AMENDED AND RESTATED CONSENT AND AGREEMENT
(Paribas/UbiquiTel)
This Amended and Restated Consent and Agreement (this "Consent and
Agreement") is entered into as of April 5, 2000, between SPRINT SPECTRUM L.P., a
Delaware limited partnership ("Sprint Spectrum"), SPRINT COMMUNICATIONS COMPANY,
L.P., a Delaware limited partnership ("Sprint Communications"), WIRELESSCO,
L.P., a Delaware limited partnership ("WirelessCo"), XXX COMMUNICATIONS PCS,
L.P., a Delaware limited partnership ("Xxx Communications"), COX PCS LICENSE,
L.L.C., a Delaware limited liability company ("Cox PCS" and together with Sprint
Spectrum, Sprint Communications, WirelessCo, and Xxx Communications the "Sprint
Parties"), and PARIBAS, as administrative agent (together with any successors
thereof in accordance with the Credit Agreement hereinafter described, the
"Agent") for the lenders under that certain Credit Agreement among UBIQUITEL
OPERATING COMPANY, a Delaware corporation (the successor of UbiquiTel LLC, a
Delaware limited liability company) ("Affiliate"), UbiquiTel Inc., a Delaware
corporation (f/k/a UbiquiTel Holdings, Inc.)("Holdings"), the Agent and the
lenders from time to time party thereto (the "Lenders").
Affiliate has succeeded to that certain Sprint PCS Management Agreement
entered into as of October 15, 1998 (as amended by Addendum I, Addendum II,
Addendum III, and Addendum IV and as it may be amended, modified or supplemented
further from time to time, the "Management Agreement") between UbiquiTel LLC, a
Washington limited liability company ("Former UbiquiTel"), and Sprint Spectrum
providing for the design, construction and management of the Service Area
Network (as therein defined). Affiliate has also succeeded to the Sprint PCS
Services Agreement (as it may be amended, modified, or supplemented from time to
time, the "Services Agreement") 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") (the Management Agreement, the Services
Agreement and the License Agreements and all other agreements between 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").
The parties are entering into this Consent and Agreement because Affiliate
and the Agent are entering into the Credit Agreement (defined below). This
Consent and Agreement amends, restates, and supersedes that certain Consent and
Agreement entered into as of December 28, 1999, by and among certain of the
Sprint Parties and the Agent, which was acknowledged by Affiliate and Holdings.
Affiliate has entered into or concurrently herewith is entering into that
certain Credit Agreement dated as of March 31, 2000, with Holdings, the Agent
and the Lenders (such Credit Agreement, as it may be amended, supplemented,
restated, replaced, refinanced or refunded or otherwise modified from time to
time, and shall include, without limitation, any such amendments,
modifications, supplements, deferrals, renewals, extensions, replacements,
refinancings or refundings that increase the aggregate amount of commitments or
borrowings thereunder or add subsidiaries of Affiliate as additional borrowers
or guarantors thereunder, the "Credit Agreement"), to provide financing for a
portion of the costs of the design and construction of the Service Area Network
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 Credit Agreement, interest rate protection
agreements and other hedging agreements are guaranteed by Holdings, the sole
shareholder of Affiliate, and by any existing and future subsidiaries of
Holdings (other than Affiliate and UbiquiTel Leasing Company) (collectively, the
"Guarantors") pursuant to that certain Guaranty executed by the Guarantors in
favor of the Agent (the "Guarantors' Guaranty").
As a condition to the availability of credit to Affiliate under the Credit
Agreement, the Agent and the Lenders have required the execution and delivery of
this Consent and Agreement by the Sprint Parties and have required that
Affiliate and the Guarantors acknowledge, consent and agree to all terms and
provisions of this Consent and Agreement.
WirelessCo and Cox PCS hold, directly or indirectly, certain of the
licenses for the Service Areas managed by Affiliate as contemplated in the
Management Agreement. As used in this Consent and Agreement, the term "Sprint
PCS" shall refer in each particular instance or application to WirelessCo and/or
Cox PCS, based on which of the two entities 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 Agreement unless otherwise provided
in this Consent and Agreement; provided, that the terms "Default", "Event of
Default" and "Obligations" shall have the meanings ascribed to them in the
Credit Agreement.
Accordingly, each Sprint Party and the 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,
each of Affiliate, Holdings and each subsidiary of Holdings (other than
UbiquiTel Leasing Company) have granted or will grant to the Agent, for the
benefit of the Lenders (a) 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, (b) a first priority security interest in and pledge of all stock and
other equity interests in Affiliate and its subsidiaries (the "Pledged Equity"),
and (c) a first priority
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security interest in and lien upon the rights of Affiliate, Holdings and its
subsidiaries 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 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". Each
Sprint Party (i) acknowledges notice of the Loan Documents, (ii) consents to the
granting of the Security Interests in the Collateral to the 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 are
valid, enforceable and duly perfected first priority security interests and
liens in and to the Collateral, (B) neither it nor any subsidiary of Sprint
Corporation will argue that any such Security Interest is subject to avoidance,
limitation or subordination under any legal or equitable theory or cause of
action, and (C) so long as the Management Agreement is in effect, it will not
sell, transfer or assign all or part of the Licenses that 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 that
Affiliate has the right to use in accordance with a transaction allowed under
Section 17.15.5 of the Management Agreement and in accordance with Section 18
herein, 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 as such terms relate to
such Licenses.
Each Sprint Party acknowledges and agrees that (i) Sections 17.15.1 and
17.15.2 of the Management Agreement do not apply to the assignment of
Affiliate's rights under the Sprint Agreements to the 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 Management Agreement
shall not apply to any Change of Control of Affiliate in connection with the
exercise by the Agent of any of its rights or remedies under the Loan Documents,
including without limitation in connection with the sale of the equity interests
of Affiliate to any Person or to any other Change of Control of Affiliate;
provided, however, Section 17.15.3 of the Management Agreement shall apply to
any such transaction if such transaction is not with the 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 Agent or the
Lenders is hereby consented to by the Sprint Parties; provided, that any
subsequent assignment by the Agent or the Lenders shall be in accordance with
the terms of this Consent and Agreement.
SECTION 2. Payments. Upon receipt of the Agent's written instructions,
each Sprint Party agrees to make all payments (if any) to be made by it under
the Sprint Agreements, subject to its rights of setoff or recoupment with
respect to such payments as permitted under Section 10.6 of the Management
Agreement, to Affiliate directly to the Agent, or otherwise as the Agent shall
direct; provided, that during the period that such Sprint Party is making such
payments directly to the Agent or its designee pursuant to this Section 2, such
Sprint Party's setoff and recoupment rights under such Section 10.6 shall not be
limited to undisputed amounts. The Agent hereby agrees that the Agent will not
give any such written instructions for it to receive such payments directly from
a
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Sprint Party unless an Event of Default has occurred under the Credit Agreement
and is continuing. Such written instructions to make payments directly to the
Agent shall be effective only so long as an Event of Default is continuing, and
the 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 Agent shall fully satisfy any obligation of such Sprint Party
to make payments to Affiliate under the 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 Agent agrees to provide to Sprint Spectrum
a copy of any written notice that Agent sends to Affiliate, promptly after
sending such notice, that a Default or an Event of Default has occurred and is
continuing, and Sprint Spectrum agrees to provide to the Agent a copy of any
written notice that Sprint Spectrum sends to 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. Sprint Spectrum
acknowledges that the Agent has informed it that an Event of Termination
constitutes an Event of Default under the Loan Documents, and Sprint Spectrum
further acknowledges that the Management Agreement does not prohibit Affiliate
from curing such an Event of Default.
SECTION 4. Event of Default without a Management Agreement Breach.
(a) Affiliate Remains as Manager or Interim Manager Appointed. Upon
and during the continuation of an Event of Default when no Management
Agreement Breach as to which Sprint Spectrum has given the Agent notice
exists on the original date of occurrence of such Event of Default, the
Agent may, by prior written notice to Sprint Spectrum, (i) allow Affiliate
to continue to act as the Manager under the Sprint Agreements, (ii)
appoint Sprint Spectrum to act as "Interim Manager" under the Sprint
Agreements, or (iii) appoint a Person other than Sprint Spectrum to act as
Interim Manager under the Sprint Agreements. If the Agent initially allows
Affiliate to continue to act as the Manager under the Sprint Agreements,
the Agent may later, during a continuation of an Event of Default, remove
Affiliate as Manager 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 Agent appoints Sprint Spectrum as Interim Manager, 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 Sprint Agreements. The Agent shall accept Sprint
Spectrum and any Sprint Spectrum Designee that is then acting as an Other
Manager (other than Affiliate) to act as Interim Manager under the Sprint
Agreements. Any Sprint Spectrum Designee that is not an Other Manager must
be acceptable to the Agent, which acceptance will not be unreasonably
withheld. If, within 30 days after the 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 Agent
shall have the
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right to appoint an Agent Designee as Interim Manager in accordance with
Section 4(c). At the discretion of the 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 Sprint Agreements, Sprint Spectrum or the Sprint
Spectrum Designee will agree, at the written request of the Agent, to
serve as Interim Manager for up to six months from such expiration date
until the 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 Affiliate 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
extended, then the Agent agrees that Sprint Spectrum or the Sprint
Spectrum Designee's right to be reimbursed by Affiliate promptly for all
amounts previously expended by Sprint Spectrum or the Sprint Spectrum
Designee under Section 11.6.3 of the Management Agreement (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
or the Sprint Spectrum Designee's right to be reimbursed by Affiliate for
any expenses it incurs pursuant to its rights under Section 11.6.3 of the
Management Agreement 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 Management
Agreement that exceed in an aggregate amount 5% of Affiliate's
shareholder's or member's equity or capital account plus Affiliate's
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 Affiliate's
books (the "Reimbursement Limit") shall remain subordinated to the
Obligations as provided in Section 9 of this Consent and Agreement.
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 Agent of written notice
that Sprint Spectrum or the Sprint Spectrum Designee needs to expend
amounts under Section 11.6.3 of the 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.
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Upon the termination or expiration of the term of Sprint Spectrum or
the Sprint Spectrum Designee as Interim Manager, the Agent shall have the
right to appoint a successor Interim Manager in accordance with Section
4(c).
(c) Agent Designee as Interim Manager. If the Agent elects to
appoint a Person other than Sprint Spectrum to act as Interim Manager
under the Sprint Agreements (an "Agent Designee") as permitted under
Sections 4(a)(iii) and 4(b), such Agent Designee must (i) agree to serve
as Interim Manager for six months unless terminated earlier by Sprint
Spectrum because of a material breach by the Agent Designee of the terms
of the Sprint Agreements that is not timely cured or by the 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
Sprint Agreements but will not be required to assume the existing
liabilities of Affiliate. In the case of a proposed Agent Designee, Sprint
Spectrum shall provide to the Agent, within 10 Business Days after the
request therefor, a detailed description of all information reasonably
requested by Sprint Spectrum to enable Sprint Spectrum to determine if a
proposed Agent Designee satisfies the Successor Manager Requirements.
Sprint Spectrum agrees to inform Agent within 20 days after it receives
such information respecting such proposed Agent Designee from the Agent
whether such designee satisfies the Successor Manager Requirements. If
Sprint Spectrum does not so inform the Agent within such 20-day period,
then Sprint Spectrum 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 Management Agreement to become a Successor Manager, unless the Agent
Designee materially breaches the terms of a Sprint Agreement while acting
as Interim Manager or no longer meets the Successor Manager Requirements.
The Agent Designee may continue to serve as Interim Manager after the
initial six-month period at the Agent's discretion, so long as the Agent
Designee continues to satisfy the Successor Manager Requirements and it
does not materially breach the terms of the Sprint Agreements. If the
Agent Designee materially breaches any Sprint Agreement while acting as
Interim Manager, then Sprint Spectrum and the Agent have the rights set
forth in Section 5; provided, that Sprint Spectrum may not allow Affiliate
to act as the Manager of the Sprint Agreements without the 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 (so long as
at such time an Event of Default not created by a Management Agreement
Breach as to which Agent has given Sprint Spectrum notice is not in
existence), Sprint Spectrum may by prior written notice to Agent (i) allow
Affiliate to continue to act as the Manager under the Sprint Agreements if
approved by the Agent, (ii) act as Interim Manager under the Sprint
Agreements, or (iii) appoint a Sprint Spectrum Designee to act as Interim
Manager under the Sprint Agreements as provided in paragraph (b) below. If
Sprint Spectrum initially allows Affiliate to continue
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to act as the Manager under the Sprint Agreements, Sprint Spectrum may
later remove Affiliate as Manager and take the action described above in
clauses (ii) and (iii). The Agent shall have no right to appoint an
Interim Manager when an Event of Default is caused by a Management
Agreement Breach (unless an Event of Default not created by a Management
Agreement Breach is in existence), unless Sprint Spectrum elects not to
act as Interim Manager or elects not to appoint a Sprint Spectrum
Designee.
(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 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 Agent
shall accept Sprint Spectrum and any Sprint Spectrum Designee that is then
acting as an Other Manager (other than Affiliate) to act as Interim
Manager under the Sprint Agreements. Any Sprint Spectrum Designee that is
not then acting as an Other Manager must be acceptable to the Agent, which
acceptance will not be unreasonably withheld.
Upon the expiration of its initial six-month period as Interim
Manager under the Sprint Agreements, Sprint Spectrum or the Sprint
Spectrum Designee will agree to serve as Interim Manager for the Extension
Period until the 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 Agent agrees that Sprint Spectrum
or the Sprint Spectrum Designee's right to be reimbursed by Affiliate
promptly for all amounts previously expended by Sprint Spectrum or the
Sprint Spectrum Designee under Section 11.6.3 of the Management Agreement
(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 or the Sprint Spectrum Designee's right to be reimbursed by
Affiliate for any expenses it incurs pursuant to its rights under Section
11.6.3 of the Management Agreement 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 or the Sprint Spectrum Designee's right to
be reimbursed for amounts expended under Section 11.6.3 of the Management
Agreement in an aggregate amount that exceed the Reimbursement Limit shall
remain subordinated to the Obligations as provided in Section 9 of this
Consent and Agreement. 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
Agent of written notice that Sprint Spectrum or the Sprint Spectrum
Designee needs to expend amounts under Section 11.6.3 of the 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
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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 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) 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 Spectrum gives the 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 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 Agent may appoint an Agent
Designee to act as Interim Manager. Such Agent Designee must (i) agree to
serve as Interim Manager for six months unless terminated earlier by
Sprint Spectrum because of a material breach by the Agent of the terms of
the Sprint Agreements or by the Agent in its discretion, (ii) meet the
applicable Successor Manager Requirements, and (iii) agree to comply with
the terms of the Sprint Agreements. In the case of a proposed Agent
Designee, Sprint Spectrum shall provide to the Agent, within 10 Business
Days after the request therefor, a detailed description of all information
reasonably requested by Sprint Spectrum to enable Sprint Spectrum to
determine if a proposed Agent Designee satisfies the Successor Manager
Requirements. Sprint Spectrum agrees to inform Agent within 20 days after
it receives such information respecting such proposed Agent Designee from
the Agent whether such designee satisfies the Successor Manager
Requirements. If Sprint Spectrum does not so inform the Agent within such
20-day period, then Sprint Spectrum 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 Management Agreement to
become a Successor Manager, unless the Agent Designee materially breaches
the terms of a Sprint Agreement while acting as Interim Manager or no
longer meets the Successor Manager Requirements. The Agent Designee may
continue to serve as Interim Manager after the initial six-month period at
the Agent's discretion, so long as the Agent Designee continues to satisfy
the Successor Manager Requirements and it does not materially breach the
terms of the Sprint Agreements. If the Agent Designee materially breaches
any Sprint Agreement while acting as Interim Manager, then Sprint Spectrum
and the Agent have the rights set forth in Section 5; provided, that
Sprint Spectrum may not allow Affiliate to act as the Manager of the
Sprint Agreements without the Agent's consent.
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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 Agent shall give written notice thereof to Sprint Spectrum.
Upon receipt of notice of Acceleration, Sprint Spectrum shall have the
right, to which right Affiliate, by acknowledging this Consent and
Agreement, expressly agrees, to purchase the Operating Assets from
Affiliate for an amount equal to the greater of (i) 72% of the Entire
Business Value (as defined in the Management Agreement) of Affiliate,
valued in accordance with the procedure set forth in Section 11.7 of the
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 Spectrum shall, within 60 days of receipt of
notice of Acceleration, give Affiliate and the Agent notice of its intent
to exercise the purchase right. In the event Sprint Spectrum gives the
Agent written notice of its intent to purchase the Operating Assets, the
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
Agent in its discretion to close the purchase of the Operating Assets) or
(ii) receipt by Agent and Affiliate from Sprint Spectrum of written notice
that Sprint Spectrum has determined not to proceed with the closing of the
purchase of the Operating Assets for any reason. If after the 120-day
period after the Acceleration Date Affiliate receives any purchase offer
for the Operating Assets or the Pledged Equity that is confirmed in
writing by Affiliate to be acceptable to Affiliate, Sprint Spectrum shall
have the right subject to the consent of the Agent, to purchase the
Operating Assets or the Pledged Equity, as the case may be, on terms and
conditions at least as favorable to Affiliate as the terms and conditions
proposed in such offer so long as within 14 Business Days after Sprint
Spectrum's receipt of such other offer Sprint Spectrum offers to purchase
the Operating Assets or the Pledged Equity and so long as the conditions
of Sprint Spectrum's offer and the amount of time it will take Sprint
Spectrum to effect such purchase is acceptable to Affiliate and Agent. Any
such offer shall be confirmed in writing by the third party offeror. In
the event Sprint Spectrum exercises its rights under this Section 6(a),
(i) Affiliate shall sell the Operating Assets or the Pledged Equity to
Sprint Spectrum, (ii) the 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
Spectrum shall make all payments to be made under this Section 6(a) to
Agent for its application against the Obligations (as defined below); any
additional amounts (i.e., if 72% of the Entire Business Value is greater
than the Obligations) shall be paid to Affiliate 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
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Sprint Parties under Section 11.6.1 of the Management Agreement. If Sprint
Spectrum purchases the Operating Assets or the Pledged Equity as permitted
under this Section 6(a), and the Net Obligations have been paid in full
and the Credit Agreement is terminated or assigned to a Sprint Party, the
Agent and the Guarantors will release or assign their interests (if any)
in the Collateral, the Loan Documents and the Guarantors' Guaranty as
described below in Section 6(e).
(b) Sale of Operating Assets to Third Parties. If the Sprint Parties
do not purchase the Operating Assets from Affiliate 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 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
Affiliate, at the discretion of the Agent, to a person that satisfies the
Successor Manager Requirements. Sprint Spectrum shall provide to the
Agent, with a copy to Affiliate, within 10 Business Days after the request
therefor, a detailed description of all information reasonably requested
by Sprint Spectrum to enable Sprint Spectrum to determine if a proposed
buyer satisfies the Successor Manager Requirements. Sprint Spectrum agrees
to inform the Agent and Affiliate within 20 days after it receives such
information respecting such proposed buyer from the Agent whether such
designee satisfies the Successor Manager Requirements. If Sprint Spectrum
does not so inform the Agent within such 20-day period, then Sprint
Spectrum 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 Spectrum arising out of 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 Spectrum agrees, with respect to any
past failure of 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 Affiliate had under the Sprint Agreements,
with the performance period commencing on the date on which the buyer
becomes a Successor Manager. Sprint Spectrum shall permit the performance
period set forth in the Management Agreement to be extended for such
period of time that Sprint Spectrum 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 Agent or the Lenders of their
rights and remedies under the
10
Loan Agreements or by Affiliate, at the discretion of the 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
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 Affiliate, Sprint Spectrum or the 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 business of Affiliate 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 the Operating Assets, it will purchase such spectrum
from Affiliate and Sprint PCS as follows. The buyer will purchase from
Affiliate or its Related Parties any licenses that Affiliate or such
Related Parties own (the "Affiliate's Licenses"). If the 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 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 the Operating Assets. If
the buyer does not meet the FCC requirements to buy the 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
the Affiliate's spectrum, the buyer may continue to use Sprint PCS's
11
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) 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 the
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
12
the customers of a national account and any resellers that have entered
into a resale agreement with Sprint Spectrum, Sprint Spectrum 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 Spectrum shall each agree to provide roaming services
to the other (in the case of Sprint Spectrum, 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 Service Area covered by the Disaggregated License) pursuant
to a roaming agreement to be entered into between buyer and Sprint
Spectrum and to be mutually agreed upon so long as such agreement is based
on Sprint PCS's then standard roaming agreement used by Sprint Spectrum 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 Spectrum 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 Spectrum's network, the buyer
shall, to the extent required by law, provide resale to Sprint Spectrum in
the Service 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 Spectrum 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 the Management Agreement, Sprint Spectrum 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
Spectrum shall retain only one half of the Retained Amount, and the
remaining one half of the Retained Amount shall be advanced to Affiliate
(or, if so directed by the Agent pursuant to Section 2 hereof, to the
Agent) at the time the weekly fee provided under Section 10.1.1 of the
Management Agreement is paid; provided, that after the first anniversary
of the Acceleration Date, Sprint Spectrum shall retain the entire Retained
Amount if Sprint Spectrum is not serving as the Interim Manager.
(ii) The portion of the Retained Amount advanced to Affiliate (or,
if so directed by the Agent pursuant to Section 2 hereof, to the Agent)
(the "Deferred Amount") shall be evidenced by a promissory note executed
by Affiliate contemporaneously with this Consent and Agreement in the form
of Exhibit B hereto (the "Deferred Amount Note").
13
(A) Amounts will be drawn on the Deferred Amount Note each
time Sprint Spectrum advances a Deferred Amount to Affiliate or the
Agent.
(B) The Deferred Amount Note will bear interest at a rate
equal to the greatest of (I) the average interest rate of
Affiliate's secured debt, (II) the average rate of Affiliate's
unsecured debt, and (III) Sprint PCS's 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
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 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 are sold to a third party buyer or
an Indirect Transfer is consummated, the obligations of Affiliate under
the Deferred Amount Note shall be subordinate to the Affiliate'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 Spectrum is not
serving as the Interim Manager, Sprint Spectrum will again retain the full
Retained Amount.
(e) Payment of Obligations; Release and Assignment of Rights. If
Sprint Spectrum purchases the Operating Assets 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 is terminated or assigned to a
Sprint Party: (i) the Guarantors will have no right to any amounts paid by
Sprint Spectrum 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 Affiliate); (ii) the Agent will, at the election of Sprint
Spectrum, either release or assign to Sprint Spectrum, all Security
Interests in the Collateral and release or assign, all rights related to
the Loan Documents and the Guarantors' Guaranty and all payments under the
Loan Documents and the Guarantors' Guaranty; and (iii) the Guarantors
will, at the election of Sprint Spectrum, release or assign to Sprint
Spectrum, any and all rights they have against the Collateral or arising
out of any payment to the Agent or any Sprint Party with respect to the
Loan Documents or the Guarantors' Guaranty.
14
SECTION 7. No Limits on Remedies. Nothing contained in this Consent and
Agreement shall limit any rights of the 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 Agent or the Lenders may have under
the Loan Documents or applicable law. The 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 Spectrum 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
Spectrum pays under the Management Agreement, and will be in addition to the
fees it receives under the Services Agreement. Sprint Spectrum shall collect
such management fee by setoff against the fees and any other amounts payable to
Affiliate under the Sprint Agreements. The Interim Manager will be required to
operate the Service Area Network in accordance with the terms of the 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
Affiliate.
SECTION 9. Rights to Cure. Neither the provisions of this Consent and
Agreement nor any action of either Agent or Sprint Spectrum shall require either
Agent, any Lender or Sprint Spectrum to cure any default of Affiliate under the
Sprint Agreements or to perform under 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 Spectrum may exercise its rights under Section 11.6.3 of
the Management Agreement upon an Event of Termination, whether such situation
arises while Affiliate, Sprint Spectrum, an 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 Spectrum shall not be permitted to deduct or setoff from its
payments to 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 Spectrum 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 Spectrum has designated a third party to
take action under Section 11.6.3 of the Management Agreement, before taking any
such action such third party shall enter into an agreement with Agent providing
that such third party agrees to the provisions of this Section 9 as if it were a
party hereto.
15
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 Spectrum shall not be entitled to exercise any other remedies
under the Sprint Agreements, including, without limitation, the remedy of
terminating the 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 Management Agreement (subject to
Sprint Spectrum's rights of setoff or recoupment with respect to such payments
as permitted under Sections 2, 4(b) and 5(b) 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 Management Agreement, in no event shall any Person other than Affiliate or a
Successor Manager be a manager or operator for Sprint Spectrum with respect to
the Service Area and neither Sprint Spectrum nor any of its Related Parties
shall own, operate, build or manage another wireless mobility communications
network in the Service Area, except to the extent provided in Sections 2.3(a),
(b) or (c) of the Management Agreement and except to the extent that the Sprint
Agreements are terminated in accordance with Section 6(b)(ii)(A) of this
Agreement. The Agent acknowledges and agrees that Sprint Spectrum shall also
have the right to cure an Event of Default or to assist Affiliate in curing an
Event of Default but only to the extent Affiliate has the right to so cure under
the Loan Documents, as applicable (it being understood that the act of Sprint
Spectrum 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 Spectrum's providing Affiliate the funds necessary to operate
or meet certain financial covenants in the Loan Documents. The Agent shall have
the right to cure any Management Agreement Breach.
SECTION 10. Sprint Spectrum'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
Affiliate, Sprint Spectrum shall have the right to purchase the Obligations
under, and as defined in, the Credit Agreement, by repaying the Net Obligations
in full in cash. In the event that Sprint Spectrum purchases the Obligations
within 60 days immediately following the earlier of (i) the Acceleration Date
and (ii) the date of the filing of a bankruptcy petition by or with respect to
Affiliate, Sprint Spectrum 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 Net 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 Affiliate to the Lenders.
(b) In the event that the Agent acquires the Operating Assets or
takes title to the Pledged Equity, Sprint Spectrum shall have the right to
purchase the Operating Assets or the Pledged Equity from the Agent during the
limited period of time provided in and otherwise in accordance with this Section
10(b) by paying to the Agent in cash an amount equal to the sum of the aggregate
amount paid (by credit against the Obligations or otherwise) by the Agent or the
Lenders for the Operating Assets or the Pledged Equity as the case may be, plus
the aggregate amount of any
16
remaining unpaid Obligations. Agent shall give Sprint Spectrum notice of any
acquisition of the Operating Assets or the Pledged Equity by the Agent promptly
following the date of final consummation of such acquisition (the "Acquisition
Notice"). Sprint Spectrum shall, within 60 days of receipt of a valid
Acquisition Notice, give the Agent (and Affiliate, 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 Spectrum gives the Agent written notice
of its intent to purchase the Operating Assets or the Pledged Equity, the Agent
agrees that it shall provide Sprint Spectrum the right to purchase the Operating
Assets or the Pledged Equity as the case may be until the earlier to occur of
(i) expiration of the period consisting of 120 days after Sprint Spectrum's
receipt of a valid Acquisition Notice (or such later date that shall be provided
for in the purchase agreement and acceptable to the Agent in its sole discretion
to close the purchase of the Operating Assets or the Pledged Equity) or (ii)
receipt by Agent from Sprint Spectrum of written notice that Sprint Spectrum has
determined not to proceed with the closing of the purchase of the Operating
Assets or the Pledged Equity. If Sprint Spectrum at any time purchases the
Operating Assets or the Pledged Equity as permitted under this Section 10, the
Agent and the Guarantors will release or assign their interests in the
Collateral, the Loan Documents and the Guarantors' Guaranty as described in
Section 6(e). Notwithstanding the foregoing, in the event that a bankruptcy
petition is filed by or with respect to Affiliate, Sprint Spectrum shall again
have the right to purchase the Operating Assets or the Pledged Equity from the
Agent by repaying the Obligations in full in cash, by giving the Agent notice of
its intent to exercise such purchase right no later than 60 days following the
date of filing of such bankruptcy petition.
(c) If at any time during the period described in Section 10(a) or
10(b) above or thereafter the Agent receives any purchase offer for the
Operating Assets or the Pledged Equity or the Obligations, as applicable, that
is acceptable to the Agent, the Agent shall exercise reasonable efforts to
obtain the consent of the offeror to deliver a copy of such offer to Sprint
Spectrum and Sprint Spectrum 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 Agent as the terms and conditions
proposed in such offer so long as within 14 Business Days after Sprint
Spectrum's receipt of such other offer Sprint Spectrum offers to purchase the
Operating Assets, the Pledged Equity or the Obligations, as applicable, and so
long as the conditions of Sprint Spectrum's offer and the amount of time it will
take Sprint Spectrum to effect such purchase is acceptable to the Agent and the
Lenders.
(d) If Sprint Spectrum at any time purchases the entirety of the
Obligations as provided in this Section 10, the Agent shall assign and transfer
or cause the Lenders to assign and transfer to Sprint Spectrum 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 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
Spectrum purchases less than all the Obligations (as permitted in the second
sentence of Section 10(a) above), then the Agent shall assign and transfer or
cause the Lenders to assign and transfer to Sprint Spectrum all Loan Document
Rights, except that if Sprint Spectrum receives payment in full of all
Obligations due under the Loan
17
Documents (including the amount it did not pay the Agent, as permitted in the
second sentence of Section 10(a) above), it shall pay such amount to the Agent
unless the Agent has already received payment of such amount. If Sprint Spectrum
at any time purchases the entirety or less than all of the Obligations, the
Guarantors will release any and all rights, if any, they have against the
Collateral or arising out of any payment to the Agent or any Sprint Party with
respect to the Loan Documents or the Guarantors' Guaranty.
SECTION 11. Foreclosure. Upon the Agent or any Lender or any other Person
that meets the Successor Manager Requirements acquiring the Operating Assets and
the Sprint Agreements, then such Person shall be entitled to exercise any and
all rights of Affiliate under the Sprint Agreements in accordance with the terms
of the Sprint Agreements and each Sprint Party will thereupon comply in all
respects with such exercise by such Person and perform its obligations under the
Sprint Agreements and this Consent and Agreement for the benefit of such Person.
Each Sprint Party agrees that the 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 to any buyer or transferee thereof and, in the event the
buyer wishes to become a party to the Sprint Agreements and such buyer satisfies
the Successor Manager Requirements, such buyer shall be bound by the 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 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 Spectrum agrees, with respect to any
past failure of 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 Affiliate had under the Sprint Agreements, with the performance
period commencing on the date on which the buyer becomes a Successor Manager.
Sprint Spectrum shall permit the performance period set forth in the Management
Agreement to be extended for such period of time that Sprint Spectrum believes
is reasonable to allow Successor Manager to perform such unperformed
obligations.
SECTION 12. Trademarks and Service Marks. In the event the Agent
forecloses on its security interest in the License Agreements and transfers the
License Agreements to a Person who does not meet the Successor Manager
Requirements, then Sprint Spectrum shall have the right to terminate the License
Agreements and cause the Agent to release its security interest in the 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
18
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 Spectrum 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 Affiliate.
The 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 Spectrum agrees that it will not
exercise its right under the Management Agreement to purchase the Operating
Assets or to sell the Disaggregated License to 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 Spectrum 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
Spectrum 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 Affiliate under any
agreement with Sprint Spectrum 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 Spectrum agrees
that it shall always maintain the ability to sell the Disaggregated License in
accordance with this Consent and Agreement. Sprint Spectrum shall own at least
10 MHZ of Spectrum in the 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 Spectrum 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 Management
Agreement. Sprint Spectrum acknowledges that the financing provided and to be
provided pursuant to the Loan Documents, the stock issued or to be issued by
Holdings to the purchasers named therein pursuant
19
to that certain Series A Preferred Stock Purchase Agreement, dated November 23,
1999, by and among Holdings, the Xxxxxx Group, Inc., Xxxxxx X. Xxxxxx, Xxxx X.
Judge, Xxxxx Xxxxxxx, US Bancorp and the purchasers named therein, and the
senior subordinated notes to be issued under and pursuant to the terms and
conditions set forth in that certain Purchase Agreement dated December 28, 1999,
among Affiliate, Holdings and BET Asociates LP, that certain Preferred Stock
Purchase Agreement dated as of February 16, 2000, between UbiquiTel Inc. and DLJ
Merchant Banking Partners II, L.P., that certain Commitment Letter dated
February 24, 2000, among DLJ Bridge Finance, Inc., UbiquiTel Inc. and Affiliate,
and that certain Fee Letter dated February 24, 2000, among DLJ Bridge Finance,
Inc., UbiquiTel Inc. and Affiliate, complies with Section 1.7 of the Management
Agreement, as amended by Addendum II and Addendum IV to the Management Agreement
("Section 1.7"), and that Section 11.3.6 of the Management Agreement shall no
longer be applicable with respect to all such financing. Notwithstanding
anything to the contrary contained in Section 12.2 of the Management Agreement,
the 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. Agent and Eligible Assignees. The 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 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 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
20
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 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); (e) on the date the
Management Agreement was executed Sprint Spectrum owned, and on the date hereof
Sprint Spectrum owns, 10 MHZ or more of Spectrum in the Service Area; and (f)
the only existing agreements or arrangements between Affiliate, on the one hand,
and Sprint Corporation or any of its subsidiaries, on the other hand, are the
Management Agreement, the Services Agreement and the License Agreements.
SECTION 17. Agent Representations. The Agent represents and warrants to
Sprint Spectrum, as of the date of this Consent and Agreement (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 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 Agent, MeesPierson Capital Corp., PNC Bank National Association, and
Westdeutsche Landesbank Girozentrale - New York Branch; (d) to the knowledge of
the Agent, no Event of Default has occurred and is continuing; and (e) Agent
will require the execution and delivery of the Guarantors' Guaranty to the
parties thereto on or prior to the initial borrowing date.
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 the Sprint PCS Network
is sold in accordance with the Management Agreement, the buyer thereof will
assume the obligations of the Sprint Parties hereunder and under all the other
Sprint Agreements other than the Sprint Trademark and Service Xxxx License
Agreement; provided, however, the buyer of the Sprint PCS Network shall enter
into an agreement with Affiliate on substantially the same terms as the 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 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.
21
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 Spectrum, the Agent and Affiliate, 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
Spectrum, the Agent and Affiliate. The 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; provided, however, that no
consent of Affiliate shall be necessary for any amendment or modification to
this Consent and Agreement made pursuant to and in accordance with Section 25
hereof.
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 Agent, to it at:
Paribas
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
22
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxx Xxxxxxxxx
with a copy to:
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxx Xxxxx
(c) if to Affiliate, to it at:
UbiquiTel Operating Company
0 Xxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
With a copy to:
Xxxxxxxxx Traurig
0000 Xxxxxx Xxxx., Xxxxx 0000
Xxxxxx Xxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxx Xxxxx
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.
23
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 is terminated or assigned
to a Sprint Party ; and (ii) the 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 an initial 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 initial pops in the Service Area
of the Other Manager exceed 5 million, then Sprint PCS agrees to give the Agent
the right to so amend this Consent and Agreement, subject to the provisions of
clauses (a), (b) and (c) below. This right does not apply in connection with (i)
a new, amended, modified or existing loan to an Other Manager where the initial
pops in the Service Area did not exceed 5 million, but expansion of or growth in
the Service Area caused the pops to exceed 5 million; (ii) a new, amended or
modified loan to an Other Manager where the initial pops in the Service Area did
exceed 5 million pops but the loan is not the initial loan; or (iii) Agent's
extension of additional credit to Affiliate or Agent's amendment or modification
of the Loan Documents.
Sprint PCS agrees to give the Agent written notice of such modifications
and amendments to the form of such Consents and Agreements and, at the request
of 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
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 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 Affiliate,
such amendment shall not be made without the prior written consent of Borrower
and Affiliate (although the Borrower's and Affiliate's withholding of such
consent will result in none of the changes being made to this Consent and
Agreement because of the requirements of clause (b) above).
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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, Pledged Equity or Obligations; (iii) any change in
the Affiliate's, 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 Affiliate; (v) any material change in the flow of revenues between Sprint
Spectrum and 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.]
25
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:
----------------------------------------
Xxxxxxx X. Xxxxxxxxx
Senior Vice President and Chief Business
Development Officer - Sprint PCS
WIRELESSCO, L.P.
By:
----------------------------------------
Xxxxxxx X. Xxxxxxxxx
Senior Vice President and Chief Business
Development Officer - Sprint PCS
XXX COMMUNICATIONS PCS, L.P.
By:
----------------------------------------
Xxxxxxx X. Xxxxxxxxx
Senior Vice President and Chief Business
Development Officer - Sprint PCS
XXX PCS LICENSE, L.L.C.
By:
----------------------------------------
Xxxxxxx X. Xxxxxxxxx
Senior Vice President and Chief Business
Development Officer - Sprint PCS
SPRINT COMMUNICATIONS COMPANY, L.P.
By:
----------------------------------------
Xxx X. Xxxxxx
Vice President - Law
PARIBAS
26
for itself and as Agent
By:
----------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
27
Acknowledgment, Consent and Agreement of Affiliate
The undersigned Affiliate (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 Affiliate, its assets or its rights under the
Management Agreement. Without limiting the generality of the foregoing: (i)
Affiliate acknowledges and agrees that 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 the Service Area Network or its value and (ii)
Affiliate acknowledges and agrees that in the event of the sale of the
Collateral by the 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 Agent.
UBIQUITEL OPERATING COMPANY
By:
----------------------------------------
Name:
Title:
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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 Management Agreement) pursuant to which Sprint PCS may purchase the
Operating Assets under Sections 6 and 10 hereof, and as they require Affiliate
and its Related Parties to sell 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 Affiliate and its
Related Parties to comply with the terms and provisions of this Consent and
Agreement.
UBIQUITEL INC.
By:
----------------------------------------
29
