EXHIBIT 10.18.2
SECOND AMENDMENT (this "Amendment"), dated as of March 18, 2002, to the
Credit Agreement, dated as of September 20, 1999, as Amended and Restated as of
October 20, 2000, as amended to date (the "Credit Agreement"), among Cricket
Communications Holdings, Inc., Cricket Communications, Inc., the Lenders party
thereto and Lucent Technologies Inc., as Administrative Agent. Terms used herein
and not defined herein shall have the meanings assigned to such terms in the
Credit Agreement.
WHEREAS, Holdings and the Borrower have requested that certain provisions
of the Credit Agreement be amended in certain respects, and the Required Lenders
and the Administrative Agent are willing to amend such provisions on the terms
and subject to the conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual agreements
contained in this Amendment and other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1. Amendments.
(a) The Table of Contents to the Credit Agreement is hereby amended by
inserting "Schedule 5.18 - - Parent and Subsidiary Licenses" and "Schedule 5.19
- - Further Investments" immediately after "Schedule 3.13 - - Insurance", and by
inserting "Schedule 6.26 - - BTAs in Borrower 40 Market Plan" immediately after
"Schedule 6.08 - - Existing Restrictions".
(b) The Credit Agreement is hereby amended by attaching Exhibit A hereto
as Schedule 5.18 thereto, by attaching Exhibit B hereto as Schedule 5.19
thereto, and by attaching Exhibit C hereto as Schedule 6.26 thereto.
(c) Section 1.01 of the Credit Agreement is hereby amended as follows:
(i) The following definitions are hereby inserted in the appropriate
alphabetical order:
"Additional Contributed FCC Licenses" means the FCC licenses
listed in Section B of Schedule 5.18, any additional FCC license
contributed to a License Subsidiary in accordance with subparagraphs
(d), (e) or (f) of Section 5.18, and an FCC license for Rochester,
New York if and when acquired.
"Parent Group" means Parent and/or each of its subsidiaries
that is not a Loan Party.
"Parent Group Asset Sales" means any sale, transfer or other
disposition of Parent Group assets, excluding sales, transfers and
dispositions: (A) of Permitted Investments and other current assets;
(B) to another Person in the Parent Group or to a Loan Party; or (C)
which, separately or together with other sales, transfers and
dispositions in a group or series of related sales, transfers and
dispositions, generates Net Proceeds of less than $500,000.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.
"Parent Group Capital Event" means any of the following which
occurs after March 1, 2002: (a) any realization by Parent Group of
any cash proceeds in respect of any investments in Pegaso
Comunicaciones, S.A. de C.V. (whether as a result of a sale of any
such investment, any payment received in respect thereof or
otherwise); (b) the FCC's return to Parent Group of all or any
portion of any deposit paid by Parent Group to the FCC (including in
connection with FCC Auction 35); (c) Parent's issuance of any Equity
Interest, excluding the issuance of Equity Interests in connection
with the exercise of any option to acquire Parent Equity Interests
granted to holders of Xxxxxxxx Xxxxxxxxxxxx options in connection
with the distribution of Parent Equity Interests by Xxxxxxxx
Xxxxxxxxxxxx in September 1998 or granted to directors, officers,
employees or consultants of Parent or any of its subsidiaries; and
(d) Parent Group Asset Sales; and (e) the incurrence by Parent Group
of Indebtedness for borrowed money.
(ii) clause (A) of subparagraph (i) of the proviso in the definition
of Eligible Secured Debt is amended to read as follows:
(A) such Indebtedness is incurred, for equipment, within six months
after the later of the acquisition, the completion of construction
and final acceptance or the commencement of full operation of the
relevant equipment, and, for services, within six months of the
completion thereof (or, in the case of services provided by or on
behalf of Lucent, Nortel Networks Inc. or Ericsson Wireless
Communications, Inc., within twelve months of the completion
thereof),
(iii) the definition of "Net Proceeds" is hereby amended by adding
the following to the end thereof:
provided, however, that for purposes of determining Net Proceeds
received by Parent Group in connection with any event, references in
the foregoing provisions of this definition to the Borrower and the
Subsidiary Loan Parties shall be deemed to be references to the
Parent Group, and references solely to the Borrower shall be deemed
to be references to Parent. Notwithstanding the foregoing: (a) the
Net Proceeds, if any, received by Parent Group in connection with
the transfer of licenses listed in Section E of Schedule 5.18 shall
be reduced by the lesser of (i) $1,300,000, and (ii) the amount of
any equity investment made by Parent in Cricket Licensee (Lakeland),
Inc. after March 18, 2002 and applied to the repayment of the FCC
Debt owed by Cricket Licensee (Lakeland), Inc., (b) Net Proceeds
received by any subsidiary of Parent that is a member of the Parent
Group but that is not a wholly-owned subsidiary (whether owned
directly or indirectly) shall be deemed to be Net Proceeds received
by Parent Group only to the extent such Net Proceeds are received by
Parent or any such wholly-owned subsidiary as cash proceeds, or are
permitted to be transferred to and received by Parent or any such
wholly-owned subsidiary as cash proceeds, and (c) Net Proceeds, if
any, received by Parent Group in connection with the incurrence of
Indebtedness shall be reduced by the sum of (i) $50,000,000, plus
(ii) unless and
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until Parent's obligation to purchase licenses pursuant to FCC
Auction 35 is irrevocably terminated, the aggregate amount Parent is
obligated to pay to the FCC to purchase the licenses on which it was
the high bidder in FCC Auction 35, net of any amounts then on
deposit by Parent with the FCC in connection with FCC Auction 35
plus (iii) the Net Proceeds, calculated without regard to this
sentence, of any Indebtedness incurred by Parent Group to the extent
the proceeds of such Indebtedness are used to refinance other
Indebtedness of the Parent Group.
(iv) the definition of "Permitted Encumbrances" is hereby amended as
follows:
(a) Subparagraph (d) thereof is amended to read as follows:
(d) pledges of Permitted Investments, pledges of
accounts holding Permitted Investments, and deposits, in each
case, to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in
each case in the ordinary course of business; provided, that
except with respect to up to $2,000,000 of pledges permitted
pursuant to this subparagraph (d), the value of any pledged
assets shall not, in each case, exceed the minimum value of
such pledged assets that is required by the third party to
secure such obligation;
and
(b) a new subparagraph is added thereto immediately after
subparagraph (f) and before the proviso at the end of such
definition to read as follows:
(g) Liens (including pursuant to title retention and
conditional sales agreements) on personal property purchased
(or being purchased) by any Loan Party after March 22, 2002,
to secure amounts payable to the vendor of such personal
property in respect of the purchase price thereof ; provided
that (i) such Liens shall be released (or title transferred)
with respect to any such personal property upon payment of the
purchase price thereof and (ii) the aggregate amount secured
by Liens described in this subparagraph (or the aggregate
unpaid purchase price for property on which title has been
retained) shall not exceed $75,000,000 at any time;
(v) The definition of "Prepayment Event" is hereby amended as
follows:
(A) Subparagraph (a) thereof is amended to read as follows:
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(a) any sale, transfer, lease or other disposition
(including pursuant to a sale and leaseback transaction) of
any property or asset of the Borrower or any Subsidiary Loan
Party pursuant to clauses (ii), (viii) and/or (x) of Section
6.04(b), excluding sales of Additional Contributed FCC
Licenses to the extent that the Net Proceeds of such sale of
Additional Contributed FCC Licenses are paid as Restricted
Payments pursuant to subparagraphs (g), (h) and/or (i) of
Section 6.06; or
(B) Subparagraph (b) thereof is relettered as subparagraph
(c), and a new subparagraph (b) is added thereto as follows:
(b) any sale of equipment by Borrower or any Subsidiary
Loan Party pursuant to clause (iii) of Section 6.04(b); or
(vi) The definition of "Purchase Price" is hereby amended to read as
follows:
"Purchase Price" means amounts paid or payable to Lucent
pursuant to invoices delivered by Lucent pursuant to the Purchase
Agreement; provided that (a) [***], and (b) amounts paid or payable
for purchases pursuant to the Agency Plan shall not constitute
"Purchase Price" payments.
(vii) The definition of "Total Contributed Capital" is hereby
amended by adding the following sentence to the end thereof:
Notwithstanding the foregoing, for the purposes of this definition
of "Total Contributed Capital", the Additional Contributed FCC
Licenses shall be valued in an amount not to exceed $40,000,000.
(d) Subparagraph (b) of Section 2.09 of the Credit Agreement is amended to
read as follows:
(b) In the event and on each occasion that any Net Proceeds
are received by or on behalf of the Borrower or any Subsidiary Loan
Party after March 1, 2002, in respect of any Prepayment Event, the
Borrower shall, within three Business Days after such Net Proceeds
are received, prepay Eligible Secured Debt (including Borrowings),
ratably in accordance with the outstanding principal amount thereof,
in an aggregate principal amount equal to such Net Proceeds;
provided that (i) no prepayment shall be required pursuant to this
subparagraph (b) in respect of the first $25,000,000 aggregate
amount of such Net Proceeds received after March 1, 2002
(determined on a cumulative basis and without regard to Net Proceeds
described in clauses (ii), (iii) and (iv) of this proviso), (ii) no
prepayment shall be required pursuant to this subparagraph (b) in
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[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.
respect of any Prepayment Event or series or group of related
Prepayment Events if the aggregate amount of Net Proceeds therefrom
is less than $500,000 unless such Prepayment Event or Prepayment
Events involves the sale or disposition of an FCC License, (iii)
no prepayment shall be required pursuant to this subparagraph in
respect of periodic lease payments (and related lease payments and
fees) received in connection with the lease or sublease of any
surplus or uneconomic real property lease or any excess space and
related assets at any cell site, and (iv) in the case of any event
described in clause (b) of the definition of the term Prepayment
Event (and not described in clause (ii) of this subparagraph),
if the Borrower shall deliver to the Administrative Agent a
certificate of a Financial Officer to the effect that the
Borrower and the Subsidiaries intend to apply the Net
Proceeds from such event (or a portion thereof specified in such
certificate), within 180 days after receipt of such Net Proceeds, to
acquire equipment to be used in the business of the Borrower and the
Subsidiaries, and certifying that no Default has occurred and is
continuing, then no prepayment shall be required pursuant to this
paragraph in respect of the Net Proceeds in respect of such event
(or the portion of such Net Proceeds specified in such certificate,
if applicable) except to the extent of any such Net Proceeds
therefrom that have not been so applied by the end of such 180-day
period, at which time such Net Proceeds will be treated hereunder as
if they were then received as Net Proceeds for a Prepayment Event
not described in clause (b) of the definition of the term Prepayment
Event.
(e) Section 5.01 of the Credit Agreement is hereby amended by adding the
following new subparagraphs to the end thereof:
(k) concurrently with the delivery of any financial statements under
clause (a), (b) or (c) above: (i) subscriber information for the most
recently completed month included in such financial statements, including
total subscribers at the beginning of the month, gross subscriber
additions during the month, subscriber disconnects during the month, total
subscribers at the end of the month, cost per gross add (commonly referred
to as CPGA), average revenue per user (commonly referred to as ARPU), and
churn (in each case, as normally reported by Borrower for internal
management reports on the date of such financial statements) ; and (ii)
the consolidated income statement and cash flow statement of the Borrower
and its Subsidiaries in a form which conforms in presentation to the
Business Plan most recently furnished to the Administrative Agent and the
Lenders pursuant to subparagraph (f) of this Section 5.01;
(l) promptly after the occurrence thereof, notice of any Parent
Group Capital Event that generates Net Proceeds and that occurs prior to
the date on which (A) the entire $35,000,000 of equity investments
contemplated by Section 5.18(a) have been received or deemed to be
received by each of Holdings and Borrower and (B) all investments required
to be made pursuant to Section 5.19 have been made (which notice shall
include a general description of such event and an explanation of the Net
Proceeds expected to be received in connection with such event); and
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(m) notice of any deposit account or investment property of any of
Borrower, Holdings or any Subsidiary Loan Party that is not perfected
through a control agreement in favor of Collateral Agent, promptly after
the date on which the aggregate value of any such deposit accounts and
investment property exceeds $2,000,000.
(f) Omitted.
(g) Article V of the Credit Agreement is hereby amended by inserting the
following additional Sections at the end of such Article:
SECTION 5.18. Further Capital Contribution in Holdings.
(a) Holdings shall receive from Parent, as an equity investment by
Parent into Holdings, and Borrower shall receive from Holdings, as an
equity investment by Holdings into Borrower, $35,000,000 in cash to be
received as follows:
(i) 50% of the Net Proceeds from any Parent Group Capital
Event, until Holdings shall have received from Parent, and Borrower
shall have received from Holdings, $25,000,000 of additional equity
investments in cash pursuant to this Section 5.18, and thereafter
(ii) 100% of the Net Proceeds from any Parent Group Capital
Event until Holdings shall have received from Parent, and Borrower
shall have received from Holdings, $10,000,000 of additional equity
investments in cash pursuant to this Section 5.18;
in each case, with Holdings receiving from Parent, and Borrower receiving
from Holdings, such amounts within five Business Days of Parent Group's
receipt of such Net Proceeds; provided that an amount equal to 50% of the
Net Proceeds received by any License Subsidiary from the sale of any
Additional Contributed FCC License by such License Subsidiary prior to the
date that the entire amount of the $25,000,000 of additional equity
investments required by clause (i) above has been made shall be credited
against such $25,000,000 of equity investments required pursuant to such
clause (i) as if received by each of Holdings and Borrower.
(b) Parent shall transfer to a License Subsidiary each FCC license
listed in Section B of Schedule 5.18 and owned by Parent as soon as
reasonably practicable, and Parent shall take all reasonable steps to
accomplish such transfer including, without limitation, filing with the
FCC on or before April 8, 2002 applications to transfer control of such
licenses to a License Subsidiary.
(c) On or before April 8, 2002, each FCC license listed in Section B
of Schedule 5.18 and owned by a Person other than Parent shall be held by
a License Subsidiary.
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(d) If any license transfer transaction pending as of March 18, 2002
and relating to licenses listed in Section D of Schedule 5.18 is abandoned
or terminated by any of the parties thereto, Parent shall transfer to a
License Subsidiary each then outstanding FCC license relating to such
transaction listed in Section D of Schedule 5.18 and owned by Parent as
soon as reasonably practicable after such abandonment or termination, and
Parent shall take all reasonable steps to accomplish such transfer
including, without limitation, filing with the FCC applications to
transfer control of such licenses to a License Subsidiary as soon as
reasonably practicable after any such abandonment or termination.
(e) If any license transfer transaction pending as of March 18, 2002
and relating to licenses listed in Section E of Schedule 5.18 is abandoned
or terminated by any of the parties thereto, Parent shall transfer to a
License Subsidiary each then outstanding FCC license relating to such
transaction listed in Section E of Schedule 5.18 and owned by Parent as
soon as reasonably practicable after such abandonment or termination, and
Parent shall take all reasonable steps to accomplish such transfer
including, without limitation, filing with the FCC applications to
transfer control of such licenses to a License Subsidiary as soon as
reasonably practicable after any such abandonment or termination.
(f) Parent shall transfer to a License Subsidiary each FCC license
listed in Section F of Schedule 5.18 and owned by Parent as soon as
reasonably practicable after the earlier of (i) the date upon which the
Lien to be granted by Parent in the stock of the Cricket Licensee XI, Inc.
in connection with the pending acquisition of the licenses described in
Section C of Schedule 5.18 is released, (ii) the date upon which such FCC
license is transferred from Cricket Licensee XI, Inc. in accordance with
the pledge agreement granting such Lien, and (iii) the date, if any, on
which the pending acquisition of the licenses listed in Section C of
Schedule 5.18 is abandoned or terminated by any of the parties thereto.
Parent shall take all reasonable steps to accomplish such transfer
including, without limitation, filing with the FCC applications to
transfer control of such licenses to a License Subsidiary as soon as
reasonably practicable after any such abandonment or termination. (In
connection with the pending acquisition of licenses described in Section C
of Schedule 5.18, Parent has applied to transfer the licenses listed in
Section F of Schedule 5.18 and owned by Parent to Cricket Licensee XI,
Inc.).
(g) The FCC License listed in Section F of Schedule 5.18 and owned
by MCG PCS Licensee Corporation, Inc. shall be held by a License
Subsidiary within five Business Days after the earlier of (i) June 15,
2002 and (ii) the date on which MCG PCS, Inc. ceases to have a Lien on the
stock of MCG PCS Licensee Corporation, Inc.
(h) If any additional License Subsidiary is formed in connection
with the requirements of this Section 5.18, the Borrower will cause the
Collateral and Guarantee Requirement to be satisfied with respect to such
License Subsidiary and will otherwise cause all actions required by
Section 5.11 hereof with respect to such License Subsidiary to occur.
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SECTION 5.19. Further Investments.
(a) Subject to subparagraph (b) below (i) Parent shall invest
as equity investments in the corporations listed in Schedule 5.19,
in cash, an aggregate amount equal to the lesser of $22,875,280.58
or the amounts required to provide such corporations with sufficient
cash balances to fund their remaining 2003 debt service obligations
with respect to FCC Debt, and (ii) Parent shall invest in Permitted
Investments to be held in an account separate from other Parent
investments, an amount equal to the lesser of $2,395,216.30 or the
amount required to provide a sufficient balance in such separate
account to fund the remaining 2003 debt service obligations on the
secured note Parent is to issue in connection with its purchase of
the FCC licenses described in Section C of Schedule 5.18, provided
that if the license transfer transaction relating to such FCC
licenses is abandoned or terminated by any of the parties thereto,
Parent shall use such amounts to fund the remaining 2003 debt
service obligations on the FCC licenses listed in Section D of
Schedule 5.18.
(b) Parent shall be obligated to make the investments
described in subparagraph (a) above, on a pro rata basis, only if
and to the extent the following amounts become available: (i) Net
Proceeds from Parent Group Capital Events in excess of the sum of
$25,000,000 plus the amounts required to be invested by Parent into
Holdings pursuant to Section 5.18(a), and (ii) Restricted Payments
made pursuant to clause (h) of Section 6.06.
(c) Parent shall use the Permitted Investments described in
subparagraph (a)(ii) above, to the extent available, to pay the
Parent debt service obligations described in subparagraph (a)(ii)
above, until such debt service obligations are paid in full.
SECTION 5.20. Additional Investment for Outstanding Note. After
March 18, 2002, Parent shall invest $20,019,618.85 pursuant to this
Section 5.20 in Permitted Investments to be held in an account separate
from other Parent investments. Parent shall use the Permitted Investments
described in this Section to pay (a) the debt service payments that become
due in 2002 under the note Parent issued in connection with its purchase
of MCG PCS Licensee Corporation, Inc. and an FCC license, and (b) the debt
service payments that become due in 2002 on the secured note Parent is to
issue in connection with its sale of the FCC licenses described in Section
D of Schedule 5.18 (or, if any FCC Debt payments become due in 2002 with
respect to such FCC licenses prior to the date such licenses are sold, to
pay such FCC Debt payments), until such payments have been paid.
(h) The first paragraph of subparagraph (b) of Section 6.04 of the Credit
Agreement is hereby amended to read as follows:
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(b) The Borrower will not, nor will it permit any Subsidiary Loan
Party to, sell, transfer, lease or otherwise dispose of any asset,
including any Equity Interest in any other Person owned by it, except:
(i) sales and other dispositions of inventory in the ordinary
course of business;
(ii) sales, transfers, leases and other dispositions of
obsolete, uneconomic or surplus assets in the ordinary course of
business (including (A) leasing and subleasing excess space and
related assets at any cell site and (B) the sale of any FCC License
which has not been utilized on or after March 1, 2002 to provide
service to subscribers in a market launched by or on behalf of
Borrower, but excluding (X) any sale, transfer, lease or disposition
of an FCC License which was utilized on or after March 1, 2002 to
provide service to subscribers in a market launched by or on behalf
of Borrower and (Y) sales of equipment described in clause (iii)
below);
(iii) sales of obsolete, uneconomic or surplus equipment in
the ordinary course of business;
(iv) transfers constituting investments permitted by paragraph
(a) of this Section or Restricted Payments permitted by Section
6.06;
(v) sales, transfers and dispositions by the Borrower or a
Subsidiary to the Borrower or a Subsidiary;
(vi) prior to consummation of the ChaseTel Acquisition, the
Borrower or a Subsidiary may resell to ChaseTel equipment purchased
by the Borrower or a Subsidiary pursuant to the Purchase Agreement,
in accordance with paragraph (c) of this Section;
(vii) swaps by License Subsidiaries of one or more FCC
Licenses that are not being utilized to provide service to
subscribers in a market launched by or on behalf of Borrower in
exchange for an equal number of FCC licenses, with each FCC license
received by a License Subsidiary in any such swap having an
identical coverage area and equal or greater bandwidth than the
corresponding FCC License disposed of in such swap; and with no
consideration involved other than the swapped licenses;
(viii) with the consent of the Administrative Agent, the sale
and other disposition of cell site towers and poles (and assets
relating to such towers and poles, including real property leases)
and the leaseback of a portion thereof;
(ix) sales and other dispositions of Permitted Investments in
the ordinary course of business; and
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(x) other sales and dispositions by the Borrower and the
Subsidiaries of assets (other than Equity Interests in any
Subsidiary) with a fair market value not exceeding, in the
aggregate, $1,000,000 during any fiscal year of the Borrower;
provided that (A) all sales and other dispositions of inventory pursuant
to clause (i) above shall be made for fair value in the context of
industry practices and, other than in connection with exchanges for other
inventory and marketing and promotional events, shall be made solely for
cash consideration, (B) all sales, transfers, leases and other
dispositions permitted hereby, other than pursuant to clauses (i), (v) and
(vi) above, shall be made for fair value; (C) all sales, transfers, leases
and other dispositions permitted by clauses (ii), (iii), (viii) and (x)
above shall be made solely for cash consideration, the assignment or
transfer of liabilities associated with the disposed assets and, with
respect to leases pursuant to clause (ii) above, a fair market lease
agreement, and (D) sales pursuant to clause (vi) above shall be made as
provided in paragraph (c) below. For purposes of this Agreement, cash
consideration includes short-term accounts receivable payable solely in
cash.
(i) Section 6.06 of the Credit Agreement is hereby amended by adding the
following new clauses to the end thereof as follows:
(g) any License Subsidiary that receives any Net Proceeds from the sale of
any Additional Contributed FCC License prior to the date that the entire
$25,000,000 of equity investments contemplated by clause (i) of Section
5.18(a) have been received or deemed to be received by each of Holdings
and Borrower may pay a dividend to Parent in an amount equal to 50% of
such Net Proceeds from such sale; provided that (i) the aggregate amount
of dividends paid by License Subsidiaries pursuant to this clause (g)
shall not exceed $25,000,000, and (ii) Parent shall have invested the Net
Proceeds of Parent Group Capital Events, if any, pursuant to clause (a)(i)
of Section 5.18 before dividends are paid pursuant to this clause (g), (h)
any License Subsidiary that receives any Net Proceeds from the sale of any
Additional Contributed FCC License after the entire $35,000,000 of equity
investments contemplated by Section 5.18(a) have been received or deemed
to be received by each of Holdings and Borrower, and prior to the date
that all investments required to be made pursuant to Section 5.19 have
been made, may pay a dividend to Parent in an amount equal to such Net
Proceeds received from such sale; provided that (i) dividends may be paid
pursuant to this clause (h) only for the purpose of funding investments
required to be made pursuant to Section 5.19, (ii) no dividends shall be
permitted by this clause (h) after all such investments required to be
made pursuant to Section 5.19 have been made and (iii) Parent Group shall
have invested the Net Proceeds of Parent Group Capital Events, if any,
pursuant to clause (b)(i) of Section 5.19 to make such equity investments
before dividends are paid pursuant to this clause (h); and (i) any License
Subsidiary may make a cash dividend to Parent at any time if (x) no
Default has occurred and is continuing or would result therefrom, (y)
after giving effect to such dividend, such License Subsidiary will have
sufficient cash balances to pay all of its debt service obligations with
respect to FCC Debt that will become due and payable after the date of
such dividend through the end of 2003, and (z) the proceeds
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of such dividend are contemporaneously invested as equity by Parent in
Holdings and by Holdings in Borrower.
(j) Section 6.11 of the Credit Agreement is hereby amended by adding the
following proviso to the end thereof:
provided, however, that this Section 6.11 shall not restrict Borrower or
any Real Estate Subsidiary from selling and then renting or leasing space
on any tower, pole or real estate sold, transferred or otherwise disposed
pursuant to clause (viii) of Section 6.04(b).
(k) Section 6.13 of the Credit Agreement is amended by adding the
following new sentence to the end thereof:
The parties hereto understand that any wholly-owned subsidiary of Parent
that otherwise satisfies all of the requirements set forth in clauses (a)
through (d) of this Section 6.13, except that it owns one or more FCC
licenses (but no FCC Licenses prior to the actions contemplated by this
sentence), shall, upon satisfaction of the Collateral and Guarantee
Requirement and delivery of a counterpart of a supplement to the
Subordination Agreement duly executed and delivered on behalf of such
subsidiary, be deemed to be a License Subsidiary. The provisions of this
Section 6.13 shall not prohibit a License Subsidiary from entering into
agreements to sell an FCC License or agreements to purchase a license that
becomes an FCC License upon acquisition by such License Subsidiary, in
each case if and to the extent such sale or purchase is otherwise
permitted by this Agreement.
(l) Section 6.15 of the Credit Agreement is hereby amended to read as
follows:
SECTION 6.15. Capital Expenditures. The Borrower will not permit the
aggregate amount of Capital Expenditures made by the Borrower and its
Subsidiaries in any fiscal year to exceed the amount set forth below with
respect to such fiscal year:
Year Amount
---- ------
2000 $ 396,000,000
2001 $ 1,004,000,000
2002 $ 170,000,000 plus the excess, if any,
of (i) $1,004,000,000 minus (ii) the
aggregate amount of Capital Expenditures
made by the Borrower and its Subsidiaries
in fiscal year 2001
2003 $ 180,000,000
2004 and thereafter $ 100,000,000
(m) Section 6.19 of the Credit Agreement is hereby amended to read as
follows:
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SECTION 6.19. Total Indebtedness to Annualized EBITDA. The Borrower
will not permit the ratio of Total Indebtedness to Annualized EBITDA as of
the last day of any fiscal quarter ending during any period set forth
below to exceed the ratio set forth below opposite such period:
Period Ratio
------ -----
April 1, 2003 to and including June 30, 2003 10.0 to 1.0
July 1, 2003 to and including September 30, 2003 7.0 to 1.0
October 1, 2003 to and including December 31, 2003 5.5 to 1.0
Thereafter 5.0 to 1.0
(n) Section 6.20 of the Credit Agreement is hereby amended to read as
follows:
SECTION 6.20. Consolidated EBITDA to Cash Interest Expense. The
Borrower will not permit the ratio of Consolidated EBITDA to Cash Interest
Expense for any period of four consecutive fiscal quarters ending during
any period set forth below to be less than the ratio set forth opposite
such period:
Period Ratio
------ -----
January 1, 2003 to and including March 31, 2003 1.3 to 1.0
April 1, 2003 to and including June 30, 2003 1.4 to 1.0
July 1, 2003 to and including September 30, 2003 1.5 to 1.0
October 1, 2003 to and including December 31, 2003 1.9 to 1.0
January 1, 2004 and thereafter 3.0 to 1.0
(o) Article VI of the Credit Agreement is hereby amended by inserting the
following additional Sections at the end of such Article:
SECTION 6.25. Minimum Consolidated EBITDA. The Borrower will not
permit Consolidated EBITDA for any fiscal quarter set forth below to be
less than the amount set forth below opposite such fiscal quarter:
Period Amount
------ ------
April 1, 2002 to and including June 30, 2002 - $27,000,000
July 1, 2002 to and including September 30, 2002 $ 0
October 1, 2002 to and including December 31, 2002 $ 9,000,000
January 1, 2003 to and including March 31, 2003 $45,000,000
12
SECTION 6.26. New Market Launches Restricted. From March 15, 2002
until June 30, 2003, in any BTA other than the BTAs listed in Schedule
6.26, Borrower shall not, directly or indirectly, and shall not permit any
Subsidiary Loan Party to, directly or indirectly (a) order any equipment
for deployment, (b) commence site acquisition or construction of any cell
site or retail store location, (c) launch commercial wireless service, (d)
incur any expenses for marketing or advertising, (e) incur any expenses
relating to obtaining retail space, (f) incur any expenses for operation
of commercial wireless services, or (g) incur any material expenses for
pre-launch activities other than marketing studies and radio frequency
planning; provided, however, that the provisions of this Section 6.26
shall not be interpreted to prevent Borrower from meeting the minimum
requirements set forth in Code of Federal Regulations, Volume 47, Section
24.203 (or any successor law or regulation) with respect to any FCC
License with an initial build-out date on or before June 30, 2004, or to
prevent Borrower from providing services for fair consideration to any
Person other than a Loan Party in connection with the launch, preparation
for launch or operation of commercial wireless service pursuant to one or
more licenses owned by any Person other than a Loan Party.
(p) Clause (o) of Article VII of the Credit Agreement is hereby amended to
read as follows:
(o) the loss, revocation, suspension or material impairment of any
material FCC License shall occur (it being understood that no Additional
Contributed FCC License shall be considered to be a material FCC License
prior to the date such FCC License is utilized to provide service to
subscribers in a market launched by or on behalf of Borrower); or
(q) Subparagraph (b) of Section 9.04 of the Credit Agreement is hereby
amended as follows:
(a) Clause (iii) of such subparagraph is amended by replacing the
amount "$5,000,000" contained therein with the amount "$3,000,000".
(b) subparagraph (B) of the proviso to such subparagraph is amended
to read as follows:
(B) any consent of the Borrower otherwise required under
clause (iii) of this paragraph shall not be unreasonably withheld
if, after April 1, 2002, the Borrower consents to an assignment of
less than $3,000,000 relating to any Other Loan Document and
Section 2. Limited Waivers.
(a) Borrower previously entered into and maintained in effect Hedging
Agreements with the effect required by Section 5.14 of the Credit Agreement. The
undersigned Lenders hereby waive the requirement that such Hedging Agreements be
satisfactory to the Required Lenders prior to the Amendment Effective Date.
13
(b) The undersigned Lenders hereby waive the provisions of Section 6.13 of
the Credit Agreement to the extent necessary to permit:
(i) Cricket Licensee (Reauction), Inc. to own the FCC License for
Omaha, NE although such license is financed with FCC Debt; and
(ii) each of Chasetel Licensee Corp. and Cricket Licensee (North
Carolina), Inc. to own more than one FCC License financed with FCC Debt;
provided that such License Subsidiaries transfer FCC Licenses, as soon as
reasonably practicable after April 30, 2002 to other License Subsidiaries as
contemplated by Exhibit B hereto so that each FCC License that is financed with
FCC Debt is owned by a License Subsidiary in accordance with the provisions of
Section 6.13 of the Credit Agreement, and each such License Subsidiary shall
take all reasonable steps to accomplish such transfers including, without
limitation, filing with the FCC on or before April 8, 2002 applications to
transfer control of the applicable FCC Licenses to other License Subsidiaries,
provided, further, however, that Chasetel Licensee Corp. need not act to
transfer its FCC Licenses listed in Section D of Exhibit A hereto to other
License Subsidiaries until three Business Days after the currently pending
license transfer transaction relating to such FCC Licenses is abandoned or
terminated by the parties thereto.
(c) The waivers set forth in this Section 2 are for the limited purposes
set forth herein and are limited strictly as written, and shall not obligate the
undersigned Lenders to enter into or provide any future amendment, consent,
waiver or departure from the terms and conditions of the Credit Agreement.
Section 3. Approval of Form of Intercompany Agreement and Hedging
Agreements.
(a) As contemplated by Section 6.10 of the Credit Agreement, the
undersigned Lenders hereby approve the form of Intercompany Agreement to be
entered into between Parent and individual License Subsidiaries attached hereto
as Exhibit D.
(b) The Administrative Agent hereby confirms that the five Hedging
Agreements previously delivered to it by the Borrower are satisfactory to the
Administrative Agent. Each undersigned Lender agrees that such Hedging
Agreements are satisfactory to such Lender.
Section 4. Consent to Transfer of Lakeland License. In connection with the
proposed license transfer transaction previously disclosed in writing to the
Administrative Agent, the undersigned Lenders waive the provisions of Sections
6.03(a) and 6.04(b) of the Credit Agreement to the extent necessary to permit
Cricket Licensee (Lakeland), Inc. to transfer its FCC License covering Lakeland,
FL in connection with such transaction provided that simultaneously with such
transfer, an FCC license for another BTA as specified in such writing is
transferred to a License Subsidiary, with such transfers to occur substantially
as described to the Administrative Agent.
14
Section 5. Control Agreements. Within forty-five days of the Amendment
Effective Date, or such longer period of time approved by the Administrative
Agent, Holdings and Borrower agree to enter into, and to cause each Subsidiary
Loan Party to enter into, at the request of the Administrative Agent, control
agreements relating to the deposit accounts and investment property identified
pursuant to subparagraph (h) of Section 7 of this Amendment, which control
agreements shall be in form and substance reasonably satisfactory to the
Administrative Agent and pursuant to which the Collateral Agent's Lien in and to
such deposit accounts and investment property shall be perfected.
Section 6. Representations and Warranties. Holdings and the Borrower
hereby represent and warrant to the Lenders and the Administrative Agent that
(a) this Amendment has been duly authorized, executed and delivered by Holdings
and the Borrower and each of this Amendment and the Credit Agreement as amended
hereby constitutes a legal, valid and binding obligation of Holdings and the
Borrower, enforceable in accordance with its terms, (b) as of the date hereof,
and after giving effect to this Amendment, no Default has occurred and is
continuing, (c) the representations and warranties of Holdings and the Borrower
contained in the Credit Agreement are true and correct as if made on the date
hereof and (d) each BTA in which Cricket had launched service to customers as of
March 15, 2002 is listed on Exhibit C of this Amendment.
Section 7. Conditions to Effectiveness. This Amendment shall become
effective (the "Amendment Effective Date") as of the date first set forth above
only upon the occurrence of the following conditions precedent:
(a) the Administrative Agent shall have received from Holdings, the
Borrower and the Required Lenders duly executed counterparts of this Amendment,
(b) the Administrative Agent shall have received from Borrower true and
correct copies of amendments to each of the Ericsson Credit Agreement and the
Nortel Credit Agreement (as such terms are defined in the Intercreditor
Agreement) which amend such agreements in substantively the same manner as the
Credit Agreement is amended hereby, and each of such amendments shall become
effective concurrently with this Amendment on the Amendment Effective Date;
(c) the Administrative Agent shall have received all amounts due and
payable under this Amendment and the Credit Agreement on or prior to the
Amendment Effective Date, including, to the extent invoiced, all reasonable out
of pocket expenses of the Administrative Agent (including, without limitation,
the reasonable fees of Cravath, Swaine and Xxxxx, counsel for the Administrative
Agent);
(d) Holdings shall have received from Parent, as an equity investment by
Parent into Holdings, and Borrower shall have received from Holdings, as an
equity investment by Holdings into Borrower, in each case, after March 18, 2002,
$85,000,000 in cash;
(e) after March 18, 2002, Parent shall have invested at least
$5,766,879.26 as equity investments in the License Subsidiaries listed in
Exhibit E hereto in accordance with the
15
provisions of such Exhibit, and shall have invested $20,019,618.85 in Permitted
Investments to be held in an account separate from other Parent investments as
contemplated by Section 5.20 of the Credit Agreement as amended hereby.
(f) Borrower shall have paid to the Administrative Agent, for the account
of the Lenders specified in Section 8 of this Amendment, the fee described in
such Section;
(g) the Parent Agreement shall have been amended, in a manner satisfactory
to the Administrative Agent, to include therein (i) as obligations of Parent,
each action that subparagraph (g) of Section 1 of this Amendment requires or
contemplates that Parent will take, and (ii) Parent's agreement to invest as
equity in Holdings, and to cause Holdings to invest as equity in Borrower, the
cash proceeds of any dividend paid by a License Subsidiary pursuant to clause
(i) of Section 6.06 of the Credit Agreement, and the undersigned Lenders hereby
consent to such amendment; and
(h) Borrower shall have delivered to the Administrative Agent a listing of
all deposit accounts and investment property maintained by Holdings, Borrower or
any Subsidiary Loan Party that is not currently subject to a control agreement
in favor of the Collateral Agent.
Section 8. Amendment Fees. The Borrower shall pay to the Administrative
Agent, for the account of each Lender which has delivered a counterpart of this
Amendment duly executed by such Lender to the Administrative Agent on or before
March 22, 2002 (or such later date as the Borrower shall agree), a fee in the
amount of [***] of the sum of all outstanding Loans held by such
Lender plus the Commitment of such Lender. Such fees may not be financed with
Loans. Borrower shall pay such fee to the Administrative Agent on the Amendment
Effective Date, provided that if the Amendment Effective Date occurs prior to
March 22, 2002 (or such later date as agreed to by Borrower) then (a) Borrower
shall pay such fee to the Administrative Agent on the Amendment Effective Date
with respect to any Lender who delivered a duly executed counterpart of this
Amendment to the Administrative Agent on or before the Amendment Effective Date,
and (b) shall pay such fee to the Administrative Agent within three Business
Days of March 22, 2002 (or such later date as the Borrower shall agree) with
respect to any Lender who delivered a duly executed counterpart of this
Amendment to the Administrative Agent after the Amendment Effective Date but on
or prior to March 22, 2002 (or such later date as the Borrower shall agree.)
Section 9. Applicable Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
Section 10. Credit Agreement. Except as expressly amended hereby, the
Credit Agreement shall continue in full force and effect in accordance with the
provisions thereof. Any reference in the Credit Agreement, or in any documents
or instruments required thereunder or annexes or schedules thereto, referring to
the Credit Agreement shall be deemed to refer to the Credit Agreement as amended
by this Amendment.
16
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.
Section 11. Expenses. The Borrower agrees to reimburse the Administrative
Agent for its out-of-pocket expenses in connection with this Amendment,
including the fees, charges and disbursements of Cravath, Swaine and Xxxxx,
counsel for the Administrative Agent.
Section 12. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one contract. Delivery of an executed
counterpart of a signature page by facsimile transmission shall be effective as
delivery of a manually executed counterpart of this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first written above.
CRICKET COMMUNICATIONS HOLDINGS, INC. CRICKET COMMUNICATIONS, INC.
By: /s/ XXXXX XXXXXX By: /s/ XXXXX XXXXXX
------------------------------ ------------------------------
Name: Xxxxx Xxxxxx Name: Xxxxx Xxxxxx
------------------------------ ------------------------------
Title: Senior Vice President Title: Senior Vice President
------------------------------ ------------------------------
LUCENT TECHNOLOGIES INC., CREDIT SUISSE FIRST BOSTON
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT
By: /s/ XXXXX X XXXXXXX By: /s/ XXXXXX X. XXXXXXXX / HS
------------------- ---------------------------
Name: Xxxxx X. XxxXxxx Name: Xxxxxx Xxxxx
--------------- ------------
Title: Director Title: Authorized Signatory
-------- --------------------
CSFB INTERNATIONAL XXX XXXXXX
By: /s/ XXXXX XXXXXX By: /s/ XXXXXXXXX XXXXXXXX
------------------------------ ------------------------------
Name: Xxxxx Xxxxxx Name: Xxxxxxxxx Xxxxxxxx
------------------------------ ------------------------------
Title: Vice President Title: Vice President
------------------------------ ------------------------------
XXX CAPITAL FUNDING L.P. HIGHLAND LEGACY LIMITED
By: Highland Capital Management, By: Highland Capital Management,
L.P. As Collateral Manager L.P. As Collateral Manager
By: /s/ XXXXX XXXXX By: /s/ XXXXX XXXXX
------------------------------ ------------------------------
Name: Xxxxx Xxxxx Name: Xxxxx Xxxxx
------------------------------ ------------------------------
Title: Executive Vice President - CFO Title: Executive Vice President - CFO
------------------------------ ------------------------------
Highland Capital Management, Highland Capital Management,
------------------------------ ------------------------------
L.P. L.P.
------------------------------ ------------------------------
17
RESTORATION FUNDING CLO, LTD. PAMCO CAYMAN LTD.
By: Highland Capital Management, By: Highland Capital Management,
L.P. As Collateral Manager L.P. As Collateral Manager
By: /s/ XXXXX XXXXX By: /s/ XXXXX XXXXX
------------------------------ ------------------------------
Name: Xxxxx Xxxxx Name: Xxxxx Xxxxx
------------------------------ ------------------------------
Title: Executive Vice President - CFO Title: Executive Vice President - CFO
------------------------------ ------------------------------
Highland Capital Management, Highland Capital Management,
------------------------------ ------------------------------
L.P. L.P.
------------------------------ ------------------------------
HIGHLAND LOAN FUNDING V LTD. ML CBO IV (CAYMAN) LTD.
By: Highland Capital Management, By: Highland Capital Management,
L.P. As Collateral Manager L.P. As Collateral Manager
By: /s/ XXXXX XXXXX By: /s/ XXXXX XXXXX
------------------------------ ------------------------------
Name: Xxxxx Xxxxx Name: Xxxxx Xxxxx
------------------------------ ------------------------------
Title: Executive Vice President - CFO Title: Executive Vice President - CFO
------------------------------ ------------------------------
Highland Capital Management, Highland Capital Management,
------------------------------ ------------------------------
L.P. L.P.
------------------------------ ------------------------------
CASTLERIGG MASTER INVESTMENTS, LTD. REDWOOD MASTER FUND, LTD.
By: /s/ XXXXX X. XXXXXXXX By: /s/ XXXXXXXX XXXXXXX
------------------------------ ------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxxxx Xxxxxxx
------------------------------ ------------------------------
Title: Principal - Xxxxxxx Asset Title: Director
------------------------------ ------------------------------
Management Corp. on behalf of
------------------------------
Castlerigg Master Investments,
------------------------------
Ltd.
------------------------------
FERNWOOD RESTRUCTURINGS, LTD. AIMCO CDO SERIES 2000-A
By: /s/ XXXXX X. XXXXX By: /s/ XXXXX X. XXXXXXX
------------------------------ ------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxxxx
------------------------------ ------------------------------
Title: Director Title: Authorized Signatory
------------------------------ ------------------------------
By: /s/ XXXXX XXXXXXX
------------------------------
Name: Xxxxx Xxxxxxx
------------------------------
Title: Authorized Signatory
------------------------------
00
XXXXXX XXXX XXXXX XXXX XXXX XXXXXXXX LIFE INSURANCE COMPANY
By: /s/ XXXXXXX X. XXXXXXXXX, III By: /s/ XXXXX X. XXXXXXX
------------------------------ ------------------------------
Name: Xxxxxxx X. Xxxxxxxxx, III Name: Xxxxx X. Xxxxxxx
------------------------------ ------------------------------
Title: Assistant Secretary Title: Authorized Signatory
------------------------------ ------------------------------
By: /s/ XXXXX XXXXXXX
------------------------------
Name: Xxxxx Xxxxxxx
------------------------------
Title: Authorized Signatory
------------------------------
PACIFICA PARTNERS I, X.X. XXXXXX COMMERICAL PAPER INC.
By: Imperial Credit Asset Management
As its Investment Manager
By: /s/ XXXX XXXXXX By: /s/ G. XXXXXX XXXXX
------------------------------ ------------------------------
Name: Xxxx Xxxxxx Name: G. Xxxxxx Xxxxx
------------------------------ ------------------------------
Title: Vice President Title: Authorized Signatory
------------------------------ ------------------------------
FRANKLIN FLOATING RATE TRUST XXXXX XXX & XXXXXXX INCORPORATED, AS
AGENT FOR KEYPORT LIFE INSURANCE
COMPANY
By: /s/ XXXXXXX X'XXXXXXX By: /s/ XXXXX X. XXXXXXX
------------------------------ ------------------------------
Name: Xxxxxxx X'Xxxxxxx Name: Xxxxx X. Xxxxxxx
------------------------------ ------------------------------
Title: Senior Vice President Title: Senior Vice President &
------------------------------ ------------------------------
Portfolio Manager
------------------------------
XXXXX XXX FLOATING RATE LIMITED LIBERTY - XXXXX XXX ADVISOR FLOATING
LIABILITY COMPANY RATE ADVANTAGE FUND
By: Xxxxx Xxx & Farnham
Incorporated, as Advisor
By: /s/ XXXXX X. XXXXXXX By: /s/ XXXXX X. XXXXXXX
------------------------------ ------------------------------
Name: Xxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxx
------------------------------ ------------------------------
Title: Senior Vice President, Xxxxx Title: Sr. Vice President &
------------------------------ ------------------------------
Xxx & Farnham Incorporated as Portfolio Manager
------------------------------ ------------------------------
Advisor to the Xxxxx Xxx
------------------------------
Floating Rate Limited
------------------------------
Liability Company
------------------------------
19
YORK INVESTMENT LIMITED FIRST DOMINION FUNDING I
By: /s/ XXXXXX X. XXXXXXX By: /s/ XXXXX X. XXXXXX
------------------------------ ------------------------------
Name: Xxxxxx X. Xxxxxxx, Esq. Name: Xxxxx X. Xxxxxx
------------------------------ ------------------------------
Title: Attorney-in-Fact Title: Authorized Signatory
------------------------------ ------------------------------
FIRST DOMINION FUNDING II FIRST DOMINION FUNDING III
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXX
------------------------------ ------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
------------------------------ ------------------------------
Title: Authorized Signatory Title: Authorized Signatory
------------------------------ ------------------------------
SOCIETE GENERALE BATTERY PARK CDO, LIMITED
By Nomura Corporate Research and
Asset Management Inc. as
Investment Advisor
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXXXXX XXXXXXX
------------------------------ ------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxxxxx XxxXxxx
------------------------------ ------------------------------
Title: Vice President Title: Vice President
------------------------------ ------------------------------
CLYDESDALE CLO 2001-I, LTD. CLYDESDALE CBO I, LTD.
By Nomura Corporate Research and By Nomura Corporate Research and
Asset Management Inc. as Asset Management Inc. as
Investment Advisor Investment Advisor
By: /s/ XXXXXXXXX XXXXXXX By: /s/ XXXXXXXXX XXXXXXX
------------------------------ ------------------------------
Name: Xxxxxxxxx XxxXxxx Name: Xxxxxxxxx XxxXxxx
------------------------------ ------------------------------
Title: Vice President Title: Vice President
------------------------------ ------------------------------
ALLIANCE CAPITAL FUNDING, L.L.C. XXXXX XXX & XXXXXXX CLO I LTD.,
By: Alliance Capital Management By: Xxxxx Xxx & Farnham Incorporated,
Corporation, General Partner of as Portfolio Manager
Alliance Capital Management L.P.
By: /s/ XXXXXX XXXXXXX By: /s/ XXXXX X. XXXXXXX
------------------------------ --------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxx X. Xxxxxxx
------------------------------ ----------------
Title: Assistant Vice President Title: Sr. Vice President &
------------------------------ --------------------
Portfolio Manager
-----------------
20
EXHIBIT A
Schedule 5.18
Parent and Subsidiary Licenses
(as of March 18, 2002)
19
A. LICENSES IN COLLATERAL POOL
------------------------------------------------------------------------------------------------------------------------------------
1ST
BUILD
CHANNEL COLLATERAL OUT 01 POPs
BTA MARKET NAME STATE BLOCK MHZ CALL SIGN NAME OF LICENSEE POOL DATE (EASI)
------------------------------------------------------------------------------------------------------------------------------------
44 Birmingham AL C2 15 WPOJ689 Cricket Licensee (Reauction) Inc. X 6/30/04 1,328,593
000 Xxxxxxxxxx XX C2 15 WPOJ696 Cricket Licensee (Reauction) Inc. X 6/30/04 255,315
140 Fayetteville-
Springdale-Rogers AR C3 10 WPQW523 Cricket Licensee (Reauction) Inc. X 7/22/04 332,638
153 Ft. Xxxxx AR C3 10 WPQW521 Cricket Licensee (Reauction) Inc. X 7/22/04 330,029
000 Xxx Xxxxxxx XX C2 15 WPOK585 Cricket Licensee (Reauction) Inc. X 7/22/04 140,502
000 Xxxxxxxxx XX C5 10 WPOK569 Cricket Licensee (Reauction) Inc. X 9/29/04 182,637
000 Xxxxxx Xxxx XX C2 15 WPQW518 Cricket Licensee (Reauction) Inc. X 7/22/04 971,470
000 Xxxx Xxxxx XX C3 10 WPQW520 Cricket Licensee (Reauction) Inc. X 7/22/04 154,091
000 Xxxxxxx XX C5 10 WPRT965 Cricket Licensee (Reauction) Inc. X 6/30/04 3,539,920
000 Xxxxxx XX C2 15 WPOK603 Cricket Licensee (Reauction) Inc. X 7/22/04 857,246
291 Merced CA C2 15 WPOK590 Cricket Licensee (Reauction) Inc. X 7/22/04 230,409
303 Modesto CA C2 15 WPOK591 Cricket Licensee (Reauction) Inc. X 7/22/04 507,675
000 Xxxxxxx XX C1 15 KNLF734 Cricket Licensee (Reauction) Inc. X 1/22/02 503,948
000 Xxxxxx/Xxxxxxx XX F 10 KNLG213 Cricket Licensee (Denver) Inc. X 4/28/02 2,759,099
149 Ft. Xxxxxxx CO F 10 KNLH357 Cricket Licensee (Reauction) Inc. X 4/28/02 256,324
172 Greeley CO F 10 KNLH358 Cricket Licensee (Reauction) Inc. X 4/28/02 184,429
366 Pueblo CO C3 10 WPQW522 Cricket Licensee (Reauction) Inc. X 7/22/04 316,376
366 Pueblo CO C5 10 WPSI353 Cricket Licensee (Reauction) Inc. X 7/22/04 ---
92 Columbus GA C2 15 WPRW645 Cricket Licensee (Reauction) Inc. X 6/30/04 366,390
000 Xxxxx XX C2 15 WPRW646 Cricket Licensee (Reauction) Inc. X 6/30/04 668,632
50 Boise-Nampa ID C2 15 WPRV980 Cricket Licensee (Reauction) Inc. X 7/22/04 596,255
000 Xxxxxx XX C1 15 WPSP592 Cricket Licensee (Reauction) Inc. X 6/30/04 461,865
135 Evansville IN F 10 KNLG697 Cricket Licensee (Reauction) Inc. X 4/28/02 524,945
155 Ft. Xxxxx IN E 10 WPOJ708 Cricket Licensee (Reauction) Inc. X 6/30/04 720,322
000 Xxxxxxx XX C2 15 WPQW517 Cricket Licensee (Reauction) Inc. X 7/22/04 660,794
000 Xxxxxxxxx XX F 10 KNLH652 Cricket Licensee (Reauction) Inc. X 4/28/02 165,216
5 Adrian MI C1 15 KNLF487 Cricket Licnesee (Reauction), Inc. X 11/4/01 99,413
5 Adrian MI D 10 KNLG673 Cricket Licensee (Reauction) Inc. X 4/28/02 ---
33 Battle Creek MI C1 15 KNLF488 Cricket Licensee I, Inc. X 11/4/01 241,424
33 Battle Creek MI D 10 KNLF898 Cricket Licensee II, Inc. X 6/27/02 ---
000 Xxxxx XX D 10 KNLG663 Cricket Licensee (Reauction) Inc. X 4/28/02 508,496
000 Xxxxx Xxxxxx XX C1 15 KNLF500 Cricket Licensee (Reauction) Inc. X 11/4/01 1,090,913
000 Xxxxx Xxxxxx XX D 10 KNLG664 Cricket Licensee II, Inc. X 6/27/02 ---
000 Xxxxxxx XX C1 15 KNLF505 Cricket Licensee (Reauction) Inc. X 11/4/01 205,759
000 Xxxxxxx XX D 10 KNLG665 Cricket Licensee II, Inc. X 4/28/02 ---
223 Kalamazoo MI D 10 KNLG666 Cricket Licensee II, Inc. X 4/28/02 379,353
000 Xxxxxxx XX D 10 KNLF667 Cricket Licensee II, Inc. X 4/28/02 510,831
000 Xxxxx Xxxxxxxx XX D 10 KNLG668 Cricket Licensee (Reauction) Inc. X 4/28/02 138,096
000 Xxxxxxxx XX C1 15 KNLF516 Cricket Licensee (Reauction) Inc. X 11/4/01 226,631
000 Xxxxxxxx XX D 10 KNLG669 Cricket Licensee II, Inc. X 4/28/02 ---
000 Xxxxxxx-Xxx Xxxx XX D 10 KNLG670 Cricket Licensee II, Inc. X 4/28/02 640,657
000 Xxxxxxxx Xxxx XX D 10 KNLG671 Cricket Licensee (Reauction) Inc. X 4/28/02 250,103
000 Xxxxxx XX X 00 XXXX000 Cricket Licensee IV, Inc. X 4/28/02 414,915
210 Jackson MS E 10 KNLF890 Cricket Licensee (Reauction) Inc. X 4/28/02 682,055
000 Xxxxxxxxx XX X 00 XXXX000 Cricket Licensee (Reauction) Inc. X 4/28/02 61,651
74 Charlotte NC F 10 KNLF882 Cricket Licensee (North Carolina), Inc. X 4/28/02 2,107,435
000 Xxxxxxxxxx,
Xxxxxxx-Xxxxx XX F 10 KNLG279 Cricket Licensee (North Carolina), Inc. X 4/28/02 1,469,394
000 Xxxxxxx XX F 10 KNLG280 Cricket Licensee (North Carolina), Inc. X 4/28/02 345,317
000 Xxxxxxx XX C2 15 WPOJ805 Cricket Licensee (Reauction) Inc. X 6/30/04 349,510
000 Xxxxx XX F 10 KNLG684 Cricket Licensee (Reauction) Inc. X 4/28/02 998,073
8 Albuquerque NM C2 15 WPOK572 Cricket Licensee (Reauction) Inc. X 7/22/04 842,451
000 Xxxxx Xx XX C2 15 WPOK601 Cricket Licensee (Reauction) Inc. X 7/22/04 222,016
372 Reno NV C5 10 WPRT966 Cricket Licensee (Reauction) Inc. X 6/30/04 601,268
000 Xxxxxxxx XX C2 15 WPOJ772 Cricket Licensee (Reauction) Inc. X 6/30/04 780,393
453 Utica NY F 10 KNLF920 Cricket Licensee (Reauction) Inc. X 4/28/02 298,911
000 Xxxxxx XX F 10 KNLF998 Cricket Holdings (Dayton), Inc. X 6/27/02 1,221,056
000 Xxxxxxxx XX C1 15 KNLF523 Cricket Licensee (Reauction) Inc. X 11/4/01 139,491
444 Toledo OH C1 15 KNLF528 Cricket Licensee (Reauction) Inc. X 11/4/01 789,824
448 Tulsa OK C2 15 WPOK604 Cricket Licensee (Reauction) Inc. X 7/22/04 958,093
133 Eugene OR C3 10 WPTI886 Cricket Licensee (Reauction) Inc. X 6/30/04 325,831
000 Xxxxx-Xxxxxx-
Xxxxxxxxx XX C2 15 WPRV979 Cricket Licensee (Reauction) Inc. X 7/22/04 534,999
000 Xxxxxxxxxx XX E 10 KNLH427 Cricket Licensee (Pittsburgh) Inc. X 4/28/02 2,469,722
76 Chattanooga TN C1 15 KNLF459 CHASETEL LICENSEE CORP X 9/17/01 572,258
83 Clarksville/
Hopkinsville TN C1 15 KNLF460 CHASETEL LICENSEE CORP X 9/17/01 268,476
000 Xxxxxxxxx XX C1 15 KNLF466 CHASETEL LICENSEE CORP X 9/17/01 1,130,516
000 Xxxxxxx XX C1 15 KNLF467 CHASETEL LICENSEE CORP X 9/17/01 1,565,645
000 Xxxxxxxxx XX C1 15 KNLF469 CHASETEL LICENSEE CORP X 9/17/01 1,785,651
365 Provo-Orem UT C2 15 WPQW519 Cricket Licensee (Reauction) Inc. X 7/22/04 384,722
399 Salt Lake City UT C2 15 WPQW516 Cricket Licensee (Reauction) Inc. X 7/22/04 1,652,234
000 Xxxxxxx XX C2 15 WPOK602 Cricket Licensee (Reauction) Inc. X 7/22/04 751,212
18 Appleton-OshKosh WI E 10 KNLG966 Cricket Licensee (Reauction), Inc. X 4/28/02 456,172
000 Xxx Xxxxxx XX X 00 XXXX000 Cricket Licensee (Reauction), Inc. X 4/28/02 196,580
000 Xx Xxxxxx-Xxxxxx WI/MN D 10 KNLG983 Cricket Licensee (Reauction), Inc. X 4/28/02 322,112
000 Xxxxxxx Xxxxx-
Xxxxxxxxxx XX D 10 KNLG991 Cricket Licensee (Reauction), Inc. X 4/28/02 215,593
000 Xxxxxxx Xxxxx-
Xxxxxxxxxx XX E 10 KNLG253 Cricket Licensee (Reauction), Inc. X 4/28/02 ---
------------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL 46,220,372
19A
B. LICENSES NOT IN COLLATERAL POOL (EXCLUDING LICENSES LISTED ON FOLLOWING
PAGES)
------------------------------------------------------------------------------------------------------------------------------------
COLLATERAL
POOL 1ST
X=YES BUILD-
CHANNEL (X)=BEING OUT DATE 01 POPS 01 POPs
BTA MARKET NAME STATE BLOCK MHZ CALL SIGN NAME OF LICENSEE TRANSFERRED DATE FILED (EASI) (EASI)
------------------------------------------------------------------------------------------------------------------------------------
14 Anchorage AK C 30 WPOK573 Leap Wireless International 7/22/04 461,478
49 Blythevelle AR C2 15 WPOK574 Leap Wireless International 7/22/04 71,601
000 Xxxxxxxxxxxx-
Xxxxxxxxxx-Xxxxxx XX X0,X0 20 WPOK580 Leap Wireless International 7/22/04 332,638
000 Xx. Xxxxx XX X0,X0 20 WPOK581 Leap Wireless International 7/22/04 330,029
000 Xxxxxx Xxxx XX C4 5 WPOK589 Leap Wireless International 7/22/04 971,470
000 Xxxx Xxxxx XX C4 10 WPOK594 Leap Wireless International 7/22/04 154,091
000 Xxxxxxxxxxxx XX C2 15 WPOK598 Leap Wireless International 7/22/04 99,561
000 Xxxxxxx XX X0,X0 20 WPOK592 Leap Wireless International 7/22/04 39,108
6 Albany GA C2 15 WPOJ838 Cricket Licensee 6/30/04 357,815
(Albany), Inc.
92 Columbus GA C1 15 WPOJ839 Cricket Licensee 6/30/04 366,390
(Columbus), Inc.
000 Xxxxx XX C1 15 WPOJ841 Cricket Licensee (Macon), Inc. 6/30/04 668,632
50 Boise-Nampa ID C1 15 WPOK575 Leap Wireless International 7/22/04 596,255
000 Xxxxx Xxxxx XX C2 15 WPOK586 Leap Wireless International 7/22/04 225,322
250 Lewiston-Moscow ID C1 15 WPOK588 Leap Wireless International 7/22/04 124,661
000 Xxxx Xxxxx XX C2 15 WPOK605 Leap Wireless International 7/22/04 164,293
88 Coffeyville KS C2 15 WPOK578 Leap Wireless International 7/22/04 61,365
000 Xxxxxxxx XX X 00 XXXX000 Leap Wireless International 4/28/02 To Expire --- 47,227
000 Xxxx Xxxxxxxx XX E 10 KNLG977 Leap Wireless International 4/28/02 To Expire --- 45,768
000 Xxxxxxxx XX D 10 KNLG979 Leap Wireless International 4/28/02 To Expire --- 31,989
000 Xxxxxxxx XX X 00 XXXX000 Leap Wireless International 4/28/02 To Expire ---
000 Xxxxxxxxx XX X 00 XXXX000 Leap Wireless International 4/28/02 To Expire --- 74,328
409 Sault Ste. Xxxxx MI D 10 KNLG988 Leap Wireless International 4/28/02 To Expire --- 58,007
409 Sault Ste. Xxxxx MI E 10 KNLG/989 Leap Wireless International 4/28/02 To Expire ---
000 Xxxxx XX C2 15 WPOK579 Leap Wireless International 7/22/04 317,873
000 Xxxxx Xxxxx XX C2 15 WPOK583 Leap Wireless International 7/22/04 202,542
000 Xxxxxx XX C2 15 WPOK582 Leap Wireless International 7/22/04 145,922
000 Xxxxxxx XX C2 15 WPOJ702 Leap Wireless International 6/30/04 81,586
395 Salem-Albany-
Corvallis OR C6 5 WPOK599 Leap Wireless International 7/22/04 534,999
279 Marinette-Menominee WI/MI E 10 KNLG985 Leap Wireless International 4/28/02 To Expire --- 68,935
69 Casper-Gillette WY C1 15 WPOK577 Leap Wireless International 7/22/04 146,928
------------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL 6,454,559 326,254
19B
C. LICENSES TO BE TRANSFERRED TO COLLATERAL POOL PENDING CLOSING OF NTCH TENN
SWAP
------------------------------------------------------------------------------------------------------------------------------------
COLLATERAL
POOL 1ST
X=YES BUILD-
CHANNEL (X)=BEING OUT DATE 01 POPs
BTA MARKET NAME STATE BLOCK MHZ CALL SIGN NAME OF ASIGNEE TRANSFERRED DATE FILED STATUS SELLER (EASI)
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxx Xxxx XX C1 15 WPOJ763 Cricket Licensee X 6/30/04 5/29/01 Consented Tennessee Swap 119,036
(Reauction) Inc.
000 Xxxxxxxxxxx XX C5 10 WPSJ980 Cricket Licensee X 5/29/06 9/19/01 Consented Tennessee Swap 118,818
(Reauction) Inc.
000 Xxxxxxxxx XX C2 15 WPSJ989 Cricket Licensee X 5/29/06 9/19/01 Consented Tennessee Swap 302,829
(Reauction) Inc.
281 Marion OH C3 10 WPSJ979 Cricket Licensee X 5/29/06 9/19/01 Consented Tennessee Swap 98,241
(Reauction) Inc.
000 Xxxxxxxxxxxx XX C3 10 WPSJ981 Cricket Licensee X 5/29/06 9/19/01 Consented Tennessee Swap 131,331
(Reauction) Inc.
218 Johnstown PA C4 10 WPSJ977 Cricket Licensee X 5/29/06 9/19/01 Consented Tennessee Swap 232,154
(Reauction) Inc.
265 Lufkin TX C4 10 WPSJ978 Cricket Licensee X 5/29/06 9/19/01 Consented Tennessee Swap 163,341
(Reauction) Inc.
------------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL 1,165,750
D. Licenses To Be Transferred To NTCH Pending Closing of Tenn Swap and Idaho
Transaction
------------------------------------------------------------------------------------------------------------------------------------
1ST
BUILD- FCC
CHANNEL OUT DATE APPLICATION 01 POPs
BTA MARKET NAME STATE BLOCK MHZ CALL SIGN NAME OF LICENSEE DATE FILED NUMBER ASSIGNEE (EASI)
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxx Xxxxx XX C1 15 WPOK586 Leap Wireless 7/22/04 5/7/01 451246 IAT Communi- 225,322
International, Inc. cations, Inc.
000 Xxxx Xxxxx XX C1 15 WPOK605 Leap Wireless 7/22/04 5/7/01 451246 IAT Communi- 164,293
International, Inc. cations, Inc.
146 Florence AL C1 15 KNLF463 Chasetel Licensee X 9/17/01 5/24/01 467877 NTCH, Inc. 192,297
Corp
49 Blythevelle AR C1 15 WPOK574 Leap Wireless 7/22/04 9/19/01 586962 NTCH, Inc. 71,601
International, Inc.
53 Bozeman MT C5 10 WPOK576 Leap Wireless 7/22/04 9/19/01 586962 NTCH, Inc. 84,818
International, Inc.
96 Cookeville TN C1 15 KNLF461 Chasetel Licensee X 9/17/01 5/24/01 467877 NTCH, Inc. 139,561
Corp
000 Xxxxxxxxx- XX C1 15 KNLF462 Chasetel Licensee X 9/17/01 5/24/01 467877 NTCH, Inc. 120,794
Union City Corp
000 Xxxxxxx XX C1 15 KNLF464 Chasetel Licensee X 9/17/01 5/24/01 467877 NTCH, Inc. 289,279
Corp
229 Kingsport- TN C1 15 KNLF465 Chasetel Licensee X 9/17/01 5/24/01 467877 NTCH, Inc. 711,868
Xxxxxxxx Corp
City
000 Xxxxxxxxxxx- XX C1 15 KNLF468 CHASETEL LICENSEE X 9/17/01 5/24/01 467877 NTCH, Inc. 118,250
Xxxxxx CORP
------------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL 2,118,083
E. Licenses Under Negotiation To Be Transferred to Third Parties
------------------------------------------------------------------------------------------------------------------------------------
1ST
BUILD-
CHANNEL OUT 01 POPs
BTA MARKET NAME STATE BLOCK MHZ CALL SIGN NAME OF LICENSEE DATE (EASI)
------------------------------------------------------------------------------------------------------------------------------------
366 Pueblo CO C4 10 WPOK596 Leap Wireless 7/22/04 316,376
International
395 Salem-Albany OR C3 10 WPOK599 Leap Wireless 7/22/04 534,999
-Corvallis International
69 Casper- WY C2 15 WPOK577 Leap Wireless 7/22/04 146,928
Gillette International
250 Lewiston- ID C1 15 WPOK588 Leap Wireless 7/22/04 124,661
Moscow International
000 Xxxxxxxx XX F 10 KNLG741 Cricket Licensee X 4/28/02 489,650
(Lakeland) Inc.
00 Xxxxxxx XX X 00 XXXX000 Leap Wireless 4/28/02 67,132
International
54 Brainerd MN E 10 KNLG968 Leap Wireless 4/28/02 98,930
International
132 Escanaba MI E 10 KNLG972 Leap Wireless 4/28/02 47,541
International
371 Redding CA C2 15 WPOK597 Leap Wireless 7/22/04 278,572
International
00 Xxxxxxx XX X0,X0 20 WPOK576 Leap Wireless 7/22/04 84,818
International
------------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL 2,189,607
F. Licenses Pledged (or being pledged) to Third Parties
------------------------------------------------------------------------------------------------------------------------------------
1ST
BUILD-
CHANNEL OUT DATE 01 POPs
BTA MARKET NAME STATE BLOCK MHZ CALL SIGN NAME OF LICENSEE DATE FILED STATUS THIRD PARTY (EASI)
------------------------------------------------------------------------------------------------------------------------------------
60 Buffalo NY E 10 WPOJ771 MCG PCS Licensee, (1) 6/30/04 Consumated MCG 1,212,839
Inc.
000 Xxxxxxxxx- XX C2 15 WPOK587 Leap Wireless 7/22/04 2/7/02 Pending NTCH 194,952
Pasco- International
Richland
482 Yakima WA C2 15 WPOK607 Leap Wireless 7/22/04 2/7/02 Pending NTCH 258,928
International
000 Xxxxxxx XX C1 15 WPOK606 Leap Wireless 7/22/04 2/7/02 Pending NTCH 660,794
International
------------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL 2,327,513
(1) To be contributed to the collateral pool in the future pursuant to Section
5.18(g) of the Credit Agreement.
19C
EXHIBIT B
Schedule 5.19
Further Investments
PLANNED LICENSE
SUBSIDIARY OWNER MARKET 1/31/2003 4/30/2003 7/31/2003 10/31/2003 2003 TOTAL
-----------------------------------------------------------------------------------
AIRGATE LICENSES
Cricket Licensee (North
Carolina), Inc. Charlotte $ 242,476.77 $ 242,476.77 $ 242,476.77 $ 242,476.77 $ 969,907.08
Cricket Licensee XIII, Inc. Greensboro 220,786.91 220,786.91 220,786.91 220,786.91 883,147.64
Cricket Licensee XIV, Inc. Hickory 3,475.60 3,475.60 3,475.60 3,475.60 13,902.40
-----------------------------------------------------------------------------------
AIRGATE SUBTOTAL $ 466,739.28 $ 466,739.28 $ 466,739.28 $ 466,739.28 $ 1,866,957.12
CHASETEL LICENSES
Cricket Licensee XV, Inc. Chattanooga $ 513,150.99 $ 513,150.99 $ 513,150.99 $ 513,150.99 $ 2,052,603.96
Cricket Licensee XVI, Inc. Nashville 1,932,365.65 1,932,365.65 1,932,365.65 1,932,365.65 7,729,462.62
Cricket Licensee XVII, Inc. Memphis 1,681,818.03 1,681,818.03 1,681,818.03 1,681,818.03 6,727,272.14
Cricket Licensee XVIII, Inc. Knoxville 767,036.83 767,036.83 767,036.83 767,036.83 3,068,147.30
Cricket Licensee XIX, Inc. Clarksville 134,274.42 134,274.42 134,274.42 134,274.42 537,097.69
-----------------------------------------------------------------------------------
CHASETEL LICENSEE SUBTOTAL $ 5,028,645.92 $ 5,028,645.92 $ 5,028,645.92 $ 5,028,645.92 $20,114,583.70
Cricket Licensee XX, Inc. Omaha $ 26,992.46 $ 26,992.46 $ 26,992.46 $ 26,992.46 $ 107,969.84
Cricket (Lakeland), Inc. Lakeland 74,425.70 74,425.70 74,425.70 74,425.70 297,702.80
Cricket Holdings Dayton, Inc. Dayton 43,097.39 43,097.39 43,097.39 43,097.39 172,389.56
Cricket Licensee Denver, Inc. Denver 78,919.39 78,919.39 78,919.39 78,919.39 315,677.56
-----------------------------------------------------------------------------------
TOTAL - ALL LICENSES $ 5,718,820.14 $ 5,718,820.14 $ 5,718,820.14 $ 5,718,820.14 $22,875,280.58
SEPARATE ACCOUNT OF PARENT $ 2,395,216.30
Amounts invested by Parent from time to time pursuant to Section 5.19 shall be
allocated pro rata among the investments listed above based upon the debt
service obligations that remain to be paid in 2003 with respect to such
investments.
20
EXHIBIT C
Schedule 6.26
BTAs in Borrower 00 Xxxxxx Xxxx
XXXXXX XXXXX XXXx
0 Xxxxxxxxxxx XX Chattanooga
2 Middle Tennessee TN Nashville
Clarksville
3 Knoxville TN Knoxville
4 Memphis TN Memphis
5 Triad Area NC Greensboro /Winston-Salem
6 Tulsa OK Tulsa
0 Xxxxxx XX Xxxxxx
0 Xxxxxxxxx XX Charlotte
9 Central Arkansas AR Little Rock
Hot Springs
Pine Bluff
10 Wasatch Front UT Salt Lake City/Ogden
Provo
11 Albuquerque NM Albuquerque
00 Xxxxx Xx XX Xxxxx Xx
00 Xxxxxxx XX Wichita
14 Pueblo CO Xxxxxx
00 Xxxxxxx XX Spokane
16 Fort Xxxxx AR Fort Xxxxx
17 Hickory NC Hickory
18 Pittsburgh PA Pittsburgh
00 Xxxxx XX Xxxxx
00 Xxxxxxxx XX Columbus
00 Xxxxxxxxx Xxxxxxxx XX Xxxxxxxxxxxx
00 Xxxxxxx XX Phoenix
23 Denver CO Denver/Boulder
24 Boise ID Boise
25 Dayton OH Dayton /Springfield
26 Omaha NE Omaha
27 Salem OR Salem
28 Xxxx-Xxxxxx and Carson City NV Reno
29 Toledo OH Toledo
Sandusky
30 Northern Colorado CO Ft. Xxxxxxx
Greeley
00
XXXXXX XXXXX XXXx
00 Xxxxxxxxx XX Xxxxxxxxx
00 Xxxxxxx-Xxxxxx XX Xxxxxxx
Xxxxxx
33 Visalia CA Visalia
34 Xxxxxx OR Xxxxxx
35 Lincoln NE Lincoln
36 Flint MI Flint
37 Battle Creek and Kalamazoo MI Battle Creek
Kalamazoo
38 Jackson MI Jackson
39 Syracuse NY Syracuse
40 Buffalo NY Buffalo
22
EXHIBIT D
Form of Intercompany Agreement
(To be entered into between Parent and individual License Subsidiaries)
23
ADMINISTRATIVE SERVICES AGREEMENT
by and between
LEAP WIRELESS INTERNATIONAL, INC.
and
((COMPANY))
24
TABLE OF CONTENTS
PAGE
ARTICLE 1 SERVICES.......................................................... 1
1.1 Services............................................................. 1
1.2 Term................................................................. 2
1.3 Charges and Payment.................................................. 2
1.4 General Obligations; Standard of Care................................ 3
1.5 Certain Limitations.................................................. 4
1.6 Confidentiality...................................................... 5
1.7 Termination.......................................................... 5
1.8 Disclaimer of Warranties, Limitation of Liability And Indemnification 5
ARTICLE 2 MISCELLANEOUS..................................................... 6
2.1 Taxes................................................................ 6
2.2 Relationship of Parties.............................................. 6
2.3 Modification And Amendment........................................... 6
25
ADMINISTRATIVE SERVICES AGREEMENT
THIS ADMINISTRATIVE SERVICES AGREEMENT ("Agreement"), dated as of
____________ (the "Effective Date"), is by and between LEAP WIRELESS
INTERNATIONAL, INC., a Delaware corporation ("Leap"), and ((COMPANY)), a
Delaware corporation (the "Company").
WHEREAS, the Company is a wholly-owned subsidiary of Leap; and
WHEREAS, the Company desires to enter into this Agreement with Leap for
the provision of administrative services to the Company on the terms set forth
herein.
NOW, THEREFORE, in consideration of the above premises and for other good
and valid consideration, the receipt and adequacy of which are hereby
acknowledged, the parties, intending to be legally bound, agree as follows:
ARTICLE 1
SERVICES
1.1 SERVICES.
(a) ADMINISTRATIVE SERVICES. Except as otherwise provided herein,
for the term determined pursuant to Section 1.2 hereof, Leap shall provide, or
cause to be provided, to the Company the following "Initial Services:"
(i) Human resources and personnel services, including
recruiting and hiring of new employees and administration of payroll, employee
benefits and stock option issuance and tracking ("HR Services");
(ii) Media relations, public affairs and advertising services
("Media Services");
(iii) Accounting, tax (including preparation and filing of all
federal and state income and franchise tax returns, as applicable), billing,
legal and other corporate support services ("Corporate Support Services");
(iv) Facilities rental, maintenance and related services,
including supply of telephone and utility services, in San Diego ("Facilities
Services"); and
(v) Payment of all federal and state unitary income taxes
("Income Tax Payments") owing from the Company.
(b) ADDITIONAL SERVICES. From time to time after the date of this
Agreement, the parties may identify and agree upon additional services that Leap
will provide the Company in accordance with the terms of this Agreement (the
"Additional Services" and, together with the Initial Services, the "Services");
provided, however, Leap shall have no obligation hereunder to
26
provide any Additional Services unless it expressly so agrees. To the extent the
parties agree, the parties shall create an amendment to this Agreement, setting
forth a description of the Additional Service(s), the time period during which
the Additional Service(s) will be provided, the charge, if any, for the
Additional Service(s) and any other terms applicable thereto.
(c) SERVICES PERFORMED BY OTHERS. At its option, Leap may cause
any Service it is required to provide hereunder to be provided by any other
person or entity that is providing, or may from time to time provide, the same
or similar services for Leap.
1.2 TERM. The term of this Agreement shall commence on the Effective
Date and shall remain in effect until the first anniversary of the Effective
Date and thereupon (and upon each anniversary thereafter)(the "Renewal Date")
shall automatically renew for an additional one year period, unless (i) earlier
terminated under Section 1.7 hereof or (ii) terminated by either party upon the
Renewal Date, provided that such party has given written notice to the other
party no less than six months prior to the Renewal Date, with a copy to the
agent under the Credit Agreement and to the agent under each other credit
agreement constituting a Secured Instrument (in either event, the "Termination
Date"). The terms "Credit Agreement" and "Secured Instrument" are used in
Sections 1.2 and 1.7 as such terms are defined in the Collateral Agency and
Intercreditor Agreement, dated as of November 24, 1999, among Cricket
Communications, Inc., State Street Bank and Trust Company, and the other parties
thereto, as amended from time to time.
1.3 CHARGES AND PAYMENT.
(a) CHARGES FOR INITIAL SERVICES. Leap shall allocate and xxxx the
Company for all reasonable charges stemming from the provision of (i) the HR
Services, the Media Services, the Corporate Support Services, and the Facilities
Services annually for a fixed fee of Twenty Five Thousand Dollars ($25,000.00)
per year; and (ii) the Income Tax Payments in accordance with the provisions of
Regulation Section 1.1502-33(d)(3) promulgated by the United States Treasury
Department in conjunction with the method under Regulation Section
1.1552-1(a)(1) (The percentage to be used under Regulation Section 1.1502(d)(1)
is 100%), all as adjusted from time to time in accordance with the process and
procedures established under subsection 1.3(d) hereof. Wherever practical,
charges shall be levied only to the extent necessary to reimburse Leap for the
costs of performing the Services, and shall be based on actual incurred costs,
not budgeted or estimated costs.
(b) CHARGES FOR ADDITIONAL SERVICES. The Company shall pay Leap
the charges, if any, set forth in the applicable amendment to this Agreement for
the provision of each of the Additional Services listed therein, which charges
shall be determined consistent with subsection 1.3(a) above.
(c) PAYMENT TERMS. Leap shall xxxx the Company pro-rata on a
monthly basis for all charges pursuant to this Agreement. Such bills shall be
accompanied by reasonable documentation or other reasonable explanation
supporting such charges. The Company shall pay Leap for all Services provided
hereunder within thirty (30) days after receipt of an invoice therefor. Late
payments shall bear interest at the rate of 10% per annum, compounded annually.
27
(d) ERROR CORRECTION; TRUE-UPS; ACCOUNTING. The parties shall
agree on a process and procedure for conducting internal audits and making
adjustments to charges as a result of the movement of employees and functions
between parties, the discovery of errors or omissions in charges, as well as a
true-up of amounts owed. In no event shall such processes and procedures extend
beyond one (1) year after completion of a Service.
(e) PRICING ADJUSTMENTS. In the event of a tax audit adjustment
relating to the pricing of any or all Services provided pursuant to this
Agreement in which it is determined by a taxing authority that any of the
charges, individually or in combination, did not result in an arm's-length
payment, then the parties may agree to make corresponding adjustments to the
charges in question for such period to the extent necessary to achieve
arm's-length pricing. Any adjustment made pursuant to this subsection 1.3(e)
shall be reflected in the parties' official books and records, and the resulting
overpayment or underpayment shall create an obligation to be paid by either Leap
or the Company, as applicable, on the same payment terms as specified in
subsection 1.3(c) above.
(f) REIMBURSEMENT OF OTHER COSTS AND EXPENSES. From time to time,
Leap may, with the approval of the Company, incur costs and expenses on a
reasonable basis on behalf of the Company unrelated to the provision of the
Services and shall invoice the Company separately for such costs and expenses.
The Company shall promptly, and in no event later than thirty (30) days
following receipt of such invoice, remit payment therefore to Leap.
1.4 GENERAL OBLIGATIONS; STANDARD OF CARE.
(a) PERFORMANCE REQUIREMENTS: LEAP. Subject to subsection 1.5(b),
Leap shall maintain sufficient resources to perform its obligations hereunder.
Leap shall exercise the same care and skill as it exercises in performing
similar services for itself.
(b) PERFORMANCE REQUIREMENTS: THE COMPANY. The Company shall, in
connection with receiving Services, provide information and documentation,
sufficient resources and timely decisions, approvals and acceptances in order
that Leap may accomplish its obligations hereunder in a timely manner.
(c) NATURE OF SERVICES; CHANGES. The parties acknowledge the
nature of the Services and that Leap may make changes from time to time in the
manner of performing the Services (e.g., if Leap is making similar changes in
performing similar services for itself and its affiliates).
(d) RESPONSIBILITY FOR ERRORS; DELAYS. Leap's sole responsibility
to the Company:
(i) for errors or omissions in connection with Services
shall be to furnish correct information, payment and/or adjustment in the
Services, at no additional cost or expense to the Company; provided, the Company
must promptly advise Leap of any such error or omission of which it becomes
aware; and
(ii) for failure to adequately deliver any Service because of
Impracticability, shall be to use reasonable efforts, subject to subsection
1.5(b), to make the
28
Services available and/or to resume performing the Services as promptly as
reasonably practicable.
(e) GOOD FAITH COOPERATION; CONSENTS. The parties will use good
faith efforts to cooperate with each other in all matters relating to the
provision and receipt of Services. Such cooperation shall include exchanging
information, providing electronic access to systems used in connection with
Services, performing true-ups and adjustments and obtaining all consents,
licenses, sublicenses or approvals necessary to permit each party to perform its
obligations hereunder. The costs of obtaining such consents, licenses,
sublicenses or approvals shall be allocated in accordance with Section 1.3(a).
The parties will maintain supporting documentation and cooperate with each other
in making such information available as needed in the event of a tax audit.
(f) ALTERNATIVES. If Leap reasonably believes it is unable to
provide any Service because of Impracticability, the parties shall cooperate to
determine the best alternative approach. Until such alternative approach is
found or the problem otherwise resolved to the satisfaction of the parties, Leap
shall use reasonable efforts, subject to Section 1.5(a) and Section 1.5(b), to
continue providing the Service. To the extent an agreed upon alternative
approach requires payment above and beyond that which is included in Leap's
charge for the Service in question, the Company shall make any such additional
payment unless the parties otherwise agree in writing.
1.5 CERTAIN LIMITATIONS.
(a) IMPRACTICABILITY. Leap shall not be required to provide any
Service to the extent the performance of such Service becomes "Impracticable" as
a result of a cause or causes outside the reasonable control of Leap, or to the
extent the performance of such Services would require Leap to violate any
applicable laws, rules or regulations, or would result in the breach of any
software license or other applicable contract.
(b) ADDITIONAL RESOURCES. In providing the Services, Leap shall
not be obligated to: (i) hire any additional employees; (ii) maintain the
employment of any specific employee; (iii) purchase, lease or license any
additional equipment or software; or (iv) pay any costs related to the transfer
or conversion of the Company's data to the Company or any alternate supplier of
Services.
(c) NO SALE, TRANSFER, ASSIGNMENT. The Company may not sell,
transfer, assign or otherwise use the Services provided hereunder, in whole or
in part, for the benefit of any person or entity other than the Company.
1.6 CONFIDENTIALITY.
(a) INFORMATION SUBJECT TO OTHER OBLIGATIONS. The Company agrees
that all confidential information regarding the Services, including, but not
limited to, price, costs, methods of operation, and software, shall be
maintained in confidence.
(b) INTERNAL USE; TITLE, COPIES, RETURN. The Company agrees that:
29
(i) all systems, procedures and related materials provided
to the Company are for the Company's internal use only and only as related to
the Services;
(ii) title to all systems used in performing the Services
provided hereunder shall remain in Leap or its third party vendors;
(iii) The Company shall not copy, modify, reverse engineer,
decompile or in any way alter systems without Leap's express written consent;
(iv) Upon the termination of any of the Services, the Company
shall return to Leap, as soon as practicable, any equipment or other property of
Leap relating to the Services which is owned or leased by Leap and is or was in
the Company's possession or control.
1.7 TERMINATION.
(a) ELECTION TO TERMINATE. Either party may terminate this
Agreement with respect to some or all of the Services by giving at least six
months advance written notice of such termination to the other party, with a
copy to the agent under the Credit Agreement and to the agent under each other
credit agreement constituting a Secured Instrument.
(b) AUTOMATIC TERMINATION. Except to the extent the parties
otherwise agree in writing, this Agreement will automatically terminate on the
Termination Date.
(c) TERMINATION OF LESS THAN ALL SERVICES. In the event of any
termination with respect to one or more, but less than all, Services, this
Agreement shall continue in full force and effect with respect to any Services
not terminated hereby.
1.8 DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY AND
INDEMNIFICATION.
(a) DISCLAIMER OF WARRANTIES. LEAP DISCLAIMS ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE
SERVICES. LEAP MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE QUALITY,
SUITABILITY OR ADEQUACY OF THE SERVICES FOR ANY PURPOSE OR USE.
(b) LIMITATION OF LIABILITY; INDEMNIFICATION OF THE COMPANY. Leap
shall have no liability to the Company with respect to its furnishing any of the
Services hereunder except for liabilities arising out of its gross negligence or
willful misconduct occurring after the date hereof. Leap will indemnify, defend
and hold harmless the Company in respect of all liabilities related to, arising
from, asserted against or associated with such gross negligence or willful
misconduct. In no event shall Leap or any of its agents or affiliates have any
liability for any incidental, indirect, special or consequential damages,
whether or not caused by or resulting from negligence or breach of obligations
hereunder and whether or not informed of the possibility of the existence of
such damages.
30
(c) LIMITATION OF LIABILITY; INDEMNIFICATION OF LEAP. The Company
shall indemnify and hold harmless Leap in respect of all liabilities related to,
arising from, asserted against or associated with Leap's furnishing or failing
to furnish the Services provided for in this Agreement, other than liabilities
arising out of the willful misconduct following the date hereof.. In no event
shall Leap have any liability for any incidental, indirect, special or
consequential damages, whether or not caused by or resulting from negligence or
breach of obligations hereunder and whether or not informed of the possibility
of the existence of such damages.
ARTICLE 2
MISCELLANEOUS
2.1 TAXES. The Company shall bear all taxes, duties and other similar
charges (and any related interest and penalties) imposed as a result of the
Company's receipt of Services under this Agreement, including any tax which the
Company is required to withhold or deduct from payments to Leap, except any net
income tax imposed upon Leap.
2.2 RELATIONSHIP OF PARTIES. Nothing in this Agreement shall be deemed
or construed by the parties or any third party as creating the relationship of
principal and agent, partnership or joint venture between the parties, it being
understood and agreed that no provision contained herein, and no act of the
parties, shall be deemed to create any relationship between the parties other
than the relationship of independent contractor nor be deemed to vest any
rights, interest or claims in any third parties.
2.3 MODIFICATION AND AMENDMENT. This Agreement may not be modified or
amended except in a writing signed by the parties.
IN WITNESS WHEREOF, the parties have executed this Interim Services
Agreement as of the date first above written.
LEAP WIRELESS INTERNATIONAL, INC.:
By:
----------------------------------
Name:
Title:
((COMPANY)):
By:
----------------------------------
Name:
Title:
31
EXHIBIT E
March 2002 Equity Investments in License Subsidiaries
CONTRIBUTION/REMAINING 2002 DEBT
LICENSE SUBSIDIARY SERVICE OBLIGATION
Cricket Licensee (North Carolina), Inc. $ 951,692.82
Cricket Licensee XIII, Inc. 441,573.82
Cricket Licensee XIV, Inc. 6,951.20
Chasetel Licensee Corp. 1,232,118.87
Cricket Licensee XV, Inc. 251,464.52
Cricket Licensee XVI, Inc. 946,936.50
Cricket Licensee XVII, Inc. 824,158.14
Cricket Licensee XVIII, Inc. 375,878.74
Cricket Licensee XIX, Inc. 65,799.84
Cricket Licensee (Reauction), Inc. 26,992.46
Cricket Licensee XX, Inc. 53,984.92
Cricket Licensee (Lakeland), Inc. 223,277.10
Cricket Holdings Dayton, Inc. 129,292.17
Cricket Licensee (Denver), Inc. 236,758.17
TOTAL $ 5,766,879.27
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