Exhibit 10.3
SECOND AMENDMENT, dated as of February 20, 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"), and JPMORGAN CHASE BANK (formerly known as
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;
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:
(i) deleting "A-1" from clause (e) of the definition of "Permitted
Investments" and substituting therefor "A2".
2
(ii) deleting the definition of "Revolving Maturity Date" and
substituting the following therefor:
"'Revolving Maturity Date' means May 4, 2006."
(iii) inserting "or (g)" after "Section 6.06(c)" in the definition
of "Service Regions".
(iv) deleting the definition of "Tranche A Maturity Date" and
substituting the following therefor:
"'Tranche A Maturity Date' means May 4, 2006."
(v) deleting the definition of "Tranche B Maturity Date" and
substituting the following therefor:
"'Tranche B Maturity Date' means February 4, 2007."
(vi) deleting the definition of "Tranche C Maturity Date" and
substituting the following therefor:
"'Tranche C Maturity Date' means May 4, 2006."
(vii) deleting the definition of "Tranche D Maturity Date" and
substituting the following therefor:
"'Tranche D Maturity Date' means May 4, 2006."
(b) Section 6.05(i) of the Credit Agreement is hereby amended by
deleting "$100,000,000" therein and substituting therefor "$200,000,000".
(c) Section 6.05(k) of the Credit Agreement is hereby amended by
deleting "$2,000,000" therein and substituting therefor "$7,500,000".
(d) Section 6.05(n) of the Credit Agreement is hereby amended by
deleting "$100,000,000" therein and substituting therefor "$200,000,000".
(e) Section 6.06 of the Credit Agreement is hereby amended by
deleting "and (e)" in the final proviso therein and substituting therefor ", (e)
and (g)".
3
(f) Section 6.12(c) of the Credit Agreement is hereby amended by
deleting the amount "$100,000,000" in the last period therein and substituting
therefor "$200,000,000".
(g) Section 6.12(1) of the Credit Agreement is hereby deleted in its
entirety and the following substituted therefor:
"(1) 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 plus the amount of cash and cash equivalents in excess
of $50,000,000 on the last day of such period to (ii) Fixed Charges
for such period to be less than the ratio set forth opposite such
Test Period:
Test Period Ratio
----------- -----
December 31, 2002 - June 30, 2003 1.00 to 1
September 30, 2003 and thereafter 1.10 to 1"
(h) Section 2.19 of the Credit Agreement is hereby deleted in its
entirety and the following substituted therefor:
"SECTION 2.19. Incremental Term Loans. On or prior to February
2, 2003, the Borrower may, by notice to the Administrative Agent
(which shall promptly deliver a copy to each of the Lenders),
request the addition of a new tranche of term loans (the
"Incremental Term Loans"); provided, however, that both at the time
of any such request and after giving effect to any such Incremental
Term Loans, no Default shall exist and the Borrower shall be in Pro
Forma Compliance with each financial covenant. The Incremental Term
Loans shall (i) be in an aggregate principal amount not in excess of
$150,000,000, (ii) rank pari passu in right of payment and of
security with the other Loans, (iii) have an average weighted life
equal to or longer than the Tranche A Term Loans, Tranche C Term
Loans, Tranche D Term Loans and the Tranche E Term Loans, (iv) be
drawn on or prior to February 2, 2003,
4
(v) have such pricing as may be agreed by the Borrower and the
Persons providing such Incremental Term Loans and (vi) otherwise be
treated hereunder no more favorably than the Tranche A Term Loans,
the Tranche C Term Loans, the Tranche D Term Loans and the Tranche E
Term Loans. Such notice shall set forth the requested amount of
Incremental Term Loans, and shall offer each Lender the opportunity
to offer a commitment (the "Incremental Commitment") to provide
Incremental Term Loans by giving written notice of such offered
commitment to the Administrative Agent and the Borrower within a
time period (the "Offer Period") to be specified in the Borrower's
notice; provided, however, that no existing Lender will be obligated
to subscribe for any portion of such commitments. In the event that,
at the expiration of the Offer Period, Lenders shall have provided
commitments in an aggregate amount less than the total amount of the
Incremental Term Loans requested by the Borrower, the Borrower shall
have the right to arrange for one or more banks or other financial
institutions (any such bank or other financial institution being
called an "Additional Lender") to extend commitments to provide
Incremental Term Loans in an aggregate amount equal to the
unsubscribed amount; provided that each Additional Lender shall be
subject to the approval of the Administrative Agent (which approval
shall not be unreasonably withheld); and provided further that the
Additional Lenders shall be offered the opportunity to provide the
Incremental Term Loans only on terms previously offered to the
existing Lenders pursuant to the immediately preceding sentence.
Commitments in respect of Incremental Term Loans shall become
Commitments under this Agreement pursuant to an Incremental Facility
Amendment executed by each of the Borrower, each Lender agreeing to
provide such Commitment, if any, each Additional Lender, if any, and
the Administrative Agent. The effectiveness of any Incremental
Facility Amendment shall be subject to the satisfaction on the date
thereof and, if different, on the date on which the Incremental Term
Loans are made, of each of the conditions set forth in Section
4.02."
(i) Upon satisfaction of the conditions set forth in Section 6, the
amendments to the Credit Agreement relating to the Tranche E Term Loans (as
defined below) set forth in Exhibit A attached hereto shall become effective.
5
(j) Schedule 2.01 of the Credit Agreement is hereby amended as set
forth in Exhibit B attached hereto.
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. This Amendment (other than the amendments set
forth in Exhibit A attached hereto) 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
Required Lenders;
(b) The Borrower shall have paid to the Administrative Agent, for
the accounts of the Lenders entitled thereto a fee (the "Amendment Fee")
in an amount equal to 0.075% of the outstanding Loans and
6
unused Commitments of each Lender (other than Tranche E Lenders in their
capacity as such) that executes and delivers to the Administrative Agent
(or its counsel) a signature page to this Amendment no later than 5:00
P.M., New York City time on February 20, 2002. The Amendment Fee shall be
payable on the Closing Date in immediately available funds. Once paid, the
Amendment Fee shall not be refundable under any circumstances; and
(c) The Borrower shall have paid all reasonable out-of-pocket
expenses of the Administrative Agent 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.
6. Effectiveness of Exhibit A. The amendments set forth in Exhibit A
shall become effective as of the date first written above on the date (the
"Exhibit A 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;
(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;
(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 ▇.▇.
▇▇▇▇▇▇ Securities Inc. The Participation Fees shall be payable on the
Exhibit A Closing Date in immediately available funds. Once paid, the
Participation Fees shall not be refundable under any circumstances; and
(d) All conditions precedent to the effectiveness of this Amendment
set forth in Section 5 above shall have been satisfied.
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.
7
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.
8
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: SVP & Treasurer
TRITON PCS HOLDINGS, INC.,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP & Treasurer
JPMORGAN CHASE BANK,
individually and as Administrative
Agent,
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
9
NATIONAL CITY BANK, as a Lender,
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: SVP
BALANCED HIGH YIELD FUND I, LTD.,
as a Lender,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender,
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
KZH SHOSHONE LLC, as a Lender,
by /s/ ▇▇▇▇▇ ▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Authorized Agent
NOMURA BOND AND LOAN FUND,
as a Lender,
By: UFJ Trust Company of New York
as Trustee
By: Nomura Corporate Research and
Asset Management Inc.
Attorney in Fact
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
10
CLYDESDALE CLO 2001-1, LTD.,
as a Lender,
By: Nomura Corporate Research and
Asset Management Inc.
as Collateral Manager
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender,
by /s/ ▇▇▇▇▇ ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Manager - Operations
UNION BANK OF CALIFORNIA, N.A.,
as a Lender,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
Title: Vice President
FIDELITY ADVISOR SERIES II:
FIDELITY ADVISOR FLOATING RATE
HIGH INCOME FUND, as a Lender,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
SUNTRUST BANK, as a Lender,
by /s/ J. ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: J. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
11
SUNTRUST BANK, as a Tranche E Lender,
by /s/ J. ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: J. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
TORONTO DOMINION (TEXAS), INC.,
as a Lender,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS LP,
as a Lender,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
BAVARIA TRR CORPORATION, as a Lender,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
ELC (CAYMAN) LTD. 1999-II,
as a Lender,
by /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
12
FORTIS CAPITAL CORP., as a Lender,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
by /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as a Lender,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇ Guiller
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
Guiller
Title: Assistant Vice President
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEEN BANK B.A.,
"RABOBANK NEDERLAND", NEW YORK
BRANCH, as a Lender,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Corporate Banking
Officer
CIBC INC., as a Lender,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Director
CIBC World Markets Corp.
As Agent
13
NIB CAPITAL BANK, N.V., as a Lender,
by /s/ ▇▇▇▇-▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇-▇▇▇ ▇▇▇▇▇▇▇
Title:
by /s/ H.I.J. van Adriceibm
----------------------------------
Name: H.I.J. van Adriceibm
Title:
U.S. BANK NATIONAL ASSOCIATION,
as a Lender,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
ABN AMRO BANK N.V., as a Lender,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇
Title: Group Vice President
by /s/ Jordan ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: Jordan ▇. ▇▇▇▇▇▇▇
Title: Corporate Banking Officer
INNER HARBOR CBO 2001-1 LTD.,
as a Lender,
▇. ▇▇▇▇ Price Associates, Inc.
as Collateral Manager
by /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
14
FIRST UNION NATIONAL BANK,
as a Lender,
by /s/ Brand ▇▇▇▇▇▇▇
----------------------------------
Name: Brand ▇▇▇▇▇▇▇
Title: Vice President
COBANK, as a Lender,
by /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: V.P.
10
EXHIBIT A
Tranche E Term Loan amendments
(a) Section 1.01 of the Credit Agreement is hereby amended by:
(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, or (ii) with respect to a
Revolving Loan, a Tranche A Term Loan, a Tranche C Term Loan, a
Tranche D Term Loan or a Tranche E Term Loan, the applicable rate
per annum for a Revolving Loan, a Tranche A Term Loan, a Tranche C
Term Loan, a Tranche D Term Loan or a Tranche E 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%
------------------------------------------------------------------------------
11
------------------------------------------------------------------------------
ABR Eurodollar
Leverage Ratio: Spread Spread
------------------------------------------------------------------------------
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%
------------------------------------------------------------------------------
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 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
12
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%
--------------------------------------------------------------------
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
13
Commitment, Tranche E Commitment or Incremental Commitment, if any."
(iv) deleting the definition of "Commitment" and substituting the
following therefor:
"'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 February 28, 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 $100,000,000."
14
"'Tranche E Effective Date' means the date on which the
conditions specified in Section 5 of the Second Amendment are
satisfied (or waived)."
"'Tranche E Execution Date' means February [ ], 2002, the date
of execution of the second amendment (the "Second 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 May 4, 2006."
"'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)"
(f) Section 2.08 is hereby deleted in its entirety and the following
substituted therefor:
15
"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
16
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 12 consecutive quarterly installments, payable
on August 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
----------- ----------------
1-4 $ 6,250,000
5-8 $ 8,750,000
9-12 $10,000,000
(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
17
repayments of Term Borrowings of such 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, 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
18
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.
(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
19
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 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
20
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, Tranche C Term
Loans, Tranche 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
21
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 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."
