Solicitation Agency Agreement Dated 01-11-2001

Exhibit 10.4


EXECUTION COPY


SALOMON SMITH BARNEY INC.
390 GREENWICH STREET
NEW YORK, NEW YORK 10013


LEHMAN BROTHERS INC.
THREE WORLD FINANCIAL CENTER
NEW YORK, NEW YORK 10285


January 11, 2001


Tritel PCS, Inc. 1010 North Glebe Road Arlington, Virginia 22201 Attention: Thomas H. Sullivan


Tritel PCS, Inc.
Consent Solicitation


Ladies and Gentlemen:


Tritel PCS, Inc. (the "Company") has advised Salomon Smith Barney Inc. ("SSBI") and Lehman Brothers Inc. ("Lehman Brothers"), that the Company desires to appoint SSBI and Lehman Brothers, on the terms set forth in this Engagement Letter, to act as joint solicitation agents (each of SSBI and Lehman Brothers, a "Solicitation Agent" and, together, the "Solicitation Agents") in connection with the solicitation of consents from the holders of Tritel PCS's 12-3/4% Senior Subordinated Discount Notes due 2009 (the "Notes") to an amendment (the "Proposed Amendment") to Section 4.09 of the Indenture dated as of May 11, 1999 (the "Indenture"), as amended, among the Company, Tritel, Inc., Tritel Communications, Inc., Tritel Finance, Inc. (collectively, the "Guarantors") and The Bank of New York, as trustee (the "Trustee"). The Company intends to effect the Proposed Amendment if it receives without revocation the consents of the holders of record of a majority of the outstanding Accreted Value (as defined in the Indenture) of the Notes (such consents, the "Requisite Consents"). The Proposed Amendment, if effected, will be contained in a supplement to the Indenture (the "Supplemental Indenture") executed by the Company, the Guarantors and the Trustee. The solicitation of consents to the Proposed Amendment to the Indenture is herein referred to as the "Consent Solicitation". The holders of the Notes are herein referred to as the "Holders".


Accordingly, the parties hereto agree as follows:


1. Engagement of the Solicitation Agents. (a) The Company hereby appoints SSBI and Lehman Brothers as Solicitation Agents and authorizes SSBI and Lehman Brothers to act as such in connection with the Consent Solicitation. As a Solicitation Agent, each of SSBI and Lehman Brothers agrees, severally and not jointly, in accordance with its respective customary practices, to perform those services in connection with the Consent Solicitation as are customarily performed by investment banking firms in connection with consent solicitations.


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(b) The Company expressly acknowledges that all opinions and advice (written or oral) given by the Solicitation Agents to the Company in connection with their engagement are intended solely for the benefit and use of the Company (including its management, directors and attorneys) in considering the Consent Solicitation, and the Company agrees that no such opinion or advice shall be used for any other purpose or reproduced, disseminated, quoted or referred to at any time, in any manner or for any purpose, nor shall any public references to SSBI or Lehman Brothers be made by the Company (or such persons), without the prior written consent of SSBI or Lehman Brothers, as applicable, which consent shall not be unreasonably withheld.


2. No Liability for Acts of Dealers, Banks and Trust Companies. Neither SSBI nor Lehman Brothers shall have any liability (in tort, contract or otherwise) to the Company or any other person for any act or omission on the part of another Solicitation Agent, any broker or dealer in securities ("Dealer") (other than SSBI or Lehman Brothers, as applicable) or any bank or trust company or any other person (other than SSBI or Lehman Brothers, as applicable), and neither SSBI nor Lehman Brothers, as applicable, shall be liable for their respective acts or omissions in performing their obligations as the Solicitation Agents hereunder, except to the extent expressly set forth in Annex I hereto. In soliciting or obtaining consents, neither the Company nor any Dealer, bank or trust company shall be deemed to be acting as an agent of the Solicitation Agents or the agent of the Company, and no Solicitation Agent shall be deemed the agent of the Company, another Solicitation Agent, any Dealer, bank or trust company or any other person. The Company acknowledges and agrees that, the Solicitation Agents shall act as independent contractors, and any of their duties arising out of their engagement pursuant to this Engagement Letter shall be owed solely to the Company.


3. The Consent Solicitation Material. (a) The Company agrees to furnish the Solicitation Agents as soon as practicable on or following the date hereof with as many copies as they may reasonably request of the form of consent, waiver and letter agreement, the letter to the Holders and any related materials to be used by the Company in connection with the Consent Solicitation (collectively, as amended or supplemented from time to time, the "Consent Solicitation Material").


(b) Prior to and during the period of the Consent Solicitation, the Company will inform the Solicitation Agents promptly after it receives notice or becomes aware of the happening of any event, or the discovery of any fact, which would require the making of any change in any Consent Solicitation Material or would affect in any material respect the truth or completeness of any representation or warranty contained in this Engagement Letter if such representation or warranty were being made immediately after the happening of such event or discovery of such fact. Any such change shall be promptly made to such Consent Solicitation Material.


(c) The Company represents that the Consent Solicitation Material has been or will be approved by, and is the sole responsibility of, the Company (except for information describing the Solicitation Agents) and the Company authorizes the Solicitation Agents to use the Consent Solicitation Material in connection with the Consent Solicitation.


4. Withdrawal. If the Company (a) uses or permits the use of any Consent Solicitation Material (i) which has not been submitted to a Solicitation Agent for its comments or (b) shall have breached any of its representations, warranties, agreements or covenants herein, then, in either case, each Solicitation Agent shall be entitled to withdraw as a


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Solicitation Agent in connection with the Consent Solicitation without any liability or penalty whatsoever for such withdrawal and without loss of any right to indemnification or contribution provided in Annex I hereto or right to the payment of all expenses payable hereunder which have accrued to the date of such withdrawal. If a Solicitation Agent shall withdraw pursuant to the foregoing, the other Solicitation Agent shall have the right, but not the obligation, exercisable in its sole discretion, to continue as a Solicitation Agent hereunder, in which event this Agreement shall remain in full force and effect with respect to such other Solicitation Agent and all amounts payable hereunder accruing after the date of such Solicitation Agent's withdrawal shall be payable solely to such other Solicitation Agent.


5. No Solicitation Agent Fee. The Solicitation Agents are not entitled to compensation for their services hereunder.


6. Payment of Fees and Expenses. The Company agrees to pay the (i) fees and disbursements of its counsel, (ii) all fees and expenses relating to the preparation, filing, printing, mailing and publishing of all Consent Solicitation Material, (iii) all advertising charges in connection with the Consent Solicitation, (iv) all customary mailing and handling fees and expenses of Dealers, banks and trust companies in forwarding the Consent Solicitation Material to their customers, (v) all other fees and expenses in connection with the Consent Solicitation, (vi) all of the reasonable fees and disbursements of the Solicitation Agents' counsel and (vii) all of the Solicitation Agents' travel and other out-of-pocket expenses incurred in connection with or arising out of the Consent Solicitation.


7. Securityholder Lists. The Company shall provide the Solicitation Agents with copies of the Company's records showing the names and addresses of, and principal amounts of Notes held by, all the Holders for purposes of the Consent Solicitation and will use its reasonable best efforts to cause the Solicitation Agents to be advised from day-to-day during the period of the Consent Solicitation as to any transfers of Notes.


8. Representations, Warranties and Covenants of the Company and the Guarantors. The Company and the Guarantors, jointly and severally, represent, warrant and covenant to the Solicitation Agents that:


(a) Each of the Company, the Guarantors and each of their corporate subsidiaries, whether directly or indirectly owned, is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is chartered or organized and is duly qualified to transact business and is in good standing in each jurisdiction wherein it owns, leases or operates property or conducts business, except to the extent that the failure to be so qualified or to be in good standing does not have a material adverse effect on the Company, the Guarantors and their subsidiaries taken as a whole.


(b) All necessary corporate and stockholder action has been duly taken by the Company and the Guarantors to authorize the Consent Solicitation, to authorize the execution, delivery and performance of this Engagement Letter and the Supplemental Indentures and all other actions contemplated by this Engagement Letter and the Consent Solicitation, and no other corporate or stockholder proceedings are necessary to authorize any such actions. This Engagement Letter has been duly authorized, executed and delivered by the Company and the Guarantors and is a legal, valid and binding agreement of each of the Company and the Guarantors, enforceable against the Company and the Guarantors,


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respectively, in accordance with its terms, except as enforceability may be limited by bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally and except for the application of general principles of equity and public policy.


(c) Each of the Consent Solicitation, the delivery of the Consent Solicitation Material and the execution, delivery and performance of, and the consummation of the transactions contemplated by, this Engagement Letter does comply and will comply with all applicable requirements of law, including, without limitation, the Securities and Exchange Act of 1934 (the "Exchange Act") and the rules and regulations promulgated thereunder, and other applicable regulations of the Securities and Exchange Commission or any other Federal, state, local or foreign governmental or regulatory agency, authority or instrumentality, and no consent, authorization, approval, order, exemption or other action of or filing with any such agency, authority or instrumentality is required in connection with any of the Consent Solicitation, the delivery of the Consent Solicitation Material and the execution, delivery and performance of, and the consummation of the transactions contemplated by, this Engagement Letter.


(d) None of the C ...