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EXHIBIT 10.9
CONSENT AND AGREEMENT
(Nortel / Alamosa PCS)
This Consent and Agreement is entered into as of June 10, 1999 (this
"Consent and Agreement"), between SPRINT SPECTRUM L.P., a Delaware limited
partnership ("Sprint Spectrum"), SPRINTCOM, INC., a Kansas corporation
("SprintCom"), SPRINT COMMUNICATIONS COMPANY, L.P., a Delaware limited
partnership ("Sprint Communications"), WIRELESSCO, L.P., a Delaware limited
partnership ("WirelessCo" and together with Sprint Spectrum, SprintCom and
Sprint Communications, the "Sprint Parties"), and NORTEL NETWORKS INC., a
Delaware corporation, as administrative agent (together with any successors
thereof in accordance with the Credit Agreement, the "Administrative Agent")
for the lenders under that certain Credit Agreement among ALAMOSA PCS, LLC, a
Texas limited liability company (the "Affiliate"), the Administrative Agent and
the lenders from time to time party thereto (the "Lenders").
Affiliate has entered into the Sprint PCS Management Agreement dated
and effective as of July 17, 1998 (as it may be amended, modified, or
supplemented from time to time, the "Management Agreement") with Sprint
Spectrum providing for the design, construction and management of the Service
Area Network. Affiliate has also entered into the Sprint PCS Services Agreement
(the "Services Agreement") and the Sprint Trademark and Service Xxxx License
Agreement and the Sprint Spectrum Trademark and Service Xxxx License Agreement
(together, the "License Agreements") (together, the Management Agreement, the
Services Agreement and the License Agreements and all other agreements between
Affiliate or its subsidiaries, on the one hand and the Sprint Parties or any
subsidiary of Sprint Corporation on the other hand (whether entered into prior
to, on, or after the date hereof), shall be collectively referred to as the
"Sprint Agreements").
Affiliate has entered into or concurrently herewith is entering into
that certain Credit Agreement dated as of June 10, 1999, with the
Administrative Agent and the Lenders (such Credit Agreement, as it may be
amended, supplemented, restated, replaced or otherwise modified from time to
time, is referred to as the "Credit Agreement"), to provide financing for a
portion of the costs of the design and construction of the Service Area Network
and for certain other purposes. The Credit Agreement and each note, security
agreement, pledge agreement, guaranty and any and all other agreements,
documents or instruments entered into in connection with any of the foregoing,
as the same may from time to time be amended, supplemented, restated, replaced
or otherwise modified from time to time, shall collectively be referred to as
the "Loan Documents."
As a condition to the availability of credit to Affiliate 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 Affiliate acknowledge, consent and agree to all terms and
provisions of this Consent and Agreement.
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Sprint Spectrum and SprintCom hold, directly or indirectly, the
licenses for the service areas managed by Affiliate as contemplated in the
Management Agreement. As used in this Consent and Agreement, the term "Sprint
PCS" shall refer in each particular instance or application to Sprint Spectrum
and/or SprintCom, based on which of the two entities owns the License in that
portion of the Service Area to which the subject of the instance or application
applies.
All capitalized terms in this Consent and Agreement shall have the
same meanings ascribed to them in the Management Agreement unless otherwise
provided in this Consent and Agreement; provided, that the terms "Default",
"Event of Default" and "Obligations" shall have the meanings ascribed to them
in the Credit Agreement.
Accordingly, each Sprint Party and the Administrative Agent hereby
agrees as follows:
SECTION 1. Consent to Security Interest. In connection with the
transactions contemplated by the Credit Agreement and the other Loan Documents,
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 without limitation the rights of
Affiliate in, to and under the Sprint Agreements, and a first priority security
interest in and pledge of all capital stock, membership interests, partnership
interests or other equity interests in Affiliate and its subsidiaries (the
foregoing security interests, liens and pledges are referred to collectively as
the "Security Interests" and the foregoing assets and property in which the
Administrative Agent, for the benefit of the Lenders, has been or will be
granted a first priority security interest in and lien are referred to
collectively as the "Collateral"). Each Sprint Party (i) acknowledges notice of
the Credit Agreement, (ii) consents to the granting of the Security Interests
in the Collateral to the Administrative Agent, for the benefit of the Lenders,
and (iii) agrees that (a) neither it nor any subsidiary of Sprint Corporation
will challenge or contest that the Security Interests are valid, enforceable
and duly perfected first priority security interests and liens in and to the
Collateral and (b) neither it nor any subsidiary of Sprint Corporation will
argue that any such Security Interest is subject to avoidance, limitation or
subordination under any legal or equitable theory or cause of action.
Each Sprint Party acknowledges and agrees that (i) Sections 17.15.1
and 17.15.2 of the Management Agreement do not apply to the assignment of
Affiliate's rights under the Sprint Agreements to the Administrative Agent or
the Lenders under the Loan Documents or in connection with a transaction
permitted pursuant to this Consent and Agreement to any other Person pursuant
to the Loan Documents or to any other assignment in connection with any
transaction permitted pursuant to this Consent and Agreement and (ii) Section
17.15.3 of the Management Agreement shall not apply to any Change of Control of
Affiliate in connection with the exercise by the Administrative Agent of any of
its rights or remedies under the Loan Documents, including without limitation
in connection with the sale of the membership interests of Affiliate to any
Person or to any other Change of Control of Affiliate; provided, however,
Section 17.15.3 of the Management Agreement shall apply to any such transaction
if such transaction is not with the Administrative Agent or the Lenders or is
not a transaction permitted pursuant to this Consent and Agreement. It
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is understood that any assignment described in this Section 1 to the
Administrative Agent or the Lenders is hereby consented to by the Sprint
Parties; provided, that any subsequent assignment by the Administrative Agent
or the Lenders shall be in accordance with the terms of this Consent and
Agreement.
SECTION 2. Payments. Upon receipt of the Administrative Agent's
written instructions, each Sprint Party agrees to make all payments (if any) to
be made by it under the Sprint Agreements, subject to its rights of setoff or
recoupment with respect to such payments as permitted under Section 10.6 of the
Management Agreement, to Affiliate directly to the 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. 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 Affiliate under the Sprint Agreements to the extent of such
payments.
SECTION 3. Notice and Effect of Event of Default, Management Agreement
Breach and Event of Termination. The Administrative Agent agrees to provide to
Sprint PCS a copy of any written notice that Administrative Agent sends to
Affiliate, 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
Affiliate, promptly after sending such notice, that an Event of Termination or
an event that if not cured, or if notice is provided, will constitute an Event
of Termination (each of an Event of Termination and an event that if not cured
would constitute an Event of Termination, a "Management Agreement Breach") has
occurred. Sprint Spectrum and SprintCom acknowledge that the Administrative
Agent has informed them that an Event of Termination constitutes an Event of
Default under the Loan Documents, and Sprint Spectrum and SprintCom further
acknowledge that the Management Agreement does not prohibit Affiliate from
curing such an Event of Default.
SECTION 4. Event of Default without a Management Agreement Breach.
(a) Affiliate Remains as Manager or Interim Manager
Appointed. Upon and during the continuation of an Event of Default
when no Management Agreement Breach exists on the original date of
occurrence of such Event of Default, the Administrative Agent may (i)
allow Affiliate to continue to act as the Manager under the Sprint
Agreements, (ii) after (A) Acceleration (as defined in Section 6(a))
of the Obligations under the Credit Agreement, (B) the "Maturity Date"
(as defined in the Credit Agreement) in the event the Obligations have
not been paid in full as of such date, or (C) the occurrence of an
Event of
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Default set forth in Section 11.1(e) or 11.1(f) of the Credit
Agreement (each of such occurrences identified in this Section
4(a)(ii), an "IM Appointment Triggering Event"), appoint Sprint
Spectrum to act as "Interim Manager" under the Sprint Agreements, or
(iii) after an IM Appointment Triggering Event, appoint a Person other
than Sprint Spectrum to act as Interim Manager under the Sprint
Agreements. If the Administrative Agent initially allows Affiliate to
continue to act as the Manager under the Sprint Agreements, the
Administrative Agent may later, during a continuation of an Event of
Default and after an IM Appointment Triggering Event, remove the
Affiliate as Manager and take the action described above in clauses
(ii) and (iii). The date on which a Person begins serving as Interim
Manager shall be the "Commencement Date."
(b) Sprint Spectrum or Sprint Spectrum Designee as Interim
Manager. If the Administrative Agent appoints Sprint Spectrum as
Interim Manager, within 14 days after its appointment Sprint Spectrum
shall accept the position or designate another Person (a "Sprint
Spectrum Designee") to act as Interim Manager under the Sprint
Agreements. The Administrative Agent shall accept Sprint Spectrum and
any Sprint Spectrum Designee that is then acting as an Other Manager
(other than Affiliate) to act as Interim Manager under the Sprint
Agreements. Any Sprint Spectrum Designee that is not an Other Manager
must be acceptable to the Administrative Agent, which acceptance will
not be unreasonably withheld. If, within 30 days after the
Administrative Agent gives Sprint Spectrum notice of its appointment
as Interim Manager, Sprint Spectrum or a Sprint Spectrum Designee does
not agree to act as Interim Manager, then the Administrative Agent
shall have the right to appoint an Administrative Agent Designee as
Interim Manager in accordance with Section 4(c). At the discretion of
the Administrative Agent, Sprint Spectrum or the Sprint Spectrum
Designee shall serve as Interim Manager for up to six months from the
Commencement Date.
Upon the expiration of its initial six-month period as
Interim Manager under the Sprint Agreements, Sprint Spectrum or the
Sprint Spectrum Designee will agree 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 Affiliate and
all Other Managers have the right to serve under their respective
management agreements with the Sprint Parties is less than 40 million.
If Sprint Spectrum's or the Sprint Spectrum Designee's term as Interim
Manager is extended, then the Administrative Agent agrees that Sprint
Spectrum or the Sprint Spectrum Designee shall be reimbursed promptly
for all amounts previously expended by Sprint Spectrum or the Sprint
Spectrum Designee under Section 11.6.3 of the Management Agreement
(which expenditures were incurred in accordance with Section 9 of this
Consent and Agreement), and Sprint Spectrum or the Sprint Spectrum
Designee shall continue to be reimbursed for any expenses it incurs
pursuant to its rights under Section 11.6.3 of the Management
Agreement as provided in the Management Agreement (which expenditures
were incurred in accordance with Section 9 of this Consent
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and Agreement); provided, that the Administrative Agent shall only be
required to reimburse Sprint Spectrum or the Sprint Spectrum Designee
for amounts expended under Section 11.6.3 of the Management Agreement
in an aggregate amount equal to 5% of Affiliate's shareholder's equity
or capital account plus Affiliate's long-term debt (i.e., notes that
on their face are scheduled to mature more than one year from the date
issued), as reflected on Affiliate's books (the "Reimbursement
Limit"). If it becomes necessary for Sprint Spectrum or the Sprint
Spectrum Designee to expend an amount that exceeds the Reimbursement
Limit, Sprint Spectrum or the Sprint Spectrum Designee is not required
to incur such expense.
Upon the termination or expiration of the term of Sprint
Spectrum or the Sprint Spectrum Designee as Interim Manager, the
Administrative Agent shall have the right to appoint a successor
Interim Manager in accordance with Section 4(c).
(c) Administrative Agent Designee as Interim Manager. If the
Administrative Agent elects to appoint a Person other than Sprint
Spectrum to act as Interim Manager under the Sprint Agreements (an
"Administrative Agent Designee") as permitted under Sections 4(a)(iii)
and 4(b), such Administrative Agent Designee must (i) agree to serve
as Interim Manager for six months unless terminated earlier by Sprint
PCS for cause or by the Administrative Agent, (ii) meet the "Successor
Manager Requirements" set forth below in Section 13, and (iii) agree
to comply with the terms of the Sprint Agreements but will not be
required to assume the existing liabilities of Affiliate. In the case
of a proposed Interim Manager, 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 it
believes that a proposed Interim Manager 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 Sprint PCS believes such designee satisfies the Successor
Manager Requirements. If Sprint PCS does not so inform the
Administrative Agent within such 20-day period, then Sprint PCS shall
be deemed to agree, for all purposes of this Consent and Agreement,
that such proposed designee satisfies the Successor Manager
Requirements. A Person that satisfies the Successor Manager
Requirements qualifies under the Management Agreement to become a
Successor Manager, unless the Administrative Agent Designee materially
breaches the terms of a Sprint Agreement while acting as Interim
Manager or no longer meets the Successor Manager Requirements. The
Interim Manager may continue to serve as Interim Manager after the
initial six-month period at the Administrative Agent's discretion, so
long as the Interim Manager continues to satisfy the Successor Manager
Requirements and no Management Agreement Breach exists. If the
Administrative Agent Designee materially breaches any Sprint Agreement
while acting as Interim Manager, then Sprint PCS and the
Administrative Agent have the rights set forth in Section 5; provided,
that Sprint PCS may not allow Affiliate to act as the Manager of the
Sprint Agreements without the Administrative Agent's consent.
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SECTION 5. Event of Default Created by a Management Agreement Breach.
(a) Affiliate Remains as Manager or Interim Manager
Appointed. Upon an Event of Default created by a Management Agreement
Breach (so long as at such time an Event of Default not created by a
Management Agreement Breach is not in existence), Sprint PCS may (i)
allow Affiliate to continue to act as the Manager under the Sprint
Agreements if approved by the Administrative Agent, (ii) act as
Interim Manager under the Sprint Agreements (in the case of Sprint
Spectrum) or appoint Sprint Spectrum as Interim Manager (in the case
of SprintCom), or (iii) appoint a Sprint Spectrum Designee to act as
Interim Manager under the Sprint Agreements. If Sprint PCS initially
allows Affiliate to continue to act as the Manager under the Sprint
Agreements, Sprint PCS may later remove the Affiliate as Manager and
take the action described above in clauses (ii) and (iii). The
Administrative Agent shall have no right to appoint an Interim Manager
when an Event of Default is caused by a Management Agreement Breach
(unless an Event of Default not created by a Management Agreement
Breach is in existence), unless Sprint PCS elects not to act as
Interim Manager or to appoint a Sprint Spectrum Designee.
(b) Sprint Spectrum or Sprint Spectrum Designee as Interim
Manager. If Sprint Spectrum acts as Interim Manager or designates a
Sprint Spectrum Designee to act as Interim Manager under the Sprint
Agreements, the Interim Manager shall serve as Interim Manager for up
to six months from the Commencement Date, at the discretion of Sprint
Spectrum. The Administrative Agent shall accept Sprint Spectrum and
any Sprint Spectrum Designee that is then acting as an Other Manager
(other than Affiliate) to act as Interim Manager under the 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 Sprint Agreements, Sprint Spectrum or the
Sprint Spectrum Designee will agree to serve as Interim Manager for an
extended period of 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 Affiliate and all Other Managers have the right to
serve under their respective management agreements with the Sprint
Parties is less than 40 million. If Sprint Spectrum's or the Sprint
Spectrum Designee's term as Interim Manager is extended, then the
Administrative Agent agrees that Sprint Spectrum or the Sprint
Spectrum Designee shall be reimbursed promptly for all amounts
previously expended by Sprint Spectrum or the Sprint Spectrum Designee
under Section 11.6.3 of the Management Agreement (which expenditures
were incurred in accordance with Section 9 of this Consent and
Agreement), and Sprint Spectrum or the Sprint Spectrum Designee shall
continue to be reimbursed for any expenses it incurs pursuant to its
rights under Section 11.6.3 of the Management Agreement as provided in
the Management Agreement (which expenditures were incurred in
accordance with Section 9
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of this Consent and Agreement); provided, that the Administrative
Agent shall only be required to reimburse Sprint Spectrum or the
Sprint Spectrum Designee for amounts expended under Section 11.6.3 of
the Management Agreement in an aggregate amount equal to the
Reimbursement Limit. If it becomes necessary for Sprint Spectrum or
the Sprint Spectrum Designee to expend an amount that exceeds the
Reimbursement Limit, Sprint Spectrum or the Sprint Spectrum Designee
is not required to incur such expense.
Upon the termination or expiration of the term of Sprint
Spectrum or the Sprint Spectrum Designee as Interim Manager and with
the consent of the Administrative Agent (which consent shall not be
unreasonably withheld or delayed), Sprint Spectrum shall have the
right to appoint a successor Interim Manager in accordance with
Section 5(a).
(c) Administrative Agent Designee as Interim Manager. If,
after Acceleration 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. Such Administrative Agent
Designee must (i) agree to serve as Interim Manager for six months
unless terminated earlier by Sprint PCS for cause or by the
Administrative Agent, (ii) meet the Successor Manager Requirements,
and (iii) agree to comply with the terms of the Sprint Agreements. In
the case of a proposed Administrative Agent Designee, Sprint PCS shall
provide to the Administrative Agent, within 10 Business Days after the
request therefor, a detailed description of all information reasonably
requested by Sprint PCS to enable Sprint PCS to determine if it
believes that 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 Sprint PCS believes such designee
satisfies the Successor Manager Requirements. If Sprint PCS does not
so inform the Administrative Agent within such 20-day period, then
Sprint PCS shall be deemed to agree, for all purposes of this Consent
and Agreement, that such proposed designee satisfies the Successor
Manager Requirements. A Person that satisfies the Successor Manager
Requirements qualifies under the Management Agreement to become a
Successor Manager, unless the Administrative Agent Designee materially
breaches the terms of a Sprint Agreement while acting as Interim
Manager or no longer meets the Successor Manager Requirements. The
Interim Manager may continue to serve as Interim Manager after the
initial six-month period at the Administrative Agent's discretion, so
long as the Interim Manager continues to satisfy the Successor Manager
Requirements and no Management Agreement Breach exists.
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SECTION 6. Purchase and Sale of the Operating Assets. Upon the
occurrence and during the continuation of an Event of Default, the following
provisions shall govern the purchase and sale of the Operating Assets:
(a) Acceleration of the Obligations Under the Loan Documents.
In the event the Lenders accelerate the maturity of the Obligations
under the Loan Documents (an "Acceleration" and the date thereof, an
"Acceleration Date"), the Administrative Agent shall give written
notice thereof to Sprint PCS. Upon receipt of notice of Acceleration,
Sprint PCS shall have the right to purchase the Operating Assets from
Affiliate for an amount equal to the greater of (i) 72% of the Entire
Business Value (as defined in the Management Agreement) of Affiliate,
valued in accordance with the procedure set forth in Section 11.7 of
the Management Agreement, and (ii) the aggregate amount of the
Obligations. Sprint PCS shall, within 60 days of receipt of notice of
Acceleration, give 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, 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 notice of Acceleration (or such later date that shall
be provided for in the purchase agreement and acceptable to the
Administrative Agent to close the purchase of the Operating Assets) or
(ii) receipt by Administrative Agent and Affiliate from Sprint PCS of
written notice that Sprint PCS has determined not to proceed with the
closing of the purchase of the Operating Assets. If after the 120-day
period after the Acceleration Date the Affiliate receives any purchase
offer for the Operating Assets or the membership interests of
Affiliate that is confirmed in writing by Affiliate to be acceptable
to Affiliate, Sprint PCS shall have the right to purchase the
Operating Assets or the membership interests of Affiliate, as the case
may be, on terms and conditions at least as favorable to the Affiliate
as the terms and conditions proposed in such offer so long as within
14 Business Days after Sprint PCS's receipt of such other offer Sprint
PCS offers to purchase the Operating Assets or the membership
interests of Affiliate 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 Affiliate. 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) the Affiliate
shall sell the Operating Assets to Sprint PCS, and (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. The purchase right of
the Sprint Parties under this Section 6(a) shall be in addition to the
purchase rights of the Sprint Parties under Section 11.6.1 of the
Management Agreement. If Sprint PCS purchases the Operating Assets or
the membership interests of Affiliate as permitted under this Section
6(a), the Administrative Agent will release the Security Interests in
the Collateral upon payment in full of the aggregate amount of the
Obligations.
(b) Sale of Operating Assets to Third Parties. If the Sprint
Parties do not purchase the Operating Assets from Affiliate after an
Acceleration as described above in Section 6(a), the Collateral may be
sold as follows:
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(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 to a person that satisfies the Successor
Manager Requirements. Sprint PCS shall provide to the Administrative
Agent, with a copy to Affiliate, within 10 Business Days after the
request therefor, a detailed description of all information reasonably
requested by Sprint PCS to enable Sprint PCS to determine if it
believes that a proposed buyer satisfies the Successor Manager
Requirements. Sprint PCS agrees to inform the Administrative Agent and
Affiliate within 20 days after it receives such information respecting
such proposed buyer from the Administrative Agent whether Sprint PCS
believes 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 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 Affiliate to perform any obligation under the Sprint
Agreements, that the Successor Manager shall have the same amount of
time to perform such obligation that Affiliate had under the Sprint
Agreements, with the performance period commencing on the date on
which the buyer becomes a Successor Manager. Sprint 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 (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 (with the amount of PCS described below in Section 6(b)(iv)
and with the Disaggregated License having the characteristics
described in the definition thereof) for a price equal to the sum of
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(1) the original cost of the License to Sprint PCS pro rated on a pops
and spectrum basis, plus (2) the microwave relocation costs paid by
Sprint PCS pro rated on a pops basis, 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; and
(C) the purchase agreement with the buyer
contains the requirements set forth in Section 6(c).
(iii) Confidentiality Agreement. Before any
potential buyer is provided Confidential Information respecting the
potential purchase of any of the Operating Assets or the Pledged
Equity (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 the Affiliate, Sprint PCS or the Administrative Agent
that it does not intend to be a Successor Manager, Confidential
Information that constitutes or relates to any technical, marketing,
financial, strategic or other information concerning any of the Sprint
Parties and that does not pertain to the business of Affiliate shall
not be permitted to be provided to such potential buyer.
(iv) Amount of Spectrum Sold. WirelessCo will sell
Spectrum as follows when required under Section 6(b)(ii)(B):
(A) If the buyer, an entity with respect to
which such buyer directly or indirectly through one or more persons
owns the total voting power or at least 50% of the total voting power
or at least 50% of the total equity (a "controlled entity"), an entity
that directly or indirectly through one or more persons has a parent
entity that owns at least 50% of the voting power or at least 50% of
the total equity of both the buyer and the common controlled entity (a
"common controlled entity"), or any successor of such buyer, such
controlled entity or such common controlled entity, owns a license to
provide wireless service to at least 50% of the Pops in a BTA with
respect to which such buyer proposes to purchase Spectrum (each a
"Restricted Party" with respect to such BTA), the buyer may buy only 5
MHz of Spectrum for such BTA.
(B) If the buyer is not a Restricted Party
for a BTA with respect to which such buyer proposes to purchase
Spectrum, and either does not satisfy the Successor Manager
Requirements (other than those set forth in Section 13(b)) or does not
wish to be a Successor Manager, then the buyer may buy 5 MHz, 7.5 MHz
or 10 MHz as the buyer determines in its sole discretion.
(c) No Direct Solicitation of Customers. Upon the sale of the
Operating Assets or the Disaggregated License in accordance with this
Consent and Agreement in accordance with Section 6(b)(ii), then the
Sprint Parties agree to transfer to the purchaser thereof the
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customers with a MIN assigned to the Service Area covered by the
purchased Spectrum, 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 purchaser of the Operating Assets
or the Disaggregated License 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
and in the case of buyer the roaming services shall be provided to
those customers of Sprint PCS roaming in the geographic area serviced
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). 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 serviced 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.
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 the amount owed by Affiliate under the Loan Documents. 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
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Related Party of Sprint PCS acts as Interim Manager, such management fee shall
not exceed the direct expenses relating to Sprint Spectrum or such Related
Party employees for the actual time spent by such employees when performing the
function of Interim Manager and Sprint Spectrum's or such Related Party's
out-of-pocket expenses. Such direct expenses shall include such employees'
salaries and benefits, and the out-of-pocket and accrued expenses allocated to
such employees. If Sprint Spectrum is the Interim Manager, the management fee
will be paid out of the 92% Management Fee that Sprint PCS pays under the
Management Agreement, and will be in addition to the fees it receives under the
Services Agreement. Sprint PCS shall collect such management fee by setoff
against the fees and any other amounts payable to Affiliate under the Sprint
Agreements. The Interim Manager will be required to operate the Service Area
Network in accordance with the terms of the Sprint Agreements and will be
subject to all of the requirements and obligations of such agreements, but will
not be required to assume the existing liabilities of Affiliate.
SECTION 9. Rights to Cure. Neither the provisions of this Consent and
Agreement nor any action of either Administrative Agent or Sprint PCS shall
require either Administrative Agent, any Lender or Sprint PCS to cure any
default of Affiliate under the Sprint Agreements or to perform under the Sprint
Agreements, but shall only give it the option to do so except to the extent
otherwise required by this Consent and Agreement. Sprint PCS may exercise its
rights under Section 11.6.3 of the Management Agreement upon an Event of
Termination, whether such situation arises while Affiliate, Sprint Spectrum, an
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 from its payments to
Affiliate any such amounts it is not entitled to receive under this Section and
shall not take any action of any type to attempt to collect such reimbursement
and the failure to be so reimbursed shall not constitute a Management Agreement
Breach. In the event that Sprint 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 Management Agreement, before taking any such action such third party
shall enter into an agreement with Administrative Agent providing that such
third party agrees to the provisions of this Section 9 as if it were a party
hereto. Until such time as the Obligations have been paid in full in cash and
all commitments to advance credit under the Credit Agreement have terminated or
expired, Sprint PCS shall not be entitled to exercise any other remedies under
the Sprint Agreements, including, without limitation, the remedy of terminating
the Sprint Agreements (except to the extent permitted under Section 6(b)(ii) of
this Consent and Agreement) or the remedy of withholding any payment set forth
in Section 10 of the Management Agreement (subject to Sprint PCS's rights of
setoff or recoupment of expenses with respect to such payments as permitted
under Sections 2, 4(b) and 5(b) of this Consent and Agreement). Until such time
as the Obligations have been paid in full in cash and all commitments to
advance credit under the Credit Agreement have terminated or expired,
notwithstanding anything to the contrary contained in Section 2.3 of the
Management Agreement,
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in no event shall any Person other than Affiliate or a Successor Manager be a
manager or operator for Sprint PCS with respect to the Service Area and neither
Sprint PCS nor any of its Related Parties shall own, operate, build or manage
another wireless mobility communications network in the Service Area, except to
the extent provided in Sections 2.3(a), (b), (c) or (d) of the Management
Agreement and except to the extent that the Sprint Agreements are terminated in
accordance with Section 6(b)(ii)(A) of this Agreement. The Administrative Agent
acknowledges and agrees that Sprint PCS shall also have the right to cure an
Event of Default or to assist Affiliate in curing an Event of Default but only
to the extent Affiliate has the right to so cure under the Loan Documents, as
applicable (it being understood that the act of Sprint 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 Affiliate the funds necessary to operate or meet certain
financial covenants in the Loan Documents. The Administrative Agent shall have
the right to cure any Management Agreement Breach.
SECTION 10. Sprint PCS's Right to Purchase Obligations, Operating
Assets or Pledged Equity. (a) Following the Acceleration Date and until the
60-day anniversary of the filing of a bankruptcy petition by or with respect to
Affiliate, 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 a bankruptcy petition by or with respect to Affiliate,
Sprint PCS may in lieu of purchasing the total amount of the Obligations,
purchase all Obligations other than the accrued interest with respect thereto
for a purchase price equal to the amount of the Obligations other than such
accrued interest and any fees and expenses that are unreasonable, in which
case, such accrued interest and unreasonable fees and expenses shall remain due
and owing by Affiliate to the Lenders.
(b) In the event that the Administrative Agent acquires the
Operating Assets or the membership interests of Affiliate, Sprint PCS shall
have the right to purchase the Operating Assets or the membership interests of
Affiliate 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 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 membership
interests of Affiliate 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 Affiliate, in the case of a purchase of the
membership interest in Affiliate) 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 membership interests of Affiliate, the Administrative Agent
agrees that it shall provide Sprint PCS the right to purchase the Operating
Assets 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
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Administrative Agent to close the purchase of the Operating Assets or
membership interests of Affiliate) or (ii) receipt by Administrative Agent from
Sprint PCS of written notice that Sprint PCS has determined not to proceed with
the closing of the purchase of the Operating Assets or the membership interests
of Affiliate. If Sprint PCS at any time purchases the Operating Assets or the
membership interests of Affiliate as permitted under this Section 10, the
Administrative Agent will release the Security Interests in the Collateral 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 Affiliate, Sprint PCS shall again have the right to purchase the Operating
Assets or the membership interests of Affiliate from the Administrative Agent
by repaying the Obligations in full in cash, by giving the Administrative Agent
notice of its intent to exercise such purchase right no later than 60 days
following the date of filing of such bankruptcy petition.
(c) If at any time during the period described in Section
10(a) or 10(b) above or thereafter the Administrative Agent receives any
purchase offer for the Operating Assets, the membership interests of Affiliate
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 membership
interests of Affiliate 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 membership interests of Affiliate 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 and other credit enhancements related to such Loan Documents, and
all rights and claims thereunder (collectively referred to as the "Loan
Document Rights"). If Sprint PCS purchases less than all the Obligations (as
permitted in the second sentence of Section 10(a) above), then the
Administrative Agent shall assign and transfer or cause the Lenders to assign
and transfer to Sprint PCS all Loan Document Rights, except that the
Administrative Agent shall retain the unsecured right to collect the amount of
the Obligations not purchased by Sprint PCS.
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, then such Person shall be entitled
to exercise any and all rights of Affiliate under the Sprint Agreements in
accordance with the terms of the Sprint Agreements and each Sprint Party will
thereupon comply in all respects with such exercise by such Person and perform
its obligations under the Sprint Agreements and this Consent and Agreement for
the benefit of such Person. Each Sprint Party agrees that the 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
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its rights and interests acquired in the Operating Assets and the Sprint
Agreements to any buyer or transferee thereof and, in the event the buyer
wishes to become a party to the Sprint Agreements and such buyer satisfies the
Successor Manager Requirements, such buyer shall be bound by the Sprint
Agreements; provided, that buyer shall have no responsibility or liability to
any Person other than a Sprint Party and a Related Party of a Sprint Party
arising out of Affiliate's operations prior to the date buyer becomes bound by
the Sprint Agreements. In such case the Sprint Agreements shall remain in full
force and effect with the buyer as Successor Manager and this Consent and
Agreement shall remain in full force and effect for the benefit of the
Successor Manager and any Person providing senior secured debt financing to
such Successor Manager if required by such Person. Sprint PCS agrees, with
respect to any past failure of Affiliate to perform any obligation under the
Sprint Agreements, that the Successor Manager shall have the same amount of
time to perform such obligation that Affiliate had under the Sprint Agreements,
with the performance period commencing on the date on which the buyer becomes a
Successor Manager. Sprint PCS shall permit the performance period set forth in
the Management Agreement to be extended for such period of time that Sprint PCS
believes is reasonable to allow Successor Manager to perform such unperformed
obligations.
SECTION 12. Trademarks and Service Marks. In the event the
Administrative Agent forecloses on its security interest in the License
Agreements and transfers the License Agreements to a Person who does not meet
the Successor Manager Requirements, then Sprint PCS shall have the right to
terminate the License Agreements and cause the Administrative Agent to release
its security interest in the License Agreements immediately prior to such
transfer.
SECTION 13. Interim Manager and Successor Manager Requirements. To
qualify as an Interim Manager or a Successor Manager, the Person must satisfy
each of the following "Successor Manager Requirements":
(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
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execute a separate confidentiality agreement in the form attached as
Exhibit A with such changes thereto as may be reasonably requested by
the parties to the agreement, but the Person is not required to assume
the existing liabilities of the Affiliate.
Except as provided in Schedule 13, the Administrative Agent,
each Lender and each Secured Creditor and each of their wholly-owned
subsidiaries or entities who wholly-own such entities shall be deemed to
satisfy Sections 13(a), (b) and (c) of the preceding "Successor Management
Requirements".
SECTION 14. Management Agreement. Sprint PCS agrees that it will not
exercise its right under the Management Agreement to purchase the Operating
Assets or to sell the Disaggregated License to 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 the Affiliate
under any agreement with Sprint PCS or any of its Related Parties 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 the Service Area until the first to occur of the following events:
(i) the Obligations have been paid in full in cash and all commitments to
advance credit under the Credit Agreement have terminated or expired, (ii) the
sale by Sprint PCS of the Spectrum pursuant to this Consent and Agreement shall
be effected, and (iii) the sale of the Operating Assets pursuant to this
Consent and Agreement. Sprint PCS acknowledges that the financing provided
pursuant to the Loan Documents complies with Section 1.7 of the Management
Agreement and Section 11.3.6 of the Management Agreement shall no longer be
applicable with respect to such financing. Notwithstanding anything to the
contrary contained in Section 12.2 of the Management Agreement, the
Administrative Agent, the Lenders, and any Successor Manager or buyer of the
Operating Assets or Disaggregated License shall be permitted to disclose
Confidential Information (as defined in the Management Agreement) (i) to the
extent required by law, rule or regulation, (ii) to any regulator or any
regulatory body regulating such entity, (iii) to any rating agency in
connection with requirements applicable to such Person and (iv) to the lawyers
and accountants for any such Persons.
SECTION 15. Administrative Agent and Eligible Assignees.
(a) The Administrative Agent and each Lender and Secured
Creditor must be an Eligible Assignee. "Eligible Assignee" shall mean
and include a commercial bank, financial institution, other
"accredited investor" (as defined in Regulation D of the Securities
Act) other than individuals, or a "qualified institutional buyer" as
defined in rule 144A of the Securities Act; provided, that prior to
the 61st day after the filing of a bankruptcy petition by or with
respect to Affiliate in no event may any Person that is engaged in or
that controls, is controlled by or is under common control with any
Person engaged in, the
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telecommunications service business in the United States (other than
Sprint Corporation and its subsidiaries), be an Eligible Assignee, it
being understood that no small business investment corporation that is
ultimately owned by an Eligible Assignee that is subject to Regulation
Y shall be deemed to be controlled by or under common control with
such Eligible Assignee; and provided further, that after the filing of
such bankruptcy petition in no event may a Schedule 13 Person be an
Eligible Assignee.
(b) If (i) the Administrative Agent or any Lender or Secured
Party becomes a Schedule 13 Person and (ii) a new Administrative Agent
or Lender or Secured Party (as applicable) commits to purchase all
interests of such Administrative Agent, Lender or Secured Party in the
Obligations and the Loan Documents and assume all commitments and
obligations of such Administrative Agent, Lender or Secured Party
under the Loan Documents, in each case within such three months as
described in clause (A) below, for the aggregate amount of the unpaid
Obligations of such Administrative Agent, Lender or Secured Party,
then such Administrative Agent, Lender or Secured Party shall (A)
assuming such purchaser does not breach its commitment to so purchase,
divest itself of all interests in the Obligations and the Loan
Documents within three (3) months after such Administrative Agent,
Lender or Secured Party becomes a Schedule 13 Person by selling such
interests in consideration of the payment of such aggregate amount and
the assumption of such commitments and obligations, and (B) promptly
upon the consummation of such sale, no longer be given or be entitled
to receive any Confidential Information. In no event shall the
Administrative Agent or any Lender or Secured Party be obligated or
responsible to find or obtain a purchaser to purchase any Obligations
or Loan Documents or to assume any commitments or obligations.
SECTION 16. Sprint Party Representations. Each Sprint Party represents
and warrants to the Administrative Agent, as of the Closing Date (a) its
execution, delivery and performance of this Consent and Agreement has been duly
authorized by all necessary partnership action, and does not and will not
require any further consents or approvals that have not been obtained, or
violate any provision of any law, regulation, order, judgment, injunction or
similar matters or materially breach any agreement presently in effect with
respect to or binding on it; provided, that the transfer of Spectrum as
contemplated under this Consent and Agreement will require regulatory approval
(which each Sprint Party agrees to use its commercially reasonable efforts to
obtain); (b) this Consent and Agreement is a legal, valid and binding
obligation of such Person enforceable against it in accordance with its terms,
except that (i) such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws
affecting the enforcement of creditors' rights generally, and (ii) the remedy
of specific performance and injunctive and other forms of equitable relief may
be limited by equitable defenses and by the discretion of the court before
which any proceeding may be brought; (c) the Sprint Agreements are in full
force and effect and have not been amended, supplemented or modified; (d) as of
the date of execution hereof, to the knowledge of the Sprint Parties, no Event
of Termination has occurred and is continuing (without regard to any
requirement of the delivery of written notice necessary to the occurrence of an
Event of Termination under Section 11.3 of the Management Agreement); (e) on
the date the Management Agreement was executed Sprint PCS owned, and on
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the date hereof Sprint PCS owns, 10 MHz or more of Spectrum in the Service
Area; and (f) the only existing agreements or arrangements between Affiliate,
on the one hand, and Sprint Corporation or any of its subsidiaries, on the
other hand, are the Management Agreement, the Services Agreement and the
License Agreements.
SECTION 17. 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, Nortel Networks Inc. is the only Lender; and (d)
as of the date of execution hereof, to the knowledge of the Administrative
Agent, no Event of Default has occurred and is continuing.
SECTION 18. Successors and Assigns. This Consent and Agreement shall
be binding upon the successors and assigns of the parties hereto and shall
inure, together with the rights and remedies of the parties hereunder, to the
benefit of their respective successors and assigns. In the event the Sprint PCS
Network is sold in accordance with the Management Agreement, the buyer thereof
will assume the obligations of the Sprint Parties hereunder and under all the
other Sprint Agreements other than the Sprint Trademark and Service Xxxx
License Agreement; provided, however, the buyer of the Sprint PCS Network shall
enter into an agreement with Affiliate on substantially the same terms as the
Sprint Trademark and Service Xxxx License Agreement with respect to such
buyers' trademarks, service marks, brands, etc. In the event a Successor
Manager becomes a party to the Sprint Agreements as provided in this Agreement,
this Consent and Agreement shall remain in full force and effect for the
benefit of the Successor Manager and any Person providing senior secured debt
financing to such Successor Manager if required by such Person.
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 and Affiliate, and
neither this Consent and Agreement nor any provision herein may be amended or
modified except pursuant to an agreement or agreements in writing entered into
by Sprint PCS, the Administrative Agent and 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; provided, however, that no consent of Affiliate shall be
necessary for any amendment or modification to this Consent and Agreement
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made pursuant to and in accordance with Section 24 hereof, unless such
amendment or modification could reasonably be expected to be materially adverse
to Affiliate.
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 Spectrum, to it at:
Sprint Spectrum L.P.
0000 Xxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx, 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Chief Executive Officer
with a copy to:
0000 Xxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx, 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: General Counsel
(b) if to the Administrative Agent, to it at:
Nortel Networks Inc.
GMS 991 16 A20
0000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, Xxxxx 00000-0000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Vice President - Finance
Wireless Networks
Nortel Networks Inc.
GMC 991 15 A40
0000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, Xxxxx 00000-0000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Vice President,
Customer Finance North America
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Nortel Networks Inc.
P. X. Xxx 000000
Xxxxxxxxxx, Xxxxx 00000-0000
Mail Stop 04D/02/A40
Telephone No.: 972) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxx Xxx, Loan Administration
with a copy to:
Jenkens & Xxxxxxxxx
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
(c) if to Affiliate, to it at:
Alamosa PCS LLC
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000-
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
Chairman of the Board of Managers
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
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addressed) to such party as provided in this Section 21 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 21.
SECTION 22. Counterparts. This Consent and Agreement may be executed
in two or more counterparts, each of which shall constitute an original but all
of which when taken together shall constitute but one contract.
SECTION 23. Severability. Any provision of this Consent and Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction. The parties
shall endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provision with valid provisions the economic effect of which is
as close as possible to that of the invalid, illegal or unenforceable
provision.
SECTION 24. Amendments to Form Consent and Agreement. As of the date
this Consent and Agreement is executed, it contains provisions substantially
similar to the provisions of every other executed Consent and Agreement. If
Sprint PCS modifies or amends the form of Consent and Agreement it enters into
with another lender, then Sprint PCS agrees to give the Administrative Agent
written notice of such modifications and amendments and 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; (c) if such amendment to this Consent and
Agreement could reasonably be expected to be materially adverse to Affiliate,
such amendment shall not be made without the prior written consent of Affiliate
(although the Affiliate's withholding of such consent will result in none of
the changes being made to this Consent and Agreement because of the requirement
of clause (b) above); and (d) Sprint PCS is only required to make changes to
this Consent and Agreement based on changes made to the form of Consent and
Agreement executed in connection with loans to Other Managers that are
syndicated or intended to be syndicated (i.e., loans sold or participated, or
intended to be sold or participated, in whole or in part to at least three
financial institutions or investment funds) (a "Syndication Consent") until the
later to occur of: (i) five Syndication Consents are executed, and (ii) loans
to Other Managers are syndicated where the pops in the Service Areas of such
Other Managers, in the aggregate, exceed 10 million; provided, however, that in
the event any Syndicated Consent executed after such later date relates to a
transaction where the pops in the Service Area of the Other Manager exceed 5
million, Sprint PCS agrees to give the Administrative Agent the right to amend
this Consent and Agreement in the same manner as described above in clauses (a)
and (b).
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)
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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 the ownership status, terms of usage or amount
of Disaggregated License utilized by Affiliate; (iv) any material change in the
flow of revenues between Sprint Spectrum and Affiliate excluding changes
related to the pricing of direct or indirect fees, but including any
subordination of direct or indirect fees to Sprint PCS; (v) any change to
obligations required to be assumed by, or qualifications for, any Interim or
Successor Manager, including changes in the time period Sprint PCS agrees to
remain as Interim Manager; (vi) any changes in confidentiality, non-compete or
Eligible Assignee language, including changes to Schedule 13; (vii) any
clarifications of FCC compliance issues or (viii) the issuance of legal
opinions.
[The remainder of this page is intentionally left blank.]
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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.
a Delaware limited partnership
By: /s/ XXXXXXX XXXXXXXXX
-------------------------------------
Xxxxxxx X. Xxxxxxxxx
Chief Business Development Officer
SPRINTCOM, INC.
a Kansas corporation
By: /s/ XXXXXXX XXXXXXXXX
-------------------------------------
Xxxxxxx X. Xxxxxxxxx
Vice President
SPRINT COMMUNICATIONS COMPANY, L.P.
a Delaware limited partnership
By: /s/ XXXXXX XXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------------
Title: SVP, Consumer Market Strategy and
Communication
WIRELESSCO, L.P.
a Delaware limited partnership
By: /s/ XXXXXXX XXXXXXXXX
-------------------------------------
Xxxxxxx X. Xxxxxxxxx
Chief Business Development Officer
NORTEL NETWORKS INC.
for itself and as Administrative Agent
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Director, Customer Finance
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Acknowledgment, Consent and Agreement of Affiliate
The undersigned Affiliate (i) has reviewed this Consent and Agreement,
(ii) acknowledges, consents and agrees to the terms and provisions of this
Consent and Agreement, and (iii) agrees to be bound by the terms and provisions
of this Consent and Agreement, including, without limitation, such terms and
provisions that affect Affiliate or its rights under the Management Agreement.
Without limiting the generality of the foregoing: (i) Affiliate acknowledges
and agrees that the right to appoint an Interim Manager is intended to allow
the right and ability to preserve and/or protect the Collateral or its value
and the Service Area Network or its value and (ii) Affiliate acknowledges and
agrees that in the event of the sale of the Collateral by the 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.
ALAMOSA PCS LLC
a Texas limited liability company
By: /s/ XXXXX X. XXXXXXXX
---------------------------------------
Xxxxx X. Xxxxxxxx,
Chairman of the Board of Managers
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