EXHIBIT 10.26
CONSENT AND AGREEMENT
(Citibank / Alamosa LLC)
This Consent and Agreement (this "Consent and Agreement") is entered
into as of February 14, 2001, between SPRINT SPECTRUM L.P., a Delaware
limited partnership ("Sprint Spectrum"), SPRINTCOM, INC., a Kansas
corporation ("SprintCom"), SPRINT COMMUNICATIONS COMPANY, L.P., a Delaware
limited partnership ("Sprint Communications"), XXX COMMUNICATIONS PCS,
L.P., a Delaware limited partnership ("Xxx Communications"), COX PCS
LICENSE, LLC, a Delaware limited liability company ("Cox License"),
WIRELESSCO, L.P., a Delaware limited partnership ("WirelessCo" and together
with Sprint Spectrum, SprintCom, Sprint Communications, Xxx Communications
and Cox License, the "Sprint Parties"), and CITICORP USA, INC., a Delaware
corporation, as administrative agent (together with any successors thereof
in accordance with the Credit Agreement hereinafter described, the
"Administrative Agent") for the lenders under that certain Credit Agreement
among ALAMOSA HOLDINGS, LLC, a Delaware limited liability company
("Borrower"), the Administrative Agent and the lenders from time to time
party thereto (the "Lenders").
Upon the consummation of the Transactions (as defined in that certain
Commitment Letter dated November 22, 2000, between CITICORP NORTH AMERICA,
INC., XXXXXXX XXXXX XXXXXX, INC., TD SECURITIES (USA) INC., EXPORT
DEVELOPMENT CORPORATION and ALAMOSA HOLDINGS, INC., as amended on January
30, 2001 (the "Commitment Letter")), Borrower will own, directly or
indirectly, all of the outstanding capital stock of the following
subsidiaries, each of which has entered into a Sprint PCS Management
Agreement (each such agreement, as it may be amended, modified, or
supplemented from time to time, a "Management Agreement" and collectively,
the "Alamosa Management Agreements") with Sprint Spectrum and Sprint
Communications, and in some instances with other related companies of
Sprint Spectrum, dated and effective as of the date set forth after each
such subsidiary of Borrower, providing for the design, construction and
management of the Service Area Network (as defined therein): TEXAS
TELECOMMUNICATIONS, LP, a Texas limited partnership ("Texas")(December 23,
0000), XXXXXXX WISCONSIN LIMITED PARTNERSHIP, a Wisconsin limited
partnership ("Wisconsin")(December 6, 1999), XXXXXXX WIRELESS
COMMUNICATIONS, LLC, a Missouri limited liability company ("Xxxxxxx")(June
8, 1998), and WASHINGTON OREGON WIRELESS LLC, a Delaware limited liability
company ("WOW")(January 25, 1999) (each individually an "Affiliate" and
collectively, the "Affiliates").
Along with a Management Agreement, each Affiliate has also entered
into the Sprint PCS Services Agreement (each such agreement, as it may be
amended, modified, or supplemented from time to time, a "Services
Agreement" and collectively, the "Alamosa Service Agreements") and the
Sprint Trademark and Service Xxxx License Agreement and the Sprint Spectrum
Trademark and Service Xxxx License Agreement (together, as they may be
amended, modified, or supplemented from time to time, the "License
Agreements" and collectively, the "Alamosa License Agreements") (the
Management Agreement, the Services Agreement and the License Agreements and
all other agreements between each Affiliate or its subsidiaries, on the one
hand and the Sprint Parties or any subsidiary of Sprint Corporation on the
other hand whether entered into prior to, on, or after the date hereof that
relate to the Service Area Network as they may be amended, modified, or
supplemented from time to time, collectively, the "Sprint Agreements" and
all such Sprint Agreements collectively, the "Alamosa Sprint Agreements").
Each Affiliate will continue to be responsible for its obligations and
responsibilities under and with respect to the Sprint Agreements. Further,
as set forth in the Acknowledgment, Consent and Agreements attached to this
Consent and Agreement, Borrower, each Guarantor (as defined below) and each
Affiliate agree to be responsible for the obligations and responsibilities
of each Affiliate under and with respect to the Sprint Agreements and this
Consent and Agreement.
Borrower and certain of its affiliated entities have entered into or
concurrently herewith are entering into that certain Credit Agreement dated
as of February 14, 2001, with the Administrative Agent and the Lenders
(such Credit Agreement, as it may be amended, supplemented, restated,
replaced or otherwise modified from time to time, the "Credit Agreement"),
to provide financing for a portion of the costs of the design and
construction of the Service Area Networks, to provide financing for the
Transactions and for certain other purposes. The Credit Agreement and each
note, security agreement, pledge agreement, guaranty and any and all other
agreements, documents or instruments entered into in connection with any of
the foregoing, as the same may from time to time be amended, supplemented,
restated, replaced or otherwise modified from time to time, shall
collectively be referred to as the "Loan Documents."
The Obligations under the Loan Documents are guaranteed by ALAMOSA
HOLDINGS, INC., a Delaware corporation ("Holdco"), by ALAMOSA PCS HOLDINGS,
INC., a Delaware corporation that is a wholly-owned subsidiary of Holdco
("APCS"), by ALAMOSA (DELAWARE), INC., a Delaware corporation that is
wholly-owned subsidiary of APCS and the sole member of Borrower ("APCS"),
by each Affiliate, and by each other existing and subsequently acquired or
organized direct or indirect subsidiary of Alamosa Delaware other than the
Unrestricted Subsidiaries (collectively, the "Guarantors") pursuant to that
certain Guarantee Agreement executed by the Guarantors in favor of the
Administrative Agent (the "Guarantee Document").
As a condition to the availability of credit to Borrower under the
Credit Agreement, the Administrative Agent and the Lenders have required
the execution and delivery of this Consent and Agreement by the Sprint
Parties and have required that Borrower, Affiliates and the other
Guarantors acknowledge, consent and agree to all terms and provisions of
this Consent and Agreement. This Consent and Agreement replaces and
supersedes the Consent and Agreements previously entered into by the
Affiliates.
One or more of the Sprint Parties hold, directly or indirectly, the
licenses for the service areas managed by the Affiliates as contemplated in
the Alamosa Management Agreements. As used in this Consent and Agreement,
the term "Sprint PCS" shall refer in each particular instance or
application to the Sprint Party that owns the License in that portion of
the Service Area to which the subject of the instance or application
applies.
All capitalized terms in this Consent and Agreement shall have the
same meanings ascribed to them in the Management Agreements unless
otherwise provided in this Consent and Agreement; provided, that the terms
"Commitments", "Default", "Event of Default", "Loan Documents",
"Obligations" and "Unrestricted Subsidiaries" shall have the meanings
ascribed to them in the Credit Agreement.
Accordingly, each Sprint Party and the Administrative Agent, on
behalf of itself and for the Lenders, hereby agrees as follows:
SECTION 1. Consent to Security Interest. In connection with the
transactions contemplated by the Credit Agreement and the other Loan
Documents, (a) Borrower has granted or will grant to the Administrative
Agent, for the benefit of the Lenders, a first priority security interest
in and lien upon substantially all of its assets and property, tangible and
intangible, whether now owned or hereafter acquired or arising, and all
proceeds and products thereof and accessions thereto including but not
limited to the Operating Assets, and a first priority security interest in
and pledge of all partnership interests, membership interests or other
equity interests in each Affiliate (collectively, the "Pledged Equity"),
and (b) each Affiliate has granted or will grant to the Administrative
Agent, for the benefit of the Lenders, a first priority security interest
in and lien upon substantially all of its assets and property, tangible and
intangible, whether now owned or hereafter acquired or arising, and all
proceeds and products thereof and accessions thereto, including but not
limited to the Operating Assets, and a first priority security interest and
lien upon the rights of Affiliate in, to and under the Sprint Agreements.
The foregoing security interests, liens and pledges are referred to
collectively as the "Security Interests" and the foregoing assets and
property in which the Administrative Agent, for the benefit of the Lenders,
has been or will be granted a first priority security interest in and lien
are referred to collectively as the "Collateral". In addition to the
foregoing, each of the other affiliated entities of Borrower and each
Affiliate have granted or will grant to the Administrative Agent, for the
benefit of the Lenders, a first priority security interest in and lien upon
substantially all of its assets and property, tangible and intangible,
whether now owned or hereafter acquired or arising, and all proceeds and
products thereof and accessions thereto, which security interests and liens
are referred to collectively as the "Additional Security Interests" and
which assets and property are referred to collectively as the "Additional
Collateral." Each Sprint Party (i) acknowledges notice of the Credit
Agreement and the other Loan Documents, (ii) consents to the granting of
the Security Interests in the Collateral and of the Additional Security
Interests in the Additional Collateral to the Administrative Agent, for the
benefit of the Lenders, and (iii) agrees that (a) neither it nor any
subsidiary of Sprint Corporation will challenge or contest that the
Security Interests and the Additional Security Interests are valid,
enforceable and duly perfected first priority security interests and liens
in and to the Collateral and the Additional Collateral, (b) neither it nor
any subsidiary of Sprint Corporation will argue that any such Security
Interest or Additional Security Interest is subject to avoidance,
limitation or subordination under any legal or equitable theory or cause of
action, and (c) so long as an Affiliate's Management Agreement is in
effect, it will not sell, transfer or assign all or part of the Licenses
within such Affiliate's Service Area that such Affiliate has the right to
use; provided, however, that notwithstanding the foregoing, a Sprint Party
may at any time sell, transfer or assign all or part of the Licenses within
such Affiliate's Service Area that such Affiliate has the right to use in
accordance with a transaction allowed under Section 17.15.5 of such
Affiliate's Management Agreement, so long as the buyer, transferee or
assignee, as the case may be, agrees to be bound by the terms of this
Consent and Agreement with respect to the assets bought, transferred and
assigned, and a Sprint Party may at any time sell, transfer or assign its
rights and obligations under all of the Alamosa Management Agreements,
Alamosa Services Agreements and any related agreements to a third party as
permitted under such Section 17.15.5.
Each Sprint Party acknowledges and agrees that (i) Sections 17.15.1
and 17.15.2 of the Alamosa Management Agreements do not apply to the
assignment of any Affiliate's rights under the Alamosa Sprint Agreements to
the Administrative Agent or the Lenders under the Loan Documents or in
connection with a transaction permitted pursuant to this Consent and
Agreement to any other Person pursuant to the Loan Documents or to any
other assignment in connection with any transaction permitted pursuant to
this Consent and Agreement and (ii) Section 17.15.3 of the Alamosa
Management Agreements shall not apply to any Change of Control of any
Affiliate in connection with the exercise by the Administrative Agent of
any of its rights or remedies under the Loan Documents, including without
limitation in connection with the sale of the partnership, membership or
shareholder interests of such Affiliate to any Person or to any other
Change of Control of such Affiliate; provided, however, Section 17.15.3 of
the Alamosa Management Agreements shall apply to any such transaction if
such transaction is not with the Administrative Agent or the Lenders or is
not a transaction permitted pursuant to this Consent and Agreement. It is
understood that any assignment described in this Section 1 to the
Administrative Agent or the Lenders is hereby consented to by the Sprint
Parties; provided, that any subsequent assignment by the Administrative
Agent or the Lenders shall be in accordance with the terms of this Consent
and Agreement.
SECTION 2. Payments. Upon receipt of the Administrative Agent's
written instructions, each Sprint Party agrees to make all payments (if
any) to be made by it under the Alamosa Sprint Agreements, subject to its
rights of setoff or recoupment with respect to such payments as permitted
under Section 10.6 of the Alamosa Management Agreements, to any Affiliate
directly to the Administrative Agent, or otherwise as the Administrative
Agent shall direct; provided, that during the period that Sprint PCS is
making such payments directly to the Administrative Agent or its designee
pursuant to this Section 2, Sprint PCS' setoff and recoupment rights under
such Section 10.6 shall not be limited to undisputed amounts. The
Administrative Agent hereby agrees that the Administrative Agent will not
give any such written instructions for it to receive such payments directly
from a Sprint Party unless an Event of Default has occurred under the
Credit Agreement and is continuing, and that such written instructions will
require the payments to be redirected with respect to all (and not fewer
than all) of the Affiliates. Such written instructions to make payments
directly to the Administrative Agent shall be effective only so long as an
Event of Default is continuing, and the Administrative Agent will revoke
such instructions promptly following the cure of such Event of Default. Any
payments made by any Sprint Party directly to, or at the direction of, the
Administrative Agent shall fully satisfy any obligation of such Sprint
Party to make payments to any Affiliate under the Alamosa Sprint Agreements
to the extent of such payments.
SECTION 3. Notice and Effect of Event of Default, Management
Agreement Breach and Event of Termination. The Administrative Agent agrees
to provide to Sprint PCS a copy of any written notice that Administrative
Agent sends to Borrower, promptly after sending such notice, that a Default
or an Event of Default has occurred and is continuing, and Sprint PCS
agrees to provide to the Administrative Agent a copy of any written notice
that Sprint PCS sends to an Affiliate, promptly after sending such notice,
that an Event of Termination or an event that if not cured, or if notice is
provided, will constitute an Event of Termination (each of an Event of
Termination and an event that if not cured would constitute an Event of
Termination, a "Management Agreement Breach") has occurred. The Sprint
Parties acknowledge that the Administrative Agent has informed them that an
Event of Termination constitutes an Event of Default under the Loan
Documents, and the Sprint Parties further acknowledge that the Alamosa
Management Agreements do not prohibit Affiliates from curing such an Event
of Default.
SECTION 4. Event of Default without a Management Agreement Breach.
(a) Affiliates Remain as Managers or Interim Manager Appointed.
Upon and during the continuation of an Event of Default when no
Management Agreement Breach as to which Sprint PCS has given the
Administrative Agent notice exists on the original date of occurrence
of such Event of Default, the Administrative Agent may, by prior
written notice to Sprint PCS, with respect to the Affiliates, (i)
allow the Affiliates to continue to act as Managers under their
respective Sprint Agreements, (ii) appoint Sprint Spectrum to act as
"Interim Manager" under the Alamosa Sprint Agreements, or (iii)
appoint a Person other than Sprint Spectrum to act as Interim Manager
under the Alamosa Sprint Agreements; provided, however, that if the
Administrative Agent appoints an Interim Manager for one Affiliate,
then the Administrative Agent appoints such Interim Manager as the
Interim Manager for each of the other Affiliates. If the
Administrative Agent initially allows the Affiliates to continue to
act as Managers under the Alamosa Sprint Agreements, the
Administrative Agent may later, during a continuation of an Event of
Default, remove the Affiliates as Managers and take the action
described above in clauses (ii) and (iii). The date on which a Person
begins serving as Interim Manager shall be the "Commencement Date."
(b) Sprint Spectrum or Sprint Spectrum Designee as Interim
Manager. If the Administrative Agent appoints Sprint Spectrum as
Interim Manager as permitted under Section 4(a), within 14 days after
its appointment Sprint Spectrum shall accept the position or
designate another Person (a "Sprint Spectrum Designee") to act as
Interim Manager under the Alamosa Sprint Agreements for each of the
Affiliates. The Administrative Agent shall accept Sprint Spectrum and
any Sprint Spectrum Designee that is then acting as an Other Manager
(other than an Affiliate) to act as Interim Manager under the Alamosa
Sprint Agreements. Any Sprint Spectrum Designee that is not an Other
Manager must be acceptable to the Administrative Agent, which
acceptance will not be unreasonably withheld. If, within 30 days
after the Administrative Agent gives Sprint Spectrum notice of its
appointment as Interim Manager, Sprint Spectrum or a Sprint Spectrum
Designee does not agree to act as Interim Manager, then the
Administrative Agent shall have the right to appoint an
Administrative Agent Designee as Interim Manager in accordance with
Section 4(c). At the discretion of the Administrative Agent, Sprint
Spectrum or the Sprint Spectrum Designee shall serve as Interim
Manager for up to six months from the Commencement Date.
Upon the expiration of its initial six-month period as Interim
Manager under the Alamosa Sprint Agreements, Sprint Spectrum or the
Sprint Spectrum Designee will agree, at the written request of the
Administrative Agent, to serve as Interim Manager for up to six
months from such expiration date until the Administrative Agent gives
Sprint Spectrum or the Sprint Spectrum Designee at least 30 days'
written notice of its desire to terminate the relationship; provided,
that the extended period will be for 12 months rather than six months
(for a complete term of 18 months) in the event, as of the date of
the initial appointment, the aggregate number of pops that the
Affiliates and all Other Managers have the right to serve under their
respective management agreements with the Sprint Parties is less than
40 million (such six or 12 month period, the "Extension Period"). If
Sprint Spectrum's or the Sprint Spectrum Designee's term as Interim
Manager is so extended at the request of the Administrative Agent,
then the Administrative Agent agrees that Sprint Spectrum's or the
Sprint Spectrum Designee's right to be reimbursed by an Affiliate
promptly for all amounts previously expended by Sprint Spectrum or
the Sprint Spectrum Designee under Section 11.6.3 of the Management
Agreements of such Affiliates (which expenditures were incurred in
accordance with Section 9 of this Consent and Agreement) shall no
longer be subordinated to the Obligations as provided in Section 9 in
this Consent and Agreement, and Sprint Spectrum's or the Sprint
Spectrum Designee's right to be reimbursed by such Affiliate for any
expenses it incurs pursuant to its rights under Section 11.6.3 of the
Alamosa Management Agreements as provided in the Management Agreement
(which expenditures were incurred in accordance with Section 9 of
this Consent and Agreement) shall not be subject to the subordination
to the Obligations as provided in Section 9 of this Consent and
Agreement; provided, that Sprint Spectrum or the Sprint Spectrum
Designee's right to be reimbursed for amounts expended under Section
11.6.3 of the Alamosa Management Agreements that in the aggregate
exceed the Reimbursement Limit (as defined in the next sentence)
shall remain subordinated to the Obligations as provided in Section 9
of this Consent and Agreement. The term "Reimbursement Limit" means
the amount equal to 5% of the sum of the equity plus the long-term
debt (i.e., notes that on their face are scheduled to mature more
than one year from the date issued), as reflected on the Borrower's
member's books on a fully-consolidated basis. Borrower and each
Affiliate and Guarantor agrees to promptly pay Sprint Spectrum or the
Sprint Spectrum Designee any amount that Sprint Spectrum or the
Sprint Spectrum Designee does not collect from the applicable
Affiliate as permitted under the preceding sentence within 60 days
after such amount is due from such Affiliate. Notwithstanding any
other provision in this Section 4(b) to the contrary, Sprint Spectrum
or the Sprint Spectrum Designee shall not be required to continue to
serve as Interim Manager during the Extension Period at any time
after 30 days following delivery by it to the Administrative Agent of
written notice that Sprint Spectrum or the Sprint Spectrum Designee
needs to expend amounts under Section 11.6.3 of any Management
Agreement that Sprint Spectrum or the Sprint Spectrum Designee
reasonably believes will not be reimbursed based on the projected
Collected Revenues for the remainder of the Extension Period or
reimbursed by the Lenders. If it becomes necessary for Sprint
Spectrum or the Sprint Spectrum Designee to expend any amount that it
believes will not be reimbursed or that exceeds the Reimbursement
Limit, Sprint Spectrum or the Sprint Spectrum Designee is not
required to incur such expense.
Upon the termination or expiration of the term of Sprint
Spectrum or the Sprint Spectrum Designee as Interim Manager, the
Administrative Agent shall have the right to appoint a successor
Interim Manager in accordance with Section 4(c); provided, that the
Administrative Agent must appoint the same Person to act as Interim
Manager for each of the other Affiliates.
(c) Administrative Agent Designee as Interim Manager. If the
Administrative Agent elects to appoint a Person other than Sprint
Spectrum to act as Interim Manager under the Alamosa Sprint
Agreements (an "Administrative Agent Designee") as permitted under
Sections 4(a)(iii) and 4(b), such Administrative Agent Designee must
(i) agree to serve as Interim Manager for six months unless
terminated earlier by Sprint PCS because of a material breach by the
Administrative Agent Designee of the terms of the Sprint Agreements
that is not timely cured or by the Administrative Agent in its
discretion, (ii) meet the applicable "Successor Manager Requirements"
set forth below in Section 13, and (iii) agree to comply with the
terms of the Alamosa Sprint Agreements but will not be required to
assume the existing liabilities of any Affiliate. In the case of a
proposed Administrative Agent Designee, Sprint PCS shall provide to
the Administrative Agent, within 10 Business Days after the request
therefor, a detailed description of all information reasonably
requested by Sprint PCS to enable Sprint PCS to determine if a
proposed Administrative Agent Designee satisfies the Successor
Manager Requirements. Sprint PCS agrees to inform Administrative
Agent within 20 days after it receives such information respecting
such proposed Administrative Agent Designee from the Administrative
Agent whether such designee satisfies the Successor Manager
Requirements. If Sprint PCS does not so inform the Administrative
Agent within such 20-day period, then Sprint PCS shall be deemed to
agree, for all purposes of this Consent and Agreement, that such
proposed designee satisfies the Successor Manager Requirements. A
Person that satisfies the Successor Manager Requirements (or is
deemed to satisfy such requirements) qualifies under the Alamosa
Management Agreements to become a Successor Manager, unless the
Administrative Agent Designee materially breaches the terms of any
Alamosa Sprint Agreement while acting as Interim Manager or no longer
meets the Successor Manager Requirements. The Administrative Agent
Designee may continue to serve as Interim Manager after the initial
six-month period at the Administrative Agent's discretion, so long as
the Administrative Agent Designee continues to satisfy the Successor
Manager Requirements and it does not materially breach the terms of
the any Alamosa Sprint Agreement. If the Administrative Agent
Designee materially breaches any Alamosa Sprint Agreements while
acting as Interim Manager, then Sprint PCS and the Administrative
Agent have the rights set forth in Section 5; provided, that Sprint
PCS may not allow an Affiliate to act as the Manager of the Alamosa
Sprint Agreements without the Administrative Agent's consent.
SECTION 5. Event of Default Created by a Management Agreement Breach.
(a) Affiliate Remains as Manager or Interim Manager Appointed.
Upon an Event of Default created by a Management Agreement Breach or
an Event of Termination (so long as at such time an Event of Default
not created by a Management Agreement Breach or an Event of
Termination as to which Administrative Agent has given Sprint PCS
notice is not in existence), Sprint PCS may by prior written notice
to the Administrative Agent (i) allow each Affiliate to continue to
act as the Manager under its respective Sprint Agreements if approved
by the Administrative Agent, (ii) act as Interim Manager under all of
the Alamosa Sprint Agreements (in the case of Sprint Spectrum) or
appoint Sprint Spectrum as Interim Manager (in the case of SprintCom
or Cox License), or (iii) appoint a Sprint Spectrum Designee to act
as Interim Manager under all of the Alamosa Sprint Agreements as
provided in paragraph (b) below. If Sprint PCS initially allows the
Affiliates to continue to act as Managers under the Alamosa Sprint
Agreements, Sprint PCS may later remove the Affiliates as Managers
and take the action described above in clauses (ii) and (iii);
provided, however, that if Sprint PCS acts as Interim Manager or
appoints an Interim Manager for one Affiliate, then Sprint PCS must
act as Interim Manager or appoint an Interim Manager for each of the
other Affiliates. The Administrative Agent shall have no right to
appoint an Interim Manager when an Event of Default is caused by a
Management Agreement Breach or an Event of Termination (unless an
Event of Default not created by a Management Agreement Breach or an
Event of Termination is in existence), unless Sprint PCS elects not
to act as Interim Manager or to appoint a Sprint Spectrum Designee
with respect to the Affiliate that is subject to the Management
Agreement Breach or Event of Termination.
(b) Sprint Spectrum or Sprint Spectrum Designee as Interim
Manager. If Sprint Spectrum acts as Interim Manager or designates a
Sprint Spectrum Designee to act as Interim Manager under the Alamosa
Sprint Agreements, the Interim Manager shall serve as Interim Manager
for up to six months from the Commencement Date, at the discretion of
Sprint Spectrum. The Administrative Agent shall accept Sprint
Spectrum and any Sprint Spectrum Designee that is then acting as an
Other Manager (other than an Affiliate) to act as Interim Manager
under the Alamosa Sprint Agreements. Any Sprint Spectrum Designee
that is not then acting as an Other Manager must be acceptable to the
Administrative Agent, which acceptance will not be unreasonably
withheld.
Upon the expiration of its initial six-month period as Interim
Manager under the Alamosa Sprint Agreements, Sprint Spectrum or the
Sprint Spectrum Designee will agree to serve as Interim Manager for
the Extension Period until the Administrative Agent gives Sprint
Spectrum or the Sprint Spectrum Designee at least 30 days' written
notice of its desire to terminate the relationship. If Sprint
Spectrum's or the Sprint Spectrum Designee's term as Interim Manager
is extended, then the Administrative Agent agrees that Sprint
Spectrum's or the Sprint Spectrum Designee's right to be reimbursed
by any Affiliate promptly for all amounts previously expended by
Sprint Spectrum or the Sprint Spectrum Designee under Section 11.6.3
of the Management Agreement of such Affiliate (which expenditures
were incurred in accordance with Section 9 of this Consent and
Agreement) shall no longer be subordinated to the Obligations as
provided in Section 9 of this Consent and Agreement, and Sprint
Spectrum's or the Sprint Spectrum Designee's right to be reimbursed
by such Affiliate for any expenses it incurs pursuant to its rights
under Section 11.6.3 of the Alamosa Management Agreements as provided
in the Management Agreement (which expenditures were incurred in
accordance with Section 9 of this Consent and Agreement) shall not be
subject to subordination to the Obligations as provided in Section 9
of this Consent and Agreement; provided, that Sprint Spectrum's or
the Sprint Spectrum Designee's right to be reimbursed for amounts
expended under Section 11.6.3 of the Alamosa Management Agreements
that in the aggregate exceed the Reimbursement Limit shall remain
subordinated to the Obligations as provided in Section 9 of this
Consent and Agreement. Borrower and each Affiliate and Guarantor
agrees to promptly pay Sprint Spectrum or the Sprint Spectrum
Designee any amount that Sprint Spectrum or the Sprint Spectrum
Designee does not collect from the applicable Affiliate as permitted
under the preceding sentence within 60 days after such amount is due
from such Affiliate. Notwithstanding any other provision in this
Section 5(b) to the contrary, Sprint Spectrum or the Sprint Spectrum
Designee shall not be required to continue to serve as Interim
Manager during the Extension Period at any time after 30 days
following delivery by it to the Administrative Agent of written
notice that Sprint Spectrum or the Sprint Spectrum Designee needs to
expend amounts under Section 11.6.3 of any Management Agreement that
Sprint Spectrum or the Sprint Spectrum Designee reasonably believes
will not be reimbursed based on the projected Collected Revenues for
the remainder of the Extension Period or reimbursed by the Lenders.
If it becomes necessary for Sprint Spectrum or the Sprint Spectrum
Designee to expend any amount that it believes will not be reimbursed
or that exceeds the Reimbursement Limit, Sprint Spectrum or the
Sprint Spectrum Designee is not required to incur such expense.
Upon the termination or expiration of the term of Sprint
Spectrum or the Sprint Spectrum Designee as Interim Manager and with
the consent of the Administrative Agent (which consent shall not be
unreasonably withheld or delayed), Sprint Spectrum shall have the
right to appoint a successor Interim Manager in accordance with
Section 5(a).
(c) Administrative Agent Designee as Interim Manager.
Notwithstanding anything in paragraph (a) above to the contrary, if,
after Acceleration (as defined in Section 6(a) of this Consent and
Agreement) and within 30 days after Sprint PCS gives the
Administrative Agent notice of a Management Agreement Breach, Sprint
Spectrum does not agree to act as Interim Manager or does not obtain
the consent of a Sprint Spectrum Designee to act as Interim Manager
under the Sprint Agreements, or if Sprint Spectrum or the Sprint
Spectrum Designee gives the Administrative Agent notice of its
resignation as Interim Manager and Sprint Spectrum fails to appoint a
successor in accordance with Section 5(b) within 30 days after such
resignation, the Administrative Agent may appoint an Administrative
Agent Designee to act as Interim Manager for all of the Affiliates.
Such Administrative Agent Designee must (i) agree to serve as Interim
Manager for each of the Affiliates for six months unless terminated
earlier by Sprint PCS because of a material breach by the
Administrative Agent Designee of the terms of the Alamosa Sprint
Agreements or by the Administrative Agent in its discretion, (ii)
meet the applicable Successor Manager Requirements, and (iii) agree
to comply with the terms of the Alamosa Sprint Agreements. In the
case of a proposed Administrative Agent Designee, Sprint PCS shall
provide to the Administrative Agent, within 10 Business Days after
the request therefor, a detailed description of all information
reasonably requested by Sprint PCS to enable Sprint PCS to determine
if a proposed Administrative Agent Designee satisfies the Successor
Manager Requirements. Sprint PCS agrees to inform Administrative
Agent within 20 days after it receives such information respecting
such proposed Administrative Agent Designee from the Administrative
Agent whether such designee satisfies the Successor Manager
Requirements. If Sprint PCS does not so inform the Administrative
Agent within such 20-day period, then Sprint PCS shall be deemed to
agree, for all purposes of this Consent and Agreement, that such
proposed designee satisfies the Successor Manager Requirements. A
Person that satisfies the Successor Manager Requirements qualifies
under the Alamosa Management Agreements to become a Successor
Manager, unless the Administrative Agent Designee materially breaches
the terms of any Alamosa Sprint Agreement while acting as Interim
Manager or no longer meets the Successor Manager Requirements. The
Administrative Agent Designee may continue to serve as Interim
Manager after the initial six-month period at the Administrative
Agent's discretion, so long as the Administrative Agent Designee
continues to satisfy the Successor Manager Requirements and it does
not materially breach the terms of the Alamosa Sprint Agreements. If
the Administrative Agent Designee materially breaches any Alamosa
Sprint Agreements while acting as Interim Manager, then Sprint PCS
and the Administrative Agent have the rights set forth in Section 5;
provided, that Sprint PCS may not allow an Affiliate to act as the
Manager of the Alamosa Sprint Agreements without the Administrative
Agent's consent.
SECTION 6. Purchase and Sale of the Operating Assets. Upon the
occurrence and during the continuation of an Event of Default, the
following provisions shall govern the purchase and sale of the Operating
Assets:
(a) Acceleration of the Obligations Under the Loan Documents.
In the event the Lenders accelerate the maturity of the Obligations
under the Loan Documents (an "Acceleration" and, the date thereof, an
"Acceleration Date"), the Administrative Agent shall give written
notice thereof to Sprint PCS. Upon receipt of notice of Acceleration,
Sprint PCS shall have the right, to which right Borrower and each
Affiliate and Guarantor, by acknowledging this Consent and Agreement,
expressly agree, to purchase the Operating Assets of all (but not
less than all) of the Affiliates from Borrower and the Affiliates for
an amount equal to the greater of (i) 72% of the aggregate amount of
the Entire Business Value (as defined in the Alamosa Management
Agreements), of the Affiliates, in each case valued in accordance
with the procedure set forth in Section 11.7 of the relevant
Management Agreement (with the assumption that the deemed ownership
of the Disaggregated License under Section 11.7.3 of the Management
Agreement includes the transfer of the Sprint PCS customers as
contemplated by Section 11.4 of the Management Agreement), and (ii)
the aggregate amount of the Obligations. Sprint PCS shall, within 60
days of receipt of notice of Acceleration, give Borrower, each
Affiliate and the Administrative Agent notice of its intent to
exercise the purchase right. In the event Sprint PCS gives the
Administrative Agent written notice of its intent to purchase the
Operating Assets of all of the Affiliates, the Administrative Agent
agrees that it shall not enforce its Security Interests in the
Collateral until the earlier to occur of (i) expiration of the period
consisting of 120 days after the Acceleration Date (or such later
date that shall be provided for in the purchase agreement and
acceptable to the Administrative Agent in its discretion to close the
purchase of the Operating Assets) or (ii) receipt by Administrative
Agent, Borrower and each Affiliate from Sprint PCS of written notice
that Sprint PCS has determined not to proceed with the closing of the
purchase of such Operating Assets for any reason. If after the
120-day period after the Acceleration Date, Borrower or an Affiliate
receives any purchase offer for the Operating Assets of one or more
Affiliates or the Pledged Equity of one or more Affiliates that is
confirmed in writing by Borrower or such Affiliates to be acceptable
to Borrower or such Affiliates, Sprint PCS shall have the right,
subject to the consent of the Administrative Agent, to purchase such
Operating Assets or such Pledged Equity, as the case may be, on terms
and conditions at least as favorable to Borrower and such Affiliates
as the terms and conditions proposed in such offer so long as within
14 Business Days after Sprint PCS's receipt of such other offer
Sprint PCS offers to purchase such Operating Assets or such Pledged
Equity and so long as the conditions of Sprint PCS's offer and the
amount of time it will take Sprint PCS to effect such purchase is
acceptable to Borrower or such Affiliates and the Administrative
Agent. Any such offer shall be confirmed in writing by the third
party offeror. In the event Sprint PCS exercises its rights under
this Section 6(a), (i) Borrower and the Affiliate shall sell (and, if
necessary, cause their Related Parties to sell) such Operating Assets
or such Pledged Equity to Sprint PCS, (ii) the Administrative Agent
and the Lenders shall consent to such purchase and sale provided that
the proceeds thereof shall be sufficient to repay the aggregate
amount of the Obligations, and (iii) Sprint PCS shall make all
payments to be made under this Section 6(a) to Administrative Agent
for its application against the Obligations and any additional
amounts shall be paid to Borrower or the Affiliate or other owner of
the assets sold unless otherwise required by law or by this Consent
and Agreement. The purchase right of the Sprint Parties under this
Section 6(a) shall be in substitution of the purchase rights of the
Sprint Parties under Section 11.6.1 of the Alamosa Management
Agreements. If Sprint PCS purchases such Operating Assets or such
Pledged Equity as permitted under this Section 6(a), the
Administrative Agent and the Guarantors will release or assign their
interests in the Collateral, the Additional Collateral and the
Guarantee Document as described below in Section 6(e) upon payment in
full of the aggregate amount of the Obligations and the termination
of all Commitments to advance credit under the Credit Agreement.
(b) Sale of Operating Assets to Third Parties. If the Sprint
Parties do not purchase the Operating Assets of each of the
Affiliates after an Acceleration as described above in Section 6(a),
the Collateral may be sold as follows:
(i) Sale to Successor Manager. The Collateral may be sold
by the Administrative Agent (in its sole discretion) in the exercise
of certain of its rights and remedies as a secured party under the
Loan Documents or by Borrower or an Affiliate, at the discretion of
the Administrative Agent, to a person that satisfies the Successor
Manager Requirements. Sprint PCS shall provide to the Administrative
Agent, with a copy to Borrower, within 10 Business Days after the
request therefor, a detailed description of all information
reasonably requested by Sprint PCS to enable Sprint PCS to determine
if a proposed buyer satisfies the Successor Manager Requirements.
Sprint PCS agrees to inform the Administrative Agent and Borrower
within 20 days after it receives such information respecting such
proposed buyer from the Administrative Agent whether such designee
satisfies the Successor Manager Requirements. If Sprint PCS does not
so inform the Administrative Agent within such 20-day period, then
Sprint PCS shall be deemed to agree, for all purposes of this Consent
and Agreement, that such proposed designee satisfies the Successor
Manager Requirements. If the proposed buyer satisfies the Successor
Manager Requirements (or is deemed to satisfy such requirements) and
wishes to become a "Successor Manager", the buyer must agree to be
bound by the Sprint Agreements; provided, that buyer shall have no
responsibility or liability for any liability to any Person other
than a Sprint Party and Related Party of Sprint PCS arising out of an
Affiliate's operations prior to the date buyer becomes bound by the
Sprint Agreements. In such case the Sprint Agreements shall remain in
full force and effect with the buyer as Successor Manager and this
Consent and Agreement shall remain in full force and effect for the
benefit of the Successor Manager and any Person providing senior
secured debt financing to such Successor Manager if required by such
Person. Sprint PCS agrees, with respect to any past failure of an
Affiliate to perform any obligation under the Sprint Agreements, that
the Successor Manager shall have the same amount of time to perform
such obligation that such Affiliate had under the Sprint Agreements,
with the performance period commencing on the date on which the buyer
becomes a Successor Manager. Sprint PCS shall permit the performance
period set forth in the Management Agreement to be extended for such
period of time that Sprint PCS believes is reasonable to allow
Successor Manager to perform such unperformed obligations.
(ii) Sale to Other than Successor Manager. The Collateral
may be sold pursuant to the exercise by the Administrative Agent or
the Lenders of their rights and remedies under the Loan Documents or
by Borrower or the Affiliates, at the discretion of the
Administrative Agent (subject to requirements of applicable law) to a
person that does not satisfy the Successor Manager Requirements or to
a person that does not wish to become a Successor Manager, but only
under the following conditions:
(A) the Sprint Parties may terminate the Sprint
Agreements with such buyer following the closing of such purchase
(and the Administrative Agent and the buyer shall have no rights
thereto or thereunder with respect to events occurring after the
closing of such purchase);
(B) the buyer may purchase the Disaggregated
License as described below in Section 6(b)(iv) and with the
Disaggregated License having the characteristics described in the
definition thereof; and
(C) the purchase agreement with the buyer contains
the requirements set forth in Section 6(c) of this Consent and
Agreement.
(iii) Confidentiality Agreement. Before any potential
buyer is provided Confidential Information respecting the potential
purchase of any of the Collateral (which buyer shall be entitled to
receive), the potential buyer shall execute a confidentiality
agreement in the form attached as Exhibit A with such changes thereto
as may be reasonably requested by the parties to the agreement;
provided, however, in the event the potential buyer does not satisfy
the Successor Manager Requirements or has notified Borrower, Sprint
PCS or the Administrative Agent that it does not intend to be a
Successor Manager, Confidential Information that constitutes or
relates to any technical, marketing, financial, strategic or other
information concerning any of the Sprint Parties and that does not
pertain to the businesses of the Affiliates shall not be permitted to
be provided to such potential buyer.
(iv) Sale of Disaggregated Licenses. Sprint PCS will sell
Disaggregated Licenses as follows when required under Section
6(b)(ii)(B):
(A) If a buyer wishes to purchase spectrum in
connection with its purchase of any Operating Assets, it will
purchase such spectrum from an Affiliate and Sprint PCS as follows.
The buyer will purchase from such Affiliate or its Related Parties
any licenses that such Affiliate or such Related Parties own (the
"Affiliate's Licenses"). If such Affiliate's Licenses were not being
used to operate the Service Area Network, Sprint PCS will reimburse
the buyer for the microwave relocation costs incurred to clear the
spectrum bought from such Affiliate or its Related Parties that the
buyer will need to use to operate the Service Area Network as
constructed on the date that the buyer purchases such Operating
Assets. If the buyer does not meet the FCC requirements to buy such
Affiliate's Licenses, the buyer will seek a waiver from the FCC of
the restrictions that prohibit the buyer's ownership of such
licenses. While any such FCC application is pending and while the
buyer is clearing the microwave from an Affiliate's spectrum, the
buyer may continue to use Sprint PCS' Spectrum on which the Service
Area Network operates. Sprint PCS will sell its Disaggregated
Licenses as described in Sections 6(b)(iv)(B), 6(b)(iv)(C) and
6(b)(iv)(D) only in those BTAs in which (1) such Affiliate or its
Related Parties do not own a license or the obligation to sell the
license is unenforceable, (2) the FCC will not approve the transfer
of such Affiliate's License to the buyer, or (3) Sprint PCS
determines that it does not wish to reimburse the buyer for the cost
of the microwave relocation.
(B) If the buyer, an entity with respect to which
such buyer directly or indirectly through one or more persons owns
the total voting power or at least 50% of the total voting power or
at least 50% of the total equity (a "controlled entity"), an entity
that directly or indirectly through one or more persons has a parent
entity that owns at least 50% of the voting power or at least 50% of
the total equity of both the buyer and the common controlled entity
(a "common controlled entity"), owns a license to provide wireless
service to at least 50% of the pops in a BTA with respect to which
such buyer proposes to purchase Spectrum (each a "Restricted Party"
with respect to such BTA), the buyer may buy only 5 MHZ of Spectrum
from Sprint PCS for such BTA.
(C) If the buyer is not a Restricted Party for a
BTA with respect to which such buyer proposes to purchase Spectrum,
and either does not satisfy the Successor Manager Requirements (other
than those set forth in Section 13(b) of this Consent and Agreement)
or does not wish to be a Successor Manager, then the buyer may buy 5
MHZ, 7.5 MHZ or 10 MHZ of Spectrum from Sprint PCS as the buyer
determines in its sole discretion.
(D) If Sprint PCS sells a Disaggregated License to
a buyer as required under this Section 6(b)(iv), the buyer must pay a
price equal to the sum of (1) the original cost of the applicable
License to Sprint PCS pro rated on a pops and spectrum basis, plus
(2) the microwave relocation costs paid by Sprint PCS attributable to
clearing the Spectrum in the Disaggregated License, plus (3) the
amount of carrying costs to Sprint PCS attributable to such original
cost and microwave relocation costs from the date of this Consent and
Agreement to and including the date on which the Disaggregated
License is transferred to the buyer, based on a rate of 12 percent
per annum.
(c) No Direct Solicitation of Customers. Upon the sale of the
Collateral or the Disaggregated License in accordance with this
Consent and Agreement pursuant to Section 6(b)(ii), then the Sprint
Parties agree to transfer to the buyer thereof the customers with a
MIN assigned to the Service Area covered by the Disaggregated
License, but Sprint PCS shall retain the customers of a national
account and any resellers who are then party to a resale agreement
with Sprint PCS. Each Sprint Party agrees to take all actions
reasonably requested by the buyer of the Collateral to fully transfer
to such purchaser such customers. Each Sprint Party agrees that
neither it nor any of its Related Parties will directly or indirectly
solicit, for six months after the date of transfer, the customers
with a MIN assigned to the Service Area covered by the Disaggregated
License; provided, that Sprint PCS retains the customers of a
national account and any resellers that have entered into a resale
agreement with Sprint PCS, Sprint PCS may advertise nationally,
regionally and locally, and engage direct marketing firms to solicit
customers generally. If the buyer continues to operate the purchased
assets as a wireless network in the same geographic area on a network
that is technologically compatible with Sprint PCS's network, the
buyer and Sprint PCS shall each agree to provide roaming services to
the other (in the case of Sprint PCS, the roaming services shall be
provided to those customers of buyer in the geographic area serviced
by the Disaggregated License roaming nationally and, in the case of
buyer, the roaming services shall be provided to those customers of
Sprint PCS roaming in the geographic area covered by the
Disaggregated License) pursuant to a roaming agreement to be entered
into between buyer and Sprint PCS and to be mutually agreed upon so
long as such agreement is based on Sprint PCS's then standard roaming
agreement used by Sprint PCS in the industry and the price that each
party shall pay the other party for roaming services provided to the
first party shall be a price equal to the lesser of: (1) MFN Pricing
provided by buyer to third parties roaming in the geographic area
serviced by the Disaggregated License; and (2) the national average
paid by Sprint PCS to third parties for Sprint PCS's customers to
roam in such third parties' geographic areas (including Other
Managers). Such obligations with respect to roaming shall continue
until such roaming agreement is terminated pursuant to its terms. The
buyer shall agree in writing that if it continues to operate the
purchased assets as a wireless network in the same geographic area on
a network that is technologically compatible with Sprint PCS's
network, the buyer shall, to the extent required by law, provide
resale to Sprint PCS in the geographic area covered by the
Disaggregated License at the MFN Pricing that buyer charges third
parties who purchase resale from buyer; provided, however, if buyer
is not offering resale to any other customers then pricing of resale
provided to Sprint PCS shall be as mutually agreed; and provided,
further, however, whether or not buyer is required by law to offer
such resale, buyer shall offer such resale (on the terms described in
this sentence) to national customers of Sprint PCS.
(d) Deferral of Portion of Collected Revenues. (i) Under
Section 10.1.1 of each Management Agreement, Sprint PCS retains 8% of
the Collected Revenues on a weekly basis (the "Retained Amount").
Following an Acceleration and for up to two years after such
Acceleration, Sprint PCS shall retain only one half of the Retained
Amount with respect to each Affiliate, and the remaining one half of
the Retained Amount shall be advanced to the relevant Affiliate (or,
if so directed by the Administrative Agent pursuant to Section 2
hereof, to the Administrative Agent) at the time the weekly fee
provided under Section 10.1.1 of the relevant Management Agreement is
paid; provided, that after the first anniversary of the Acceleration
Date, Sprint PCS shall retain the entire Retained Amount of each
Affiliate if Sprint PCS is not serving as the Interim Manager.
(ii) The portion of the Retained Amount advanced to any
Affiliate (or, if so directed by the Administrative Agent pursuant to
Section 2 hereof, to the Administrative Agent) (the "Deferred
Amount") shall be evidenced by a promissory note executed by such
Affiliate contemporaneously with this Consent and Agreement in the
form of Exhibit B hereto (the "Deferred Amount Note").
(A) Amounts will be drawn on the Deferred Amount Note
each time Sprint PCS advances a Deferred Amount to such
Affiliate or the Administrative Agent.
(B) The Deferred Amount Note will bear interest at a rate
equal to the greatest of (I) the average interest rate of
Borrower's secured debt, (II) the average rate of Borrower's
unsecured debt, and (III) Sprint PCS' cost of capital.
(C) The Deferred Amount Note shall mature on the earlier
of (I) the date on which a Successor Manager is qualified and
assumes such Affiliate's rights and obligations under the
Sprint Agreements, and (II) the date on which the Operating
Assets are purchased by a third-party buyer, or on which a
stock or other equity acquisition, merger, consolidation or
other transaction resulting in the indirect transfer of the
Operating Assets to a third-party buyer (an "Indirect
Transfer") is consummated.
(iii) In the event a Successor Manager assumes any of the
obligations of an Affiliate under the Sprint Agreements, such
Successor Manager shall also assume the obligations under the
Deferred Amount Note. In the event that the Operating Assets of any
Affiliates are sold to a third party buyer or an Indirect Transfer is
consummated, the obligations of such Affiliate under the Deferred
Amount Note shall be subordinate to Borrower's obligations to its
secured lenders.
(iv) After the two-year anniversary of the Acceleration,
or earlier if a Successor Manager is appointed or if Sprint PCS is
not serving as the Interim Manager, Sprint PCS will again retain the
full Retained Amount.
(e) Payment of Obligations; Release and Assignment of Rights.
The term "Obligations" means the amount equal to the Obligations, after
taking into consideration any amounts received from the Guarantors.
If Sprint PCS purchases the Operating Assets of the Affiliates
or the Pledged Equity as permitted under Section 6(a) or Section 10, and
the Obligations have been paid in full and the Credit Agreement and all
Commitments have terminated or been assigned to a Sprint Party: (i) the
Guarantors will have no right to any amounts paid by Sprint PCS pursuant to
such purchase (except to the extent such purchase is pursuant to Section
6(a) and the amount paid by Sprint PCS exceeds the amount of the
Obligations and is not payable to other creditors of Borrower or an
Affiliate); (ii) the Administrative Agent will, at the election of Sprint
PCS, either release or assign to Sprint PCS all Security Interests in the
Collateral and all Additional Security Interests in the Additional
Collateral and release or assign to Sprint PCS all rights related to the
Loan Documents and the Guarantee Documents and all future payments under
the Loan Documents and the Guarantee Documents; and (iii) the Guarantors
will, at the election of Sprint PCS, release or assign to Sprint PCS, any
and all rights they have against the Collateral and the Additional
Collateral or arising out of any payment to the Administrative Agent or any
Sprint Party with respect to the Loan Documents or the Guarantee Documents.
SECTION 7. No Limits on Remedies. Nothing contained in this Consent
and Agreement shall limit any rights of the Administrative Agent or Lenders
to Accelerate. Except as expressly provided herein, nothing contained in
this Consent and Agreement shall limit any rights or remedies that the
Administrative Agent or the Lenders may have under the Loan Documents or
applicable law. The Administrative Agent may not sell, lease, assign,
convey or otherwise dispose of the Collateral other than as permitted under
this Consent and Agreement.
SECTION 8. Rights and Obligations of Interim Manager. The Interim
Manager may collect a reasonable management fee for its services; provided,
that if Sprint Spectrum or a Related Party of Sprint PCS acts as Interim
Manager, such management fee shall not exceed the direct expenses relating
to Sprint Spectrum or such Related Party employees for the actual time
spent by such employees when performing the function of Interim Manager and
Sprint Spectrum's or such Related Party's out-of-pocket expenses. Such
direct expenses shall include such employees' salaries and benefits, and
the out-of-pocket and accrued expenses allocated to such employees. If
Sprint Spectrum is the Interim Manager, the management fee will be paid out
of the 92% Management Fee that Sprint PCS pays under each of the Alamosa
Management Agreements, and will be in addition to the fees it receives
under the Alamosa Services Agreements. Sprint PCS shall collect such
management fee by setoff against the fees and any other amounts payable to
an Affiliate under the Sprint Agreements. The Interim Manager will be
required to operate each of the Service Area Networks in accordance with
the terms of the Alamosa Sprint Agreements and will be subject to all of
the requirements and obligations of such agreements, but will not be
required to assume the existing liabilities of any Affiliate.
SECTION 9. Rights to Cure. Neither the provisions of this Consent and
Agreement nor any action of the Administrative Agent or any Sprint Party
shall require the Administrative Agent, any Lender or any Sprint Party to
cure any default of any Affiliate under the Alamosa Sprint Agreements or to
perform under Alamosa the Sprint Agreements, but shall only give it the
option to do so except to the extent otherwise required by this Consent and
Agreement. Sprint PCS may exercise its rights under Section 11.6.3 of the
Alamosa Management Agreements upon an Event of Termination, whether such
situation arises while an Affiliate, Sprint Spectrum, an Administrative
Agent Designee or a Sprint Spectrum Designee is acting as Interim Manager
and notwithstanding any other provision of this Consent and Agreement;
provided, that the right to reimbursement for any expenses incurred in
connection with such cure shall be unsecured and until such time as the
Obligations have been paid in full in cash and all commitments to advance
credit under the Credit Agreement have terminated or expired, the Person or
Persons entitled thereto shall not receive such reimbursement, except as
specifically provided in Section 4(b) or Section 5(b) of this Consent and
Agreement. Sprint PCS shall not be permitted to deduct or setoff from its
payments to an Affiliate any such amounts it is not entitled to receive
under this Section and shall not take any action of any type to attempt to
collect such reimbursement and the failure to be so reimbursed shall not
constitute a Management Agreement Breach. In the event that Sprint PCS
receives any payments or distributions that it is not entitled to receive
under this Section, such payments shall be held in trust for, and promptly
turned over to, the parties entitled thereto. If Sprint PCS has designated
a third party to take action under Section 11.6.3 of the Alamosa Management
Agreements, before taking any such action such third party shall enter into
an agreement with Administrative Agent providing that such third party
agrees to the provisions of this Section 9 as if it were a party hereto.
Until such time as the Obligations have been paid in full in cash and all
commitments to advance credit under the Credit Agreement have terminated or
expired, Sprint PCS shall not be entitled to exercise any other remedies
under the Alamosa Sprint Agreements, including, without limitation, the
remedy of terminating the Alamosa Sprint Agreements (except to the extent
permitted under Sections 6(b)(ii)(A) and 12 of this Consent and Agreement)
or the remedy of withholding any payment set forth in Section 10 of the
Alamosa Management Agreements (subject to Sprint PCS's rights of setoff or
recoupment with respect to such payments as permitted under Sections 2,
4(b), 5(b) and 9 of this Consent and Agreement). Until such time as the
Obligations have been paid in full in cash and all commitments to advance
credit under the Credit Agreement have terminated or expired,
notwithstanding anything to the contrary contained in Section 2.3 of the
Alamosa Management Agreements, in no event shall any Person other than an
Affiliate or a Successor Manager be a manager or operator for Sprint PCS
with respect to the Wireless Mobility Communications Network in any Service
Area and neither Sprint PCS nor any of its Related Parties shall own,
operate, build or manage another Wireless Mobility Communications Network
in any Service Area, except to the extent provided in Sections 2.3(a), (b),
(c) or (d) of the Alamosa Management Agreements and except to the extent
that the Alamosa Sprint Agreements are terminated in accordance with
Section 6(b)(ii)(A) of this Agreement. The Administrative Agent
acknowledges and agrees that Sprint PCS shall also have the right to cure
an Event of Default or to assist an Affiliate in curing an Event of Default
but only to the extent Borrower has the right to so cure under the Loan
Documents, as applicable (it being understood that the act of Sprint PCS
curing an Event of Default shall not constitute an independent Event of
Default unless the act itself would otherwise constitute a Default (e.g. a
sale of assets not otherwise permitted by the Loan Documents)), including
but not limited to Sprint PCS's providing Borrower the funds necessary to
operate or meet certain financial covenants in the Loan Documents. The
Administrative Agent shall have the right to cure any Management Agreement
Breach.
SECTION 10. Sprint PCS's Right to Purchase Obligations, Operating
Assets, or Pledged Equity. (a) Following the Acceleration Date and until
the 60-day anniversary of the filing of a bankruptcy petition by or with
respect to any of Borrower or the Affiliates, Sprint PCS shall have the
right to purchase the Obligations under, and as defined in, the Credit
Agreement, by repaying the Obligations in full in cash. In the event that
Sprint PCS purchases the Obligations within 60 days immediately following
the earlier of (i) the Acceleration Date and (ii) the date of the filing of
the first bankruptcy petition by or with respect to any of Borrower or the
Affiliates, Sprint PCS may in lieu of purchasing the total amount of the
Obligations, purchase all Obligations other than the accrued interest with
respect thereto for a purchase price equal to the amount of the Obligations
other than such accrued interest and any fees and expenses that are
unreasonable, in which case, such accrued interest and unreasonable fees
and expenses shall remain due and owing by Borrower to the Lenders. For
clarity, the time period within which Sprint PCS shall have the right to
purchase the Obligations under this Section 10(a) or the Operating Assets
or Pledged Equity under Section 10(b) shall commence when the first
bankruptcy petition in respect of Borrower or any Affiliate shall be filed,
and such time period shall not be restarted by any subsequent filing of a
bankruptcy petition in respect of any other Affiliate or, if the first such
petition was filed in respect of an Affiliate, the Borrower.
(b) In the event that the Administrative Agent acquires the
Operating Assets or takes title to the Pledged Equity, Sprint PCS shall
have the right to purchase the Operating Assets or the Pledged Equity from
the Administrative Agent during the limited period of time provided in and
otherwise in accordance with this Section 10(b) by paying to the
Administrative Agent in cash an amount equal to the sum of the aggregate
amount paid (by credit against the Obligations or otherwise) by the
Administrative Agent or the Lenders for the Operating Assets or Pledged
Equity, as the case may be, plus the aggregate amount of any remaining
unpaid Obligations. Administrative Agent shall give Sprint PCS notice of
any acquisition of the Operating Assets or the Pledged Equity by the
Administrative Agent promptly following the date of final consummation of
such acquisition (the "Acquisition Notice"). Sprint PCS shall, within 60
days of receipt of a valid Acquisition Notice, give the Administrative
Agent (and Borrower in the case of a purchase of the Pledged Equity) notice
of its intent to exercise its purchase right under this Section 10(b). In
the event Sprint PCS gives the Administrative Agent written notice of its
intent to purchase the Operating Assets or the Pledged Equity, the
Administrative Agent agrees that it shall provide Sprint PCS the right to
purchase the Operating Assets or Pledged Equity, as the case may be, until
the earlier to occur of (i) expiration of the period consisting of 120 days
after Sprint PCS' receipt of a valid Acquisition Notice (or such later date
that shall be provided for in the purchase agreement and acceptable to the
Administrative Agent in its sole discretion to close the purchase of the
Operating Assets or Pledged Equity) or (ii) receipt by Administrative Agent
from Sprint PCS of written notice that Sprint PCS has determined not to
proceed with the closing of the purchase of the Operating Assets or Pledged
Equity. If Sprint PCS at any time purchases the Operating Assets or Pledged
Equity as permitted under this Section 10, the Administrative Agent and the
Guarantors will release or assign their interest in the Collateral, the
Loan Documents and the Guaranty Documents as described in Section 6(e) upon
payment in full of the aggregate amount of the Obligations. Notwithstanding
the foregoing, in the event that a bankruptcy petition is filed by or with
respect to any Affiliate, Sprint PCS shall again have the right to purchase
the Operating Assets or the Pledged Equity from the Administrative Agent by
repaying the Obligations in full in cash, by giving the Administrative
Agent notice of its intent to exercise such purchase right no later than 60
days following the date of filing of the first such bankruptcy petition in
respect of any of the Affiliates. In the event Sprint PCS gives the
Administrative Agent written notice of its intent to purchase the Operating
Assets or the Pledged Equity, the Administrative Agent agrees that it shall
provide Sprint PCS the right to purchase the Operating Assets or the
Pledged Equity for 120 days from the date of filing of the bankruptcy
petition; provided, that if the purchase requires bankruptcy court
approval, then Sprint PCS shall diligently seek to obtain such approval and
such period within which Sprint PCS shall consummate the purchase shall be
extended until the earliest of (i) the later of 120 days from the date of
filing of the bankruptcy petition or 5 days after Sprint PCS receives such
bankruptcy court approval, (ii) the date on which an order is issued by a
court with competent jurisdiction that denies Sprint PCS' application for
such approval and such order may no longer be appealed by Sprint PCS, (iii)
the date on which Sprint PCS gives the Administrative Agent written notice
that Sprint PCS has determined not to proceed with such purchase, and (iv)
the date on which an order is issued by a court with competent jurisdiction
that approves the sale of the Operating Assets or the Pledged Equity to a
third party and such order may no longer be appealed by Sprint PCS.
(c) If at any time during the period described in Section 10(a)
or 10(b) above or thereafter the Administrative Agent receives any purchase
offer for the Operating Assets, the Pledged Equity or the Obligations, as
applicable, that is acceptable to the Administrative Agent, the
Administrative Agent shall exercise reasonable efforts to obtain the
consent of the offeror to deliver a copy of such offer to Sprint PCS and
Sprint PCS shall have the right to purchase the Operating Assets, the
Pledged Equity or the Obligations, as applicable, on terms and conditions
at least as favorable to the Administrative Agent as the terms and
conditions proposed in such offer so long as within 14 Business Days after
Sprint PCS's receipt of such other offer Sprint PCS offers to purchase the
Operating Assets, the Pledged Equity or the Obligations, as applicable, and
so long as the conditions of Sprint PCS's offer and the amount of time it
will take Sprint PCS to effect such purchase is acceptable to the
Administrative Agent and the Lenders.
(d) If Sprint PCS at any time purchases the entirety of the
Obligations as provided in this Section 10, the Administrative Agent shall
assign and transfer or cause the Lenders to assign and transfer to Sprint
PCS all rights and interests in, to and under all of the Loan Documents,
including but not limited to all security interests, liens, financing
statements, guaranties (including the Guarantee Documents) and other credit
enhancements related to such Loan Documents, and all rights and claims
thereunder (collectively referred to as the "Loan Document Rights"). If
Sprint PCS purchases all Obligations other than accrued interest (as
permitted in the second sentence of Section 10(a) above), then the
Administrative Agent shall assign and transfer or cause the Lenders to
assign and transfer to Sprint PCS all Loan Document Rights, except that if
Sprint PCS receives payment in full of all Obligations due under the Loan
Documents (including the amount it did not pay the Administrative Agent, as
permitted in the second sentence of Section 10(a) above), it shall pay such
amount to the Administrative Agent unless the Administrative Agent has
already received payment of such amount. If Sprint PCS at any time
purchases the entirety or less than all of the Obligations, the Guarantors
will release any and all rights they have against the Collateral or arising
out of any payment to the Administrative Agent or any Sprint Party with
respect to the Loan Documents or their Guaranty Documents.
SECTION 11. Foreclosure. Upon the Administrative Agent or any Lender
or any other Person that meets the Successor Manager Requirements acquiring
the Operating Assets and the Sprint Agreements of an Affiliate, then such
Person shall be entitled to exercise any and all rights of an Affiliate
under such Sprint Agreements in accordance with the terms of such Sprint
Agreements and each Sprint Party will thereupon comply in all respects with
such exercise by such Person and perform its obligations under such Sprint
Agreements and this Consent and Agreement for the benefit of such Person.
Each Sprint Party agrees that the Administrative Agent or any Lender may
(but shall not be obligated to), subject to and in accordance with the
terms of this Consent and Agreement, assign its rights and interests
acquired in the Operating Assets and the Sprint Agreements of an Affiliate
to any buyer or transferee thereof and, in the event the buyer wishes to
become a party to such Sprint Agreements and such buyer satisfies the
Successor Manager Requirements, such buyer shall be bound by such Sprint
Agreements; provided, that buyer shall have no responsibility or liability
to any Person other than a Sprint Party and a Related Party of a Sprint
Party arising out of such Affiliate's operations prior to the date buyer
becomes bound by such Sprint Agreements. In such case such Sprint
Agreements shall remain in full force and effect with the buyer as
Successor Manager and this Consent and Agreement shall remain in full force
and effect for the benefit of the Successor Manager and any Person
providing senior secured debt financing to such Successor Manager if
required by such Person. Sprint PCS agrees, with respect to any past
failure of an Affiliate to perform any obligation under the Sprint
Agreements, that the Successor Manager shall have the same amount of time
to perform such obligation that an Affiliate had under the Sprint
Agreements, with the performance period commencing on the date on which the
buyer becomes a Successor Manager. Sprint PCS shall permit the performance
period set forth in the Management Agreement to be extended for such period
of time that Sprint PCS believes is reasonable to allow Successor Manager
to perform such unperformed obligations.
SECTION 12. Trademarks and Service Marks. In the event the
Administrative Agent forecloses on its security interest in any of the
License Agreements and transfers such License Agreements to a Person who
does not meet the Successor Manager Requirements, then Sprint PCS shall
have the right to terminate such License Agreements and cause the
Administrative Agent to release its security interest in such License
Agreements immediately prior to such transfer.
SECTION 13. Interim Manager and Successor Manager Requirements. To
qualify as an Interim Manager or a Successor Manager, the Person must
satisfy each of the following "Successor Manager Requirements," as
applicable:
(a) The Person must not during the three-year period
immediately preceding the date of determination have materially
breached any material agreement with Sprint Spectrum or its Related
Parties that resulted in the exercise of a termination right or in
the initiation of judicial or arbitration proceedings;
(b) The Person must not be one of the Persons identified on
Schedule 13 (a "Schedule 13 Person"); provided, that no Other Manager
under any Sprint PCS Management Agreement may be identified on
Schedule 13;
(c) In the case of a Successor Manager, the Person must meet a
reasonable Person's credit criteria (taking into consideration the
circumstances), it being understood that such criteria is satisfied
if the financial projections contained in the business plan such
Person submits to Sprint PCS shows the ability to service its
indebtedness and meet the build-out requirements contained in the
Build-out Plan; and
(d) The Person must agree to be bound by the terms of the
Sprint Agreements as if an original party thereto; provided, in the
case of an Interim Manager, the Person must also execute a separate
confidentiality agreement in the form attached as Exhibit A with such
changes thereto as may be reasonably requested by the parties to the
agreement, but the Person is not required to assume the existing
liabilities of an Affiliate.
The Administrative Agent, each Lender and each of their wholly-owned
subsidiaries or entities who wholly-own such entities shall be deemed to
satisfy Sections 13(a), (b) and (c) of the preceding "Successor Management
Requirements".
SECTION 14. Management Agreement. Sprint PCS agrees that it will not
exercise its right under any Management Agreement to purchase the Operating
Assets of an Affiliate or to sell the Disaggregated License to an Affiliate
if before, or after giving effect to such exercise, there would exist a
Default or Event of Default under the Credit Agreement, unless Sprint PCS
pays the aggregate amount of the Obligations as a condition of the exercise
of such right and the Credit Agreement shall have been terminated in
connection with such payment. Sprint PCS agrees that until the Obligations
have been paid in full in cash and all commitments to advance credit under
the Credit Agreement have terminated or expired, a failure to pay any
amount by any Related Party of an Affiliate under any agreement with Sprint
PCS or any of its Related Parties (other than the Management Agreement, the
Services Agreement or the License Agreements) shall not constitute a
Management Agreement Breach for any purpose. Subject to regulatory approval
in connection with any such sale, Sprint PCS agrees that it shall always
maintain the ability to sell the Disaggregated License in accordance with
this Consent and Agreement. Sprint PCS shall own at least 10 MHZ of
Spectrum in each Service Area until the first to occur of the following
events: (i) the Obligations have been paid in full in cash and all
commitments to advance credit under the Credit Agreement have terminated or
expired, (ii) the sale by Sprint PCS of the Spectrum pursuant to this
Consent and Agreement shall be effected, (iii) the sale of the Operating
Assets pursuant to this Consent and Agreement, and (iv) the termination of
the Alamosa Management Agreements. Sprint PCS acknowledges that the
financing provided to Borrower pursuant to the Loan Documents complies with
Section 1.7 of each of the Alamosa Management Agreements, as amended
("Section 1.7"), and that Section 11.3.6 of each of the Alamosa Management
Agreements shall no longer be applicable with respect to such Affiliate so
long as Borrower makes the capital contributions to the Affiliates in the
amounts and by the deadlines required under Section 1.7 of each Affiliate.
Notwithstanding anything to the contrary contained in Section 12.2 of the
Management Agreement, the Administrative Agent, the Lenders, and any
Successor Manager or buyer of the Operating Assets or Disaggregated License
shall be permitted to disclose Confidential Information (as defined in the
Management Agreement) (i) to the extent required by law, rule or
regulation, (ii) to any regulator or any regulatory body regulating such
entity, (iii) to any rating agency in connection with requirements
applicable to such Person and (iv) to the lawyers and accountants for any
such Persons.
SECTION 15. Administrative Agent and Eligible Assignees. The
Administrative Agent and each Lender must be an Eligible Assignee.
"Eligible Assignee" shall mean and include a commercial bank, financial
institution, other "accredited investor" (as defined in Regulation D of the
Securities Act) other than individuals, or a "qualified institutional
buyer" as defined in rule 144A of the Securities Act; provided, that prior
to the 61st day after the filing of a bankruptcy petition by or with
respect to an Affiliate, in no event may any Person that is engaged in or
that controls, is controlled by or is under common control with any Person
engaged in, the telecommunications service business in the United States
(other than Sprint Corporation and its subsidiaries), be an Eligible
Assignee, it being understood that no small business investment corporation
that is ultimately owned by an Eligible Assignee that is subject to
Regulation Y shall be deemed to be controlled by or under common control
with such Eligible Assignee; and provided further, that after the filing of
such bankruptcy petition in no event may a Schedule 13 Person be an
Eligible Assignee.
SECTION 16. Sprint Party Representations. Each Sprint Party
represents and warrants to the Administrative Agent, as of the Closing Date
(a) its execution, delivery and performance of this Consent and Agreement
has been duly authorized by all necessary corporate and partnership action,
and does not and will not require any further consents or approvals that
have not been obtained, or violate any provision of any law, regulation,
order, judgment, injunction or similar matters or materially breach any
agreement presently in effect with respect to or binding on it; provided,
that the transfer of Spectrum as contemplated under this Consent and
Agreement will require regulatory approval (which each Sprint Party agrees
to use its commercially reasonable efforts to obtain); (b) this Consent and
Agreement is a legal, valid and binding obligation of such Person
enforceable against it in accordance with its terms, except that (i) such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws affecting
the enforcement of creditors' rights generally, and (ii) the remedy of
specific performance and injunctive and other forms of equitable relief may
be limited by equitable defenses and by the discretion of the court before
which any proceeding may be brought; (c) the Alamosa Sprint Agreements are
in full force and effect and have not been amended, supplemented or
modified; (d) as of the date of execution hereof, to the knowledge of the
Sprint Parties, no Event of Termination has occurred and is continuing
(without regard to any requirement of the delivery of written notice
necessary to the occurrence of an Event of Termination under Section 11.3
of the Management Agreement), provided, that Sprint PCS that Sprint PCS has
conducted at least one compliance audit with respect to each Affiliate,
which audits revealed some situations that are not presently treated as
Management Agreement Breaches or Events of Termination, but that if not
cured could be treated as Management Agreement Breaches and Events of
Termination; (e) on the date each Management Agreement was executed Sprint
PCS owned, and on the date hereof Sprint PCS owns, 10 MHZ or more of
Spectrum in each Service Area; and (f) the only existing agreements or
arrangements between Borrower or an Affiliates, on the one hand, and Sprint
Corporation or any of its subsidiaries, on the other hand, are listed on
Schedule 16(f).
SECTION 17. Administrative Agent Representations. The Administrative
Agent represents and warrants to Sprint PCS, as of the Closing Date (a) its
execution, delivery and performance of this Consent and Agreement has been
duly authorized by all necessary corporate action, and does not and will
not require any further consents or approvals that have not been obtained,
or violate any provision of any law, regulation, order, judgment,
injunction or similar matters or materially breach any agreement presently
in effect with respect to or binding on it; (b) this Consent and Agreement
is a legal, valid and binding obligation of the Administrative Agent
enforceable against it in accordance with its terms, except that (i) such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws affecting
the enforcement of creditors' rights generally, and (ii) the remedy of
specific performance and injunctive and other forms of equitable relief may
be limited by equitable defenses and by the discretion of the court before
which any proceeding may be brought; (c) at the time of the execution
hereof, the only Lenders are the Administrative Agent, Toronto Dominion
(Texas), Inc., First Union National Bank, Export Development Corporation,
The Bank of Nova Scotia, Fortis Capital Corporation, Westdeutsche
Landesbank Girozentrale, Societe Generale, CoBank, ACB, Franklin Floating
Rate Trust, Franklin Floating Rate Master Series, General Electric Capital
Corporation, IBM Credit Corporation and Xxxxxxxxxxx Senior Floating Rate
Fund, and each Lender is an Eligible Assignee; (d) as of the date of
execution hereof, to the knowledge of the Administrative Agent, no Event of
Default has occurred and is continuing; and (e) the Guarantee Documents
have been duly executed and delivered to the parties to such agreements.
SECTION 18. Successors and Assigns. This Consent and Agreement shall
be binding upon the successors and assigns of the parties hereto and shall
inure, together with the rights and remedies of the parties hereunder, to
the benefit of their respective successors and assigns. In the event a
Sprint PCS Network is sold in accordance with the related Management
Agreement, the buyer thereof will assume the obligations of the Sprint
Parties hereunder and under all the other related Sprint Agreements other
than the related Sprint Trademark and Service Xxxx License Agreement;
provided, however, the buyer of such Sprint PCS Network shall enter into an
agreement with each Affiliate on substantially the same terms as such
Sprint Trademark and Service Xxxx License Agreement with respect to such
buyers' trademarks, service marks, brands, etc. In the event a Successor
Manager becomes a party to the Alamosa Sprint Agreements as provided in
this Agreement, this Consent and Agreement shall remain in full force and
effect for the benefit of the Successor Manager and any Person providing
senior secured debt financing to such Successor Manager if required by such
Person and if such Successor Manager and its Related Parties acknowledge
this Consent and Agreement in the manner the Borrower and its Related
Parties have acknowledged it.
SECTION 19. Amendment. Neither this Consent and Agreement nor any
provision herein may be waived except pursuant to an agreement or
agreements in writing entered into by Sprint PCS, the Administrative Agent,
Borrower and the Affiliates, and neither this Consent and Agreement nor any
provision herein may be amended or modified except pursuant to an agreement
or agreements in writing entered into by Sprint PCS, the Administrative
Agent, Borrower and the Affiliates; provided, however, that no consent of
Borrower or the Affiliates shall be necessary for any amendment or
modification to this Consent and Agreement made pursuant to or in
accordance with Section 25 hereof, unless such amendment or modification
could reasonably be expected to be materially adverse to Borrower or an
Affiliate. The Administrative Agent and each Lender (and its successors and
assigns) shall be bound by any modification or amendment authorized by this
Section 19. No amendment or waiver or effective amendment or waiver entered
into in violation of this Section 19 shall be valid.
SECTION 20. APPLICABLE LAW. THIS CONSENT AND AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 21. Notices. Notices and other communications provided for in
this Consent and Agreement shall be in writing and shall be delivered by
hand or overnight courier service, mailed or sent by telecopy, as follows:
(a) if to Sprint PCS, to it at:
Sprint Spectrum L.P.
0000 Xxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx, 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Chief Executive Officer
with a copy to:
0000 Xxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx, 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: General Counsel
(b) if to the Administrative Agent, to it at:
Citicorp USA, Inc.
Xxx Xxxxx Xxx
Xxxxx 000
Xxx Xxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx Xxxx
with a copy to:
Xxxxxxx Xxxxx Xxxxxx, Inc.
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx Xxxxxx
and
Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: X. Xxxxxxx Xxxxxxxxx
(c) if to Borrower or to Affiliate, to it at:
Alamosa LLC
0000 Xxxxx Xxxx 000
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
with a copy to:
Xxxxxxxx, Xxxxxx & Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxx XxXxxxxxx, Xx.
All notices and other communications given to any party hereto in
accordance with the provisions of this Consent and Agreement shall be
deemed to have been given on the date of receipt if delivered by hand or
overnight courier service or sent by telecopy, or on the date five (5)
business days after dispatch by certified or registered mail if mailed, in
each case delivered, sent or mailed (properly addressed) to such party as
provided in this Section 21 or in accordance with the latest unrevoked
direction from such party given in accordance with this Section 21.
SECTION 22. Counterparts. This Consent and Agreement may be executed
in two or more counterparts, each of which shall constitute an original but
all of which when taken together shall constitute but one contract.
SECTION 23. Severability. Any provision of this Consent and Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction. The parties shall endeavor in good faith negotiations to
replace the invalid, illegal or unenforceable provision with valid
provisions the economic effect of which is as close as possible to that of
the invalid, illegal or unenforceable provision.
SECTION 24. Termination.This Consent and Agreement shall terminate
and be of no further force and effect upon the first to occur of the
following: (i) the Obligations are paid in full and the Credit Agreement
and all Commitments are terminated; and (ii) the Alamosa Sprint Agreements
terminate.
SECTION 25. Amendments to Form Consent and Agreement. If Sprint PCS
modifies or amends the form of Consent and Agreement it enters into with
another lender in connection with a loan to an Other Manager that is
syndicated or intended to be syndicated (i.e., a loan sold or participated,
or intended to be sold or participated, in whole or in part to at least
three financial institutions or investment funds) and where the pops in the
Service Area of the Other Manager exceed 5 million, then Sprint PCS agrees
to give the Administrative Agent the right to so amend this Consent and
Agreement, subject to the provisions of clauses (a), (b) and (c) below.
Sprint PCS agrees to give the Administrative Agent written notice of such
modifications and amendments and, at the request of Administrative Agent,
to amend this Consent and Agreement in the same manner; provided, that: (a)
Sprint PCS will not modify this Consent and Agreement to incorporate
changes made for the benefit of a lender because of circumstances related
to a particular Other Manager, subject to the limitations set forth below;
(b) the Administrative Agent must agree to make all (or none) of the
changes made for the other lender and the Other Manager, unless Sprint PCS
agrees to allow the Administrative Agent to make only some of the changes;
and (c) if such amendment to this Consent and Agreement could reasonably be
expected to be materially adverse to Borrower or an Affiliate, such
amendment shall not be made without the prior written consent of Borrower
and all affected Affiliates (although the withholding of such consent by
Borrower or an Affiliate will result in none of the changes being made to
this Consent and Agreement because of the requirements of clause (b)
above).
For purposes of subsection (a) in the preceding paragraph, Sprint PCS
will not deem the following changes to be made because of circumstances
related to a particular Other Manager: (i) any form of recourse to Sprint
PCS or other similar form of credit enhancement; (ii) any change in Sprint
PCS's right to purchase Operating Assets or Obligations; (iii) any change
in an Affiliate's, Administrative Agent's or Lenders' right to sell the
Collateral or purchase the Disaggregated License (including, without
limitation, any rights of first refusal and the purchase price of the
Disaggregated License); (iv) any change in the ownership status, terms of
usage or amount of Disaggregated License utilized by an Affiliate; (v) any
material change in the flow of revenues between Sprint Spectrum and an
Affiliate excluding changes related to the pricing of direct or indirect
fees, but including any subordination of direct or indirect fees or other
amounts or costs due under the Sprint Agreements or hereunder to Sprint
PCS; (vi) any change to obligations required to be assumed by, or
qualifications for, any Interim or Successor Manager, including changes in
the time period or terms under which Sprint PCS agrees to remain as Interim
Manager; (vii) any changes in confidentiality, non-compete or Eligible
Assignee language, including changes to Schedule 13; (viii) any
clarifications of FCC compliance issues; (ix) the issuance of legal
opinions; (x) any change in the circumstances under, or procedures by
which, an Interim Manager or Successor Manager is appointed; or (xi) any
change to this Section 25.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Consent and
Agreement to be executed by their respective authorized officers as of the
date and year first above written.
SPRINT SPECTRUM L.P.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx,
Vice President - Affiliations
SPRINTCOM, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx,
Vice President - Affiliations
WIRELESSCO, L.P.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx,
Vice President - Affiliations
XXX COMMUNICATIONS PCS, L.P.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx,
Vice President - Affiliations
XXX PCS LICENSE, LLC
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx,
Vice President - Affiliations
SPRINT COMMUNICATIONS COMPANY, L.P.
By: /s/ Xx Xxxxxx
--------------------------------------
Xx Xxxxxx,
Senior Vice President - Public Affairs
CITICORP USA, INC
for itself and as Administrative Agent
By: /s/ J. Xxxxxxx Xxxxxx
--------------------------------------
J. Xxxxxxx Xxxxxx
Vice President and Managing Director
Acknowledgment, Consent and Agreement of Borrower and Affiliates
Each of the undersigned, Borrower and the Affiliates, (i) has
reviewed this Consent and Agreement, (ii) acknowledges, consents and agrees
to the terms and provisions of this Consent and Agreement, and (iii) agrees
to be bound by the terms and provisions of this Consent and Agreement,
including, without limitation, such terms and provisions that affect
Borrower and such Affiliate, and their respective assets and rights under
the Alamosa Sprint Agreements. Without limiting the generality of the
foregoing, Borrower and each Affiliate each acknowledges and agrees that :
(A) the right to appoint an Interim Manager is intended to allow the right
and ability to preserve and/or protect the Collateral or its value and each
Service Area Network or its value; (B) in the event of the sale of the
Collateral by the Administrative Agent, the value of the Collateral may be
dependent on the right of the Person purchasing the Collateral to assume or
be a party to the applicable Sprint Agreements and acknowledges that any
sale of the Collateral in accordance with Sections 6 and 10 hereof, the
other provisions of this Consent and Agreement and, to the extent not
inconsistent with this Consent and Agreement, the Loan Documents, is agreed
to be a commercially reasonable disposition of the Collateral by
Administrative Agent; and (C) Borrower and each Affiliate agrees to be
liable for and to reimburse Sprint Spectrum or the Sprint Spectrum Designee
all amounts expended by Sprint Spectrum or the Sprint Spectrum Designee
under Section 11.6.3 of the Management Agreements as described in Sections
4(b) and 5(b) of this Consent and Agreement, and to cause the other
Affiliates to perform their obligations under the Alamosa Sprint Agreements
and this Consent and Agreement.
Borrower also agrees as follows:
1. It will not use the proceeds from any of the Loan
Documents or from any other loan or extension of credit
to which this Consent and Agreement relates for any
purpose other than to (a) contribute or loan such
proceeds to the Affiliates, (b) pay the cash portion of
the merger consideration to the Targets (as that term is
defined in the Commitment Letter), (c) refinance existing
indebtedness under the EDC Facility, the Xxxxxxx Facility
and the WOW Facility (as those terms are defined in the
Commitment Letter), and (d) pay the Transaction Costs (as
that term is defined in the Commitment Letter).
2. Borrower agrees to promptly give Sprint PCS a copy of any
notice it receives from the Administrative Agent or any
Lender, and a copy of any notice Borrower gives to
Administrative Agent or any Lender.
3. Borrower agrees to give Sprint PCS a copy of all
financial information it gives the Administrative Agent
or any Lender.
ALAMOSA HOLDINGS, LLC
a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxx,
President
TEXAS TELECOMMUNICATIONS LP
a Texas limited partnership
By ALAMOSA DELAWARE GP, L.L.C.
a Delaware limited liability company,
as the sole general partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxx
President
ALAMOSA WISCONSIN LIMITED PARTNERSHIP
a Wisconsin limited partnership
By ALAMOSA WISCONSIN GP, L.L.C.
a Delaware limited liability company,
as the sole general partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxx
President
XXXXXXX WIRELESS COMMUNICATIONS, LLC
a Missouri limited liability company
By ALAMOSA HOLDINGS, LLC
a Delaware limited liability company,
as the sole equity holder
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxx
President
WASHINGTON OREGON WIRELESS, LLC
a Delaware limited liability company
By ALAMOSA HOLDINGS, LLC
a Delaware limited liability company,
as the sole equity holder
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxx
President
Acknowledgment, Consent and Agreement of Guarantors
Each of the undersigned Guarantors (i) has reviewed this Consent and
Agreement, (ii) acknowledges, consents and agrees to the terms and
provisions of this Consent and Agreement, particularly as they modify the
price (as set forth in the Alamosa Management Agreements) pursuant to which
Sprint PCS may purchase the Operating Assets under Sections 6 and 10
hereof, and as they require the Borrower, an Affiliate and their Related
Parties to sell an Affiliate's Licenses under Section 6 hereof, and (iii)
agrees to be bound by the terms and provisions of this Consent and
Agreement and to take such action as is necessary to cause an Affiliate and
its Related Parties to comply with the terms and provisions of this Consent
and Agreement. Without limiting the generality of the foregoing, each of
the Guarantors acknowledges and agrees that: (A) the right to appoint an
Interim Manager is intended to allow the right and ability to preserve
and/or protect the Collateral or its value and each Service Area Network or
its value; (B) in the event of the sale of the Collateral by the
Administrative Agent, the value of the Collateral may be dependent on the
right of the Person purchasing the Collateral to assume or be a party to
the Sprint Agreements and acknowledges that any sale of the Collateral in
accordance with Sections 6 and 10 hereof, the other provisions of this
Consent and Agreement and, to the extent not inconsistent with this Consent
and Agreement, the Loan Documents, is agreed to be a commercially
reasonable disposition of the Collateral by Administrative Agent; and (C)
each Guarantor agrees to be liable for and to reimburse Sprint Spectrum or
the Sprint Spectrum Designee all amounts expended by Sprint Spectrum or the
Sprint Spectrum Designee under Section 11.6.3 of the Alamosa Management
Agreements described in Sections 4(b) and 5(b) of this Consent and
Agreement, to cause the Affiliates to perform their obligations under the
Alamosa Sprint Agreements and this Consent and Agreement, and to guarantee
the payment and performance of the obligations of the Affiliates under the
Deferred Amount Note executed by the Affiliates on the date of this Consent
and Agreement.
ALAMOSA HOLDINGS, INC.
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxx,
President
ALAMOSA PCS HOLDINGS, INC.
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxx,
President
ALAMOSA (DELAWARE), INC.
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxx
President
TEXAS TELECOMMUNICATIONS LP
a Texas limited partnership
By ALAMOSA DELAWARE GP, L.L.C.
a Delaware limited liability company,
as the sole general partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxx
President
ALAMOSA WISCONSIN LIMITED PARTNERSHIP
a Wisconsin limited partnership
By ALAMOSA WISCONSIN GP, L.L.C.
a Delaware limited liability company,
as the sole general partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxx
President
XXXXXXX WIRELESS COMMUNICATIONS, LLC
a Missouri limited liability company
By ALAMOSA HOLDINGS, LLC
a Delaware limited liability company,
as the sole equity holder
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxx
President
WASHINGTON OREGON WIRELESS, LLC
a Delaware limited liability company
By ALAMOSA HOLDINGS, LLC
a Delaware limited liability company,
as the sole equity holder
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxx
President
Exhibit A
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT ("Agreement") is entered into as of
__________, 200__, by and between Sprint Spectrum L.P. ("Sprint Spectrum"),
a Delaware limited partnership, whose address is 0000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, __________________________ ("Manager"),
a ______________ _______________________________, whose address is
_______________________________________________, ("Lender"), a ____________
__________________ whose address is ___________________________________ and
_________________________________ ("Potential Buyer"), a _______________
______________________________________, whose address is ___________________
__________________________, to assure the protection and preservation of the
confidential and/or proprietary nature of information to be disclosed or
made available to each other relating to the possible purchase by the
Potential Buyer of the assets of the Manager and the possible affiliation
of the Potential Buyer with Sprint Spectrum as a manager of the Sprint PCS
network presently managed by the Manager (the "Transaction").
NOW, THEREFORE, in reliance upon and in consideration of the following
undertakings, the parties, for themselves, or for any corporation,
partnership, association, joint stock company, limited liability company,
limited liability partnership, or trust directly or indirectly controlling,
controlled by or under common control of such party, or a more than 50%
owned subsidiary of such party (its "Affiliates"), agree as follows:
1. Scope. For purposes of this Agreement, the "Proprietary Information" of
a party disclosing information (the "Discloser") means all information,
whether communicated orally, in writing, by graphical representation,
electronically or otherwise, relating to standards, guidelines, plans,
policies and programs regarding the operation and management of the
Discloser or any of its Affiliates and all technical, marketing, financial,
strategic and other information regarding the Discloser or any of its
Affiliates. Oral discussions about Proprietary Information are Proprietary
Information. Proprietary Information includes all such information whether
delivered to the party receiving the information (the "Recipient") directly
by the Discloser or indirectly through an Affiliate, agent or lender of the
Discloser or Recipient, or by another party to this Agreement.
2. Limitation. The term "Proprietary Information" does not include
information that: (a) is now or is in the future in the public domain
through no fault of the Recipient; (b) prior to disclosure pursuant to this
Agreement is properly within the legitimate possession of the Recipient;
(c) subsequent to disclosure pursuant to this Agreement, is disclosed to
the Recipient by a third party with respect to which the Recipient has no
knowledge that such disclosure by such third party would result in a breach
of an agreement of confidentiality; (d) is independently developed by the
Recipient through parties who have not had, either directly or indirectly,
access to or knowledge of such Proprietary Information; (e) is approved for
disclosure by prior written permission of an authorized signatory of
Discloser; and (f) is obligated to be produced (I) by law, rule or
regulation, (II) by the requirements of any rating agency, stock exchange
or association applicable to the Recipient, (III) under order of a court of
competent jurisdiction, or (IV) pursuant to a similar requirement of a
governmental agency or regulatory body regulating such entity, so long as
to the extent practicable the party required to disclose the information
provides the other party with prior written notice of any required
disclosure pursuant to such law, order or requirement. In addition, and
notwithstanding any other provision of this Agreement to the contrary, a
Recipient may disclose Proprietary Information (y) to a financial
institution or accredited investor (as that term is defined in Rule 501(a)
under the Securities Act of 1933) that is considering providing financing
to the Recipient and which financial institution or accredited investor has
agreed to keep the Proprietary Information confidential in accordance with
an agreement at least as restrictive as this Agreement; and (z) to the
lawyers and accountants for the Recipient.
3. Use. Each party agrees to use the Proprietary Information received from
another party to evaluate the Transaction and thereafter to operate the
assets and business, if any, acquired pursuant to the Transaction. No other
rights, and particularly licenses, trademarks, inventions, copyrights,
patents, or any other intellectual property rights are implied or granted
under this Agreement or by the conveying of Proprietary Information between
the parties. Each party agrees that a Recipient may disclose Proprietary
Information received by it, subject to the confidentiality provisions of
this Agreement, to its Affiliates, and to the lawyers and accountants for
such Recipient. In addition, Sprint Spectrum may disclose Proprietary
Information, subject to the confidentiality provisions of this Agreement,
to any entity (i) for which it is building a wireless network, or (ii) for
which it has an obligation to associate the wireless network of the entity
to the Sprint Spectrum network.
4. Reproduction. Proprietary Information supplied is not to be reproduced
in any form except as required to accomplish the intent of this Agreement.
5. Duty of Care. All Proprietary Information may be disclosed by the
Recipient to only such of the Recipient's employees (and agents who have a
non-disclosure obligation at least as restrictive as this Agreement) who
need to know such information for purposes of this Agreement and to such
third parties as the Discloser has consented to hereunder or by prior
written approval. In addition, the Recipient must provide the same care to
avoid disclosure or unauthorized use of the Proprietary Information as it
provides to protect its own similar proprietary information.
6. Ownership. All Proprietary Information, unless otherwise specified in
writing, (a) remains the property of the Discloser, and (b) must be used by
the Recipient only for the purpose intended. Upon termination of this
Agreement, all copies of written, recorded, graphical or other tangible
Proprietary Information must either be returned to the Discloser, or
destroyed (i) after the Recipient's need for it has expired or (ii) upon
the request of the Discloser. At the request of the Discloser, the
Recipient will furnish a certificate of an officer of the Recipient
certifying that any Proprietary Information not returned to Discloser has
been destroyed.
7. Term. A Recipient may not disclose Proprietary Information to any third
person, except as provided in this Agreement, for a period of three (3)
years after the date of its disclosure to the Recipient (the "Term"). This
Agreement may be terminated at any time during the Term by mutual agreement
of the parties or upon sixty (60) days' written notice to the other
parties; except that early termination of this Agreement will not relieve
the Recipient of its obligations under this Agreement with respect to
Proprietary Information exchanged prior to the effective date of
termination. All of the obligations undertaken by each party as a Recipient
will survive and continue after any termination of this Agreement for the
Term.
8. Right to Disclose. Each party warrants that it has the right to disclose
all Proprietary Information that it will disclose to another party pursuant
to this Agreement, and each party agrees to indemnify and hold harmless the
other from all claims by a third party related to the wrongful disclosure
of such third party's information. Otherwise, neither party makes any
representation or warranty, express or implied, with respect to any
Proprietary Information.
9. Right to Enjoin Disclosure. The parties acknowledge that a Recipient's
unauthorized disclosure or use of Proprietary Information may result in
irreparable harm. Therefore, the parties agree that, in the event of
violation or threatened violation of this Agreement, without limiting any
other rights and remedies of each other, a temporary restraining order
and/or an injunction to enjoin disclosure of Proprietary Information may be
sought against the party who has breached or threatened to breach this
Agreement and the party who has breached or threatened to breach this
Agreement will not raise the defense of an adequate remedy at law.
10. Disclosure to Third Parties. All media releases and public
announcements or disclosures by any party relating to this Agreement, its
subject matter, or the purpose of this Agreement are to be coordinated with
and consented to by the other parties in writing prior to the release or
announcement.
11. No Partnership or Joint Venture Formed. The exchange of any Proprietary
Information between the parties is not intended to be interpreted that the
parties have formed or will form a partnership, joint venture or other
relationship. Any business relationship between the parties, if any, must
be governed by separate agreement.
12. Liability. Except as expressly provided hereunder, no party to this
Agreement shall be responsible or liable for a breach of this Agreement by
any other party hereto.
13. General. (a) This Agreement is governed and construed under the laws of
the State of Missouri and there are no understandings, agreements or
representations, express or implied, not specified herein. (b) For purposes
of this project, this Agreement represents the entire understanding between
the parties, and the terms of this Agreement supersede the terms of any
prior agreements or understandings, written or oral. (c) This Agreement may
not be amended except in a writing signed by the parties. (d) The
provisions of this Agreement are to be considered as severable, and in the
event that any provision is held to be invalid or unenforceable, the
parties intend that the remaining provisions will remain in full force and
effect. (e) Captions in this Agreement are for ease of reference only and
should not be considered in the construction of this Agreement. (f) There
are no third party beneficiaries to this Agreement. (g) Failure by a party
to enforce or exercise any provision, right or option contained in this
Agreement will not be construed as a present or future waiver of such
provision, right or option. (h) THE EXISTENCE OF THIS AGREEMENT AND THE
NATURE OF THE DISCUSSIONS BETWEEN THE PARTIES MAY NOT BE DISCLOSED BY ANY
PARTY WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTIES, EXCEPT TO THE
EXTENT REQUIRED BY LAW, RULE OR REGULATION.
IN WITNESS THEREOF, the parties have executed this Agreement as of the
effective date stated above.
Sprint Spectrum L.P.
[Manager]_________________________
By:_______________________________
By:_______________________________
Name: Name:
Title: Title:
[Potential Buyer] [Lender]
By:_______________________________
By:_______________________________
Name: Name:
Title: Title:
EXHIBIT B
DEFERRED AMOUNT NOTE
February 14, 2001
Kansas City, Missouri
FOR VALUE RECEIVED, ALAMOSA HOLDINGS, LLC, a Delaware limited
liability company, TEXAS TELECOMMUNICATIONS, LP, a Texas limited
partnership ("Texas"), ALAMOSA WISCONSIN LIMITED PARTNERSHIP, a Wisconsin
limited partnership ("Wisconsin"), XXXXXXX WIRELESS COMMUNICATIONS, L.L.C.,
a Missouri limited liability company ("Xxxxxxx"), and WASHINGTON OREGON
WIRELESS LLC, a Delaware limited liability company ("WOW") (collectively,
"Maker"), jointly and severally promise to pay to the order of Sprint
Spectrum L.P., a Delaware limited partnership ("Sprint PCS"), or its
successors and assigns, the principal sum or sums as may be advanced by the
holder hereof from time to time to Maker or on Maker's behalf to CITICORP
USA, INC., a Delaware corporation or its successors and assigns (the
"Administrative Agent") pursuant to Section 6(d) of that certain Consent
and Agreement dated as of February 14, 2000 among the Sprint Parties (as
defined in the Consent) and the Administrative Agent (as amended, the
"Consent"). Such sum or sums, if advanced, shall be advanced from and only
from the eight percent (8%) of the Collected Revenues (as such term is
defined in those certain Management Agreements between, among others, Texas
and Sprint PCS, dated December 23, 1999, Wisconsin and Sprint PCS, dated
December 6, 1999, Xxxxxxx and Sprint PCS, dated June 8, 1998, and WOW and
Sprint PCS, dated January 25, 1999 (each such agreement, as it may be
amended, modified, or supplemented from time to time, a "Management
Agreement"and collectively, the "Alamosa Management Agreements")) retained
by Sprint PCS pursuant to Section 10.1.1 of each of the Alamosa Management
Agreements in an amount as set forth in Section 6(d) of the Consent. Such
advanced sum or sums shall be noted by the holder hereof in its records or,
at its option, on a schedule attached to this note, which records or
schedule shall be rebuttably presumptive evidence of the principal owing
and unpaid on this note. The holder hereof may also note on such records or
schedule the interest due and payable on the principal amount or amounts
remaining unpaid hereunder from time to time from the date hereof until
payment in full. Interest shall be charged on the amounts owed under this
note at a rate equal to the greatest of the then current (i) average
interest rate of Maker's secured debt, (ii) average interest rate of
Maker's unsecured debt, and (iii) Sprint PCS' cost of capital. Interest
shall accrue and accumulate from the date the indebtedness is incurred
(e.g., principal is advanced and expenses are incurred) until all amounts
due hereunder are paid in full.
Payments hereunder shall be due on the first (1st) day of each
calendar month, commencing on the first day of the calendar month following
the date the initial advance is made hereunder. The advances hereunder
shall be payable in consecutive equal monthly installments of principal and
interest, due and payable on the first day of each month, such that all
principal and interest owing hereunder shall be fully paid in twelve (12)
equal monthly payments (provided that the last such payment shall be in the
amount necessary to repay the entire unpaid principal amount hereof,
together with all accrued and unpaid interest hereon). Each time an
additional amount is advanced hereunder, the then current unpaid principal
amount hereof, together with all accrued and unpaid interest hereon, shall
be re-amortized and the installment due dates rolled forward, such that the
entire amount of principal and accrued unpaid interest shall be paid in
full in twelve (12) equal monthly payments. Notwithstanding the foregoing,
if Maker is in default or breach with regard to its obligations to the
Administrative Agent or the Lenders (as defined in the Consent), then the
payments due hereunder shall be deferred and shall not be due or payable
until such default or breach is cured, at which time the entire unpaid
balance of principal and all interest accrued thereon shall be paid in full
in twelve (12) equal monthly payments. Notwithstanding any provision in
this note to the contrary, this note shall mature and principal and
interest shall be payable in full on the earliest to occur of (i) the date
on which a Successor Manager (as such term is defined in the Consent) is
qualified and assumes Maker's rights and obligations under the Alamosa
Management Agreements and related agreements entered into between Maker and
Sprint PCS, (ii) the date on which the Operating Assets (as such term is
defined in each of the Alamosa Management Agreements) are purchased by a
third-party buyer, (iii) the date on which a stock or other equity
acquisition, merger, consolidation or other transaction resulting in the
indirect transfer of the Operating Assets to a third-party buyer is
consummated, or (iv) there is a Change of Control (as such term is defined
in each of the Alamosa Management Agreements). In the event that the
Operating Assets are purchased by a third-party buyer, or a stock or other
equity acquisition, merger, consolidation or other transaction resulting in
the indirect transfer of the Operating Assets to a third-party buyer is
consummated, the obligations of Maker hereunder shall be paid after Maker
pays its obligations to its secured lenders, but before any amounts are
paid to any other creditors, or to Maker or any of its equity holders.
Maker shall have the privilege, without penalty or premium, of
prepaying all or any part of this note at any time. Any prepayment shall be
applied first to unpaid interest accrued hereunder, and then applied to
principal installments in the inverse order of maturity.
This note shall be in default upon the occurrence of any one of the
following events:
(a) If any payment due hereunder is not made within five (5) days of
when it becomes due and payable;
(b) If any Management Agreement is terminated;
(c) If Maker becomes insolvent, howsoever evidenced, or if Maker
fails to pay its debts as they become due; or
(d) If a receiver is appointed for any of the property of Maker or
Maker makes an assignment for the benefit of creditors or a proceeding is
filed by or against Maker under any law relating to bankruptcy, insolvency
or reorganization or under any similar law.
If this note is in default and shall be continuing, then upon and after
such default, so long as such default shall be continuing, the holder
hereof shall have the right, exercisable at such holder's discretion, to
declare the entire unpaid principal amount and all accrued interest due
hereunder immediately due and payable without notice to Maker.
No provision of this note shall be construed to mean that Maker has
paid or contracted to pay, directly or indirectly, under any circumstances
whatsoever, any sum in excess of that which lawfully may be charged or
contracted for under any applicable laws relating to interest. If for any
reason interest in excess of the highest lawful rate is at any time to be
paid hereunder, any such excess shall constitute and shall be treated as a
payment on the principal amount due hereunder and shall operate to reduce
the principal amount due hereunder by such amount (without any prepayment
penalty).
Each payment made hereunder shall be applied first to interest
accrued to the date of such payment and then to the remaining principal
amount due. Each payment made hereunder shall be payable at such place as
the legal holder hereof designates from time to time in writing in lawful
money of the United States of America. If any payment of principal or
interest on this note is due on a Saturday, Sunday or legal holiday under
Missouri law, such payment shall be made on the next succeeding business
day. Maker authorizes and agrees that payments due the holder of this note
under this note may be made by right of setoff.
If the holder of this note exercises a purchase right under the terms
of the Alamosa Management Agreements, as modified by the Consent, such
holder shall be entitled to a credit at the closing of such purchase
against the purchase price in an amount equal to the amount owed under this
note.
If any payment due hereunder, or any portion thereof, is not paid
when due, or if all unpaid principal and accrued interest due hereunder
shall become due and payable by the legal holder's exercise of the
foregoing right to accelerate upon default, then the same, and each of the
same, shall thereafter bear interest from the date of such nonpayment or
exercise, as appropriate, until payment in full at a rate per annum equal
to the current rate per annum plus an additional four percent (4%).
To the full extent permitted by law, Maker and all endorsers,
sureties, guarantors and other persons who may become liable for the
payment hereof severally waive demand, presentment, protest, notice of
dishonor or nonpayment, notice of protest, and any and all lack of
diligence in the enforcement or collection hereof and hereby consent to any
renewals, extensions, or other indulgences, and releases of any of them,
all without notice to any of them.
No delay or omission of the holder of this note to exercise any right
or power hereunder shall impair such right or power or be a waiver of any
default or an acquiescence therein. Any single or partial exercise of any
such right or power shall not preclude any or further exercise of any other
right. No waiver is valid unless in writing signed by the holder of this
note and then only to the extent specifically set forth in such writing.
All remedies hereunder or by law afforded are cumulative and are available
to the holder of this note until this note and other liabilities of the
undersigned hereunder have been paid in full. If this note is placed in the
hands of an attorney for collection, by suit or otherwise, or to enforce
its collection or to protect any security for its payment, Maker shall pay
all costs and expenses thereof together with reasonable attorneys' fees.
This note is binding upon Maker and its successors and inures to the
benefit of the holder hereof and its successors, transferees and assigns.
Maker agrees that any transferee of this note has the rights of a holder in
due course stated in and in accordance with Article 3 of the Uniform
Commercial Code in effect in the State of Missouri. This note is made and
executed under and is governed by and shall be enforced under the internal
laws of Missouri.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Maker has caused this note to be executed and
sealed by its duly authorized officers.
ALAMOSA HOLDINGS, LLC
a Delaware limited liability company
By:
-------------------------------------
Xxxxx X. Xxxxxxxx,
President
TEXAS TELECOMMUNICATIONS LP
a Texas limited partnership
By ALAMOSA DELAWARE GP, L.L.C.
a Delaware limited liability company,
as the sole general partner
By:
---------------------------------
Xxxxx X. Xxxxxxxx
President
ALAMOSA WISCONSIN LIMITED PARTNERSHIP
a Wisconsin limited partnership
By ALAMOSA WISCONSIN GP, L.L.C.
a Delaware limited liability company,
as the sole general partner
By:
---------------------------------
Xxxxx X. Xxxxxxxx
President
XXXXXXX WIRELESS COMMUNICATIONS, LLC
a Missouri limited liability company
By ALAMOSA HOLDINGS, LLC
a Delaware limited liability company,
as the sole equity holder
By:
---------------------------------
Xxxxx X. Xxxxxxxx
President
WASHINGTON OREGON WIRELESS, LLC
a Delaware limited liability company
By ALAMOSA HOLDINGS, LLC
a Delaware limited liability company,
as the sole equity holder
By:
---------------------------------
Xxxxx X. Xxxxxxxx
President
SPRINT SPECTRUM, L.P.
By:
-------------------------------------
Xxxxxx X. Xxxxxx,
Vice President - Affiliations
