EXHIBIT 10.36.1
FIRST AMENDMENT dated as of October 20, 2000, to the Credit Agreement
dated as of August 28, 2000 (as amended, the "Credit Agreement"),
among Cricket Communications Holdings, Inc., Cricket Communications,
Inc., the lenders party thereto and Nortel Networks Inc., as
administrative agent. Capitalized terms used herein and not defined
herein shall have the meanings assigned to such terms in the Credit
Agreement.
WHEREAS Holdings and the Borrower have requested that certain provisions of
the Credit Agreement be amended in certain respects, and the Lenders and the
Administrative Agent are willing to amend such provisions on the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual agreements contained
in this Amendment and other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1. Amendments.
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(a) Section 1.01 of the Credit Agreement is amended by adding thereto in
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its proper alphabetical order a new definition of "Ericsson Credit Agreement" to
read in its entirety as follows:
"Ericsson Credit Agreement" means that certain Credit Agreement dated
-------------------------
as of October 20, 2000, among Holdings, the Borrower, the lenders party
thereto and Ericsson Credit AB, as amended from time to time."
(b) Section 1.01 of the Credit Agreement is hereby amended by deleting the
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definition of "Lucent Credit Agreement" and replacing it with the following:
"Lucent Credit Agreement" means that certain Credit Agreement dated
-----------------------
as of September 20, 1999, as amended and restated as of October 20, 2000,
among Holdings, the Borrower, the lenders party thereto and Lucent
Technologies, Inc., as amended from time to time."
(c) Section 1.01 of the Credit Agreement is hereby amended by deleting the
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definition of "Permitted License Acquisition Debt" and replacing it with the
following:
"Permitted License Acquisition Debt" means Indebtedness (other than
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FCC Debt) of any License Subsidiary in respect of the deferred purchase
price of any FCC License purchased by such License Subsidiary; provided
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that (a) such Indebtedness shall not be secured by any Lien, other than a
Lien on the Equity Interests of the License Subsidiary that holds such FCC
License, (b) arrangements satisfactory to the Agents shall have been made
for the Lien granted under the Parent Pledge Agreement on the Equity
Interests of such License Subsidiary to be perfected, subject to the
prior Lien referred to in clause (a) above, (c) such Indebtedness shall
mature within three years after the date such Indebtedness is incurred, and
(d) the holder of such Indebtedness shall have entered into an agreement
with the Administrative Agent, in form and substance reasonably
satisfactory to the Administrative Agent, pursuant to which such holder
shall have agreed to sell such Indebtedness upon demand to any holders of
Eligible Secured Debt who elect to participate in such sale if an Event of
Default has occurred and is continuing, for a purchase price equal to the
outstanding principal amount thereof and accrued and unpaid interest
thereon."
(d) Section 2.09 of the Credit Agreement is hereby amended to read in its
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entirety as follows:
"Section 2.09 Repayment of Loans.
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(a) The Borrower shall have the right at any time and from time to
time to prepay any Borrowing in whole or in part, subject to the
requirements of this Section.
(b) In the event and on each occasion that any Net Proceeds are
received by or on behalf of the Borrower or any Subsidiary Loan Party in
respect of any Prepayment Event, the Borrower shall, within three Business
Days after such Net Proceeds are received, prepay Eligible Secured Debt
(including Borrowings), ratably in accordance with the outstanding
principal amount thereof, in an aggregate principal amount equal to such
Net Proceeds; provided that, in the case of any event described in clause
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(a) of the definition of the term Prepayment Event, if the Borrower shall
deliver to the Administrative Agent a certificate of a Financial Officer to
the effect that the Borrower and the Subsidiaries intend to apply the Net
Proceeds from such event (or a portion thereof specified in such
certificate), within 180 days after receipt of such Net Proceeds, to
acquire real property, equipment or other tangible assets to be used in the
business of the Borrower and the Subsidiaries, and certifying that no
Default has occurred and is continuing, then no prepayment shall be
required pursuant to this paragraph in respect of the Net Proceeds in
respect of such event (or the portion of such Net Proceeds specified in
such certificate, if applicable) except to the extent of any such Net
Proceeds therefrom that have not been so applied by the end of such 180-day
period, at which time a prepayment shall be required in an amount equal to
such Net Proceeds that have not been so applied.
(c) Following the end of each fiscal year of the Borrower, commencing
with the fiscal year during which the Availability Termination Date occurs,
the Borrower shall prepay Eligible Secured Debt (including Borrowings),
ratably in accordance with the outstanding principal amount thereof, in an
aggregate principal amount equal to 50% of Excess Cash Flow for such fiscal
year. Each prepayment pursuant to
this paragraph shall be made on or before the date on which financial
statements are delivered pursuant to Section 5.01 with respect to the
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fiscal year for which Excess Cash Flow is being calculated (and in any
event within 90 days after the end of such fiscal year).
(d) In the event and on each occasion that the Borrower or any
Subsidiary Loan Party Repays any Indebtedness (other than Eligible Secured
Debt) of the Borrower or any Subsidiary Loan Party then the Borrower shall,
within three Business Days after the date of such Repayment, prepay
Eligible Secured Debt (including Borrowings), ratably in accordance with
the outstanding principal amount thereof, in an aggregate amount equal to
the product of (x) the sum of the aggregate principal amount of the
Eligible Secured Debt outstanding at the time, multiplied by (y) a
fraction, the numerator of which is the aggregate principal amount of such
Repayment, and the denominator of which is the amount of Total Indebtedness
immediately prior to such Repayment (excluding Eligible Secured Debt and
Indebtedness outstanding under revolving credit facilities); provided that
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prepayments of Eligible Secured Debt shall not be required pursuant to this
paragraph in respect of (i) any Repayment of Indebtedness to the extent
such Repayment is refinanced by incurring other Indebtedness that (A) has a
scheduled maturity date that is on or after the scheduled maturity date of
the Indebtedness being refinanced, (B) has a weighted average life to
maturity that is equal to or longer than the remaining weighted average
life to maturity of the Indebtedness being refinanced, determined
immediately prior to giving effect to such Repayment, (C) does not include
any provisions that may require mandatory Repayment thereof prior to
scheduled maturity, other than scheduled repayments taken into
consideration in determining compliance with clause (B) above and other
provisions that are not materially more burdensome than any such provisions
included in the Indebtedness being refinanced, (D) is issued or incurred by
the same Person that issued or incurred the Indebtedness being refinanced
and is not Guaranteed or secured by any Lien unless the Indebtedness being
refinanced was Guaranteed or secured (in which case such Indebtedness shall
not be Guaranteed by any Person that did not Guarantee the Indebtedness
being refinanced and shall not be secured by a Lien on any asset that did
not secure the Indebtedness being refinanced), and (E) is subordinated to
the Obligations on terms no less favorable than the terms on which the
Indebtedness being refinanced was so subordinated, if such refinanced
Indebtedness was so subordinated (any such refinancing which satisfies such
conditions being referred to herein as a "Qualified Refinancing"), (ii) any
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Repayment of Indebtedness outstanding under a revolving credit facility to
the extent that (A) the commitments of the lenders to make loans thereunder
remain in effect after giving effect to such Repayment or are replaced by
commitments under a replacement revolving credit facility and (B) such
commitments are not reduced within six months thereafter, (iii) any
Repayment of secured Indebtedness in connection with the sale of the assets
securing such Indebtedness, or (iv)
any Repayment of Indebtedness at the scheduled final maturity thereof or in
accordance with regularly scheduled amortization requirements prior to
maturity.
(e) In the event and on each occasion that the Borrower or any
Subsidiary Loan Party Repays any Eligible Secured Debt (other than Loans
hereunder), then the Borrower shall, within three Business Days after the
date of such Repayment, prepay Borrowings in an aggregate principal amount
equal to the product of (x) the sum of the aggregate principal amount of
Loans outstanding at the time, multiplied by (y) a fraction, the numerator
of which is the aggregate principal amount of such Repayment, and the
denominator of which is the aggregate outstanding principal amount of the
Eligible Secured Debt that was the subject of such Repayment (immediately
prior to such Repayment); provided that prepayments of Borrowings shall not
be required pursuant to this paragraph in respect of (i) any Repayment of
Eligible Secured Debt at the scheduled final maturity thereof or in
accordance with regularly scheduled amortization requirements prior to
maturity, (ii) any Repayment of other Eligible Secured Debt that
constitutes a mandatory prepayment thereof in accordance with paragraph
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(b), (c) or (d) of this Section, (iii) a Qualified Refinancing, or (iv) a
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mandatory pro rata prepayment of any Eligible Secured Debt (other than the
Loans hereunder) as a result of corresponding provisions thereof requiring
a pro rata payment thereof in the event of a prepayment of the Loans
hereunder.
(f) Prior to any optional or mandatory prepayment of Borrowings
hereunder, the Borrower shall select the Borrowing or Borrowings to be
prepaid and shall specify such selection in the notice of such prepayment
pursuant to paragraph (g) of this Section; provided that the Borrower shall
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select Borrowings to be prepaid such that each Lender shall receive its pro
rata share of such prepayment as provided in Section 2.16.
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(g) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder not later than 11:00
a.m., New York City time, three Business Days before the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date, the principal amount of each Borrowing or portion thereof
to be prepaid and, in the case of a mandatory prepayment, a reasonably
detailed calculation of the amount of such prepayment. Promptly following
receipt of any such notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Borrowing
shall be in an amount that would be permitted in the case of an advance of
a Borrowing of the same Type as provided in Section 2.02, except as
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necessary to apply fully the required amount of a mandatory prepayment.
Each prepayment of a Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments of
Borrowings shall be accompanied by the payment of accrued interest on the
amount prepaid."
(e) Clause (a) of Section 4.02 of the Credit Agreement is hereby amended
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to read in its entirety as follows:
"(a) the Ericsson Credit Agreement and the Lucent Credit Agreement
shall have been duly executed by the parties thereto and shall be in the
forms of the versions thereof previously delivered to Nortel Networks, and
the lenders under such agreements shall have confirmed in a manner
reasonably satisfactory to the Administrative Agent that the terms and
conditions of the Loans are not less favorable to the Borrower in any
material respect than, and are not inconsistent with, the terms and
conditions of the Indebtedness outstanding under their respective
agreements."
(f) The reference to the date "October 30, 2000" contained in the last
sentence of Section 4.02 of the Credit Agreement is hereby amended to mean and
refer to the date "November 10, 2000."
(g) Section 5.07 of the Credit Agreement is hereby amended by adding
thereto a new clause (d) to read in its entirety as follows:
"(d) The Borrower shall cause the Administrative Agent to be named as
a loss payee under all liability insurance policies required to be
maintained pursuant to this Section 5.07."
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(h) Section 5.10 of the Credit Agreement is hereby amended to read in its
entirety as follows:
"Section 5.10 Use of Proceeds. The proceeds of the Loans will be
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used solely (a) to make payments in respect of the Purchase Price and
Permitted Third Party Payments and (b) to pay fees payable under Sections
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2.10(a), 2.10(b) and 2.10(c), interest payable to Nortel Networks, the
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Agent or the Lenders under this Agreement and out-of-pocket expenses
incurred in connection with the negotiation, execution and delivery of the
Loan Documents; provided that (i) proceeds of Loans shall not be used to
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make payments in respect of the purchase price of equipment or services
referred to in clause (a) of the definition of "Permitted Third Party
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Payments" unless such equipment or services (as applicable) shall be used
solely in markets which are generally utilizing equipment provided by
Nortel Networks (as opposed to markets which are generally utilizing
equipment provided by competitors of Nortel Networks) and (ii) proceeds of
Loans shall not be used to purchase an FCC License as referred to in clause
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(b) of the definition of "Permitted Third Party Payments" unless such FCC
---
License is for a market that is to generally utilize equipment provided by
Nortel Networks (as opposed to a
market that is to generally utilize equipment provided by competitors of
Nortel Networks)."
(i) Clause (b) of Section 6.04 of the Credit Agreement is hereby amended
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by adding thereto at the end thereof a new final paragraph to read in its
entirety as follows:
"Any of the foregoing provisions of this Section 6.04 notwithstanding,
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the Borrower and any Subsidiary Loan Party may sell or otherwise transfer
obsolete, uneconomic or surplus equipment to Ericsson Wireless
Communications Inc., Nortel Networks Inc. or Lucent Technologies Inc. (or
any of their respective Affiliates) in connection with the purchase or
other acquisition by the Borrower or any Subsidiary Loan Party from such
transferee or its Affiliates of upgraded equipment replacing the equipment
so sold or transferred provided that (i) the replacement equipment
purchased or otherwise acquired performs the same general function as the
equipment so sold or transferred, (ii) title to the equipment sold or
otherwise transferred is not transferred to the transferee until the
Borrower or a Subsidiary Loan Party acquires title to the upgraded
equipment related thereto and such upgraded equipment has become Collateral
under the Security Agreement, (iii) the Borrower and the Subsidiary Loan
Parties may not sell or otherwise transfer to Lucent Technologies Inc. or
Ericsson Wireless Communications Inc. or any of their respective Affiliates
pursuant to this sentence any equipment financed by Lenders under this
Agreement, and (iv) such sale or other transfer is made for fair value."
(j) Section 6.08 of the Credit Agreement is hereby amended to read in its
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entirety as follows:
"Section 6.08 Restrictive Amendments. Neither Holdings nor the
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Borrower will, nor will it permit any Subsidiary Loan Party to, directly or
indirectly, enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon the
ability of any Subsidiary Loan Party to pay dividends or other
distributions with respect to any of its Equity Interests or to make or
repay loans or advances to the Borrower or to Guarantee Indebtedness of the
Borrower; provided that (a) the foregoing shall not apply to restrictions
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and conditions imposed by law or by any Loan Document (or imposed by any
agreement governing any other Eligible Secured Debt) and (b) the foregoing
shall not apply to restrictions and conditions existing on the date hereof
identified on Schedule 6.08 (but shall apply to any extension or renewal
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of, or any amendment or modification expanding the scope of, any such
restriction or condition)."
(k) Section 6.09 of the Credit Agreement is hereby amended to read in its
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entirety as follows:
"Section 6.09 Repayment of Indebtedness. The Borrower will not, nor
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will it permit any Subsidiary Loan Party to, make any Repayment in respect
of, or make any payment in violation of any subordination terms of, any
Indebtedness of the Borrower or any Subsidiary Loan Party except (a) any
Repayment of Indebtedness resulting in a prepayment of Loans pursuant to
Section 2.09(d) or (e) and (b) Repayments described in any of the clauses
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of the proviso to Section 2.09(d) or (e)."
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(l) Section 9.14 of the Credit Agreement is hereby amended by changing the
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words "the Agreement" appearing just prior to the last proviso thereto to be the
words "this Agreement".
(m) Exhibit B to the Credit Agreement is hereby amended by deleting the
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existing Exhibit B and replacing it with a new Exhibit B in the form attached
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hereto as Attachment I.
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Section 2. Representations and Warranties. Holdings and the Borrower
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hereby represent and warrant to the Lenders and the Administrative Agent that
(a) this Amendment has been duly authorized, executed and delivered by Holdings
and the Borrower and each of this Amendment and the Credit Agreement as amended
hereby constitutes a legal, valid and binding obligation of Holdings and the
Borrower, enforceable in accordance with its terms, (b) as of the date hereof,
and after giving effect to this Amendment, no Default or Event of Default has
occurred and is continuing and (c) the representations and warranties of
Holdings and the Borrower contained in the Credit Agreement, other than those
expressly made as of a specific date, are true and correct in all material
respects as if made on the date hereof.
Section 3. Conditions to Effectiveness. This Amendment shall become
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effective as of the date first set forth above when the Administrative Agent
shall have received from Holdings, the Borrower and the Required Lenders duly
executed counterparts of this Amendment.
Section 4. Applicable Law. THIS AMENDMENT SHALL BE CONSTRUED IN
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ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Section 5. Credit Agreement. Except as expressly amended hereby, the
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Credit Agreement shall continue in full force and effect in accordance with the
provisions thereof. Any reference in the Credit Agreement, or in any documents
or instruments required thereunder or annexes or schedules thereto, referring to
the Credit Agreement shall be deemed to refer to the Credit Agreement as amended
by this Amendment.
Section 6. Expenses. The Borrower agrees to reimburse the Administrative
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Agent for its out-of-pocket expenses in connection with this Amendment,
including the fees, charges and disbursements of Jenkens & Gilchrist, P.C.,
counsel for the Administrative Agent.
Section 7. Counterparts. This Amendment may be executed in two or more
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counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one contract. Delivery of an executed
counterpart of a signature page by facsimile transmission shall be effective as
delivery of a manually executed counterpart of this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first written above.
CRICKET COMMUNICATIONS
HOLDINGS, INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
CRICKET COMMUNICATIONS, INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
NORTEL NETWORKS INC.,
individually and as Administrative Agent
By:______________________________________
Name:____________________________________
Title:___________________________________
ATTACHMENT I
NEW EXHIBIT B
Form of Amended and Restated Collateral Agency Agreement
================================================================================
AMENDED AND RESTATED
COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT
dated as of
October 20, 2000
among
CRICKET COMMUNICATIONS, INC.,
The Representatives and Unrepresented Holders
referred to herein,
and
STATE STREET BANK AND TRUST COMPANY,
as Collateral Agent
================================================================================
TABLE OF CONTENTS
Page
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ARTICLE I Definitions........................................................ 2
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SECTION 1.01. Defined Terms.................................................... 2
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SECTION 1.02. Terms Generally.................................................. 15
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SECTION 1.03. Accounting Terms; GAAP........................................... 16
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ARTICLE II Permitted Additional Obligations; Additional Security Documents... 16
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SECTION 2.01. Permitted Additional Obligations................................. 17
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SECTION 2.02. Additional Security Documents.................................... 18
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ARTICLE III Acts of Secured Parties; Amounts of Obligations................... 18
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SECTION 3.01. Acts of Secured Parties.......................................... 19
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SECTION 3.02. Determination of Amounts of Obligations.......................... 19
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SECTION 3.03. Restrictions on Actions.......................................... 20
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ARTICLE IV Duties of Collateral Agent......................................... 21
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SECTION 4.01. Notice to Secured Parties........................................ 21
----------------------------------------
SECTION 4.02. Actions Under Support Documents.................................. 21
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SECTION 4.03. Conflicting Instructions; No Instructions........................ 23
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SECTION 4.04. Records.......................................................... 25
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ARTICLE V Collateral Accounts; Distributions................................. 26
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SECTION 5.01. The Collateral Accounts.......................................... 26
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SECTION 5.02. Application of Proceeds.......................................... 28
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SECTION 5.03. Time of Payments................................................. 28
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SECTION 5.04. Application of Amounts Not Distributable......................... 28
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SECTION 5.05. Treatment of Contingent Obligations.............................. 29
--------------------------------------------------
SECTION 5.06. Collateral Agent's Calculations.................................. 29
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ARTICLE VI Agreements......................................................... 30
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SECTION 6.01. Delivery of Agreements........................................... 30
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SECTION 6.02. Information...................................................... 30
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ARTICLE VII The Collateral Agent............................................... 30
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SECTION 7.01. Appointment; Rights and Duties................................... 31
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SECTION 7.02. Expenses; Indemnity; Damage Waiver............................... 33
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ARTICLE VIII Representations and Warranties..................................... 35
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SECTION 8.01. Organization; Powers............................................. 35
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SECTION 8.02. Authorization; Enforceability.................................... 35
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SECTION 8.03. Governmental Approvals; No Conflicts............................. 36
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ARTICLE IX Intercreditor Arrangements......................................... 36
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i
SECTION 9.01. Security Interests................................................ 36
---------------------------------
SECTION 9.02. Turnover of Collateral and Certain Payments....................... 36
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SECTION 9.03. Release of Collateral and Guarantees.............................. 37
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SECTION 9.04. Additional Collateral............................................. 38
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SECTION 9.05. Purchase of Collateral............................................ 38
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SECTION 9.06. Further Assurances, etc........................................... 38
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SECTION 9.07. Restrictions on Prepayments and Purchases of Indebtedness......... 39
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SECTION 9.08. Payment of Amounts Owing under Secured Instruments................ 39
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SECTION 9.09. Certain Amendments to Credit Agreement............................ 40
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ARTICLE X Benefit of Agreement.................................................. 41
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ARTICLE XI Miscellaneous......................................................... 41
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SECTION 11.01. Notices.......................................................... 41
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SECTION 11.02. Waivers; Amendments.............................................. 42
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SECTION 11.03. Counterparts..................................................... 44
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SECTION 11.04. Severability..................................................... 44
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SECTION 11.05. Governing Law; Jurisdiction; Consent to Service of Process....... 44
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SECTION 11.06. WAIVER OF JURY TRIAL............................................. 45
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SECTION 11.07. Headings......................................................... 45
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SECTION 11.08. Successors and Assigns........................................... 45
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SECTION 11.09. Termination...................................................... 46
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SECTION 11.10. Complete Agreement............................................... 46
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EXHIBIT:
Exhibit A -- Form of Permitted Additional Obligations
Designation
ii
AMENDED AND RESTATED COLLATERAL AGENCY AND INTERCREDITOR
AGREEMENT dated as of October 20, 2000 among CRICKET
COMMUNICATIONS, INC. a Delaware corporation, STATE STREET BANK
AND TRUST COMPANY, as Collateral Agent, and the Representatives
and Unrepresented Holders referred to herein.
WHEREAS the Borrower (such term, and other capitalized terms used in
this preliminary statement, having the meanings set forth in this Agreement
below) has entered into the Credit Agreement pursuant to which the Lenders have
made and will continue to make Loans to the Borrower;
WHEREAS the Loan Parties have entered into certain Security Documents
in order to secure the Credit Facility Obligations and the Subsidiary Loan
Parties have entered into the Guarantee Agreement in order to guarantee the
Credit Facility Obligations;
WHEREAS the Borrower may from time to time incur Permitted Additional
Obligations that may be secured under the Security Documents and guaranteed
pursuant to the Guarantee Agreement and the Parent Guarantee Agreement;
WHEREAS the Borrower, the Collateral Agent and the Administrative
Agent have entered into the Amended and Restated Collateral Agency and
Intercreditor Agreement dated as of August 14, 2000, amending and restating the
Collateral Agency and Intercreditor Agreement dated as of November 24, 1999 (as
so amended and restated, the "Existing Agreement") in order to set forth certain
------------------
agreements with respect to the Obligations to be so secured and guaranteed,
including mechanisms for securing Permitted Additional Obligations and certain
intercreditor arrangements with respect to the enforcement of rights under the
Support Documents and the allocation of proceeds in respect of the Obligations;
and
WHEREAS, the Borrower (a) has entered into the Nortel Credit
Agreement, (b) has entered into (or, concurrently with the execution and
delivery hereof, is entering into) the Ericsson Credit Agreement, (c) has
designated (or, concurrently with the execution and
delivery hereof, is designating) the Nortel Facility Obligations and the
Ericsson Facility Obligations as Permitted Additional Obligations in accordance
with Section 2.01 of the Existing Agreement and (d) has requested that the
Existing Agreement be amended and restated in the form hereof in order to
confirm that the Nortel Facility Obligations and the Ericsson Facility
Obligations are entitled to the benefits of the Support Documents and to effect
certain other changes to the Existing Agreement;
NOW THEREFOR, the parties hereto agree as follows:
ARTICLE I
Definitions
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SECTION 1.01. Defined Terms. As used in this Agreement, the
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following terms have the meanings specified below:
"Act" has the meaning set forth in Section 3.01.
---
"Additional Security Document" means any agreement or instrument
----------------------------
(other than the Initial Security Documents) creating or evidencing a security
interest of the Collateral Agent in, or a Lien in favor of the Collateral Agent
on, or an assignment to the Collateral Agent of, any Collateral.
"Affiliate" means, with respect to a specified Person, another Person
---------
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Administrative Agent" means Lucent Technologies Inc., in its capacity
--------------------
as administrative agent for the Lenders under the Credit Agreement.
"Borrower" means Cricket Communications, Inc. (formerly known as
--------
Cricket Wireless Communications, Inc.), a Delaware corporation.
"Borrower Pledge Agreement" means the Borrower Pledge Agreement dated
-------------------------
as of November 24, 1999, among Holdings, the Borrower, the Subsidiary Loan
Parties and the Collateral Agent.
"Business Day" has the meaning assigned to such term in the Credit
------------
Agreement or, if the Credit Agreement is not in effect, the Nortel Credit
Agreement or, if the Credit Agreement and the Nortel Credit Agreement are not in
effect, the Ericsson Credit Agreement, in each case as such Agreement is in
effect at the date hereof.
"Capital Lease Obligations" of any Person means the obligations of
-------------------------
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"ChaseTel Subordination Agreement" means the Subordination Agreement
--------------------------------
dated as of March 16, 2000, among Holdings, the Borrower, the Administrative
Agent and Chase Telecommunications Holdings, Inc., a Delaware corporation.
"Collateral" means (a) any and all "Collateral" as defined in any
----------
applicable Security Document and (b) any and all other assets of whatever
nature, tangible or intangible, now owned or existing or hereafter acquired or
arising in which the Collateral Agent has been granted a Lien or security
interest, or that have been assigned to the Collateral Agent, pursuant to any of
the Security Documents.
"Collateral Accounts" has the meaning set forth in Section 5.01(a).
-------------------
"Collateral Agent" means State Street Bank and Trust Company, in its
----------------
capacity as collateral agent for the Secured Parties under the Support
Documents.
"Contingent Obligations" means any Obligations that are contingent
----------------------
obligations or not yet liquidated, including any obligation for the
reimbursement of any letter of credit that is outstanding but not yet drawn
upon.
"Contingent Obligations Collateral Account" has the meaning set forth
-----------------------------------------
in Section 5.05.
"Control" means the possession, directly or indirectly, of the power
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to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
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"Credit Agreement" means the Credit Agreement dated as of September
----------------
20, 1999, among Holdings, the Borrower, the Lenders and the Administrative
Agent; provided that, for purposes of the Support Documents (other than this
--------
Agreement), any reference to "the Credit Agreement" therein shall be deemed to
mean "each Secured Instrument" (as defined herein).
"Credit Facility" means a credit facility, or group of credit
---------------
facilities, extended pursuant to a single Secured Instrument. For purposes of
this definition, all credit facilities that are governed by the same credit
agreement, loan agreement or similar document, or in respect of which the
Secured Parties thereunder vote together for purposes of declaring or waiving
defaults, shall be deemed to be extended pursuant to the same Secured
Instrument.
"Credit Facility Obligations" means (a) the principal of and premium,
---------------------------
if any, and interest (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding) on the Loans, when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise and (b) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding) of the Borrower under the
Credit Agreement.
"Effective Date" has the meaning assigned to such term in the Credit
--------------
Agreement. The parties hereto acknowledge that the Effective Date occurred on
September 20, 1999.
"Enforcement Collateral Account" has the meaning set forth in Section
------------------------------
5.01(a).
"Environmental Laws" means all laws, rules, regulations, codes,
------------------
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
-----------------------
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means shares of capital stock, partnership
----------------
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"Ericsson Agent" means Ericsson Credit AB, in its capacity as
--------------
administrative agent for the Ericsson Lenders under the Ericsson Credit
Agreement.
"Ericsson Credit Agreement" means the Credit Agreement dated as of
-------------------------
October 20, 2000, among Holdings, the Borrower, the Ericsson Lenders and the
Ericsson Agent.
"Ericsson Facility Obligations" means (a) the principal of and
-----------------------------
premium, if any, and interest (including interest accruing during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) on the Ericsson
Loans, when and as due, whether at maturity, by acceleration, upon one or more
dates set for prepayment or otherwise and (b) all other monetary obligations,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) of the Borrower under the Ericsson Credit
Agreement.
"Ericsson Lenders" means the lenders from time to time party to the
----------------
Ericsson Credit Agreement.
"Ericsson Loans" has the meaning assigned to the term "Loans" in the
--------------
Ericsson Credit Agreement.
"Financial Officer" means the chief financial officer, principal
-----------------
accounting officer, treasurer or controller of the Borrower.
"GAAP" means, subject to Section 1.03, generally accepted accounting
----
principles in the United States of America.
"General Collateral Account" has the meaning set forth in Section
--------------------------
5.01(a).
"General Funds" means funds required to be deposited in the General
-------------
Collateral Account as provided in Section 5.01(b).
"General Funds Release Request" means a written request delivered by
-----------------------------
the Borrower to the Collateral Agent requesting the Collateral Agent to release
funds from the General Collateral Account. Each General Funds Release Request
(a) shall specify (i) the amount of funds to be released, (ii) the date of the
requested release, (iii) the purpose for which the Borrower expects to use such
funds, (iv) the applicable provisions of the applicable Secured Instrument or
Secured Instruments pursuant to which such funds are being released and (v) the
wire instructions for the transfer of such funds to or for the account of the
Borrower and (b) shall be accompanied by a certificate of a Financial Officer to
the effect that such requested release of funds is not in contravention of any
Secured Instrument.
"Governmental Authority" means the government of the United States of
----------------------
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative
powers or functions of or pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
--------- ---------
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
---------------
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
--------
endorsements for collection or deposit in the ordinary course of business.
"Guarantee Agreement" means the Guarantee Agreement dated as of
-------------------
November 24, 1999, among Holdings, the Subsidiary Loan Parties and the
Collateral Agent.
"Hazardous Materials" means all explosive or radioactive substances or
-------------------
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Holder" means any direct holder of, or creditor party to a Secured
------
Instrument in respect of, any Obligations.
"Holdings" means Cricket Communications Holdings, Inc. (formerly known
--------
as Cricket Communications, Inc.), a Delaware corporation.
"Indebtedness" of any Person means, without duplication, (a) all
------------
obligations of such Person for borrowed money or with respect to advances of any
kind, (b)
all obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person upon which interest charges are
customarily paid, (d) all obligations of such Person under conditional sale or
other title retention agreements relating to property acquired by such Person,
(e) all obligations of such Person in respect of the deferred purchase price of
property or services (excluding current accounts payable incurred in the
ordinary course of business), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (g)
all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person, (i) all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit and letters of
guaranty and (j) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances. The Indebtedness of any Person shall include
the Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.
"Indemnitee" has the meaning assigned to such term in Section 7.02.
----------
"Indemnity, Subrogation and Contribution Agreement" means the
-------------------------------------------------
Indemnity, Subrogation and Contribution Agreement dated as of November 24, 1999,
among the Borrower, the Subsidiary Loan Parties and the Collateral Agent.
"Initial Security Documents" means this Agreement, the Security
--------------------------
Agreement, the Borrower Pledge Agreement and the Parent Pledge Agreement.
"Lenders" means the lenders from time to time party to the Credit
-------
Agreement; provided that, for purposes of the Support Documents (other than this
--------
Agreement), any reference to "Lender" or "Lenders" therein shall be deemed to
mean "Secured Party" or "Secured Parties" (as defined herein), respectively.
"License Subsidiary" has the meaning assigned to such term in the
------------------
Credit Agreement or, if the Credit Agreement is not in effect, the Nortel Credit
Agreement or, if the Credit Agreement and the Nortel Credit Agreement are not in
effect, the Ericsson Credit Agreement, in each case as such Agreement is in
effect at the date hereof.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
----
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means the "Loan Documents", as defined in each of the
--------------
Credit Agreement, the Nortel Credit Agreement and the Ericsson Credit Agreement
and includes all other agreements, documents and instruments evidencing or
governing any of the Obligations (including all Secured Instruments and Support
Documents), in each case as in effect from time to time.
"Loan Parties" means the Parent, Holdings, the Borrower and the
------------
Subsidiary Loan Parties.
"Loans" has the meaning assigned to such term in the Credit Agreement;
-----
provided that, for purposes of the Support Documents (other than this
- --------
Agreement), any reference to "Loans" therein shall be deemed to mean
"Obligations" (as defined herein).
"Moody's means Moody's Investors Service, Inc.
-------
"Non-Vendor Secured Party" means any Secured Party that (a) is not a
------------------------
Vendor or an Affiliate of a Vendor, (b) is not a Holder of any Obligations
Guaranteed by or otherwise subject to credit support provided by a Vendor or an
Affiliate of a Vendor and (c) is not subject to any agreement or arrangement
pursuant to which any Vendor or an Affiliate of any Vendor has the right to
direct, or to consent or approve of the exercise of, any voting rights of such
Secured Party in respect of the Obligations held by it.
"Nortel Agent" means Nortel Networks Inc., in its capacity as
------------
administrative agent for the Nortel Lenders under the Nortel Credit Agreement.
"Nortel Credit Agreement" means the Credit Agreement dated as of
-----------------------
August 28, 2000, among Holdings, the Borrower, the Nortel Lenders and the Nortel
Agent.
"Nortel Facility Obligations" means (a) the principal of and premium,
---------------------------
if any, and interest (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding) on the Nortel Loans, when and
as due, whether at maturity, by acceleration, upon one or more dates set for
prepayment or otherwise and (b) all other monetary obligations, including fees,
costs, expenses and indemnities, whether primary, secondary, direct, contingent,
fixed or otherwise (including monetary obligations incurred during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) of the Borrower
under the Nortel Credit Agreement.
"Nortel Lenders" means the lenders from time to time party to the
--------------
Nortel Credit Agreement.
"Nortel Loans" has the meaning assigned to the term "Loans" in the
------------
Nortel Credit Agreement.
"Notice of Cancelation of Enforcement" means, with respect to any
------------------------------------
Notice of Enforcement, a notice or notices delivered to the Collateral Agent by
Representatives and/or Unrepresented Holders canceling such Notice of
Enforcement in accordance with Section 4.02.
"Notice of Enforcement" means a notice or notices delivered to the
---------------------
Collateral Agent by Representatives and/or Unrepresented Holders in accordance
with Section 4.02 stating that (a) all or part of the Obligations are due and
payable and remain unpaid and any applicable grace period for payment thereof
has lapsed or (b) all or part of the Obligations are then permitted by the
Secured Instrument or Secured Instruments under which such Obligations are
outstanding (because of the occurrence of an event of default or similar event
under such Secured Instrument or Secured Instruments) to be declared due and
payable prior to the stated maturity thereof pursuant to the terms of such
Secured Instrument or
Secured Instruments. A Notice of Enforcement shall be deemed to have been given
when the notice referred to in the preceding sentence has actually been received
by the Collateral Agent and to have been rescinded when the Collateral Agent has
actually received a Notice of Cancelation of Enforcement. A Notice of
Enforcement shall be deemed to be in effect at all times after such Notice of
Enforcement has been given until such time, if any, as such Notice of
Enforcement has been rescinded. The Representatives and Unrepresented Holders
that delivered a Notice of Enforcement shall rescind such Notice of Enforcement
once such Representatives and Unrepresented Holders are satisfied that the event
or events giving rise to such Notice of Enforcement have been cured or waived in
accordance with the applicable Secured Instrument and no other event has
occurred and is continuing that would permit a Notice of Enforcement to be
given.
"Obligations" means, collectively, the Credit Facility Obligations,
-----------
the Nortel Facility Obligations, the Ericsson Facility Obligations and all
Permitted Additional Obligations.
"Parent" means Leap Wireless International, Inc., a Delaware
------
corporation.
"Parent Guarantee Agreement" means the Guarantee Agreement dated as of
--------------------------
August 28, 2000, between the Parent and the Collateral Agent.
"Parent Pledge Agreement" means the Parent Pledge Agreement dated
-----------------------
November 24, 1999, among the Parent and the Collateral Agent.
"Permitted Additional Obligations" means (a) the principal of and
--------------------------------
premium, if any, and interest (including interest accruing during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) on any
Indebtedness for borrowed money of the Borrower, but only to the extent that
such Indebtedness is designated as "Permitted Additional Obligations" in
accordance with Section 2.01, and (b) all other monetary obligations (other than
monetary obligations in respect of Indebtedness that does not constitute
Permitted Additional
Obligations), including fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) of the Borrower under the Secured Instrument
governing or evidencing such Indebtedness referred to in clause (a) above;
provided that any Indebtedness or obligations owing to Holdings, any Subsidiary
- --------
Loan Party or Affiliate of the Borrower shall not constitute Permitted
Additional Obligations.
"Permitted Additional Obligations Designation" means each Permitted
--------------------------------------------
Additional Obligations Designation duly completed and executed by the Collateral
Agent, the Borrower and the holder or holders of the Permitted Additional
Obligations referenced therein (or a Representative of such holders) and
delivered pursuant to Section 2.01, substantially in form of Exhibit A.
"Permitted Investments" means:
---------------------
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed by
the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the highest
credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts issued
or offered by, any domestic office of any commercial bank organized under the
laws of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000; and
(d) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and entered into
with a
financial institution satisfying the criteria described in clause (c) above.
"Person" means any natural person, corporation, limited liability
------
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Principal Obligations" means the principal amount of the outstanding
---------------------
Obligations.
"Related Parties" means, with respect to any specified Person, such
---------------
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Representative" means, as to any Secured Party or Secured Parties,
--------------
any Person designated in the Secured Instrument evidencing or governing the
Obligations held by such Secured Party or Secured Parties as the trustee, agent
or representative of such Secured Party or Secured Parties (including, in the
case of the Credit Facility Obligations, the Administrative Agent, in the case
of the Nortel Facility Obligations, the Nortel Agent, and, in the case of the
Ericsson Facility Obligations, the Ericsson Agent).
"Required Committed Credit Facility Parties" means, at any time, with
------------------------------------------
respect to any Credit Facility, Secured Parties having outstanding Principal
Obligations and Secured Instrument Commitments under such Credit Facility
representing more than 50% of the aggregate principal amount of the total
outstanding Principal Obligations and Secured Instrument Commitments under such
Credit Facility at such time.
"Required Committed Secured Parties" means, at any time, Secured
----------------------------------
Parties having outstanding Principal Obligations and Secured Instrument
Commitments representing more than 50% of the sum of the total outstanding
Principal Obligations and Secured Instrument Commitments at such time.
"Required Credit Facility Parties" means, at any time, with respect to
--------------------------------
any Credit Facility, Secured Parties having outstanding Principal Obligations
under such Credit Facility representing more than 50% of the aggregate principal
amount of the total outstanding Principal Obligations under such Credit Facility
at such time.
"Required Non-Vendor Secured Parties" means, at any time, Non-Vendor
-----------------------------------
Secured Parties having outstanding Principal Obligations representing more than
50% of the aggregate principal amount of the total outstanding Principal
Obligations held by all Non-Vendor Secured Parties at such time.
"Required Secured Parties" means, at any time, Secured Parties having
------------------------
outstanding Principal Obligations representing more than 50% of the aggregate
principal amount of the total outstanding Principal Obligations at such time.
"S&P" means Standard & Poor's.
---
"Secured Instrument" means any instrument or agreement (other than the
------------------
Support Documents) that evidences or governs the terms of any of the Obligations
(including, in the case of the Credit Facility Obligations, the Credit
Agreement, in the case of the Nortel Facility Obligations, the Nortel Credit
Agreement, and, in the case of the Ericsson Facility Obligations, the Ericsson
Credit Agreement).
"Secured Instrument Commitments" means, at any time, commitments in
------------------------------
effect at such time to extend credit to the Borrower under any Secured
Instrument that, if extended at such time, would constitute Principal
Obligations.
"Secured Parties" means the Collateral Agent and the Holders of the
---------------
Obligations (including, in the case of the Credit Facility Obligations, the
Lenders and the Administrative Agent, in the case of the Nortel Facility
Obligations, the Nortel Lenders and the Nortel Agent, and, in the case of the
Ericsson Facility Obligations, the Ericsson Lenders and the Ericsson Agent).
"Security Agreement" means the Security Agreement dated as of November
------------------
24, 1999, among the Borrower, the Subsidiary Loan Parties and the Collateral
Agent.
"Security Documents" means the Initial Security Documents and the
------------------
Additional Security Documents.
"Subordination Agreement" means the Subordination Agreement dated as
-----------------------
of November 24, 1999, among the Loan
Parties and the Collateral Agent.
"Subordination Collateral Account" has the meaning set forth in
--------------------------------
Section 5.01(a).
"subsidiary" means, with respect to any Person (the "parent") at any
---------- ------
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
----------
"Subsidiary Loan Parties" means the Subsidiaries and the License
-----------------------
Subsidiaries.
"Support Documents" means the Security Documents, the Indemnity,
-----------------
Subrogation and Contribution Agreement, the Subordination Agreement, the
Guarantee Agreement and the Parent Guarantee Agreement.
"Unrepresented Holder" means any Holder for which there is no
--------------------
Representative.
"Vendor" means a Person that sells equipment to, or provides non-
------
financial services to, any of the Loan Parties.
SECTION 1.02. Terms Generally. The definitions of terms herein shall
----------------
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The word
"will" shall
be construed to have the same meaning and effect as the word "shall". Unless the
context requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified, (b) any reference herein to any Person shall
be construed to include such Person's successors and assigns, (c) the words
"herein", "hereof" and "hereunder", and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections and Exhibits
shall be construed to refer to Articles and Sections of, and Exhibits to, this
Agreement and (e) the words "asset" and "property" shall be construed to have
the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts, contract rights,
licenses and intellectual property.
SECTION 1.03. Accounting Terms; GAAP. Except as otherwise expressly
-----------------------
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
--------
that, if the Borrower notifies the Collateral Agent that the Borrower requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Collateral Agent notifies the Borrower
that the Required Committed Secured Parties request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
ARTICLE II
Permitted Additional Obligations;
---------------------------------
Additional Security Documents
-----------------------------
SECTION 2.01. Permitted Additional Obligations. (a) The Borrower
---------------------------------
may from time to time designate any Indebtedness (including Indebtedness to be
advanced pursuant to Secured Instrument Commitments under any Credit Facility)
for borrowed money of the Borrower as Permitted Additional Obligations hereunder
by (i) delivering to the Collateral Agent a Permitted Additional Obligations
Designation in respect of such Indebtedness describing such Indebtedness and
attaching thereto a true and complete copy of all instruments and agreements
(together with all schedules, exhibits, annexes, appendices and other
attachments thereto), including the applicable Secured Instruments, relating to
such Indebtedness to which the Borrower or any Subsidiary Loan Party is a party,
and (ii) delivering to the Collateral Agent a certificate of a Financial Officer
to the effect that such designation of such Indebtedness is not in contravention
of any Secured Instrument. Upon completion of the actions described in clauses
(i) and (ii) of the preceding sentence, but subject to the following paragraph,
the Indebtedness designated by such Permitted Additional Obligations Designation
shall constitute Permitted Additional Obligations and the Holders thereof shall
constitute Secured Parties hereunder and shall be bound by the provisions
hereof.
(b) Notwithstanding anything herein to the contrary, (i) the Borrower
agrees that it will not incur any Indebtedness that would result in the total
outstanding Principal Obligations at any time exceeding $1,845,000,000 and (ii)
any purported designation of any Indebtedness as Permitted Additional
Obligations that would result in the total outstanding Principal Obligations
exceeding the limitation set forth in the foregoing clause (i) at the time of
such purported designation shall be null and void and of no force or effect.
(c) It is the intent of the parties that, after the date hereof, any
increase in the total amount of Principal Obligations and Secured Instrument
Commitments over the total amount thereof previously designated hereunder shall
require the execution and delivery of an additional Permitted Additional
Obligations Designation, notwithstanding that such additional Principal
Obligations or Secured Instrument Commitments are under the Credit Agreement,
the Nortel Credit Agreement, the Ericsson Credit Agreement or any other Credit
Facility that was the subject of a previous Permitted Additional Obligations
Designation, but that any Indebtedness resulting from loans advanced
pursuant to a Secured Instrument Commitment that was properly designated as
Permitted Additional Obligations in accordance with this Agreement (and in
compliance with paragraph (b) above) at the time of execution and delivery of
the Permitted Additional Obligations Designation relating thereto shall
constitute Permitted Additional Obligations notwithstanding any subsequent
failure by the Borrower to comply with paragraph (b) above.
SECTION 2.02. Additional Security Documents. If the Borrower or any
------------------------------
Subsidiary Loan Party is required by any Secured Instrument, Security Document
or other agreement to grant a security interest in or Lien on, or assignment of,
any assets (other than assets constituting Collateral under the Initial Security
Documents) of the Borrower or any Subsidiary Loan Party to secure any
Obligations, the Borrower shall, or shall cause the applicable Subsidiary Loan
Party or Subsidiary Loan Parties to, grant such security interest in or Lien on,
or assignment of, such assets to the Collateral Agent to secure all the
Obligations pursuant to an Additional Security Document.
ARTICLE III
Acts of Secured Parties;
------------------------
Amounts of Obligations
----------------------
SECTION 3.01. Acts of Secured Parties. Any request, demand,
------------------------
authorization, direction, notice, consent, waiver or other action permitted or
required by this Agreement to be given or taken by any Secured Party, the
Required Secured Parties, the Required Non-Vendor Secured Parties, the Required
Committed Credit Facility Parties or the Required Credit Facility Parties with
respect to any Credit Facility or the Required Committed Secured Parties may be
and, at the request of the Collateral Agent, shall be embodied in and evidenced
by one or more instruments reasonably satisfactory in form to the Collateral
Agent and signed by such Secured Party or its Representative or the Required
Secured Parties, the Required Non-Vendor Secured Parties, the Required Committed
Credit Facility Parties or the Required Credit Facility Parties with respect to
any Credit Facility or the Required Committed Secured Parties or their
Representatives (as applicable) and, except as otherwise expressly provided in
any such instrument, any such action shall become effective when such instrument
or instruments shall have been delivered to the Collateral Agent. The
instrument or instruments evidencing any action (and the action embodied therein
and evidenced thereby) are sometimes referred to herein as an "Act" of the
---
Persons signing such instrument or instruments. The Collateral Agent shall be
entitled to rely absolutely upon (a) an Act of any Representative if such Act
purports to be taken by or on behalf of the Secured Parties represented by such
Representative and (b) an Act of any Holder if such Act purports to be taken by
or on behalf of such Holder, and nothing in this Section 3.01 or elsewhere in
this Agreement shall be construed to require any Representative or Holder to
demonstrate that it has been authorized to take any action which it purports to
be taking, the Collateral Agent being entitled to rely conclusively, and being
fully protected in so relying, on any Act of such Representative or Holder.
SECTION 3.02. Determination of Amounts of Obligations. Whenever the
----------------------------------------
Collateral Agent is required to determine the existence or amount of any of the
Obligations or Secured Instrument Commitments or any portion thereof for any
purposes of this Agreement, it shall be entitled to make such determination on
the basis of one or more certificates of any applicable Representative or
Holder; provided that if, notwithstanding the request of the Collateral Agent,
--------
any applicable Representative or Holder shall fail or refuse promptly to certify
as to the existence or amount of any Obligations or Secured
Instrument Commitments or any portion thereof, the Collateral Agent shall be
entitled to determine such existence or amount by such method as the Collateral
Agent may, in its sole discretion exercised in good faith, determine, including
by reliance upon a certificate of the Borrower; provided further that, promptly
----------------
following determination of any such amount, the Collateral Agent shall notify
such Representative or Holder of such determination and thereafter shall correct
any error that such Representative or Holder brings to the attention of the
Collateral Agent. The Collateral Agent may rely conclusively, and shall be fully
protected in so relying, on any determination made by it in accordance with the
provisions of the preceding sentence (or as otherwise directed by a court of
competent jurisdiction) and shall have no liability to the Borrower or any
Secured Party or any other Person as a result of any action taken by the
Collateral Agent based upon such determination prior to receipt of notice of any
error in such determination.
SECTION 3.03. Restrictions on Actions. Each Secured Party agrees
------------------------
that, unless and until this Agreement is terminated as provided herein, the
provisions of this Agreement shall provide the exclusive method by which any
Secured Party may exercise, or direct the exercise of, rights and remedies under
the Support Documents. Therefore, each Secured Party shall, for the mutual
benefit of all Secured Parties, except as permitted under this Agreement:
(a) refrain from taking or filing any action, judicial or otherwise,
to enforce any rights or pursue any remedies under the Support Documents, except
for delivering notices hereunder; and
(b) refrain from exercising any rights or remedies under the Support
Documents which may be exercisable as a result of an event that could result in
a Notice of Enforcement.
Except as specifically otherwise provided herein or in the Secured Instrument to
which a Secured Party is a party, however, any Secured Party or the Collateral
Agent, as applicable, may exercise any right or remedy available to it under any
Secured Instrument, any related agreement (other than the Support Documents) or
otherwise at law or in equity, including (i) imposing a default rate of interest
in accordance with the applicable Secured
Instrument, (ii) exercising any right or remedy or taking any other action that
it is permitted or authorized to exercise or take or (iii) exercising its rights
and remedies as a general creditor in accordance with the applicable Secured
Instrument and applicable law, including the right to cease advancing loans or
otherwise extending credit to the Borrower, to commence legal proceedings to
collect any Obligation due and payable to such Secured Party and remaining
unpaid, to accelerate the maturity of any Obligations or to terminate any
Secured Instrument Commitment in accordance with the applicable Secured
Instrument, to commence legal proceedings (including involuntary bankruptcy
proceedings) to enforce any Secured Instrument and obtain a judgment and to
enforce such judgment, in each case to the same extent as if such Secured Party
were an unsecured creditor.
ARTICLE IV
Duties of Collateral Agent
--------------------------
SECTION 4.01. Notice to Secured Parties. The Collateral Agent shall
--------------------------
promptly notify each Representative and Unrepresented Holder in the event it
shall receive any Notice of Enforcement or any Notice of Cancelation of
Enforcement or any request by any party hereto or by any Loan Party for any
consent, waiver or amendment with respect hereto or any other Support Document.
Upon being notified by the Collateral Agent of any such Notice of Enforcement or
Notice of Cancelation of Enforcement, each Representative shall notify each
Secured Party that it represents of such Notice of Enforcement or Notice of
Cancelation of Enforcement.
SECTION 4.02. Actions Under Support Documents; Notices of
-------------------------------- ----------
Enforcement; Etc. (a) The Collateral Agent shall not be obligated to take any
- -----------------
action under this Agreement or any of the Support Documents except for the
performance of such duties as are specifically set forth herein or therein.
(b) A Notice of Enforcement may be delivered only by:
(i) the Required Secured Parties;
(ii) the Required Non-Vendor Secured Parties; provided that, at the
--------
time such Notice of Enforcement is delivered, the aggregate amount of
outstanding Principal Obligations held by all Non-Vendor Secured Parties is
greater than or equal to the lesser of (A) 15% of the aggregate amount of
outstanding Principal Obligations and (B) $50,000,000; or
(iii) the Required Credit Facility Parties under any Credit
Facility; provided that, at the time such Notice of Enforcement is
--------
delivered, (A) the aggregate amount of outstanding Principal Obligations
under such Credit Facility is greater than or equal to 15% of the aggregate
amount of outstanding Principal Obligations, (B) the aggregate amount of
outstanding Principal Obligations held by all Non-Vendor Secured Parties is
less than the lesser of (1) 15% of the aggregate amount of outstanding
Principal Obligations and (2) $50,000,000, and (C) an event of default has
occurred and is continuing under such Credit Facility that permits the
Obligations thereunder to be declared due and payable prior to the stated
maturity thereof pursuant to the terms of such Credit Facility (or such
Obligations have become due and payable and have not been paid) and a
period of 90 days has lapsed during which such event of default has been
continuing and has not been cured or waived (or such Obligations have not
been paid, as the case may be).
(c) A Notice of Cancelation of Enforcement may be delivered only by:
(i) the Required Secured Parties; provided that such Notice of
--------
Cancelation of Enforcement pertains to a Notice of Enforcement delivered by
the Required Secured Parties;
(ii) the Required Non-Vendor Secured Parties; provided that, at the
--------
time such Notice of Cancelation of Enforcement is delivered, the aggregate
amount of outstanding Principal Obligations held by all Non-Vendor Secured
Parties is greater than or equal to the lesser of (A) 15% of the aggregate
amount of
outstanding Principal Obligations and (B) $50,000,000; or
(iii) the Required Credit Facility Parties under any Credit Facility;
provided that such Notice of Cancelation of Enforcement pertains to a
--------
Notice of Enforcement delivered by the Required Credit Facility Parties
under the same Credit Facility.
(d) Subject to the provisions of Article VII, the Collateral Agent
shall take any action under or with respect to the Support Documents which is
not inconsistent with or contrary to the provisions of this Agreement or any
other Support Document and which is in accordance with written instructions that
the Collateral Agent has received from:
(i) at any time when a Notice of Enforcement is in effect:
(A) the Required Secured Parties; provided that such instructions are
--------
not inconsistent with any written instructions given by the Required Non-
Vendor Secured Parties if, at such time, the aggregate amount of
outstanding Principal Obligations held by all Non-Vendor Secured Parties is
greater than or equal to the lesser of (A) 15% of the aggregate amount of
outstanding Principal Obligations and (B) $50,000,000;
(B) the Required Non-Vendor Secured Parties; provided that, at such
--------
time, the aggregate amount of outstanding Principal Obligations held by all
Non-Vendor Secured Parties is greater than or equal to the lesser of (A)
15% of the aggregate amount of outstanding Principal Obligations and (B)
$50,000,000; or
(C) subject to conflicting instructions that the Collateral Agent is
required to follow pursuant to Section 4.03, the Required Credit Facility
Parties under any Credit Facility; provided that such Notice of Enforcement
--------
was delivered by the Required Credit Facility Parties under the same Credit
Facility; and
(ii) at any other time, the Required Committed
Secured Parties.
(e) The Collateral Agent may not exercise any remedy under Section 9-
505(2) of the Uniform Commercial Code, as in effect in any applicable
jurisdiction, except with the consent of each Secured Party affected thereby.
SECTION 4.03. Conflicting Instructions; No Instructions. (a) At any
------------------------------------------
time when a Notice of Enforcement shall be in effect, the Collateral Agent
shall, subject in all cases to the provisions of Article VII, exercise or
refrain from exercising all such rights, powers and remedies as shall be
available to it under the Support Documents or any of them in accordance with
any written instructions received in accordance with Section 4.02(d)(i), subject
to paragraph (b) below, in the case of conflicting instructions received in
accordance with Section 4.02(d)(i). Absent any such written instructions at a
time when a Notice of Enforcement shall be in effect, the Collateral Agent may
take, but shall have no obligation to take, any and all such actions under the
Support Documents or any of them or otherwise as it shall deem to be in the best
interests of the Secured Parties in order to maintain the Collateral and protect
and preserve the Collateral and the rights of the Secured Parties.
(b) At any time when a Notice of Enforcement shall be in effect, if
the Collateral Agent shall receive conflicting instructions given in accordance
with Section 4.02(d)(i) with respect to the exercise of remedies under or with
respect to the Support Documents:
(i) if such conflict shall occur with respect to whether or not to
exercise such remedies, the Collateral Agent shall follow those
instructions directing the Collateral Agent to exercise remedies; provided
--------
that the Collateral Agent shall follow instructions directing it not to
exercise remedies received from the Required Non-Vendor Secured Parties if,
at such time, the aggregate amount of outstanding Principal Obligations
held by all Non-Vendor Secured Parties is greater than or equal to the
lesser of (A) 15% of the aggregate amount of outstanding Principal
Obligations and (B) $50,000,000; and
(ii) if such conflict shall occur with respect to
the manner of exercising such remedies, the Collateral Agent shall follow
the instructions of (A) the Required Non-Vendor Secured Parties if, at such
time, the aggregate amount of outstanding Principal Obligations held by all
Non-Vendor Secured Parties is greater than or equal to the lesser of (1)
15% of the aggregate amount of outstanding Principal Obligations and (2)
$50,000,000 or (B), if clause (A) does not apply (or if clause (A) does
apply but the Required Non-Vendor Secured Parties shall fail to give
instructions), the Required Secured Parties or (C) if the applicable Notice
of Enforcement was given by the Required Credit Facility Secured Parties
under a Credit Facility and clauses (A) and (B) above do not apply (or
clause (A) or (B) above does apply but no instructions are given
thereunder), then the Required Credit Facility Secured Parties under such
Credit Facility, or (D) if clauses (A), (B) and (C) above do not apply (or
any such clause does apply but no instructions are given thereunder), then
the Representative or Unrepresented Holders representing the greatest
amount of Principal Obligations then outstanding that shall have delivered
instructions to the Collateral Agent.
Representatives and Unrepresented Holders giving instructions to the Collateral
Agent under this Section 4.03 shall do so in good faith and shall give such
instructions as shall have the effect of realizing on the Collateral and take
other available remedies under the Support Documents in a reasonably appropriate
and expeditious manner under the circumstances then applicable.
SECTION 4.04. Records. (a) The Collateral Agent shall maintain
--------
records regarding determinations of the amounts of the outstanding Obligations
and Secured Instrument Commitments for any purpose, any distributions from the
Collateral Accounts and any information received by the Collateral Agent
pursuant to Section 6.02. The information contained in such records shall be
made available to any Secured Party upon request.
(b) The Collateral Agent shall maintain a record of the total
outstanding Principal Obligations and Secured Instrument Commitments at any time
in effect. The Borrower shall promptly notify the Collateral Agent of any
change in the outstanding Principal Obligations or Secured Instrument
Commitments at any time, whether as a result of any
termination or reduction of such Secured Instrument Commitments, or any payment
in respect of such Principal Obligations or otherwise. The information contained
in such records shall be made available to any Secured Party upon request. Any
Secured Party shall be entitled to rely upon such information.
ARTICLE V
Collateral Accounts; Distributions
----------------------------------
SECTION 5.01. The Collateral Accounts. (a) The Collateral Agent
------------------------
shall establish and maintain at its office located at Two Avenue DeLefayette,
6th Floor, Boston, MA 02111-1724, three collateral accounts designated the
"Enforcement Collateral Account", the "Subordination Collateral Account" and the
- ------------------------------- --------------------------------
"General Collateral Account", respectively (such collateral accounts,
--------------------------
collectively, the "Collateral Accounts").
-------------------
(b) All amounts which are received by the Collateral Agent (in its
capacity as Collateral Agent) in respect of the Collateral, whether in
connection with the exercise of any right or remedy provided in this Agreement
or any other Support Document or otherwise (including all amounts received on
account of any sale of or other realization upon any of the Collateral pursuant
to any Security Document), or pursuant to enforcement of the Guarantee Agreement
or the Parent Guarantee Agreement, in each case while a Notice of Enforcement is
in effect shall be deposited in the Enforcement Collateral Account. While a
Notice of Enforcement is in effect, all amounts on deposit in or required to be
deposited in the Subordination Collateral Account or the General Collateral
Account shall be transferred to the Enforcement Collateral Account. Upon the
rescission of each effective Notice of Enforcement in accordance with the terms
hereof, the Collateral Agent shall (subject to the payment of any Obligations
then due in accordance with Section 5.02) release any funds then remaining on
deposit in the Enforcement Collateral Account to any Loan Party to the extent
required by any of the Security Documents; provided that such funds in an amount
--------
equal to the sum of (x) the amount of General Funds transferred to the
Enforcement Collateral Account from the General Collateral Account pursuant to
paragraph (d) of this Section and (y) the amount of funds that would have been
deposited in the General Collateral Account pursuant
to paragraph (d) of this Section if a Notice of Enforcement had not been in
effect, together with all interest and income on such amounts, shall be
deposited in the General Collateral Account for application in accordance with
the terms of paragraph (d) of this Section.
(c) All amounts which are received by the Collateral Agent (in its
capacity as Collateral Agent) pursuant to terms of the Subordination Agreement
shall be deposited in the Subordination Collateral Account. While a Notice of
Enforcement is in effect, all amounts on deposit in or required to be deposited
in the Subordination Collateral Account shall be transferred to the Enforcement
Collateral Account.
(d) All amounts which are received by the Collateral Agent (in its
capacity as Collateral Agent) which by the terms of any Support Document or any
Secured Instrument are required to be held by the Collateral Agent (other than
amounts required to be deposited in the Enforcement Collateral Account or the
Subordination Collateral Account) shall be deposited in the General Collateral
Account. While a Notice of Enforcement is in effect, all amounts on deposit in
or required to be deposited in the General Collateral Account shall be
transferred to the Enforcement Collateral Account. The Borrower may, by
delivery to the Collateral Agent of a General Funds Release Request, request a
release of General Funds from the General Collateral Account in accordance with
the applicable provisions of the Support Document or Secured Instrument or
Secured Instruments which required such funds to be deposited with the
Collateral Agent (but only to the extent any funds in the General Collateral
Account were deposited in the General Collateral Account pursuant to such
agreements). If no Notice of Enforcement is in effect on the date on which such
General Funds are requested to be released pursuant to the applicable General
Funds Release Request, the Collateral Agent shall release such General Funds in
accordance with such General Funds Release Request. Pending the receipt by the
Collateral Agent of a General Funds Release Request with respect to any General
Funds or a transfer of such General Funds to the Enforcement Collateral Account
as provided above, the Collateral Agent shall invest such funds in Permitted
Investments (and the proceeds thereof and interest thereon shall constitute part
of such General Funds).
(e) All amounts deposited in the Collateral
Accounts shall be held by the Collateral Agent subject to the terms hereof and
of the Support Documents and shall constitute Collateral under the Security
Agreement. No Loan Party shall have any rights with respect to, and the
Collateral Agent shall have exclusive dominion and control over, the Collateral
Accounts.
SECTION 5.02. Application of Proceeds. Subject to Section 5.05, all
------------------------
amounts deposited in the Enforcement Collateral Account shall be applied in the
following order of priority:
FIRST, to the payment of all costs and expenses incurred by the
Collateral Agent (in its capacity as such hereunder or any other Support
Document) in connection with any Support Document or any of the Obligations,
including all court costs and the fees and expenses of its agents and legal
counsel, the repayment of all advances made by the Collateral Agent under any
Support Document on behalf of any Loan Party and any other costs and expenses
incurred in connection with the exercise of any right or remedy hereunder or
under any other Support Document;
SECOND, to the Secured Parties pro rata in accordance with the
aggregate amounts of the Obligations outstanding on the date of any such
distribution (whether or not due and payable); and
THIRD, the balance, if any, to the Borrower or its successors and
assigns, or such other Person or Persons as shall be entitled thereto, or as a
court of competent jurisdiction may otherwise direct.
SECTION 5.03. Time of Payments. All distributions under Section 5.02
-----------------
shall be made by the Collateral Agent reasonably promptly after its receipts of
the applicable funds, subject to Section 5.04.
SECTION 5.04. Application of Amounts Not Distributable. If any
-----------------------------------------
Representative or Unrepresented Holder shall inform the Collateral Agent in
writing that no provision is made under the relevant Secured Instrument for the
application of amounts which are to be distributed in respect of Obligations
under such Secured Instrument pursuant to Section 5.02 (whether by virtue of the
applicable Obligations thereunder not being then due and payable or otherwise)
or for the holding of such amounts by or on behalf of such parties pending
application thereof,
then the Collateral Agent shall invest such amounts in Permitted Investments and
shall hold such amounts and all proceeds thereof in the Enforcement Collateral
Account, solely for the Secured Parties represented by such Representative or
such Unrepresented Holder, as the case may be, until such Representative or
Unrepresented Holder shall notify the Collateral Agent that such Obligations
have been paid (in which case such amounts and all proceeds thereof shall be
applied in accordance with the provisions of Section 5.02) or shall request the
delivery thereof by the Collateral Agent for application pursuant to such
Secured Instrument.
SECTION 5.05. Treatment of Contingent Obligations. Notwithstanding
------------------------------------
the foregoing, distributions under clause SECOND of Section 5.02 shall be made
disregarding any Contingent Obligations. If any Contingent Obligations exist at
any time that any amounts are to be distributed to the Borrower under clause
THIRD of Section 5.02, the Collateral Agent shall deposit such amounts up to an
amount equal to such Contingent Obligations in a collateral account established
and maintained at its office located at Two Avenue DeLefayette, 6th Floor,
Boston, MA 02111-1724 (designated the "Contingent Obligations Collateral
---------------------------------
Account") for the benefit of the Secured Parties that have a claim with respect
- -------
to such Contingent Obligations. The Collateral Agent shall invest such amounts
in Permitted Investments until the Representative of such Secured Parties or the
applicable Unrepresented Holder, as the case may be, shall notify the Collateral
Agent that any or all of the Contingent Obligations with respect to the Secured
Parties represented by such Representative or such Unrepresented Holder, as the
case may be, have become fixed or liquidated (in which case such amounts up to
the amount in the Contingent Obligations Collateral Account shall be delivered
to such Representative or Unrepresented Holder, as the case may be, to be
applied pursuant to the applicable Secured Instrument) or that such Contingent
Obligations have expired or cease to exist (in which case an amount in the
Contingent Obligations Collateral Account in excess of the Contingent
Obligations outstanding at such time shall be applied in accordance with the
provisions of Section 5.02).
SECTION 5.06. Collateral Agent's Calculations. In making the
--------------------------------
determinations and allocations required by Section 5.02, the Collateral Agent
may rely upon certificates as provided in Section 3.02, as to the amounts
payable with respect to Obligations. If any Secured Party receives any amount
pursuant to Section 5.02 in excess of the amount it was entitled to receive
pursuant to Section 5.02 as a result of a demonstrable error in the
determination of the amount of the Obligations, then such Secured Party (by
becoming a Holder of Obligations and accepting the benefits of this Agreement)
agrees to pay such excess to the Collateral Agent for application in accordance
with Section 5.02 as soon as practicable after the existence of such error shall
have been determined. All distributions made by the Collateral Agent pursuant
to Section 5.02 shall be (subject to the preceding sentence and to any decree of
any court of competent jurisdiction and to the preceding sentence) final, and
the Collateral Agent shall have no duty to inquire as to the application by any
Representative or Unrepresented Holder of any amounts distributed to them.
ARTICLE VI
Agreements
----------
SECTION 6.01. Delivery of Agreements. The Borrower shall deliver to
-----------------------
the Collateral Agent, promptly upon the execution thereof, true and complete
copies of (a) all amendments, supplements or other modifications to any Secured
Instrument and (b) each Additional Security Document.
SECTION 6.02. Information. On a quarterly basis promptly following
------------
the end of each calendar quarter, and from time to time upon the request of the
Collateral Agent (which request may be made by the Collateral Agent at the
reasonable direction of any Secured Party), the Borrower shall promptly deliver
to the Collateral Agent a list, setting forth as of a specified date not more
than 10 days prior to the date of delivery, of the aggregate outstanding
Obligations and Secured Instrument Commitments and the name and address of each
Secured Party (and the name and address of such Secured Party's Representative,
if any) and the respective amounts of Obligations and Secured Instrument
Commitments attributable to each. The Collateral Agent shall provide a copy of
the most recent list delivered to it under this Section to any Secured Party
upon request.
ARTICLE VII
The Collateral Agent
--------------------
SECTION 7.01. Appointment; Rights and Duties. (a) Each of the
-------------------------------
Secured Parties hereby irrevocably appoints the Collateral Agent as its agent
and authorizes the Collateral Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Collateral Agent by the terms of
the Support Documents, together with such actions and powers as are reasonably
incidental thereto.
(b) Any Person serving as the Collateral Agent hereunder shall have
the same rights and powers in its capacity as a Secured Party as any other
Secured Party and may exercise the same as though it were not the Collateral
Agent, and such Person and its Affiliates may accept deposits from, lend money
to and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if it were not the Collateral Agent
hereunder.
(c) The Collateral Agent shall not have any duties or obligations
except those expressly set forth in the Support Documents. Without limiting the
generality of the foregoing, (i) the Collateral Agent shall not be subject to
any fiduciary or other implied duties, regardless of whether a Notice of
Enforcement is in effect, (ii) the Collateral Agent shall not have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Support Documents
that the Collateral Agent is required to exercise in writing by the Required
Secured Parties, and (iii) except as expressly set forth in the Support
Documents, the Collateral Agent shall not have any duty to disclose, and shall
not be liable for the failure to disclose, any information relating to the
Parent, Holdings, the Borrower or the Subsidiary Loan Parties that is
communicated to or obtained by the Person serving as the Collateral Agent or any
of its Affiliates in any capacity. The Collateral Agent shall not be liable for
any action taken or not taken by it with the consent or at the request of the
Secured Parties (or the requisite portion thereof as required by any applicable
provision of this Agreement) or in the absence of its own gross negligence or
wilful misconduct. The Collateral Agent shall be deemed not to have knowledge
of any event that could result in a Notice of Enforcement unless and until a
Notice of Enforcement is given to the Collateral Agent, and the Collateral Agent
shall not be responsible for or have
any duty to ascertain or inquire into (A) any statement, warranty or
representation made in or in connection with any Support Document or Secured
Instrument, (B) the contents of any certificate, report or other document
delivered thereunder or in connection therewith, (C) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth in any Support Document or Secured Instrument, (D) the validity,
enforceability, effectiveness or genuineness of any Support Document or Secured
Instrument or any other agreement, instrument or document, or (E) the
satisfaction of any condition set forth in any Support Document or Secured
Instrument, other than to confirm receipt of items expressly required to be
delivered to the Collateral Agent.
(d) The Collateral Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The Collateral
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Collateral Agent may consult with legal
counsel (who may be counsel for the Parent or the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
(e) The Collateral Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Collateral Agent. The Collateral Agent and any such sub-agent
may perform any and all its duties and exercise its rights and powers through
their respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Collateral Agent and any such sub-agent, and shall apply to their respective
activities in connection with the activities as Collateral Agent.
(f) Subject to the appointment and acceptance of a successor
Collateral Agent as provided in this paragraph, the Collateral Agent may resign
at any time by notifying each Secured Party and the Borrower. Upon any such
resignation, the Required Committed Secured Parties (or, at any time when a
Notice of Enforcement is in effect, the
Required Secured Parties) shall have the right to appoint a successor. If no
successor shall have been so appointed by the Required Committed Secured Parties
(or, if applicable, the Required Secured Parties) and shall have accepted such
appointment within 30 days after the retiring Collateral Agent gives notice of
its resignation, then the retiring Collateral Agent may, on behalf of the
Secured Parties, appoint a successor Collateral Agent which shall be a bank with
an office in New York, New York or an Affiliate of any such bank. Upon the
acceptance of its appointment as Collateral Agent hereunder by a successor, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Collateral Agent, and the retiring
Collateral Agent shall be discharged from its duties and obligations hereunder.
The fees payable by the Borrower to a successor Collateral Agent shall be the
same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the Collateral Agent's resignation hereunder,
the provisions of this Article shall continue in effect for the benefit of such
retiring Collateral Agent, its sub-agents and their respective Related Parties
in respect of any actions taken or omitted to be taken by any of them while it
was acting as Collateral Agent.
(g) Each Secured Party acknowledges that it has, independently and
without reliance upon the Collateral Agent or any other Secured Party and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to extend credit to the Borrower pursuant to the
applicable Secured Instrument and enter into this Agreement. Each Secured Party
also acknowledges that it will, independently and without reliance upon the
Collateral Agent or any other Secured Party and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Support Document or related agreement or any document furnished
hereunder or thereunder.
SECTION 7.02. Expenses; Indemnity; Damage Waiver. (a) The
-----------------------------------
Borrower shall pay (i) all costs and expenses incurred by the Collateral Agent,
including the fees, charges and disbursements of counsel for the Collateral
Agent, in connection with the negotiation, preparation, execution and delivery
of the Support Documents, and (ii) all costs and expenses incurred by the
Collateral Agent, including the fees, charges and disbursements of any counsel,
consultants or appraisers for the Collateral Agent, in connection with (A) the
enforcement or protection of its rights in connection with the Support
Documents, including its rights under this Section and (B) the administration
of, and any amendments, modifications, waivers or supplements of or to the
provisions of, any of the Support Documents.
(b) The Borrower shall indemnify the Collateral Agent and each of its
Related Parties (each such Person being called an "Indemnitee") against, and
----------
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of any Support Document or Secured Instrument or any other
agreement or instrument contemplated hereby, or the performance by the parties
to the Support Documents or Secured Instruments of their respective obligations
thereunder, (ii) any extension of credit under any Secured Instrument or the use
of the proceeds therefrom, (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the Borrower or
any of the Subsidiary Loan Parties or at which any Collateral is located, or any
Environmental Liability related in any way to the Borrower or any of the
Subsidiary Loan Parties, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
--------
available to the extent that such losses, claims, damages, liabilities or
related expenses have resulted from the gross negligence or wilful misconduct of
such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Collateral Agent under paragraph (a) or (b) of this
Section, each Secured Party severally agrees to pay to the Collateral Agent such
Secured Party's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
- --------
liability or related expense, as the case may be, was incurred by or asserted
against the Collateral
Agent in its capacity as such. For purposes hereof, a Secured Party's pro rata
share shall be determined based upon its share of the aggregate amount of
outstanding Principal Obligations and Secured Instrument Commitments at the
time.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby.
(e) All amounts due under this Section shall be payable not later
than 30 days after written demand therefor.
ARTICLE VIII
Representations and Warranties
------------------------------
The Borrower represents and warrants to the Secured Parties that:
SECTION 8.01. Organization; Powers. Each Loan Party is duly
---------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to carry
on its business as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a material adverse effect of the Borrower and the Subsidiary Loan Parties taken
as a whole, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
SECTION 8.02. Authorization; Enforceability. The execution delivery
------------------------------
and performance by each Loan Party of the Support Documents to which it is a
party are within such Loan Party's corporate powers and have been duly
authorized by all necessary company or corporate, as the case may be, and, if
required, stockholder action. This Agreement and each other Support Document
has been duly executed and delivered by each Loan Party that is a party thereto
and constitutes a legal, valid and binding obligation of such Loan Party (as the
case may be), enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 8.03. Governmental Approvals; No Conflicts. The execution,
-------------------------------------
delivery and performance by each Loan Party of the Support Documents to which it
is a party (a) do not require any consent or approval of, registration or filing
with, or any other action by, any Governmental Authority, except such as have
been obtained or made and are in full force and effect and except filings
necessary to perfect Liens created under the Security Documents, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of any Loan Party or any order of any Governmental
Authority, (c) will not violate or result in a default under any indenture,
agreement or other instrument binding upon any Loan Party or its assets, or give
rise to a right thereunder to require any payment to be made by any Loan Party,
and (d) will not result in the creation or imposition of any Lien on any asset
of any Loan Party, except Liens created under the Security Documents.
ARTICLE IX
Intercreditor Arrangements
--------------------------
SECTION 9.01. Security Interests. The Collateral Agent and each of
-------------------
the Secured Parties hereby agree that the Liens and security interests granted
to the Collateral Agent under the Security Documents, and the Guarantees
provided under the Guarantee Agreement and the Parent Guarantee Agreement, and
the other rights, remedies, powers and privileges under the Support Documents
shall be treated, as among the Secured Parties, as having equal priority and
shall at all times be shared by the Secured Parties as provided herein.
SECTION 9.02. Turnover of Collateral and Certain Payments. If any
--------------------------------------------
Secured Party (i) acquires custody, control or possession of any Collateral or
proceeds therefrom or (ii) receives any payment pursuant to enforcement of the
Guarantee Agreement or the Parent Guarantee Agreement, in each case other than
pursuant to the terms of this Agreement, then such Secured Party shall
promptly cause such Collateral, proceeds or payments to be delivered to or put
in the custody, possession or control of the Collateral Agent for disposition or
distribution in accordance with the provisions of Article V. Until such time as
the provisions of the immediately preceding sentence have been complied with,
such Secured Party shall be deemed to hold such Collateral, proceeds or payments
in trust for the parties entitled thereto hereunder. Notwithstanding the
foregoing, but subject to the requirements of Sections 9.07 and 9.08, no Secured
Party shall be required to deliver to or put in the custody, possession or
control of the Collateral Agent or to hold in trust as specified in the
preceding sentence any amount of any Obligation paid or prepaid by the Borrower
to it (and not obtained by it through any sale of or other realization upon any
Collateral or by enforcement of its rights under the Guarantee Agreement or the
Parent Guarantee Agreement as provided herein and in the Support Documents) in
accordance with the terms of the applicable Secured Instrument.
SECTION 9.03. Release of Collateral and Guarantees. (a) In
-------------------------------------
connection with any sale, transfer or disposition of any Collateral to any
Person other than the Borrower or any Subsidiary Loan Party that does not
violate any Secured Instrument, the Secured Parties agree that any Liens on such
Collateral created pursuant to the Security Documents will be released upon the
delivery of evidence satisfactory to the Collateral Agent that such sale,
transfer or disposition (and the release of such Liens and, if applicable, any
guarantee of the Obligations) is in compliance with the requirements of each
Secured Instrument (including a certificate from a Financial Officer to such
effect). In the event any such sale, transfer or disposition to a Person other
than the Parent or any subsidiary thereof (including the Borrower or any
Subsidiary Loan Party) shall be of 100% of the Equity Interests of a Subsidiary
Loan Party, the Secured Parties hereby authorize the Collateral Agent upon the
delivery of such evidence to release such Subsidiary and its assets from its
obligations under and the Liens created by the Support Documents and to execute
amendments, releases and other documents in form and substance satisfactory to
the Collateral Agent confirming such release.
(b) Collateral may be released in connection with the exercise of any
rights, powers or remedies by the Collateral Agent pursuant to and in accordance
with Section
4.02 and such release shall not require any approval under this Section.
(c) The Secured Parties hereby authorize the Collateral Agent to
execute releases and other documents in form and substance satisfactory to the
Collateral Agent in respect of any release of Collateral permitted under this
Section.
SECTION 9.04. Additional Collateral. Each of the Secured Parties
----------------------
hereby covenants and agrees that it (a) will not accept any Guarantee of any of
the Obligations by any Loan Party or an Affiliate thereof or any Person
providing such Guarantee on behalf of a Loan Party or an Affiliate thereof
unless such Person's Guarantee is provided pursuant to the Guarantee Agreement
or the Parent Guarantee Agreement or otherwise Guarantees the payment of all the
Obligations on a pari passu basis and (b) will not take any security interest in
---- -----
or Lien on or assignment of any assets to secure any of the Obligations unless
such security interest or Lien or assignment is granted to the Collateral Agent
to secure the payment of all the Obligations on a pari passu basis pursuant to
---- -----
an Additional Security Document; provided that the foregoing shall not apply to
--------
any insurance or other credit support acquired by a Secured Party at its own
expense from a Person (other than any Loan Party or an Affiliate thereof or a
Person acting on behalf of a Loan Party or an Affiliate thereof) with respect to
the Obligations.
SECTION 9.05. Purchase of Collateral. Any Secured Party may purchase
-----------------------
Collateral at any public sale of such Collateral pursuant to any of the Security
Documents and to the extent, but only to the extent, approved by the Required
Secured Parties (determined for this purpose without giving effect to the
Obligations owed to the Secured Party that is making such purchase, unless it is
the only Holder at the time) may make payment on account thereof by using any
Obligation then due and payable to such Secured Party from the Person which
granted a security interest in such Collateral as a credit against the purchase
price.
SECTION 9.06. Further Assurances, etc. Each party hereto shall
------------------------
execute and deliver such other documents and instruments, in form and substance
reasonably satisfactory to the other parties hereto, and shall take such other
action, in each case as any other party hereto
may reasonably have requested (at the cost and expense of the Borrower which
agrees to pay such costs and expenses), to effectuate and carry out the
provisions of this Agreement and the other Support Documents, including by
recording or filing in such places as the requesting party may deem desirable,
this Agreement or such other documents or instruments.
SECTION 9.07. Restrictions on Prepayments and Purchases of
--------------------------------------------
Indebtedness. If on any date the Borrower:
- -------------
(a) shall prepay or purchase any Indebtedness outstanding under any
Secured Instrument; and
(b) shall not within three Business Days thereafter prepay or purchase
the Indebtedness outstanding under all Secured Instruments ratably in accordance
with the respective aggregate principal amount then outstanding thereunder;
any Secured Party that shall have had its Indebtedness so prepaid or purchased
in an amount in excess of that which it would have received if the Borrower had
made prepayments or purchases ratably in respect of all Secured Parties will, on
behalf of the Borrower, pay any excess amount received by it ratably to the
other Secured Parties entitled thereto in order to prepay or purchase on behalf
of the Borrower the Indebtedness of such other Secured Parties (and any such
excess so paid by any Secured Party shall be deemed not to have been paid by the
Borrower to such Secured Party); provided that the foregoing shall not apply to
--------
any refinancing of Indebtedness under any Secured Instrument that does not
require ratable prepayment of Loans, Nortel Loans or Ericsson Loans under
Section 2.09 of the Credit Agreement, the Nortel Credit Agreement or the
Ericsson Credit Agreement, respectively (as each such agreement is in effect on
the date hereof). The Borrower irrevocably authorizes and directs each Secured
Party to take the actions on its behalf specified in this Section 9.07.
SECTION 9.08. Payment of Amounts Owing under Secured Instruments. If
---------------------------------------------------
on any date:
(a) any amount shall be due and owing under more than one Secured
Instrument;
(b) the Borrower shall not pay all such amounts
as are then due and owing; and
(c) the Borrower shall not pay such amounts ratably, in accordance
with the respective amounts then due and owing thereunder;
any Secured Party that shall have been paid an amount in excess of the payment
that it would have received if the Borrower had paid amounts owing by it ratably
will, on behalf of the Borrower, pay such excess ratably to the other Secured
Parties entitled thereto (and any such excess so paid by any Secured Party shall
be deemed not to have been paid by the Borrower to such Secured Party); provided
--------
that, if a Notice of Enforcement is in effect as of such date, then, for all
purposes of this Section 9.08, all outstanding Obligations shall be deemed due
and owing whether or not they are actually due and owing (e.g., whether or not
----
the maturity of such Obligations has been accelerated or otherwise matured).
The Borrower irrevocably authorizes and directs each Secured Party to take the
actions on its behalf specified in this Section 9.08.
SECTION 9.09. Certain Amendments to Credit Agreement.
--------------------------------------
Notwithstanding any provision to the contrary in the Credit Agreement, no
amendment or waiver of any encumbrance or restriction in the Credit Agreement on
the ability of the Borrower, Holdings or any Subsidiary Loan Party to:
(i) pay dividends or make any other distributions permitted by
applicable law on any Equity Interest of the Borrower, Holdings or any
Subsidiary Loan Party;
(ii) pay any Indebtedness owed to the Parent or any subsidiary of the
Parent;
(iii) make loans or advances to the Parent or any subsidiary of the
Parent; or
(iv) transfer any of its property or assets to the Parent or any
subsidiary of the Parent,
shall be effective unless the Required Committed Credit Facility Parties under
each Credit Facility shall have consented to such amendment or waiver.
SECTION 9.10. Payments under ChaseTel Subordination Agreement. If
------------------------------------------------
any Lender or the Administrative Agent receives any payments under the ChaseTel
Subordination Agreement, then such Lender or the Administrative Agent shall
share the benefits of such payments ratably with the other Secured Parties by
either (a) payment to the Collateral Agent for distribution under Section 5.02,
if permitted, or (b) applying such payment to pay Credit Facility Obligations
and then purchasing participations in the Principal Obligations then outstanding
of the other Secured Parties to the extent necessary so that the benefit of all
such payments shall be shared by all Secured Parties ratably in accordance with
the aggregate amount of Principal Obligations then outstanding.
ARTICLE X
Benefit of Agreement
--------------------
This Agreement is being executed and delivered by the Persons whose
names appear on the signature pages below and by such other Persons as become
parties hereto by the execution and delivery of a Permitted Additional
Obligations Designation pursuant to Section 2.01 and by accepting and assuming
the rights, benefits, duties and obligations of a Secured Party hereunder as
provided in such Section and such Permitted Additional Obligations Designation,
but shall benefit, in addition to such Persons, each other Secured Party
represented by a Representative (including the Lenders, the Nortel Lenders and
the Ericsson Lenders).
ARTICLE XI
Miscellaneous
-------------
SECTION 11.01. Notices. Except in the case of notices and other
--------
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 10307 Pacific
Center Court, San Diego, California 92121, Attention of President (Telecopy No.
(619) 882-6010);
(b) if to the Collateral Agent, to it at Two Avenue DeLefayette, 6th
Floor, Boston, MA 02111-1724, Attention of Patrick Thibedeau (Telecopy No. 617-
662-1460);
(c) if to the Administrative Agent, to it at 600 Mountain Avenue,
Murray Hill, New Jersey 07974, Attention of Assistant Treasurer-Project Finance
(Telecopy No. (908) 582-3101);
(d) if to the Nortel Agent, to it at Nortel Networks Inc., Mail Stop
991 15 A40, 2221 Lakeside Blvd., Richardson, Texas 75082-4399, Attention of
Robert D. Beiter, Director, Customer Finance North America (Telecopy No. (972)
684-3679);
(e) if to the Ericsson Agent, to it at Telefonvagen 30, Stockholm 126
25, Sweden, Attention: President (Telecopy No. +468-719-0500), with a copy to
Ericsson Inc. at 740 East Campbell Road, Richardson, Texas 75081 Attention:
Director of Customer Finance (Telecopy No. 972-583-1858); and
(f) if to any other Secured Party, to it at its address (or telecopy
number) set forth in the applicable Permitted Additional Obligation Designation.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 11.02. Waivers; Amendments. (a) No failure or delay by the
--------------------
Collateral Agent in exercising any right or power hereunder or under any other
Support Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Collateral Agent hereunder and under the other
Support Documents are cumulative and are not exclusive of any rights or remedies
that it would otherwise have. No waiver of any provision of any Support
Document or consent to any departure by any Loan Party therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given.
(b) Neither this Agreement nor any other Support Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Borrower and the Representatives and/or Unrepresented
Holders representing the Required Committed Secured Parties (or, at any time
when a Notice of Enforcement is in effect, the Required Secured Parties) and the
Required Committed Credit Facility Parties in respect of each Credit Facility
or, in the case of any other Support Document, pursuant to an agreement or
agreements in writing entered into by the Collateral Agent and the Loan Party or
Loan Parties that are parties thereto with the consent of the Required Committed
Secured Parties (or, at any time when a Notice of Enforcement is in effect, the
Required Secured Parties) and the Required Committed Credit Facility Parties in
respect of each Credit Facility; provided that no such agreement shall (i)
--------
adversely affect any of the Collateral Agent's rights, immunities or rights to
indemnification hereunder or under any Support Document or expand its duties
hereunder or under any Support Document, without the prior written consent of
the Collateral Agent, (ii) modify any provision hereof which is intended to
provide for the equal and ratable security of all Obligations without the prior
written consent of all Secured Parties, (iii) release all or any substantial
part of the Collateral from the Liens of the Security Documents (except as
expressly provided in Section 9.03), without the prior written consent of each
Secured Party, (iv) release Holdings, any Subsidiary Loan Party or the Parent
from its Guarantee under the Guarantee Agreement or the Parent Guarantee
Agreement (except as expressly provided in Section 9.03) or limit or condition
its obligations thereunder, without the prior written consent of each Secured
Party, or (v) change the definitions of "Credit Facility Obligations", "Ericsson
Facility Obligations", "Nortel Facility Obligations", "Obligations", "Permitted
Additional Obligations", "Required Committed Secured Parties", "Required Credit
Facility Parties", "Required Non-Vendor Secured Parties", "Required Secured
Parties" or this Section, Section 4.02, Section 4.03 or Section 9.03 without the
prior written consent of each Secured Party.
Notwithstanding the foregoing, the Collateral Agent and the Borrower and, in the
case of the Guarantee Agreement or the Parent Guarantee Agreement, any guarantor
party to the Guarantee Agreement or the Parent Guarantee Agreement, may enter
into one or more agreements supplemental to the applicable Support Documents, in
form and substance satisfactory to the Collateral Agent, to add any guarantor of
the Obligations or any grantor to any Security Document.
SECTION 11.03. Counterparts. This Agreement may be executed in
-------------
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 11.04. Severability. Any provision of this Agreement held to
-------------
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 11.05. Governing Law; Jurisdiction; Consent to Service of
--------------------------------------------------
Process. (a) This Agreement shall be construed in accordance with and governed
- --------
by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to any
Support Document, or for recognition or enforcement of any judgment, and each of
the parties hereto hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in such
New York State or, to the extent permitted by law, in such Federal court. Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Support Document shall affect any right
that the Collateral Agent or any Secured Party may otherwise have to bring any
action or proceeding relating to this Agreement or any other Support Document
against the Borrower or their properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any other Support
Document in any court referred to in paragraph (b) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 11.01. Nothing in this
Agreement or any other Support Document will affect the right of any party to
this Agreement to serve process in any other manner permitted by law.
SECTION 11.06. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
---------------------
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER SUPPORT DOCUMENT (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 11.07. Headings. Article and Section headings used herein
---------
are for convenience of reference only, are not part of this Agreement and shall
not affect the construction of, or be taken into consideration in interpreting,
this Agreement.
SECTION 11.08. Successors and Assigns. (a) Whenever in this
-----------------------
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party (including, in the
case of any Secured Party, each transferee or assignee of Obligations held by
it). Without limiting the generality of the foregoing, this Agreement shall be
binding upon each transferee or assignee of any Secured Party.
(b) The Borrower shall not assign or delegate any of its rights or
duties hereunder or any of its interest herein without the prior written consent
of each Secured Party, and any purported assignment or delegation in
contravention of this paragraph shall be void.
SECTION 11.09. Termination. This Agreement shall automatically
------------
terminate when (i) the Liens and security interests granted under the Security
Documents have terminated and (ii) the Collateral has been released and the
Obligations have been indefeasibly paid and performed in full and all Secured
Instrument Commitments shall have terminated; provided that the provisions of
--------
Section 7.02 shall not be affected by any such termination.
SECTION 11.10. Complete Agreement. (a) This Agreement constitutes
-------------------
the entire agreement between the parties hereto with respect to the subject
matter hereof and supersedes all prior representations, negotiations, writings,
memoranda and agreements.
(b) Upon the execution and delivery of counterparts of this Agreement
by the Borrower, the Collateral Agent and Representatives and Unrepresented
Holders representing each Secured Party as of the date hereof, the Existing
Agreement shall be superseded and amended and restated in the form of this
Agreement.
(c) Lucent Technologies Inc., Societe Generale, Nortel Networks Inc.
and Ericsson Credit AB are the only Lenders, Nortel Lenders and Ericsson Lenders
as of the date hereof and are executing this Agreement in their individual
capacities in order to acknowledge their consent to the amendment and
restatement of the Existing Agreement as provided herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
CRICKET COMMUNICATIONS, INC.
(formerly known as Cricket
Wireless Communications, Inc.),
by
----------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Collateral Agent,
by
----------------------------
Name:
Title:
LUCENT TECHNOLOGIES INC.,
individually and as Administrative
Agent under the Credit Agreement,
by
----------------------------
Name:
Title:
NORTEL NETWORKS INC., individually and
as Administrative Agent under the Nortel
Credit Agreement,
by
----------------------------
Name:
Title:
SOCIETE GENERALE,
by
----------------------------
Name:
Title:
ERICSSON CREDIT AB, individually and as
Administrative Agent under the Ericsson
Credit Agreement,
by
----------------------------
Name:
Title:
by
----------------------------
Name:
Title:
The undersigned are parties to the other Support Documents and
acknowledge and agree to the changes thereto set forth herein and agree to be
bound by this Agreement.
LEAP WIRELESS INTERNATIONAL, INC.
by
----------------------------
Name:
Title:
EACH SUBSIDIARY OF THE BORROWER
by
----------------------------
Name:
Title:
EACH LICENSE SUBSIDIARY PARTY TO
THE OTHER SUPPORT DOCUMENTS,
by
----------------------------
Name:
Title:
EXHIBIT A
FORM OF
PERMITTED ADDITIONAL OBLIGATIONS DESIGNATION
[Date]
To: [ ], as Collateral Agent
Re: Amended and Restated Collateral Agency and Intercreditor Agreement, dated
as of October 20, 2000, among CRICKET COMMUNICATIONS, INC. (formerly known
as Cricket Wireless Communications, Inc.), STATE STREET BANK AND TRUST
COMPANY, as Collateral Agent, and the Representatives and Unrepresented
Holders referred to therein (the "Collateral Agency and Intercreditor
Agreement").
Reference is hereby made to the Collateral Agency and Intercreditor
Agreement. Capitalized terms which are defined in the Collateral Agency and
Intercreditor Agreement are used herein as therein defined.
In accordance with Section 2.01 of the Collateral Agency and
Intercreditor Agreement, the following Indebtedness for borrowed money of the
Borrower are hereby added as Permitted Additional Obligations thereunder.
[DESCRIBE INDEBTEDNESS]
Attached hereto is a true and complete copy of each agreement (together with all
schedules, exhibits, annexes, appendices and other attachments thereto),
constituting the applicable Secured Instruments relating to such Permitted
Additional Obligations.
The undersigned is [the Secured Party] [the Representative of the
Secured Parties] in respect of such Permitted Additional Obligations and hereby
acknowledges receipt of a copy of the Collateral Agency and Intercreditor
Agreement. [The undersigned agrees that, upon execution and delivery hereof, it
shall be a party to the Collateral Agency and Intercreditor Agent and shall have
all the rights and obligations of a Secured Party under the Collateral Agency
and Intercreditor Agreement in
accordance with the terms thereof.] [The undersigned represents that it has been
appointed as the Representative under the Secured Instruments referred to above
on behalf of the Holders thereunder, with the power to become a party to the
Collateral Agency and Intercreditor Agreement on behalf of such Holders, and by
the undersigned's execution and delivery hereof, each such Holder shall become a
party to the Collateral Agency and Intercreditor Agreement and shall have all
the rights and obligations of a Secured Party under the Collateral Agency and
Intercreditor Agreement in accordance with the terms thereof].
All communications and notices under the Collateral Agency and
Intercreditor Agreement to the [Secured Party] [Representative and the Holders
under the Secured Instruments referred to above] shall be given to such Person
at the address set forth on Schedule I hereto.
[ ]
by
Name:
Title:
[Secured Party] [Representative]
by
Name:
Title:
CRICKET COMMUNICATIONS, INC.
(formerly known as Cricket Wireless
Communications, Inc.),
by
Name:
Title:
SCHEDULE I
ADDRESS[ES] OF
[SECURED PARTY] [REPRESENTATIVE
AND SECURED PARTIES]