EXHIBIT 10.11
AMENDED AND RESTATED CONSENT AND AGREEMENT
(Louisiana Unwired, Texas Unwired and Georgia PCS)
This Amended and Restated Consent and Agreement (this "Consent and
Agreement") is entered into as of March 8, 2002, 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"), WIRELESSCO, L.P., a Delaware
limited partnership ("WirelessCo" and together with Sprint Spectrum, SprintCom
and Sprint Communications, the "Sprint Parties"), and COBANK, ACB, as
administrative agent (together with any successors thereof in accordance with
the Amended and Restated Credit Agreement hereinafter described, the
"Administrative Agent") for the lenders under that certain Amended and Restated
Credit Agreement among US UNWIRED, INC. (the "Parent"), the Administrative Agent
and the lenders from time to time party thereto (the "Lenders") hereinafter
described. Parent is the 100% owner of Louisiana Unwired, L.L.C. ("Louisiana
Unwired"), which in turn is, together with Parent, the 100% owner of Texas
Unwired, a Louisiana general partnership ("Texas Unwired"), and is the 100%
owner of Georgia PCS Management, L.L.C. ("Georgia PCS Management"), who in turn
is the 100% owner of Georgia PCS Leasing, LLC ("Georgia PCS Leasing", and
together with Georgia PCS Management, "Georgia PCS", and together with Louisiana
Unwired and Texas Unwired, the "Affiliates" and, each, an "Affiliate"). This
Consent and Agreement is intended to amend and restate that certain Consent and
Agreement dated as of October 26, 1999 by and between the Sprint Parties and the
Administrative Agent. This Consent and Agreement shall be effective upon the
consummation of the acquisition by Parent of Georgia PCS.
Louisiana Unwired has entered into two Sprint PCS Management Agreements,
one Agreement dated and effective as of June 8, 1998 and one dated and effective
as of February 8, 1999, Texas Unwired has entered into a Sprint PCS Management
Agreement dated and effective as of January 7, 2000 and Georgia PCS has entered
into a Sprint PCS Management Agreement dated and effective as of June 8, 1998
(all four such agreements, as they have been and may be amended, modified, or
supplemented from time to time, individually or together, the "Management
Agreement"), with Sprint Spectrum and SprintCom providing for the design,
construction and management of the Service Area Networks (as therein
respectively defined). Affiliates also have entered or will enter into a Sprint
PCS Services Agreement (as they may be amended, modified, or supplemented from
time to time, the "Services Agreement") and a Sprint Trademark and Service Xxxx
License Agreement and a 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 any
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 Networks as
they may be amended, modified, or supplemented from time to time, collectively,
the "Sprint Agreements").
Parent has entered into or concurrently herewith is entering into that
certain Amended and Restated Credit Agreement dated as of March 8, 2002 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 "Amended and Restated
Credit Agreement"), to provide financing for a portion of the costs of the
design and construction of the Service Area Networks and for certain other
purposes. The Amended and Restated 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 have been and 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." 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 Amended and Restated Credit Agreement.
The Obligations under the Loan Documents are or will be fully or partially
guaranteed, directly or indirectly, by the Affiliates and other subsidiaries of
Parent (collectively, the "Subsidiaries") and by Lucent Technologies Inc.
("Lucent") pursuant to those certain Guaranties executed by the Subsidiaries in
favor of the Administrative Agent and the Lenders (the "Subsidiaries
Guaranties") and that certain Amended and Restated Guaranty executed by Lucent
in favor of the Administrative Agent and the Lenders (the "Lucent Guaranty"),
respectively. Lucent and the Subsidiaries are collectively referred to as the
"Guarantors." That certain Amended and Restated Indemnity and Reimbursement
Agreement (the "Lucent Reimbursement Agreement") between Lucent, Parent and the
Subsidiaries sets forth some of Lucent's rights upon Lucent's payment to the
Administrative Agent of amounts pursuant to the Lucent Guaranty. The
Subsidiaries Guaranties and the Lucent Guaranty are collectively referred to as
the "Guaranties" and Guaranties and the Lucent Reimbursement Agreement are
collectively referred to as the "Guaranty Documents."
As a condition to the additional availability of credit to Parent under the
Amended and Restated 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 Parent and Subsidiaries acknowledge,
consent and agree to all terms and provisions of this Consent and Agreement.
Sprint Spectrum and SprintCom hold, directly or indirectly, certain of the
licenses for the Service Areas managed by Affiliates 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 Sprint Spectrum
and/or SprintCom, 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.
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 Amended and Restated Credit Agreement and the
other Loan Documents, each Affiliate has granted or will grant to the
Administrative Agent, for the benefit of the
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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 without limitation the rights of such Affiliate
in, to and under the Sprint Agreements and any related asset purchase agreements
to which it is a party, and the members or partners of such Affiliate have
granted or will grant to the Administrative Agent, for the benefit of the
Lenders, a first priority security interest in and pledge of all membership
interests, partnership interests or other equity interests in such Affiliate
(the "Pledged Equity"). 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". Each Sprint Party (i) acknowledges
notice of the Amended and Restated Credit Agreement, (ii) consents to the making
of the Subsidiaries Guaranties and the granting of the Security Interests in the
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 any of the Guaranties are not valid and enforceable
and that the Security Interests are not 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
Guaranty or 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 Affiliates have the right to use under
such Management Agreement; provided, however, that notwithstanding the
foregoing, a Sprint Party may at any time sell, transfer or assign all or part
of the Licenses that an Affiliate has the right to use in accordance with a
transaction allowed under Section 17.15.5 of such 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.
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 any
Affiliate's rights under the 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
Management Agreement 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 membership interests or partnership 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 Management Agreement 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
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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
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. 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
Affiliates 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 Administrative Agent agrees to provide to
Sprint PCS a copy of any written notice that Administrative Agent sends to
Parent, 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 any
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 and SprintCom acknowledge that the Administrative
Agent has informed them that an Event of Termination constitutes an Event of
Default under the Loan Documents, and Sprint Spectrum and SprintCom further
acknowledge that the Management Agreement does not prohibit Parent or any
Affiliate 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, (i)
allow Affiliates to continue to act as the Managers 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
Administrative Agent initially allows Affiliates to continue to act as the
Managers under the Sprint Agreements, the Administrative Agent may later,
during a continuation of an Event of Default, remove 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,
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 Administrative Agent
shall accept Sprint Spectrum and any Sprint Spectrum Designee that is then
acting as an Other Manager (other than Affiliates) to act as Interim
Manager under the Sprint Agreements. Any Sprint Spectrum Designee that is
not an
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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 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
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, being the "Extension Period"). If
Sprint Spectrum's or the Sprint Spectrum Designee's term as Interim Manager
is extended, then the Administrative Agent agrees that Sprint Spectrum or
the Sprint Spectrum Designee's right to be reimbursed by the applicable
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
the applicable 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 Agreements in an aggregate amount that exceed 5% of the
applicable Affiliate's shareholder's, partner's or member's equity or
capital account plus such 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 such 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 Administrative 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 paid by the
Lenders. If it becomes necessary for Sprint Spectrum or the Sprint Spectrum
Designee to expend any
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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.
Within 20 days after the end of each calendar month that Sprint
Spectrum or the Sprint Spectrum Designee serves as Interim Manager,
commencing with the fourth such month and continuing through the
termination of the Extension Period (whether by expiration, resignation or
otherwise), Sprint Spectrum or the Sprint Spectrum Designee, as applicable,
shall provide the Administrative Agent with a written report setting forth
(i) all capital expenditures and other expenses Sprint Spectrum or the
Sprint Spectrum Designee has incurred or that it believes needs to be
incurred under Section 11.6.3 of the Management Agreement, (ii) a summary
of the costs and anticipated benefits of each such material capital
expenditure or material expense, and (iii) a statement of projected
Collected Revenues through the end of the Extension Period. Sprint Spectrum
or the Sprint Spectrum Designee, as applicable, shall indicate when any
amounts contained in a monthly report are estimated (not actual) amounts.
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 successor Interim Manager in accordance
with Section 4(c).
(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 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 Sprint Agreements but will not be required to assume the
existing liabilities of Affiliates. 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 Management Agreement to become a Successor Manager,
unless the Administrative Agent Designee materially breaches the terms of a
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
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continues to satisfy the Successor Manager Requirements and it does not
materially breach the terms of the Sprint Agreements. If the Administrative
Agent Designee materially breaches any Sprint Agreement 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
Affiliates to act as Managers of the Sprint Agreements without the
Administrative Agent's consent.
SECTION 5. Event of Default Created by a Management Agreement Breach.
(a) Affiliates Remain as Managers 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 Administrative Agent has given Sprint PCS notice is not in
existence), Sprint PCS may by prior written notice to Administrative Agent
(i) allow the applicable Affiliate to continue to act as the Manager under
the applicable Sprint Agreements if approved by the Administrative Agent,
(ii) act as Interim Manager under the applicable Sprint Agreements (in the
case of Sprint Spectrum) or appoint Sprint Spectrum as Interim Manager (in
the case of SprintCom), or (iii) appoint a Sprint Spectrum Designee to act
as Interim Manager under the applicable Sprint Agreements as provided in
paragraph (b) below. If Sprint PCS initially allows the applicable
Affiliate to continue to act as the Manager under the applicable Sprint
Agreements, Sprint PCS may later remove such Affiliate as Manager and take
the action described above in clauses (ii) and (iii). The Administrative
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 PCS elects not to act as Interim Manager or 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 applicable 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 Affiliate) to
act as Interim Manager under the applicable 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 applicable 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 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
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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 the applicable
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
Administrative Agent of written notice that it 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 paid by the Lenders. If it becomes necessary for Sprint
Spectrum or the Sprint Spectrum Designee to expend an 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.
Within 20 days after the end of each calendar month that Sprint
Spectrum or the Sprint Spectrum Designee serves as Interim Manager,
commencing with the fourth such month and continuing through the
termination of the Extension Period (whether by expiration, resignation or
otherwise), Sprint Spectrum or the Sprint Spectrum Designee, as applicable,
shall provide the Administrative Agent with a written report setting forth
(i) all capital expenditures and other expenses Sprint Spectrum or the
Sprint Spectrum Designee has incurred or that it believes needs to be
incurred under Section 11.6.3 of the Management Agreement, (ii) a summary
of the costs and anticipated benefits of each such material capital
expenditure or material expense, and (iii) a statement of projected
Collected Revenues through the end of the Extension Period. Sprint Spectrum
or the Sprint Spectrum Designee, as applicable, shall indicate when any
amounts contained in a monthly report are estimated (not actual) amounts.
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
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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. 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 of the terms of the 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 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 Management Agreement to
become a Successor Manager, unless the Administrative Agent Designee
materially breaches the terms of a 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 Sprint Agreements. If the Administrative Agent
Designee materially breaches any Sprint Agreement 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 Affiliates to
act as Manager of the 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 Parent and each Affiliate, by acknowledging this
Consent and Agreement, expressly agrees, to purchase the combined Operating
Assets from Affiliates for an amount equal to the greater of (i) 72% of the
Entire Business Value (as defined in the Management Agreement) of
Affiliates, 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
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aggregate amount of the Obligations. Sprint PCS shall, within 60 days of
receipt of notice of Acceleration, give Parent, Affiliates 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, 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, Parent and Affiliates from Sprint PCS
of written notice that Sprint PCS 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, Parent or any Affiliate
receives any purchase offer for its Operating Assets or Pledged Equity that
is confirmed in writing by Parent or such Affiliate to be acceptable to
Parent or such Affiliate, Sprint PCS shall have the right subject to the
consent of the Administrative Agent, to purchase such Operating Assets or
Pledged Equity, as the case may be, on terms and conditions at least as
favorable to Parent or such Affiliate 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
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 Parent, such Affiliate and 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) Parent,
the Subsidiaries and Affiliates shall sell the Operating Assets or the
Pledged Equity to Sprint PCS, (ii) the Administrative Agent and the Lenders
shall consent to such purchase and sale, 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. 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 or any other provision of
the Management Agreement. If Sprint PCS purchases the Operating Assets or
the Pledged Equity of Affiliates as permitted under this Section 6(a), and
the Obligations have been paid in full and the Amended and Restated Credit
Agreement is terminated or assigned to a Sprint Party, the Administrative
Agent and the Subsidiaries will release or assign their interests in the
Collateral, the Loan Documents and the Guaranty Documents as described
below in Section 6(d).
(b) Sale of Operating Assets to Third Parties. If the Sprint Parties
do not purchase the Operating Assets from 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 Parent or any 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 Parent or such Affiliate, 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
10
Requirements. Sprint PCS agrees to inform the Administrative Agent and
Parent or such Affiliate 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
applicable 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 such
Affiliate's operations prior to the date buyer becomes bound by the
applicable Sprint Agreements. In such case the applicable 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 such
Affiliate to perform any obligation under the applicable Sprint Agreements,
that the Successor Manager shall have the same amount of time to perform
such obligation that such Affiliate had under the applicable 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 Parent or any
Affiliate, 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 applicable
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 applicable
Disaggregated License (with the amount of Spectrum described below in
Section 6(b)(iv) and with such Disaggregated License having the
characteristics described in the definition thereof) for 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 such
Disaggregated License, plus (3) the amount of carrying costs to Sprint PCS
attributable to such original cost and microwave relocation costs from June
23, 1999 to and including the date on which such Disaggregated License is
transferred to the buyer, based on a rate of 12 percent per annum; and
11
(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
Parent, the applicable Affiliate, 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 business of such Affiliate shall not be
permitted to be provided to such potential buyer.
(iv) Amount of Spectrum Sold. Sprint PCS will sell Spectrum
as follows when required under Section 6(b)(ii)(B):
(A) 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 for such BTA.
(B) 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 as
the buyer determines in its sole discretion.
(c) No Direct Solicitation of Customers. Upon the sale of Collateral
or 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 such 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 such 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 such 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
12
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 such 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 such 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 such
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 such 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) Release and Assignment of Rights. If Sprint PCS 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 Amended and
Restated Credit Agreement is terminated or assigned to a Sprint Party: (i)
Parent and Subsidiaries 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 Parent
or Subsidiaries); (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 release or assign to Sprint PCS, all rights related
to the Loan Documents and the Guaranty Documents and all payments under the
Loan Documents and the Guaranty Documents; and (iii) the Subsidiaries will,
at the election of Sprint PCS, release or assign to Sprint PCS, any and all
rights they have against the Collateral or arising out of any payment to
the Administrative Agent, Lucent or any Sprint Party with respect to the
Loan Documents or the Guaranty Documents.
Notwithstanding anything contained in Sections 6(a), 6(d), 10(a),
10(b) or 10(d), or any other provision in this Consent and Agreement, any
purchase of Operating Assets, the Pledged Equity or the Obligations by Sprint
PCS and any release or assignment of Security Interests in the Collateral rights
related to the Loan Documents or the Guaranty Documents or payments under the
Loan Documents or the Guaranty Documents, or any release or assignment
13
of rights arising out of any payment to the Administrative Agent, Lucent or any
Sprint Party with respect to the Loan Documents or the Guaranty Documents will
be subject to Lucent's rights under the Lucent Guaranty and the Lucent
Reimbursement Agreement, including, without limitation, Lucent's rights of
subrogation contained therein.
SECTION 7. No Limits on Remedies. Nothing contained in this Consent and
Agreement shall limit any rights of the Administrative Agent or Lenders to cause
an Acceleration. 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. An 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 the Management Agreement, and will be in addition to the fees it receives
under the Services Agreement. Sprint PCS shall collect such management fee by
setoff against the fees and any other amounts payable to the applicable
Affiliate under the Sprint Agreements. The Interim Manager will be required to
operate the applicable Service Area Network in accordance with the terms of the
applicable 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 the applicable Affiliate.
SECTION 9. Rights to Cure. Neither the provisions of this Consent and
Agreement nor any action of either Administrative Agent or Sprint PCS shall
require either Administrative Agent, any Lender or Sprint PCS to cure any
default of any 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 PCS may exercise
its rights under Section 11.6.3 of the Management Agreement upon an Event of
Termination, whether such situation arises while any 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 Amended and Restated 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 any Affiliate any such amounts it is not entitled to receive under
this Section 9 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
14
distributions that it is not entitled to receive under this Section 9, 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 Management Agreement, 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 Amended and
Restated Credit Agreement have terminated or expired, Sprint PCS 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 PCS'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 Amended and
Restated 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 Affiliates or a Successor Manager be a manager
or operator for Sprint PCS with respect to the Service Areas and neither Sprint
PCS nor any of its Related Parties shall own, operate, build or manage another
wireless mobility communications network in the Service Areas, except to the
extent provided in Sections 2.3(a), (b), (c) or (d) 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 Consent and Agreement. The Administrative Agent
acknowledges and agrees that Sprint PCS shall also have the right to cure an
Event of Default or to assist Parent or Affiliates in curing an Event of Default
but only to the extent Parent or Affiliates have 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 Parent or Affiliates 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 or, if earlier, the 180-day
anniversary of a Management Agreement Breach that any Affiliate fails to
cure (the "180-day Anniversary"), and until the 60-day anniversary of the
filing of a bankruptcy petition by or with respect to Parent or any
Affiliate, Sprint PCS shall have the right to purchase the Obligations
under, and as defined in, the Amended and Restated 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 earliest
of (i) the Acceleration Date, (ii) the 180-day Anniversary, and (iii) the
date of the filing of a bankruptcy petition by or with respect to Parent or
any Affiliate, 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,
15
such accrued interest and unreasonable fees and expenses shall remain due
and owing by Parent or Affiliates to the Lenders.
(b) In the event that the Administrative Agent acquires the Operating
Assets or 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 the applicable 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 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 the Pledged Equity. If Sprint PCS at
any time purchases the Operating Assets or the Pledged Equity as permitted
under this Section 10, the Administrative Agent and the Subsidiaries will
release or assign their interests in the Collateral, the Loan Documents and
the Guaranty Documents as described in Section 6(d). 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 such bankruptcy petition.
(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
16
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 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 less than all the
Obligations (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 the Administrative Agent shall retain the unsecured right to
collect the amount of the Obligations not purchased by Sprint PCS. If
Sprint PCS at any time purchases the entirety or less than all of the
Obligations, the Subsidiaries will release any and all rights they have
against the Collateral or arising out of any payment to the Administrative
Agent, Lucent or any Sprint Party with respect to the Loan Documents or
their Guaranty Document.
SECTION 11. Foreclosure. Upon the Administrative Agent or any Lender or any
other Person that meets the Successor Manager Requirements acquiring Operating
Assets and the related Sprint Agreements, then such Person shall be entitled to
exercise any and all rights of the applicable Affiliate under the applicable
Sprint Agreements in accordance with the terms of the applicable Sprint
Agreements and each Sprint Party will thereupon comply in all respects with such
exercise by such Person and perform its obligations under the applicable 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 to any buyer or transferee thereof and, in the
event the buyer wishes to become a party to the related Sprint Agreements and
such buyer satisfies the Successor Manager Requirements, such buyer shall be
bound by the applicable 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 the applicable Affiliate's
operations prior to the date buyer becomes bound by the applicable Sprint
Agreements. In such case the applicable 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 the applicable 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 the applicable 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.
17
SECTION 12. Trademarks and Service Marks. In the event the Administrative
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 PCS shall have the right to terminate the
License Agreements and cause the Administrative 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 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 applicable
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 the applicable
Affiliate.
Except as provided in Schedule 13, 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 the Management Agreement to purchase the Operating
Assets or to sell the Disaggregated License to any Affiliate if before, or after
giving effect to such exercise, there would exist a Default or Event of Default
under the Amended and Restated Credit Agreement, unless Sprint PCS pays the
aggregate amount of the Obligations as a condition of the exercise of such right
and the Amended and Restated 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
Amended and Restated Credit Agreement have terminated or expired, a failure to
pay any amount by any Related Party of any Affiliate under any agreement with
Sprint PCS or any of its Related Parties (other than the
18
Management Agreements, the Services Agreements 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 Amended and Restated Credit Agreement have
terminated or expired, (ii) the sale by Sprint PCS of the Spectrum for such
Service Area pursuant to this Consent and Agreement shall be effected, (iii) the
sale of the Operating Assets for such Service Area pursuant to this Consent and
Agreement, and (iv) the termination of the Management Agreement for such Service
Area. Sprint PCS acknowledges that the financing provided pursuant to the Loan
Documents, the senior subordinated discount notes issued under that certain
Indenture between Parent and The Depository Trust Company, as trustee
thereunder, pursuant to the terms and conditions set forth in the Offering
Memorandum of Parent delivered to potential buyers of such notes, and the
private placement of preferred stock of Parent to The 1818 Fund III, L.P.
contemplated by Parent, comply with Section 1.7 of the Management Agreements, as
amended from time to time by each Affiliate ("Section 1.7"), and that Section
11.3.6 of such Management Agreements shall no longer be applicable with respect
to such financings, so long as the amounts and deadlines set forth in Section
1.7 are satisfied. 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.
(a) 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 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.
(b) If (i) the Administrative Agent or any Lender becomes a Schedule
13 Person and (ii) a new Administrative Agent or Lender (as applicable)
commits to purchase all interests of such Administrative Agent or Lender in
the Obligations and the Loan Documents and assume all commitments and
obligations of such Administrative Agent or Lender under the Loan
Documents, in each case within such three months as described in
19
clause (A) below, for the aggregate amount of the unpaid Obligations of
such Administrative Agent or Lender, then such Administrative Agent or
Lender shall (A) assuming such purchaser does not breach its commitment to
so purchase, divest itself of all interests in the Obligations and the Loan
Documents within three (3) months after such Administrative Agent or Lender
becomes a Schedule 13 Person by selling such interests in consideration of
the payment of such aggregate amount and the assumption of such commitments
and obligations, and (B) promptly upon the consummation of such sale, no
longer be given or be entitled to receive any Confidential Information. In
no event shall the Administrative Agent or any Lender be obligated or
responsible to find or obtain a purchaser to purchase any Obligations or
Loan Documents or to assume any commitments or obligations.
SECTION 16. Sprint Party Representations. Each Sprint Party represents and
warrants to the Administrative Agent, as of the "Second Closing Date" (as
defined in the Amended and Restated Credit Agreement) (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 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 has delivered to Affiliates and the Administrative Agent a document
titled "Management Agreement Non-Compliance Summary," which describes events
that, if not cured, will become Events of Termination; (e) on the date the
Management Agreement was executed Sprint PCS owned, and on the date hereof
Sprint PCS owns, 10 MHz or more of Spectrum in the Service Areas; and (f) the
only existing agreements or arrangements between any Affiliate, on the one hand,
and Sprint Corporation or any of its subsidiaries, on the other hand, are the
Management Agreement, the Services Agreements and the License Agreements.
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
20
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 CoBank,
ACB, The Bank of New York, First Union National Bank, City National Bank (LSA),
AllFirst Bank, The CIT Group/Equipment Financing, Inc., Coast Business Credit, a
division of Southern Pacific Bank, Whitney National Bank and General Electric
Capital Corporation; and (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 Guaranties have been received from 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 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
Agreements; provided, however, the buyer of the Sprint PCS Network shall enter
into agreements with Affiliates on substantially the same terms as the Sprint
Trademark and Service Xxxx License Agreements 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 Consent and 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.
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, Parent and 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, Parent and Affiliates. 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; provided, however, that no consent of Parent
or Affiliates shall be necessary for any amendment or modification to this
Consent and Agreement made pursuant to and in accordance with Section 24 hereof.
SECTION 20. APPLICABLE LAW. THIS CONSENT AND AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF COLORADO.
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:
21
(a) if to Sprint PCS, to it at:
Sprint Spectrum PCS
0000 Xxxxxx Xxxxxxx, Xxxxxxxx 0
Xxxxxxxx Xxxx, Xxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: President, Sprint PCS
with a copy to:
Sprint PCS
0000 Xxxxxx Xxxxxxx, Xxxxxxxx 0
Xxxxxxxx Xxxx, Xxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: General Counsel, Sprint PCS
(b) if to the Administrative Agent, to it at:
CoBank, ACB, as Administrative Agent
000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Communications and Energy Banking Group
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
with a copy to:
CoBank, ACB, as Administrative Agent
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Communications and Energy Banking Group
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(c) if to Louisiana Unwired, to it at:
Louisiana Unwired, LLC
c/o US Unwired Inc.
000 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
22
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Finance Department
with a copy to:
Legal Department - US Unwired
000 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(d) if to Texas Unwired, to it at:
Texas Unwired
c/o US Unwired Inc.
000 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Finance Department
with a copy to:
Legal Department - US Unwired
000 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(e) if to Georgia PCS, to it at:
Georgia PCS
c/o US Unwired Inc.
000 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Finance Department
with a copy to:
23
Legal Department - US Unwired
000 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
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. Amendments to Form Consent and Agreement. If Sprint PCS
modifies or amends the form of Consent and Agreement it enters into with another
lender where the pops in the Service Area of the Other Manager exceed 5 million,
then 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) Sprint PCS is only required to
make changes to this Consent and Agreement based on changes made to the form of
Consent and Agreement executed in connection with loans to Other Managers that
are syndicated or intended to be syndicated (i.e., loans sold or participated,
or intended to be sold or participated, in whole or in part to at least three
financial institutions or investment funds).
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, the Pledged Equity or Obligations; (iii) any
24
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 24.
SECTION 25. Termination. Except as otherwise provided herein, this Consent
and Agreement shall terminate and be of no further force and effect upon the
first to occur of the following: (a) the Obligations are paid in full and the
Amended and Restated Credit Agreement is terminated or assigned to a Sprint
Party; and (b) the Sprint Agreements terminate.
[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:/s/ Xxxxxx X. Xxxxxx
--------------------------------------------------
Xxxxxx X. Xxxxxx,
Vice President - Affiliate/Private Label Services
SPRINTCOM, INC.
By:/s/ Xxxxxx X. Xxxxxx
--------------------------------------------------
Xxxxxx X. Xxxxxx,
Affiliate/Private Label Services
WIRELESSCO, L.P.
By:/s/ Xxxxxx X. Xxxxxx
--------------------------------------------------
Xxxxxx X. Xxxxxx,
Affiliate/Private Label Services
SPRINT COMMUNICATIONS COMPANY, L.P.
By:/s/ Xx Xxxxxx
--------------------------------------------------
Xx Xxxxxx,
Senior Vice President-Public Relations and
Brand Management
COBANK, ACB,
for itself and as Administrative Agent
By: /s/ Xxxx Xxxxxxx
----------------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
27
Acknowledgment, Consent and Agreement of Affiliates
Each of the undersigned 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 either Affiliate, and any of such Affiliate's
assets or its rights under the Management Agreement. Without limiting the
generality of the foregoing: (i) each 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) each Affiliate acknowledges and agrees that 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.
Each Affiliate agrees that notwithstanding the permitted uses of the
proceeds of the Credit Facility, it will not use the proceeds from the Credit
Facility or any other loan extension of credit or other obligation to which this
Consent and Agreement relates, for any purpose other than to: (a) construct and
operate the Service Area Network within each of the Affiliates' Service Areas
(as may be amended from time to time) as contemplated under the Management
Agreement, and (b) to repay Georgia PCS's loans presently outstanding to Rural
Telephone Finance Cooperative.
LOUISIANA UNWIRED, LLC
By: /s/Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Manager
TEXAS UNWIRED
By: /s/Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Manager
28
GEORGIA PCS MANAGEMENT, L.L.C.
By: /s/Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Manager
GEORGIA PCS LEASING, LLC
By: /s/Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Manager
29
Acknowledgment, Consent and Agreement of Parent and Subsidiaries
Each of the undersigned (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 Agreements) pursuant to which Sprint PCS may purchase the Operating
Assets under Sections 6 and 10 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 each 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 undersigned: (i) 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) acknowledges and agrees that 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.
Parent and each of the Subsidiaries agrees that notwithstanding the
permitted uses of the proceeds of the Credit Facility, it will not use the
proceeds from the Credit Facility or any other loan extension of credit or other
obligation to which this Consent and Agreement relates, for any purpose other
than to: (a) construct and operate the Service Area Network within each of the
Affiliates' Service Areas (as may be amended from time to time) as contemplated
under the Management Agreement, and (b) to repay Georgia PCS's loans presently
outstanding to Rural Telephone Finance Cooperative.
US UNWIRED, INC.
By: /s/Xxxxxx Xxxxx
----------------------------------------------
Name: Xxxxxx Xxxxx
Title: President
UNWIRED TELECOM CORP.
By: /s/Xxxxxx Xxxxx
----------------------------------------------
Name: Xxxxxx Xxxxx
Title: President
30
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
2
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
3
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:
4
SCHEDULE 13
(TO THE U.S. UNWIRED INC.'S AMENDED AND RESTATED CONSENT AND AGREEMENT)
1. Each of the following persons shall be a "Schedule 13 Person" under
the terms of the Consent and Agreement:
(a) Each of the following "Named Companies":
. AT&T/AWE
. MCI/WorldCom
. Qwest
. Verizon/Verizon Wireless
. Cingular Wireless
. ALLTEL
. VoiceStream/DT Wireless
. Nextel Communications
. Leap
. [to be determined after upcoming spectrum auction]
. Any person that is a successor of a Named Company
(b) Any person that directly or indirectly through one or more
persons controls, is controlled by or is under common control with a Named
Company, including any person that is controlled directly or indirectly by
more than one Named Company when aggregating their control (e.g., if AT&T
and MCI/WorldCom together control the person, such person is treated as
being controlled by a Named Company and is therefore a Schedule 13 Person).
The term "control" (including its correlative meanings "controlled by" and
"under common control with") as used in this Schedule 13 means owns at
least 50% of the voting power or at least 50% of the total equity of the
person.
2. (a) Sprint Spectrum may from time to time designate an entity
engaged in the business of providing telecommunications services to be a
Named Company; provided, that: (i) Sprint Spectrum may only list 10 Persons
as Named Companies at any time (i.e., Sprint Spectrum must remove one
Person from the list for each Person it adds to the list); (ii) Sprint
Spectrum may only revise the list of Named Companies once during each
calendar quarter, but not later than 10 Business Days after Sprint Spectrum
receives written notice from the Administrative Agent that (A) an Event of
Default has occurred, (B) the Administrative Agent is exercising one or
more of its remedies under the Loan Documents, and (C) Sprint PCS has 10
Business Days during which it may revise the list of Named Companies; and
(iii) the list of Named Companies will be the same for all Consents and
Agreements between Sprint Spectrum and the lenders to Sprint Spectrum's
affiliates.
