Exhibit 10.17
FIFTH AMENDMENT dated as of February 26, 2003 (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"), JPMORGAN CHASE BANK,
as administrative agent (in such capacity, the "Administrative Agent") for the
Lenders, FIRST UNION NATIONAL BANK, as Tranche E syndication agent (the "Tranche
E Syndication Agent") and THE BANK OF NOVA SCOTIA, as Tranche E documentation
agent (the "Tranche E Documentation Agent").
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed
to make certain loans to the Borrower; and
WHEREAS, the Borrower has requested that the Lenders amend the
Credit Agreement in order to, among other things, extend the Tranche E
Availability Period to June 8, 2003, and the parties hereto are willing, on the
terms and subject to the conditions set forth herein, to agree to such
amendments.
NOW, THEREFORE, in consideration of the above 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. Effective as of the
Effective Date (as defined in Section 5), the Credit Agreement is amended as
follows:
(a) Amendment of Section 1.01. (i) The definition of "Applicable
Rate" is amended by replacing the reference to "or" immediately before the
reference to "(B)" with a comma and inserting the following at the end of
such definition: "or (C) at all times during the period from March 8, 2003
through June 8, 2003; provided that the terms of this clause (C) shall be
applicable only in connection with calculating any commitment fees payable
in respect of the Tranche E Commitments".
(ii) The definition of "Tranche E Availability Period" is amended by
replacing the reference therein to "March 8, 2003" with a reference to
"June 8, 2003".
(b) Amendment of Section 2.06(a). Section 2.06(a) is hereby amended
by replacing clauses (v) and (vi) with the following:
"(v) in the event that the Borrower has not borrowed any Tranche E
Term Loans on or prior to May 4, 2003, an aggregate amount of Tranche E
Commitments equal to $312,500 shall terminate on such date, (vi) 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 (vii) the Revolving
Commitments shall terminate on the Revolving Maturity Date."
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, the Administrative Agent, the Tranche E Syndication Agent or the
Tranche E Documentation 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. 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).
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(c) All representations and warranties of the Borrower and Holdings
contained in the Credit Agreement are true and correct in all material
respects as of the date hereof (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).
SECTION 5. Effectiveness. This Amendment shall become effective on
the date (the "Effective Date") on which the following conditions are satisfied:
(a) The Administrative Agent shall have received counterparts
hereof, duly executed and delivered by the Borrower, Holdings and the
Required Lenders (including each of the Tranche E Lenders); and
(b) 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.
SECTION 6. Expenses. The Borrower agrees to reimburse the
Administrative Agent for its reasonable out-of-pocket expenses in connection
with this Amendment, including the reasonable fees, charges and disbursements of
counsel for the Administrative Agent.
SECTION 7. Governing Law; Counterparts. (a) This Amendment and the
rights and obligations of the parties hereto shall be governed by, and construed
and interpreted in accordance with, the laws of the State of New York.
(b) This Amendment may be executed by one or more of the parties to
this Amendment on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. This Amendment may be delivered by facsimile transmission of
the relevant signature pages hereof.
SECTION 8. 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/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Treasurer
TRITON PCS HOLDINGS, INC.,
by
/s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Treasurer
JPMORGAN CHASE BANK,
individually and as Administrative
Agent,
by
/s/ Xxxxx X. Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
SIGNATURE PAGE FOR
FIFTH AMENDMENT
TO TRITON PCS
CREDIT AGREEMENT
To Approve this Amendment:
Institution: ABN AMRO Bank, N.V.
by:
/s/ Xxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Group Vice President
by:
/s/ Xxxxxx Xxxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
To Approve this Amendment:
Institution: Ballyrock CDO I Limited
by:
/s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title: Assistant Treasurer
To Approve this Amendment:
Institution: The Bank of New York
by:
/s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
SIGNATURE PAGE FOR
FIFTH AMENDMENT
TO TRITON PCS
CREDIT AGREEMENT
To Approve this Amendment:
Institution: The Bank of Nova Scotia
by:
/s/ Xxx X. Xxxxxxx
--------------------------------------
Name: Xxx X. Xxxxxxx
Title: Authorized Signatory
To Approve this Amendment:
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEEN BANK
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
by:
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
by:
/s/ Xxx Xxxxx
--------------------------------------
Name: Xxx Xxxxx
Title: Managing Director
To Approve this Amendment:
Institution: Fidelity Advisor Series II:
Advisor Floating Rate High
Income Fund
by:
/s/ Xxxx Xxxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Assistant Treasurer
SIGNATURE PAGE FOR
FIFTH AMENDMENT
TO TRITON PCS
CREDIT AGREEMENT
To Approve this Amendment:
Institution: Fleet National Bank
by:
/s/ R.E. Xxxxxxxx
----------------------------------------
Name: R.E. Xxxxxxxx
Title: Head Portfolio Manager
To Approve this Amendment:
Institution: General Electric Capital Corp.
by:
/s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Manager, Operations
To Approve this Amendment:
Institution: HVB
by:
/s/ [illegible signature]
----------------------------------------
Name: [illegible signature]
Title: Head of Telecommunications,
Global Project Finance
by:
/s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Assistant Vice President
SIGNATURE PAGE FOR
FIFTH AMENDMENT
TO TRITON PCS
CREDIT AGREEMENT
To Approve this Amendment:
Institution: JPMorgan
by:
/s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
To Approve this Amendment:
Institution: National City Bank
by:
/s/ Xxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
To Approve this Amendment:
Institution: SunTrust Bank
by:
/s/ J. Xxxx Xxxxxxx
-----------------------------
Name: J. Xxxx Xxxxxxx
Title: Director
SIGNATURE PAGE FOR
FIFTH AMENDMENT
TO TRITON PCS
CREDIT AGREEMENT
To Approve this Amendment:
Institution: U.S. Bank National Association
by:
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
To Approve this Amendment:
Institution: Wachovia Bank, N.A. f/k/a First Union
National Bank
by:
/s/ Xxxx X. Xxxx
-----------------------------------
Name: Xxxx X. Xxxx
Title: Director
