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