LOAN AGREEMENT
dated as of January 30, 1998
among
OMNIPOINT MIDWEST
HOLDINGS, LLC,
Borrower,
NORTHERN TELECOM INC.
as Administrative Agent,
and
THE LENDERS NAMED HEREIN
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND RULES OF INTERPRETATION.....................................1
Section 1.01. Definitions.............................................1
Section 1.02. Rules of Interpretation................................34
Section 1.03. Accounting Terms.......................................35
ARTICLE II
THE LOANS..................................................................36
Section 2.01. The Advances...........................................36
Section 2.02. Making the Advances....................................37
Section 2.03. Fees...................................................40
Section 2.04. Interest...............................................41
Section 2.05. Interest Rate Determination............................43
Section 2.06. Conversion of Advances.................................44
Section 2.07. Payments and Computations..............................44
Section 2.08. Sharing of Payments, Etc...............................49
Section 2.09. Use of Proceeds........................................50
Section 2.10. The Notes..............................................52
Section 2.11. Reduction or Termination of the Commitments............53
Section 2.12. Change in Terms Applicable to Facility B Advances......54
ARTICLE III
REPAYMENT AND PREPAYMENT OF THE LOANS......................................54
Section 3.01. Repayment..............................................54
Section 3.02. Mandatory Prepayments of Loans.........................55
Section 3.03. Optional Prepayments of Loans..........................62
Section 3.04. Certain Matters Relating to Repayments and
Prepayments...........................................................63
ARTICLE IV
ILLEGALITY, INCREASED COSTS, CAPITAL ADEQUACY AND
INDEMNITIES................................................................64
Section 4.01. Illegality.............................................64
Section 4.02. Additional Costs and Capital Adequacy..................65
Section 4.03. Taxes..................................................66
Section 4.04. Survival...............................................68
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ARTICLE V
REPRESENTATIONS AND WARRANTIES.............................................68
Section 5.01. Corporate Authority; Limited Liability Company
Authority.............................................................68
Section 5.02. Governmental Approvals.................................70
Section 5.03. Title to Properties....................................71
Section 5.04. Financial Statements...................................71
Section 5.05. No Material Adverse Effect, Etc........................71
Section 5.06. Franchises, Patents, Copyrights, Etc...................71
Section 5.07. FCC Licenses, Etc......................................71
Section 5.08. Litigation.............................................72
Section 5.09. No Materially Adverse Contracts, Etc...................72
Section 5.10. Compliance with Other Instruments, Laws, Etc...........72
Section 5.11. Tax Status.............................................72
Section 5.12. No Default.............................................73
Section 5.13. Holding Company and Investment Company Acts............73
Section 5.14. Absence of Financing Statements, Etc...................73
Section 5.15. FCC Matters............................................73
Section 5.16. Tariffs................................................74
Section 5.17. Disclosure.............................................74
Section 5.18. Burdensome Obligations.................................74
Section 5.19. Solvency...............................................74
Section 5.20. Security Interests.....................................74
Section 5.21. Certain Transactions...................................74
Section 5.22. Business Plans.........................................75
Section 5.23. Employee Benefit Plans.................................75
Section 5.24. Regulations G, T, U and X..............................76
Section 5.25. Environmental Compliance...............................76
Section 5.26. Joint Ventures, Etc....................................78
Section 5.27. Material Contracts.....................................78
Section 5.28. Representations in Other Loan Documents................78
Section 5.29. Ericsson Tranche Y Loan................................78
Section 5.30. OC Stock Payment Date..................................78
ARTICLE VI
AFFIRMATIVE COVENANTS OF THE BORROWER......................................78
Section 6.01. Maintenance of Office..................................78
Section 6.02. Records and Accounts...................................78
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Section 6.03. Corporate and Limited Liability Company Existence;
Maintenance of Licenses...............................................79
Section 6.04. Maintenance of Properties..............................80
Section 6.05. Insurance..............................................80
Section 6.06. Taxes..................................................81
Section 6.07. Inspection of Properties and Books.....................81
Section 6.08. Compliance with Laws, Contracts, FCC Licenses and
Permits...............................................................82
Section 6.09. Further Assurances.....................................82
Section 6.10. Attornment and Recognition Agreements; Consents to
Collateral Assignments................................................83
Section 6.11. Expense Allocation Agreement...........................83
Section 6.12. Maintenance of Subsidiary..............................84
Section 6.13. Reporting Requirements; Notices........................84
Section 6.14. Financial Covenants of the Borrower....................91
Section 6.15. Mortgage Liens.........................................95
Section 6.16. New Subsidiaries; Qualified Joint Ventures.............95
Section 6.17. Subordinated Debt Rate Hedging Arrangements............96
Section 6.18. Syndication............................................96
Section 6.19. Capital Contribution Agreement.........................97
Section 6.20. Ericsson Tranche Y Loan................................97
Section 6.21. C-Block Subsidiaries and D-, E- and F-Block
Subsidiaries..........................................................97
Section 6.22. Wichita PCS and D&E/Omnipoint Intercompany Notes;
Overadvances..........................................................97
Section 6.23. Atlantic City BTA......................................97
ARTICLE VII
CERTAIN NEGATIVE COVENANTS OF THE BORROWER.................................97
Section 7.01. Restrictions on Indebtedness...........................98
Section 7.02. Restrictions on Liens..................................99
Section 7.03. No Contingent Obligations.............................101
Section 7.04. Restrictions on Investments...........................101
Section 7.05. Distributions.........................................104
Section 7.06. Merger, Consolidation, Disposition of Assets, Etc.....106
Section 7.07. Sale and Leaseback....................................110
Section 7.08. Compliance with Environmental Laws....................110
Section 7.09. Employee Benefit Plans................................110
Section 7.10. New Subsidiaries......................................111
Section 7.11. Transactions with Affiliates..........................111
Section 7.12. Permitted Business....................................113
Section 7.13. Charter Amendments....................................114
Section 7.14. Accounting Changes....................................114
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Section 7.15. Prepayments, Etc., of Indebtedness....................114
Section 7.16. Amendment, Etc., of Material Contracts................115
Section 7.17. Restrictions on Subsidiaries..........................115
Section 7.18. Partnerships..........................................115
Section 7.19. Default Under the Volume Purchase Agreement...........115
Section 7.20. Collections of Receivables............................115
Section 7.21. Management Fees.......................................115
Section 7.22. Operating Leases......................................116
Section 7.23. Restrictions Regarding License Subsidiaries...........116
ARTICLE VIII
CONDITIONS TO THE CLOSING.................................................116
Section 8.01. Terms and Conditions of Transaction...................116
Section 8.02. Due Diligence.........................................117
Section 8.03. Validity of Liens.....................................117
Section 8.04. Search Reports and Related Documents..................117
Section 8.05. Certificates of Insurance.............................118
Section 8.06. Solvency Certificate..................................118
Section 8.07. Opinions of Counsel to the Borrower and its
Subsidiaries.........................................................118
Section 8.08. Opinion of Counsel to the Parent......................118
Section 8.09. Opinion of FCC Counsel................................119
Section 8.10. Payment of Fees.......................................119
Section 8.11. Approvals, Permits; FCC Licenses......................119
Section 8.12. Delivery of Full-Term Operating Business Plan.........120
Section 8.13. Security Agreements...................................120
Section 8.14. Guaranties............................................121
Section 8.15. Mortgages, Etc........................................122
Section 8.16. Landlord Waivers, Attornment and Recognition
Agreements, Consents to Collateral Assignments.......................123
Section 8.17. Material Agreements...................................123
Section 8.18. Litigation............................................123
Section 8.19. Insurance Certificates................................124
Section 8.20. No Default............................................124
Section 8.21. No Material Adverse Effect............................124
Section 8.22. Corporate or Limited Liability Company Documents......124
Section 8.23. Intercreditor Agreement...............................126
Section 8.24. Capital Contribution Agreement........................126
Section 8.25. Amendment to Volume Purchase Agreement................126
Section 8.26. Management Services Agreement and Other
Agreements; Acknowledgement of Assignment............................126
Section 8.27. Interest..............................................127
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Section 8.28. No Misrepresentations.................................127
Section 8.29. Compliance Certificate................................128
Section 8.31. Other Information.....................................128
Section 8.32. Applications for Transfer of Ownership................128
ARTICLE IX
CONDITIONS TO ADVANCES....................................................128
Section 9.01. Conditions Precedent to an Initial Advance............128
Section 9.02. Conditions to All Advances............................129
ARTICLE X
EVENTS OF DEFAULT; ACCELERATION; ETC......................................131
Section 10.01. Events of Default and Acceleration...................131
ARTICLE XI
THE ADMINISTRATIVE AGENT..................................................136
Section 11.01. Authorization and Action.............................136
Section 11.02. Administrative Agent's Reliance, Etc.................136
Section 11.03. Nortel and Affiliates................................137
Section 11.04. Lender Credit Decision...............................138
Section 11.05. Indemnification......................................138
Section 11.06. Successor Administrative Agents......................138
ARTICLE XII
MISCELLANEOUS........................................................139
Section 12.01. Amendments, Etc......................................139
Section 12.02. Notices, Etc.........................................140
Section 12.03. No Waiver; Remedies..................................142
Section 12.04. Costs, Expenses......................................142
Section 12.05. Right of Set-off.....................................145
Section 12.06. Binding Effect.......................................145
Section 12.07. Assignments and Participations.......................145
Section 12.08. Governing Law........................................150
Section 12.09. Execution in Counterparts............................150
Section 12.10. Confidentiality......................................150
Section 12.11. Consent to Jurisdiction..............................151
Section 12.12. Matters Relating to the Collateral Agent.............151
Section 12.13. Amendments, Etc., to Intercreditor Agreement.........152
Section 12.14. Limitation of Liability..............................152
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Section 12.15. No Duty..............................................152
Section 12.16. No Fiduciary Relationship; No Agency
Relationship.........................................................153
Section 12.17. Waiver of Jury Trial.................................153
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Exhibits
Exhibit A-1 - Form of Facility A Note (Tranche 1)
Exhibit A-2 - Form of Facility A Note (Tranche 2)
Exhibit A-3 - Form of Facility B Note (Tranche 1)
Exhibit A-4 - Form of Facility B Note (Tranche 2)
Exhibit A-5 - Form of Facility B Note (Tranche 3)
Exhibit B - Form of Draw Request
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Form of Management Services Agreement and Form of
Assignment and Consent
Exhibit D-2 - Form of Operating Agreement and Form of Assignment and
Consent
Exhibit E-1 - Form of Borrower Security Agreement
Exhibit E-2 - Form of Parent Pledge Agreement
Exhibit E-3 - Form of C-Block Subsidiary Parent Pledge Agreement
Exhibit E-4 - Form of D-, E- and F-Block Subsidiary Parent Pledge Agreement
Exhibit E-5 - Form of Subsidiary Security Agreement
Exhibit F - Form of Real Estate Mortgage Option
Exhibit G-1 - Form of Subordination Agreement (Affiliate)
Exhibit G-2 - Form of Subordination Agreement (Non-Affiliate)
Exhibit H-1 - Form of Limited Recourse Parent Guaranty
Exhibit H-2 - Form of C-Block Subsidiary Parent Limited Recourse Guaranty
Exhibit H-3 - Form of D-, E- and F-Block Subsidiary Parent Limited Recourse
Guaranty
Exhibit H-4 - Form of Subsidiary Guaranty
Exhibit H-5 - Form of OC Guaranty
Exhibit I - Form of Intercreditor Agreement
Exhibit J - Form of Capital Contribution Agreement
Exhibit K - Form of Compliance Certificate
Exhibit L - Cash Management Agreement and Form of Assignment and
Consent
Exhibit M-1 - Form of Opinion Letter of Counsel to Borrower
Exhibit M-2 - Form of Opinion Letter of Counsel to Parent
Exhibit M-3 - Form of Opinion Letter of Counsel to OC
Exhibit M-4 Form of Opinion Letter of Counsel to C-Block Subsidiary Parent
Exhibit M-5 Form of Opinion Letter of Counsel to D-, E- and F- Block
Subsidiary Parent
Exhibit M-6 Form of Opinion Letter of Local Counsel to Operating Subsidiary
in Indiana
Exhibit M-7 Form of Opinion Letter of FCC Counsel to Borrower, Parent and
License Subsidiaries
Exhibit N - Form of Facility B Mirror Note
Exhibit O - Form of Intercompany Note
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Schedules
Schedule 1.01 - Designated BTAs
Schedule 1.01A - Certain Geographic Areas of Designated BTAs
Schedule 1.01B - Wichita Loan Facility and D&E Loan Facility Schedule
Schedule 1.01C - Excluded Purchases/Invoices $8.3 million for Denver &
Ephrata BTAs -- schedule to be provided]
Schedule 5.01(b) - Subsidiaries
Schedule 5.06 - Intellectual Property
Schedule 5.07 - FCC Licenses
Schedule 5.08 - Litigation
Schedule 5.25 - Environmental Matters
Schedule 5.27 - Material Contracts
Schedule 7.04 - Investments
Schedule 8.16 - Mortgaged Property
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LOAN AGREEMENT
This Loan Agreement (the "Agreement") is made as of January 30, 1998, by
and among (a) OMNIPOINT MIDWEST HOLDINGS, LLC, a Delaware limited liability
company (the "Borrower"), (b) the lenders listed on the signature pages hereof
and (c) NORTHERN TELECOM INC., a Delaware corporation ("Nortel"), as
administrative agent for the Lenders (together with any successor thereto
appointed pursuant to Section 11.06, the "Administrative Agent").
ARTICLE I
DEFINITIONS AND RULES OF INTERPRETATION
Section 1.01. Definitions.
Adjusted Debt. As of any date of determination, Total Debt less that
portion of Affiliate Subordinated Debt for which current interest is not payable
in cash prior to the final repayment of Facility A and Facility B.
Adjusted Net Income. For any period, Consolidated Net Income less (without
duplication) to the extent that any of the following shall have been included in
Consolidated Net Income for such period (i) any net gain or loss arising from
the sale of capital assets, (ii) any net gain or loss arising from any write-up
or write-down of assets, (iii) earnings or losses of any other Person,
substantially all of the assets of which have been acquired by the Borrower or a
Consolidated Subsidiary of the Borrower in any manner, to the extent that such
earnings or losses were realized by such other Person prior to the date of such
acquisition, (iv) earnings or losses of any Person (other than a Consolidated
Subsidiary of the Borrower) in which the Borrower or a Consolidated Subsidiary
has an ownership interest, unless such earnings have actually been received by
the Borrower or such Consolidated Subsidiary in the form of cash Distributions,
(v) any net gain or loss arising from the acquisition of any securities of the
Borrower or a Consolidated Subsidiary, and (vi) the accrued and unpaid portion
of expenses pursuant to the Expense Allocation Agreement.
Adjusted OCF. For any period, the sum of (i) OCF for such period plus (ii)
the aggregate amount of Marketing Expenses deducted in determining Consolidated
Net Income for such period.
Administrative Agent. Nortel or a financial institution acceptable to
Nortel as administrative agent, together with its successors or assigns.
Administrative Agent's Letter. That certain letter agreement dated the date
hereof between the Administrative Agent and the Borrower.
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Administrative Agent's Account. The account of the Administrative Agent
maintained by the Administrative Agent with The First National Bank of Chicago
at its office at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, for the
account of Northern Telecom, Account No. 0000000, ABA #000000000 (or such other
account as the Administrative Agent from time to time may specify).
Administrative Agent's Office. The Administrative Agent's office set forth
in Section 12.02 and, upon the appointment of a successor Administrative Agent
pursuant to Section 11.06, such address as shall be provided by such successor
Administrative Agent, or in either case such office as the Administrative Agent
from time to time may designate.
Advances. An advance by a Lender to the Borrower pursuant to Article II and
refers to a Base Rate Advance or a LIBOR Advance and a Facility A Advance or a
Facility B Advance.
Affiliate. As to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, control of a Person shall include
the power, direct or indirect, (a) to vote 50% or more of the securities or
other interests having ordinary voting power for the election of directors or
other managing Persons of such Person or (b) to direct or cause direction of the
management and policies of such Person whether by contract or otherwise.
Affiliate Subordinated Debt. Indebtedness of a Loan Party to an Affiliate
as to which the holder thereof has executed a subordination agreement
substantially in the form of the Subordination Agreement (Affiliate) attached
hereto as Exhibit G-1.
Agents. Collectively, the Administrative Agent and the Collateral Agent.
Annualized EBITDA. As of June 30, 2001, EBITDA for the two most recently
completed fiscal quarters multiplied by two. As of September 30, 2001, EBITDA
for the three most recently completed fiscal quarters multiplied by a fraction,
the numerator of which is 4 and the denominator of which is 3. As of any other
date of determination, EBITDA for the four most recently completed fiscal
quarters.
Applicable Lender. With respect to Facility A Loans, Facility A Lenders and
with respect to Facility B Loans, Facility B Lenders.
Applicable Lending Office. With respect to any Lender, for Base Rate Loans,
the office of such Lender specified as its domestic lending office and, for
LIBOR Loans, the office of such Lender specified as its LIBOR lending office, in
either case on the signature pages hereof or in the Assignment and Acceptance
pursuant to which it became a Lender, or such other offices of such Lender as
such Lender may from time to time specify to the Administrative Agent.
2
Applicable Margin. With respect to:
(a) any Facility A Advance that is:
(i) a Base Rate Advance, 3.00% per annum, and
(ii) a LIBOR Advance, 4.00% per annum, and
(b) any Facility B Advance that is:
(i) a Base Rate Advance, 1.25% per annum, and
(ii) a LIBOR Advance, 2.25% per annum;
provided, however, that the Applicable Margin with respect to
Facility B Advances as calculated above will increase by 2% per
annum on the sixth anniversary of the Closing Date and by an
additional 2% per annum on each anniversary of the Closing Date
thereafter (but shall in no event exceed the Maximum Lawful
Rate), and provided further, that the Applicable Margin for
Advances under Tranche 1 and Tranche 2 of Facility B as
calculated above shall increase by one percent (1%) per annum
from the Launch Date if the Network has not been placed in
Commercial Service in the Detroit BTA and Indianapolis BTA by the
Launch Date, until such time as the Network in those markets is
placed in Commercial Service. If one but not both the Detroit BTA
and Indianapolis BTA are in Commercial Service by the Launch
Date, the increase in the Applicable Margin, as applicable, shall
only apply with respect to an amount equal to the then-
outstanding principal balance of Facility B Advances multiplied
by (i) if the Detroit BTA is in Commercial Service by such date,
.30 and (ii) if the Indianapolis BTA is in Commercial Service by
such date, .70. Subject to the provisions of Section 2.12, if the
Network in the Detroit BTA and Indianapolis BTA has not been
placed in Commercial Service by the first anniversary of the
Launch Date, then the Applicable Margin with respect to the then
outstanding aggregate principal balance of all Facility B
Advances shall be the same as the Applicable Margin with respect
to Facility A Advances of the same Type.
Approved Annual Operating Business Plan. With respect to each fiscal year
of the Borrower, beginning with its fiscal year ending December 31, 1998, any
annual business operating plan delivered by the Borrower pursuant to Section
6.13(a) with respect to such fiscal year that shall have been approved by the
Required Lenders.
3
Approved Full-Term Operating Business Plan. Unless and until the Borrower
in its discretion shall have delivered to the Lenders a revised full-term
operating plan that the Required Lenders shall have approved, the full-term
operating plan delivered by the Borrower pursuant to Section 8.12, and
thereafter the most recent full-term operating plan delivered by the Borrower
that the Required Lenders shall have approved.
Assignment and Acceptance. An Assignment and Acceptance substantially in
the form of Exhibit C.
Atlantic City BTA. As defined in Section 6.23.
Availability. As of any date, the sum of (I) the amount by which the lesser
of (x) the Facility A Borrowing Base and (y) the Facility A Maximum Commitments
exceeds the outstanding Facility A Loans, and (II) the amount by which the
lesser of (x) the Facility B Borrowing Base and (y) the Facility B Maximum
Commitments exceeds the outstanding Facility B Loans.
Balance Sheet Date. December 31, 1997.
Base Rate. A fluctuating interest rate per annum in effect from time to
time, which rate per annum shall at any date of determination be equal to the
higher of:
(a) the rate of interest per annum announced publicly by Citibank N.A.
as its prime or base rate in effect on such date at its principal office in
New York City; and
(b) 1/2 of 1% per annum above the Federal Funds Rate on such date.
Base Rate Advance. A Facility A Advance or Facility B Advance bearing
interest calculated by reference to the Base Rate.
Base Rate Loans. Facility A Loans or Facility B Loans bearing interest
calculated by reference to the Base Rate.
Borrower. See the preamble hereto.
Borrower Security Agreement. See Section 8.13(a).
Breakage Costs. Any loss, cost or expense (including loss of anticipated
profit) that any Lender or the Administrative Agent may sustain or incur as a
consequence of (a) a default by the Borrower in payment of the principal amount
of any LIBOR Loans as and when due and payable, including such loss or expense
arising from interest or fees payable by such Lender or the Administrative Agent
to lenders of funds obtained by it in order to make its LIBOR Loans or (b) the
making of any payment of a LIBOR Loan on a day that is not the last day of the
applicable
4
Interest Period with respect thereto, including interest or fees payable by such
Lender or Administrative Agent to lenders of funds obtained by it in order to
maintain any such Loans.
BTA. Any "basic trading area" as on the Rand XxXxxxx 1992 Commercial
Atlas & Marketing Guide, 123rd Edition, and utilized by the FCC in dividing the
50 states, the District of Columbia and the United States territories into 493
BTAs for the purpose of licensing PCS Systems.
Business Day. Any day other than a Saturday, a Sunday or a day on which
commercial banks located in New York City are authorized or required by law or
other governmental action to close and, if the applicable Business Day relates
to any LIBOR Advance, a day on which dealings are not carried on in the London
interbank market.
Capital Contribution Agreement. See Section 8.24 hereof.
Capital Expenditures. Amounts paid or Indebtedness incurred by the
Borrower in connection with the purchase or lease by the Borrower of assets that
would be required to be capitalized and shown on the balance sheet of such
Person in accordance with GAAP.
Capital Lease Obligations. As to any Person, all outstanding Indebtedness,
obligations and liabilities of such Person incurred under Capitalized Leases.
Capitalized Leases. Leases, the discounted future rental-payment
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with GAAP.
Cash Equivalents. As to any Person, any Investments of such Person of the
types permitted under clauses (b), (c), (d) and (e) of Section 7.04 having a
maturity of not greater than 270 days from the date of acquisition thereof.
Cash Management Agreement. The Cash Management Agency Agreement dated as of
January 30, 1998 between Operations and OC.
C-Block FCC License. Any FCC License sold in the FCC's C-block auction.
C-Block Subsidiary. Each Subsidiary of the C-Block Subsidiary Parent that,
as of the date hereof, holds a C-Block FCC License listed in Part II of Schedule
1.01.
C-Block Subsidiary Parent. OPCS, LLC, a Delaware limited liability company,
together with its successors.
C-Block Subsidiary Parent Limited Recourse Guaranty. See Section 8.14(b).
5
C-Block Subsidiary Pledge Agreement. See Section 8.13(c).
CERCLA. The Comprehensive Environmental Response, Compensation and
Liability Act, as amended, 42 USCA Section 9601 et seq.
Change in Control. With respect to the Borrower, any change in ownership of
the Borrower resulting in less than fifty-one percent (51%) of the voting
control or Stock (excluding for this purpose debt securities or debt
instruments) of the Borrower being owned, directly or indirectly, by OC, and
with respect to any Operating Subsidiary or License Subsidiary, any change in
ownership resulting in less than one hundred percent (100%) of the voting
control or Stock (excluding for this purpose debt securities or debt
instruments) of such Subsidiaries being owned by the Borrower.
Closing Date. The meaning specified in the introductory clause of Article
VIII.
Collateral. All "Collateral" and "Pledged Collateral" referred to in the
Collateral Documents and all other property that is or is intended to be subject
to any Lien in favor of the Collateral Agent for the benefit of Secured Parties.
Collateral Agent. Chase Manhattan Trust Company, National Association, or
any successor thereto appointed pursuant to Section 6.1 of the Intercreditor
Agreement.
Collateral Documents. The Security Agreements, the Mortgages, the Parent
Pledge Agreement and any other agreement that purports to create a Lien in favor
of the Collateral Agent for the benefit of the Secured Parties.
Commercial Service. With respect to any portion of the Network, the time at
which that portion of the Network is carrying traffic for paying subscribers.
Commitment Fee. See Section 2.03.
Commitments. The Facility A Commitments and the Facility B Commitments.
Communications Act. The Communications Act of 1934, as amended, and the
rules and regulations issued thereunder, as from time to time in effect.
Confidential Information. Information that the Borrower or any of its
Affiliates furnishes to the Administrative Agent or any Lender in a writing
designated as confidential, but Confidential Information does not include any
such information that is or becomes generally available to the public or that is
or becomes available to the Administrative Agent or such Lender from a source
other than the Borrower or any of its Affiliates.
6
Consolidated. The consolidation of accounts in accordance with GAAP of the
Borrower and its Subsidiaries.
Consolidated Interest Expense. For any period, all interest on Indebtedness
of the Borrower and its Consolidated Subsidiaries paid in cash during such
period, including the interest portion of payments under Capital Lease
obligations, to the extent deducted in determining Adjusted Net Income
Consolidated Net Income. For any period, the net income (or loss) of the
Borrower and its Consolidated Subsidiaries for such period, determined on a
Consolidated basis in accordance with GAAP.
Contingent Obligation. As to any Person, any obligation of such Person
guaranteeing or in effect guaranteeing any Indebtedness, lease, dividend or
other obligation ("primary obligations") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including without
limitation, any obligation of such Person, whether or not contingent,
(a) to purchase any such primary obligation or any Property
constituting direct or indirect security therefor;
(b) to advance or supply funds
(i) for the purchase or payment of any such primary obligation,
or
(ii) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain net worth, solvency or other
financial statement condition of the primary obligor;
(c) to purchase Property, securities or services primarily for the
purpose of assuring the beneficiary or holder of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation; or
(d) otherwise to assure, protect from loss, or hold harmless the
beneficiary or holder of such primary obligation against loss in respect
thereof;
provided that the term "Contingent Obligation" shall not include the indorsement
of instruments for deposit or collection in the ordinary course of business.
Contributed Capital. For any period, the sum of (i) equity contributions
during such period (including equity contributed on or before the Closing Date
and that portion of the purchase price of the FCC Licenses for the Designated
BTAs which has theretofore been paid to the FCC in cash by or on behalf of the
respective License Subsidiaries as an equity contribution
7
in such License Subsidiary), plus (ii) the amount of cash proceeds of
Subordinated Debt received during such period, minus (iii) any Distributions
made during such period minus (iv) all cash interest paid on Subordinated Debt
during such period.
Convert, Conversion and Converted. A conversion of Advances of one Type
into Advances of the other Type pursuant to Section 2.05 or Section 2.06.
Core BTAs. All BTAs designated as "Core" on the attached Schedule 1.01 and
any other BTA whether or not so designated that has one million or more POPs.
Credit Facility. Collectively, Facility A and Facility B.
Currency Hedge Agreement. Any currency hedge or exchange agreement, option
or futures contract or other agreement intended to protect against or manage a
Person's exposure to fluctuations in currency exchange rates.
D&E Loan Facility. A loan facility in an amount to be agreed having
substantially the same terms as Facility A hereunder entered into by
D&E/Omnipoint within 180 days of the date of this Agreement.
Denver & Ephrata BTAs. BTA Nos. 000 (Xxxxxxxxx), 000 (Xxxx-Xxxxxxx), 181
(Harrisburg) and 370 (Reading).
D&E/Omnipoint. D&E/Omnipoint Wireless Joint Venture, L.P., a Delaware
limited partnership, and a Non-Qualified Joint Venture, the partners of which
are D&E Wireless, Inc. ("D&E Wireless"), a Pennsylvania corporation, owning a 1%
general partnership interest and a 49% limited partnership interest, Omnipoint
Venture Partners, LLC, a Delaware limited liability company, owning a 49%
general partnership interest, and Omnipoint Holdings, Inc., a Delaware
corporation, owning a 1% limited partnership interest.
D-, E- and F-Block Subsidiary. Each Subsidiary of the D-,E- and F-Block
Subsidiary Parent that, at the date hereof, holds an FCC License listed in Part
III of Schedule 1.01.
D-, E- and F-Block Subsidiary Parent. Omnipoint PCS Entrepreneurs Two, LLC,
a Delaware limited liability company, together with its successors and assigns.
D-, E- and F-Block Subsidiary Parent Limited Recourse Guaranty. See Section
8.14(c).
D-, E- and F-Block Subsidiary Pledge Agreement. See Section 8.13(d).
Default. Any Event of Default and any event or condition that, with the
giving of notice, the lapse of time, or both, would become an Event of Default.
8
Designated BTA. At any date:
(a) any BTA the FCC License for which is listed in Schedule 1.01 and
is held by a License Subsidiary as of such date, and
(b) any other BTA acceptable to the Required Lenders in writing, the
FCC License for which is held by a License Subsidiary as of such date.
Detroit BTA. BTA No. 112.
Distribution. Any of the following with respect to any Person:
(a) the declaration or payment of any cash dividend, dividend in kind
or cash equity distributions on or in respect of any shares of any class of
Stock of such Person, other than dividends payable solely in shares of
common Stock (or equivalent interests) of such Person;
(b) the purchase, redemption, or other retirement of any shares of any
class of Stock of such Person;
(c) the return of capital by such Person to its shareholders (or
holders of interests equivalent to shares) as such;
(d) any other distribution on or in respect of any shares or
equivalent interests of any class or series of Stock of such Person; or
(e) any payment of principal, premium or interest, or any other
amount, in respect of Subordinated Debt, excluding such payments made to
the Borrower by any of its Subsidiaries.
Dollars or $. Dollars in lawful currency of the United States of America.
Draw Request. See Section 2.02(a).
EBITDA. For any period, without duplication, the sum of the following for
the Borrower and its Consolidated Subsidiaries for such period determined on a
Consolidated basis in accordance with GAAP: (a) Adjusted Net Income, plus (b)
Consolidated Interest Expense, plus (c) income and franchise taxes to the extent
deducted in determining Adjusted Net Income, plus (d) depreciation and
amortization expense and other non-cash, non-tax items to the extent deducted in
determining Adjusted Net Income, minus (e) non-cash income (or losses) to the
extent included in determining Adjusted Net Income.
9
Employee Benefit Plan. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained or contributed to by any Loan Party or any
ERISA Affiliate, other than a Multiemployer Plan.
Environmental Laws. Any federal, state or local law, statute, rule or
regulation or common law relating to the environment or occupational health and
safety, including any statute, regulation or order pertaining to
(a) treatment, storage, disposal, generation and transportation of
industrial, toxic or hazardous substances or solid or hazardous waste;
(b) air, water or noise pollution;
(c) groundwater and soil contamination;
(d) the release or threatened release into the environment of
industrial, toxic or hazardous substances, or solid or hazardous waste,
including without limitation emissions, discharges, injections, spills,
escapes or dumping of pollutants, contaminants or chemicals;
(e) the protection of wildlife, marine sanctuaries and wetlands,
including without limitation all endangered and threatened species;
(f) underground and other storage tanks or vessels, abandoned,
disposed or discarded barrels, containers and other closed receptacles;
(g) health and safety of employees and other persons; and
(h) manufacture, processing, use, distribution, treatment, storage,
disposal, transportation or handling of pollutants, contaminants, chemicals
or industrial, toxic or hazardous substances or oil or petroleum products,
by-products or breakdown products or solid or hazardous waste,
including (i) CERCLA; (ii) RCRA; (iii) the Toxic Substance Control Act, as
amended, 15 USCA Section 2601 et seq.; (iv) the Water Pollution Control Act, as
amended, 33 USCA Section 1251 et seq.; (v) the Clean Air Act, as amended, 42
USCA Section 7401 et seq.; (vi) the Hazardous Material Transportation Act, as
amended, 49 USCA Section 1801 et seq.; (vii) the Superfund Amendments and
Reauthorization Act of 1986; and (viii) all rules, regulations, judgments,
decrees, injunctions and restrictions thereunder and any analogous state law. As
used above, the terms "release", "threatened release", "hazardous substance" and
"environment" shall have the meaning in CERCLA, and the terms "solid waste" and
"dispose" (or "disposal") shall have the meaning in the RCRA.
Environmental Permits. See (s)(s).5.25(d).
10
Equipment. As defined in the Volume Purchase Agreement.
Ericsson Tranche Y Loan. See Section 2.09(b)(i)(A)(I).
ERISA. The Employee Retirement Income Security Act of 1974, as amended, and
the rules and regulations issued thereunder as from time to time in effect.
ERISA Affiliate. Any Person that is treated as a single employer with the
Borrower under Section 414 of the IRC.
ERISA Event. With respect to any Loan Party or any ERISA Affiliate,
(a) a Reportable Event,
(b) the withdrawal of any Loan Party or any ERISA Affiliate from a
Plan during a plan year in which it was a "substantial employer" as defined
in Section 4001(a)(2) of ERISA,
(c) the filing of a notice of intent to terminate a Plan under a
distress termination of the Plan under Section 4041(c) of ERISA, or the
treatment of a Plan amendment as a termination under Section 4041 of ERISA,
(d) the institution of proceedings to terminate a Plan by the PBGC
under Section 4042 of ERISA, or
(e) occurrence of any other event or condition which might reasonably
be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan or
to cause the imposition of any liability (other than PBGC premiums due but
not delinquent under Section 4007 of ERISA) in excess of $250,000 under
Title IV of ERISA.
Event of Default. Any of the events specified in Section 10.01.
Event of Force Majeure. A fire, act of civil disobedience, riot, rebellion,
accident, explosion, flood, storm, Act of God, governmental action or similar
occurrence that is not reasonably foreseeable and beyond the reasonable control
of the OC and its Subsidiaries and that has the effect of preventing the
Borrower or one of its Subsidiaries from fulfilling any of its obligations under
this Agreement.
Excess Cash Flow. For any fiscal year, EBITDA for such fiscal year minus
(i) taxes payable in cash for such fiscal year, (ii) all principal and cash
interest payments on Indebtedness made during such fiscal year whether optional,
mandatory or scheduled payments, and (iii)
11
Capital Expenditures (but only to the extent paid in cash and not financed) made
during such fiscal year.
Excess Proceeds. With respect to any FCC License Transfer or any FCC
License Partition, the Net Cash Proceeds thereof, whether received at the time
of such sale or at any time thereafter, after deducting from such proceeds the
amount of any prepayment that becomes due as a result thereof and any
prepayments to other providers of vendor financing to the Borrower made as a
result thereof pursuant to provisions substantially the same as the applicable
provisions of this Agreement.
Expense Allocation Agreement. The Expense Allocation Agreement dated as of
January 30, 1998 among the Borrower, Operations and OC.
Facility A. A term facility that provides for Facility A Loans to the
Borrower on the terms and conditions herein.
Facility A Advances. See Section 2.01(a).
Facility A Borrowing Base. At any date:
(a) For Tranche 1 of Facility A, an amount equal to one hundred
percent (100%) of the dollar amount paid to Nortel for Nortel Goods and
Services (excluding interest which has accrued or is accruing on such
purchases) for any one or more of the Designated BTAs prior to or
concurrently with any Facility A Tranche 1 Draw Request.
(b) For Tranche 2 of Facility A,
(i) from the Closing Date, to but excluding December 31, 1998 an
amount equal to fifty percent (50%) of the sum of
(A) the dollar amount paid to Nortel for Nortel Goods and
Services (excluding interest which has accrued or is accruing on
such purchases) for any one or more of the Designated BTAs prior
to or concurrently with any Facility A Tranche 2 Draw Request,
plus
(B) the dollar amount of the Initial Purchase Order, plus
(C) the dollar amount of any other unfilled irrevocable
purchase orders (whether placed by the Borrower before or after
the Closing Date) for Nortel Goods and Services for any one or
more of the Designated BTAs accepted by Nortel for delivery on
Site and Scheduled for Installation in 1997 or 1998 or within
one hundred eighty (180) days of the
12
date of the Facility A Tranche 2 Draw Request and Scheduled for
Installation within twenty-one days (21) of delivery.
(ii) beginning on and after December 31, 1998 an amount equal
to fifty percent (50%) of the sum of
(A) the dollar amount paid to Nortel for Nortel Goods and
Services (excluding interest which has accrued or is accruing on
such purchases) for any one or more of the Designated BTAs prior
to or concurrently with any Facility A Tranche 2 Draw Request,
plus
(B) the dollar amount of any unfilled irrevocable purchase
orders (whether placed by the Borrower before or after the
Closing Date) for Nortel Goods and Services for any one or more
of the Designated BTAs accepted by Nortel for delivery on Site
within one hundred eighty (180) days of the date of Facility A
Tranche 2 Draw Request and Scheduled for Installation within
twenty-one, (21) days of delivery.
Facility A Borrowing Base Certificate. A certificate, in form and substance
satisfactory to the Administrative Agent, duly certified by the chief or
principal financial or accounting officer of the Borrower, stating the amount of
the Facility A Borrowing Base as of the date of such certificate and setting
forth in reasonable detail the calculation of the amount thereof.
Facility A Commitment. For any Facility A Lender at any date, the Facility
A Maximum Commitments as of such date, multiplied by such Facility A Lender's
Facility A Commitment Percentage as of such date, as the same may be reduced
from time to time pursuant to Section 2.11, Section 3.02 Section 3.03 or Section
10.01 or any other applicable section of this Agreement.
Facility A Commitment Percentage. For any Facility A Lender, the percentage
next to the heading "Facility A Commitment Percentage" opposite its name on the
signature pages hereof or on the Assignment and Acceptance, if such Lender has
entered into an Assignment and Acceptance pursuant to Section 12.07.
Facility A Commitment Termination Date. The earliest of (i) December 31,
2001, (ii) the date on which an aggregate of $315,000,000 has been advanced
pursuant to Facility A, (iii) the Facility A Maturity Date, or (iv) the
termination of the Facility A Commitments in their entirety pursuant to Section
2.11, Section 3.02, Section 3.03 or Section 10.01 or any other applicable
section of this Agreement.
Facility A Lender. Any Lender for which there is a percentage greater than
zero next to the heading "Facility A Commitment Percentage" opposite its name or
on the signature pages hereof or on the Assignment and Acceptance, if such
Facility A Lender has entered into an Assignment and Acceptance, pursuant to
Section 12.07.
13
Facility A Loan. A Loan consisting of simultaneous Facility A Advances of
the same Type made by the Facility A Lenders.
Facility A Maturity Date. The earliest of:
(a) December 31, 2006;
(b) the date of the acceleration of the Facility A Advances pursuant
to Section 10.01; and
(c) the date on which the entire Network is sold.
Facility A Maximum Commitments. At any date, an amount that is equal to:
(a) for Tranche 1 of Facility A,
(i) $315,000,000, minus
(ii) the dollar amount which equals .67 multiplied by the amount
listed on Schedule 1.01B, minus
(iii) the aggregate principal amount of the Facility A Advances
under Tranche 2 of Facility A at any time outstanding, minus
(iv) the aggregate amount by which the Facility A Maximum
Commitments for Tranche 1 of Facility A shall have been permanently
reduced pursuant to Section 2.11, Section 3.02, Section 3.03 or
Section 10.01 or any other applicable section of this Agreement on or
prior to such date.
(b) for Tranche 2 of Facility A,
(i) $105,000,000, minus
(ii) the dollar amount which equals .33 multiplied by the amount
listed on Schedule 1.01B, minus
(iii) the aggregate amount by which the Facility A Maximum
Commitments for Tranche 2 of Facility A shall have been permanently
reduced pursuant to Section 2.11, Section 3.02, Section 3.03 or
Section 10.01 or any other applicable section of this Agreement on or
prior to such date.
Facility B. A term facility that provides for Facility B Loans to the
Borrower on the terms and conditions herein.
14
Facility B Advances. See Section 2.01(b).
Facility B Borrowing Base. At any date,
(a) For Tranche 1 of Facility B,
(i) on and after April 1, 1998 until and excluding December 31,
1999, an amount equal to the lesser of
(A) $42,500,000 or
(B) fifty percent (50%) of the total of:
(1) the dollar amount of any unfilled irrevocable
purchase orders (whether placed by the Borrower before, on,
or after the Closing Date) for Nortel Goods and Services for
any one or more of the Designated BTAs accepted by Nortel
for delivery on Site and Scheduled for Installation in 1997
or 1998, plus
(2) the dollar amount paid by the Borrower for
purchases of Nortel Goods and Services in 1997 or 1998
(excluding interest which has accrued or is accruing on such
purchases) for any one or more of the Designated BTAs, the
Wichita BTAs and the Denver & Ephrata BTAs (exclusive of any
amounts paid for the Nortel Goods and Services listed on
Schedule 1.01C) prior to or concurrently with any Facility B
Tranche 1 Draw Request, plus
(3) the dollar amount of any unfilled irrevocable
purchase orders for Nortel Goods and Services for any one or
more of the Wichita BTAs and the Denver & Ephrata BTAs
(exclusive of those unfilled irrevocable purchase orders
referenced on Schedule 1.01C) accepted by Nortel for
delivery on Site and Scheduled for Installation in 1998.
(ii) on and after December 31, 1999 an amount equal to the
lesser of
(A) $42,500,000 or
(B) forty percent (40%) of
(1) the dollar amount paid to Nortel for Nortel Goods
and Services (excluding interest which has accrued or is
accruing on such purchases) for any one or more of the
Designated BTAs, the
15
Wichita BTAs or the Denver & Ephrata BTAs (exclusive of any
amounts paid for the Nortel Goods and Services listed on
Schedule 1.01C) prior to or concurrently with any Facility B
Tranche 1 Draw Request, plus
(2) the dollar amount of any unfilled irrevocable
purchase orders (whether placed by the Borrower before or
after the Closing Date) for Nortel Goods and Services for
any one or more of the Designated BTAs, the Wichita BTAs and
the Denver & Ephrata BTAs (exclusive of the unfilled
irrevocable purchase orders referenced on Schedule 1.01C)
accepted by Nortel for delivery on Site within 180 days and
Scheduled for Installation within twenty-one (21) days of
delivery.
(b) For Tranche 2 of Facility B,
(i) on and after January 1, 1999 to and excluding December 31,
1999, an amount equal to the lesser of
(A) $85,000,000 or
(B) fifty percent (50%) of the total of
(1) the dollar amount of unfilled irrevocable purchase
orders (whether placed by the Borrower before or after the
Closing Date) for Nortel Goods and Services for any one or
more of the Designated BTAs, the Wichita BTAs and the Denver
& Ephrata BTAs (exclusive of those unfilled irrevocable
purchase orders referenced on Schedule 1.01C) accepted by
Nortel for delivery on Site and Scheduled for Installation
in 1997, 1998 or 1999 plus
(2) the actual dollar amount paid for purchases of
Nortel Goods and Services in 1997, 1998 or 1999 (excluding
interest which has accrued or is accruing on such purchases)
for any one or more of the Designated BTAs, the Wichita BTAs
and the Denver & Ephrata BTAs (exclusive of any amounts paid
for the Nortel Goods and Services listed on Schedule 1.01C)
prior to or concurrently with any Facility B Tranche 2 Draw
Request.
less, in either case (A) or (B), the dollar amount advanced under Tranche 1
of Facility B (without giving effect to any prepayments or repayments).
16
(ii) on and after December 31, 1999 an amount equal to the
lesser of
(A) $85,000,000 or
(B) forty percent (40%) of
(1) the dollar amount paid to Nortel for Nortel Goods
and Services (excluding interest which has accrued or is
accruing on such purchases) for any one or more of the
Designated BTAs, the Wichita BTAs and the Denver & Ephrata
BTAs (exclusive of any amounts paid for the Nortel Goods and
Services listed on Schedule 1.01C) prior to or concurrently
with any Facility B Tranche 2 Draw Request, plus
(2) the dollar amount of any unfilled irrevocable
purchase orders (whether placed by the Borrower before or
after the Closing Date) for Nortel Goods and Services for
any one or more of the Designated BTAs, the Wichita BTAs and
the Denver & Ephrata BTAs (exclusive of the unfilled
irrevocable purchase orders referenced on Schedule 1.01C)
accepted by Nortel for delivery on Site within 180 days and
Scheduled for Installation within twenty-one (21) days of
delivery.
less, in either case (A) or (B), the dollar amount advanced under
Tranche 1 of Facility B (without giving effect to any prepayments or
repayments, except to the extent of a mandatory prepayment of Facility
B Loans made on or prior to December 31, 1999 required as a result of
borrowings in excess of the Facility B Borrowing Base pursuant to
Section 3.02(d)).
(c) For Tranche 3 of Facility B, an amount equal to the amount of
interest which has accrued on Tranches 1, 2 and 3 of Facility B through
March 31, 2004.
Facility B Borrowing Base Certificate. A certificate, in form and substance
satisfactory to the Administrative Agent, duly certified by the chief or
principal financial or accounting officer of the Borrower, stating the amount of
the Facility B Borrowing Base as of the date of such certificate and setting
forth in reasonable detail the calculation of the amount thereof.
Facility B Commitment. For any Facility B Lender at any date, the Facility
B Maximum Commitments as of such date, multiplied by such Facility B Lender's
Facility B Commitment Percentage as of such date, as the same may be reduced
from time to time pursuant to Section 2.11, Section 2.12, Section 3.02, Section
3.03 or Section 10.01 or any other applicable section of this Agreement.
17
Facility B Commitment Percentage. For any Facility B Lender, the percentage
next to the heading "Facility B Commitment Percentage" opposite its name on the
signature pages hereof or on the Assignment and Acceptance, if such Lender has
entered into an Assignment and Acceptance pursuant to Section 12.07.
Facility B Commitment Termination Date: (a) With respect to Tranches 1 and
2 of Facility B, the earliest of (i) December 31, 2001 (ii) the first date
after December 31, 1999, on which an aggregate of $85,000,000 has been advanced
under Tranches 1 and 2 of Facility B, (iii) the Facility B Maturity Date, or
(iv) the termination of the Facility B Commitments in their entirety pursuant to
Section 2.11, Section 2.12, Section 3.02, Section 3.03 or Section 10.01 or any
other applicable section of this Agreement; (b) With respect to Tranche 3 of
Facility B, the earliest of (i) Xxxxx 00, 0000, (xx) the date on which an
aggregate of $80,000,000 has been advanced under Tranche 3 of Facility B, (iii)
the Facility B Maturity Date, or (iv) the termination of the Facility B
Commitments in their entirety pursuant to Section 2.11, Section 2.12, Section
3.02, Section 3.03 or Section 10.01 or any other applicable section of this
Agreement.
Facility B Initial Mandatory Payment Date. Any date (other than the
Facility B Maturity Date) on which Facility B Loans would be required to be paid
or prepaid in full in accordance with Section 3.02(d), or 3.02(e) or any other
applicable section of this Agreement but for provisions thereof pertaining to
any limitation imposed by Section 2.07(b)(VIII) on payments by delivery of OC
Common Stock, including any Initial Payment Date (as defined in Section
3.02(e)).
Facility B Lender. Any Lender for which there is a percentage greater than
zero next to the heading "Facility B Commitment Percentage" opposite its name or
osignature pages hereof or on the Assignment and Acceptance if such Lender has
entered into an Assignment and Acceptance pursuant to Section 12.07.
Facility B Loan. A Loan consisting of simultaneous Facility B Advances made
by the Facility B Lenders.
Facility B Maturity Date. The earliest of:
(a) Xxxxx 00, 0000,
(x) the date of the acceleration of the Facility B Advances pursuant
to Section 10.01, and
(c) the date on which the entire Network is sold.
Facility B Maximum Commitments. At any date, an amount that is equal to:
(a) For Tranche 1 of Facility B,
18
(i) $42,500,000, minus
(ii) the aggregate amount by which the Facility B Maximum
Commitments for Tranche 1 of Facility B shall have been permanently
reduced pursuant to Section 2.11, Section 2.12, Section 3.02, Section
3.03 or Section 10.01 or any other applicable section of this
Agreement on or prior to such date;
(b) For Tranche 2 of Facility B,
(i) $85,000,000, minus
(ii) the aggregate principal amount of the Facility B Advances
under Tranche 1 of Facility B at anytime outstanding, minus
(iii) the aggregate amount by which the Facility B Maximum
Commitments for Tranche 2 of Facility B shall have been permanently
reduced pursuant to Section 2.11, Section 2.12, Section 3.02, Section
3.03 or Section 10.01 or any other applicable section of this
Agreement on or prior to such date;
(c) For Tranche 3 of Facility B,
(i) the lesser of (I) $80,000,000 and (II) the amount of interest
that has accrued on the aggregate outstanding principal balance of
Tranche 1 and Tranche 2 of Facility B through March 31, 2004, plus
accrued and unpaid interest on the outstanding principal balance of
Tranche 3 of Facility B through March 31, 2004, minus
(ii) the aggregate amount by which the Facility B Maximum
Commitments for Tranche 3 of Facility B shall have been permanently
reduced pursuant to Section 2.11, Section 2.12, Section 3.02, Section
3.03 or Section 10.01 or any other applicable section of this
Agreement on or prior to such date.
Facility B Mirror Note. See Section 7.04(i).
Facility B Notice Date. See Section 2.07(b)(II).
FASB. The Financial Accounting Standards Board and its predecessors.
FCC. The Federal Communications Commission or any Governmental Body
succeeding to the functions thereof.
FCC Debt. Amounts owing to the FCC with respect to the deferred purchase
price for FCC Licenses.
19
FCC License(s). Licenses issued by the FCC for the provision of broadband
mobile personal communications services.
FCC License Partition. A sale, transfer or other disposition of the right
to provide PCS services to POPs within a geographic area specified in Schedule
1.01A (as the same may be supplemented from time to time by agreement of the
Borrower and the Required Lenders) that is within a Designated BTA.
FCC License Transfer. Any sale, assignment or other transfer of any FCC
License in its entirety or any Stock of a License Subsidiary, each as permitted
in Section 7.06(b) , other than any such transfer to a Qualified Joint Venture
permitted under Section 7.06(b)(iii)(C).
Federal Funds Rate. The fluctuating interest rate per annum equal for each
day during such period to the weighted average of the rates on overnight
federal-funds transactions with members of the Federal Reserve System arranged
by federal-funds brokers, as published for such day (or, if such day is not a
Business Day, for the next-preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a Business
Day, the average of the quotations for such day on such transactions received by
the Administrative Agent from three federal-funds brokers of recognized standing
selected by it.
First Optional Payment Date. With respect to any calendar month, the
second Trading Day after the fifth day of such calendar month (or if such day is
not a Trading Day, the next following Trading Day).
Fiscal Quarter. A fiscal quarter of the Borrower and its Consolidated
Subsidiaries.
GAAP. See Section 1.03.
Governmental Body. Any nation or government, any state or other political
subdivision thereof, 0any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government and any
court or arbitrator.
Gross Revenues. For any period, gross revenues, determined on a
Consolidated basis, of the Borrower and its Subsidiaries determined in
accordance with GAAP for such period.
GSM. Global standard for mobile communications designed to ensure
interoperability of digital telephony service.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA that is maintained or contributed to by any
Loan Party or any ERISA Affiliate or that was so maintained or contributed to
and in respect of which the Borrower or any ERISA Affiliate could have liability
under Section 4064 or 4069 of ERISA in the event that such plan has
20
been or were to be terminated the benefits of which are guaranteed on
termination in full or in part by the PBGC pursuant to Title IV of ERISA, other
than a Multiemployer Plan.
Guaranties. At any date, any Limited Recourse Parent Guaranty, Subsidiary
Guaranty, C-Block Subsidiary Parent Limited Recourse Guaranty, D-, E- and F-
Block Subsidiary Parent Limited Recourse Guaranty or the OC Guaranty theretofore
delivered by any Person that shall not have been terminated or released in
accordance with its terms.
Guarantors. At any date, any Person that shall have delivered a Guaranty
that shall not have been terminated and released in accordance with its terms.
Indebtedness. As to any Person at any time (without duplication): (a) all
indebtedness, liabilities and obligations of such Person for borrowed money, (b)
all indebtedness, liabilities and obligations of such Person evidenced by bonds,
notes, debentures, or other similar instruments, (c) all indebtedness,
liabilities and obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable of such Person arising in
the ordinary course of business that are not past due by more than 90 days, (d)
all Capital Lease Obligations of such Person, (e) all Indebtedness of others
guaranteed by such Person, (f) all indebtedness, liabilities and obligations
secured by a Lien existing on property owned by such Person, whether or not the
indebtedness, liabilities or obligations secured thereby have been assumed by
such Person or are non-recourse to such Person (other than carriers',
warehousemen's, mechanics', repairmen's or other like non-consensual liens
arising in the ordinary course of business), (g) all reimbursement obligations
of such Person (whether contingent or otherwise) in respect of letters of
credit, bankers' acceptances, surety or other bonds and similar instruments, (h)
all indebtedness, liabilities and obligations of such Person to redeem or retire
shares of capital Stock of such Person, (i) all indebtedness, liabilities and
obligations of such Person under Interest Rate Protection Agreements or Currency
Hedge Agreements, and (j) all indebtedness, liabilities and obligations of such
Person in respect of unfunded vested benefits under any pension plan.
Indianapolis BTA. BTA No. 204.
Initial Purchase Order. The unfilled amount of the irrevocable purchase
order for Nortel Goods and Services placed by the Borrower on or prior to the
Closing Date in an amount of at least $50,000,000 (or such amount as may be
agreed) accepted by Nortel scheduled for delivery on Site and Scheduled for
Installation during 1998 within the Designated BTAs.
Intercompany Note. A promissory note evidencing intercompany debt in
substantially the form of Exhibit O.
Intercreditor Agreement. See Section 8.23.
Interest Period. For each LIBOR Advance comprising part of the same Loan,
the period commencing on the date of such LIBOR Advance or the date of the
Conversion of any Base Rate
21
Advance into such LIBOR Advance and ending on the last day of such period,
determined as provided below, and, thereafter, each subsequent period commencing
on the last day of the immediately preceding Interest Period and ending on the
last day of such period, determined as provided below. At the election of the
Borrower, the duration of each such Interest Period shall be one month, two
months, three months or six months; provided that:
(a) whenever the last day of any Interest Period would otherwise occur
on a day other than a Business Day, the last day of such Interest Period
shall be extended to occur on the next-succeeding Business Day; provided
that, if such extension would cause the last day of such Interest Period to
occur in the next-following calendar month, the last day of such Interest
Period shall occur on the next-preceding Business Day,
(b) whenever the first day of any Interest Period occurs on a day of
an initial calendar month for which there is no numerically corresponding
day in the calendar month for the appropriate following calendar month
(one, two, three or six months later), such Interest Period shall end on
the last Business Day of such appropriate following calendar month, and
(c) the Borrower may not have more than three Interest Periods in
effect at any one time.
Interest Rate Protection Agreements. With respect to the Borrower, an
interest rate swap, cap or collar agreement or similar arrangement between the
Borrower and one or more Lenders or a Permitted Counterparty providing for the
transfer or mitigation of interest rate risks either generally or under
specified contingencies.
Investments. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of capital Stock or Indebtedness
of, or for loans, advances, capital contributions or transfers of property to,
or in respect of any guaranties (or other commitments as described under
Contingent Obligations), or obligations of, any Person. In determining the
aggregate amount of Investments outstanding at any particular time:
(a) the amount on any date of determination of any Investment
represented by a Contingent Obligation shall be taken at not less than the
principal amount of the obligations as to which such Contingent Obligation
exists and that are still outstanding on such date of determination;
(b) there shall be included as an Investment all interest accrued with
respect to Indebtedness constituting an Investment unless and until such
interest is paid;
(c) there shall be deducted in respect of each such Investment any
amount received as a return of capital (but only by repurchase, redemption,
retirement, repayment, liquidating dividend or liquidating distribution);
22
(d) there shall not be deducted in respect of any Investment any
amounts received as earnings on such Investment, whether as dividends,
interest or otherwise, except that accrued interest included as provided in
the foregoing clause (b) may be deducted when paid;
(e) there shall not be deducted from the aggregate amount of
Investments any decrease in the value thereof; and
(f) there shall be included as an Investment (i) each receivable
(other than with respect to sales of handsets and accessories thereto) that
is payable more than three months following the date of the sale giving
rise thereto and (ii) each receivable with respect to sales of handsets and
accessories thereto that is payable more than six months following the date
of the sale giving rise thereto.
IRC. The Internal Revenue Code of 1986, as amended from time to time, and
the rules and regulations issued thereunder as from time to time in effect.
Launch Date. Unless extended pursuant to the following sentence, June 30,
1999. The Launch Date for each market will be extended by a number of days
equal to the number of days by which the Borrower is delayed in construction of
that market by Events of Force Majeure or by the failure of Nortel to comply
with the terms of the Volume Purchase Agreement.
Lender. Nortel, and each of the banks or other lending institutions which
is a party hereto (as evidenced by the signature pages of this Agreement) or
which may from time to time become a party hereto or any successor assignee
thereof by reason of an Assignment and Acceptance in accordance with Section
12.07 hereof.
LIBOR. For any applicable Interest Period, a simple per annum interest rate
(rounded upward, if necessary, to the nearest 1/100th of one percent) equal to
(a) (i) the rate per annum that appears on Page 3750 of the Dow Xxxxx
& Company Telerate screen or any successor page as the composite offered
rate for London interbank deposits, in an amount approximately equal to the
amount of the requested Loan for the time period corresponding to the
requested Interest Period relating to such requested Loan, as shown under
the heading "USD" as of 11:00 a.m. (London time), two Business Days before
the first day of such Interest Period, or
(ii) if the rate specified in clause (i) cannot be determined,
the rate per annum equal to the arithmetic mean of the rates shown on
the LIBOR page of Reuters Money Service at approximately 11:00 a.m.
(London time), two Business Days before the first day of such Interest
Period in an amount approximately equal to the amount of the requested
Loan, divided by
23
(b) one, minus the LIBOR Reserve Rate, stated as a decimal.
LIBOR Advance. A Facility A Advance or Facility B Advance bearing interest
calculated by reference to LIBOR.
LIBOR Business Day. Any Business Day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London.
LIBOR Loans. Loans bearing interest calculated by reference to LIBOR.
LIBOR Reserve Rate. For any Interest Period for all LIBOR Advances
comprising part of the same Loan, the reserve percentage applicable two Business
Days before the first day of such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference to which
the interest rate on LIBOR Advances is determined) having a term equal to such
Interest Period.
License Subsidiary. At any date, each Wholly-Owned Subsidiary of the
Borrower, each C-Block Subsidiary and each D-, E- and F-Block Subsidiary which
holds an FCC License for any of the Designated BTAs, other than any C-Block
Subsidiary or D-, E- and F-Block Subsidiary the pledge of the shares or units of
Stock of which shall have been released pursuant to the applicable Security
Agreement.
Lien. Any mortgage, pledge, hypothecation, assignment, deposit or
preferential arrangement, encumbrance, lien (statutory or other), or other
security agreement or security interest of any kind or nature whatsoever,
including any conditional sale or other title retention agreement and any
Capitalized Lease or other financing lease having substantially the same
economic effect as any of the foregoing.
Limited Recourse Parent Guaranty. See Section 8.14(a).
Loan. A Facility A Loan or a Facility B Loan.
Loan Documents. This Agreement, the Notes, the Collateral Documents, the
Guaranties, the Subordination Agreements, including, without limitation, the
Subordination Agreement among OC, the Borrower and Operations, the Capital
Contribution Agreement, the Administrative Agent's Letter, any mortgage or deed
of trust entered into pursuant to Section 6.15 and any other agreements or
documents contemplated hereby or thereby and all schedules, exhibits and annexes
thereto.
24
Loan Parties. Collectively, the Borrower, OC, the Parent and each other
Guarantor.
Management Services Agreement. The Services Agreement between OCSI and
Operations substantially in the form of Exhibit D-1.
Market Price. For any Trading Day and any share of OC Common Stock:
(a) if OC Common Stock is listed or admitted to trading on any
securities exchange, the closing price, regular way, per share on such day
on the principal securities exchange on which OC Common Stock is traded;
and
(b) if OC Common Stock is not then listed or admitted to trading on
any securities exchange but is traded on the NASDAQ - National Association
of Securities Dealers Automated Quotation system, the average of the
closing bid and asked prices per share for OC Common Stock on such day on
such system.
If OC Common Stock is not listed on any securities exchange or traded on such
system the Market Price of OC Common Stock shall be deemed to be indeterminable.
Marketing Expenses. With respect to any period, the sales and marketing
expenses of the Borrower and its Subsidiaries for such period, including,
without limitation, any such expenses incurred during such period in respect of
sales literature and advertising, promotions; subscriber acquisition services;
amounts allocable during such period to marketing expenses in respect of travel,
entertainment, sales training, office expenses and research, and compensation
and commissions in connection with the foregoing activities, if any; and the
difference (if negative) between revenues from sales of handsets during such
period and the cost of such handsets, as determined on a basis consistent with
the Borrower's accounting methods that are consistent with GAAP.
Material Adverse Effect. An effect resulting from any circumstance, event,
or development of whatever nature (including any adverse determination in any
litigation) that has had or could reasonably be expected to have a material
adverse effect on (i) the business, assets, financial condition, results of
operations or prospects of the Borrower and its Subsidiaries taken as a whole,
(ii) the validity or enforceability of any of the Loan Documents or the rights
and remedies of the Collateral Agent, the Administrative Agent and the Lenders
thereunder, (iii) the ability of any Loan Party to perform its obligations under
any Loan Document to which it is a party, or (iv) the value of Collateral
available to the Administrative Agent and the Lenders after giving effect to
Liens in favor of other parties.
Material Contract. With respect to any Person, each contract to which such
Person is a party involving aggregate consideration payable to or by such Person
of $5,000,000 or more in any 12-month period or otherwise material to the
business, condition (financial or otherwise), operations, performance,
properties or prospects of such Person.
25
Materials of Environmental Concern. Any chemicals, pollutants or
contaminants, hazardous substances (as such term is defined under CERCLA), solid
wastes and hazardous wastes (as such terms are defined under the RCRA), toxic
materials, oil or petroleum and petroleum products, by products or breakdown
products or any other material subject to regulation under any Environmental
Laws.
Maturity Date. With respect to Facility A Advances, the Facility A Maturity
Date and with respect to Facility B Advances, the Facility B Maturity Date.
Maximum Amount. As defined in Section 1 of the Capital Contribution
Agreement.
Maximum Lawful Rate. As to any Lender, the maximum rate of interest, if
any, that at any time or from time to time may be contracted for, taken, charged
or received by such Lender on the Notes held thereby, as the case may be,
pursuant to this Agreement and the other Loan Documents under the laws
applicable to such Lender and the transactions contemplated by this Agreement.
MB Holdings. See Section 2.09(b)(i)(A)(I).
MB Loan Agreement. See Section 2.09(b)(i)(A)(I).
Measurement Period. As defined in Section 2.03.
Mortgages. See Section 8.15.
MTA. Any "major trading area" as on the Rand XxXxxxx 1992 Commercial Atlas
& Marketing Guide, 123rd Edition, at pages 38-39 and utilized by the FCC in
dividing the 50 states, the District of Columbia and United States territories
into 51 MTAs for the purpose of licensing PCS Systems.
Multiemployer Plan. A "multiemployer plan" as defined in Sections
4001(a)(3) and 3(37) of ERISA, and to which any Loan Party or any ERISA
Affiliate is making, or is obligated to make, contributions or has made, or been
obligated to make, contributions.
Necessary Authorizations. All approvals and licenses from, and all filings
and registrations with, any governmental or other regulatory authority,
including each FCC License held by a License Subsidiary and all grants,
approvals, licenses, filings and registrations under the Communications Act,
necessary in order to enable the Borrower and its Subsidiaries to own,
construct, maintain and operate PCS Systems.
Net Cash Proceeds. With respect to any transaction by any Person, the
aggregate amount of cash received from time to time by or on behalf of such
Person in connection with such transaction, after deducting therefrom only
26
(a) reasonable and customary brokerage commissions, underwriting fees
and discounts, legal fees, finder's fees and other similar fees and
commissions, and
(b) the amount of taxes payable in connection with or as a result of
such transaction,
in each case to the extent, but only to the extent, that the amounts so deducted
are, at the time of receipt of such cash, actually paid to a Person that is not
an Affiliate of the Borrower and are properly attributable to such transaction
or to the asset that is the subject thereof.
Net Income. For any period, net income (or loss), determined on a
Consolidated basis, of the Borrower and its Subsidiaries determined in
accordance with GAAP for such period.
Network. The PCS Systems being constructed in all of the Designated BTAs.
Non-Affiliate Subordinated Debt. Indebtedness of a Loan Party to a
non-Affiliate as to which the holder thereof has executed a subordination
agreement substantially in the form of the Subordination Agreement
(Non-Affiliate) attached hereto as Exhibit G-2.
Non-Qualified Joint Venture. Any Person that fails to satisfy the
definition of a Wholly Owned Subsidiary or a Qualified Joint Venture.
Nortel. As defined in the preamble hereof.
Nortel Goods and Services. Sales, installation and commissioning of Nortel
PCS Equipment and related software, and RF or site engineering, project
management, network design, and services performed by Nortel personnel. Nortel
Goods and Services includes OEM products which are verified by (and effectuated
by purchase orders accepted by) Nortel, but excludes pass-through services (as
indicated on acceptance notices from Nortel) and handsets.
Notes. The Notes substantially in the forms of Exhibit A-1 through A-5
issued by the Borrower hereunder.
Obligations. All Indebtedness, obligations and liabilities of the Borrower
to the Administrative Agent and the Lenders, arising or incurred under this
Agreement or any of the other Loan Documents or in respect of any of the Loans
made or any of the Notes or other instruments at any time evidencing any
thereof, or under Permitted Hedging Arrangements to the extent that the
counterparty thereof is a Lender, existing on the date of this Agreement or
arising thereafter, direct or indirect, joint or several, absolute or
contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise.
OC. Omnipoint Corporation, a Delaware corporation, together with its
successors.
27
OC Common Stock. The common stock, par value $0.01 per share, of OC and its
successors.
OC Debt Default. With respect to any Indebtedness of OC in a principal
amount of $10 million or more, an event or circumstance which occurs that
constitutes (i) a default (other than a monetary default (an "OC Unmatured
Default")) which is not cured or waived within 180 days, (ii) a monetary
default, or (iii) acceleration of such Indebtedness.
OC Guaranty. See Section 8.14(e).
OC Unmatured Default. As defined in the definition of OC Debt Default.
OCF. For any period, the sum of (a) Adjusted Net Income for such period,
plus (b) all amounts in respect of depreciation and amortization for such
period, plus (c) Consolidated Interest Expense for such period, plus (d) the
amount of any taxes deducted in determining the Consolidated Net Income for such
period.
OCI. Omnipoint Communications Inc., a Delaware corporation, together with
its successors.
OCSI. Omnipoint Communication Services, LLC, a Delaware limited liability
company, together with its successors.
Operating Lease Obligations. As to any Person, the outstanding
Indebtedness, obligations and liabilities of such Person incurred under leases
that are not Capitalized Leases.
Operating Subsidiary. Each Wholly-Owned Subsidiary of the Borrower which
owns or will own the equipment for, and will construct and operate the PCS
Systems in one or more of the Designated BTAs.
Operations. Omnipoint Communications Midwest Operations, LLC, a Delaware
limited liability company, together with its successors.
Other Taxes. See Section 4.03(b).
Overadvance. See Section 2.01(a).
Parent. OPCS Two, LLC, a Delaware limited liability company, together with
its successors.
Parent Pledge Agreement. See Section 8.13(b).
28
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002 of
ERISA, or any Governmental Body succeeding to the functions thereof.
PCS. The business of providing mobile communications services through the
use of microcells on microwave broadband frequencies with numerous low-power
transmitters, each serving a small area, but excluding cellular telephone
services.
PCS System. A PCS radio-telephone system constructed and operated pursuant
to an FCC License therefor held by a License Subsidiary.
Permitted Counterparty. A Person that is rated in one of the three highest
rating categories of Standard and Poors Corporation or Xxxxx'x Investors
Service, Inc.
Permitted Hedging Arrangements. Interest Rate Protection Agreements and
Currency Hedge Agreements, provided that each counterparty shall be a Lender or
a Permitted Counterparty, and provided that the maximum amount for which
interest may be fixed or capped under all such Interest Rate Protection
Agreements may not exceed one hundred percent (100%) of the Indebtedness of the
Borrower and its Subsidiaries, and provided further, however, that the maximum
amount of currency for which risk may be hedged under a Currency Hedge Agreement
may not exceed one hundred percent (100%) of the foreign currency at risk in the
transactions in which the Borrower and its Subsidiaries are engaged.
Permitted Liens. See Section 7.02.
Permitted Loan Agreement. As defined in the Intercreditor Agreement.
Permitted Third-Party Expenses. With respect to the Designated BTAs, (i)
amounts paid to vendors of equipment for the construction of the Network,
including Nortel, (ii) Network site acquisition costs excluding any lease costs,
and (iii) microwave relocation costs associated with construction of the
Network, whether paid directly or reimbursed to third parties who previously
performed the relocation, not to exceed $25,000,000 in the aggregate.
Person. Any natural person, corporation, firm, joint venture, limited
liability company, partnership, association, enterprise, trust or other entity
or organization, or any government or political subdivision or any agency,
department or instrumentality thereof.
Plan. With respect to any Loan Party or any ERISA Affiliate, at any time,
an employee pension benefit plan as defined in Section 3(2) of ERISA (other than
a Multiemployer Plan) that is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the IRC and
(a) is maintained for the employees of the Borrower or any ERISA
Affiliate, or
29
(b) was so maintained and in respect of which the Borrower or any
ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in
the event that such plan has been or were to be terminated.
POPs. As of any date and with respect to any particular BTA or MTA or any
geographic area included therein, the population of such BTA or MTA according to
the 1990 census of the United States conducted by the United States Census
Bureau.
Property. All types of real, personal, tangible, intangible or mixed
property, including each FCC License held by a License Subsidiary.
QJV Amount. The greater of (I) $15,000,000 or (II) $40,000,000 minus the
sum of (i) (x) prior to the closing date of the Wichita Loan Facility, the
aggregate outstanding Dollar amount of Investments of the Borrower in Wichita
PCS pursuant to Section 7.04(l) and (y) on and after the closing date of the
Wichita Loan Facility, the amount on Schedule 1.01B relating to the committed
amounts under the Wichita Loan Facility and (ii) (x) prior to the closing date
of the D&E Loan Facility , the aggregate outstanding Dollar amount of
Investments of the Borrower in D&E/Omnipoint pursuant to Section 7.04(l) and (y)
on and after the closing date of the D&E Loan Facility the amount on Schedule
1.01B relating to the committed amounts under the D&E Loan Facility.
Qualified Joint Venture. An entity in which the Borrower or a Wholly Owned
Subsidiary of the Borrower (a) owns fifty percent (50%) or more of the economic
interest and at least fifty and one-tenth percent (50.1%) of the voting
interest; (b) the balance of the economic and voting interests are not owned by
Parent, OC or any of their respective Subsidiaries or Affiliates, (c) the
Borrower has the right by contract to manage, and does manage, the operations of
the entity; and (d) the charter agreement governing the entity prohibits all
Distributions to venture partners other than the Borrower except if such a
Distribution could have been made to the Borrower pursuant to (S) 7.05 hereof;
and such entity has guaranteed the obligations of the Borrower under the Credit
Facility, and the assets of and ownership interest in, such entity have been
pledged as security for the performance of the obligations of the Borrower under
the Credit Facility.
RCRA. The Resource Conservation and Recovery Act of 1976, as amended, 42
USCA Section 6901 et seq.
Real Estate. Any parcel of real property or any facility currently (or for
purposes of compliance with Environmental Laws, formerly) owned, operated or
controlled by the Borrower or any of its Subsidiaries.
Register. See Section 12.07(c).
Registered Note Register. See Section 12.07(h).
30
Registered Notes. See Section 2.10(b).
Remaining Amount. At any date, that portion of the Maximum Amount that
remains unpaid by OC pursuant to the Capital Contribution Agreement.
Reportable Event. occurrence of any of the events in Section 4043(c) of
ERISA or the regulations thereunder with respect to a Plan.
Required Lenders. At any date, the Lenders holding two-thirds in dollar
amount of the outstanding Loans, or if no Loans are outstanding, two-thirds in
dollar amount of the Commitments (whether or not such Commitments have been
terminated or cancelled).
Scheduled for Installation. As defined in the Volume Purchase Agreement.
Second Optional Payment Date. With respect to any calendar month, the
second Trading Day after the twentieth (20th) day of such calendar month (or if
the twentieth (20th) day is not a Trading Day, the next following Trading Day).
Secured Parties. Collectively, the Administrative Agent, the Collateral
Agent, the Lenders and the other agents and lenders parties to the Intercreditor
Agreement.
Security Agreement. At any date, any Subsidiary Security Agreement,
Borrower Security Agreement, Parent Pledge Agreement, C-Block Subsidiary Parent
Pledge Agreement and D-, E- and F- Block Subsidiary Parent Pledge Agreement
theretofore delivered that shall not have been terminated and released in
accordance with its terms.
Senior Debt. At any particular time, Total Debt less Subordinated Debt.
Significant Subsidiary. Any of (a) OCI and (b) any "significant subsidiary"
within the meaning of Rule 1.02(w) of Regulation S-X promulgated under the
Securities Exchange Act of 1934, as amended, but excluding for the purposes of
clause (b) any such Subsidiary the sole asset of which is an FCC License
purchased from the FCC in its "C-block" auction.
Site. The physical premises owned or controlled pursuant to written
agreement by the Borrower or the License Subsidiary for any Designated BTA.
Solvent. With respect to any Person on a particular date, the condition
that on such date, (a) the fair value of the Property of such Person (both at
fair valuation and at present fair saleable value) is greater than the total
liabilities, including, without limitation, Contingent Obligations, of such
Person, (b) the present fair saleable value of the assets of such Person is not
less than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person is
paying its debts generally as and when they become due, (d) such Person does not
intend to, and does not believe that it will, incur debts or
31
liabilities beyond such Person's ability to pay as such debts and liabilities
mature, and (e) such Person is not engaged in business or a transaction, and is
not about to engage in business or a transaction, for which such Person's
Property would constitute unreasonably small capital after giving due
consideration to current and anticipated future capital requirements and current
and anticipated future business conduct and the prevailing practice in the
industry in which such Person is engaged. In computing the amount of Contingent
Obligations at any time, such obligations shall be computed at the amount which,
in light of the facts and circumstances existing at such time, represents the
amount (net of contribution rights) that can reasonably be expected to become an
actual or matured liability.
Special Facility Fee. As defined in Section 2.03.
Stock. With respect to any Person, any and all shares of capital stock,
partnership or other interests or units, membership interests or other units in
limited liability companies, participations or equivalent rights of or in such
Person and interests, participations, warrants, convertible securities or other
equivalents (however designated) therein or with respect thereto, including,
without limitation, Financial Assets as that term is defined in Article 8 of the
UCC.
Subordination Agreement. A Subordination Agreement in substantially the
form of Exhibit G-1 (for Affiliate Subordinated Debt) or Exhibit G-2 (for
Non-Affiliate Subordinated Debt).
Subordinated Debt. Affiliate Subordinated Debt and Non-Affiliate
Subordinated Debt.
Subsidiary. As to any Person, any corporation, association, partnership,
joint venture or other business entity of which such Person and/or any
Subsidiary of such Person, directly or indirectly, either
(a) in respect of a corporation, owns or controls more than 50% of the
outstanding capital Stock having ordinary voting power to elect a majority
of the board of directors or similar managing body, irrespective of whether
a class or classes shall or might have voting power by reason of the
happening of any contingency, or
(b) in respect of an association, partnership, joint venture or other
business entity, is entitled to share in more than 50% of the profits and
losses, however determined.
Subsidiary Guaranty. See Section 8.14(d).
Subsidiary Security Agreement. See Section 8.13(e).
Taxes. See Section 4.03(a).
32
Total Debt. As of any date, the aggregate principal amount of all
Indebtedness of the Borrower and its Subsidiaries outstanding, determined on a
Consolidated basis.
Total POPs. As of any date the aggregate number of POPs in the BTAs and
MTAs for which the License Subsidiaries hold FCC Licenses.
Trading Day. Any day on which the securities exchange or over-the-counter
market to be used for purposes of determining the Market Price for OC Common
Stock, as provided in the definition of Market Price, is open for trading in
securities.
Type. As to any Facility A Loan or Facility B Loan, its nature as a Base
Rate Loan or a LIBOR Loan.
Unencumbered Cash. As to any Person, cash and Cash Equivalents on hand of
such Person, the use and disposition of which are not restricted in any manner,
whether by Lien, agreement, contract, court order, judgment, decree, injunction
or any other restriction of any kind or nature.
Volume Purchase Agreement. That certain Volume Purchase Agreement, dated as
of September 22, 1994 by and among the Borrower, OC, its Subsidiaries party
thereto and Nortel, as amended, supplemented or restated from time to time.
Voting Stock. Stock or similar interests, of any class or classes (however
designated), the holders of which are at the time entitled, as such holders, to
vote for the election of a majority of the directors (or persons performing
similar functions) of the corporation, association, trust or other business
entity involved, whether or not the right so to vote exists by reason of the
happening of a contingency.
Wichita BTAs. BTA Nos. 472(Wichita), 200(Xxxxxxxxxx) and 396(Salina).
Wichita Loan Facility. A loan facility in an amount to be agreed having
substantially the same terms as Facility A hereunder entered into by Wichita PCS
within 180 days of the date of this Agreement.
Wichita PCS. Wichita PCS, LLC., a Delaware limited liability company, and a
Non-Qualified Joint Venture, the joint venture partners of which are Omnipoint
Venture Partners II, LLC (having as its single member OPCS II, LLC), owning
50.1% of the membership interest and Western Wireless Corporation, owning
49.9%.
Wholly Owned. As applied to any Subsidiary of a Person, a Subsidiary all
the outstanding shares (other than directors' qualifying shares, if required by
law) of every class of Stock of which are at the time owned by such Person.
33
Section 1.02. Rules of Interpretation.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or modification to
such law.
(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by GAAP applied on a consistent basis by the accounting
entity to which they refer.
(f) The words "include", "includes" and "including" are not limiting.
(g) All terms not specifically defined herein or by GAAP, which terms
are defined in the Uniform Commercial Code as in effect in the State of New
York, have the meanings assigned to them therein.
(h) Reference to a particular "Section" or Exhibit refers to that
section or that exhibit to this Agreement, unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like import
shall refer to this Agreement as a whole and not to any particular section
or subdivision of this Agreement.
Section 1.03. Accounting Terms. Except as otherwise expressly provided
herein, all accounting terms used herein shall be interpreted, and all financial
statements and certificates and reports as to financial matters required to be
delivered to the Administrative Agent shall be prepared in accordance with the
following ("GAAP"):
(a) principles that are consistent with the principles promulgated or
adopted by FASB in effect at December 31, 1996, and
(b) to the extent consistent with such principles, the accounting
practice of the Borrower reflected in its financial statements for the year
ended at the date referred to in clause (a) above;
34
provided that, if FASB after the date hereof shall promulgate or adopt
principles that are materially different from those in effect at December 31,
1996, the Borrower and the Lenders will endeavor in good faith to amend this
Agreement in order to amend (i) the definition of GAAP to include such different
principles, and (ii) the other provisions of this Agreement so as to reflect in
substance the same limitations and restrictions as in effect prior to such
amendment to the definition of GAAP. Prior to the effective date, if any, of any
such amendment, GAAP shall, however, continue to include only the principles
specified in clause (a) of the preceding sentence.
ARTICLE II
THE LOANS
Section 2.01. The Advances.
(a) Facility A. Each Facility A Lender severally agrees, on the terms
and conditions hereinafter , to make advances (the "Facility A Advances")
to the Borrower of up to an aggregate principal amount not to exceed such
Facility A Lender's Facility A Commitment on any Business Day from the date
hereof until the Facility A Commitment Termination Date.
Each Facility A Loan shall be in an amount equal to at least $1,000,000 (or, if
less, the aggregate remaining unused amounts of all Facility A Lenders' Facility
A Commitments) (unless such Facility A Loan is made in order to pay Nortel any
amount owing to Nortel or any Affiliate thereof, in which case there shall be no
minimum amount for such Facility A Advance) and shall consist of Facility A
Advances of the same Type made on the same day by the Facility A Lenders ratably
according to their respective Facility A Commitments.
In no event shall the aggregate principal amount of all Facility A Advances
outstanding on any date exceed the lesser of:
(i) the Facility A Maximum Commitments as of such date, and
(ii) the Facility A Borrowing Base as of such date.
Notwithstanding the immediately preceding sentence, for the period from the date
of this Agreement to and including 180 days after the date of this Agreement,
the aggregate outstanding principal balance of Facility A Advances under
Tranche 2 may exceed the Facility A Borrowing Base for Tranche 2 of Facility A,
but not the Facility A Maximum Commitments for Tranche 2 of Facility A (the
"Overadvance") provided that, (I) the Overadvance shall not exceed at any one
time $20,000,000 in the aggregate, (II) any such Overadvance shall consist of
loans from the Borrower to either or both Wichita PCS and D&E/Omnipoint, which
loans:
35
(1) shall be used by Wichita PCS and D&E/Omnipoint,
respectively, for the payment to Nortel for Nortel Goods and
Services used in the Wichita BTAs and the Denver & Ephrata BTAs,
respectively;
(2) are evidenced by Intercompany Notes that constitute
Collateral hereunder; and
(3) are repaid within 180 days of the date of this
Agreement; and
(III) the Collateral Agent shall be granted a duly perfected first priority
security interest in the Nortel Goods and Services purchased by or for Wichita
PCS and D&E/Omnipoint, respectively, used in the Wichita BTAs and Denver &
Ephrata BTAs, respectively, having a purchase price equal to at least the amount
of the Overadvance on any date; and (IV) the Borrower repays the aggregate
outstanding amount of such Overadvance, if any, together with accrued and unpaid
interest and applicable Breakage Costs related thereto, to the Administrative
Agent on or before the 180th day after the date of this Agreement in accordance
with Section 3.02(d).
(b) Facility B. Each Facility B Lender severally agrees, on the terms
and conditions hereinafter , to make advances (the "Facility B Advances")
to the Borrower of up to an aggregate principal amount not to exceed such
Facility B Lender's Facility B Commitment on any Business Day from the date
hereof until the Facility B Commitment Termination Date.
Each Facility B Loan shall be in an amount equal to at least $1,000,000 (or, if
less, the aggregate remaining unused amounts of all Facility B Lenders' Facility
B Commitments) (unless such Facility B Loan is to be comprised of Advances under
Tranche 3 of Facility B, in which case there shall be no minimum amount for such
Facility B Advance) and shall consist of Facility B Advances made on the same
day by the Facility B Lenders ratably according to their respective Facility B
Commitments.
In no event shall the aggregate principal amount of all Facility B Advances
outstanding on any date exceed the lesser of:
(i) the Facility B Maximum Commitments as of such date, and
(ii) the Facility B Borrowing Base as of such date.
Section 2.02. Making the Advances.
(a) Except as otherwise provided in Section 2.02(b), each Loan shall
be made on notice, given not later than 11:00 A.M. (New York City time) on
the third Business Day prior to the date of the proposed Loan in the case
of a Loan consisting of LIBOR Advances or the first Business Day prior to
the date of the proposed Loan in the case of
36
a Loan consisting of Base Rate Advances by the Borrower to the
Administrative Agent. The Administrative Agent shall give to each
Applicable Lender prompt written notice thereof. Each such notice of a Loan
(a "Draw Request") shall be delivered in writing by telecopy, overnight or
regular mail substantially in the form of Exhibit B hereto, specifying
therein:
(i) the requested date of such Loan (which shall be a Business
Day);
(ii) whether such Loan is a Facility A Loan or a Facility B Loan
and from which tranche of such facility such Loan is requested;
(iii) the requested Type of Advances comprising such Loan;
provided that the Borrower may not request that Advances be LIBOR
Advances if, after giving effect to such Advances, there would be more
than three different Interest Periods then in effect;
(iv) if such Loan is a Facility B Loan under Tranche 3, whether
the proceeds of such Loan will be used to pay accrued and unpaid
interest on the outstanding Advances under Tranche 1 or under Tranche
2 of Facility B;
(v) the requested aggregate principal amount of such Loan; and
(vi) the account to which the proceeds of such Loan shall be
paid.
Each Draw Request:
(A) shall be accompanied by a Facility A Borrowing Base
Certificate or a Facility B Borrowing Base Certificate, as
appropriate, that, among other things, shows the Facility A
Borrowing Base or Facility B Borrowing Base, as applicable, as of
the date of such Draw Request;
(B) with respect to a Facility A Loan or a Facility B Loan
shall be accompanied by a certificate that shows the Facility A
Maximum Commitment or the Facility B Maximum Commitment, as
applicable, as of the date of such Draw Request and sets forth in
reasonable detail the calculation of the amount thereof; and
(C) shall be accompanied by such additional documents as may
be required by Article IX or the Draw Request.
Each Applicable Lender shall, before 12:00 noon (New York City time) on the
date of a scheduled Loan, make available for the account of its Applicable
Lending Office to the Administrative Agent at the Administrative Agent's Account
in same-day funds, such Lender's
37
ratable portion of such Loan. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions in Articles VIII and IX,
the Administrative Agent will wire transfer same-day funds in the aggregate
principal amount of such Loan to such account as the Borrower shall have
specified in its Draw Request. If the Administrative Agent shall receive such
funds and if such applicable conditions shall be fulfilled prior to 12:00 A.M.
(New York City time) on the date of any proposed Loan, the Administrative Agent
shall commence the wire transfer (or direct its bank to commence the wire
transfer) of such funds to such account by 2:00 P.M. (New York City time).
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrower may not select LIBOR Advances for any Facility A Loan or
Facility B Loan if the aggregate amount of such Loan is less than
$5,000,000 or if the obligation of the Facility A Lenders and Facility B
Lenders to make LIBOR Advances shall then be suspended pursuant to Section
2.05 or 4.01 and (ii) there shall be no more than three Interest Periods
for LIBOR Advances at any one time in effect.
(c) Each Draw Request shall be irrevocable and binding on the
Borrower. In the case of any Facility A Loan or Facility B Loan that the
related Draw Request specifies is to be comprised of LIBOR Advances, the
Borrower shall indemnify each Applicable Lender against any loss, cost or
expense incurred by such Applicable Lender as a result of any failure to
fulfill on or before the date specified in such Draw Request for such Loan
the applicable conditions in Articles VIII and IX, including any loss
(including loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by
such Applicable Lender to fund the Advance to be made by such Applicable
Lender as part of such Loan when such Advance, as a result of such failure,
is not made on such date.
(d) Unless the Administrative Agent shall have received notice from an
Applicable Lender prior to the date of any Loan that such Applicable Lender
will not make available to the Administrative Agent such Lender's ratable
portion of such Loan, the Administrative Agent may assume that such Lender
has made such portion available to the Administrative Agent on the date of
such Loan in accordance with subsection (a) of this Section 2.02 and the
Administrative Agent may, in reliance upon such assumption, make available
to the Borrower on such date a corresponding amount. If and to the extent
that such Applicable Lender shall not have so made such ratable portion
available to the Administrative Agent, such Applicable Lender and the
Borrower severally agree to repay or pay to the Administrative Agent
forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Administrative Agent,
at (i) in the case of the Borrower, the interest rate applicable at the
time to Advances comprising such Loan and (ii) in the case of such
Applicable Lender, the Federal Funds Rate. If such Applicable Lender shall
repay to the Administrative Agent such corresponding amount,
38
such amount so repaid shall constitute such Applicable Lender's Advance as
part of such Loan for purposes of this Agreement.
(e) The failure of any Lender to make the Advance to be made by it as
part of any Loan shall not relieve any other Applicable Lender of its
obligation, if any, hereunder to make its Advance on the date of such Loan,
but no Lender shall be responsible for the failure of any other Lender to
make the Advance to be made by such other Lender on the date of any Loan.
(f) During the period following the occurrence of an OC Unmatured
Default until such default is either cured, waived, or becomes an OC Debt
Default, no Advances shall be made under the Credit Facility. If Nortel
holds more than fifty percent (50%) of the Facility A Commitments at such time,
Advances up to $5,000,000 may be made to pay amounts owing Nortel on
outstanding purchase orders.
(g) Notwithstanding anything to the contrary contained in this
Agreement, if and to the extent that Nortel is a Lender under this
Agreement and all or a portion of the proceeds of an Advance is to be paid
to Nortel, the Borrower hereby irrevocably agrees that the portion of each
Loan to be advanced by Nortel to the Borrower in accordance with this
Agreement may in the discretion of Nortel be effectively disbursed on the
date in the Draw Request for such disbursement to the Borrower by virtue of
a credit in the amount of such Loan given to the Borrower under the Volume
Purchase Agreement.
Section 2.03. Fees.
The Borrower shall pay to the Administrative Agent for the ratable
benefit of the Facility A Lenders, (other than Nortel) a commitment fee (the
"Commitment Fee") of one-half of one percent (1/2 of 1%) per annum on the
average undrawn balance of Facility A, which accrual will commence January 1,
1999. The Commitment Fee shall be due quarterly in arrears commencing March 31,
1999, and continuing on the last day of each June, September, December and March
thereafter through the Facility A Commitment Termination Date. No Commitment Fee
will accrue and be due to Nortel in its capacity as Lender with respect to
Commitments held by Nortel during the time when Nortel is a Lender under the
Credit Facility.
In addition to the foregoing, if the average outstanding principal
balance of all Facility A Advances during the period commencing July 1, 1998 and
ending January 31, 1999 (the "Measurement Period") shall be less than
$40,000,000, then Borrower shall pay to the Administrative Agent for the ratable
benefit of the Lenders within two (2) Business Days of January 31, 1999 the
"Special Facility Fee" (as defined). "Special Facility Fee" means the product
of (x) one-half percent (1/2 of 1%) per annum times (y) the average undrawn
daily balance of Facility A during the Measurement Period. The Special Facility
Fee shall be due and payable whether or not Nortel is a Lender.
39
The Borrower shall also pay the fees in the Administrative Agent's Letter
on the terms and conditions therein.
Section 2.04. Interest.
(a) Facility A. Except as provided in subsection (c) below, the
Borrower shall pay interest on the unpaid principal amount of each Facility
A Advance owing to each Applicable Lender from and including the date of
such Advance through but excluding the date on which such principal amount
shall be paid in full, at the following rates per annum:
(i) During such periods as such Advance is a Base Rate Advance, a
rate per annum equal at all times to the sum of (A) the Base Rate in
effect from time to time, plus (B) the Applicable Margin in effect
from time to time and applicable to such Advance, payable in arrears
quarterly on (x) the last day of each March, June, September and
December and (y) the Maturity Date with respect to such Advance.
(ii) During such periods as such Advance is a LIBOR Advance, a
rate per annum equal at all times during each Interest Period for such
Advance to the sum of (A) LIBOR for such Interest Period for such
Advance, plus (B) the Applicable Margin in effect from time to time
and applicable to such Advance, payable in arrears on (x) the last day
of such Interest Period if the applicable Interest Period is one, two
or three months, or the date which is three months after the first day
of the Interest Period and the last date of the Interest Period if the
applicable Interest Period is six months, (y) the date on which such
Advance shall be Converted or repaid or prepaid, in whole or in part
(together with applicable Breakage Costs), and (z) the Maturity Date
with respect to such Advance.
(iii) If the Credit Facility is repaid by the Borrower in full
prior to the first anniversary of the Closing Date and the Commitments
of the Lenders are terminated, then so long as Nortel is the only
Lender at that time, Nortel will refund to the Borrower the difference
between the interest which would have accrued on Facility A if the
Applicable Margin for such time had been (i) three percent (3%) above
LIBOR for LIBOR Loans and (ii) two percent (2%) over the Base Rate for
Base Rate Loans, as applicable.
(b) Facility B. Except as provided in subsection (c) below, the
Borrower shall pay interest on the unpaid principal amount of each Facility
B Advance owing to each Applicable Lender from and including the date of
such Advance through but excluding the date on which such principal amount
shall be paid in full, at the following rates per annum:
40
(i) During such periods as such Advance is a Base Rate Advance, a
rate per annum equal at all times to the sum of (I) the Base Rate in
effect from time to time, plus (II) the Applicable Margin in effect
from time to time and applicable to such Advance, payable in arrears
semi-annually on (x) the last day of each June and December during
such periods and (y) the Maturity Date with respect to such Advance.
(ii) During such periods as such Advance is a LIBOR Advance, a
rate per annum equal at all times during each Interest Period for such
Advance to the sum of (I) LIBOR for such Interest Period for such
Advance, plus (II) the Applicable Margin in effect from time to time
and applicable to such Advance, payable in arrears on (x) the last day
of such Interest Period if the applicable Interest Period is one, two
or three months, or the date which is three months after the first day
of the Interest Period and the last date of the Interest Period if the
applicable Interest Period is six months, (y) the date on which such
Advance shall be converted or repaid or prepaid, in whole or in part
(together with applicable Breakage Costs), and (z) the Maturity Date.
(c) Upon occurrence and during the continuance of a Default, the
Borrower shall pay interest on
(i) the unpaid principal amount of each Advance owing to each
Lender, payable in arrears on the dates referred to in clause (a) or
(b) above, at a rate per annum equal at all times to the lesser of (I)
4.00% per annum above the rate per annum then required to be paid on
such Advance pursuant to clause (a) or (b) above, and (II) the Maximum
Lawful Rate, and
(ii) the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall
be due until such amount shall be paid in full, payable in arrears on
the date such amount shall be paid in full and on demand, at a rate
per annum equal at all times to the lesser of (I) 4.00% per annum
above the rate per annum then required to be paid on Base Rate
Advances pursuant to clause (a)(i) above and (II) the Maximum Lawful
Rate.
Section 2.05. Interest Rate Determination.
(a) If, with respect to any LIBOR Advances, the Required Lenders
notify the Administrative Agent that LIBOR for any Interest Period for such
Advances will not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective LIBOR Advances for such
Interest Period, the Administrative Agent shall forthwith so notify the
Borrower and the Applicable Lenders, whereupon:
41
(i) each LIBOR Advance will automatically, on the last day of the
then-existing Interest Period therefor, Convert into a Base Rate
Advance, and
(ii) the obligation of the Applicable Lenders to make, or to
Convert Advances into, LIBOR Advances shall be suspended immediately,
until such time as the Administrative Agent shall notify the Borrower and
the Lenders that the circumstances causing such suspension no longer exist.
(b) On the date on which the aggregate unpaid principal amount of all
LIBOR Advances shall be reduced, by payment or prepayment or otherwise, to
less than 5,000,000 such Advances shall automatically Convert into Base
Rate Advances.
(c) Upon the occurrence and during the continuance of any Default:
(i) each LIBOR Advance will automatically, on the last day of the
then-existing Interest Period therefor, Convert into a Base Rate
Advance, and
(ii) the obligation of the Applicable Lenders to make, or to
Convert Advances into, LIBOR Advances shall be suspended immediately.
(d) If the Administrative Agent cannot determine LIBOR for any LIBOR
Advances:
(i) the Administrative Agent shall forthwith notify the Borrower
and the Applicable Lenders that the interest rate cannot be determined
for such LIBOR Advances,
(ii) each such Advance will automatically, on the last day of the
then-existing Interest Period therefor, Convert into a Base Rate
Advance, and
(iii) the obligation of the Applicable Lenders to make, or to
Convert Advances into, LIBOR Advances shall be suspended immediately,
until the Administrative Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer
exist.
Section 2.06. Conversion of Advances. The Borrower may on any Business Day,
upon notice given to the Administrative Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Section 2.07 and 2.09, Convert all
Facility A or Facility B Advances of one Type comprising the same Loan into
Facility A or Facility B Advances of the other Type; provided that,
42
(a) any Conversion of LIBOR Advances into Base Rate Advances shall be
made only on the last day of an Interest Period for such LIBOR Advances,
and
(b) the Borrower may not Convert Base Rate Advances into LIBOR
Advances if, (A) after giving effect to such Conversion, there would be
more than three Interest Periods in effect or (B) the Advances to be
Converted would be less than the minimum amount specified in Section
2.02(b).
Each such notice of a Conversion shall, within the restrictions specified above,
specify (x) the date of such Conversion, and (y) the Advances to be Converted.
Each notice of Conversion shall be irrevocable and binding on the Borrower.
Section 2.07. Payments and Computations.
(a) Except as provided in subsection (b) below, the Borrower shall
make each payment hereunder and under the Notes not later than 11:00 A.M.
(New York City time) on the day when due in U.S. dollars to the
Administrative Agent at the Administrative Agent's Account in same-day
funds.
(b) Subject to the terms and conditions contained in this subsection
(b) and except as otherwise provided herein, the Borrower shall have the
option to make:
(i) commencing after the sixth anniversary of the Closing Date,
any payment that is due in respect of interest or principal on any
Facility B Loan hereunder, and
(ii) at any date any such payment in connection with an optional
or mandatory prepayment of all or any portion of the Facility B Loans,
by delivering to the Administrative Agent in satisfaction of all or any part of
such payment on the date when due a whole number of shares of OC Common Stock
that is at least equal to:
(A) the amount of such payment that is to be made by
delivery of OC Common Stock, divided by
(B) ninety percent (90%) of (1) the Market Price of a share
of OC Common Stock, as determined as of the Trading Day
immediately preceding the Facility B Notice Date (including any
Facility B Initial Mandatory Payment Date) relating to such
payment; or (2) in the case of a mandatory prepayment on the
First Deferred Payment Date, the Market Price of a share of OC
Common Stock as determined as of the Trading Day immediately
preceding the Initial Prepayment Date immediately preceding such
First Deferred Payment Date.
43
Such shares shall be delivered by 10:00 a.m. (New York City time) on the day of
any payment, at the election of each Facility B Lender by notice to the
Borrower, either by (x) delivery of certificates in the name of such Facility B
Lender or its designee evidencing such Shares, or (y) crediting such Shares in
the name of such Facility B Lender or its designee with a depository selected by
such Facility B Lender. Each Facility B Lender may notify the Borrower from time
to time of the manner in which it desires to receive such OC Common Stock. In
the absence of such notice, delivery to a Facility B Lender shall be made as
provided in clause (x) of the second-preceding sentence.
The Borrower shall have the option to make a payment by delivery of OC
Common Stock as provided in this subsection (b) only if each of the following
shall be true at the time of such payment:
(I) A registration statement shall then be effective with respect to
the shares to be delivered in connection with such payment, OC shall then be in
compliance with its obligations under (SS) 8 and 8A of the Capital Contribution
Agreement and the Facility B Lenders shall not then be prohibited from selling
such shares under such registration statement or otherwise;
(II) The Borrower shall have given irrevocable advance written notice
to the Administrative Agent and each Facility B Lender by 10:00 a.m. (New
York City time) on the Trading Day immediately preceding the date of such
payment that it is making such payment by delivery of OC Common Stock (the
date on which such notice is given being the "Facility B Notice Date").
(III) There shall be only one class or series of common stock of OC,
and the rights and benefits of OC Common Stock shall not have been amended
or otherwise modified in any material respect so as to differ from the
rights and benefits applicable to OC Common Stock as of the date hereof.
(IV) It shall be possible to determine the Market Price of shares of
OC Common Stock on the applicable Trading Day under clause (B) above.
(V) No Event of Default shall have occurred and be continuing, and no
event of the nature specified in Section 10.01(e), (f) or (t) shall have
occurred with respect to OC or any Significant Subsidiary of OC not
specified in such Section whether or not any requirement for the giving of
notice, the lapse of time or both, or any other condition has been
satisfied.
(VI) If such payment is a prepayment of the Facility B Advances
pursuant to Section 3.03, such payment shall occur only on the First
Optional Payment Date or the Second Optional Payment Date of any calendar
month.
44
(VII) The delivery of shares of OC Common Stock to any Facility B
Lender would not in such Lender's opinion violate any FCC foreign-ownership
or other regulations then applicable or any other United States federal or
state law or regulation then applicable.
(VIII) Unless Facility B Lenders holding at least a majority in
aggregate principal amount of the Facility B Loans then outstanding shall have
waived compliance by the Borrower with the condition in this clause (VIII), the
aggregate number of shares of OC Common Stock delivered on the date of such
payment, together with the aggregate number of such shares delivered of such
payment, together with the aggregate number of such shares delivered since the
same date of the third calendar month immediately preceding the date of such
payment (including for purposes of counting such months the calendar month in
which such payment occurs) (or, if there is not a counterpart day in such third-
preceding calendar month, the last day of such third-preceding calendar month)
may not exceed 4.99% of the issued and outstanding shares of OC Common Stock
(after giving effect to any issuance of such shares in connection with any such
payment), except that (x) if any payment by way of delivery of OC Common Stock
is made on a First Optional Payment Date and no other payment by way of delivery
of OC Common Stock is made thereafter prior to the second next-following First
Optional Payment Date , a payment may be made by delivery of OC Common Stock up
to an additional 4.99% of the issued and outstanding shares of OC Common Stock
on such second next-following/First Optional Payment Date, and (y) if any
payment by way of delivery of OC Common Stock is made on a Second Optional
Payment Date and no other payment by way of delivery of OC Common Stock is made
thereafter prior to the second next following Second Optional Payment Date, a
payment may be made by way of delivery of OC Common Stock up to an additional
4.99% of the issued and outstanding shares of OC Common Stock on such second
next-following Second Optional Payment Date.
(IX) No such payment may be made unless, at the date of such payment,
OC shall have delivered to the Administrative Agent a certification that at
such date OC is not (and would not be with the passage of time) required to
file a report on form 8-K (or any successor thereto) with the Securities
and Exchange Commission and no event has occurred on or prior to such date
for which OC is required to file such a report within 15 days after the
date of such payment.
(X) With respect to payments due on or after the Launch Date, no such
payment may be made with OC Common Stock with respect to the portion, if
any, of the aggregate principal amount of Facility B Advances that are
treated as Facility A Advances pursuant to Section 2.12.
If the Borrower shall have elected to make any payment in respect of
Facility B Advances by delivery of OC Common Stock, it shall deliver OC Common
Stock to all Facility B Lenders ratably in accordance with the portion of any
such payment to be made by delivery of OC
45
Common Stock and the respective amounts owing to the Facility B Lenders as of
such date, (VII) above is not met with respect only to certain Facility B
Lenders, the Borrower may pay such Facility B Lenders cash while paying the
other Facility B Lenders by delivery of OC Common Stock. To the extent that on
or after the Facility B Maturity Date, the Borrower cannot pay the entire
outstanding amount due on Facility B through the payment of OC Common Stock, the
Borrower may pay the maximum amount it can through the payment of OC Common
Stock on such date and shall pay the balance in cash on such date.
By notice to the Administrative Agent, the Borrower may irrevocably waive
its option to make any particular payment by delivery of OC Common Stock
pursuant to this subsection (b) so long as it has not previously delivered to
the Administrative Agent a notice referred to in (II) above with respect to such
particular payment.
Each Facility B Lender will observe any applicable Federal securities laws
in purchasing or selling OC Common Stock or options with respect thereto.
(c) The Administrative Agent will, promptly after its receipt thereof
cause:
(i) to be distributed funds of the kind received relating to the
payment of principal or interest or usage fees and other amounts ratably
(other than amounts payable pursuant to Section 4.02, 4.03 or 12.04(c)) to
the Applicable Lenders for the account of their respective Applicable
Lending Offices, and funds of the kind received relating to the payment of
any other amount payable to any Lender to such Lender for the account of
its Applicable Lending Office, in each case to be applied in accordance
with the terms of this Agreement, and
(ii) to be distributed to the Facility B Lenders entitled thereto
promptly after its receipt thereof any stock certificates distributed to it
pursuant to subsection (b) above.
Upon the Administrative Agent's acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 12.07(d), from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments hereunder and
under the Notes (whether in cash or, if applicable, stock), in respect of the
interest assigned thereby to the Lender assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(d) All computations of interest and fees shall be made by the
Administrative Agent on the basis of a year of 360 days, for the actual number
of days (including the first day but excluding the last day) occurring in the
period for which such interest or fees are
46
payable. Each determination by the Administrative Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(e) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on
the next-succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or usage fee, as
the case may be; provided that, if such extension would cause payment of
interest on or principal of LIBOR Advances to be made in the next-following
calendar month, such payment shall be made on the next-preceding Business
Day.
(f) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due and owing to the
Applicable Lenders hereunder that the Borrower will not make such payment
in full, the Administrative Agent may assume that the Borrower has made
such payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Applicable Lender on such due date an amount equal to
the amount then due such Applicable Lender. If and to the extent the
Borrower shall not have so made such payment in full to the Administrative
Agent, each Applicable Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Applicable Lender
together with interest thereon, for each day from the date such amount is
distributed to such Applicable Lender until the date such Applicable Lender
repays such amount to the Administrative Agent, at the Federal Funds Rate.
(g) To the extent permitted by law, all payments by the Borrower
hereunder and under any of the other Loan Documents shall be made without
setoff or counterclaim. Without limitation of the preceding sentence, to
the extent permitted by law, the Borrower's obligation to pay all amounts
due under the Loans shall not be affected by any circumstance whatsoever,
including:
(i) any set-off, counterclaim, recoupment, deduction, abatement,
suspension, diminution, reduction, defense or other right which the
Borrower may have for any reason whatsoever, including any failure of
the Collateral or any assets making up the Network, or any part
thereof, or any representation or service of any supplier,
manufacturer, installer or distributor, including Nortel;
(ii) any defect in the condition, design, operation or fitness
for use of, or any damage to or loss or destruction of, any equipment
or material provided by Nortel or any other Person;
(iii) any actual or alleged default by Nortel or any other Person
under the Volume Purchase Agreement; or
47
(iv) any other fact or circumstance relating to the Volume
Purchase Agreement.
No payment hereunder shall affect any rights of the Borrower under any other
agreement with Nortel or any Affiliate of Nortel.
Section 2.08. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Advances owing to it (other than
pursuant to Section 4.02, 4.03 or 12.04(c)) in excess of its ratable share of
payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided that, if all or any
portion of such excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and such Lender shall
repay to the purchasing Lender the purchase price to the extent of such recovery
together with an amount equal to such Lender's ratable share (according to the
proportion of (a) the amount of such Lender's required repayment to (b) the
total amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total amount
so recovered. The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section 2.08 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were the
direct creditor of the Borrower in the amount of such participation.
Section 2.09. Use of Proceeds.
(a) Facility A.
(i) Subject to the limitations in this Agreement, the proceeds of
Facility A Advances for Tranche 1 of Facility A shall be available
(and the Borrower shall use such proceeds) for the general corporate
and working capital purposes of the Borrower and its Subsidiaries
related to their telecommunications businesses (including up to the
QJV Amount for Qualified Joint Ventures for use within the Designated
BTAs), but not for the purpose of purchasing equipment from
competitors of Nortel or for investing in markets (x) that are
supplied by competitors of Nortel and (y) in which Nortel is not a
major supplier of equipment.
All Facility A Advances under Tranche 1 of Facility A shall be made
either (A) by credit against the Volume Purchase Agreement, (B)
directly to Nortel to pay amounts due under the Volume Purchase
Agreement or (C) to the Borrower to reimburse the Borrower for Nortel
Goods and Services for the Designated BTAs
48
for which the Borrower has previously paid, provided that, the
Administrative Agent shall have received satisfactory evidence of such
payment. For markets which constitute Designated BTAs on the Closing
Date, the Borrower is permitted to borrow funds hereunder to reimburse
the Borrower for cash purchases made prior to the Closing Date (upon
receipt by the Administrative Agent of satisfactory evidence of
payment for such purchase) with respect to such Designated BTAs. For
markets which are not Designated BTAs on the Closing Date,
reimbursement to the Borrower for cash purchases for markets made
before those markets became Designated BTAs are in the sole discretion
of the Lenders at the time the BTA is proposed for acceptance as a
Designated BTA.
(ii) Subject to the limitations in this Agreement, the proceeds
of Facility A Advances for Tranche 2 of Facility A shall be available
(and the Borrower shall use such proceeds):
(A) for the payment when due of certain invoices for
Permitted Third-Party Expenses for equipment and services for use
in the Designated BTAs (including up to $15,000,000 to finance up
to fifty percent (50%) of the purchase price of Nortel handsets
and up to $2,000,000 for the acquisition of Real Estate on which
switches or other Network operating equipment is to be located);
and
(B) from the date of this Agreement until 180 days after the
date of this Agreement (subject to documentation reasonably
acceptable to the Administrative Agent), to make intercompany
loans from the Borrower to either or both Wichita PCS and
D&E/Omnipoint, which loans
(I) shall be used by Wichita PCS and D&E/Omnipoint
to purchase Nortel Goods and Services under the Volume
Purchase Agreement to the extent that the requirements of a
Facility A Advance under Tranche 2 are otherwise met;
(II) are evidenced by Intercompany Notes that serve as
Collateral hereunder;
(III) do not exceed at any one time outstanding
$30,000,000 in the aggregate (inclusive of the aggregate
outstanding amount of any Overadvances at such time); and
(IV) are repaid within 180 days after the date of this
Agreement.
49
All Facility A Advances under Tranche 2 of Facility A shall be made
either (A) directly to the third party to whom the Permitted
Third-Party Expense is owing, (B) to the Borrower to reimburse the
Borrower for Permitted Third-Party Expenses paid by the Borrower,
provided that the Administrative Agent shall have received
satisfactory evidence of such payment or (C) to the Borrower to be
loaned in accordance with subsection (a)(ii)(B) above.
(b) Facility B.
(i) Subject to the limitations in this Agreement, at the
Borrower's option, and subject to documentation reasonably acceptable
to the Administrative Agent, the proceeds of Facility B Advances for
Tranche 1 and Tranche 2 of Facility B shall be available and the
Borrower shall use such proceeds for any purpose for which the
Facility A Advances shall be permitted to be used and to make
intercompany loans from the Borrower to OC, which loans
(A) rank at least pari passu with
---- -----
(I) the loan from Omnipoint MB Holdings, Inc.
(predecessor in interest to Omnipoint MB Holdings, LLC) ("MB
Holdings") to OC made with the proceeds of a Tranche Y Loan
(as defined in a certain Loan Agreement (the "MB Loan
Agreement"), dated as of July 25, 1997, by and among MB
Holdings, Ericsson, as administrative agent and the lenders
named therein) to MB Holdings, from Ericsson (the "Ericsson
Tranche Y Loan") and
(II) the other senior obligations of OC, including OC's
11-5/8% Senior Notes due 2006,
(B) shall be used by OC only for working capital purposes
and general corporate purposes in the ordinary course of its
telecommunications business, but not for the purpose of
purchasing equipment from competitors of Nortel or for investing
in markets (x) that are supplied by competitors of Nortel and (y)
in which Nortel is not a major supplier of equipment;
(C) unless and until the occurrence of a Triggering Event
(as defined in the OC Guaranty), shall be repaid by OC prior to
any advance by OC to Borrower of Affiliate Subordinated Debt from
and after the date of incurrence of an intercompany loan
evidenced by a Facility B Mirror Note; and
50
(D) are evidenced by a Facility B Mirror Note on the terms
and conditions in this subsection (b) and in Section 7.04(i)
hereof.
(ii) Subject to the limitations in this Agreement, the
proceeds of Facility B Advances for Tranche 3 of Facility B
shall be available (and the Borrower shall use such
proceeds) for the payment when due of accrued but unpaid
interest on Tranche 1, Tranche 2 and Tranche 3 of Facility
B.
Section 2.10. The Notes.
(a) The Borrower irrevocably authorizes each Lender to make or cause
to be made an appropriate notation on the Schedule(s) attached to such
Lender's Note(s) of the making of Loans or the receipt of payments. The
amount of the Loans on such Schedule(s), and the applicable tranches
thereof, shall be prima facie evidence of the principal amount thereof
owing and unpaid to such Lender, but the failure to record, or any error in
so recording, any such amount on such Schedule(s) shall not limit or
otherwise affect the obligations of the Borrower hereunder or under the
Notes to make payments of principal of or interest on the Notes when due.
(b) Any Lender that is not a U.S. Person and that could become
completely exempt from withholding of U.S. taxes in respect of payment of
any Obligations due to such Lender hereunder relating to any of its Tranche
A Loans or Tranche B Loans if such Tranche A Loans or Tranche B Loans were
in registered form for U.S. federal income tax purposes may request the
Borrower (through the Administrative Agent), and the Borrower agrees
thereupon, to exchange such Lender's Notes evidencing its Tranche A Loans
or Tranche B Loans for a promissory note or notes registered as provided in
Section 12.07(h) hereof (a "Registered Note"). Registered Notes may not be
exchanged for Notes that are not in registered form.
Section 2.11. Reduction or Termination of the Commitments.
(a) The Borrower may, upon at least three Business Days' notice to the
Administrative Agent, permanently terminate in whole or reduce in part the
unused portions of any Commitments with respect to Facility A or Facility B
and any tranche of either such facility of Loans; provided that, each such
partial reduction:
(i) shall be in an aggregate amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof (or, if less, the aggregate
remaining unused amounts of all Applicable Lenders' Commitments in
respect of such facility and tranche within such facility), and
51
(ii) shall be made ratably among the Applicable Lenders in
accordance with their respective Commitments in respect of such
facility and tranche within such facility.
(b) The Facility A Maximum Commitments or the Facility B Maximum
Commitments, as applicable, shall be automatically and permanently reduced
as of any date on which Advances are prepaid pursuant to Section 3.02
(except to the extent in Section 3.02(d)(iii) and Section 3.02(d)(iv)) or
Section 3.03, by the aggregate principal amount of the Advances so prepaid.
Each such reduction shall be made ratably among the Lenders in accordance with
their respective Commitments.
(c) Termination. On the Facility A Commitment Termination Date and the
Facility B Commitment Termination Date, respectively, the then-remaining
undrawn Commitments of the Applicable Lenders shall be automatically
terminated.
(d) No reduction in the Facility A Maximum Commitments shall occur on
account of any agreement entered into in accordance with the provisions of
Section 7.11(a)(v).
Section 2.12. If the Network in the Detroit BTA and Indianapolis BTA has
not been placed in Commercial Service by the first anniversary of the Launch
Date, then (a) the unused portion of the Facility B Maximum Commitments shall
terminate and (b) the terms and conditions (including without limitation those
relating to interest rates, interest payment dates and principal amortization)
provided herein with respect to the portion, if any, of the then-outstanding
aggregate principal amount of Facility B Advances automatically shall be changed
so that in all respects the terms and conditions applicable to such portion
shall be the same as those applicable to Facility A Advances. If either (but not
both) the Detroit BTA or the Indianapolis BTA is in Commercial Service by the
first anniversary of the Launch Date, the termination of the unused portion of
the Facility B Maximum Commitments and conversion of the terms and conditions of
outstanding Facility B Advances to those applicable to Facility A Advances shall
only apply to an amount equal to the then outstanding principal balance of
Facility B Advances or then unused portion of Facility B Maximum Commitments
multiplied by (i) if the Detroit BTA is in Commercial Service by such first
anniversary, .30 and (ii) if the Indianapolis BTA is in Commercial Service by
such date, .70. If the Network in the Detroit BTA or Indianapolis BTA is not
placed in Commercial Service by the first anniversary date of the Launch Date,
the Borrower shall not be entitled to repay the portion, if any, of the
aggregate principal amount of Facility B Advances that are treated as Facility A
Advances under this (S)2.12 using OC Common Stock pursuant to (S)2.07(b).
52
ARTICLE III
REPAYMENT AND PREPAYMENT OF THE LOANS
Section 3.01. Repayment.
(a) Facility A.
(i) On the last day of each quarter commencing on the last day of
the calendar quarter following the calendar quarter in which the
Facility A Commitment Termination Date occurs, and continuing on the
last day of each March, June, September and December for nineteen
consecutive calendar quarters thereafter (or, if such day is not a
Business Day, on the next-preceding Business Day), the Borrower shall
repay a portion of the aggregate principal amount of the Facility A
Advances equal to the percentage specified in the table below opposite
such periods of the greatest aggregate principal amount of Facility A
Advances outstanding on any date prior to the date of such repayment.
================================================================================
Payment Date Percentage
--------------------------------------------------------------------------------
Last Day of Calendar Quarters 1-8 3.75
--------------------------------------------------------------------------------
Last Day of Calendar Quarters 9-12 5.00
--------------------------------------------------------------------------------
Last Day of Calendar Quarters 13-20 6.25
================================================================================
(ii) On the Facility A Maturity Date, the Borrower shall repay
the aggregate then-outstanding principal amount of all Facility A
Advances, together with any and all accrued and unpaid interest
thereon and all other amounts due and owing hereunder, under the Notes
and under the other Loan Documents.
(iii) Interest due with respect to Facility A Advances shall be
paid at the times and at the rates specified in Section 2.04 of this
Agreement.
(b) Facility B.
(i) On the Facility B Maturity Date, the Borrower shall repay the
aggregate then-outstanding principal amount of Facility B Advances,
together with any and all accrued or accreted and unpaid interest
thereon and all other amounts due and owing hereunder, under the Notes
and under the other Loan Documents.
(ii) Interest due with respect to Facility B Advances shall be
paid at the times and at the rates specified in Section 2.04 of this
Agreement.
53
Section 3.02. Mandatory Prepayments of Loans.
(a) Sales of Assets. No later than three Business Days after its
receipt of any Net Cash Proceeds (after deducting the amount of any other
mandatory prepayment (x) arising in connection with the transaction
otherwise triggering a mandatory prepayment under this subsection (a) and
(y) required to be made pursuant to Section 3.02(i) hereof) referred to in
clause (i) of this subsection (a), the Borrower shall prepay Facility A
Advances in an aggregate principal amount equal to:
(i) the Net Cash Proceeds from insurance recoveries, condemnation
awards and the direct or indirect sale of any assets of the Borrower
and/or any of its Subsidiaries (other than any sale of inventory and
other goods in the ordinary course of business) that is otherwise
permitted under this Agreement during any calendar year, to the
extent, individually or in the aggregate, such Net Cash Proceeds
received during such calendar year shall exceed $250,000 and are not
reinvested in the Network within 60 days, or if deposited with the
Collateral Agent, 365 days after receipt, multiplied by
(ii) a fraction, (A) the numerator of which is the aggregate
principal amount of the Facility A Advances outstanding at the time of
such sale, insurance recovery or condemnation award and (B) the
denominator of which is such aggregate principal amount, plus the
aggregate principal amount of all Indebtedness outstanding at the time
of such sale, insurance recovery or condemnation award under all
Permitted Loan Agreements the loans under which are required to be
prepaid with such Net Cash Proceeds, to the extent the Intercreditor
Agreement permits such prepayment.
Any prepayment pursuant to this subsection (a) shall be applied to the
prepayment of the remaining principal installments of Facility A in inverse
order of maturity. No amounts prepaid pursuant to this subsection (a) shall be
available for reborrowing whether before or after the Facility A Commitment
Termination Date.
Each prepayment hereunder shall be allocated among the Facility A Lenders
on a pro rata basis. The Borrower shall pay such additional amounts as are
sufficient to pay the Lenders' Breakage Costs associated with such prepayments
in accordance with Section 3.04(b). All Net Cash Proceeds relating to sales of
assets, insurance recoveries and condemnation awards not reinvested in the
Network within sixty (60) days after receipt shall be deposited into a cash
collateral account held by the Collateral Agent until such time as they are
either reinvested or required to be applied to the Loans hereunder.
(b) Excess Cash Flow. By April 30 of each calendar year beginning on
the first April 30 following The Facility A Commitment Termination Date,
the Borrower shall prepay outstanding Facility A Advances in an aggregate
principal amount equal to:
54
(i) fifty percent (50%) of any Excess Cash Flow in respect of the
immediately preceding fiscal year, multiplied by
(ii) a fraction, the numerator of which is the aggregate
principal amount of the Facility A Advances then outstanding, and the
denominator of which is the aggregate principal amount then
outstanding of all Facility A Advances and all other loans under each
Permitted Loan Agreement that are required to be prepaid out of Excess
Cash Flow, and to the extent the Intercreditor Agreement permits such
prepayment.
Any prepayment pursuant to this subsection (b) shall be applied to the
prepayment of the remaining principal installments of each Tranche of Facility A
in inverse order of maturity. No amounts prepaid pursuant to this subsection (b)
shall be available for reborrowing whether before or after the Facility A
Commitment Termination Date.
Each prepayment hereunder shall be allocated among the Facility A Lenders
on a pro rata basis. The Borrower shall pay such additional amounts as are
sufficient to pay the Lenders' Breakage Costs associated with such prepayments
in accordance with Section 3.04(b).
(c) Sale of Network. The Borrower shall prepay all outstanding
Advances, along with accrued or accreted but unpaid interest and applicable
Breakage Costs, and the Lenders' Commitments hereunder shall terminate,
upon the sale by the Borrower of the entire Network.
(d) Excess Borrowings.
(i) Subject to clause (ii) below as it applies to Tranche 2 of
Facility A, if on any date the aggregate principal amount of
outstanding Facility A Advances or Facility B Advances, respectively,
shall exceed either the Facility A Maximum Commitments or Facility B
Maximum Commitments, respectively, or the Facility A Borrowing Base or
the Facility B Borrowing Base, respectively, the Borrower shall
immediately prepay the then-outstanding balance of Facility A Advances
or Facility B Advances, as applicable, by an amount equal to such
excess together with all accrued (or accreted, in the case of Facility
B) but unpaid interest relating thereto.
(ii) Notwithstanding clause (i), above, with respect to
Overadvances permitted pursuant to the final paragraph of Section
2.01(a), the Borrower shall be required to repay such Overadvances, if
any, together with all accrued but unpaid interest relating thereto,
on the 180th day following the date of this Agreement.
55
(iii) Beginning on December 31, 1999 amounts prepaid on Facility
B on or prior to such date pursuant to subsection (d)(i) hereof
because of borrowings in excess of the Facility B Borrowing Base, will
be available for reborrowing prior to the Facility B Commitment
Termination Date in accordance with the terms and conditions of this
Agreement otherwise applicable thereto. Except as provided in clause
(iv) below, no other amounts prepaid or repaid pursuant to subsection
(d)(i) or (d)(ii) shall be available for reborrowing whether before or
after the Facility A Commitment Termination Date or the Facility B
Commitment Termination Date, respectively.
(iv) Amounts prepaid in accordance with the provisions of Section
7.06(b)(iii)(A)(1)(IV) shall be available for reborrowing prior to the
Facility A Commitment Termination Date.
(v) Any such prepayment shall be applied to the prepayment of a
ratable aggregate principal amount of the applicable Advances.
Each prepayment hereunder shall be allocated among the applicable Lenders
on a pro rata basis. The Borrower shall pay such additional amounts as are
sufficient to pay the Lenders' Breakage Costs associated with such prepayments
in accordance with Section 3.04(b).
(e) OC Common Stock Prepayments. The Borrower shall prepay all
outstanding Facility B Advances:
(i) on October 1, 2003 (except as otherwise provided below) if,
on each Trading Day during the 547-day period preceding such date, the
Market Price of OC Common Stock exceeded $40.00 per share (adjusted
for any stock combinations or splits after the date hereof); and
(ii) on any date that is
(A) after October 1, 2003 and
(B) on the 365th day after any date after October 1, 2002
(except as otherwise provided below) on which the Market Price of
OC Common Stock shall have exceeded $40.00 per share (adjusted
for any stock combinations or splits after the date hereof) on
each Trading Day during a period of 182 consecutive days;
provided that the Borrower shall not be required to make such prepayment if the
Market Price of OC Common Stock shall have been less than $40.00 per share
(adjusted for any stock combinations or splits after the date hereof) on any
Trading Day after such period of 182 consecutive days and prior to the initial
prepayment date.
56
Notwithstanding the preceding sentence of this subsection (e) or any other
provision of this Agreement pursuant to this subsection (e):
(1) If at the date on which a prepayment otherwise would be due (the
"Initial Prepayment Date") the Borrower shall have elected to repay the
Facility B Advances and interest thereon by delivery of OC Common Stock and
cannot pay all such amounts by such delivery by reason of Section
2.07(b)(VIII), on such date the Borrower shall be required to prepay by
delivery of OC Common Stock only a ratable aggregate principal amount of
such Facility B Advances forming part of the same Facility B Loans that is
equal to the maximum amount that may be prepaid subject to the limitations
of such Section. In such event, at the end of each 60-day period
thereafter, the Borrower (A) if electing to prepay such Facility B Advances
in cash, will repay all remaining Facility B Advances in cash, and (B)
otherwise will prepay the maximum ratable aggregate principal amount of
Facility B Advances forming part of the same Facility B Loan that may be
prepaid by delivery of OC Common Stock, subject to the limitations in such
Section.
(2) If on the date on which a prepayment otherwise would be required
under clause (i) or (ii) above, the Borrower shall have elected to make
such payment by delivery of OC Common Stock but shall be prevented from
making such payment on such date by reason of Section 2.07(b)(V) insofar as
the provisions thereof apply to a default by a Significant Subsidiary, such
prepayment shall not be required hereunder until the date that is six (6)
months after the date on which a prepayment would otherwise be required to
be made under clause (i) or (ii). If on such six-month anniversary, the
Borrower is prevented from making a payment using OC Common Stock for any
reason, the Borrower may pay the maximum amount it can through the payment
of Stock and shall pay the balance in cash on such date. Two Business Days
prior to such six-month anniversary, the Borrower shall deliver to the
Administrative Agent a notice indicating whether it has elected to make the
mandatory prepayment pursuant to this subsection (e) in OC Common Stock (or
a portion thereof), or in cash. In no event shall a deferral of payment
cause such payment to be made after the Maturity Date and in no event shall
a deferral of payment pursuant to this clause (3) postpone the payment of
any other mandatory prepayments required under this Agreement. In no event
shall a reduction in the Market Price of OC Common Stock during such six-
month period terminate the Borrower's requirement to make a mandatory
prepayment hereunder.
(3) With respect to any mandatory prepayment that is deferred pursuant
to clause (1), the Borrower shall be required to pay to the Administrative
Agent cash or that whole number of shares of OC Common Stock equal in
amount to the amount computed under Section 2.07(b)(ii) (x) in the case of
the payment due at the expiration of the first 60-day period following the
Initial Prepayment Date (the "First Deferred Payment Date"), on the Trading
Day immediately preceding the Facility B Notice Date relating to Initial
Prepayment Date; and (y) in the case of all subsequent 60-day periods, if
any, on the
57
Trading Date immediately preceding the Facility B Notice Date relating to
each deferred payment.
With respect to any mandatory prepayment that is deferred pursuant to
clause (2), the Borrower shall be required to pay to the Administrative
Agent cash or that whole number of shares of OC Common Stock equal in
amount to the amount computed under Section 2.07(b)(ii) on the Trading Day
immediately preceding the Facility B Notice Date relating to each deferred
payment.
No amounts prepaid pursuant to this subsection (e) shall be available for
reborrowing. Each prepayment hereunder shall be allocated among the Facility B
Lenders on a pro rata basis. The Borrower shall pay such additional amounts as
are sufficient to pay the Lenders' Breakage Costs associated with such
prepayments in accordance with Section 3.04(b).
(f) Prepayments Under Other Permitted Loan Agreements. At the same
time that any prepayments are to be made under any Permitted Loan
Agreements pursuant to the Intercreditor Agreement, the Borrower shall
(without duplication of amounts required to be prepaid pursuant to Section
3.02 (a), (b) or (c) hereof) prepay Facility A Advances in an aggregate
principal amount equal to:
(i) the amount to be prepaid under any Permitted Loan Agreement,
multiplied by
(ii) a fraction, (A) the numerator of which is the aggregate
principal amount of the Facility A Advances outstanding at the time of
such prepayment and (B) the denominator of which is the sum of such
aggregate principal amount, plus the aggregate principal amount of all
Indebtedness outstanding under the Permitted Loan Agreement on account
of which the prepayment is to be made and under all other Permitted
Loan Agreements which are entitled to receive a pro rata share.
Any prepayment pursuant to this subsection (f) shall be applied to the remaining
principal installments of Facility A in inverse order of maturity.
No amounts prepaid pursuant to this subsection (f) shall be available for
reborrowing whether before or after the Facility A Commitment Termination Date.
Each prepayment hereunder shall be allocated among the Facility A Lenders on a
pro rata basis. The Borrower shall pay such additional amounts as are sufficient
to pay the Lenders' Breakage Costs associated with such prepayments in
accordance with Section 3.04(b).
(g) Termination of Volume Purchase Agreement. The Borrower shall
prepay all outstanding Advances, and the Lenders' Commitments shall
terminate, upon the termination of the Volume Purchase Agreement as a
result of a default thereunder by the Borrower beyond applicable grace and
cure periods.
58
(h) Wichita PCS and D&E/Omnipoint Intercompany Loans. The Borrower
shall prepay all amounts advanced to Wichita PCS and D&E/Omnipoint (and all
accrued and unpaid interest thereon) on account of their respective
Intercompany Notes as required by Section 2.09, Section 6.22 and Section
7.04(l) within 180 days of the date of this Agreement.
Amounts prepaid on Tranche 2 of Facility A pursuant to subsection (h)
hereof (without duplication of and exclusive of any mandatory prepayment of any
Overadvance required under Section 3.02(d)) will be available for reborrowing
prior to the Facility A Commitment Termination Date.
A prepayment hereunder shall be allocated among the applicable Tranche 2
Facility A Lenders on a pro rata basis. The Borrower shall pay such additional
amounts as are sufficient to pay the Lenders' Breakage Costs associated with
such prepayment in accordance with Section 3.04(b).
(i) Adjusted Debt to Total POPs. If at the end of any fiscal quarter
during the term of this Agreement, the ratio of (i) Adjusted Debt
outstanding at the end of such fiscal quarter to (ii) Total POPs on the
last day of such fiscal quarter exceeds $32.00 to 1.00 (the "Maximum
Ratio"), the Borrower shall prepay within ten (10) Business Days after the
end of such fiscal quarter the dollar amount in cash which would cause the
Borrower not to exceed the Maximum Ratio for such fiscal quarter (including
accrued and unpaid interest thereon).
Any prepayment pursuant to this subsection (i) shall be applied to the
remaining principal installments of Facility A in inverse order of maturity and
pro rata between Tranche 1 and Tranche 2 of Facility A. Amounts prepaid on
Facility A pursuant to subsection (i) hereof will not be available for
reborrowing.
A prepayment hereunder shall be allocated among the applicable Facility A
Lenders on a pro rata basis. The Borrower will pay such additional amounts as
are sufficient to pay the Lender's Breakage Costs associated with such
prepayment in accordance with Section 3.04(b).
(j) Voluntary Transfers. Within ten (10) Business Days of the making
of a voluntary transfer of a C-block FCC License in respect of a Designated
BTA or portion thereof, to the FCC or to any Affiliate of the Borrower and
its Subsidiaries in either case in accordance with Section
7.06(b)(iii)(A)(1)(IV), the Borrower shall prepay an amount equal to the
sum of (x) the purchase price of all or a portion of the Nortel Goods and
Services previously purchased for use in the affected BTA or portion
thereof and (y) the amount of Permitted Third-Party Expenses incurred
(including accrued but unpaid interest thereon) in connection with the
affected BTA or portion thereof.
Any prepayment pursuant to this subsection (j) shall be applied to the
prepayment of the remaining principal installments of each Tranche of Facility A
in inverse order of maturity. No
59
amounts prepaid pursuant to this subsection (j) shall be available for
reborrowing whether before or after the Facility A Commitment Termination Date.
Each prepayment hereunder shall be allocated among the Facility A Lenders
on a pro rata basis. The Borrower shall pay such additional amounts as are
sufficient to pay the Lenders' Breakage Costs associated with such prepayments
in accordance with Section 3.04(b).
Section 3.03. Optional Prepayments of Loans.
(a) Facility A.
The Borrower shall have the right, at its election, to prepay the principal
amount outstanding under either tranche of Facility A, as a whole or in part, at
any time without penalty or premium, provided that any full or partial
prepayment of the principal amount of any LIBOR Advances pursuant to this
Section 3.03(a) may be made only on the last day of the Interest Period relating
thereto unless such prepayments are accompanied by such additional amounts as
are sufficient to pay the Lenders' Breakage Costs associated with such
prepayments. The Borrower shall give the Administrative Agent, no later than
10:00 a.m., New York time, at least three (3) Business Days' prior written
notice of any proposed prepayment pursuant to this Section 3.03(a) of Base Rate
Advances, and four (4) (or such shorter period as the Lenders may agree from
time to time) LIBOR Business Days' notice of any proposed prepayment pursuant to
this Section 3.03(a) of LIBOR Advances, in each case specifying the proposed
date of prepayment of Facility A Loans and the principal amount to be prepaid.
Each such partial prepayment of the Facility A Loans (i) shall be in a minimum
amount of $1,000,000 and in integral multiples of $100,000 (or, if less, the
aggregate outstanding principal balance of all Facility A Advances), (ii) shall
be accompanied by the payment of accrued interest on the principal prepaid to
the date of prepayment, (iii) shall require the payment of appropriate Breakage
Costs, if any, in accordance with Section 3.04(b), and (iv) shall be applied
ratably to Tranche 1 and Tranche 2 of Facility A and pro rata against the
remaining installment payments of principal on the applicable tranche. Each
partial prepayment shall be allocated among the Lenders on a pro rata basis.
No amounts so prepaid, whether before or after the Facility A Commitment
Termination Date, shall be available for reborrowing.
(b) Facility B.
(i) The Borrower shall have the right, at its election, to prepay
the principal amount outstanding under Facility B, as a whole or in part, at any
time without penalty or premium, provided that any full or partial prepayment of
the principal amount of any LIBOR Advances pursuant to this (S) 3.03(b)(i) may
be made only on the last day of the Interest Period relating thereto unless such
prepayments are accompanied by such additional amounts as are sufficient to pay
the Lenders' Breakage Costs associated with such prepayments. The Borrower
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shall give the Administrative Agent, no later than 10:00 a.m., New York
time, at least three (3) Business Days' prior written notice of any
proposed prepayment pursuant to this (S) 3.03(b)(i) of Base Rate Advances,
and four (4) (or such shorter period as the Lenders may agree from time to
time) LIBOR Business Days' notice of any proposed prepayment pursuant to
this (S) 3.03(b)(i) of LIBOR Advances, (or upon one Trading Day's notice,
in the case of prepayments by delivery of OC Common Stock (pursuant to (S)
2.07(b)(ii)), in each case specifying the proposed date of prepayment of
Facility B Loans and the principal amount to be prepaid. Each such partial
prepayment of the Facility B Loans (i) shall be in a minimum amount of
$1,000,000 and in integral multiples of $100,000 (or, if less, the
aggregate outstanding principal balance of all Facility B Advances), (ii)
shall be accompanied by the payment of accrued or accreted, but unpaid
interest on the principal prepaid to the date of prepayment, (iii) shall
require the payment of appropriate Breakage Costs, if any, in accordance
with (S) 3.04(b), and (iv) shall be applied ratably to Tranche 1 and
Tranche 2 of Facility B, with the balance, if any, applied to the principal
balance of Tranche 3. Each partial prepayment shall be allocated among the
Lenders on a pro rata basis.
--- ----
No amounts so prepaid, whether before or after the Facility B Commitment
Termination Date, shall be available for reborrowing.
(ii) The Borrower may irrevocably waive any rights it may have under
subsection (b)(i) above to make any particular optional prepayment of Facility B
Advances by delivery of OC Common Stock by delivery of a written waiver to that
effect so long as it has not previously delivered to the Administrative Agent a
notice referred to in (S) 2.07(b)(II) with respect to such particular payment.
Section 3.04. Certain Matters Relating to Repayments and Prepayments.
(a) On the date on which Advances are to be repaid or prepaid, and if
less than all Loans are to be repaid or prepaid, if both Base Rate Loans
and LIBOR Loans are outstanding, the Borrower will specify whether the Loan
to be repaid or prepaid shall be a Base Rate Loan or a LIBOR Loan and, if a
LIBOR Loan is to be repaid or prepaid and more than one LIBOR Loan is
outstanding, which such LIBOR Loan shall be prepaid.
(b) Subject to the following sentences of this subsection (b), all
prepayments and repayments pursuant to this Article III shall be
accompanied by such additional amounts as are sufficient to pay applicable
Breakage Costs and accrued and unpaid interest on the principal amount of
the Advances then being prepaid or repaid. A certificate of any Lender
setting forth the amount of any Breakage Costs which such Lender is
entitled to receive shall be furnished to the Borrower relating to any
prepayment for which the Administrative Agent has received notice in
accordance with the terms hereof, and shall be presumptively correct absent
manifest error. The Borrower shall pay all Breakage
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Costs to the Administrative Agent as in the Lender's certificate pursuant
to this Article III within one (1) Business Day after delivery of such
certificate.
ARTICLE IV
ILLEGALITY, INCREASED COSTS, CAPITAL ADEQUACY AND INDEMNITIES
Section 4.01. Illegality. Notwithstanding any other provisions herein, if
any present or future law, regulation, treaty or directive or the interpretation
or application thereof shall make it unlawful for any Lender to make or maintain
LIBOR Loans, such Lender shall forthwith give notice of such circumstances to
the Borrower, the Administrative Agent and the other Lenders and thereupon
(a) the Commitments of such Lender to make LIBOR Loans shall forthwith
be suspended until such notifying Lender shall have notified the
Administrative Agent and the Borrower that the circumstance giving rise to
such determination no longer exists (and if such notifying Lender shall
determine that such circumstance no longer exists it shall so notify the
Administrative Agent and the Borrower promptly after determining the same),
and
(b) the aggregate principal amount of such Lender's LIBOR Loans, if
any, shall be Converted automatically to Base Rate Loans on the last day of
each Interest Period applicable to such LIBOR Loans or within such earlier
period as may be required by applicable law.
Such Lender will designate a different Applicable Lending Office if such
designation will avoid the need for any suspension or Conversions described in
the preceding sentence and will not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender.
Section 4.02. Additional Costs and Capital Adequacy.
(a) If any present or future applicable law, which expression, as used
herein, includes statutes, rules and regulations thereunder and
interpretations thereof by any competent court having jurisdiction with
respect thereto or by any governmental or other regulatory body or official
charged with the administration or the interpretation thereof and requests,
directives, instructions and notices at any time or from time to time
hereafter made upon or otherwise issued to any Lender or the Administrative
Agent by any central bank or other fiscal, monetary or other authority
(whether or not having the force of law), shall
(i) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Agreement) any
special-deposit, reserve,
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assessment, liquidity, capital adequacy or other similar requirements
(whether or not having the force of law) against assets held by, or
deposits in or for the account of, or loans by, or commitments of an
office of any Lender, or
(ii) impose on any Lender or the Administrative Agent any other
conditions or requirements with respect to this Agreement, the other
Loan Documents, such Lender's Commitments, or any class of loans, or
commitments of which any of the Loans or such Lender's Commitments
form a part,
and the result of any of the foregoing is to increase the cost to such Lender of
making, funding, issuing, renewing, extending or maintaining any of the Advances
or such Lender's Commitments (taking into account such Lender's then-existing
policies with respect to maintaining capital), then the Borrower shall pay to
the Administrative Agent for the account of such Lender, within 15 days after
demand from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation in the light of such
circumstances, for such increased costs.
(b) If any law, governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law) or the interpretation
thereof by a court or governmental authority with appropriate jurisdiction,
that in any case becomes effective after the date hereof, affects the
amount of capital required or expected to be maintained by any Lender or
any corporation controlling such Lender and such Lender determines that the
amount of capital required to be maintained by it is increased by or based
upon the existence of such Lender's commitment with respect to any
Advances, the Borrower will pay to such Lender, within 15 days after demand
from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation in the light of
such circumstances, to the extent that such Lender reasonably determines
such increase in capital to be allocable to the existence of such Lender's
commitment to lend hereunder.
(c) Each demand by a Lender pursuant to this Section 4.02 shall be
accompanied by a statement setting forth in reasonable detail the basis for
such demand and the computation of such amount, including any method by
which such cost was allocated to the Borrower. In determining the amount of
any compensation, such Lender may use any reasonable averaging or
attribution methods in such demand, and any such methods so used shall be
binding on the Borrower. The amount specified in any such demand shall be
conclusive evidence of the amount owing, absent manifest error. Such Lender
will designate a different Applicable Lending Office if such designation
will avoid the need for or reduce the amount of any compensation under this
Section 4.02 and will not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender. By making any payment under this Section
4.02, the Borrower is not waiving its right to contest that the amounts in
the certificates are based on manifest error.
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Section 4.03. Taxes.
(a) Any and all payments by the Borrower hereunder or under the Notes
shall be made free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the
case of each Lender and the Administrative Agent, taxes imposed on its
income, and franchise taxes imposed on it in lieu of income taxes, by the
jurisdiction under the laws of which such Lender or the Administrative
Agent (as the case may be) is organized or any political subdivision
thereof and, in the case of each Lender, taxes imposed on its income, and
franchise taxes imposed on it in lieu of income taxes, by the jurisdiction
of such Lender's Applicable Lending Office or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If
the Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder or under any Note to any Lender or the
Administrative Agent,
(i) the sum payable shall be increased as may be necessary so
that after making all required deductions (including deductions
applicable to additional sums payable under this Section 4.03) such
Lender or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions
been made,
(ii) the Borrower shall make such deductions, and
(iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or under the
Notes or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) The Borrower will indemnify each Lender and the Administrative
Agent for the full amount of Taxes or Other Taxes (including any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this
Section 4.03) paid by such Lender or the Administrative Agent (as the case
may be) and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall be
made within 15 days from the date such Lender or such Agent (as the case
may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Administrative Agent, at its address referred
to in Section 12.02, the original or
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a certified copy of a receipt evidencing payment thereof. In the case of
any payment hereunder or under the Notes by or on behalf of the Borrower
through an account or branch outside the United States or on behalf of the
Borrower by a payor that is not a United States person, if the Borrower
determines that no Taxes are payable in respect thereof, the Borrower shall
furnish, or shall cause such payor to furnish, to the Administrative Agent,
at such address, an opinion of counsel acceptable to the Administrative
Agent stating that such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e) below, the terms "United States" and
"United States person" shall have the meanings specified in Section 7701 of
the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of
this Agreement in the case of each initial Lender and on the date of the
Assignment and Acceptance pursuant to which it becomes a Lender in the case
of each other Lender, and from time to time thereafter if requested in
writing by the Borrower (but only so long as such Lender remains lawfully
able to do so), shall provide the Borrower with Internal Revenue Service
Form 1001 or 4224, as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, certifying that such Lender is
exempt from or entitled to a reduced rate of United States withholding tax
on payments of interest pursuant to this Agreement or the Notes. If the
form provided by a Lender at the time such Lender first becomes a party to
this Agreement indicates a United States interest withholding tax rate in
excess of zero, withholding tax at such rate shall be considered excluded
from "Taxes" as defined in Section 4.03(a). If any form or document
referred to in this subsection (e) requires the disclosure of information,
other than information necessary to compute the tax payable and information
required on the date hereof by Internal Revenue Service form 1001 or 4224,
that the Lender reasonably considers to be confidential, the Lender shall
give notice thereof to the Borrower and shall not be obligated to include
in such form or document such confidential information.
(f) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in Section 4.03(e)
(other than if such failure is due to a change in law occurring subsequent
to the date on which a form originally was required to be provided, or if
such form otherwise is not required under the first sentence of subsection
(e) above), such Lender shall not be entitled to indemnification under
Section 4.03(a) only with respect to those Taxes which would not have been
imposed by the United States; provided that should a Lender become subject
to Taxes because of its failure to deliver a form required hereunder, the
Borrower shall take such steps as such Lender shall reasonably request and
at such Lender's expense to assist such Lender to recover such Taxes.
(g) If the Borrower is required to pay any amounts to or for the
account of any Lender pursuant to this Section 4.03, such Lender will
designate a different Applicable Lending Office if such designation will
avoid the need for or reduce the amount of any such
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payment and will not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender.
Section 4.04. Survival. Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Article IV shall survive the payment in full of
principal and interest hereunder and under the Notes.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders and the Administrative
Agent as follows:
Section 5.01. Corporate Authority; Limited Liability Company Authority.
(a) Each Loan Party in existence on the date hereof (or on any date on
which these representations and warranties are deemed repeated):
(i) is a corporation or a limited liability company duly
organized, validly existing and in good standing under the laws of its
state of incorporation or state of formation,
(ii) has all requisite corporate power or has taken all requisite
member and/or management action required to own its Property and
conduct its business (except in the case of the Atlantic City BTA with
respect to the absence of interconnection and Network services, as
described in (S) 6.23 hereof) as now conducted and as presently
contemplated, hereof, and
(iii) is in good standing as a foreign corporation or foreign
limited liability company and is duly authorized to do business in
each jurisdiction where such qualification is necessary in order to
conduct its business as now conducted except where a failure to be so
qualified would not have a Material Adverse Effect.
(b) on Schedule 5.01(b) hereto (as updated pursuant to Section
6.13(r)) is a complete and accurate list of all Subsidiaries of the
Borrower, showing (as to each such Subsidiary) the jurisdiction of its
incorporation or formation, the number of shares of each class or units of
Stock authorized, and the number outstanding, on the date hereof and the
percentage of the outstanding shares or units of each such class owned
(directly or indirectly) by the Borrower, the number of shares or units
covered by all outstanding options, warrants, rights of conversion or
purchase and similar rights at the date hereof. All of the outstanding
Stock of each such Subsidiary has been validly issued, is fully paid
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and non-assessable and is owned by the Borrower or one or more of its
Subsidiaries free and clear of all Liens, except those created or permitted
under the Loan Documents or as disclosed in such Schedule (as so updated).
Each such Subsidiary:
(i) is a corporation or a limited liability company duly
organized, validly existing and in good standing under the laws of its
state of incorporation or state of formation,
(ii) has all requisite corporate power or has taken all requisite
member and/or management action required to own its Property and
conduct its business (except in the case of the Atlantic City BTA with
respect to absence of interconnection and Network services, as
described in (S) 6.23 hereof), as now described in Section 6.23
hereof), as now conducted and as presently contemplated and
(iii) is in good standing as a foreign corporation or foreign
limited liability company and is duly authorized to do business in
each jurisdiction where such qualification is necessary in order to
conduct its business as now conducted except where a failure to be so
qualified would not have a Material Adverse Effect.
(c) The execution, delivery and performance by each Loan Party of this
Agreement and the other Loan Documents to which it is or is to become a
party, and the consummation of the transactions contemplated hereby and
thereby:
(i) are within the corporate or limited liability company
authority of such Loan Party,
(ii) have been duly authorized by all necessary corporate (in the
case of a corporation) or member and/or management (in the case of a
limited liability company) actions or proceedings,
(iii) do not conflict with or result in any breach or
contravention of any provision of law, statute, rule or regulation to
which such Loan Party is subject or any judgment, order, writ,
injunction, license or permit applicable to such Loan Party or its
Property and
(iv) do not conflict with any provision of the corporate or
limited liability company charter or bylaws of, or any agreement or
other instrument binding upon, the Loan Party or its Property, and
(v) will not result in the creation, or imposition of, or
obligation to create, any Lien upon the Property of any Loan Party,
other than Liens granted pursuant to the Collateral Documents.
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(d) This Agreement has been, and each of the Notes and each other Loan
Document when delivered hereunder will have been, duly executed and
delivered by each Loan Party thereto. This Agreement is, and each of the
Notes and each other Loan Document when delivered hereunder will be, the
legal, valid and binding obligation of each Loan Party thereto, enforceable
against such Loan Party in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the enforcement
of creditors' rights and except to the extent that availability of the
remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding therefor may be
brought.
Section 5.02. Governmental Approvals. The execution, delivery and
performance by each Loan Party of this Agreement and the other Loan Documents to
which such Loan Party is or is to become a party and the transactions
contemplated hereby and thereby do not require the approval or consent of, or
filing with, any governmental agency or authority other than those already
obtained and for any subsequent informational filing with the Securities and
Exchange Commission or approval contemplated by Section 5.07.
Section 5.03. Title to Properties. The Borrower and each of its
Subsidiaries own all of the assets reflected in the balance sheet of such
parties as at the Balance Sheet Date or acquired since that date (except FCC
Licenses owned by the C-Block Subsidiary or a D-, E- and F- Block Subsidiary and
property and assets sold or otherwise disposed of in the ordinary course of
business since that date), subject to no rights of others, including any
mortgages, leases, conditional sales agreements, title-retention agreements,
liens or other encumbrances except Permitted Liens. The License Subsidiaries own
all of the FCC Licenses listed on Schedule 5.07 hereto.
Section 5.04. Financial Statements. There has been furnished to the
Administrative Agent a pro forma consolidated balance sheet of the Borrower and
its Subsidiaries as of the Balance Sheet Date. Such pro forma consolidated
balance sheet has been prepared in accordance with GAAP and fairly presents the
assets and liabilities of the Borrower and each of its Subsidiaries as at the
close of business on the date thereof. There are no Contingent Obligations of
the Borrower or its Subsidiaries as of such date involving material amounts,
known to the officers of the Borrower, which were not disclosed in such pro
forma balance sheet. Since the Balance Sheet Date, there has not occurred any
changes that would make the pro forma balance sheet delivered to the
Administrative Agent pursuant to this Section 5.04 untrue or misleading in any
material way.
Section 5.05. No Material Adverse Effect, Etc. There has occurred no
Material Adverse Effect with respect to the Borrower or any of its Subsidiaries
(i) since the Balance Sheet Date based on the pro forma balance sheet delivered
pursuant to Section 5.04 or (ii) since the date of the most recent audited
financial statements provided to the Lenders, and all information provided by or
on behalf of the Borrower to the Lenders prior to the date of the initial
Advance are true and
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correct in all material aspects. Except as permitted hereunder, the Borrower
has not made any Distribution.
Section 5.06. Franchises, Patents, Copyrights, Etc. The Borrower and each
of its Subsidiaries own or have rights under the franchises, licenses, patents,
copyrights, trademarks, trade names, other intellectual property and rights in
respect of the foregoing which are listed on Schedule 5.06, without known
conflict with any rights of others. Except as in Schedule 5.06, there are no
franchises, licenses, patents, copyrights, trademarks, trade names, or other
intellectual property, individually or in the aggregate, that are material for
the conduct of the business of the Borrower or any of its Subsidiaries, as now
conducted or as presently contemplated to be conducted.
Section 5.07. FCC Licenses, Etc.
(a) Part I of Schedule 5.07 lists all FCC Licenses held by License
Subsidiaries other than C-Block Subsidiaries and D-, E- and F-Block
Subsidiaries. Part II of Schedule 5.07 lists all FCC Licenses held by
License Subsidiaries of the C-Block Subsidiary Parent. Part III of Schedule
5.07 lists all FCC Licenses held by License Subsidiaries of the D-, E- and
F-Block Subsidiary Parent. The C-Block Subsidiary Parent and the D-, E- and
F-Block Subsidiary Parent have filed or caused to be filed applications
with the FCC for the transfer of all of the Stock of the License
Subsidiaries holding all of the FCC Licenses listed in Parts II and III of
Schedule 5.07 to the Borrower, and the Borrower expects that such transfer
shall take place within 180 days of the date of this Agreement.
(b) Neither any FCC License nor any material Necessary Authorization
is the subject of any pending or, to the best of the Borrower's knowledge,
threatened revocation or revocation proceeding.
Section 5.08. Litigation. Except as on Schedule 5.08 attached hereto, there
are no actions, suits, proceedings or investigations of any kind pending or, to
the best of the Borrower's knowledge, threatened against any Loan Party before
any court, tribunal or administrative agency or board (including the FCC) that,
if adversely determined, might, either in any case or in the aggregate, have a
Material Adverse Effect or materially impair the right of such Loan Party, to
carry on business substantially as now conducted, or result in any substantial
and material liability not adequately covered by insurance, or for which
adequate reserves are not maintained on the balance sheet of such Loan Party, or
that questions the validity of this Agreement or any of the Loan Documents, or
any action taken or to be taken pursuant hereto or thereto.
Section 5.09. No Materially Adverse Contracts, Etc. None of the Loan
Parties is subject to any charter, corporate or other legal restriction, or any
judgment, decree, order, rule or regulation that has or is expected in the
future to have a Material Adverse Effect. None of the Loan Parties is a party to
any contract or agreement that has or is expected, in the judgment of such Loan
Party's officers, to have any Material Adverse Effect.
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Section 5.10. Compliance with Other Instruments, Laws, Etc. None of the
Loan Parties is in violation of any provision of its charter documents, bylaws
or any agreement or instrument to which it may be subject or by which it or any
of its Properties may be bound or any decree, order, judgment, statute, license,
rule or regulation, in any of the foregoing cases in a manner that could result
in the imposition of substantial penalties or have a Material Adverse Effect.
Section 5.11. Tax Status. Each Loan Party and each of its Subsidiaries and
Affiliates
(a) has made or filed all federal and state income and all other tax
returns, reports and declarations required by any jurisdiction to which it
is subject or filed extensions therefor;
(b) has paid all taxes and other governmental assessments and charges
shown or determined to be due on such returns, reports and declarations,
except those being contested in good faith and by appropriate proceedings;
and
(c) has set aside on its books provisions reasonably adequate for the
payment of all taxes for all elapsed periods subsequent to the periods to
which such returns, reports or declarations apply.
There are no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction in respect of any Loan Party or any of its
Subsidiaries or Affiliates, and the officers of the Borrower know of no basis
for any such claim.
Section 5.12. No Default. No Default has occurred and is continuing.
Section 5.13. Holding Company and Investment Company Acts. Neither any Loan
Party nor any of its Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company", as
such terms are defined in the Public Utility Holding Company Act of 1935.
Neither any Loan Party nor any of its Subsidiaries is an "investment company",
or an "affiliated company" or a "principal underwriter" of an "investment
company", or an entity "controlled" by an "investment company", as such terms
are defined in the Investment Company Act of 1940, as amended.
Section 5.14. Absence of Financing Statements, Etc. Except with respect to
Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with any
filing records, registry or other public office, that purports to cover, affect
or give notice of any present or possible future lien on, or security interest
in, any assets or Property of the Borrower or any of its Subsidiaries or any
rights relating thereto.
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Section 5.15. FCC Matters. Except for the filing of tariffs with the FCC,
each Loan Party has duly and timely filed all filings which are required to be
filed by it under the Communications Act, the failure to file which could
reasonably be expected to have a Material Adverse Effect and is in all material
respects in compliance with the Communications Act, including, without
limitation, the rules and regulations of the FCC applicable to it, the failure
to be in compliance with which could reasonably be expected to have a Material
Adverse Effect. No failure to pay any Indebtedness owing to the FCC in respect
of FCC Debt has occurred, except in accordance with the orders, rules and
regulations of the FCC.
Section 5.16. Tariffs. No action to change, alter, rescind or otherwise
terminate the tariffs containing service regulations or any rates and charges
for commercial mobile radio services which, if adversely determined, would have
a Material Adverse Effect, is pending or known by the Borrower to be under
consideration.
Section 5.17. Disclosure. This Agreement, the other Loan Documents and the
statements and documents referred to herein or therein delivered to the
Administrative Agent and/or the Lenders by or on behalf of the Borrower or any
Loan Party pursuant hereto, taken together, contain no untrue statement of a
material fact or fail to state a material fact which would be necessary to make
the statements (taken as a whole) herein and therein not misleading at such
time.
Section 5.18. Burdensome Obligations. No Loan Party is a party to or bound
by any franchise, agreement, deed, lease or other instrument, or subject to any
legal restriction which is so unusual or burdensome, in the context of its
business, as in the foreseeable future might materially and adversely affect or
impair the revenue or operating cash flow of such Loan Party, or the ability of
such Loan Party to perform the obligations to be performed by it under the Loan
Documents to which such Loan Party is a party. The Borrower does not presently
anticipate that future expenditures by the Borrower or any of its Subsidiaries
needed to meet the provisions of federal or state statutes, orders, rules or
regulations will be so burdensome as to affect or impair, in a materially
adverse manner, the business or condition, financial or otherwise, of the
Borrower or any of its Subsidiaries.
Section 5.19. Solvency. Each Loan Party is, individually and together with
its Subsidiaries, and after giving effect to the incurrence of all Indebtedness
as and when contemplated by the Loan Documents will be, Solvent.
Section 5.20. Security Interests. The security interests granted under the
Collateral Documents constitute valid, binding and continuing duly perfected
first-priority Liens in and to the Collateral (except for Permitted Liens that
have priority under applicable law or as provided herein or in the Intercreditor
Agreement) in favor of the Collateral Agent, for the benefit of the Lenders.
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Section 5.21. Certain Transactions. None of the officers, directors or
employees of the Borrower is presently a party to any transaction with the
Borrower (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Borrower, any corporation,
partnership, trust or other entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee or
partner. The Borrower has delivered a complete and correct copy of the Expense
Allocation Agreement, the Cash Management Agreement and the Management Services
Agreement, to the Administrative Agent. The Borrower is not a party to any
management, operating, license or other agreement providing for the payment of
any amount to any of its Affiliates, except for the Expense Allocation
Agreement, the Management Services Agreement or as permitted under Section 7.11.
To the extent Intellectual Property of the Parent or OC is licensed to the
Borrower or its Subsidiaries, the terms of such license(s) and the fee charged
to the Borrower or its Subsidiaries relating thereto shall be subject to the
Required Lenders' reasonable approval.
Section 5.22. Business Plans. The Approved Full-Term Operating Business
Plan and each Approved Annual Operating Business Plan, if any, have been
prepared in all material respects in accordance with GAAP (except for the
treatment of Indebtedness owing to the FCC, which has been reflected in such
plans at historical cost) consistently applied to projections.
Section 5.23. Employee Benefit Plans.
(a) In General. Each Employee Benefit Plan and each Plan has been
maintained and operated in compliance in all material respects with the
provisions of ERISA and, to the extent applicable, the IRC, including, but
not limited to, the provisions thereunder respecting prohibited
transactions. The Borrower and each of its Subsidiaries has made all
required contributions to each Employee Benefit Plan and each Multiemployer
Plan. To the extent applicable, the Borrower has heretofore delivered to
the Administrative Agent the most recently completed annual report, Form
5500, with all required attachments, and actuarial statement required to be
submitted under Section 103(d) of ERISA, with respect to each Guaranteed
Pension Plan.
(b) Terminability of Welfare Plans. Under each Employee Benefit Plan
that is an employee welfare benefit plan within the meaning of Section 3(1)
or Section 3(2)(B) of ERISA, no benefits are due unless the event giving
rise to the benefit entitlement occurs prior to plan termination (except as
required by Title I, Subtitle B, Part 6 of ERISA). The Borrower, each of
its Subsidiaries and each ERISA Affiliate may terminate each such Plan at
any time (or at any time subsequent to the expiration of any applicable
bargaining agreement) in the discretion of such Loan Party or such ERISA
Affiliate without liability to any Person.
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(c) Guaranteed Pension Plans. Each contribution required to be made to
a Guaranteed Pension Plan, whether required to be made to avoid the
incurrence of an accumulated funding deficiency, the notice or lien
provisions of Section 302(f) of ERISA, or otherwise, has been timely made.
No waiver of minimum funding standards or extension of amortization periods
has been requested or received with respect to any Guaranteed Pension Plan.
No liability to the PBGC (other than required insurance premiums, all of
which have been paid) has been incurred by the Borrower, any of its
Subsidiaries or any ERISA Affiliate with respect to any Guaranteed Pension
Plan and there has not been any ERISA Event, or any other event or
condition that presents a material risk of termination of any Guaranteed
Pension Plan by the PBGC. None of the Borrower, any of its Subsidiaries or
any ERISA Affiliate has instituted or intends to institute proceedings to
terminate a Guaranteed Pension Plan. No event requiring notice to the PBGC
under Section 302(f)(4)(A) of ERISA has occurred with respect to any
Guaranteed Pension Plan and no amendment with respect to which security is
required under Section 307 of ERISA has been made or is reasonably expected
to be made to any Guaranteed Pension Plan. Based on the latest valuation of
each Guaranteed Pension Plan (which in each case occurred within 12 months
prior to the date of this representation), and on the actuarial methods and
assumptions employed for that valuation, the aggregate benefit liabilities
of all such Guaranteed Pension Plans within the meaning of Section 4001 of
ERISA did not exceed the aggregate value of the assets of all such
Guaranteed Pension Plans, disregarding for this purpose the benefit
liabilities and assets of any Guaranteed Pension Plan with assets in excess
of benefit liabilities.
(d) Multiemployer Plans. None of the Borrower, any of its Subsidiaries
or any ERISA Affiliate has incurred or expects to incur any material
liability (including secondary liability) to any Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan
under Section 4201 of ERISA or as a result of a sale of assets described in
Section 4204 of ERISA. Neither any Loan Party nor any ERISA Affiliate has
been notified that any Multiemployer Plan is in reorganization or insolvent
under and within the meaning of Section 4241 or Section 4245 of ERISA or
that any Multiemployer Plan intends to terminate or has been terminated
under Section 4041A of ERISA.
Section 5.24. Regulations G, T, U and X. No portion of any Loan shall be
used or obtained for the purpose of purchasing or carrying any "margin security"
or "margin stock" as such terms are used in Regulations G, T, U and X of the
Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224.
Section 5.25. Environmental Compliance. The Borrower has taken all
necessary steps to investigate the past and present condition and usage of its
Real Estate and the operations conducted thereon and, based upon such diligent
investigation, makes the following representations:
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(a) The Borrower and each of its Subsidiaries is in compliance with
all applicable Environmental Laws relating to the operation of its business
and the use and occupancy of any Real Estate. There is no pending or
threatened civil or criminal litigation, written notice of violation,
formal administrative proceeding, or investigation, inquiry or information
request by any governmental entity relating to any Environmental Law
involving the Borrower or any of its Subsidiaries.
(b) There have been no releases of any Materials of Environmental
Concern into the environment at any parcel of Real Estate or any facility
formerly or currently owned, operated or controlled by the Borrower or any
of its Subsidiaries. With respect to any such releases of any Materials of
Environmental Concern, the Borrower has given all required notices to
government entities. The Borrower is not aware of any releases of Materials
of Environmental Concern at parcels of Real Estate or facilities other than
those owned, operated or controlled by the Borrower or any of its
Subsidiaries that could reasonably be expected to have an impact on the
Real Estate or facilities owned, operated or controlled by the Borrower or
any of its Subsidiaries.
(c) in Schedule 5.25 is a list of all environmental reports,
investigations and audits relating to premises currently or previously
owned or operated by the Borrower and its Subsidiaries (whether conducted
by or on behalf of the Borrower, any of its Subsidiaries or a third party,
and whether done at the initiative of the Borrower or any of its
Subsidiaries or directed by a governmental entity or other third party)
which the Borrower or any of its Subsidiaries has in its possession or to
which it has access, and complete and accurate copies of each such report,
or the results of each such investigation or audit, have been provided to
the Administrative Agent.
(d) The Borrower and each of its Subsidiaries has filed all reports
and returns required to be filed by such Person under any Environmental
Laws. The Borrower and each of its Subsidiaries has obtained and is in
compliance with all licenses, permits, registrations, certificates,
consents, approvals or authorizations (collectively, "Environmental
Permits") required by all applicable Environmental Laws. No event has
occurred and is continuing that requires, or after notice or lapse of time
or both would require, any modification or termination of any Environmental
Permit. Neither the Borrower nor any of its Subsidiaries (i) has received
any notice asserting the absence of any Environmental Permit or (ii) has
knowledge of any environmental law proposed or under consideration, which,
if effective, could have a Material Adverse Effect.
(e) Neither the Borrower nor any of its Subsidiaries, nor any of the
Real Estate, is subject to any applicable Environmental Laws requiring the
performance of site assessments for Materials of Environmental Concern, or
the removal or remediation of Materials of Environmental Concern, or the
giving of notice to any governmental agency or the recording or delivery to
other Persons of an environmental disclosure document
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or statement by virtue of the transactions set forth herein and
contemplated hereby, or as a condition to the effectiveness of any
transactions contemplated hereby.
Section 5.26. Joint Ventures, Etc. Except as in Schedule 5.26, the Borrower
is not engaged in any joint venture or partnership with any other Person, and
each joint venture or partnership listed in such Schedule is a Qualified Joint
Venture or a NonQualified Joint Venture in which the Borrower is permitted to
invest pursuant to Section 7.04(g), (k) or (l) hereof.
Section 5.27. Material Contracts. As of the date of this Agreement, neither
the Borrower nor any of its Subsidiaries is a party to any Material Contract or
any agreement with any director, officer or employee, except as in Schedule
5.27.
Section 5.28. Representations in Other Loan Documents. Each of the
representations by any Loan Party in any of the other Loan Documents is true as
of the date hereof.
Section 5.29. Ericsson Tranche Y Loan. All requirements for mandatory
prepayments contained in the Ericsson Tranche Y Loan have been disclosed in
writing to the Administrative Agent and the Lenders.
Section 5.30. OC Stock Payment Date. The definitions of "First Optional
Payment Date" and "Second Optional Payment Date" as defined in this Agreement
are the same definitions as the definitions of those respective terms that are
contained in the Ericsson Tranche Y Loan.
ARTICLE VI
AFFIRMATIVE COVENANTS OF THE BORROWER
The Borrower covenants and agrees that, so long as any Loan or Note or any
fees or expenses are outstanding or any Lender has any Commitment hereunder:
Section 6.01. Maintenance of Office. The Borrower shall maintain, and shall
cause each of its Subsidiaries to maintain, its chief executive office at 0
Xxxxx Xxxxxx, Xxxxxxxx, XX 00000 (except in the case of an Operating Subsidiary,
at 00 Xxxx Xxxxx, Xxxxx Xxxxxx, XX 07927), except that the Borrower or any such
Subsidiary may change its chief executive office on not less than 30 days'
advance written notice to the Administrative Agent and the Collateral Agent and
after taking all such action as may be necessary or appropriate or requested by
the Collateral Agent or the Administrative Agent to continue the perfection of
the Collateral Agent's security interest in the Collateral.
Section 6.02. Records and Accounts. The Borrower shall, and shall cause
each of its Subsidiaries to:
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(a) keep true and accurate records and books of account in which full,
true and correct entries shall be made in accordance with GAAP, and
(b) maintain adequate accounts and reserves for all taxes (including
income taxes), depreciation, depletion, obsolescence and amortization of
its Properties, contingencies and other reserves.
Section 6.03. Corporate and Limited Liability Company Existence;
Maintenance of Licenses. The Borrower shall do or cause to be done, and shall
cause each of its Subsidiaries to do or cause to be done, all things necessary
to:
(a) preserve and keep in full force and effect its corporate or
limited liability company existence;
(b) maintain in full force and effect:
(i) each FCC License with respect to the BTAs specified in Parts
I, II and III of Schedule 5.07 (other than any such FCC License that
has been previously sold or transferred in accordance with this
Agreement) and any other FCC Licenses from time to time held by any
License Subsidiary and cause each License Subsidiary at all times to
own each FCC License listed in Schedule 5.07 (other than any such FCC
License that has been previously sold or transferred in accordance
with this Agreement), free and clear of any Lien of any kind, other
than any Lien permitted under Section 7.02(g);
(ii) with respect to the construction, installation and
development of facilities for the Designated BTAs, all FCC Licenses
and material Necessary Authorizations appropriate to the level of
development theretofore achieved and sufficient to avoid noncompliance
with the then applicable minimum build-out requirements under the FCC
License for such BTAs; and
(iii) with respect to the operation of those portions of
Designated BTAs the development of which has theretofore been
completed, all material FCC Licenses, copyrights, patents, franchises,
Necessary Authorizations and other rights as are necessary and
sufficient to operate such completed portions.
(c) subject to the provisions of Section 7.11(a)(v), cause OC, the C-
Block Subsidiary Parent and the D-, E-, and F-Block Subsidiary Parent to
cause the ownership of all Stock of License Subsidiaries holding the FCC
Licenses for the BTAs listed in Parts II and III of Schedule 5.07 to be
transferred to the Borrower within 180 days after the date of this
Agreement.
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The Borrower will, and will cause its Subsidiaries to, at all times perform and
observe all covenants and conditions on its part to be performed and observed
under FCC rules and regulations or otherwise with respect thereto with respect
to the FCC Licenses held by License Subsidiaries and not cause or permit to
exist any grounds for the FCC to revoke or suspend or not to renew such License
in accordance with Section 7.06(b).
Section 6.04. Maintenance of Properties. The Borrower shall do or cause to
be done, and shall cause each of its Subsidiaries to do or cause to be done, all
things necessary to preserve and keep in full force and effect its material
franchises, employment contracts and permits. The Borrower shall, and shall
cause each of its Subsidiaries to:
(a) cause all of its Properties used or useful in the conduct of its
business to be maintained and kept in good condition, repair and working
order (ordinary wear and tear excepted) and supplied with all necessary
equipment;
(b) cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the
Borrower may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times;
(c) continue to engage primarily in the businesses now conducted by it
and in related businesses; and
(d) continue in full force and effect all authorizations and approvals
required to conduct the businesses now conducted by it as appropriate to
the then level of construction, development and operation of PCS Systems
covered by FCC Licenses held by License Subsidiaries;
provided that nothing in this Section 6.04 shall prevent the Borrower or any of
its Subsidiaries from discontinuing the operation and maintenance of any of its
Properties if such discontinuance is, in the judgment of the Borrower or such
Subsidiary, desirable in the conduct of its business and would not have a
Material Adverse Effect.
Section 6.05. Insurance. The Borrower shall obtain and maintain, and shall
cause each of its Subsidiaries to obtain and maintain, insurance with respect to
its properties and business with insurers that hold an A.M. Best rating of "A"
or better. The insurance coverage shall:
(a) include, as a minimum, the types of policies and respective limits
as reflected in Section 12 of each Security Agreement;
(b) with respect to all liability insurance, name the Administrative
Agent and the Collateral Agent as additional insured;
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(c) with respect to casualty insurance, name the Collateral Agent as
loss payee as its interest may appear; and
(d) provide that the insurer will give the Administrative Agent and
the Collateral Agent at least 30-days' prior written notice of the
cancellation or any material change in the coverage, aggregate limits or
any other provision of such insurance.
The Borrower shall deliver to the Administrative Agent and the Collateral Agent,
as required by Section 8.19, no later than March 31 in each calendar year and
otherwise promptly on request by the Administrative Agent or the Collateral
Agent, certificate(s) of insurance reflecting the requirements of this Section
6.05, each Security Agreement and each Mortgage, and setting forth any
deductibles applicable to any insurance coverage.
Section 6.06. Taxes. The Borrower shall duly pay and discharge, and cause
each of its Subsidiaries to duly pay and discharge, before the same shall become
overdue, all taxes, assessments and other governmental charges imposed upon it
and its Real Estate, sales and activities, or any part thereof, or upon the
income or profits therefrom, as well as all claims for labor, materials, or
supplies that if unpaid might by law become a Lien or charge upon any of its
Property; provided that no such tax, assessment, charge, levy or claim need be
paid if the validity or amount thereof shall currently be contested in good
faith by appropriate proceedings and if the Borrower or any of its Subsidiaries
has set aside on its books adequate reserves with respect thereto and such
reserves have been segregated to the extent required by GAAP; and provided
further that the Borrower shall pay all such taxes, assessments, charges, levies
or claims forthwith upon the commencement of proceedings to foreclose any Lien
that may have attached as security therefor.
Section 6.07. Inspection of Properties and Books.
(a) The Borrower shall permit, and shall cause each of its
Subsidiaries to permit, the Administrative Agent, the Lenders and their
other designated representatives to visit and inspect any of the Properties
of the Borrower or such Subsidiary, to examine the books of account of the
Borrower or such Subsidiary (and to make copies thereof and extracts
therefrom), and to discuss the affairs, finances and accounts of the
Borrower or such Subsidiary with, and to be advised as to the same by, its
officers, all at such reasonable times and intervals as the Administrative
Agent or any Lender may reasonably request; provided that the
Administrative Agent and each Lender shall use reasonable commercial
efforts not to interfere with the business of the Borrower or any of its
Subsidiaries.
(b) The Borrower authorizes the Administrative Agent and each Lender
to communicate directly with the independent certified public accountants
of the Borrower or any of its Subsidiaries and authorizes such accountants
to disclose to the Administrative Agent and the Lenders any and all
financial statements and other supporting financial
78
documents and schedules including copies of any management letter with
respect to the business, financial condition and other affairs of the
Borrower and its Subsidiaries. At the request of the Administrative Agent,
the Borrower shall deliver a letter addressed to such accountants
instructing them to comply with the provisions of this Section 6.07(b).
Section 6.08. Compliance with Laws, Contracts, FCC Licenses and Permits.
The Borrower shall comply, and shall cause each of its Subsidiaries to comply,
in all material respects with:
(a) the applicable laws, rules, regulations and orders wherever its
business is conducted, including without limitation compliance with all
Environmental Laws, all Environmental Permits, ERISA, the IRC, the
Communications Act and all FCC rules and regulations (including without
limitation compliance with FCC rules and regulations relating to
maintaining the status of the License Subsidiaries as designated entities
and small businesses);
(b) the provisions of its charter documents and by-laws;
(c) all material agreements and instruments to which it or any of its
Subsidiaries is a party and by which it or any of its Subsidiaries or any
of its or their Properties may be bound;
(d) all obligations with respect to any Employee Benefit Plan or
Multiemployer Plan; and
(e) all applicable decrees, orders, and judgments.
If any authorization, consent, approval, permit or license from any officer,
agency or instrumentality of any government shall become necessary or required
in order that the Borrower or any of its Subsidiaries may fulfill any of the
Borrower's or such Subsidiary's obligations hereunder or any of the other Loan
Documents to which the Borrower or any of its Subsidiaries is a party, the
Borrower shall immediately take, or shall cause such Subsidiary immediately to
take, all reasonable steps within the power of the Borrower or such Subsidiary
to obtain such authorization, consent, approval, permit or license and furnish
the Administrative Agent evidence thereof.
Section 6.09. Further Assurances. The Borrower shall cooperate, and shall
cause each of its Subsidiaries to cooperate, with the Lenders and the
Administrative Agent, and shall execute and pay, and shall cause each of its
Subsidiaries to execute and pay, as applicable, for the filing of all such
further instruments and documents, including, without limitation, such Uniform
Commercial Code financing statements and other security documents as the
Required Lenders, the Collateral Agent or the Administrative Agent shall
reasonably deem appropriate at any time in order to effectuate the security
interests in favor of the Collateral Agent and to carry out to
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their satisfaction the transactions contemplated by the Loan Documents.
Specifically, the Borrower shall deliver to the Collateral Agent all
certificates representing its ownership interests in the C-Block License
Subsidiaries and the D-, E- and F-Block License Subsidiaries, along with stock
powers executed in blank, upon the transfer of the ownership of such Stock from
the C-Block Subsidiary Parent and the D-, E- and F-Block Subsidiary Parent,
respectively, to the Borrower.
Section 6.10. Attornment and Recognition Agreements; Consents to Collateral
Assignments. The Borrower shall obtain, and shall cause each of its Subsidiaries
to obtain, (a) all attornment and recognition agreements from any landlord or
landlord's mortgagee of Real Estate leased by the Borrower or any of its
Subsidiaries (i) upon which any equipment with a value, individually or in the
aggregate, in excess of $1,000,000 is stored or located, and (ii) as to all such
leased Real Estate, for locations where at least eighty percent (80%) in
aggregate value of all equipment (taking into account the value of all equipment
at locations owned by the Borrower and its Subsidiaries) of such the Borrower or
its Subsidiaries is located, as well as (b) consents to collateral assignments
as the Administrative Agent may reasonably require from all parties to Material
Contracts with the Borrower or its Subsidiaries, each in form and substance
satisfactory to the Administrative Agent. The Borrower shall use its best
efforts to obtain all attornment and recognition agreements from any landlord or
landlord's mortgagee of Real Estate leased by the Borrower or any of its
Subsidiaries upon which all other Collateral not covered by the immediately
preceding sentence is stored or located, in form and substance reasonably
satisfactory to the Required Lenders. The Borrower shall collaterally assign the
Management Services Agreement to the Collateral Agent for the ratable benefit of
the Lenders. If and to the extent that the Borrower is unable to obtain
attornment and recognition agreements on a best efforts basis in accordance with
the second sentence of this Section 6.10, then the Borrower shall and shall
cause its Subsidiaries to request that any landlord, mortgagee and easement
grantor of the Borrower or any of its Subsidiaries agree to give the Collateral
Agent and the Administrative Agent, on a best efforts basis, notice of any
default by the Borrower or such Subsidiary under the terms or conditions of any
agreement between the Borrower and/or such Subsidiary and any landlord,
mortgagee of any such landlord or easement grantor, and allow the Collateral
Agent to inspect or remove Collateral after the occurrence and continuance of an
Event of Default.
Section 6.11. Expense Allocation Agreement. The Borrower shall comply with
the terms of the Expense Allocation Agreement and not consent to any waiver,
modification or amendment thereto.
Section 6.12. Maintenance of Subsidiary. The Borrower shall cause each
Operating Subsidiary and, after ownership thereof is transferred to the Borrower
in accordance with Section 6.03(c) of this Agreement, each License Subsidiary to
remain a Wholly Owned Subsidiary of the Borrower at all times at which this
Agreement is in force and effect.
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Section 6.13. Reporting Requirements; Notices. The Borrower shall
deliver or cause to be delivered to the Administrative Agent on behalf of the
Lenders the following (in a sufficient number of copies to permit distribution
to each Lender):
(a) Approved Annual Operating Business Plan. No later than 15 days
prior to (or 31 days after, with respect to fiscal years 1998 and 1999) the
end of each fiscal year of the Borrower and until the first fiscal year
ending after the date on which EBITDA is greater than zero for two
successive fiscal quarters, a proposed annual operating business plan
containing the statements listed in items (i) through (vi) in this
paragraph and the exhibits contained in the annual operating business plan
delivered pursuant to Section 8.12 for the next-succeeding fiscal year. The
proposed annual operating business plan shall contain:
(i) internally prepared statements of income and expense of the
Borrower and its Subsidiaries in reasonable detail for the applicable
period prepared in all material aspects in accordance with GAAP
(except for the absence of footnotes),
(ii) a schedule of all Capital Expenditures estimated to be made
during the period,
(iii) a statement of the amounts and times by which the Borrower
and its Subsidiaries need to raise additional capital to meet their
obligations when due during the period,
(iv) projected balance sheets of the Borrower and its
Subsidiaries,
(v) projected cash flow statements of the Borrower and its
Subsidiaries, and
(vi) a statement listing material assumptions which formed the
basis for (i) through (v),
each together with supporting schedules in sufficient detail as needed and
in all material aspects in accordance with the Approved Annual Operating
Business Plan delivered pursuant to Section 8.12 and on a consistent basis.
(b) Variance Report. No later than August 14 of each fiscal year of
the Borrower, beginning with its 1999 fiscal year, a report, certified as
true and correct by the chief or principal financial or accounting officer
of the Borrower, that shows in reasonable detail, variances, if any,
between the actual operating performance of the Borrower and its
Subsidiaries and what was estimated for the first six months of such fiscal
year in the Approved Annual Operating Business Plan for such fiscal year
(or the Approved Full Term Operating Business Plan if the Required Lenders
have not approved a plan delivered
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pursuant to Section 6.13(a) with respect to such fiscal year) and explains
in reasonable detail in form satisfactory to the Required Lenders the
reasons for the discrepancies between them, if any.
(c) Quarterly Financial Statements. As soon as practicable, but in any
event not later than 45 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, copies of the
internally prepared unaudited Consolidated balance sheets of the Borrower
and its Subsidiaries as of the end of such quarter and Consolidated and
consolidating statements of income and a Consolidated statement of cash
flows of the Borrower and its Subsidiaries for the period commencing at the
end of the previous fiscal quarter and ending with the end of such fiscal
quarter, and Consolidated and consolidating statements of income and a
Consolidated statement of cash flows of the Borrower and its Subsidiaries
for the period commencing at the end of the previous fiscal year of the
Borrower and ending with the end of such quarter, all in reasonable detail
and each setting forth in comparative form:
(i) the figures for the prior year's corresponding fiscal
quarter, and
(ii) so long as the Borrower is required to deliver an operating
business plan pursuant to Section 6.13(a), any variances from the
Approved Annual Operating Business Plan (or the Approved Full Term
Operating Business Plan, if the Required Lenders have not approved a
plan delivered pursuant to Section 6.13(a) with respect to such fiscal
year),
if any, prepared in all material aspects in accordance with GAAP, together
with a certification by the principal financial or accounting officer of
the Borrower that the information contained in such financial statements
fairly presents the financial position of the Borrower and its Subsidiaries
on the date thereof (subject to year-end adjustments).
(d) Annual Financial Statements. As soon as practicable, but in any
event no later than 90 days after the end of each fiscal year of the
Borrower, the audited Consolidated balance sheets of the Borrower and its
Subsidiaries as at the end of such year, and the related audited
Consolidated statements of income and the audited Consolidated statement of
cash flows of the Borrower and its Subsidiaries for such year prepared in
accordance with GAAP, and so long as the Borrower is required to deliver an
operating business plan pursuant to Section 6.13(a), a separate variance
analysis setting forth in comparative form the figures for the previous
fiscal year and any variances from the applicable period of the Approved
Annual Operating Business Plan (or the Approved Full Term Operating
Business Plan, if the Required Lenders have not approved a plan delivered
pursuant to Section 6.13(a) with respect to such fiscal year) in reasonable
detail. Such balance sheets, statements of income and statement of cash
flows shall contain a certified audit report of a nationally recognized
independent certified public accounting firm satisfactory to the
Administrative Agent, which report shall contain an unqualified
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opinion of such accounting firm, and an "agreed-upon procedures" report
pursuant to which the accountants:
(i) review the Borrower's statement that the Borrower is in
compliance with the provisions of the Expense Allocation Agreement,
(ii) perform the agreed upon review procedures applicable
thereto, and
(iii) confirm that in examining the financial statements of the
Borrower and its Subsidiaries they have not become aware of any
Default with respect to the Expense Allocation Agreement, or, if such
accountants shall have obtained knowledge of any then existing Default
they shall disclose in such report any such Default;
provided that such accountants shall not be liable to the Lenders for
failure to obtain knowledge of any Default. The annual financial statements
shall also be accompanied by a management letter of the Borrower's
accountants (to the extent one is prepared for the Borrower).
(e) Compliance Certificate. Simultaneously with the delivery of the
financial statements referred to in subsections (c) and (d) above,
(i) a statement certified by the principal financial or
accounting officer of the Borrower, in form and substance satisfactory
to the Administrative Agent, setting forth in reasonable detail
computations evidencing compliance with the covenants contained in
Section 6.14 and 7.05, and
(ii) a Facility A Borrowing Base Certificate and a Facility B
Borrowing Base Certificate showing the Facility A Borrowing Base and
Facility B Borrowing Base, respectively, as of the last day of such
fiscal quarter or fiscal year, as the case may be.
(f) Quarterly Key Barometer Report. Within 45 days after the end of
each fiscal quarter of the Borrower, a report on
(i) with respect to each Operating Subsidiary:
(A) the number of cell sites constructed and cell sites
where equipment with an aggregate purchase price in excess of
$1,000,000 is located,
(B) the total number of customers,
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(C) the number of new customers acquired,
(D) the number of customers who terminated their service,
(E) the average net monthly revenue per user, and
(F) aggregate roaming revenue.
(ii) payments by the Borrower or any of its Subsidiaries to OC or
any of its Affiliates (other than payments by the Borrower or any of
its Subsidiaries to one another), or to any Subsidiary of the Borrower
that is not a Subsidiary, whether as dividends, payments under any
management, service or tax-allocation agreement or otherwise; and
(iii) equity contributions to the Borrower, the Persons providing
the same and any issuance or sale of shares of Stock or other equity
interests in the Borrower or any of its Subsidiaries,
during such fiscal quarter, together with a report showing variances from
the estimates previously provided to Administrative Agent and each Lender
in the Annual Approved Operating Business Plan (or the Approved Full Term
Operating Business Plan, if the Required Lenders have not approved a plan
delivered pursuant to Section 6.13(a) with respect to such fiscal year),
along with an explanation of discrepancies between the actual numbers and
the estimated numbers.
(g) Securities and Exchange Commission Reports. Within three Business
Days after the filing or mailing thereof, copies of all
(i) materials filed with the Securities and Exchange Commission
by the Borrower, Parent, OC or any of their respective Subsidiaries;
(ii) information sent to the stockholders of the Borrower or
lenders to the Borrower (exclusive of proprietary information); or
(iii) information and reports directly and materially related to
the Borrower and its Subsidiaries or the Network that the Parent or OC
would be required to file with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, if the Parent or OC
were public companies subject to the reporting requirements of such
Act; provided that, if the information or reports covered by this
clause (iii) contain proprietary information, the Borrower shall not
be obligated to provide the proprietary information hereunder unless
84
(A) the Person that is the source of the information or
reports is a public company, and
(B) such Person would then be required to file such
proprietary information with the Securities and Exchange
Commission.
(h) Accounts Receivable Aging Report. Within 45 days after the end of
each fiscal quarter of the Borrower, an accounts-receivable-aging report in
respect of the Borrower and each Operating Subsidiary.
(i) Defaults. Within three Business Days after the Borrower shall have
knowledge of occurrence and continuance thereof, written notice of
occurrence and continuance of a Default, together with a statement of what
action the Borrower is taking or proposes to take with respect thereto. If
any Person shall give any notice or take any other action in respect of a
claimed default (whether or not constituting a Default) under this
Agreement or any other note, evidence of Indebtedness, indenture or other
obligation to which or with respect to which the Borrower, the Parent, OC
or any of their Subsidiaries is a party or obligor, whether as principal,
guarantor, surety or otherwise, which could result in the party to whom
such Indebtedness is owed having the right under its governing documents to
accelerate such Indebtedness, and such acceleration would have a Material
Adverse Effect, the Borrower shall forthwith give written notice thereof to
the Administrative Agent, describing the notice or action and the nature of
the claimed default.
(j) Environmental Events. As soon as possible, and in any event within
10 Business Days
(i) after making any such report, written notice of any violation
of any Environmental Law that the Borrower reports in writing or is
reportable by such Person in writing (or for which any written report
supplemental to any oral report is made) to any federal, state or
local environmental agency, and
(ii) after the Borrower shall become aware thereof, written
notice of any inquiry, proceeding, investigation, or other action,
including a notice from any agency of potential environmental
liability, or any federal, state or local environmental agency or
board, that, has the potential to materially affect the assets,
liabilities, financial conditions or operations of the Borrower or any
of its Subsidiaries or the security interests for the benefit of the
Secured Parties pursuant to any of the Collateral Documents.
(k) ERISA Events. As soon as possible, and in any event within 10 days
after the Borrower or any ERISA Affiliate knows or has reason to know or
believes that any ERISA Affiliate knows or has reason to know or believes
that any ERISA Event has
85
occurred, a statement of the chief financial officer of the Borrower or
such ERISA Affiliate describing such ERISA Event, together with any
correspondence with, or filings made with, the PBGC or Department of Labor,
and the action, if any, which the Borrower or such ERISA Affiliate proposes
to take with respect thereto.
(l) Employee Benefit Plans. Promptly after
(i) filing the same with the Department of Labor or Internal
Revenue Service, (A) a copy of its initial actuarial statement
required to be submitted under Section 103(d) of ERISA and Annual
Report, Form 5500, with all required attachments, in respect of each
Guaranteed Pension Plan, and (B) a notice of all subsequent filings
(with copies to be provided upon request of the Administrative Agent),
(ii) receipt or dispatch thereof, a copy of any notice, report or
demand sent or received in respect of a Guaranteed Pension Plan under
Section 302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or
in respect of a Multiemployer Plan, under Section 4041A, 4202, 4219,
4242 or 4245 of ERISA, and
(iii) becoming aware of occurrence thereof, notice of (A) any
transaction that could result in the imposition of a penalty under
Section 502(i) of ERISA or an excise tax under Section 4975 against
the Borrower, any of its Subsidiaries or an ERISA Affiliate; (B) any
partial or complete withdrawal from a Multiemployer Plan by the
Borrower, any of its Subsidiaries or an ERISA Affiliate; (C) a failure
by the Borrower, any of its Subsidiaries or an ERISA Affiliate to make
a payment to a Plan required to avoid imposition of a lien under
Section 302(f) of ERISA; (D) the adoption of an amendment to a
Guaranteed Pension Plan requiring the provision of security under
Section 307 of ERISA; or (E) any change in the actuarial assumptions
or funding methods used for any Guaranteed Pension Plan, where the
effect of such change is to materially increase the unfunded benefit
liability or materially reduce the obligation to make periodic
contributions.
(m) Notification of Claims Against Collateral. Within three Business
Days after becoming aware of any setoff of any claims (including, with
respect to the Real Estate, environmental claims), withholdings or other
defenses to which any of the Collateral, or the Collateral Agent's, the
Administrative Agent's or the Lenders' rights with respect to the
Collateral, are subject, written notice thereof.
(n) Notice of Litigation and Judgments. Within 10 days after becoming
aware thereof of
(i) any litigation or proceedings threatened in writing or any
pending litigation and proceedings affecting the Borrower or any of
its Subsidiaries or to which the Borrower or any of its Subsidiaries
is or becomes a party that could
86
reasonably be expected to have a Material Adverse Effect (which notice
shall include a statement as to the nature and status of the
proceedings), or
(ii) any judgment not covered by insurance, final or otherwise,
against the Borrower or any of its Subsidiaries in an amount in excess
of $1,000,000, written notice thereof in form and detail satisfactory
to the Administrative Agent.
(o) FCC Notices. Within three Business Days after its receipt thereof,
copies of all material notices and correspondence received from or sent to
the FCC relating to any FCC License listed on Schedule 5.07.
(p) Change in Corporate or Limited Liability Company Name; Location of
Collateral. Not later than 30 days prior to occurrence thereof, written
notice to the Administrative Agent of a change in (i) the business,
corporate or limited liability company name of any of the Loan Parties,
(ii) the location of any of the Collateral or (iii) the chief executive
office or other locations of each Loan Party or the location where the
books and records of the Borrower or any of its Subsidiaries are kept.
(q) Indebtedness Report. Within 15 Business Days after the end of each
fiscal quarter of the Borrower, a report showing the respective aggregate
principal amounts of all Indebtedness outstanding as of the last day of
such fiscal quarter under each Permitted Loan Agreement.
(r) Update of Schedules. As soon as available and in any event within
30 days after the end of each fiscal year of the Borrower and when
necessary in connection with a repetition of any representation or warranty
referring thereto in connection with any Draw Request, a report
supplementing the Schedules hereto, including without limitation (i) new
Subsidiaries of the Borrower and ownership of the Stock thereof, (ii) any
change in the designation of any BTA as in, or any addition, deletion or
other change to, Schedule 1.01 and (iii) a description of such other
changes in the information included in such Schedules as may be necessary
for such Schedules to be accurate and complete in all material respects.
(s) FCC License Transfer. Within 10 Business Days following occurrence
thereof, written notice of any FCC License Transfer, specifying the
affected FCC License or geographic area, as applicable, and setting forth
in reasonable detail the terms of such disposition.
(t) Other Information. Such other information concerning the business
operations or financial condition of any Loan Party or any of its
Subsidiaries as the Administrative Agent or any Lender shall from time to
time reasonably request. The Borrower shall provide personnel of the
Borrower reasonably necessary to discuss business plans and reports with
the Administrative Agent and Lenders on request.
87
Upon the Administrative Agent's receipt of any and all financial and other
information furnished by the Borrower pursuant to this Section 6.13 the
Administrative Agent shall promptly deliver copies thereof to each Lender.
Section 6.14. Financial Covenants of the Borrower. So long as any Loan,
Note or other of the obligations of the Borrower are outstanding hereunder or
any Lender has any Commitment, the Borrower and its Subsidiaries on a
Consolidated basis shall:
(a) Senior Debt to Contributed Capital. Not permit the ratio of (i)
Senior Debt outstanding at the end of any fiscal quarter during any period
shown below to (ii) the aggregate amount of Contributed Capital through the
last date of such fiscal quarter, to exceed the ratio below opposite such
period:
================================================================================
Fiscal Quarter Ending: Ratio
--------------------------------------------------------------------------------
03/31/98 to 12/31/98 7.00:1.00
--------------------------------------------------------------------------------
03/31/99 6.25:1.00
--------------------------------------------------------------------------------
06/30/99 5.50:1.00
--------------------------------------------------------------------------------
09/30/99 4.75:1.00
--------------------------------------------------------------------------------
12/31/99 4.25:1.00
--------------------------------------------------------------------------------
03/31/00 4.00:1.00
--------------------------------------------------------------------------------
06/30/00 3.75:1.00
--------------------------------------------------------------------------------
09/30/00 3.00:1.00
--------------------------------------------------------------------------------
12/31/00 to 12/31/01 2.75:1.00
--------------------------------------------------------------------------------
03/31/02 to 12/31/03 2.50:1.00
--------------------------------------------------------------------------------
03/31/04 to 12/31/04 2.25:1.00
--------------------------------------------------------------------------------
03/31/05 and thereafter 2.00:1.00
================================================================================
(b) Adjusted Debt to Annualized EBITDA. Not permit the ratio of (i)
Adjusted Debt outstanding at the end of any fiscal quarter during any
period shown below to (ii) Annualized EBITDA at the end of each fiscal
quarter during such period to exceed the ratio below opposite such period:
================================================================================
Fiscal Quarter Ending: Ratio
--------------------------------------------------------------------------------
06/30/01 26.00:1.00
--------------------------------------------------------------------------------
09/30/01 25.50:1.00
================================================================================
88
================================================================================
12/31/01 25.00 : 1.00
--------------------------------------------------------------------------------
03/31/02 16.50 : 1.00
--------------------------------------------------------------------------------
06/30/02 12.75 : 1.00
--------------------------------------------------------------------------------
09/30/02 10.50 : 1.00
--------------------------------------------------------------------------------
12/31/02 9.00 : 1.00
--------------------------------------------------------------------------------
03/31/03 7.25 : 1.00
--------------------------------------------------------------------------------
06/30/03 6.25 : 1.00
--------------------------------------------------------------------------------
09/30/03 5.75 : 1.00
--------------------------------------------------------------------------------
12/31/03 5.00 : 1.00
--------------------------------------------------------------------------------
03/31/04 4.50 : 1.00
--------------------------------------------------------------------------------
06/30/04 4.00 : 1.00
--------------------------------------------------------------------------------
09/30/04 3.75 : 1.00
--------------------------------------------------------------------------------
12/31/04 3.50 : 1.00
--------------------------------------------------------------------------------
03/31/05 3.25 : 1.00
--------------------------------------------------------------------------------
06/30 05 and thereafter 3.00 : 1.00
================================================================================
(c) Fixed Charge Coverage Ratio. Not permit the ratio, as of the end
of any fiscal quarter during a period shown below, of (A) the sum of (i) EBITDA
for the last completed fiscal quarter plus (ii) cash and Cash Equivalents on
hand, plus (iii) Availability, plus (iv) the lesser of (x) the Remaining Amount
and (y) fifty percent (50%) of the amount of OC's Unencumbered Cash to (B) the
sum of (i) amounts due in cash with respect to principal and interest on
Indebtedness of the Borrower during the next fiscal quarter, plus (ii) budgeted
Capital Expenditures scheduled to be made during the next fiscal quarter as
shown on the Approved Annual Operating Business Plan plus (iii) cash taxes due
in the next fiscal quarter, to be less than the ratio shown below opposite such
period.
================================================================================
Period Ratio
--------------------------------------------------------------------------------
3/31/98 to 12/31/02: 1.05 to 1.0
--------------------------------------------------------------------------------
3/31/03 and thereafter 1.10 to 1.0
================================================================================
(d) Quarterly Minimum Adjusted OCF Levels. Not permit Adjusted OCF for
any fiscal quarter ending during a period shown below to be less than the
amount opposite such period:
89
================================================================================
Fiscal Quarter Ending: Amount
--------------------------------------------------------------------------------
03/31/99 ($4.6 million)
--------------------------------------------------------------------------------
06/30/99 ($3.5 million)
--------------------------------------------------------------------------------
09/30/99 ($0.9 million)
--------------------------------------------------------------------------------
12/31/99 $0.1 million
--------------------------------------------------------------------------------
03/31/00 $4.4 million
--------------------------------------------------------------------------------
06/30/00 $6.7 million
--------------------------------------------------------------------------------
09/30/00 $12.1 million
--------------------------------------------------------------------------------
12/31/00 $14.4 million
--------------------------------------------------------------------------------
03/31/01 $18.8 million
--------------------------------------------------------------------------------
06/30/01 $20.0 million
--------------------------------------------------------------------------------
09/30/01 $21.7 million
--------------------------------------------------------------------------------
12/31/01 $22.9 million
--------------------------------------------------------------------------------
03/31/02 $28.5 million
--------------------------------------------------------------------------------
06/30/02 $30.4 million
--------------------------------------------------------------------------------
09/30/02 $32.9 million
--------------------------------------------------------------------------------
12/31/02 $34.8 million
--------------------------------------------------------------------------------
03/31/03 $37.5 million
--------------------------------------------------------------------------------
06/30/03 $40.0 million
--------------------------------------------------------------------------------
09/30/03 $43.3 million
--------------------------------------------------------------------------------
12/31/03 $45.8 million
--------------------------------------------------------------------------------
03/31/04 $49.0 million
--------------------------------------------------------------------------------
06/30/04 and thereafter $50.0 million
================================================================================
(e) Quarterly Minimum Revenue Levels. Not permit Gross Revenues for
any fiscal quarter ending during a period shown below to be less than the
amount opposite such period:
================================================================================
Fiscal Quarter Ending: Amount
--------------------------------------------------------------------------------
03/31/99 $3.3 million
--------------------------------------------------------------------------------
06/30/99 $4.4 million
--------------------------------------------------------------------------------
09/30/99 $6.7 million
--------------------------------------------------------------------------------
90
--------------------------------------------------------------------------------
12/31/99 $7.8 million
--------------------------------------------------------------------------------
03/31/00 $12.1 million
--------------------------------------------------------------------------------
06/30/00 $16.1 million
--------------------------------------------------------------------------------
09/30/00 $24.2 million
--------------------------------------------------------------------------------
12/31/00 $28.2 million
--------------------------------------------------------------------------------
03/31/01 $30.8 million
--------------------------------------------------------------------------------
06/30/01 $32.9 million
--------------------------------------------------------------------------------
09/30/01 $35.6 million
--------------------------------------------------------------------------------
12/31/01 $37.7 million
--------------------------------------------------------------------------------
03/31/02 $42.9 million
--------------------------------------------------------------------------------
06/30/02 $45.8 million
--------------------------------------------------------------------------------
09/30/02 $49.6 million
--------------------------------------------------------------------------------
12/31/02 $52.4 million
--------------------------------------------------------------------------------
03/31/03 $54.3 million
--------------------------------------------------------------------------------
06/30/03 $57.9 million
--------------------------------------------------------------------------------
09/30/03 $62.8 million
--------------------------------------------------------------------------------
12/31/03 $66.4 million
--------------------------------------------------------------------------------
03/31/04 $69.2 million
--------------------------------------------------------------------------------
06/30/04 to 09/30/04 $72.1 million
--------------------------------------------------------------------------------
12/31/04 and thereafter $75.0 million
================================================================================
Section 6.15. Mortgage Liens. If the Borrower or any of its Subsidiaries
shall acquire any Real Estate and shall not at the time of such acquisition
incur Indebtedness with respect thereto pursuant to Section 7.01(f)(i), the
Borrower shall grant, or cause such Subsidiary to grant, to the Collateral Agent
on behalf of the Secured Parties a first-mortgage Lien on such Real Estate in
form and substance satisfactory to the Required Lenders.
Section 6.16. New Subsidiaries; Qualified Joint Ventures. Upon the creation
of any Subsidiary or Qualified Joint Venture not in existence on the date
hereof, the Borrower shall at its expense:
(a) duly execute and deliver, or cause such Subsidiary or Qualified
Joint Venture to duly execute and deliver, to the Administrative Agent and
the Collateral Agent a Subsidiary Guaranty in respect of such Subsidiary or
Qualified Joint Venture (with such changes thereto as the Administrative
Agent may reasonably request);
91
(b) duly execute and deliver, or cause such Subsidiary to duly execute
and deliver, to the Administrative Agent and the Collateral Agent, a
Subsidiary Security Agreement (with such changes thereto as either Agent
may reasonably request) and such other mortgages, pledges, assignments and
other security agreements, in form and substance reasonably satisfactory to
the Agents, securing payment of all of the obligations of such Subsidiary
or Qualified Joint Venture under its Guaranty and the obligations of the
Loan Parties under the Loan Documents and constituting Liens on all
Collateral described therein; and pledge, or cause to be pledged, to the
Collateral Agent on behalf of the Secured Parties, all authorized, issued
and outstanding Stock of such Subsidiary or Qualified Joint Venture; and
execute and/or deliver to the Administrative Agent each other document or
instrument required to be delivered in connection with the execution and
delivery of such Security Agreement pursuant to Section 8.13 with such
changes thereto as the Administrative Agent may reasonably request);
(c) take whatever action (including without limitation the recording
of mortgages, the filing of Uniform Commercial Code financing statements,
the giving of notices and the endorsement of notices on title documents)
which may be necessary or advisable in the opinion of Administrative Agent
to vest in the Collateral Agent (or in any representative of the Collateral
Agent designated by it) valid and subsisting Liens on the properties
purported to be subject to the security agreements delivered pursuant to
this Section 6.16, enforceable against all third parties in accordance with
their terms;
(d) deliver to the Administrative Agent a signed copy of favorable
opinions, addressed to the Agents and the Lenders, of counsel for the
Borrower acceptable to the Administrative Agent as to such matters relating
to such Subsidiary or Qualified Joint Venture as either Agent may
reasonably request; and
(e) at any time and from time to time, promptly execute and deliver
any and all further instruments and documents and take all such other
action as the Administrative Agent may deem desirable in obtaining the full
benefits of, or in preserving the Liens of, each security agreement
delivered pursuant to this Section 6.16 and mortgages and other agreements
and instruments entered into by such Subsidiary or Qualified Joint Venture.
Section 6.17. Subordinated Debt Rate Hedging Arrangements. At any time at
which Nortel owns or holds less than fifty percent (50%) of the aggregate
Commitments under the Credit Facility, and within 60 days after a request by the
Administrative Agent, the Borrower will either (i) enter into Interest Rate
Protection Agreements or Rate Hedging Agreements satisfactory to the Lenders
providing for the hedging of its interest rate risk with respect to one hundred
percent (100%) of the notional amount of the Affiliate Subordinated Debt and
Non-Affiliate Subordinated Debt (or such greater amount as the Borrower may
purchase at its option if evidenced by Permitted Hedging Arrangements to the
extent permitted under Section 7.01(g), but only so long as such amount does not
exceed at such time the total notional amount of
92
Indebtedness of Borrower which bears interest at a floating rate) for a period
of at least three (3) years, (ii) cause the interest rate on the Affiliate
Subordinated Debt to be converted to a fixed rate at then-prevailing market
rates, or (iii) cause that portion of the Affiliate Subordinated Debt and Non-
Affiliate Subordinated Debt for which interest is payable currently to be
converted to equity. For purposes of this Section 6.17, Nortel shall not be
deemed to hold that portion of the Commitments in which Nortel has sold a
participation.
Section 6.18. Syndication. The Borrower and OC shall provide prompt
assistance to the Administrative Agent and the Lenders in connection with their
respective efforts in syndicating the Credit Facility. Such assistance includes
making senior officers of the Borrower and OC available for meetings with
potential Lenders, providing, in a timely manner, such assistance as may be
reasonably requested by the Administrative Agent or its advisors, including
providing information to and responding to inquiries from prospective Lenders
with respect to the business, operations, business plan, results and other
matters relating to the business of OC, the Borrower, and the other Guarantors,
and cooperating with a private placement of the Notes evidencing the Loans.
Section 6.19. Capital Contribution Agreement. The Borrower and OC shall
comply with the terms of the Capital Contribution Agreement and shall not
consent to any waiver, modification, or amendment thereto without the prior
written consent of the Required Lenders.
Section 6.20. Ericsson Tranche Y Loan. The Borrower shall not consent to
any modification or amendment to any requirement for mandatory prepayments
contained in the Ericsson Tranche Y Loan so as to create additional mandatory
prepayments or make existing ones more favorable to the holder of the Ericsson
Tranche Y Loan without the prior written consent of the Required Lenders.
Section 6.21. C-Block Subsidiaries and D-, E- and F-Block Subsidiaries.
While any C-Block Subsidiary or any D-, E- and F-Block Subsidiary shall be a
Guarantor hereunder the Borrower will cause such Persons to perform and observe
each covenant and condition hereunder applicable to, and as if such Person were,
a Subsidiary of the Borrower.
Section 6.22. Wichita PCS and a D&E/Omnipoint Intercompany Notes;
Overadvances. Borrower shall cause Wichita PCS and D&E/Omnipoint, respectively,
to repay all amounts outstanding under their respective Intercompany Notes to
the Borrower within 180 days of the date of this Agreement in accordance with
Section 2.01(a), Section 2.09(a)(ii)(B) and Section 7.04(l). Borrower covenants
and agrees that it shall make a mandatory prepayment to the Administrative Agent
in accordance with Section 3.02(h) hereof. Borrower covenants and agrees that it
shall repay the aggregate outstanding amount of any Overadvance, if any,
permitted by Section 2.01(a) within 180 days of the date of this Agreement.
Section 6.23. Atlantic City BTA. Within one hundred eighty (180) days of
the Closing Date, if the C-Block FCC License for the Designated BTA for Atlantic
City, New Jersey (the
93
Atlantic City BTA") has not been disposed of in accordance with the provisions
of (S)7.6(b)(iii)(A)(1)(IV) or sublicensed in accordance with (S)7.11(a)(V),
Borrower shall cause switching interconnection services and other similar
Network services to be made available to the Atlantic City BTA pursuant to
long-term agreements in form and substance satisfactory to the Required
Lenders.
ARTICLE VII
CERTAIN NEGATIVE COVENANTS OF THE BORROWER
The Borrower covenants and agrees that, so long as any Loan or Note or fees
or expenses are outstanding or any Lender has any Commitment hereunder:
Section 7.01. Restrictions on Indebtedness.Subject to the other
limitations of this Agreement, the Borrower shall not create, incur, assume,
guarantee or suffer to exist, or permit any of its Subsidiaries to create,
incur, assume, guarantee or suffer to exist, contingently or otherwise, any
Indebtedness other than (without duplication):
(a) the Loans;
(b) Non-Affiliate Subordinated Debt, not to exceed $200 million in the
aggregate;
(c) Affiliate Subordinated Debt, not to exceed $200 million in the
aggregate (of which no more than $100 million owing to such Affiliates may
require the payment of current interest);
(d) Indebtedness under Permitted Loan Agreements;
(e) with respect to the License Subsidiaries, FCC Debt existing on the
Closing Date; and
(f)
(i) purchase-money Indebtedness (including not more than
$5,000,000 for Real Estate); and
(ii) Capital Lease Obligations
but only so long as:
94
(A) the aggregate principal amount of Indebtedness under
clauses (i) and (ii) above at any one time outstanding does not
exceed $30,000,000 and
(B) such Indebtedness is in a principal amount that does not
exceed the fair market value of the property being acquired or
leased;
(g) Indebtedness under Permitted Hedging Arrangements;
(h) Indebtedness the proceeds of which are used solely for
working-capital purposes, but only so long as the aggregate principal
amount of such Indebtedness outstanding on any date does not exceed the
lesser of (i) $30,000,000 and (ii) an amount equal to two (2) dollars times
Total POPs determined as of any time; and
(i) Other Indebtedness (in addition to Indebtedness described in
clauses (a) through (h)) not to exceed $15,000,000 in the aggregate
outstanding at any one time.
Indebtedness to OC or to any of its Subsidiaries shall only be permitted
hereunder pursuant to this Section hereof.
Section 7.02. Restrictions on Liens. Neither the Borrower nor its
Subsidiaries shall (A) create or incur or suffer to be created or incurred or to
exist any Lien, encumbrance, mortgage, pledge, charge, restriction or other
security interest of any kind upon any of its Property or assets of any
character whether now owned or hereafter acquired, or upon the income or profits
therefrom; (B) transfer any of such Property or assets or the income or profits
therefrom for the purpose of subjecting the same to the payment of Indebtedness
or performance of any other obligation in priority to payment of its general
creditors; (C) acquire, or agree or have an option to acquire, any property or
assets upon conditional sale or other title-retention or purchase-money security
agreement, device or arrangement; (D) suffer to exist for a period of more than
30 days after the same shall have been incurred any Indebtedness or claim or
demand against it that if unpaid might by law or upon bankruptcy or insolvency,
or otherwise, be given any priority whatsoever over its general creditors; or
(E) sell, assign, pledge or otherwise transfer any accounts, contract rights,
general intangibles, chattel paper or instruments, with or without recourse; and
shall not permit any of its Subsidiaries to do any of the foregoing; provided
that the Borrower or any Subsidiary may create or incur or suffer to be created
or incurred or to exist the following (collectively, "Permitted Liens"):
(a) Liens to secure taxes, assessments and other government charges in
respect of obligations not overdue or Liens on Properties to secure claims
for labor, material or supplies in respect of obligations not overdue;
(b) deposits or pledges made in connection with, or to secure payment
of, worker's compensation and unemployment insurance;
95
(c) Liens of carriers, warehousemen, mechanics and materialmen, and
other like liens on properties, in existence less than 120 days from the
date of creation thereof in respect of obligations not overdue;
(d) encumbrances on Real Estate consisting of:
(i) easements, rights of way, zoning restrictions, restrictions
on the use of real property and defects and irregularities in the
title thereto, landlord's or lessor's liens under leases to which the
Borrower or any of its Subsidiaries is a party, and other minor liens
or encumbrances none of which interferes materially with the use of
the property affected in the ordinary conduct of the business of the
Borrower or any of its Subsidiaries, which defects do not individually
or in the aggregate have a Material Adverse Effect on the business of
the Borrower or any of its Subsidiaries, and
(ii) with respect to Real Estate mortgage (or deed of trust)
Liens (collectively, "Mortgage Liens") to secure the payment of
Indebtedness permitted to be incurred under Section 7.01(f)(i);
provided that
(A) the amount secured by any Mortgage Lien shall not exceed
the sum of (1) the acquisition cost of the Real Estate acquired
by the Borrower or any of its Subsidiaries and (2) the cost of
any improvements constructed thereon; and
(B) the Borrower or such Subsidiary shall simultaneously
with the acquisition of the Real Estate in question either:
(1) grant to the Collateral Agent a second mortgage (or deed of
trust), in form and substance satisfactory to the Required
Lenders, subordinate only to the Mortgage Lien, and securing
the obligations of the Borrower and its Subsidiaries owing
to lenders that are parties to the Intercreditor Agreement,
or
(2) cause the lender in whose favor the Mortgage Lien is to be
made to execute and deliver to the Collateral Agent an
option to purchase the Mortgage Lien, substantially in the
form of Exhibit F;
(e) Liens in favor of the Collateral Agent for the benefit of the
lenders and agents parties to the Intercreditor Agreement securing the
obligations permitted to be secured under the Intercreditor Agreement;
96
(f) deposits to secure the performance of bids, trade contracts (other
than in respect of Indebtedness for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds, and other
obligations of a like nature incurred in the ordinary course of business
(including, without limitation, letters of credit issued for the account of
the Borrower or its Subsidiaries to support any of the foregoing and the
reimbursement obligations related thereto) not to exceed in the aggregate
at any one time $5,000,000;
(g) Liens on FCC Licenses and proceeds of the sale or other
disposition thereof in favor of the FCC securing FCC Debt owing by License
Subsidiaries permitted pursuant to Section 7.01(e); and
(h) Liens securing purchase-money Indebtedness permitted under Section
7.01(f)(i) or (ii) owing to a Person that is not a party to the
Intercreditor Agreement; provided that such Liens cover only the property
acquired with the proceeds of such Indebtedness and the proceeds of such
property to the extent the applicable Uniform Commercial Code provides for
the automatic perfection of a security interest in such proceeds.
Section 7.03. No Contingent Obligations. Subject to the other limitations
of this Agreement, the Borrower shall not create, incur, assume, guarantee or
remain liable, or permit any of its Subsidiaries to create, incur, assume,
guarantee or remain liable, on any Contingent Obligations other than:
(a) the Guaranties,
(b) guaranties of Indebtedness under other Permitted Loan Agreements,
and
(c) guaranties of Indebtedness permitted under 7.01(f)(i) and (ii).
Section 7.04. Restrictions on Investments. The Borrower shall not make or
permit to exist or to remain outstanding, or permit any of its Subsidiaries to
make or permit to exist or to remain outstanding, any Investment except:
(a) Investments in Permitted Hedging Arrangements in a notional
principal amount on any date reasonably related to the aggregate principal
amount of Indebtedness of the Borrower accruing interest at a floating
rate, and only so long as the purpose of such Investments shall be to hedge
such floating-rate interest and shall not be to speculate on interest
rates;
(b) Investments in commercial paper maturing in 90 days or less from
the date of issuance which, at the time of acquisition by the Borrower or
any of its Subsidiaries, is accorded a rating of "A1" or better by Standard
& Poor's Ratings Group or "P1" or
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better by Xxxxx'x Investors Service, Inc. or an equivalent rating by
another nationally recognized credit-rating agency of similar standing;
(c) Investments in
(i) direct obligations of, or obligations guaranteed by, the
United States of America or any agency that constitutes a
full-faith-and-credit obligation of the United States of America, in
any case maturing in 12 months or less from the date of acquisition
thereof, and
(ii) repurchase agreements fully secured by underlying securities
of the type described in clause (i) above and issued by a bank or
trust company meeting the requirements of Section 7.04(d);
(d) Investments in certificates of deposit maturing within six months
from the date of issuance thereof (i) issued by a bank or trust company
organized under the laws of the United States or any state thereof, having
capital, surplus and undivided profits aggregating at least $500,000,000
and whose long-term certificates of deposit are, at the time of acquisition
thereof by the Borrower, rated "AA" or better by Standard & Poor's Ratings
Group or "A" or better by Xxxxx'x Investors Service, Inc., or (ii) issued
by any Lender;
(e) Investments in money-market funds (other than single-state funds)
that make investments in accordance with the regulations of the Securities
and Exchange Commission under the Investment Company Act of 1940, as
amended;
(f) the Borrower's investments as of the date hereof in its
Subsidiaries;
(g) Investments by the Borrower in Qualified Joint Ventures relating
to the Designated BTAs; provided that the aggregate amount of such
Investments at any one time outstanding shall not exceed the QJV Amount;
(h) Investments existing on the date hereof and listed on Schedule
7.04;
(i) Investments consisting of loans to OC made with the proceeds of a
Facility B Loan under Tranche 1 or 2 of Facility B within two Business Days
after the date on which such Loan is made, but only if:
(i) such loan is payable on demand following the acceleration of
the Loans,
(ii) such loan ranks at least pari passu with all other senior
Indebtedness of OC,
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(iii) each advance under such loan (and the interest on each such
advance and any applicable Breakage Costs) shall be payable on or
before December 31, 2000 and such loan is otherwise on terms providing
for interest and principal amortization substantially as provided
herein for Facility B Loans,
(iv) such loan is evidenced by a promissory note that is an
instrument within the meaning of the New York Uniform Commercial Code
and is substantially in the form of Exhibit N (the "Facility B Mirror
Note"),
(v) such promissory note is pledged to the Collateral Agent as
security for the Borrower's obligations hereunder and under the other
loan documents and is delivered to the Collateral Agent; and
(vi) OC has delivered the OC Guaranty prior to the date of such
loan and the OC Guaranty has not been terminated.
(j) Investments consisting of loans between the Borrower and its
Wholly-Owned Subsidiaries, but only if:
(i) such loans are payable on demand following the acceleration
of the Loans;
(ii) such loan is evidenced by a promissory note that is an
instrument within the meaning of the New York Uniform Commercial Code
and is in form and substance satisfactory to the Required Lenders (the
"Intercompany Note");
(iii) such promissory note is pledged to the Collateral Agent as
security for the Borrower's obligations hereunder and under the other
loan documents and is delivered to the Collateral Agent;
(iv) the aggregate amount of such loans at any one time
outstanding cannot exceed the amount in Section 7.01(c); and
(v) the loans are subordinated pursuant to a Subordination
Agreement (Affiliate).
(k) Investments by the Borrower in Non-Qualified Joint Ventures
(exclusive of Wichita PCS and D&E/Omnipoint); provided that, the aggregate
amount of such Investments at any one time outstanding shall not exceed
$5,000,000.
(l) From the date of this Agreement until 180 days after the date of
this Agreement, Investments by the Borrower in Wichita PCS and
D&E/Omnipoint
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consisting of loans to Wichita PCS and D&E/Omnipoint, provided that, the
aggregate amount of such Investments at any one time outstanding shall not
exceed $30,000,000 (inclusive of the aggregate outstanding amount of any
Overadvance at such time), but only if:
(i) the proceeds of such loans are used by Wichita PCS and
D&E/Omnipoint, respectively, to purchase Nortel Goods and Services for
any one or more of the Wichita BTAs and the Denver & Ephrata BTAs in
accordance with Section 2.09(a)(ii)(B),
(ii) the loans are evidenced by Intercompany Notes which
constitute as Collateral hereunder,
(iii) within 180 days after the date of this Agreement, Wichita
PCS and D&E/Omnipoint repay the Borrower all outstanding amounts under
the Intercompany Notes (including accrued but unpaid interest and
applicable Breakage Costs) and invested in Wichita PCS and
D&E/Omnipoint pursuant to this Section 7.04(l) so that on the 180th
day after the date of this Agreement no amounts are outstanding under
such Intercompany Notes,
(iv) within 180 days of the date of this Agreement and upon
receipt of such funds from Wichita PCS and D&E/Omnipoint, Borrower
makes a mandatory prepayment to the Administrative Agent in accordance
with Section 3.02(h) hereof;
(m) Investments to the extent permitted by Section 7.05(a); and
(n) Investments by the Borrower and its Subsidiaries consisting of
seller take-back financing permitted under Section 7.06(b)(iii)(A).
The aggregate amount of any Investment consisting of non-cash consideration in
any Qualified Joint Venture shall be the greater of (A) the net book value of
the assets (as determined in accordance with GAAP) contributed thereto (or, in
the case of a contribution by way of an FCC License Partition, a ratable portion
of such net book value, determined with respect to the total POPs of such BTA),
net of any purchase-money Indebtedness of the Borrower or a Subsidiary in
respect thereof that is assumed by the acquiror thereof, and (B) the fair-market
value of the assets so contributed as determined in good faith by the Board of
Directors of OC.
Section 7.05. Distributions. The Borrower shall not make, or permit any of
its Subsidiaries to make, any Distributions, including Distributions to any
Affiliates, officers, directors or employees of the Borrower or its Subsidiaries
(other than Distributions that
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constitute salaries paid in the ordinary course of business) in respect of the
Borrower's Stock or any Subordinated Debt of the Borrower, except that the
Borrower may:
(a) make loans or advances in the ordinary course of business not to
exceed $500,000 in the aggregate at any one time to its officers, directors
or employees for expenses (including moving expenses related to a transfer)
incidental to carrying on the business of the Borrower or any of its
Subsidiaries;
(b) make Distributions to Affiliates to repay that portion of
outstanding Affiliate Subordinated Debt that was used by the Borrower or
the Affiliate on behalf of the Borrower to make Capital Expenditures that
would have been permitted to be made under this Credit Facility pursuant to
Section 2.09 hereof, provided (I) that from and after June 30, 1999 such
Distribution (x) shall only be permitted if made to an Affiliate within 180
days of the date such Capital Expenditure was made by or on behalf of the
Borrower and (y) shall not exceed the lesser of (i) the Affiliate
Subordinated Debt incurred by Borrower during such 180-day period or (ii)
the amount of all Advances made during such 180-day period, and the
Administrative Agent receives satisfactory evidence as to the matters in
clauses (x) and (y), and (II) that, prior to June 30, 1999 the limitations
of clause (I) shall also apply if (x) on or after December 31, 1998 Nortel
has syndicated or sold participations in 50.01% or more of the Commitments
and Advances outstanding hereunder to a Person that is not an Affiliate of
Nortel and (y) Administrative Agent has provided the Borrower with thirty
days' prior written notice that the 180 day period shall commence within 30
days.
(c) pay interest in respect of Affiliate Subordinated Debt as and when
due in accordance with the terms of any Subordination Agreement (Affiliate)
substantially in the form attached hereto as Exhibit G-1, but only so long
as, with respect to (a), (b) or (c) of this Section 7.05, no event or
circumstance which would constitute a Default or Event of Default exists
under the Credit Facility (including an OC Debt Default) or would result
from such payment or Distribution.
(d) make Distributions with respect to any Stock of the Borrower,
which Stock is subject to the pledge by the Parent in favor of the
Collateral Agent under the Parent Pledge Agreement, out of Excess Cash Flow
that remains after all required prepayments are made hereunder;
(e) permit a Qualified Joint Venture to make a Distribution to a
venture partner other than the Borrower but only if the conditions in the
definition of "Qualified Joint Venture" have been satisfied.
(f) make Distributions to Affiliates to repay that portion of
Affiliate Subordinated Debt arising under the Expense Allocation Agreement;
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but only so long as, with respect to (d) or (e) or (f) of this
Section 7.05,
(i) no event or circumstance which would constitute a Default or
Event of Default exists under the Credit Facility (including an OC
Debt Default) or would result from such payment or Distribution, and
(ii) the ratio of Total Debt to Adjusted OCF for the four most
recently completed fiscal quarters ending prior to the date of such
Distribution is no greater than 8.0 to 1.0.
Section 7.06. Merger, Consolidation, Disposition of Assets, Etc.
(a) The Borrower shall not merge into or consolidate with any Person
or permit any Person to merge into it, and shall not permit any of its
Subsidiaries to do any of the foregoing.
(b) The Borrower shall not, and shall not permit any Subsidiary to,
become a party to or agree to or effect any disposition of assets
(including without limitation any disposition of any right to use any
portion of any wavelength covered by any FCC License or any right to
provide PCS services to any POPs in any geographic area within any
Designated BTA), other than:
(i) the disposition of assets in the ordinary course of business,
(ii) the disposition of obsolete assets or equipment no longer
necessary to the operation of the Borrower's or any Subsidiary's
business, consistent with sound and prudent practices,
(iii) so long as no Default shall have occurred and be continuing
at the time thereof any:
(A) FCC License Transfer, FCC License Partition and any
disposition of equipment or other assets used primarily for the
operation of a BTA with respect to which such FCC License
Transfer or FCC License Partition shall have occurred, but, in
each case, only if:
(1) one of the following shall be true:
(I) after giving effect to such disposition and
all other FCC License Transfers and FCC License
Partitions, the number of POPs included in BTAs as to
which such FCC License Transfers shall have occurred
and geographic
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areas for which the right to provide PCS services
shall have been disposed of pursuant to FCC License
Partitions (other than dispositions as to which a
condition specified in clause (II), (III) or (IV) below
shall have been satisfied) shall not exceed 5% of the
total POPs of all BTAs that are Designated BTAs as of
the date of this Agreement, plus the number of total
POPs of any BTA that becomes a Designated BTA after the
date of this Agreement but before such disposition, and
the BTAs affected by the FCC License Transfer or FCC
License Partition are not core BTAs; or
(II) such disposition is an FCC License Transfer
and all of the following are true: (a) the sole
consideration paid in connection with the disposition
is the FCC License in respect of which the FCC License
Transfer shall have occurred; (b) in consideration for
such disposition an FCC License is acquired for the
same BTA as that for the FCC License being disposed of,
and such acquired FCC License covers at least the same
amount of spectrum as the FCC License being disposed
of; (c) no asset other than such FCC License is
disposed of in connection with such disposition; (d) no
License Subsidiary or other Loan Party shall be liable
for the payment of any FCC Debt for the FCC License
being disposed of; and (e) no Indebtedness is incurred
by the Borrower and its Subsidiaries in connection with
such disposition except FCC Debt in an aggregate
principal amount not exceeding the aggregate principal
amount of FCC Debt in respect of the FCC License being
disposed of; or
(III) the Required Lenders shall have accepted as
a Designated BTA a BTA in substitution for the BTA as
to which such FCC License Transfer shall have occurred;
or
(IV) (A) a voluntary transfer (including a
transfer to any Affiliate of the Borrower), whether or
not for any consideration other than forgiveness of
Indebtedness or assumption thereof by the transferee,
of a C-block FCC License or (B) up to 15 MHz of
spectrum of a C-block FCC License in respect of a
Designated BTA or portion thereof to the FCC, but only
so long as with respect to (A), within ten (10)
Business Days of the date of such transfer, the
Borrower makes a mandatory prepayment pursuant to
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Section 3.02(j) in an amount equal to the sum of (x)
the purchase price of all or that portion of the Nortel
Goods and Services used in the Designated BTA or
portion thereof and (y) the amount of Permitted
Third-Party Expenses incurred (plus accrued but unpaid
interest thereon) in connection with the affected BTA
or any portion thereof.
(2) no equipment or other assets that are disposed of
shall be assets that are necessary for the normal commercial
operation of any Designated BTA remaining after such
disposition;
(3) such disposition shall not relate to a Core BTA;
(4) with respect to clause (I), the transferee of the
BTA has agreed that such BTA will utilize GSM technology for
the operation of its Network, and
(5) with respect to clause (I), roaming agreements and
other technology agreements shall be (or remain) in place so
as to allow the transferred BTA to coordinate its operations
with the Network.
(B) dispositions of the right to use spectrum in respect of
any FCC License, so long as
(1) the remaining License covers at least 10 MHz of
spectrum;
(2) the consideration received therefor shall be at
least equal to the fair-market value thereof
(3) roaming agreements and other technology agreements
shall remain in place so as to allow the transferred BTA to
coordinate its operations with the Network,
(4) the Borrower provides the Administrative Agent with
an engineering report satisfactory to the Administrative
Agent and the Required Lenders demonstrating that there will
be no significant decrease in quality of service as a result
of such disposition, and
(5) no asset other than such FCC License is disposed of
in connection with such disposition.
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(C) sublicensing of FCC Licenses from a License Subsidiary
to Qualified Joint Ventures and contributions of any equipment
and other assets used primarily for the operation of the related
Designated BTA or applicable geographic area thereof to Qualified
Joint Ventures, so long as:
(1) such disposition shall be in compliance with
Section 7.04(g),
(2) such disposition shall not relate to an FCC License
for a Core BTA and
(3) the aggregate value of the consideration received
by the Borrower and its Subsidiaries for such sublicensing
or contribution shall at least be equal to the fair-market
value (as determined in good faith by the Board of Directors
of the OC) of the assets so contributed or sublicensed;
(iv) to the extent not otherwise subject to (i) through (iii) and
(v) hereof, other voluntary dispositions of assets for their fair-
market value solely for cash consideration in an amount not to exceed
$5,000,000 in the aggregate during the term of this Agreement, the
proceeds of which are subject to mandatory prepayment pursuant to
Section 3.02 hereof; and
(v) to the extent not otherwise subject to (i) through (iv)
above, transfers of assets from the Borrower to any Wholly-Owned
Subsidiary or from a Subsidiary to the Borrower or another
Wholly-Owned Subsidiary, in each case to the extent that, no Default
shall have occurred and be continuing at the time and that after
giving effect to such transfer, the transferee would be in compliance
with its obligations under Section 7.12.
If the Borrower or any of its Subsidiaries shall make any disposition of
any assets pursuant to clause (iii)(C) above to a Qualified Joint Venture, the
Borrower shall not thereafter permit such Qualified Joint Venture to fail to
continue to qualify as a Qualified Joint Venture, except in a transaction
involving a disposition of the assets of such Qualified Joint Venture that is
otherwise permitted under this subsection (b). The Borrower shall not, and shall
not permit any Subsidiary to, contribute any assets to a Qualified Joint Venture
except to the extent reasonably necessary for the contemplated operations of
such Qualified Joint Venture.
(c) Except with the agreement of the Required Lenders, the Borrower
shall not permit any Subsidiary to issue or sell any Stock or other equity
interest in itself, other than to the Borrower or another Subsidiary of the
Borrower and only if such Stock is pledged as security under the Collateral
Documents.
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Section 7.07. Sale and Leaseback. The Borrower shall not enter into, or
permit any of its Subsidiaries to enter into, any arrangement, directly or
indirectly, whereby the Borrower or any of its Subsidiaries shall sell or
transfer any Property owned by it in order then or thereafter to lease such
Property or lease other property that the Borrower or such Subsidiary intends to
use for substantially the same purpose as the Property being sold or
transferred.
Section 7.08. Compliance with Environmental Laws. The Borrower shall not,
and shall not permit any of its Subsidiaries to:
(a) use any of the Real Estate or any portion thereof for the
handling, processing, storage or disposal of Materials of Environmental
Concern, except in compliance with Environmental Laws;
(b) cause or permit to be located on any of the Real Estate any
underground tank or other underground storage receptacle for Materials of
Environmental Concern, except in compliance with Environmental Laws;
(c) generate any Materials of Environmental Concern on any of the Real
Estate, except in compliance with Environmental Laws;
(d) conduct any activity at any Real Estate or use any Real Estate in
any manner so as to cause a release (i.e., releasing, spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, disposing or dumping) or threatened release of Materials of
Environmental Concern on, upon or into the Real Estate except in compliance
with Environmental Laws; or
(e) otherwise conduct any activity at any Real Estate, except in
compliance with Environmental Laws, or use any Real Estate in any manner
that would violate any Environmental Law or bring such Real Estate in
violation of any Environmental Law.
Section 7.09. Employee Benefit Plans. Neither the Borrower nor any ERISA
Affiliate shall, nor shall the Borrower permit any of its Subsidiaries to:
(a) engage in any "prohibited transaction" within the meaning of
Section 406 of ERISA or Section 4975 of the IRC which could result in a
material liability for the Borrower;
(b) permit any Guaranteed Pension Plan to incur an "accumulated
funding deficiency", as such term is defined in Section 302 of ERISA,
whether or not such deficiency is or may be waived;
(c) fail to contribute to any Guaranteed Pension Plan to an extent
which, or terminate any Guaranteed Pension Plan in a manner which, could
result in the imposition
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of a lien or encumbrance on the assets of the Borrower pursuant to
Section 302(f) or Section 4068 of ERISA;
(d) permit or take any action which would result in the aggregate
benefit liabilities (with the meaning of Section 4001 of ERISA) of all
Guaranteed Pension Plans exceeding the value of the aggregate assets of
such Plans, disregarding for this purpose the benefit liabilities and
assets of any such Plan with assets in excess of benefit liabilities;
(e) fail to make when due any required contributions to a
Multiemployer Plan;
(f) withdraw (completely or partially) from any Multiemployer Plan
where such withdrawal is likely to result in a material liability of the
Borrower or an ERISA Affiliate;
(g) terminate or institute proceedings to terminate, any Guaranteed
Pension Plan, where such termination is likely to result in a material
liability of the Borrower or an ERISA Affiliate;
(h) make any amendment to any Guaranteed Pension Plan with respect to
which security is required under Section 307 of ERISA; or
(i) fail to give any and all notices and make all disclosures and
governmental filings required under ERISA or the IRC where such failure is
likely to result in material liability to the Borrower or an ERISA
Affiliate.
Section 7.10. New Subsidiaries. The Borrower shall not create or acquire
any Person other than Operating Subsidiaries, Licenses Subsidiaries,
Non-Qualified Joint Venturers and Qualified Joint Ventures, provided that, the
Borrower may only create or acquire a Qualified Joint Venture that owns an FCC
License relating to a BTA that is not a Designated BTA with the prior written
consent of the Administrative Agent and the Required Lenders. The Borrower shall
not permit any of its Subsidiaries to create or acquire any Person.
Section 7.11. Transactions with Affiliates. The Borrower shall not enter
into, or permit any of its Subsidiaries to enter into:
(a) any agreement or arrangement providing for the payment of any
amounts to any of its Affiliates, except that:
(i) the Borrower may enter into the Expense Allocation Agreement;
and any Operating Subsidiary may enter into (A) the Cash Management
Agreement, (B) a Management Services Agreement substantially in the
form of Exhibit D-1 hereto, between such Operating Subsidiary and OCSI
and (C) one or more operating agreements substantially in the form of
Exhibit D-2 hereto,
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between such Operating Subsidiary and a License Subsidiary, provided,
however, that the foregoing agreements may not be amended unless such
amendment is first approved in writing by the Required Lenders;
(ii) the Borrower and its Subsidiaries may enter into a
tax-sharing agreement or arrangement pursuant to which the Borrower
and its Subsidiaries shall not make any payments or agree to make any
payments in lieu of income taxes unless the cumulative sum of such
payments does not exceed the cumulative sum of income taxes that the
Borrower and its Subsidiaries would have paid if the Borrower and its
Subsidiaries had always filed income-tax returns as separate entities;
and
(iii) the Borrower and its Subsidiaries may enter into a
management, consulting or other agreement, but only if such agreement
either
(A) relates to providing management, consulting or other
services to an Affiliate operating BTA markets and
(1) is on terms that are fair and reasonable and no
less favorable to the Borrower or such Subsidiary than it
would obtain in a comparable arm's-length transaction with a
Person not an Affiliate; and
(2) does not provide for the performance of services or
purchase or delivery of property by the Borrower or such
Subsidiary in a manner that, individually or together with
all other such agreements with Affiliates operating BTA
markets, would have a material adverse effect on the ability
of the Borrower or such Subsidiary to build-out or operate
any BTA or MTA for which it owns the applicable FCC License,
or
(B) is approved in writing by the Required Lenders,
(iv) the Borrower may enter into an agreement with an Affiliate
with respect to purchases of equipment and provision of services for
the Network at the lower of fair market value or cost.
(v) subject to compliance with applicable FCC rules and
regulations, the Borrower and its Subsidiaries may within one hundred
eighty (180) days of the Closing Date enter into an agreement, in form
and substance satisfactory to the Required Lenders, with Omnipoint
Communications Enterprises, L.P., a Delaware limited partnership, the
operating subsidiary of the Grand Parent for the Philadelphia BTA, to
sublicense all of the right, title and interest of the Borrower
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and its Subsidiaries to use, operate and manage the FCC C-Block License for the
Atlantic City BTA and all or a portion of the Nortel Goods and Services and
related property for use in the Atlantic City BTA and the FCC C-Block License
therefor, which agreement shall include, without limitation, the continued
security interest (and pledge) in favor of the Collateral Agent with respect to
(I) all assets currently subject to Security Agreements in respect of the
Atlantic City BTA and (II) all cash flow derived from such sublicense agreement.
(b) any other agreement, arrangement or transaction with any of its
Affiliates (whether or not providing for the payment of any amounts to any
of its Affiliates), except in the ordinary course of business and on terms
that are fair and reasonable and no less favorable to the Borrower or such
Subsidiary than it would obtain in a comparable arm's-length transaction
with a Person not an Affiliate.
Section 7.12. Permitted Business.The Borrower shall not:
(a) engage in any business other than the holding of Stock of
Operating Subsidiaries, License Subsidiaries, Wholly Owned Subsidiaries,
Qualified Joint Ventures and Non-Qualified Joint Ventures to the extent
permitted under Section 7.04 and Section 7.10 of this Agreement, and the
purchasing and reselling to any of the foregoing of equipment used in
connection with the build-out and operation of PCS Systems for which FCC
Licenses for BTAs are held by License Subsidiaries or Qualified Joint
Ventures or Non-Qualified Joint Ventures or hold any assets other than such
Stock and the Facility B Mirror Note,
(b) permit any License Subsidiary to engage in any business other than
the holding of FCC Licenses and the licensing thereof to other Persons to
the extent permitted hereunder or hold any assets other than FCC Licenses,
(c) permit any Operating Subsidiary to engage in any business other
than the development, construction and operation of PCS Systems and related
businesses, and
(d) permit any Qualified Joint Venture to engage in any business other
than that permitted by subparagraphs (b) or (c) above.
Section 7.13. Charter Amendments. The Borrower shall not, and shall not
permit any of its Subsidiaries to, amend its charter documents or bylaws.
Section 7.14. Accounting Changes. The Borrower shall not make or permit, or
permit any of its Subsidiaries to make or permit, any change in accounting
policies or reporting practices, except as required by GAAP, or change its
fiscal year.
Section 7.15. Prepayments, Etc., of Indebtedness.The Borrower shall not
and shall not permit any Subsidiary:
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(a) to prepay, redeem, purchase, defease or otherwise satisfy prior to
the scheduled maturity thereof in any manner, or make any payment in
violation of any subordination terms of, any Indebtedness owing by the
Borrower or any of its Subsidiaries, other than the prepayment of the
Advances in accordance with the terms of this Agreement, except for
prepayments, redemptions, purchases or other satisfactions by the Borrower
as to which lenders under the Intercreditor Agreement are not required to
pay any amount to other lenders party thereto or FCC Debt, or
(b) to amend, modify or change in any manner any term or condition of
any Subordinated Debt or any other Indebtedness secured by Liens in favor
of the Collateral Agent, except for amendments, modifications and changes
that the lenders party to the Intercreditor Agreement are permitted to
enter into thereunder.
If on any date any amount shall be due and owing hereunder and under any other
Indebtedness of the Borrower or any of its Subsidiaries and the Borrower or such
Subsidiary shall not pay in full all such amounts as are then due and owing, the
Borrower shall not pay, or permit such Subsidiary to pay, any such amounts
except ratably, in accordance with the respective amounts then due and owing
thereunder. If the Borrower shall take any action in violation of this
Section 7.15, it irrevocably authorizes each lender to it that is a party to the
Intercreditor Agreement on its behalf to make any payment required under the
Intercreditor Agreement and acknowledges that any amount so paid by any such
lender shall be deemed not to have been paid by the Borrower or such Subsidiary
to such lender.
Section 7.16. Amendment, Etc., of Material Contracts. The Borrower shall
not, and shall not permit any Subsidiary to, cancel or terminate any Material
Contract or consent to or accept any cancellation or termination thereof, amend
or otherwise modify any Material Contract or give any consent, waiver or
approval thereunder, waive any default under or breach of any Material Contract,
agree in any manner to any other amendment, modification or change of any term
or condition of any Material Contract, or take any other action in connection
with any Material Contract, and shall not permit any of its Subsidiaries to do
any of the foregoing, that, in any such case, could, at the time thereof,
reasonably be expected to have a material adverse effect on the ability of the
Borrower or any of its Subsidiaries to perform its obligations under this
Agreement or any other Loan Document.
Section 7.17. Restrictions on Subsidiaries.
(a) The Borrower shall not enter into or suffer to exist, or permit
any of its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien in favor
of the Collateral Agent upon any of its property or assets or limiting the
ability of any Subsidiary to declare and pay dividends and Distributions or
make Investments in the Borrower.
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(b) So long as any Advances are outstanding or any other amount is
owing under the Loan Documents, no Distribution shall be made by any
Qualified Joint Venture except in cash or to any Person other than the
Borrower and its Subsidiaries, except as permitted pursuant to Section 7.05
hereof.
Section 7.18. Partnerships. The Borrower shall not become, or permit any of
its Subsidiaries to become, a general partner in any general or limited
partnership other than any Subsidiary the sole asset of which consists of its
interest in such partnership.
Section 7.19. Default Under the Volume Purchase Agreement. The Borrower
shall not and shall not permit any of its Subsidiaries to default in the
performance or observance of any covenants or conditions on its part to be
performed or observed under the Volume Purchase Agreement.
Section 7.20. Collections of Receivables. Except as provided in the
Management Services Agreement, the Borrower shall not, and shall not permit any
of its Subsidiaries and Affiliates to, collect any receivables arising from
providing PCS or other services or sales of handsets or other assets, except
through the Operating Subsidiary.
Section 7.21. Management Fees. The Borrower shall not and shall not permit
its Subsidiaries to pay any management fees, except pursuant to the terms of the
Management Services Agreement and Cash Management Agreement.
Section 7.22. Operating Leases. The Borrower shall not and shall not permit
any of its Subsidiaries to incur Operating Lease Obligations (excluding real
estate expenses such as rental and tower leasing), that individually or in the
aggregate, provide for an annual payment in excess of $5,000,000, unless with
Required Lenders prior written approval.
Section 7.23. Restrictions Regarding License Subsidiaries. The Borrower
shall not and shall not permit any of its License Subsidiaries to, (i) acquire
any assets other than FCC Licenses, (ii) engage in any business other than as
owner of FCC Licenses for use by the Borrower and the Operating Subsidiaries or
a Qualified Joint Venture or NonQualified Joint Venture and take the actions
authorized and contemplated in this Agreement in connection with the Credit
Facility, or (iii) incur any Indebtedness other than as a Guarantor or as an
obligor to the FCC for FCC Debt that constitutes permitted Indebtedness
hereunder.
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ARTICLE VIII
CONDITIONS TO THE CLOSING
The obligations of each Lender to make any initial Advance shall be subject
to the satisfaction of the following conditions precedent on or prior to the
date of the initial Advance (the "Closing Date"):
Section 8.01. Terms and Conditions of Transaction.
(a) Each Lender shall have received one or more Notes, payable to the
order of such Lender, duly executed and delivered by the Borrower, as well
as copies of each of the other Loan Documents, which shall have been duly
executed and delivered by the respective parties thereto, shall be in full
force and effect and shall be in form and substance satisfactory to the
Administrative Agent, each of the Lenders and their counsel.
(b) The Lenders shall be satisfied with the final terms and conditions
of the transactions contemplated hereby and by the other Loan Documents,
including, without limitation, all legal and tax aspects thereof.
(c) The Lenders shall be satisfied with the corporate and legal
structure and capitalization of the Borrower and its Subsidiaries,
including, without limitation, their respective charters and bylaws and
each agreement or instrument relating thereto.
(d) The Administrative Agent and the Required Lenders shall have
completed satisfactory review and approval of the Borrower's Network
build-out plan, budget and schedule, including financial projections of the
Borrower and its Consolidated Subsidiaries for the ten-year period
beginning January 1, 1998, certified by the principal or chief accounting
or financial officer of the Borrower as having been prepared in accordance
with GAAP except for the absence of footnotes and the recording of FCC
licenses and related obligations on a cost basis, such projections giving
effect to the indebtedness to be incurred under the Credit Facility as well
as the other indebtedness to be incurred by the Borrower and its
Consolidated Subsidiaries during such ten-year period.
Section 8.02. Due Diligence. The Lenders shall have completed a
due-diligence investigation of the Borrower and its Subsidiaries in scope, and
with results, satisfactory to the Lenders and shall have been given such access
to the management, records, books of account, contracts and properties of the
Borrower and shall have received such financial, business and other information
regarding the Borrower and its Subsidiaries as they shall have requested.
Section 8.03. Validity of Liens. The Borrower Security Agreement, the
Parent Pledge Agreement and each other Collateral Document required to be
entered into on the date hereof
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shall be effective to create in favor of the Collateral Agent a legal, valid and
enforceable first-priority security interest (except for Liens that have
priority under applicable law and which are Permitted Liens or Liens which are
pari passu pursuant to the Intercreditor Agreement and are Permitted Liens) in
and Lien upon the Collateral. All filings, recordings, deliveries of instruments
and other actions necessary or desirable in the opinion of the Collateral Agent
to protect and preserve such security interests shall have been duly effected,
all such documents shall have been duly executed by the applicable Loan Party
and all filing and recording fees and taxes relating to any of the foregoing
shall have been duly paid. The Administrative Agent shall have received evidence
thereof in form and substance satisfactory to the Administrative Agent.
Section 8.04. Search Reports and Related Documents. The Administrative
Agent shall have received
(a) such Uniform Commercial Code, tax, patent, trademark and judgment
lien search reports with respect to such applicable public offices where
Liens are filed, as shall be acceptable to the Administrative Agent,
disclosing that there are no Liens of record (other than Permitted Liens)
in such official's office covering any Collateral or showing any Loan Party
as a debtor thereunder;
(b) a certificate of each Loan Party signed by an authorized officer
of such Loan Party, dated the Closing Date, certifying that, as of the
Closing Date, there will exist no Liens on the Collateral other than
Permitted Liens; and
(c) acknowledgment copies or duly executed file-stamped copies of
UCC-1 and UCC-3 financing statements with respect to the Collateral filed
in each office in each jurisdiction that the Administrative Agent may deem
necessary or appropriate to perfect and protect a first-priority Lien on
the Collateral.
Section 8.05. Certificates of Insurance. The Administrative Agent shall
have received:
(a) a certificate of insurance from an independent insurance broker,
dated as of the Closing Date, identifying insurers, types of insurance,
insurance limits, and policy terms, and otherwise describing the insurance
obtained in accordance with the provisions of the Collateral Documents and
this Agreement, and
(b) copies of all policies evidencing such insurance, which shall
contain provisions naming the Collateral Agent as an additional insured and
loss payee on behalf of the Lenders as its interests may appear, with the
standard mortgage endorsement (without contribution) and providing for
30-days' prior written notice to Administrative Agent and the Collateral
Agent of cancellation or diminishment.
Section 8.06. Solvency Certificate. Each of the Lenders and the
Administrative Agent shall have received an officer's certificate of the
Borrower, the Parent, and OC in form and
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substance satisfactory to the Administrative Agent and the Lenders, dated as of
the Closing Date as to the Borrower, the Parent and OC being Solvent after
giving effect to the consummation of the transactions contemplated herein and in
the other Loan Documents.
Section 8.07. Opinions of Counsel to the Borrower and its Subsidiaries.
Each of the Lenders and the Administrative Agent shall have received favorable
legal opinions addressed to the Lenders and the Administrative Agent, each dated
as of the Closing Date, in form and substance satisfactory to the Lenders and
the Administrative Agent, from (i) Piper & Marbury, L.L.P., counsel to the
Borrower, (ii) Piper & Marbury, L.L.P., counsel to the Borrower's Subsidiaries,
and (iii) local counsel to the Borrower's Subsidiaries in such jurisdictions as
the Administrative Agent may reasonably request as to, among other things, the
authorization, execution and enforceability of the Loan Documents, creation,
validity and perfection of the security interests in the Collateral, the
applicability of New York law, and the absence of any violations of, or conflict
with, credit agreements, indentures, and other material agreements, in form and
substance acceptable to the Administrative Agent and the Lenders.
Section 8.08. Opinion of Counsel to the Parent and OC. Each of the Lenders
and the Administrative Agent shall have received a favorable legal opinion
addressed to the Lenders and the Administrative Agent, from Piper & Marbury,
L.L.P., counsel to the Parent, the C-Block Subsidiary Parent, the D-, E- and F-
Block Subsidiary Parent and OC, dated as of the Closing Date, in form and
substance satisfactory to the Lenders and the Administrative Agent.
Section 8.09. Opinion of FCC Counsel. Each of the Lenders and the
Administrative Agent shall have received a favorable legal opinion addressed to
the Lenders and Administrative Agent from Piper & Marbury, L.L.P., FCC counsel
to the Borrower, the Parent and the License Subsidiaries, dated as of the
Closing Date, in form and substance satisfactory to the Lenders and the
Administrative Agent.
Section 8.10. Payment of Fees. The Borrower shall have paid all accrued
fees and expenses of the Administrative Agent, the Collateral Agent and the
Lenders, to the extent payable by the Borrower hereunder and under the other
Loan Documents.
Section 8.11. Approvals, Permits; FCC Licenses.
(a) The Borrower and each of the License Subsidiaries and Operating
Subsidiaries shall have obtained all federal, state and local governmental
and regulatory consents, approvals, FCC Licenses and permits, including any
third-party consents, as required or necessary for the Borrower to accept
Loans and for the Borrower and each of the License Subsidiaries and
Operating Subsidiaries to construct and operate the Network and their
businesses pursuant to the Approved Full Term Operating Business Plan and
shall maintain in effect each of the foregoing; all applicable waiting
periods shall have expired without any action being taken by any competent
authority; no law or regulation shall be applicable in the judgment of the
Lenders that restrains, prevents or imposes
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materially adverse conditions upon the Loans or the operation of the
businesses of the Borrower and each of the License Subsidiaries and
Operating Subsidiaries as currently operated, and the Administrative Agent
and each of the Lenders shall receive a certificate of an authorized
officer of the Borrower to that effect dated the Closing Date, and, to the
extent requested by the Administrative Agent or any Lender, a favorable
opinion of regulatory counsel dated as of the Closing Date.
(b) The Lenders shall have received evidence satisfactory to the
Lenders that each FCC License listed in Schedule 5.07 has been won by OC
and its Subsidiaries in FCC PCS auctions, has been transferred to a License
Subsidiary, and that no such FCC License is subject or likely to be subject
to any revocation action commenced or threatened by the FCC or to being
purchased by any Person other than a License Subsidiary.
(c) The Administrative Agent and the Lenders shall have received
satisfactory evidence that the Borrower or the License Subsidiaries, as
applicable, have complied with all initial and on-going applicable
conditions of issuance of any licenses, including without limitation FCC
PCS Licenses. To the extent that the License Subsidiaries hold one or more
FCC PCS Licenses under which the Borrower or the Operating Subsidiaries
will operate, the Borrower or the Operating Subsidiaries must have the
exclusive, unrestricted right to use such licenses pursuant to a license
agreement in form and substance acceptable to the Administrative Agent and
the Lenders, and the applicable License Subsidiaries must agree that the
Administrative Agent, for the benefit of the Lenders, may enforce the
license agreement in its favor or in favor of a transferee.
(d) The Administrative Agent and the Lenders shall have received
satisfactory evidence that all Loan Parties have received all applicable
waivers and consents required under all credit agreements, indentures and
other material agreements to which each of them is a party to permit them
to execute, deliver and perform the obligations under the Loan Documents.
Section 8.12. Delivery of Full-Term Operating Business Plan. The Borrower
shall have delivered to the Administrative Agent and each Lender a full-term
operating business plan, which shall be in form and substance satisfactory to
the Administrative Agent and each Lender, together with (i) a certificate of the
chief or principal financial or accounting officer of the Borrower dated the
Closing Date certifying as to the reasonableness of the assumptions and
expectations contained therein and that there are presently no facts known to
such Person that would make such plan misleading in any material respect and
(ii) such pro-forma financial statements and projections for the Borrower and
its Subsidiaries, in form and substance satisfactory to the Lenders, as shall be
reasonably requested by the Lenders.
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Section 8.13. Security Agreements. The Borrower shall have delivered to the
Administrative Agent and each Lender copies of each of the following:
(a) a pledge and security agreement (as amended from time to time, the
"Borrower Security Agreement"), in substantially the form of Exhibit E-1,
duly executed by the Borrower, that, among other things, grants to the
Collateral Agent for the benefit of the Secured Parties a Lien on such
assets of the Borrower (including without limitation all issued and
outstanding Stock of each License Subsidiary and each Operating Subsidiary
owned by the Borrower) as the Lenders may request;
(b) a pledge agreement (as amended from time to time, the "Parent
Pledge Agreement"), in substantially the form of Exhibit E-2, duly executed
by the Parent, that, among other things, pledges to the Collateral Agent
for the benefit of the Secured Parties all issued and outstanding Stock of
the Borrower;
(c) a pledge agreement (as amended from time to time, a "C-Block
Subsidiary Pledge Agreement"), in substantially the form of Exhibit E-3,
duly executed by the C-Block Subsidiary Parent, that, among other things,
pledges to the Collateral Agent for the benefit of the Secured Parties all
issued and outstanding Stock of each C-Block Subsidiary;
(d) a pledge agreement (as amended from time to time, a "D-, E- and
F-Block Subsidiary Pledge Agreement"), in substantially the form of Exhibit
E-4, duly executed by the D-, E- and F-Block Subsidiary Parent, that, among
other things, pledges to the Collateral Agent for the benefit of the
Secured Parties all issued and outstanding Stock of each D-, E- and F-Block
Subsidiary;
(e) pledge and security agreements (together with each other pledge
and security agreement delivered pursuant to Section 6.16(b), in each case
as amended from time to time, a "Subsidiary Security Agreement"),
substantially in the form of Exhibit E-5 hereto, duly executed by the
Guarantors (other than the Parent, the C-Block Subsidiary Parent, the D-,
E- and F-Block Subsidiary Parent and OC), each of which, among other
things, grants to the Collateral Agent for the benefit of the Secured
Parties a Lien on such assets of such Guarantor (including, in the case of
any Operating Subsidiary, all issued and outstanding Stock of each of its
Subsidiaries that is a License Subsidiary or an Operating Subsidiary) as
the Lenders may request; and
in each case together with:
(i) if applicable, certificates representing the shares or units
of Stock pledged under such Security Agreement, accompanied by undated
stock powers executed in blank,
(ii) duly executed financing statements, in proper form for
filing under the Uniform Commercial Code of all jurisdictions that the
Administrative Agent may deem necessary or desirable in order to
perfect and protect the first priority
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liens and security interests created under such Security Agreement
covering the Collateral described in such Security Agreement,
(iii) evidence of any insurance required by the terms of such
Security Agreement,
(iv) evidence that all other action that the Administrative Agent
may deem necessary or desirable in order to perfect and protect the
first priority liens and security interests created under such
Security Agreement has been taken.
Section 8.14. Guaranties. The Borrower shall have delivered to the
Administrative Agent and each Lender copies of each of the following:
(a) from the Parent, a limited-recourse guaranty in substantially the
form of Exhibit H-1 hereto (as amended, supplemented or otherwise modified
from time to time in accordance with its terms, the "Limited Recourse
Parent Guaranty"), duly executed by the Parent,
(b) from the C-Block Subsidiary Parent, a limited-recourse guaranty in
substantially the form of Exhibit H-2 hereto (as amended, supplemented or
otherwise modified from time to time in accordance with its terms, the
"C-Block Subsidiary Parent Limited Recourse Guaranty"), duly executed by
the C-Block Subsidiary Parent,
(c) from the D-, E- and F-Block Subsidiary Parent, a limited-recourse
guaranty in substantially the form of Exhibit H-3 hereto (as amended,
supplemented or otherwise modified from time to time in accordance with its
terms, the "D-, E- and F-Block Subsidiary Parent Limited Recourse
Guaranty"), duly executed by the D-, E- and F- Block Subsidiary Parent, and
(d) from each Operating Subsidiary and each License Subsidiary, a
guaranty in substantially the form of Exhibit H-4 hereto (together with
each other such guaranty delivered pursuant to Section 6.16(a), in each
case as amended, supplemented or otherwise modified from time to time in
accordance with its terms, a "Subsidiary Guaranty"), duly executed by each
Operating Subsidiary and each License Subsidiary, and
(e) from OC, a guaranty in substantially the form of Exhibit H-5
hereto (as amended, supplemented or otherwise modified from time to time in
accordance with its terms, the "OC Guaranty"), duly executed by OC.
Section 8.15. Mortgages, Etc. The Borrower shall have delivered to the
Administrative Agent and each Lender copies of deeds of trust, trust deeds,
mortgages, leasehold mortgages and leasehold deeds of trust in form and
substance satisfactory to the Administrative Agent and covering the properties
listed on Schedule 8.15 hereto (together with each other mortgage
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delivered pursuant to Section 6.16(b), in each case as amended, supplemented or
otherwise modified from time to time in accordance with their terms, the
"Mortgages"), duly executed by each party thereto, in each case together with:
(a) evidence that counterparts of the Mortgages have been duly
recorded on or before the day of the initial Advance (or, with respect to
any such Mortgage entered into after the date of the initial Advance in
accordance with this Agreement, on or within twenty (20) days of the date
of execution and delivery of such Mortgage) in all filing or recording
offices that the Administrative Agent may deem necessary or desirable in
order to create a valid first and subsisting Lien (other than Permitted
Liens) on the property described therein in favor of the Secured Parties
and that all filing and recording taxes and fees have been paid;
(b) evidence of the title insurance required by the terms of such
Mortgage, with the survey exception deleted, and a current survey certified
to the Collateral Agent and the Lenders,
(c) an appraisal (to the extent required by laws or regulations
applicable to any Lender) with respect to the realty complying with all
applicable regulatory requirements,
(d) an environmental survey in form and substance acceptable to the
Administrative Agent, and
(e) evidence that all other action that the Administrative Agent or
Collateral Agent may deem necessary or desirable in order to create valid
first and subsisting Liens on the property described in such Mortgage has
been taken.
Section 8.16. Landlord Waivers, Attornment and Recognition Agreements,
Consents to Collateral Assignments. The Borrower shall have delivered to the
Administrative Agent and each Lender copies of each landlord waiver, attornment
and recognition agreement and consent to collateral assignment required by
Section
Section 8.17. Material Agreements. Subject to confidentiality restrictions,
the Administrative Agent and each of the Lenders shall have received a complete
and correct copy, in form and substance satisfactory to the Lenders, of (a) the
Expense Allocation Agreement and the servicing agreement and form of licensing
agreement referred to in Section 7.11(a)(i), in each case (if applicable) as
then in effect and duly executed by the parties thereto, and (b) each other
contract on Schedule 5.27, as such other contract is then in effect and as to
which the Administrative Agent shall have requested a copy on or before the
Closing Date.
Section 8.18. Litigation. Except as disclosed on Schedule 5.08, there shall
exist no action, suit, investigation, litigation or proceeding pending or
threatened in any court or before any
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arbitrator or governmental instrumentality affecting any of OC, the Parent, the
Borrower or any of their respective Subsidiaries that
(i) could have a Material Adverse Effect, or
(ii) purports to affect the legality, validity or enforceability of
this Agreement, any Note, any other Loan Document or the consummation of
the transactions contemplated hereby or thereby or challenges any of the
Lenders' rights under this Agreement, any Note or any other Loan Agreement.
Section 8.19. Insurance Certificates. The Administrative Agent shall have
received one or more insurance certificates to the effect in Section 6.05.
Section 8.20. No Default. No default shall have occurred and be continuing
under the Volume Purchase Agreement on account of a breach by the Borrower or
any of its Subsidiaries.
Section 8.21. No Material Adverse Effect. There shall have occurred no
material adverse change in the business, condition (financial or otherwise),
operations, performance, properties or prospects of the Borrower or any of its
Subsidiaries since the date of the most recent audited financial statements
provided to the Lenders, and all information provided by or on behalf of the
Borrower to the Lenders prior to the date of the initial Advance shall be true
and correct in all material aspects and the Administrative Agent shall have
received a certificate executed by the chief financial or principal accounting
officer of the Borrower, to that effect.
Section 8.22. Corporate or Limited Liability Company Documents. The
Administrative Agent shall have received on the Closing Date each of the
following, each dated such day (unless otherwise specified), in form and
substance satisfactory to each Lender (unless otherwise specified) and in
sufficient copies for each Lender:
(a) Certified copies of the resolutions of the Board of Directors, in
the case of a corporation, or all requisite actions of members and/or the
management, in the case of a limited liability company, of the Borrower and
each other Loan Party approving this Agreement, the Notes and each other
Loan Document to which it is or is to be a party, and of all documents
evidencing other necessary corporate or limited liability company action
and governmental and other third party approvals and consents, if any, with
respect to this Agreement, the Notes and each other Loan Document.
(b) A copy of the charter documents of the Borrower, OC, the Parent
and each other Loan Party and each amendment thereto, certified (as of a
date reasonably near the date of the initial Advance) by the Secretary of
State of the jurisdiction of its incorporation or formation as being a true
and correct copy thereof.
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(c) A copy of a certificate of the Secretary of State of the
jurisdiction of incorporation or formation of the Borrower, OC, the Parent
and each other Loan Party, dated reasonably near the date of the initial
Advance, listing the charter of such Person and each amendment thereto on
file in his office and certifying that
(i) such amendments are the only amendments to such Person's
charter on file in his office,
(ii) such Person has paid all franchise taxes to the date of such
certificate, and
(iii) such Person is duly incorporated or formed and in good
standing under the laws of the state of incorporation or formation of
such Person.
(d) A copy of a certificate of the Secretary of State or other
appropriate representative of each state in which each of OC, the Parent,
the Borrower and each other Loan Party is engaged in any business, dated
reasonably near the Closing Date, stating that each of OC, the Parent , the
Borrower and each other Loan Party is duly qualified and in good standing
as a foreign corporation or foreign limited liability company in such state
and has filed all annual reports required to be filed to the date of such
certificate.
(e) A certificate of the Borrower, the Parent and each other Loan
Party, signed on behalf of the Borrower, the Parent and such other Loan
Party by its President or a Vice President and its Secretary or any
Assistant Secretary, dated the Closing Date (the statements made in which
certificate shall be true on and as of the date of the Closing Date),
certifying as to
(A) the absence of any amendments to the charter or
certificate of formation of the Borrower, or each other Loan
Party since the date of the Secretary of State's certificate
referred to in Section 8.22(c),
(B) a true and correct copy of the bylaws (in the case of a
corporation) or the limited liability company agreement (in the
case of a limited liability company), and all amendments thereto,
of the Borrower and each other Loan Party as in effect on the
Closing Date,
(C) the due incorporation or formation and good standing of
the Borrower and such other Loan Party as a corporation or
limited liability company organized under the laws of the
jurisdiction in which such Loan Party is incorporated or formed,
and the absence of any proceeding for the dissolution or
liquidation of the Borrower, the Parent or such other Loan Party,
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(D) the truth of the representations and warranties and
compliance with the covenants of such Person contained in the
Loan Documents as though made on and as of the date of the
initial Advance, and
(E) the absence of any event occurring and continuing, or
resulting from the closing, that constitutes a Default.
(f) A certificate of the Secretary or an Assistant Secretary of the
Borrower, the Parent, OC and each other Loan Party certifying as to the
names and true signatures of the officers of the Borrower, the Parent and
such other Loan Party authorized to sign this Agreement, the Notes and each
other Loan Document to which they are or are to be parties and the other
documents to be delivered hereunder and thereunder.
(g) All other documents, instruments, financial information and
opinions from the Borrower, OC, the Parent or any of the Borrower's
Subsidiaries (including opinions of counsel for the Borrower, OC, the
Parent or any such Subsidiary) as the Administrative Agent and each Lender
may reasonably request, in form and substance satisfactory to the
Administrative Agent and each Lender and their counsel, and which shall be
in full force and effect on the date of the initial Advance.
Section 8.23. Intercreditor Agreement. The Borrower shall have delivered to
the Administrative Agent an intercreditor agreement substantially in the form of
Exhibit I, duly executed by the Collateral Agent and Nortel in its capacity as
Administrative Agent and initial Lender, (as the same may be amended from time
to time, the "Intercreditor Agreement").
Section 8.24. Capital Contribution Agreement. The Borrower shall have
delivered to the Administrative Agent a Capital Contribution Agreement
substantially in the form of Exhibit J, duly executed by OC and the Borrower (as
the same may be amended from time to time, the "Capital Contribution
Agreement").
Section 8.25. Amendment to Volume Purchase Agreement. The Administrative
Agent shall have received evidence satisfactory to it that the Volume Purchase
Agreement has been amended and has been executed by each of Nortel, the Borrower
and OC and such amendment shall contain terms and conditions satisfactory to the
Administrative Agent.
Section 8.26. Management Services Agreement and Other Agreements;
Acknowledgement of Assignment. The Administrative Agent and the Lenders shall
have reviewed and approved the Management Services Agreement under which OCSI
will provide billing, customer care and other services to the Operations. The
Administrative Agent shall have received from Operations a written statement to
it in which OCSI (a) consents to the assignment by the Operating Subsidiary
party to the Management Services Agreement of all of its right, title and
interest in and to the Management Services Agreement (including, without
limitation, the right to receive any
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monies due thereunder) to the Collateral Agent pursuant to the Collateral
Documents, (b) agrees not to cancel or terminate the Management Services
Agreement except upon at least 30 days written notice to the Administrative
Agent and (c) agrees that the Administrative Agent or the Collateral Agent shall
be entitled to make any payment or otherwise perform any obligation or cure any
default of the Borrower or any of its Subsidiaries under the Management Services
Agreement.
The Administrative Agent and the Lenders shall have reviewed and approved
the form of Operating Agreement attached hereto as Exhibit D-2 under which
Operations will provide certain services to the License Subsidiaries. The
Administrative Agent shall have received from the License Subsidiaries a written
statement to it in which Operations (a) consents to the assignment by the
License Subsidiary party to the Operating Agreement of all of its right, title
and interest in and to the Operating Agreement (including, without limitation,
the right to receive any monies due thereunder) to the Collateral Agent pursuant
to the Collateral Documents, (b) agrees not to cancel or terminate the Operating
Agreement except upon at least 30 days written notice to the Administrative
Agent and (c) agrees that the Administrative Agent or the Collateral Agent shall
be entitled to make any payment or otherwise perform any obligation or cure any
default of the Borrower or any of its Subsidiaries under the Operating
Agreement.
The Administrative Agent and the Lenders shall have reviewed and approved
the Cash Management Agreement between Operations and OC. The Administrative
Agent shall have received from Operations a written statement to it in which OC
(a) consents to the assignment by the Operating Subsidiary party to the Cash
Management Agreement of all of its right, title and interest in and to the Cash
Management Agreement (including, without limitation, the right to receive any
monies due thereunder) to the Collateral Agent pursuant to the Collateral
Documents, (b) agrees not to cancel or terminate the Cash Management Agreement
except upon at least 30 days written notice to the Administrative Agent and (c)
agrees that the Administrative Agent or the Collateral Agent shall be entitled
to make any payment or otherwise perform any obligation or cure any default of
the Borrower or any of its Subsidiaries under the Cash Management Agreement.
Section 8.27. Interest. The Administrative Agent shall have received
evidence satisfactory to the Administrative Agent of the payment by OC to Nortel
of interest for Nortel Goods and Services pursuant to the Volume Purchase
Agreement within the Designated BTAs and the Wichita BTAs prior to the Closing
Date, such interest having accrued at LIBOR plus 4.45% per annum from the
original due date of the invoices for such Nortel Goods and Services.
Section 8.28. No Misrepresentations. All representations and warranties are
true as of the Closing Date and the Administrative Agent and the Lenders shall
have received a certificate of the chief executive officer of the Borrower and
each Guarantor to the effect that neither the Borrower nor any Guarantor has
failed to disclose to the Administrative Agent or any Lender any material fact
with respect to the Network or their respective financial conditions (including
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any contingent liabilities), or has failed to disclose any information, the
absence of which makes any information previously disclosed to the
Administrative Agent or any Lender materially misleading.
Section 8.29. Compliance Certificate. The Lenders and the Administrative
Agent shall have received a Compliance Certificate in the form attached hereto
as Exhibit K.
Section 8.30. Administrative Agent Letter. The Borrower shall have
delivered to the Administrative Agent the Administrative Agent Letter duly
executed by the Borrower.
Section 8.31. Other Information. The Lenders and the Administrative Agent
shall have received such other information respecting the business, condition
(financial or otherwise), operations, performance, properties or prospects of
any Loan Party or any of its Subsidiaries as any Lender (through the
Administrative Agent) may from time to time reasonably request.
Section 8.32. Applications for Transfer of Ownership. The Administrative
Agent shall have received satisfactory evidence and opinions of Borrower's and
OC's counsel that, as of the Closing Date, all necessary and appropriate
applications have been filed with the FCC to authorize the transfer of the Stock
of the C-Block Subsidiaries and each D-, E- and F- Block Subsidiary to the
Borrower, and that all other necessary or appropriate actions have been taken by
the Borrower, the Guarantors, and OC to cause such transfer to take place.
ARTICLE IX
CONDITIONS TO ADVANCES
Section 9.01. Conditions Precedent to an Initial Advance. The obligations
of each Applicable Lender to make any initial Advance shall be subject to the
satisfaction of the following conditions precedent on or prior to the date of
such initial Advance:
(a) The Administrative Agent shall have received on or before the date
of the initial Advance the following, each dated such day (unless otherwise
specified), in form and substance satisfactory to each Lender (unless
otherwise specified) and in sufficient copies for each Lender;
(i) a certificate of the Borrower signed on behalf of the
Borrower by its President or a Vice President, dated the date of the
initial Advance (the statements made in which certificate shall be
true on and as of the date of the initial Advance), certifying as to
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(A) the truth of the representations and warranties and
compliance with the covenants of the Borrower contained in the
Loan Documents;
(B) the absence of any event occurring and continuing, or
resulting from the initial Advance, that constitutes a Default;
(C) absence of any material adverse change in the business,
condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower or any of its
Subsidiaries since the date of the most recent audited financial
statements provided to the Lenders, and all information provided
by or on behalf of the Borrower to the Lenders prior to the date
of the initial Advance shall be true and correct in all material
aspects;
(D) neither the Borrower nor any Guarantor has failed to
disclose to the Administrative Agent or any Lender any material
fact with respect to the Network or their respective financial
conditions (including any contingent liabilities), or has failed
to disclose any information, the absence of which makes any
information previously disclosed to the Administrative Agent or
any Lender materially misleading.
(ii) The Administrative Agent shall have received on or before
the date of the initial Advance a Compliance Certificate dated the
date of such initial Advance.
Section 9.02. Conditions to All Advances. The obligation of each Applicable
Lender to make any Advance, including its initial Advance, shall also be subject
to the satisfaction of the conditions precedent that on the date of such
Advance:
(a) The Administrative Agent shall have received a properly completed
Draw Request.
(b) Each of the representations and warranties of the Borrower and
each other Loan Party contained in this Agreement, the other Loan Documents
or in any document or instrument delivered pursuant to or in connection
with this Agreement or any other Loan Document is true and correct in all
material respects immediately prior to, and after giving effect to, the
making of such Advance and the application of the proceeds therefrom, as
though made on and as of such date (except to the extent that such
representations and warranties relate expressly to an earlier date). The
Administrative Agent shall have received a certificate of an authorized
officer of the Borrower to such effect.
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(c) No event has occurred and is continuing, or would result from such
Advance or from the application of the proceeds therefrom, that constitutes
a Default or a default under any other Loan Document.
(d) No change shall have occurred in any law or regulations thereunder
or interpretations thereof that in the reasonable opinion of any Lender
would make it illegal for such Lender to make such Loan and no order of any
court or Governmental Body has been entered prohibiting the consummation of
the transactions contemplated by the Loan Documents.
(e) Each Lender shall have received such statements in substance and
form reasonably satisfactory to such Lender as such Lender shall require
for the purpose of compliance with any applicable regulations of the
Comptroller of the Currency or the Board of Governors of the Federal
Reserve System.
(f) The Administrative Agent shall have received such other approvals,
opinions or documents as any Lender through the Administrative Agent may
reasonably request.
(g) The Borrower shall have delivered to the Administrative Agent
invoices or other evidence reasonably satisfactory to the Administrative
Agent showing the aggregate amount of expense for Nortel Goods and Services
that have been incurred by the Borrower and its Subsidiaries through the
date of such Advance.
(h) No Material Adverse Effect has occurred and is continuing.
(i) Neither the Borrower nor any Guarantor has failed to disclose to
the Administrative Agent or any Lender any material fact with respect to
the Network or their respective financial conditions (including any
contingent liabilities), or has failed to disclose any information, the
absence of which makes any information previously disclosed to the
Administrative Agent or any Lender materially misleading.
(j) The Administrative Agent shall have received a properly completed
Borrowing Base Certificate executed by an authorized officer of the
Borrower.
ARTICLE X
EVENTS OF DEFAULT; ACCELERATION; ETC.
Section 10.01. Events of Default and Acceleration. Upon occurrence and
during the continuance of any of the following events,
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(a) the Borrower shall fail to pay any principal of the Loans, any
fee, any interest on the Loans or any other Obligations or any other sum
hereunder or under any of the other Loan Documents to which it is a party,
in any such case when the same shall become due and payable; or
(b) the Borrower shall fail to perform or observe any term, covenant
or agreement contained in Article VII or Sections 6.01, 6.03, 6.04(c),
6.04(d), 6.08, 6.09, 6.12, 6.13(i), 6.14, 6.15, 6.16, 6.17 or 6.22;
provided that the Borrower shall have the right to comply with the
covenants contained in Sections 6.14(a) and (c) for any one or more fiscal
quarters, and in Sections 6.14(b) and (d) for any two fiscal quarters per
covenant, by providing, prior to the delivery of the financial statement or
other report to the Administrative Agent disclosing the existence of such
default, additional cash equity to the extent that if such equity were
included in Gross Revenue, EBITDA or OCF, the Borrower would be in
compliance with Sections 6.14(a), (b) (c) and (d), as the case may be; or
(c) any Loan Party shall fail to perform any term, covenant or
agreement contained herein or in any of the other Loan Documents (other
than those specified elsewhere in this Section 10.01) and such failure
shall continue for a period of 30 days; or
(d) any representation or warranty made by any Loan Party or any of
its Subsidiaries (or any of its officers) under this Agreement or any of
the other Loan Documents or in any certificate, statement, document or
instrument delivered pursuant to or in connection with this Agreement or
any Loan Document shall not be correct in any material respect upon the
date when made or confirmed or deemed to have been made, confirmed or
repeated; or
(e) any Loan Party or shareholder of the Borrower shall
(i) make an assignment for the benefit of creditors, or
(ii) generally not pay its debts as such debts become due or
admit in writing its inability to generally pay or generally fail to
(iii) petition or apply for the appointment of a trustee or other
custodian, liquidator or receiver of any Loan Party or any such
shareholder or of any substantial part of the assets of any Loan Party
or any such shareholder, or
(iv) shall commence any case or other proceeding relating to any
Loan Party or any such shareholder under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any jurisdiction
providing for the relief of debtors, now or hereafter in effect, or
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(v) shall take any action to authorize or in furtherance of any
of the foregoing,
or any such petition or application shall be filed or any such case or
other proceeding shall be commenced against any Loan Party or any such
shareholder and such Loan Party or shareholder shall indicate its approval
thereof, consent thereto or acquiescence therein or shall not be able to
have such proceeding dismissed within 30 days thereof or any of the actions
sought in such proceeding (including the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or any substantial part of its property) shall
occur; or any Loan Party or any such shareholder shall take any corporate
action to authorize any of the actions above in this subsection (e); or
(f) the Borrower or any of its License Subsidiaries or any Guarantor
or other Loan Party other than OC shall fail to pay any principal of,
premium or interest on or any other amount payable in respect of any
Indebtedness (other than Indebtedness owing to the FCC) that is outstanding
in an aggregate principal amount of at least $3,000,000 when the same
becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), or any other event shall
occur or condition shall exist under any agreement or instrument relating
to any such Indebtedness, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such
Indebtedness or otherwise to cause, or to permit the holder thereof to
cause, such Indebtedness to mature; or any such Indebtedness shall be
declared to be due and payable or required to be prepaid or redeemed (other
than by a regularly scheduled required prepayment or redemption), purchased
or defeased, or an offer to prepay, redeem, purchase or defease such
Indebtedness shall be required to be made, in each case prior to the stated
maturity thereof; or
(g) any judgment or order for the payment of money in excess of
$1,000,000 (excluding any portion thereof that an insurance company of
recognized standing and creditworthiness has agreed to pay), or any
material non-monetary judgment or order, shall be rendered against the
Borrower and either
(i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order, or
(ii) there shall be any period of 30 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(h) any of the Loan Documents shall be cancelled, terminated, revoked
or rescinded otherwise than in accordance with the terms thereof or with
the express prior
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written agreement, consent or approval of the Lenders, or any action at
law, or in equity or other suit or legal proceeding to cancel, revoke or
rescind any of the Loan Documents shall be commenced by or on behalf of any
Loan Party or any of its or their stockholders, or any court or any other
governmental or regulatory authority or agency of competent jurisdiction
shall make a determination that, or issue a judgment, order, decree or
ruling to the effect that, any one or more of the Loan Documents, is
illegal, invalid or unenforceable in accordance with the terms thereof; or
(i) with respect to any Guaranteed Pension Plan, an ERISA Event shall
have occurred and the Required Lenders shall have determined in their
reasonable discretion that such event reasonably could be expected to
result in liability of the Borrower to the PBGC or such Guaranteed Pension
Plan in an aggregate amount exceeding $250,000 and such event in the
circumstances occurring reasonably could constitute grounds for the
termination of such Guaranteed Pension Plan by the PBGC or for the
appointment by the appropriate United States District Court of a trustee to
administer such Guaranteed Pension Plan; or a trustee shall have been
appointed by the United States District Court to administer such Plan; or
the PBGC shall have instituted proceedings to terminate such Guaranteed
Pension Plan; or appointed a trustee to administer or liquidate any plan;
or
(j) the Borrower or any of its Subsidiaries, or the Parent shall be
the subject of writs of attachment or garnishment and the like (a) relating
to Collateral which in the judgment of the Required Lenders is subject to
imminent execution or levy thereon, or (b) that might have a Material
Adverse Effect and that are unstayed for a period of 30 consecutive days or
any such attachment shall not have been bonded over within 30 days of the
entry thereof; or
(k) the FCC or any other Governmental Body shall cancel, revoke,
suspend or fail to renew any FCC License held by any License Subsidiary
relating to any right held by any Subsidiary to provide PCS services to any
POPs included in any Designated BTA, in either case for which the
cancellation, revocation, suspension or failure to renew the FCC License
relating to any Designated BTA.
(l) the FCC or any other Governmental Body shall commence any
proceeding to cancel, revoke or suspend any FCC License held by any License
Subsidiary relating to BTAs described in clause (k) above, which proceeding
has not been stayed or enjoined within five Business Days after the
commencement of any such proceeding, or
(m) any License Subsidiary or any of its Affiliates shall fail to pay
any amount when due FCC Debt or shall otherwise default on such
Indebtedness, if such failure to pay or default constitutes or would with
the passage of time constitute a default under any Indebtedness owing to
the FCC in respect of any other FCC Licenses in respect of a Designated
BTA; or
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(n) any License Subsidiary shall fail to pay when due amounts owing to
the FCC relating to BTAs described in clause (k) above unless (i) such
failure to pay can reasonably be expected, in the reasonable judgment of
the Required Lenders, not to result in any cancellation, revocation or
suspension of such FCC License or (ii) the Borrower has obtained a stay or
injunction against any action by the FCC to cancel, revoke or suspend such
FCC License notwithstanding such failure to pay and such injunction or stay
shall then be in effect; or
(o) the Collateral Agent shall cease to have a valid and perfected
first-priority Lien on any Collateral securing any Loan Party's obligations
under any Loan Document, or any Loan Party shall so assert (subject,
however, to Permitted Liens entitled to priority in accordance with the
terms of the Loan Documents); or
(p) at any time any of the following shall occur:
(i) there occurs a Change in Control;
(ii) any Person (other than Nortel and its Affiliates) engaged
in, or having an Affiliate engaged in, the business of manufacturing,
selling or distributing telecommunications equipment shall own,
directly or indirectly, legally or beneficially, more than twenty
percent (20%) of the Voting Stock of the Borrower then outstanding;
or
(iii) all of each series and class of issued and outstanding
shares or units of Stock of the Borrower and each of its Subsidiaries
shall cease to be pledged as security for the obligations of the
Borrower, the other Loan Parties and their respective Subsidiaries
hereunder and under the other Loan Documents; or
(q) there shall occur in the judgment of the Required Lenders any
change in the business, condition (financial or otherwise), operations,
performance, properties or prospects of any Loan Party that could
reasonably be expected to have a material adverse effect on the ability of
such Loan Party to perform its obligations under the Loan Documents to
which it is a party; or
(r) the Borrower, the Parent or any Subsidiary shall default after any
applicable grace period, under any equipment-acquisition agreement (other
than the Volume Purchase Agreement) providing for the purchase of more than
$10,000,000 in aggregate purchase price of equipment or other goods, from
any Person, or such Person shall so allege in writing.
(s) there shall occur an event or circumstance which constitutes a
default or an event of default under any other Loan Document or Collateral
Document or any other
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agreement included in the Collateral, provided that any requirement for the
giving of notice, the lapse of time, or both, or any other circumstance,
has been satisfied;
(t) there shall occur an OC Debt Default unless:
(i) the Maximum Amount, as defined in the Capital Contribution
Agreement (assuming full funding of the Credit Facility), has already
been contributed to the Borrower;
(ii) OC, an Affiliate or a third party contributes the Remaining
Amount (assuming full funding of the Credit Facility), within 15 days
of the occurrence of OC Debt Default, and no advances will be made
until the Remaining Amount has been received;
(iii) The Borrower provides a replacement for OC of investment
grade credit quality which commits to provide the Remaining Amount
(assuming full funding of the Credit Facility), or otherwise provides
a letter of credit or standby commitment to provide such Remaining
Amount acceptable to the Administrative Agent and the Required
Lenders; or
(iv) The ratio of (a) Total Debt (as of the end of a fiscal
quarter) to (b) EBITDA for that fiscal quarter multiplied by four, is
no greater than 8 to 1, and the Borrower continues to meet that ratio
at the end of each succeeding fiscal quarter.
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the request of the Required Lenders shall, by
notice to the Borrower, (i) declare the obligation of each Lender to make
Advances to be terminated, whereupon the same shall forthwith terminate, and/or
(ii) declare the Notes, all interest thereon and all other amounts payable under
this Agreement and the other Loan Documents to be forthwith due and payable,
whereupon the Notes, all such interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower;
provided that upon occurrence of an Event of Default under subsection (e) above,
(A) the obligation of each Lender to make Advances shall automatically be
terminated and (B) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without notice, presentment,
demand, notice of dishonor, notice of acceleration, notice of intent to
accelerate, protest or any notice or other formalities of any kind, all of which
are hereby expressly waived by the Borrower.
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ARTICLE XI
THE ADMINISTRATIVE AGENT
Section 11.01. Authorization and Action. Each Lender appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement and the other
Loan Documents as are delegated to the Administrative Agent by the terms hereof
and thereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by the Loan
Documents (including enforcement or collection of the Notes), the Administrative
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding upon all Lenders; provided that
the Administrative Agent shall not be required to take any action that exposes
the Administrative Agent to personal liability or that is contrary to this
Agreement or applicable law. The Administrative Agent will give to each Lender
prompt notice of each notice given to it by the Borrower pursuant to the terms
of this Agreement.
Section 11.02. Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with the Loan Documents, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent:
(a) may treat the Lender that made any Advance as the holder of the
Indebtedness resulting therefrom until the Administrative Agent receives
and accepts an Assignment and Acceptance entered into by such Lender, as
assignor, and an assignee, as provided in Section 12.07;
(b) may consult with legal counsel (including counsel for any Loan
Party), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts;
(c) makes no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or representations
(whether written or oral) made in or in connection with the Loan Documents;
(d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of
any Loan Document on the part of any Loan Party or to inspect the property
(including the books and records) of any Loan Party;
(e) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of,
or the perfection or priority of any lien or security interest created or
purported to be created under or in connection
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with, any Loan Document or any other instrument or document furnished
pursuant thereto;
(f) shall incur no liability under or in respect of any Loan Document
by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telegram, telecopy, cable or telex) believed by it
to be genuine and signed or sent by the proper party or parties; and
(g) shall incur no liability as a result of any determination whether
the transactions contemplated by the Loan Documents constitute a "highly
leveraged transaction" within the meaning of the interpretations issued by
the Comptroller of the Currency, the Federal Deposit Insurance Corporation
and the Board of Governors of the Federal Reserve System.
Section 11.03. Nortel and Affiliates. With respect to its Commitments, the
Advances made by it and the Note issued to it, Nortel and any other
Administrative Agent in its individual capacity shall have the same rights and
powers under the Loan Documents as any other Lender and may exercise the same as
though it were not the Administrative Agent; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include Nortel in its individual
capacity or any other Administrative Agent in its individual capacity. Nortel or
any other Administrative Agent in its individual capacity and its affiliates may
generally engage in any kind of business with the Borrower and any of its
Affiliates and any Person who may do business with or own securities of the
Borrower or any of its Affiliates, all as if Nortel or any other Administrative
Agent in its individual capacity were not the Administrative Agent and without
any duty to account therefor to the Lenders.
Section 11.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement.
Section 11.05. Indemnification. Each Lender severally will indemnify the
Administrative Agent (to the extent not promptly reimbursed by the Borrower)
from and against such Lender's ratable share of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of the Loan Documents or any action taken or omitted
by the Administrative Agent under the Loan Documents; provided that no Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's gross negligence or willful
misconduct. Without
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limitation of the foregoing, each Lender will reimburse the Administrative Agent
promptly upon demand for its ratable share of any costs and expenses payable by
the Borrower under Section 12.04, to the extent that the Administrative Agent is
not promptly reimbursed for such costs and expenses by the Borrower. It is the
express intent of the parties that the Administrative Agent shall be indemnified
hereunder for all negligent acts or omissions other than those resulting from
the Administrative Agent's gross negligence or willful misconduct. For purposes
of this Section 11.05, the Lenders' respective ratable shares of any amount
shall be determined, at any time, according to the sum of (a) the aggregate
principal amount of the Advances outstanding at such time and owing to the
respective Lenders and (b) the aggregate unused portions of their respective
Commitments. The failure of any Lender to reimburse the Administrative Agent
promptly upon demand for its ratable share of any amount required to be paid by
the Lenders to the Administrative Agent as provided herein shall not relieve any
other Lender of its obligation hereunder to reimburse the Administrative Agent
for its ratable share of such amount, but no Lender shall be responsible for the
failure of any other Lender to reimburse the Administrative Agent for such other
Lender's ratable share of such amount. Without prejudice to the survival of any
other agreement of any Lender hereunder, the agreements and obligations of each
Lender contained in this Section 11.05 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the other
Loan Documents.
Section 11.06. Successor Administrative Agents. The Administrative Agent
may resign at any time by giving written notice thereof to the Lenders. Upon any
such resignation, the Required Lenders shall have the right to appoint a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent's giving of
notice of resignation, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, which shall be a
commercial bank organized under the laws of the United States or of any State
thereof and having a combined capital and surplus of at least $500,000,000. Upon
the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent and upon the execution and filing or recording of
such financing statements, or amendments thereto, and such other instruments or
notices, as may be necessary or desirable, or as the Required Lenders may
request, in order to continue the perfection of the Liens granted or purported
to be granted by the Collateral Documents, such successor Administrative Agent
shall succeed to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
the Loan Documents. After any retiring Administrative Agent's resignation
hereunder, the provisions of this Article XI shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement. A successor Administrative Agent will notify the Borrower
of its appointment promptly after its appointment.
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ARTICLE XII
MISCELLANEOUS
Section 12.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Notes or any other Loan Document, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Required Lenders and, then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided that
(a) no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders do any of the following at any time:
(i) waive any of the conditions specified in Article IX or, in
the case of the initial Advance, Article VIII;
(ii) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Notes, or the number of Lenders that
shall be required for the Lenders or any of them to take any action
hereunder;
(iii) release any Collateral, other than as contemplated by the
Loan Documents;
(iv) permit the creation, incurrence, assumption or existence of
any Lien on any item of Collateral to secure any obligations other
than obligations owing to the Lenders, the Collateral Agent and the
Administrative Agent under the Loan Documents and other than
Indebtedness owing to any other Person;
(v) amend this Section 12.01;
(vi) increase the Commitments of the Lenders or subject the
Lenders to any additional obligations;
(vii) reduce the principal of, or interest on, the Notes or any
fees or other amounts payable hereunder; or
(viii) postpone any date fixed for any payment of principal of,
or interest on, the Notes or any fees or other amounts payable
hereunder;
(b) no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Lenders required
above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document;
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(c) no amendment, waiver or consent shall, unless in writing and
signed by the Collateral Agent in addition to the Lenders required above to
take such action, adversely affect the rights or duties of the Collateral
Agent under this Agreement or any other Loan Document; and
(d) no amendment, waiver or consent with respect to Section 2.09 (Use
of Proceeds) or the definition of either "Facility A Borrowing Base" or
"Facility B Borrowing Base" shall be effective without the prior written
consent of Nortel whether or not Nortel is a Lender at the time of such
proposed amendment, waiver or consent.
Section 12.02. Notices, Etc. All notices and other communications provided
for hereunder shall be in writing and mailed, telecopied or delivered,
(a) if to the Borrower, at:
Omnipoint Midwest Holdings, LLC
00 Xxxx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxxxx 00000
Attn: Vice President Finance
(000) 000-0000 (fax) - prior to April 14, 1998
(000) 000-0000 (fax) - on and after April 14, 1998
with copies to:
Omnipoint Corporation
0 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Vice President Finance
(000) 000-0000 (fax)
Piper & Marbury, L.L.P.
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx, Esq.
(000) 000-0000 (fax)
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(b) if to any Lender, at its Domestic Lending Office; and
(c) if to the Administrative Agent, at:
Northern Telecom Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attn: Vice President
Customer Finance - North America
(000) 000-0000 (fax)
Northern Telecom Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attn: Vice President
Finance - Wireless Networks
(000) 000-0000 (fax)
with a copy to:
Xxxx and Xxxx L.L.P.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxx, Esq.
(000) 000-0000 (fax)
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other parties. All such notices and communications
shall be effective when deposited in the mails, except that notices and
communications to the Administrative Agent pursuant to Article II, III or XI
shall not be effective until received by the Administrative Agent.
Section 12.03. No Waiver; Remedies. No failure on the part of any Lender or
the Administrative Agent to exercise, and no delay in exercising, any right
hereunder or under any Note or any other Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
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Section 12.04. Costs, Expenses.
(a)
(i) Except as specified in clause (ii) or (iii) below, Nortel
will pay its own legal and other out-of-pocket costs in connection
with the drafting, negotiation and closing of this Agreement and the
other Loan Documents.
(ii) The Borrower shall pay on demand all out-of-pocket closing
costs, fees and reasonable expenses that are incurred in connection
with any necessary or desirable filings or recordations by the
Administrative Agent, the Collateral Agent or Nortel in connection
with the closing of this Agreement, the other Loan Documents and the
transactions contemplated hereby and thereby, whether or not any such
transactions are consummated, including, without limitation, stamp or
other recording costs and related taxes or charges, filing fees, costs
and expenses, (but excluding legal fees).
(iii) The Borrower shall also pay on demand:
(A) So long as Nortel has assigned any Loans or Commitments
or has granted a participation in a portion of its Loans or
Commitments under the Credit Facility, all ongoing costs,
including, without limitation, all reasonable legal fees and
charges, recording costs and related taxes or charges, filing
fees, costs and expenses of the Administrative Agent (if other
than Nortel) and (except with respect to legal fees) the
Lenders related to (1) the enforcement of the Loan Documents,
whether in any action, suit or litigation, any bankruptcy,
insolvency or other similar proceeding affecting creditors'
rights generally or otherwise, (2) the perfection, protection or
preservation of any of their respective rights or interests under
the Loan Documents or to or in the Collateral, (3) the
administration of this Agreement or any other Loan Document and
(4) any amendments, waivers or supplements related to this
Agreement and the other Loan Documents;
(B) to the extent not paid pursuant to clause (a)(ii) above,
all out-of-pocket costs and expenses of the Collateral Agent
(including allocated costs and reasonable expenses of in-house
counsel and legal staff) in connection with the preparation,
execution, delivery, performance, administration, enforcement,
modification and amendment of this Agreement, the Intercreditor
Agreement, the Collateral Documents, the Guaranties and/or any
other Loan Document at any time, including without limitation the
reasonable fees and expenses of counsel (including reasonable
allocated costs and expenses of in-house counsel and legal staff)
and the costs and expenses incurred by the Collateral Agent in
the course
137
of performing its duties and obligations as Collateral Agent,
whether or not the transactions contemplated hereby are
consummated;
(C) all reasonable legal fees and expenses relating to the
matters described in clause (A) above incurred by Nortel as
Administrative Agent or a Lender if a Default shall have occurred
and be continuing under this Agreement; and
(D) all reasonable legal fees and expenses relating to the
matters described in clause (A) above incurred by any Lender
other than Nortel or an Affiliate thereof or for which such
Lender would have an indemnification obligation (whether or not
contingent on non-payment thereof by the Borrower) under this
Agreement.
(b) If, at any time any payment of principal of, or Conversion of, any
LIBOR Advance is made by the Borrower to or for the account of a Lender
other than on the last day of the Interest Period for such Advance, as a
result of any repayment, prepayment or Conversion thereof, acceleration of
the maturity of the Notes pursuant to Section 10.01 or for any other
reason, the Borrower shall, upon demand by such Lender (with a copy of such
demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender any loss, cost or expense (including loss of
anticipated profit) that any Lender may sustain or incur as a consequence
of the making of any payment of a LIBOR Loan on a day that is not the last
day of the applicable Interest Period with respect thereto.
(c) If the Borrower fails to pay when due any costs, expenses or other
amounts payable by it under any Loan Document, including fees and expenses
of counsel and indemnities, such amount may be paid on behalf of the
Borrower by the Administrative Agent or any Lender, in its sole discretion.
(d) The Borrower will indemnify each Lender, the Collateral Agent, the
Administrative Agent and their respective affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified Party")
and hold each Indemnified Party harmless from and against from and against
any and all claims, damages, losses, liabilities and expenses (including
reasonable fees and expenses of counsel and, with respect to the Collateral
Agent, reasonable allocated costs and expenses of in-house counsel and
legal staff) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with
(i) the Notes, this Agreement and other Loan Documents, any of
the transactions contemplated herein or therein or the actual or
proposed use of the proceeds of the Advances, or
138
(ii) the actual or alleged presence of Materials of Environmental
Concern on any property of the Borrower or any environmental
proceeding relating in any way to the Borrower,
except to the extent such claim, damage, loss, liability or expense is found in
a final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
In the case of any investigation, litigation or other proceeding to which the
indemnity in this Section 12.04(d) applies, the indemnity shall be effective
whether or not such investigation, litigation or proceeding is brought by the
Borrower, its directors, shareholders or creditors or an Indemnified Party or
any other Person or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. The
Borrower also shall not assert any claim against the Administrative Agent, the
Collateral Agent, any Lender, any of their Affiliates, or any of their
respective directors, officers, employees, attorneys and agents, on any theory
of liability, for special, indirect, consequential or punitive damages arising
out of or otherwise relating to the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Advances.
(e) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 12.04 shall survive the payment in full of
principal and interest hereunder and the termination of the Commitments.
Section 12.05. Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default, each Lender and each of its Affiliates is
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and otherwise apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender or such Affiliate to or for the credit or the
account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under this Agreement and the Note or Notes held by
such Lender, irrespective of whether such Lender shall have made any demand
under this Agreement or such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any such
set-off and application; provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
and its Affiliates under this Section 12.05 are in addition to other rights and
remedies (including other rights of set-off) that such Lender and its Affiliates
may have.
Section 12.06. Binding Effect. This Agreement shall become effective when
it shall have been executed by the Borrower and the Administrative Agent and
when the Administrative Agent shall have been notified by each Lender that such
Lender has executed it and thereafter shall be binding upon and inure to the
benefit of the Borrower, the Administrative Agent, each Lender, the Collateral
Agent and their respective successors and assigns, except that the Borrower
shall not have the right to assign its rights hereunder or any interest herein
without the prior
139
written consent of the Lenders. Sections 12.04(a) and (d), insofar as they
relate to the Collateral Agent, and Section 7.15 also shall inure to the benefit
of each lender to the Borrower that at any time is a party to the Intercreditor
Agreement.
Section 12.07. Assignments and Participations.
(a) Each Lender may assign to one or more banks or other entities
(including any trust or other Person in connection with a securitization or
monetization of the Advances or other indirect raising of capital) all or a
portion of its rights and obligations under this Agreement (including all
or a portion of its Commitment or Commitments, the Advances owing to it
and/or the Note or Notes held by it) without the consent of the Borrower;
provided that
(i) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of
all of a Lender's rights and obligations under this Agreement, the
amount of the Commitment and/or Advances of the assigning Lender being
assigned pursuant to each such assignment (determined as of the date
of the Assignment and Acceptance with respect to such assignment)
shall in no event be less than $5,000,000.
(ii) the parties to each such assignment shall
(A) execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and
Acceptance, together with any Note or Notes subject to such
assignment and a processing and recordation fee of $3,500, and
(B) deliver a copy of such Assignment and Acceptance to the
Borrower at the time it delivers a copy to the Administrative
Agent;
(iii) prior to the Facility A Commitment Termination Date for
assignments relating to Facility A Commitments or Advances and the
Facility B Commitment Termination Date for assignments relating to
Facility B Commitments or Advances, assignments to Persons that have a
combined capital and surplus in excess of $50 million;
(iv) assignments to Persons, other than a commercial bank or
other financial institution, that is engaged in, or has an Affiliate
that is engaged in the business of providing PCS telecommunications
services to the public may be made no sooner than fifteen (15) days
after acceleration of the Loans hereunder pursuant to (S)10.01
hereof;
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(v) the assigning Lender's rights under Article IV and
Section 12.04 accrued through the date of assignment shall continue,
and
A Lender may assign outstanding Advances without assigning undrawn Commitments,
and may assign undrawn Commitments without assigning outstanding Advances. Upon
such execution, delivery, acceptance and recording, from and after the effective
date specified in such Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder
and under the Intercreditor Agreement have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
and thereunder, and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement and the Intercreditor Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows:
(i) other than as provided in such Assignment and Acceptance,
such assigning Lender makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto;
(ii) such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of
any of its obligations under this Agreement or any other instrument or
document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this
Agreement, the Intercreditor Agreement and each other Loan Document,
together with copies of the financial statements referred to in
Section 5.04 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance;
(iv) such assignee will, independently and without reliance upon
the Administrative Agent, such assigning Lender or any other Lender
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement;
141
(v) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such
powers and discretion under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers
and discretion as are reasonably incidental thereto;
(vi) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Agreement
and the Intercreditor Agreement are required to be performed by it as
a Lender;
(vii) such assignee makes the representations in subsection
(a)(iv) above; and
(viii) such assignee confirms that it is bound by the
confidentiality provisions in Section 12.10.
(c) The Administrative Agent shall maintain at its address referred to
in Section 12.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitments of, and principal amount of
the Advances owing to, each Lender from time to time (the "Register"). The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is substantially in the form of Exhibit
C,
(i) accept such Assignment and Acceptance,
(ii) record the information contained therein in the Register,
and
(iii) give prompt notice thereof to the Borrower.
Within five Business Days after its receipt of such notice, the Borrower, at its
own expense, shall execute and deliver to the Administrative Agent in exchange
for the surrendered Note or Notes a new Note to the order of such assignee in an
amount equal to the Advances and/or Commitments assumed by it pursuant to such
Assignment and Acceptance and, if the assigning
142
Lender has retained Advances or Commitments hereunder, a new Note to the order
of the assigning Lender in an amount equal to the Advances and/or Commitments
retained by it hereunder. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Note or Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be substantially in the form of Exhibit C.
(e) Each Lender may sell participations in or to all or a portion of
its rights and obligations under this Agreement (including all or a portion
of its Commitments, the Advances owing to it and the Note or Notes held by
it); provided that
(i) such Lender's obligations under this Agreement (including its
Commitments) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for
all purposes of this Agreement, and
(iv) the Borrower, the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement.
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 12.07,
disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such
Lender by or on behalf of the Borrower; provided that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender.
(g) Notwithstanding any other provision in this Agreement, any Lender
may at any time create a security interest in all or any portion of its
rights under this Agreement (including the Advances owing to it and the
Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
(h) The Borrower shall maintain, or cause to be maintained, a register
(the "Registered Note Register") (which, at the request of the Borrower,
shall be kept by the Administrative Agent on behalf of the Borrower at no
extra charge to the Borrower at the address to which notices to the
Administrative Agent are to be send hereunder) on which it enters the name
of the registered owner of each of the Loans evidenced by a Registered
Note. Notwithstanding anything to the contrary contained in this
Section 12.07(h), a Registered
143
Note and the Loans evidenced thereby may be assigned or otherwise
transferred in whole or in part only by registration of such assignment or
transfer of such Registered Note and the Loans evidenced thereby on the
Registered Note Register (and each Registered Note shall expressly so
provide). Any assignment or transfer of all or part of such Loans and the
Registered Note evidencing the same shall be registered on the Registered
Note Register only upon surrender for registration of assignment or
transfer of the Registered Note evidencing such Loans, duly endorsed by (or
accompanied by a written instrument of assignment or transfer duly executed
by) the registered noteholder thereof, and thereupon one or more new
Registered Notes in the same aggregate principal amount shall be issued to
the designated assignee(s) or transferee(s). Prior to the due presentment
for registration of transfer of any Registered Note, the Borrower and the
Administrative Agent shall treat the Person in whose name such Loans and
the Registered Note(s) evidencing the same are registered as the owner
thereof for the purpose of receiving all payments thereon and for all other
purposes, notwithstanding any notice to the contrary. The Registered Note
Register shall be available for inspection by the Borrower and any Lender
at any reasonable time upon reasonable prior notice.
Section 12.08. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
Section 12.09. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Section 12.10. Confidentiality. Neither the Administrative Agent nor any
Lender shall disclose any Confidential Information to any Person without the
consent of the Borrower, other than
(a) to the Administrative Agent's or such Lender's Affiliates and
their officers, directors, employees, agents and advisors and to actual or
prospective assignees and participants, and then only on a confidential
basis,
(b) as required by any law, rule or regulation or judicial process,
and
(c) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking.
The Administrative Agent and the Lenders shall not, and the Borrower shall
not, and shall cause its Subsidiaries and Affiliates not to, disclose the terms
of this Agreement, the other Loan Documents or the transactions contemplated
hereby to any Person without the consent of the other party hereto, except
144
(i) to any other lender that is a party to a Permitted Loan
Agreement (as defined in the Intercreditor Agreement) and that shall
have agreed to be bound by the provisions of this paragraph,
(ii) to the extent that such terms or transactions become
generally available to the public,
(iii) to their respective Affiliates and their officers,
directors, employees, agents, advisors and (in the case of the
Lenders) to actual or prospective assignees and participants, in each
case to the extent that the Administrative Agent, any Lender or the
Borrower deems necessary or appropriate,
(iv) as required by any law, rule or regulation or judicial
process, and
(v) as requested by any state, federal or foreign regulatory
authority.
A reasonable period of time prior to making any disclosure with respect to such
terms and transactions that is permitted under clause (iv) or (v) of the
preceding sentence, the party proposing, or whose Affiliate is proposing, to
make such disclosure will consult with the other party concerning the need for
and scope of any such disclosure.
Section 12.11. Consent to Jurisdiction. The Borrower irrevocably:
(a) submits to the jurisdiction of any New York state or federal court
sitting in New York City in any action or proceeding arising out of or
relating to any Loan Document;
(b) agrees that all claims in respect of such action or proceeding may
be heard and determined in such New York state or federal court;
(c) waives, to the fullest extent that it may effectively do so, the
defense of an inconvenient forum to the maintenance of such action or
proceeding;
(d) consents to the service of any and all process in any such action
or proceeding by the mailing of copies of such process to such the Borrower
at its address specified in Section 12.02; and
(e) agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law.
Nothing in this Section 12.11 shall affect the right of the Administrative Agent
or any Lender to serve legal process in any other manner permitted by law or
affect the right of the Administrative
145
Agent or any Lender to bring any action or proceeding against any the Borrower
or its property in the courts of other jurisdictions.
Section 12.12. Matters Relating to the Collateral Agent.
(a) The Borrower will pay the Collateral Agent a fee in an amount,
computed as provided and payable at the times separately agreed to by the
Collateral Agent and the Borrower. In addition, the Borrower will pay on
demand all costs and expenses of the Collateral Agent (including allocated
costs and reasonable expenses of in-house counsel and legal staff) in
connection with the preparation, execution, delivery, performance,
administration, enforcement, modification and amendment of this Agreement,
the Intercreditor Agreement, the Borrower Security Agreement, the
Subsidiary Security Agreement, the Parent Pledge Agreement, the Subsidiary
Pledge Agreement, the Mortgages and/or any other Loan Document at any time,
including without limitation the reasonable fees and expenses of counsel
(including reasonable allocated costs and expenses of in-house counsel and
legal staff) and the costs and expenses incurred by the Collateral Agent in
the course of performing its duties and obligations as Collateral Agent.
Section 12.13. Amendments, Etc., to Intercreditor Agreement. Neither the
Administrative Agent nor the Lenders shall consent to any amendment or
modification of, supplement to, replacement of or substitution for the
Intercreditor Agreement unless either
(a) the Borrower shall have consented thereto in writing, or
(b) at the time at which such amendment, modification or waiver is
entered into a Default, or any event that, with the passage of time or
giving of notice or both, would constitute an event of default under any
other Permitted Loan Agreement, shall have occurred and be continuing.
Section 12.14. Limitation of Liability. None of the Administrative Agent,
any Lender or any Affiliate, officer, director, employee, attorney or agent
thereof shall be liable for any error of judgment or act done in good faith, or
be otherwise liable or responsible under any circumstances whatsoever (including
such Person's negligence), except for such Person's gross negligence or willful
misconduct. None of the Administrative Agent, any Lender or any Affiliate,
officer, director, employee, attorney or agent thereof shall have any liability
with respect to, and the Borrower hereby waives, releases and agrees not to xxx
any of them upon any claim for any special, indirect, incidental or
consequential damages suffered or incurred by the Borrower or any other Loan
Party in connection with, arising out of or in any way related to this Agreement
or any of the other Loan Documents, or any of the transactions contemplated by
this Agreement or any of the other Loan Documents. The Borrower hereby waives,
releases and agrees not to xxx the Administrative Agent or any Lender or any of
their respective Affiliates, officers, directors, employees, attorneys or agents
for exemplary or punitive damages in respect
146
of any claim in connection with, arising out of or in any way related to this
Agreement or any of the other Loan Documents, or any of the transactions
contemplated by this Agreement or any of the other Loan Documents.
Section 12.15. No Duty. All attorneys, accountants, appraisers and other
professional Persons and consultants retained by the Administrative Agent and
the Lenders shall have the right to act exclusively in the interest of the
Administrative Agent and the Lenders and shall have no duty of disclosure, duty
of loyalty, duty of care or other duty or obligation of any type or nature
whatsoever to the Borrower of any of its Subsidiaries or any of their
shareholders or any other Person.
Section 12.16. No Fiduciary Relationship; No Agency Relationship. The
relationship between the Borrower and each Lender is solely that of debtor and
creditor, and neither the Administrative Agent nor any Lender has any fiduciary
or other special relationship with the Borrower or any other Loan Party, and no
term or condition of any of the Loan Documents shall be construed so as to deem
the relationship between the Borrower and any Lender, or any other Loan Party
and any Lender, to be other than that of debtor and creditor. No joint venture
or partnership is created by this Agreement among the Lenders or among the
Borrower or any other Loan Party and the Lenders. The Administrative Agent shall
not be deemed to have any fiduciary relationship with any Lender or any Loan
Party, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against the Administrative Agent. Without limiting the generality of the
foregoing, the use of the term "agent" in this Agreement with respect to the
Administrative Agent is not intended to connote any fiduciary or other express
or implied obligation arising under agency doctrine of any applicable law;
instead, such term is used merely as a matter of market custom and is intended
to create or reflect only an administrative relationship among independent
contracting parties.
Section 12.17. Waiver of Jury Trial. Each of the Borrower, the
Administrative Agent and the Lenders irrevocably waives all right to trial by
jury in any action, proceeding or counterclaim (whether based on contract, tort
or otherwise) arising out of or relating to any of the Loan Documents, the
Advances or the actions of the Administrative Agent or any Lender in the
negotiation, administration, performance or enforcement thereof.
147
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as a
sealed instrument as of the date first above.
OMNIPOINT MIDWEST
HOLDINGS, LLC
By:________________________________________
Xxxxx Xxxxxxxxx
Vice President
NORTHERN TELECOM INC.,
as Administrative Agent
By: ________________________________________
Name: Xxxxxxx X. XxXxxxxx
Title: Director, Customer Finance-
North America
Facility A Commitment Percentage: 100% NORTHERN TELECOM INC., as
Facility B Commitment Percentage: 100% a Lender
Domestic Lending Office and By: ________________________
LIBOR Lending Office: Name: Xxxxxxx X. XxXxxxxx
Title: Director, Customer Finance-
-------------------------------- North America
A copy of any notice delivered pursuant
to Section 12.02 also should be delivered
to the address above to the attention of
the ______________________.
Schedule 1.01
Designated BTAs
000 Xxxxxxxx Xxxx, Xxx Xxxxxx
CORE 000 Xxxx Xxxxx, Xxxxxxx
CORE 000 Xxxxx Xxxx/Xxxxxxxxx, Xxxxxxx
000 Xxxxxxx, Xxxxxxx
000 Xxxxxx Xxxxxx, Xxxxxxxx
XXXX 000 Xxxxx Xxxxxx, Xxxxxxxx
CORE 444 Toledo, Ohio
000 Xxxxxxx/Xxx Xxxx, Xxxxxxxx
CORE 145 Flint, Michigan
CORE 241 Lansing, Michigan
255 Lima, Ohio
000 Xxxxxx Xxxxx, Xxxxxxxx
000 Xxxxxxxx, Xxxxxxxx
000 Xxxxxxx, Xxxxxxxx
143 Findlay-Tiffin, Ohio
000 Xx. Xxxxxxxx, Xxxxxxxx
000 Xxxxxx, Xxxxxxxx
CORE 000 Xxxxxxxxxxxx, Xxxxxxx
000 Xxxxxxxxx, Xxxxxxx
000 Xxxxx Xxxxx, Xxxxxxx
000 Xxxxxxxxxxx/Xxxxxxx, Xxxxxxx
000 Xxxxxx-Xxxxxxxxxx, Xxxxxxx
000 Xxxxxx, Xxxxxxx
000 Xxxxxxxx, Xxxxxxx
000 Xxxxxxxx, Xxxxxxx
280 Marion, Indiana
000 Xxxxxxxx, Xxxxxxx
000 Xxxxxxxxx-Xxxxxxxxxx, Xxxxxxx
CORE 000 Xxxxxxx, Xxxxxxxx
000 Xxxxxxxx, Xxxxxxxx
Schedule 1.01A
Certain Geographic Areas of Designated BTAs
Schedule 1.01B
Wichita Loan Facility and D&E/Omnipoint Loan Facility
Schedule 1.01C
Excluded Purchases/Invoices
[$8.3 million relating to D&E/Omnipoint -- Schedule to be provided]