EXHIBIT 10.62
OMNIPOINT CORPORATION
DEPOSIT ACCOUNT AGREEMENT
This Deposit Account Agreement (the "Agreement"), dated as of the 6th day
of May, 1998, by and between Omnipoint Corporation, a Delaware corporation (the
"Company"), and The First National Bank of Maryland (the "Deposit Agent"), for
the benefit of the holders (individually a "Holder" and collectively the
"Holders") of the depositary shares (the "Depositary Shares"), each of which is
equivalent to 1/20 of a share of 7% Cumulative Convertible Preferred Stock (the
"Preferred Stock").
This Agreement is made to induce all present and future Holders to purchase
the Depositary Shares by providing a deposit account (the "Deposit Account") to
provide for a quarterly cash payment to the Holders in an amount equal to $0.875
per Depositary Share (the "Quarterly Return Amount") in the manner hereinafter
provided.
NOW THEREFORE, the parties hereto agree as follows:
1. Definitions.
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(a) Common Stock: common stock of the Company, par value $0.01 per share.
(b) Certificate: Certificate of Designation filed with the Delaware
Secretary of State establishing the Preferred Stock as a series of preferred
stock of the Company designated as "7% Cumulative Convertible Preferred Stock."
(c) Deposit Fund: $62,753,894.58 represented by Treasury securities
delivered by the Initial Holders to the Deposit Agent.
(d) Deposit Expiration Date: May 1, 2001.
(e) Deposit Payment Date: February 1, May 1, August 1 and November 1 of
each year commencing August 1, 1998 and continuing until the Deposit Expiration
Date.
(f) Depositary: Marine Midland Bank
(g) Depositary Receipt: a written receipt evidencing ownership of
Depositary Shares.
(h) Direction Notice: a notice from the Company delivered to the Deposit
Agent on or prior to the Notice Date directing the Deposit Agent to (i) purchase
from the Company, for transfer to each Holder, in lieu of all or a portion of
the Quarterly Return Amount or any deferred Quarterly Return Amount (which has
not been previously paid in cash or shares of Common Stock) on the next Deposit
Payment Date, that number of whole shares of Common Stock determined by dividing
such Quarterly Return Amount or deferred Quarterly Return Amount by 95% of the
Market Value of the Common Stock as of the date of such notice or (ii) defer
payment of any Quarterly Return Amount to Holders until the next Deposit Payment
Date or any subsequent Deposit Payment Date.
(i) Indentures: the Indentures between the Company and Marine Midland
Bank, as trustee with respect to the Company's two series of 11-5/8% Senior
Notes.
(j) Market Value: the average of the daily closing price for the five
consecutive trading days ending on such date. The closing price for each day
shall be the last sales price or, in case no
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such reported sales take place on such day, the average of the last reported bid
and asked price, in either case on the principal national securities exchange on
which the shares of Common Stock are admitted to trading or listed, or if not
listed or admitted to trading on such exchange, the representative closing bid
price as reported by the Nasdaq National Market, or other similar organization
if the Nasdaq National Market is no longer reporting such information, or if not
so available, the fair market price as determined, in good faith, by the Board
of Directors of the Company. The Deposit Agent shall have no duty or
responsibility for the calculation of the Market Value.
(k) Notice Date: the day on or before the tenth day prior to the
applicable Deposit Payment Date or Deposit Expiration Date, as the case may be,
on which the Company sends the Direction Notice.
(l) Offering: the offering of Depositary Shares described in the Company's
Offering Memorandum dated May 1, 1998.
(m) Preferred Stock: the 7% Cumulative Convertible Preferred Stock of the
Company.
(n) Record Date: the tenth business day prior to the applicable Deposit
Payment Date or Deposit Expiration Date, as the case may be.
(o) Any capitalized terms not otherwise defined herein shall have the
meaning attributed to them in the Offering Memorandum.
2. Establishment of Deposit Account.
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(a) The Company hereby agrees that the Deposit Account shall be established
in connection with the Offering and shall be held subject to the terms and
conditions of this Agreement.
(b) Simultaneously with the closing of the Offering, the Initial Holders
shall deliver the Deposit Fund to the Deposit Agent against the Deposit Agent's
written acknowledgment and receipt of the Deposit Fund, in the form attached
hereto as Exhibit A, which amount the Deposit Agent will deposit into the
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Deposit Account and hold pursuant to the terms of this Agreement. The Deposit
Fund represented by the Treasury securities as set forth in Exhibit B attached
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hereto will provide sufficient funds without any further investment to cover the
aggregate Quarterly Return Amount due on the outstanding Depositary Shares, as
such Quarterly Return Amount becomes due, for each Deposit Payment Date. All
interest accruing on moneys held in the Deposit Account and any earnings
realized from investments permitted hereunder shall be credited to the Deposit
Account and any loss resulting from investments permitted hereunder shall be
similarly charged. Any income earned on investments held hereunder shall be
accumulated and added to the Deposit Account and subject to distribution as set
forth herein. The Deposit Account shall bear the Company's taxpayer
identification number. The Deposit Agent shall have no responsibility for
determining whether funds held in the Deposit Account shall have been invested
in such a manner so as to comply with the requirements of this Section 2(b).
3. Distribution, Reduction and Termination of Deposit Account.
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(a) Unless on or prior to the Notice Date the Company shall have delivered
to the Deposit Agent a Direction Notice, the Deposit Agent shall deliver to each
Holder pursuant to the direction of the Company the Quarterly Return Amount on
each Deposit Payment Date, commencing August 1, 1998 and continuing until May 1,
2001 (the "Deposit Expiration Date"). If the Company shall have delivered a
Direction Notice, substantially in the form attached hereto as Exhibit C, to the
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Deposit Agent
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on or prior to the Notice Date, the Deposit Agent shall, as instructed by the
Company in such Direction Notice, (i) defer payment of all or a portion of the
Quarterly Return Amount on the next Deposit Payment Date or any subsequent
Deposit Payment Date, or (ii) purchase from the Company, for transfer to each
Holder in lieu of all or a portion of the Quarterly Return Amount on the next
Deposit Payment Date, that number of whole shares of Common Stock determined by
dividing the Quarterly Return Amount and any deferred Quarterly Return Amount by
95% of the Market Value of the Common Stock as of the Notice Date.
(b) (i) In the event of any conversion of the Depositary Shares on or prior
to the Deposit Expiration Date, the cumulative amount to the date of conversion,
on the basis of a 360-day year of 30-day months, of any Quarterly Return
Amounts, including any deferred Quarterly Return Amounts allocable to the
Preferred Stock (and the corresponding Depositary Shares) being converted, at
the time of such conversion, shall be paid by the Deposit Agent to the Holders
who are converting their Depositary Shares at the time of such conversion. The
Deposit Agent shall make any such payment in cash unless, prior thereto, the
Company delivers a Direction Notice to the Deposit Agent requiring the Deposit
Agent to purchase from the Company for transfer to Holders who are converting
their Depositary Shares that number of whole shares of the Common Stock
determined by dividing all or a portion of the deferred Quarterly Return Amount
allocable to the Depositary Shares being converted by 95% of the Market Value of
the Common Preferred Stock as of the date of the Direction Notice. (ii)
Immediately after such conversion and payment of any Quarterly Return Amount
allocable to the Depositary Shares being converted, the Company shall be paid by
the Deposit Agent any funds remaining in the Deposit Account allocable to the
Depositary Shares so converted. Such allocation shall be made pro rata based
upon the number of Depositary Shares so converted.
(c) On the Deposit Expiration Date, the Deposit Agent shall deliver to the
Holders any cash remaining in the Deposit Account on such date pro rata unless,
prior thereto, the Company delivers a Direction Notice to the Deposit Agent
requiring the Deposit Agent to purchase from the Company for transfer to Holders
that number of whole shares of the Common Stock determined by dividing all or a
portion of the Quarterly Return Amount and all or a portion of the cash
remaining in the Deposit Account by 95% of the Market Value of the Common
Preferred Stock as of the Notice Date.
(d) Notwithstanding the foregoing provisions contained in Sections 3(a),
(b) and (c) of this Agreement, the Company may terminate the Deposit Account
earlier than the Deposit Expiration Date in the event that the Company is
permitted to pay a dividend in cash or Common Stock by either (i) the terms of
the Indentures, or (ii) an amendment or termination of the Indentures. Written
notice of any such termination shall be given to the Deposit Agent. In the event
of an early termination of the Deposit Account, the Deposit Agent shall (i) pay
to each Holder any deferred Quarterly Return Amount held in the Deposit Account,
either in cash or, if so specified in the Direction Notice, in that number of
whole shares of Common Stock, to be purchased from the Company for transfer to
the Holders, determined by dividing the deferred Quarterly Return Amount by 95%
of the Market Value of the Common Stock as of the Notice Date; and (ii) to
distribute the remaining balance of the Deposit Account to the Company.
(e) Delivery of a Direction Notice directing the Deposit Agent to purchase
Common Stock for the accounts of Holders shall also constitute a direction to
the Company to issue and deliver such shares to the Holders immediately upon
receipt by the Company of the purchase price for them.
(f) This Agreement shall remain in full force and effect until all amounts
held hereunder by the Deposit Agent have been finally distributed in accordance
herewith.
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(g) Any fractional interest in a share of Common Stock resulting from
payment of the Quarterly Return Amount will be paid in cash based on the last
reported sale price of the Common Stock on the Nasdaq National Market (or any
national securities exchange or authorized quotation system on which the Common
Stock is then listed) at the close of business on the trading day next preceding
the date of conversion or such later time as the Company is legally and
contractually able to pay for such fractional shares.
4. Record Date. The Quarterly Return Amount or, if a Direction Notice has
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been delivered by the Company, Common Stock, shall be paid or delivered to the
Holders of record of the Depositary Shares, as they appear on the Depositary's
stock register 10 business days prior to each Deposit Payment Date.
5. Rights, Duties and Immunities of the Deposit Agent. In order to induce the
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Deposit Agent to act as Deposit Agent hereunder, the Company hereby covenants
and agrees with the Deposit Agent as follows:
(a) The Deposit Agent shall not in any way be bound or affected by any
amendment, modification or cancellation of this Deposit Account Agreement,
unless the same shall have been agreed to in writing by the Deposit Agent.
(b) The Deposit Agent shall be entitled to rely, and shall be fully
protected in acting in reliance upon, any Direction Notice or other instructions
or directions furnished to the Deposit Agent in writing by the proper party
under this Deposit Account Agreement and shall be entitled to treat as genuine,
and as the document it purports to be, any letter, instruction or other document
or instrument delivered to the Deposit Agent hereunder and believed by the
Deposit Agent to be genuine and to have been presented by the proper party or
parties, without being required to determine the authenticity or correctness of
any fact stated therein, the propriety or validity thereof, or the authority or
authorization of the party or parties making and/or delivering the same to do
so.
(c) This Agreement sets forth exclusively the duties and obligations of the
Deposit Agent with respect to any and all matters pertinent to its acting as
Deposit Agent hereunder.
(d) The Deposit Agent undertakes to perform only such duties as are
expressly set forth in this Deposit Account Agreement, and no other duty,
obligation or covenant shall be implied or enforceable against the Deposit Agent
by any person. Without limiting the effect of this Section 5(d), the Deposit
Agent shall have no liability or obligation to the Company, any Holder or any
person claiming by or through any of them: (i) to review or examine any
instrument, agreement or document other than this Agreement and any notice
provided for herein; (ii) to determine whether any conditions precedent to a
disbursement of funds from the Deposit Account, other than the receipt of
written notices provided for in Section 3 hereof, have been or will be satisfied
or otherwise to investigate any notice received by the Deposit Agent hereunder;
(iii) to evaluate or determine the validity, legality or veracity of any action
or omission by any person; (iv) to communicate with any person other than as
expressly provided for in this Agreement; (v) to make any payment hereunder from
any source other than funds in the Deposit Account; (vi) for the issuance of,
delivery to or receipt by a Holder of Common Stock purchased by the Deposit
Agent hereunder; (vii) for any action or omission of the Deposit Agent taken or
made upon the written instructions of the Company, whether or not the persons
giving such instructions were in fact authorized to do so; (viii) for any other
action or omission of, or for errors in judgment by, the Deposit Agent under or
in connection with this Agreement taken or made in good faith and without
negligence or willful misconduct; (ix) for any action or omission of any third
party, including the Company or any Holder; (x) for any change in the value of
any asset held in the Deposit Account or for any loss on disposition of any
investment of the Deposit funds; and (xi) for incidental, consequential or
punitive damages in any event.
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(e) The Company covenants and agrees to indemnify and hold the Deposit
Agent and each of its directors, officers, employees and agents (the Deposit
Agent and any such person or entity seeking indemnification hereunder being
hereinafter referred to as an "Indemnified Party") harmless from and against,
and upon demand reimburse each Indemnified Party for, any and all losses,
claims, damages, liabilities, costs and expenses (including expenses of its
legal counsel) (collectively, "Indemnified Losses") which may be paid, incurred
or suffered by such Indemnified Party or to which such Indemnified Party may
become subject by reason of or in connection with the administration of the
Deposit Agent's duties as Deposit Agent hereunder (including, but not limited
to, any action taken or omitted by the Deposit Agent in connection with this
Agreement or any action allegedly so taken or omitted) or by reason of, or as a
result of, the Deposit Agent's compliance with the instructions set forth herein
or with any instructions delivered to the Deposit Agent pursuant hereto, except
with respect to Indemnified Losses which shall be the result of negligence or
willful misconduct on the part of such Indemnified Party.
(f) In the event of any controversy or dispute hereunder, or with respect
to any question as to the construction of this Agreement or any action to taken
by it hereunder, the Deposit Agent may, in its discretion, obtain the advice of
counsel and shall incur no liability for any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the advice or opinion of
such counsel.
(g) If any part of the Deposit Fund is at any time attached, garnished or
levied upon or under any court order, or in case the payment, assignment,
transfer, conveyance or delivery of any of the Deposit Fund shall be stayed or
enjoined by any court order, or in case any order, writ, judgment or decree
shall be made or entered by any court affecting the Deposit Fund or any part
thereof, then and in any of such events, the Deposit Agent is authorized, in its
sole discretion, to rely upon and comply with any such order, writ, judgment or
decree. The Deposit Agent shall not be liable to any of the parties hereto, to
any Holder or to any other person, firm or corporation by reason of such
compliance even though such order, writ, judgment or decree may be subsequently
reversed, modified, annulled, set aside, vacated, found to have been entered
without jurisdiction, or found be in violation of or beyond the scope of a
constitution or a law.
(h) Notwithstanding anything to the contrary contained therein, if the
Deposit Agent shall be uncertain as to its duties or rights hereunder, shall
receive any notice, advice, direction, or other document from the Company with
respect to the Deposit Fund which, in its opinion, is in conflict with any of
the provisions of this Agreement, or should be advised that a dispute has arisen
with respect to the payment, ownership, or right of possession of the Deposit
Fund or any part thereof (or as to the delivery, non-delivery, or content of any
notice, advice, direction, or other document), the Deposit Agent shall be
entitled (but not obligated), without liability to anyone, under any
circumstance to refrain from taking any action other than to use its best
efforts to keep safely the Deposit Fund until the Deposit Agent shall be
directed otherwise in writing by Company and a majority of the Holders or by an
order, decree or judgment of a court of competent jurisdiction which has been
finally affirmed on appeal or which by lapse of time or otherwise is no longer
subject to appeal, but the Deposit Agent shall be under no duty to institute or
to defend any proceeding, although it may institute or defend such proceedings.
(i) The Company shall have the right to cause the Deposit Agent to be
relieved of its duties hereunder and to select a substitute Deposit Agent, upon
the expiration of thirty (30) days following delivery of written notice of
substitution to the Deposit Agent. Upon selection of such substitute Deposit
Agent, such substitute Deposit Agent and the Company shall enter into an
agreement substantially identical to this Agreement and, thereafter, the
replaced Deposit Agent shall be relieved of its duties and obligations to
perform hereunder, except that the replaced Deposit Agent shall transfer to the
substitute Deposit Agent upon request therefor the Deposit Account and copies of
all books, records, plans and other documents in the replaced Deposit Agent's
possession relating to such funds or this Agreement.
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(j) Upon not less than 30 days' written notice to the Company and the
Holders of its intention to resign under this Agreement, the Deposit Agent may
resign as Deposit Agent hereunder by selecting, as a successor Deposit Agent,
any other Deposit Agent as directed or approved by the Company (which approval
shall not be unreasonably withheld). Such resignation shall take effect upon
delivery by the resigning Deposit Agent of the Deposit Account to such successor
Deposit Agent; the resigning Deposit Agent shall thereupon be discharged of all
its duties and obligations hereunder. In addition, the Deposit Agent shall be
discharged of all of its duties and obligations hereunder upon its deposit of
the Deposit Account with a court of competent jurisdiction. The Company and the
Holders each hereby irrevocably consents and submits to the jurisdiction of such
court in any such action and waives all rights to contest the jurisdiction of
such court.
(k) The Company hereby authorizes the Deposit Agent, if the Deposit Agent
is threatened with litigation or is sued, to interplead all interested parties
in any court of competent jurisdiction and to deposit the Deposit Account with
the clerk of that court.
(l) The Deposit Agent's duties, obligations and liabilities hereunder,
except as a result of the Deposit Agent's negligence or willful misconduct, will
terminate upon its delivery of all the Deposit Account under any provision of
this Agreement. The provisions of Section 5(e) and of this Section 5(l) shall
survive any such termination.
6. Expenses. The Deposit Agent shall be entitled to customary fees and
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expenses for performing its duties hereunder, as may be agreed from time to time
by the Company and the Deposit Agent. The Deposit Agent shall be entitled to
prompt reimbursement of all reasonable expenses incurred by the Deposit Agent in
carrying out its duties hereunder, including, without limitation, travel and
other out-of-pocket expenses.
7. Notices. All notices, requests, demands and other communications hereunder
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shall be deemed to have been duly given if delivered by hand or mailed,
certified or registered mail, return receipt requested, with postage prepaid:
(a) if to the Holders, to their address as set forth in the stock transfer
records of the Company;
(b) if to the Company, to Omnipoint Corporation, 0 Xxxxxxxx Xxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxx, XX 00000, Attn: Xxxxxxx Xxxxxx, or to such person or
address as the Company shall designate in writing, with a copy to Piper &
Marbury, LLP, 0000 Xxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, Attn:
Xxxxx X. Xxxxxx, Xx.
(c) if to Deposit Agent, to The First National Bank of Maryland, 00 Xxxxx
Xxxxxxx Xxxxxx, 00xx Floor, Mail Stop 101-591, Xxxxxxxxx, XX 00000, Attn:
Xxxxxx X. Xxxxx.
Any party may change the address (or the person to whose attention such notice
is directed) by notice given to the other parties hereto as aforesaid.
8. Miscellaneous.
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(a) Binding Effect. This Agreement shall be binding upon the parties
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hereto and their respective heirs, personal representatives, executors,
successors and assigns.
(b) Counterparts. This Agreement may be executed in any number of
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counterparts all of which, taken together shall one fully executed agreement.
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(c) No Amendments. This Agreement may not be modified or amended, nor any
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provision hereof be waived, except by a writing duly executed by the Deposit
Agent, the Company and by a majority of the Holders.
(d) Governing Law. This Agreement shall be governed by and construed and
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enforced in accordance with the laws of the State of Maryland, without reference
to or application of rules or principles of conflicts of law.
(e) Headings. Headings, sections and subsections contained in this
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Agreement are for convenience or reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
(f) Specific Performance. In the event of the failure by a party hereto to
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give any notice required under the terms of this Agreement, the other parties
hereto shall be entitled to specific performance by such non-performing party.
(g) Severability. If any provisions of this Agreement shall be declared by
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any court of competent jurisdiction illegal, void or unenforceable, the other
provisions shall not be affected, but shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and the year first above written.
OMNIPOINT CORPORATION
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Chief Financial Officer
THE FIRST NATIONAL BANK
OF MARYLAND
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Assistant Vice President
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