EXHIBIT 10.8.2
CONFORMED COPY
FIRST AMENDMENT, CONSENT AND WAIVER, dated as of December 18, 1998 (this
"Amendment"), to the Credit Agreement, dated as of July 17, 1998 (as amended,
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supplemented or otherwise modified from time to time, the "Credit Agreement"),
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among TELECORP PCS, INC., a corporation organized under the laws of the State of
Delaware (the "Borrower"), the several banks and other financial institutions
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and entities from time to time parties thereto (the "Lenders"), and THE CHASE
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MANHATTAN BANK, as administrative agent (the "Administrative Agent") for the
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Lenders.
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make certain loans to the Borrower; and
WHEREAS the Borrower has requested that certain provisions of the
Credit Agreement be modified in the manner provided for in this Amendment, and
the Lenders are willing 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 the words "or the FCC" after the words "Treasury
Department" in the definition of "FCC Debt";
(ii) inserting after the definition of "Interest Period" and before
the definition of "Issuing Bank" the following definition:
"`IDB' means The Industrial Development Board of the City of
Memphis and County of Shelby, Tennessee.";
(iii) inserting after the definition of "Management Agreement" and
before the definition of "Master Lease" the following definition:
"`Marketing Affiliate' means a limited liability company owned
1/2 by the Borrower and 1/2 by Triton PCS, Inc. or 1/3 by the
Borrower, 1/3 by Triton PCS, Inc. and 1/3 by TriTel PCS, Inc., which
engages in no activity other than the registering, holding,
maintenance and protection of trademarks and the licensing thereof to
its members."
(iv) inserting after the definition of "Material Indebtedness" and
before the definition of "Mercury Acquisition" the following definitions:
`Memphis Equipment' means the personal property to be leased to
the Equipment Subsidiary by the IDB pursuant to the Memphis Lease all
of which is described in Exhibit A thereto.
`Memphis Event of Default' has the meaning assigned to such term
in the Memphis Lease.
`Memphis Lease' has the meaning ascribed thereto in the
definition of Memphis Sale Lease-Back.
`Memphis Lease Documents' has the meaning ascribed thereto in the
definition of Memphis Sale Lease-Back.
`Memphis Sale Lease-Back' means the sale of the Memphis Equipment
to the IDB by the Equipment Subsidiary pursuant to Bills of Sale
acceptable to the Administrative Agent and the lease-back by the
Equipment Subsidiary of such equipment pursuant to a Personal Property
Lease Agreement (the "Memphis Lease") between the IDB and the
Equipment Subsidiary substantially in the form of, and no less
favorable to the Lenders than, the draft thereof examined by the
Administrative Agent prior to the date hereof; provided that (i) all
the Equipment Subsidiary's rights under the Memphis Lease and related
documentation (collectively, the "Memphis Lease Documents") are
assigned to the Lenders as collateral, (ii) payments to the IDB under
the Memphis Lease in any year do not exceed the amount of taxes that
would have been paid to the State of Tennessee by the Borrower and the
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Subsidiaries in such year that are not required to be and are not paid
as a result of the Memphis Sale Lease-Back (the "Saved Taxes") and
(iii) the Equipment Subsidiary has the right to repurchase from the
IDB at any time all the Memphis Equipment then owned by the IDB for
$1,000 or less."
(v) amending the definition of "Prepayment Event" by deleting from
clause (a)(i) thereof "and (d)" and substituting therefor ", (d) and (e).";
(vi) deleting the words "the Real Property Subsidiary" in the
definition of "Real Property Subsidiary" and substituting therefor the
words "a Real Property Subsidiary";
(vii) inserting the word "each" before the words "such Restricted
Subsidiary" each time they appear in the definition of "Real Property
Subsidiary"; and
(viii) deleting the dollar amounts "$880,000" and "$7,000,000" in the
definition of "Wireless 2000 Acquisition" and substituting in lieu thereof
the dollar amounts "$1,075,600" and "$7,449,191", respectively.
(b) Section 3.13 of The Credit Agreement is hereby amended by deleting
clause (d) therefrom in its entirety and substituting therefor the following:
"(d) in the case of any Equipment Subsidiary, (i) under any lease
of equipment which it has entered into in the ordinary cause of
business, (ii) for payments in lieu of taxes and other obligations
under the Memphis Lease not exceeding the amount of the Saved Taxes in
any year and (iv) for taxes incurred in the ordinary course of
business which are incident to being the owner or lessor of equipment
and"
(c) Section 5.13 of the Credit Agreement is hereby amended by
inserting the following paragraph at the end thereof:
"(c) The Borrower will (i) take all necessary actions required
to grant, preserve, protect and perfect a first priority security
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interest in favor of the Lenders in all assets subject to the Memphis
Lease, (ii) obtain from the IDB all consents, filings or other actions
the Administrative Agent may reasonably request in connection
therewith and (iii) promptly notify and provide the Administrative
Agent with a copy of any notice the Equipment Subsidiary receives
pursuant to any of the Memphis Lease Documents."
(d) Section 6.01(a)(viii) of the Credit Agreement is hereby amended by
deleting the dollar amount "$7,000,000" therefrom and substituting in lieu
thereof the dollar amount "$7,449,191".
(e) Section 6.02 of the Credit Agreement is hereby amended by:
(i) deleting the word "and" at the end of clause (iv) thereof;
(ii) deleting "." at the end of clause (v) thereof and substituting ";
and" therefor; and
(iii) inserting the following after clause (v) thereof: "(vi) Liens
on the Memphis Equipment in favor of the IDB arising pursuant to the
Memphis Sale Lease-Back."
(f) Section 6.03 of the Credit Agreement is hereby amended by:
(i) inserting "(i)" after the words "except for" therein;
(ii) deleting "." at the end thereof and substituting therefor the
following: "and (ii) the Memphis Sale Lease-Back."
(g) Section 6.05 of the Credit Agreement is hereby amended by
inserting after clause (n) thereof the following:
"(o) Investments in the Capital Stock of the Marketing Affiliate
not exceeding $1,000 in the aggregate; provided that (i) all such
Capital Stock is pledged pursuant to the Pledge Agreement and (ii) all
agreements entered into between the
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Marketing Affiliate and any Loan Party are assigned to the Lenders as
collateral."
(h) Section 6.06 of the Credit Agreement is hereby amended as
follows:
(i) by inserting after clause (d) thereof and before the proviso the
following:
"(e) sales of the Memphis Equipment to the IDB pursuant to and
in accordance with the terms of the Memphis Sale Lease-Back."
(ii) inserting ", except for the Memphis Sale Lease-Back," in the
proviso thereof after the words "provided that" and before the words, "all
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sales".
(i) Section 6.11 of the Credit Agreement is hereby amended by
inserting after the words "Master Lease" the words "or the Memphis Lease
Documents".
(j) Section 6.13(c) of the Credit Agreement is hereby amended by:
(i) inserting before the word "and" at the end of clause (ii) of
the parenthetical therein the following:
",(iii) for payments in lieu of taxes and other obligations
under the Memphis Lease not exceeding the amount of the Saved
Taxes in any year"
(ii) renumbering clause (iii) thereof as clause (iv); and
(iii) inserting before the period at the end of such subsection
the words "and the Memphis Sale and Lease-Back".
(k) Article VII of the Credit Agreement is hereby amended by
inserting the following clause immediately after clause (v) thereof:
"(w) a Memphis Event of Default shall have occurred and be
continuing;"
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3. Consent. The Lenders hereby consent to an amendment of the
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Security Agreement by the Borrower and the Collateral Agent which deletes
Section 7.16 therefrom in its entirety and substitutes in lieu thereof the
following:
"SECTION 7.16. FCC Consent. Notwithstanding anything herein which
may be construed to the contrary, no action shall be taken by any of the
Collateral Agent and the Secured Parties with respect to the Licenses or
any license of the Federal Communications Commission ("FCC") unless and
until any required approval under the Federal Communications Act of 1934,
and any applicable rules and regulations thereunder, requiring the consent
to or approval of such action by the FCC or any governmental or other
authority, have been satisfied. Without limiting the generality of the
foregoing, the Collateral Agent and the Secured Parties shall have no
security interest in the Licenses or any license of the FCC for so long as
such security interest is prohibited by the rules or regulations of the FCC
or any agreement between a Loan Party and the FCC securing FCC Debt in
connection with any such License or other license.
4. Waiver. The Lenders hereby expressly waive any rights or remedies
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in connection with any breach of or failure to comply with the second sentence
of Section 5.03(a) of the Credit Agreement and the second sentence of Section
4.01 of the Security Agreement to the extent, and only to the extent, such
provision is breached in connection with the Borrower's relocation of its
primary business office to 1010 N. Glebe Road, Suite 800, Arlington, Virginia
22201.
5. No Other Amendments; Confirmation. Except as expressly amended,
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waived, modified and supplemented hereby, the provisions of the Credit Agreement
are and shall remain in full force and effect.
6. Representations and Warranties. The Borrower hereby represents
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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.
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(b) The execution, delivery and performance by the Borrower 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 the Borrower, 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 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
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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, and the Required Lenders;
(b) The Administrative Agent shall have received such opinions and
certificates from the Borrower and its counsel as it may reasonably request
in form reasonably satisfactory to its counsel.
8. Expenses. The Borrower agrees to reimburse the Administrative
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Agent for its out-of-pocket expenses in connection with this Amendment,
including the reasonable fees, charges and disbursements of Cravath, Swaine &
Moore, counsel for the Administrative Agent.
9. Governing Law; Counterparts. (a) This Amendment and the rights
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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.
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(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.
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.
TELECORP, PCS, INC.
by
/s/ Thomas H. Sullivan
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Name: Thomas H. Sullivan
Title: Executive Vice
President
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent,
by
/s/ William E. Rottino
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Name: William E. Rottino
Title: Vice President
THE BANK OF NEW YORK,
by
/s/ Gerry Granovsky
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Name: Gerry Granovsky
Title: Vice President
BANK OF TOKYO MITSUBISHI TRUST COMPANY,
by
/s/ Michael Deadder
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Name: Michael Deadder
Title: Vice President
BANKBOSTON, N.A.,
by
/s/ Jonathan D. Sharkey
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Name: Jonathan D. Sharkey
Title: Vice President
BANKERS TRUST COMPANY, individually and
as Documentation Agent,
by
/s/ Gregory Shefrin
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Name: Gregory Shefrin
Title: Vice President
CANADIAN IMPERIAL BANK OF COMMERCE, by
CIBC Oppenheimer Corp., as Agent,
by
/s/ Harold Birk
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Name: Harold Birk
Title: Executive Director
CIT GROUP/EQUIPMENT FINANCING,
by
/s/ J. E. Palmer
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Name: J. E. Palmer
Title: Assistant Vice
President
CAPTIVA III FINANCE, LTD., as advised by
Pacific Investment Management Company,
by
/s/ David Egglishaw
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Name: David Egglishaw
Title: Director
DELANO COMANY, by Pacific Investment
Management Company as its Investment
Advisor,
by
/s/ Raymond Kennedy
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Name: Raymond Kennedy
Title: Senior Vice President
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FLEET NATIONAL BANK,
by
/s/ William Weiss
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Name: William Weiss
Title: Assistant Vice
President
GENERAL ELECTRIC CAPITAL CORPORATION,
by
/s/ Mark F. Mylon
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Name: Mark F. Mylon
Title: Manager, Operations
KZH APPALOOSA LLC,
by
/s/ Virginia Conway
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Name: Virginia Conway
Title: Authorized Agent
KZH IV LLC,
by
/s/ Virginia Conway
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Name: Virginia Conway
Title: Authorized Agent
KZH PAMCO LLC,
by
/s/ Virginia Conway
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Name: Virginia Conway
Title: Authorized Agent
PAMCO CAYMAN LTD., by Highland Capital
Management, L.P., as Collateral Manager,
by
/s/ James Dondero, CFA, CPA
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Name: James Dondero, CFA, CPA
Title: President, Highland
Capital Management, L.P.
SYNDICATED LOAN FUNDING TRUST, by Lehman
Commercial Paper Inc., not in its
individual capacity but solely as Asset
Manager,
by
/s/ Michele Swanson
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Name: Michele Swanson
Title: Authorized Signatory
TORONTO DOMINION [TEXAS], INC.,
by
/s/ Lynn Chasin
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Name: Lynn Chasin
Title: Vice President
VAN KAMPEN PRIME RATE INCOME TRUST,
by
/s/ Jeffrey W. Maillet
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Name: Jeffrey W. Maillet
Title: Senior Vice President
and Director
VAN KAMPEN SENIOR FLOATING RATE FUND,
by
/s/ Jeffrey W. Maillet
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Name: Jeffrey W. Maillet
Title: Senior Vice President
and Director
VAN KAMPEN SENIOR INCOME TRUST,
by
/s/ Jeffrey W. Maillet
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Name: Jeffrey W. Maillet
Title: Senior Vice President
and Director