24, 1998 a fee equal to 0.10 percent of the aggregate
amount of the outstanding Loans and Commitments under the Credit Agreement.
8. Expenses. The Borrower agrees to reimburse the
---------
Administrative Agent for its out-of-pocket expenses in connection with this
Amendment, including the reasonable fees, charges and disbursements of
Cravath, Swaine & ▇▇▇▇▇, counsel for the Administrative Agent.
9. 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.
22
This Amendment may be delivered by facsimile transmission of the relevant
signature pages hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
TRITON PCS, INC.
by
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President of Finance
and Treasurer
TRITON PCS HOLDINGS, INC.,
by
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President of
Finance and Treasurer
THE CHASE MANHATTAN BANK, individually and as
Administrative Agent,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: Traceyn ▇. ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
by
/s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------
Name: R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
23
TORONTO DOMINION BANK (TEXAS),
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BANKBOSTON, N.A.,
by
/s/ ▇▇▇▇▇▇▇ D.Rainie
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
BANK OF HAWAII,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BARCLAYS BANK PLC,
by
/s/ ▇▇▇ ▇▇▇
--------------------------------
Name: ▇▇▇ ▇▇▇
Title: Director
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇- ▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇ ▇▇, ▇▇▇
▇▇▇▇ BRANCH,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
by
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
BHF BANK AKTIENGESELLSCHAFT,
by
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
FIRST UNION NATIONAL BANK,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
THE FUJI BANK, LIMITED
New York Branch,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President and
Manager
25
GENERAL ELECTRIC CAPITAL CORPORATION,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ Christie
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Manager-Operations
ING HIGH INCOME PRINCIPAL PRESERVATION FUND
HOLDINGS, LDC, by ING CAPITAL ADVISORS, INC., as
Investment Advisor,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President &
Portfolio Manager
▇▇▇▇▇▇ COMMERCIAL PAPER, INC.,
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE FUND, INC.,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
UNION BANK OF CALIFORNIA, N.A.,
by
/s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
26
▇▇▇ ▇▇▇▇▇▇ AMERICIAN CAPITAL PRIME
RATE INCOME TRUST,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senipr Vice President
& Director