Exhibit 10.22.11
TENTH AMENDMENT, dated as of July 17, 2000 (this "Amendment"), to the
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Credit Agreement, dated as of July 17, 1998 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among TELECORP
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PCS, INC., a corporation organized under the laws of the State of Delaware (the
"Borrower"), the several banks and other financial institutions and entities
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from time to time parties thereto (the "Lenders"), and THE CHASE MANHATTAN BANK,
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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) deleting "and (b)" in the definition of "Applicable Margin" and
substituting the following therefor:
", (b) with respect to any Tranche C Term Loan, the applicable
Tranche C Rate and (c)"
(ii) deleting the definition of "Class" and substituting the following
therefor:
"'Class', when used in reference to any Loan or Borrowing, refers
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to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans, Tranche A Term Loans, Tranche B Term Loans or Tranche
C Term Loans and, when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Commitment, Tranche A
Commitment, Tranche B Commitment or Tranche C Commitment."
(iii) deleting the definition of "Term Loans" and substituting the
following therefor:
"'Term Loans' means Tranche A Term Loans, Tranche B Term Loans
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and Tranche C Term Loans."
(iv) adding the following definitions in their appropriate
alphabetical order:
"'Tranche C Availability Period' means the period from and
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including May 5, 2000 to but excluding the earlier of May 5, 2002 and
the date of termination of the Tranche C Commitments.
'Tranche C Commitment' means, with respect to each Lender, the
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commitment, if any, of such Lender to make Tranche C Term Loans
hereunder, expressed as an amount representing the maximum principal
amount of the Tranche C Term Loans to be made by such Lender
hereunder, as such commitment may be (a) reduced from time to time
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 C Commitment is set
forth on Schedule 2.01(a), or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Tranche C
Commitment, as applicable. The initial aggregate amount of the
Lenders' Tranche C Commitments is $35,000,000.
'Tranche C Lender' means a Lender with a Tranche C Commitment or
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an outstanding Tranche C Term Loan.
'Tranche C Maturity Date' means May 17, 2009.
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'Tranche C Rate' means, with respect to any Tranche C Term Loan
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(a) 2.00% per annum, in the case of an ABR Loan, and (b) 3.00% per
annum, in the case of a Eurodollar Loan
'Tranche C Term Loan' means a Loan made pursuant to clause (c) of
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Section 2.01."
(v) inserting ", Schedule 2.01(a)" in the definition of "Lenders"
immediately after "Schedule 2.01":
(b) Section 2.01 of the Credit Agreement is hereby amended by
deleting "and (c)" therefrom and substituting the following therefor:
", (c) to make Tranche C Term Loans to the Borrower during the
Tranche C Availability Period in an aggregate principal amount not
exceeding its Tranche C Commitment and (d)"
(c) Section 2.02(d) is hereby amended by deleting "or Tranche B
Maturity Date" therefrom and inserting therefor the following:
", Tranche B Maturity Date or Tranche C Maturity Date"
(d) Clause (i) of Section 2.03 of the Credit Agreement is hereby
amended by deleting therefrom "or Tranche B Term Borrowing" and substituting
therefor the following:
", Tranche B Term Borrowing or Tranche C Term Borrowing"
(e) Section 2.06(a) of the Credit Agreement is hereby amended by
deleting "and (iii)" therefrom and substituting therefor the following:
", (iii) the Tranche C Commitments shall terminate at 5:00 p.m. New
York City time on the last day of the Tranche C Availability Period and
(iv)"
(f) Section 2.08 is hereby amended by deleting clauses (d), (e) and
(f) thereof and substituting the following therefor:
(d) 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 and (iii) all Tranche C Term Loans shall be due and
payable on the Tranche C Maturity Date.
(e) 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 (i) during the Tranche A
Availability Period, in the case of the Tranche A Term Loans, (ii) on
the Effective Date, in the case of the Tranche B Term Loans or (iii)
during the Tranche C Availability Period, in the case of Tranche C
Term Loans, then the scheduled 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.
(f) 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
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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
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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, promptly and in any event not later than the
Business Day after such Net Proceeds are received, the Borrower shall
prepay Term Borrowings and the Revolving Commitments and the unused
Tranche A Commitments and Tranche C Commitments shall be automatically
and permanently reduced in an aggregate amount (to be applied ratably
among the unused Tranche A Commitments, the Tranche A Term Loans, the
Tranche B Term Loans, the unused Tranche C Commitments, the Tranche C
Term Loans and the Revolving Commitments based on their then
respective amounts) equal to (i) in the case of an event described in
clause (c) of the definition of "Prepayment Event", 50% of such Net
Proceeds and (ii) in the case of an event described in any other
clause of the definition of "Prepayment Event", 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 and the Revolving Commitments and the unused
Tranche A Commitments and Tranche C Commitments shall be automatically
and permanently reduced in an aggregate amount (to be applied ratably
among the unused Tranche A Commitments, the Tranche A Term Loans, the
Tranche B Term Loans, the unused Tranche C Commitments, the Tranche C
Term Loans and the Revolving Commitments 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 third Business Day after the date on which financial
statements are delivered (or, if earlier, required to be delivered)
pursuant to Section 5.01(a) with respect to the fiscal year for which
Excess Cash Flow is being calculated.
(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 (e) of this Section; provided that
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(i) all prepayments shall be applied ratably among the unused Tranche
A Commitments, the Tranche A Term Loans, the Tranche B Term Loans, the
unused Tranche C Commitments, the Tranche C Term Loans and the
Revolving Commitments and (ii) each prepayment of Borrowings of any
Class shall be applied to prepay ABR Borrowings of such Class before
any other Borrowings of such Class. Any amounts remaining after such
application shall, at the option of the Borrower, be applied to prepay
Eurodollar Borrowings immediately and/or shall be deposited in the
Prepayment Account (as defined below). The Administrative Agent shall
apply any cash deposited in the Prepayment Account to prepay
Eurodollar Borrowings on the last day of their respective Interest
Periods (or, at the direction of the Borrower, on any earlier date)
until all outstanding Eurodollar Borrowings have been prepaid or until
all the allocable cash on deposit with respect to such
Loans has been exhausted. For purposes of this Agreement, the term
"Prepayment Account" shall mean an account established by the Borrower
with the Administrative Agent and over which the Administrative Agent
shall have exclusive dominion and control, including the exclusive
right of withdrawal for application in accordance with this paragraph
(d). The Administrative Agent will, at the request of the Borrower,
invest amounts on deposit in the Prepayment Account in Permitted
Investments that mature prior to the last day of the applicable
Interest Periods of the Eurodollar Borrowings to be prepaid; provided,
however, that (i) the Administrative Agent shall not be required to
make any investment that, in its sole judgment, would require or cause
the Administrative Agent to be in, or would result in any, violation
of any law, statute, rule or regulation and (ii) the Administrative
Agent shall have no obligation to invest amounts on deposit in the
Prepayment Account if a Default or Event of Default shall have
occurred and be continuing. The Borrower shall indemnify the
Administrative Agent for any losses relating to the investments so
that the amount available to prepay Eurodollar Borrowings on the last
day of the applicable Interest Period is not less than the amount that
would have been available had no investments been made pursuant
thereto. Other than any interest earned on such investments, the
Prepayment Account shall not bear interest. Interest or profits, if
any, on such investments shall be deposited in the Prepayment Account
and reinvested and disbursed as specified above. If the maturity of
the Loans has been accelerated pursuant to Article VII, the
Administrative Agent may, in its sole discretion, apply all amounts on
deposit in the Prepayment Account to satisfy any of the Obligations.
The Borrower hereby grants to the Administrative Agent, for its
benefit and the benefit of the Issuing Bank and the Lenders, a
security interest in the Prepayment Account to secure the Obligations.
In the event of any optional or mandatory prepayment of Term
Borrowings or
reduction of Tranche A Commitments and Tranche C Commitments made at a
time when Term Borrowings or unused Commitments of more than one Class
remain outstanding, the Borrower shall select Term Borrowings to be
prepaid and Tranche A Commitments and Tranche C Commitments to be
reduced so that the aggregate amount of such prepayment is allocated
between the unused Tranche A Commitments, the Tranche A Term
Borrowings, the Tranche B Term Borrowings, the unused Tranche C
Commitments and Tranche C Term Borrowings pro rata based on the
aggregate principal amount of outstanding Borrowings or unused
Commitments of each such Class; provided that any Tranche B Lender or
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Tranche C 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 or Tranche C 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 or Tranche C Term Loans or to reduce the unused
Tranche C Commitments but were so declined shall be applied to prepay
Tranche A Term Loans and to reduce the Revolving Commitments and the
unused Tranche A Commitments on a pro rata basis based on their then
respective amounts.
(e) The amount of any optional or mandatory prepayments
allocated to Term Loans shall be applied pro rata to reduce the
principal amount of the then remaining amortization installments
applicable to such Loans set forth in Section 2.08. The amount of any
optional or mandatory commitment reductions allocated to the Revolving
Commitments, the unused Tranche A Commitments or the unused Tranche C
Commitments 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 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, not later than 11:00 a.m., New York City time, one Business
Day before the date of prepayment. 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
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prepayment is given in connection with a conditional notice of
termination of the Revolving Commitments as contemplated by Section
2.08, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.08. Promptly
following receipt of any such notice, 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 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 2.13."
(h) 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 Loans or L/C Disbursement as
a result of which the unpaid principal portion of its Tranche A Term
Loans, Tranche B Term Loans, Tranche C Term Loans or Revolving Loans
or participations in L/C Disbursements shall be proportionately less
than the unpaid principal portion of the Tranche A Term Loans, Tranche
B Term Loans, Tranche C Term Loans or Revolving Loans and
participations in L/C 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 or Revolving Loans or L/C Exposure, 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 and Revolving Loans and participations in Tranche
A Term Loans, Tranche B Term Loans, Tranche C Term Loans and Revolving
Loans and L/C Exposure 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 and Revolving
Loans and L/C Exposure then outstanding as the principal amount of its
Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans and
Revolving Loans 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 and Revolving
Loans and L/C Exposure outstanding prior to such exercise of any right
of setoff or counterclaim or other event; provided that (i) if any
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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 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.
(i) Section 2.18 is amended by inserting at the end thereof the
following:
"The Tranche C Term Loans are Expansion Term Loans."
(j) Schedule 2.01(a) attached as Annex A hereto is hereby inserted in
the Credit Agreement between Schedule 2.01 and Schedule 3.05.
(k) Section 9.02(b) of the Credit Agreement is amended by deleting
clause (ix) of the first proviso therein and replacing such clause with "(ix)
change the rights of the Tranche B Lenders or Tranche C Lenders, as applicable,
to decline mandatory prepayments as provided in Section 2.09, without the
written consent of Tranche B Lenders or Tranche C Lenders, as applicable, in
each case holding a majority of the outstanding Tranche B Loans or Tranche C
Loans and unused Tranche C Commitments, as applicable".
(l) Section 9.02(b) of the Credit Agreement is amended by deleting
clause (B) of the final proviso therein and replacing such clause with "(B) any
waiver, amendment or modification of this Agreement that by its terms affects
the rights or duties under this Agreement of the Revolving Lenders (but not the
Tranche A Lenders, the Tranche B Lenders or the Tranche C Lenders), the Tranche
A Lenders (but not the Revolving Lenders, the Tranche B Lenders or
the Tranche C Lenders), the Tranche B Lenders (but not the Revolving Lenders,
the Tranche A Lenders or the Tranche C Lenders) or the Tranche C Lenders (but
not the Revolving Lenders, the Tranche A Lenders or the Tranche B Lenders) may
be effected by an agreement or agreements in writing entered into by the
Borrower and the requisite percentage in interest of the affected Class of
Lenders".
3. 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.
4. 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.
(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 it 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.
5. 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 Lucent; and
(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.
6. 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.
7. 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.
(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: /s/ Thomas H. Sullivan
Title: Executive Vice President
and Chief Financial Officer
LUCENT TECHNOLOGIES, INC.,
by /s/ Lucent Technologies Inc.
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Name:
Title:
ANNEX A
SCHEDULE 2.01(a)
TRANCHE C COMMITMENTS
Lender(s) Tranche C Commitment
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Lucent Technologies, Inc. $35,000,000
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Total $35,000,000