================================================================================
CREDIT AGREEMENT
DATED AS OF OCTOBER 1, 1999
By and Among
US UNWIRED INC.
as Borrower,
and
COBANK, ACB,
as Administrative Agent and a Lender,
FIRST UNION CAPITAL MARKETS CORP.,
as Syndication Agent and a Co-Arranger,
THE BANK OF NEW YORK,
as Documentation Agent and a Lender,
BNY CAPITAL MARKETS, INC.,
as a Co-Arranger,
FIRST UNION NATIONAL BANK,
as a Lender,
and
the other Lenders referred to herein
================================================================================
TABLE OF CONTENTS
-----------------
SECTION 1
AMOUNTS AND TERMS OF LOANS
1.1 Loans.................................................................................... 1
-----
(A) Term Loans.......................................................................... 2
----------
(B) Revolving Loans..................................................................... 2
---------------
(C) Notes............................................................................... 2
-----
(D) Advances............................................................................ 2
--------
1.2 Interest................................................................................. 2
--------
(A) Interest Options.................................................................... 2
----------------
(B) Applicable Margins.................................................................. 3
------------------
(C) Interest Periods.................................................................... 4
----------------
(D) Calculation and Payment............................................................. 5
-----------------------
(E) Default Rate of Interest............................................................ 5
------------------------
(F) Excess Interest..................................................................... 5
---------------
(G) Selection, Conversion or Continuation of Loans; LIBOR Availability.................. 5
------------------------------------------------------------------
1.3 Notice of Borrowing, Conversion or Continuation of Loans................................. 6
--------------------------------------------------------
1.4 Fees and Expenses........................................................................ 7
-----------------
(A) Commitment Fees..................................................................... 7
---------------
(B) Certain Other Fees.................................................................. 7
------------------
(C) LIBOR Breakage Fee.................................................................. 7
------------------
(D) Expenses and Attorneys Fees......................................................... 7
---------------------------
1.5 Payments................................................................................. 8
--------
1.6 Repayments and Reduction of Loans and Commitments and Related Mandatory Repayments....... 9
----------------------------------------------------------------------------------
(A) Scheduled Repayments and Reductions of Loans and Commitments........................ 9
------------------------------------------------------------
(B) Reductions Resulting From Mandatory Repayments...................................... 10
----------------------------------------------
(C) Voluntary Reduction of Revolving Loan Commitment.................................... 10
------------------------------------------------
(D) Mandatory Repayments................................................................ 11
--------------------
1.7 Voluntary Prepayments and Other Mandatory Repayments..................................... 11
----------------------------------------------------
(A) Voluntary Prepayment of Loans....................................................... 11
-----------------------------
(B) Repayments from Excess Cash Flow.................................................... 11
--------------------------------
(C) Repayments from Insurance Proceeds.................................................. 12
----------------------------------
(D) Repayments from Equity Issuances.................................................... 12
--------------------------------
(E) Repayments from Debt Incurrence..................................................... 12
-------------------------------
(F) .................................................................................... 12
(G) Repayments from Asset Dispositions.................................................. 12
----------------------------------
1.8 Application of Repayments; Payment of Breakage Fees, Etc................................. 13
--------------------------------------------------------
1.9 Loan Accounts............................................................................ 13
-------------
1.10 Changes in LIBOR Rate Availability....................................................... 13
----------------------------------
1.11 Capital Adequacy and Other Adjustments................................................... 14
--------------------------------------
(ii)
1.12 Optional Prepayment/Replacement of Lender in Respect of Increased Costs................. 14
-----------------------------------------------------------------------
1.13 Taxes................................................................................... 15
-----
(A) No Deductions...................................................................... 15
-------------
(B) Foreign Lenders.................................................................... 15
---------------
1.14 Changes in Tax Laws..................................................................... 16
-------------------
1.15 Term of This Agreement.................................................................. 17
----------------------
SECTION 2
AFFIRMATIVE COVENANTS
2.1 Compliance With Laws.................................................................... 17
--------------------
2.2 Maintenance of Books and Records; Properties; Insurance................................. 18
-------------------------------------------------------
2.3 Inspection; Lender Meeting.............................................................. 19
--------------------------
2.4 Legal Existence, Etc.................................................................... 19
--------------------
2.5 Use of Proceeds......................................................................... 19
---------------
2.6 Further Assurances; Notices of Acquisition of Real Property............................. 19
-----------------------------------------------------------
2.7 CoBank Patronage Capital................................................................ 20
------------------------
2.8 Collateral Assignments of Material Contracts............................................ 20
--------------------------------------------
2.9 Year 2000 Preparation................................................................... 20
---------------------
2.10 Enforcement of Sprint Agreements........................................................ 21
--------------------------------
2.11 Covenants of the Unrestricted Subsidiary................................................ 21
----------------------------------------
SECTION 3
NEGATIVE COVENANTS
3.1 Indebtedness............................................................................ 21
------------
3.2 Liens and Related Matters............................................................... 22
-------------------------
(A) No Liens........................................................................... 22
--------
(B) No Negative Pledges................................................................ 22
-------------------
3.3 Investments............................................................................. 22
-----------
3.4 Contingent Obligations.................................................................. 23
----------------------
3.5 Restricted Junior Payments.............................................................. 24
--------------------------
3.6 Restriction on Fundamental Changes...................................................... 24
----------------------------------
3.7 Restriction on Equity Issuance.......................................................... 25
------------------------------
3.8 Disposal of Assets or Subsidiary Stock.................................................. 25
--------------------------------------
3.9 Transactions with Affiliates............................................................ 25
----------------------------
3.10 Management Fees and Compensation........................................................ 26
--------------------------------
3.11 Conduct of Business..................................................................... 26
-------------------
3.12 Fiscal Year............................................................................. 26
-----------
3.13 Subsidiaries............................................................................ 26
------------
3.14 Sprint Agreements....................................................................... 26
-----------------
3.15 Subordinated Debt Documents............................................................. 26
---------------------------
(iii)
SECTION 4
FINANCIAL COVENANTS AND REPORTING
4.1 Indebtedness to POPs Ratio......................................................... 27
--------------------------
4.2 Minimum Ending Subscribers for LA Unwired and Texas Unwired........................ 28
-----------------------------------------------------------
4.3 Minimum Monthly Revenues per Subscriber for LA Unwired and Texas Unwired........... 28
------------------------------------------------------------------------
4.4 Capital Expenditures for LA Unwired and Texas Unwired.............................. 29
-----------------------------------------------------
4.5 Maximum Loss for LA Unwired and Texas Unwired...................................... 29
---------------------------------------------
4.6 Operating Cash Flow for Unwired Telecom............................................ 30
---------------------------------------
4.7 Capital Expenditures for Unwired Telecom........................................... 31
----------------------------------------
4.8 Total Leverage Ratio............................................................... 31
--------------------
4.9 Senior Debt Leverage Ratio......................................................... 32
--------------------------
4.10 Adjusted Quarterly Interest Coverage Ratio......................................... 33
------------------------------------------
4.11 Fixed Charge Coverage Ratio........................................................ 33
---------------------------
4.12 Pro Forma Debt Service Coverage Ratio.............................................. 33
-------------------------------------
4.13 Financial Statements and Other Reports............................................. 33
--------------------------------------
(A) Quarterly Financials........................................................ 33
--------------------
(B) Year-End Financials......................................................... 34
-------------------
(C) Borrower Compliance Certificate............................................. 34
-------------------------------
(D) Accountants' Reliance Letter................................................ 34
---------------------------
(E) Accountants' Reports........................................................ 34
--------------------
(F) Management Report........................................................... 34
-----------------
(G) Projections................................................................. 35
-----------
(H) SEC Filings and Press Releases.............................................. 35
------------------------------
(I) Events of Default, Etc...................................................... 35
----------------------
(J) Litigation.................................................................. 35
----------
(K) Supplemented Schedules; Notice of Corporate Changes......................... 36
---------------------------------------------------
(L) Regulatory and Other Notices................................................ 36
----------------------------
(M) Filings and Notices Relating to Sprint Agreements........................... 36
-------------------------------------------------
(N) Other Information........................................................... 36
-----------------
4.14 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under Agreement. 36
----------------------------------------------------------------------------------
SECTION 5
REPRESENTATIONS AND WARRANTIES
5.1 Disclosure......................................................................... 37
----------
5.2 No Material Adverse Effect......................................................... 37
--------------------------
5.3 Organization, Powers, Authorization and Good Standing.............................. 37
-----------------------------------------------------
(A) Organization and Powers..................................................... 37
-----------------------
(B) Authorization; Binding Obligation........................................... 38
---------------------------------
(C) Qualification............................................................... 38
-------------
5.4 Compliance of Agreement, Loan Documents and Borrowings with Applicable
----------------------------------------------------------------------
(iv)
Law....................................................................................... 38
---
5.5 Compliance with Law; Governmental Approvals............................................... 38
-------------------------------------------
5.6 Tax Returns and Payments.................................................................. 39
------------------------
5.7 Environmental Matters..................................................................... 39
---------------------
5.8 Financial Statements...................................................................... 39
--------------------
5.9 Intellectual Property..................................................................... 39
---------------------
5.10 Litigation, Investigations, Audits, Etc................................................... 40
---------------------------------------
5.11 Employee Labor Matters.................................................................... 40
----------------------
5.12 Employee Benefit Plans.................................................................... 40
----------------------
5.13 Communications Regulatory Matters......................................................... 41
---------------------------------
5.14 Perfection and Priority................................................................... 41
-----------------------
5.15 Solvency.................................................................................. 42
--------
5.16 Investment Company Act; Public Utility Holding Act........................................ 42
--------------------------------------------------
5.17 Certain Agreements and Material Contracts................................................. 42
-----------------------------------------
5.18 Capitalization............................................................................ 42
--------------
5.19 Title to Properties....................................................................... 42
-------------------
5.20 Year 2000 Compliance...................................................................... 43
--------------------
SECTION 6
EVENTS OF DEFAULT AND RIGHTS AND REMEDIES
6.1 Event of Default.......................................................................... 43
----------------
(A) Payment............................................................................ 43
-------
(B) Default in Other Agreements........................................................ 43
---------------------------
(C) Breach of Certain Provisions....................................................... 44
----------------------------
(D) Breach of Warranty................................................................. 44
------------------
(E) Other Defaults Under Loan Documents................................................ 44
-----------------------------------
(F) Involuntary Bankruptcy; Appointment of Receiver; Etc............................... 44
----------------------------------------------------
(G) Voluntary Bankruptcy; Appointment of Receiver; Etc................................. 44
--------------------------------------------------
(H) Governmental Liens................................................................. 45
------------------
(I) Judgment and Attachments........................................................... 45
------------------------
(J) Dissolution........................................................................ 45
-----------
(K) Solvency........................................................................... 45
--------
(L) Injunction......................................................................... 45
----------
(M) ERISA; Pension Plans............................................................... 46
--------------------
(N) Environmental Matters.............................................................. 46
---------------------
(O) Invalidity of Loan Documents....................................................... 46
----------------------------
(P) Damage; Strike; Casualty........................................................... 46
------------------------
(Q) Licenses and Permits............................................................... 46
--------------------
(R) Failure of Security................................................................ 47
-------------------
(S) Change in Control.................................................................. 47
-----------------
(T) Material Adverse Effect............................................................ 47
-----------------------
(U) Sprint Agreements and other Material Contracts..................................... 47
----------------------------------------------
6.2 Suspension of Commitments................................................................. 48
-------------------------
(v)
6.3 Acceleration....................................................................... 48
------------
6.4 Rights of Collection............................................................... 48
--------------------
6.5 Consents........................................................................... 48
--------
6.6 Performance by Administrative Agent................................................ 49
-----------------------------------
6.7 Set Off and Sharing of Payments.................................................... 49
-------------------------------
6.8 Application of Payments............................................................ 49
-----------------------
6.9 Adjustments........................................................................ 50
-----------
SECTION 7
CONDITIONS TO LOANS
7.1 Conditions to Initial Loan......................................................... 50
--------------------------
(A) Executed Loan Documents.................................................... 50
-----------------------
(B) Closing Certificates; Opinions............................................. 51
------------------------------
(C) Collateral................................................................. 52
----------
(D) Consents................................................................... 52
--------
(E) Financial Matters.......................................................... 53
-----------------
(F) Miscellaneous.............................................................. 53
-------------
7.2 Conditions to All Loans............................................................ 54
-----------------------
SECTION 8
ASSIGNMENT AND PARTICIPATION
8.1 Assignments and Participations in Loans and Notes.................................. 55
-------------------------------------------------
8.2 Agents............................................................................. 57
------
(A) Appointment................................................................ 57
-----------
(B) Nature of Duties........................................................... 58
----------------
(C) Rights, Exculpation, Etc................................................... 59
------------------------
(D) Reliance................................................................... 59
--------
(E) Indemnification............................................................ 60
---------------
(F) CoBank Individually........................................................ 60
-------------------
(G) Notice of Default.......................................................... 60
-----------------
(H) Successor Administrative Agent............................................. 61
------------------------------
(1) Resignation......................................................... 61
------------
(2) Appointment of Successor............................................ 61
------------------------
(3) Successor Administrative Agent...................................... 61
------------------------------
(I) Collateral Matters......................................................... 62
------------------
(1) Release of Collateral............................................... 62
---------------------
(2) Confirmation of Authority; Execution of Releases.................... 62
------------------------------------------------
(3) Absence of Duty..................................................... 63
---------------
(J) Agency for Perfection; Enforcement of Security by Administrative Agent..... 63
----------------------------------------------------------------------
(K) Dissemination of Information............................................... 63
----------------------------
8.3 Amendments, Consents and Waivers for Certain Actions............................... 63
----------------------------------------------------
8.4 Disbursement of Funds.............................................................. 64
---------------------
(vi)
8.5 Disbursements of Advances; Payments................................................ 64
-----------------------------------
(A) Pro Rata Treatment; Application............................................. 64
-------------------------------
(B) Availability of Lender's Pro Rata Share..................................... 64
---------------------------------------
(C) Return of Payments.......................................................... 65
------------------
SECTION 9
MISCELLANEOUS
9.1 Indemnities........................................................................ 65
-----------
9.2 Amendments and Waivers............................................................. 66
----------------------
9.3 Notices............................................................................ 67
-------
9.4 Failure or Indulgence Not Waiver; Remedies Cumulative.............................. 67
-----------------------------------------------------
9.5 Marshaling; Payments Set Aside..................................................... 67
------------------------------
9.6 Severability....................................................................... 68
------------
9.7 Lenders' Obligations Several; Independent Nature of Lenders' Rights................ 68
-------------------------------------------------------------------
9.8 Headings........................................................................... 68
--------
9.9 Applicable Law..................................................................... 68
--------------
9.10 Successors and Assigns............................................................. 68
----------------------
9.11 No Fiduciary Relationship.......................................................... 68
-------------------------
9.12 Construction....................................................................... 68
------------
9.13 Confidentiality.................................................................... 68
---------------
9.14 Consent to Jurisdiction and Service of Process..................................... 69
----------------------------------------------
9.15 Waiver of Jury Trial............................................................... 70
--------------------
9.16 Survival of Warranties and Certain Agreements...................................... 70
---------------------------------------------
9.17 Entire Agreement................................................................... 70
----------------
9.18 Counterparts; Effectiveness........................................................ 71
---------------------------
SECTION 10
DEFINITIONS
10.1 Certain Defined Terms.............................................................. 71
---------------------
10.2 Other Definitional Provisions...................................................... 90
-----------------------------
(vii)
SCHEDULES
Schedule 2.8 Material Contracts to be Assigned
Schedule 3.8 Transactions with Affiliates
Schedule 3.9 Permitted Management Fees
Schedule 5.3(A) Jurisdiction of Organization
Schedule 5.3(C) Qualification to Transact Business
Schedule 5.4 Governmental Approvals
Schedule 5.10 Litigation, Etc.
Schedule 5.11 Labor Matters
Schedule 5.13(A) License Information
Schedule 5.17 Certain Agreements and Material Contracts
Schedule 5.18 Capitalization
Schedule 10.1(A) Telecommunications Licenses
Schedule 10.1(B) Service Areas
EXHIBITS
Exhibit 1.3 Form of Notice of Borrowing/Conversion/Continuation
Exhibit 4.10(C) Form of Compliance Certificate
Exhibit 10.1(A) Form of Revolving Loan Promissory Note
Exhibit 10.1(B) Form of Term Loan Promissory Note
(viii)
INDEX OF DEFINED TERMS
Defined Term Defined in Section
------------ ------------------
Accounting Changes (S)4.14
Adjusted Quarterly Interest Coverage Ratio (S)10.1
Adjustment Date (S)10.1
Administrative Agent (S)10.1
Affiliate (S)10.1
Affected Lender (S)1.12
Agents (S)10.1
Agreement (S)10.1
Annualized Operating Cash Flow (S)10.1
Applicable Commitment Fee Percentage (S)10.1
Applicable Law (S)10.1
Asset Disposition (S)10.1
Available Revolving Loan Commitment (S)10.1
Available Term Loan Commitment (S)10.1
Bankruptcy Code (S)10.1
Base Rate (S)10.1
Base Rate Loan (S)10.1
Base Rate Margin (S)10.1
Benefited Lender (S) 6.9
Borrower Preamble
Borrower Pledge Agreements (S)10.1
Breakage Fee (S) 1.4(C)
Business Day (S)10.1
Calculation Period (S)10.1
Cameron Pledge Agreement (S)10.1
Cash Equivalents (S)10.1
Certificate of Exemption (S)1.13(B)
Closing Date (S)10.1
Co-Arranger(s) (S)10.1
CoBank Preamble
Collateral (S)10.1
Collateral Contract Assignments (S)10.1
Command Connect (S)10.1
Communications Act (S)10.1
Compliance Certificate (S)4.13(C)
Contingent Obligation (S)10.1
Default (S)10.1
Documentation Agent (S)10.1
(ix)
EBITDA (S)10.1
Environmental Laws (S)10.1
Event of Default (S) 6.1
Excess Cash Flow (S)10.1
Expiration Date (S)10.1
Facilities (S)10.1
FCC (S)10.1
FDPA (S) 2.2
Federal Funds Rate (S)10.1
First Union's Prime Rate (S)10.1
Fixed Charge Coverage Ratio (S)10.1
Fixed Charges (S)10.1
Foreign Lender (S)1.13(B)
Funding Date (S) 7.2
GAAP (S)10.1
Governmental Approvals (S)10.1
Governmental Authority (S)10.1
Guarantors (S)10.1
Indebtedness (S)10.1
Indebtedness to POP Ratio (S)10.1
Indemnitees (S) 9.1
Intellectual Property Rights (S)5.9
Interest Period (S)1.2(C)
Investment (S)10.1
IRC (S)10.1
LA Unwired (S)10.1
LA Unwired Pledge Agreement (S)10.1
Lender(s) (S)10.1
Lender Addition Agreement (S)10.1
Letter of Non-Exemption (S)1.13(B)
LIBOR (S)10.1
LIBOR Loans (S)10.1
LIBOR Margin (S)10.1
Licenses (S)10.1
Lien (S)10.1
Loan(s) (S)10.1
Loan Commitment(s) (S)10.1
Loan Documents (S)10.1
Material Adverse Effect (S)10.1
Material Contracts (S)10.1
Meretel Communications (S)10.1
Mortgages (S)10.1
Negative Pledge Agreement (S)10.1
Net Proceeds (S)10.1
(x)
Note(s) (S)10.1
Notice of Borrowing/Conversion/Continuation (S) 1.3
Obligations (S)10.1
Omnibus Agreement (S)10.1
Operating Cash Flow (S)10.1
PCS (S)10.1
PCS System (S)10.1
Permitted Encumbrances (S)10.1
Person (S)10.1
Pledge Agreements (S)10.1
POP (S)10.1
Preferred Stock (S)10.1
Preferred Stock Documents (S)10.1
Pro Forma Debt Service Coverage Ratio (S)10.1
Pro Forma Interest Expense (S)10.1
Pro Rata Share (S)10.1
Projections (S)10.1
PUC (S)10.1
Registration Rights Agreement (S)10.1
Replacement Lender (S)1.12(A)
Requisite Lenders (S)10.1
Restricted Junior Payment (S)10.1
Restricted Subsidiaries (S)10.1
Revenues per Subscriber (S)10.1
Revolving Loan(s) (S)10.1
Revolving Loan Commitment (S)10.1
Revolving Loan Facility (S)10.1
Revolving Note(s) (S)10.1
SEC (S)4.13(H)
Security Agreements (S)10.1
Security Documents (S)10.1
Security Interest (S)10.1
Senior Indebtedness (S)10.1
Senior Leverage Ratio (S)10.1
Service Areas (S)10.1
Sprint (S)10.1
Sprint Agreements (S)10.1
Sprint Consent and Agreement (S)10.1
Statement (S)4.13(B)
Subordinated Debt Documents (S)10.1
Subordinated Note Indenture (S)10.1
Subordinated Notes (S)10.1
Subscribers (S)10.1
Subsidiary (S)10.1
(xi)
Subsidiary Guarantees (S)10.1
Subsidiary Guarantor (S)10.1
Syndication Agent (S)10.1
Tax Liabilities (S)1.13(A)
Term Loan(s) (S)10.1
Term Loan Availability Expiration Date (S)10.1
Term Loan Commitment (S)10.1
Term Loan Facility (S)10.1
Term Note(s) (S)10.1
Texas Unwired (S)10.1
Total Lender Loan Commitment (S)10.1
Total Leverage Ratio (S)10.1
Total Vendor Purchases (S)10.1
Unrestricted Subsidiary (S)10.1
Unwired Telecom (S)10.1
Unwired Telecom Pledge Agreement (S)10.1
Vendor (S)10.1
Vendor Guarantor (S)10.1
Vendor Guaranty (S)10.1
Warrants (S)10.1
Wireless System (S)10.1
Year 2000 Compliant (S)5.20
Year 2000 Problem (S)5.20
(xii)
CREDIT AGREEMENT
----------------
This CREDIT AGREEMENT (this "Agreement") is entered into as of October 1,
1999, among US UNWIRED INC., a Louisiana corporation ("Borrower"), COBANK, ACB
(in its individual capacity ("CoBank")), as a Lender and in its capacity as
Administrative Agent, FIRST UNION CAPITAL MARKETS CORP., in its capacity as
Syndication Agent and Co-Arranger, THE BANK OF NEW YORK, in its capacity as
Documentation Agent and as a Lender, BNY CAPITAL MARKETS, INC., in its capacity
as a Co-Arranger, FIRST UNION NATIONAL BANK, as a Lender, and such other Lenders
as may become a party to this Agreement. Capitalized terms used and not
otherwise defined herein shall have the meanings given to them in Section 10.1
of this Agreement.
R E C I T A L S:
- - - - - - - -
WHEREAS, Borrower desires that Lenders extend a term loan facility and
revolving credit facility to Borrower available to refinance existing
indebtedness of LA Unwired and Unwired Telecom, to finance the construction of
the Wireless System associated with the Service Areas, to finance permitted
capital contributions in Texas Unwired or a permitted intercompany loan to Texas
Unwired, to provide working capital financing for Borrower and the Restricted
Subsidiaries, and to provide funds for other general corporate purposes of
Borrower and the Restricted Subsidiaries; and
WHEREAS, Borrower intends to secure all of its Obligations under the Loan
Documents by granting to Administrative Agent, for the benefit of the
Administrative Agent and Lenders, a first priority security interest in and lien
upon substantially all of its now owned or hereafter acquired personal and real
property; and
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties agree as follows:
SECTION 1
AMOUNTS AND TERMS OF LOANS
1.1 Loans. Subject to the terms and conditions of this Agreement and in
-----
reliance upon the representations, warranties and covenants of Borrower, and the
Subsidiaries and Vendor Guarantor contained herein and in the other Loan
Documents:
(A) Term Loans. Each Lender, severally and not jointly, agrees to
----------
lend to Borrower, during the period commencing on the date all conditions
precedent set forth in Subsections 7.1 and 7.2 are satisfied or waived as
provided herein and ending on the Term Loan Availability Expiration Date, its
Pro Rata Share of each Term Loan; provided that the aggregate principal amount
--------
of all Term Loans advanced may not exceed the Available Term Loan Commitment.
Amounts borrowed under this Subsection 1.1(A) that are repaid may not be
reborrowed.
(B) Revolving Loans. Each Lender, severally and not jointly,
---------------
agrees to lend to Borrower, during the period commencing on the date the entire
Term Loan Commitment has been advanced and all conditions precedent set forth in
Subsections 7.1 and 7.2 are satisfied or waived as provided herein and ending on
the Business Day immediately preceding the Expiration Date, its Pro Rata Share
of each Revolving Loan; provided that at any one time the aggregate principal
--------
amount of all Revolving Loans outstanding may not exceed the Available Revolving
Loan Commitment. Within the limits of the Available Revolving Loan Commitment
and this Subsection 1.1(B), amounts borrowed under this Subsection 1.1(B) may be
prepaid and reborrowed at any time prior to the Expiration Date.
(C) Notes. Borrower shall execute and deliver to each Lender a
-----
Term Note, in the principal amount of such Lender's Pro Rata Share of the Term
Loan Commitment, and a Revolving Note, in the principal amount of such Lender's
Pro Rata Share of the Revolving Loan Commitment.
(D) Advances. Loans will be made available by wire transfer of
--------
immediately available funds. Except as specifically provided in the following
sentence, wire transfers will be made to such account or accounts as may be
authorized by Borrower. Each Loan or portion of a Loan advanced to finance the
purchase price of equipment or services purchased by Borrower from Vendor shall,
subject to prior approval by Borrower of the related invoice and written
authorization by Borrower to Administrative Agent to make the Loan or portion
thereof, be paid directly by Administrative Agent to Vendor in accordance with
payment instructions provided by Vendor to Administrative Agent, unless Vendor
consents in writing to all or such portion of such Loan being paid to Borrower.
1.2 Interest.
--------
(A) Interest Options. From the date each Loan is made, based upon
----------------
Borrower's election at such time and from time to time thereafter (as provided
in Subsection 1.3 and subject to the conditions set forth in such Subsection and
Subsection 1.2 (C)), each Loan shall accrue interest as follows:
2
(1) as a Base Rate Loan, at the sum of the Base Rate plus the
----
Base Rate Margin applicable from time to time as provided in Subsection 1.2(B);
or
(2) as a LIBOR Loan, for the applicable Interest Period (as
defined in Subsection 1.2 (C)), at the sum of LIBOR plus the LIBOR Margin
----
applicable on the first day of the applicable Interest Period or as applicable
from time to time as otherwise provided in Subsection 1.2(B).
Except as otherwise provided in Subsection 6.6, interest on all other
Obligations shall accrue at the Base Rate plus 2.250% per annum.
----
(B) Applicable Margins. Initially, and continuing through the day
------------------
immediately preceding the first Adjustment Date occurring after the first
consecutive four (4) fiscal quarter period in which Borrower achieves positive
Operating Cash Flow for such period, the applicable Base Rate Margin and LIBOR
Margin shall be 2.250% and 3.500% per annum, respectively. Commencing on such
Adjustment Date, the applicable Base Rate Margin and LIBOR Margin shall be for
each Calculation Period the applicable per annum percentage set forth in the
pricing table below opposite the Total Leverage Ratio of Borrower; provided,
--------
that effective upon the occurrence of an Event of Default and until such Event
of Default is cured or waived the applicable Base Rate Margin and LIBOR Rate
Margin shall be 2.250% and 3.500% per annum, respectively.
For purposes of this Subsection 1.2(B), Operating Cash Flow and Total
Leverage Ratio shall be calculated on a consolidated basis for Borrower and its
Restricted Subsidiaries, but excluding the Unrestricted Subsidiary; provided
--------
that the results of Texas Unwired shall be consolidated with Borrower only to
the extent of LA Unwired's percentage ownership interest in Texas Unwired.
3
PRICING TABLE
-------------
========================================================
Total Base Rate
Leverage Ratio Margin LIBOR Margin
--------------------------------------------------------
* 10.00:1 2.000% 3.250%
*
8.00:1**10.00:1 1.750% 3.000%
*
6.00:1**8.00:1 1.500% 2.750%
*
4.00:1**6.00:1 1.250% 2.500%
** 4.00:1 1.000% 2.250%
========================================================
(C) Interest Periods. Each LIBOR Loan may be obtained for a one
----------------
(1), two (2), three (3) or six (6) month period (each such period being an
"Interest Period"). With respect to all LIBOR Loans:
(i) the Interest Period will commence on the date that the
LIBOR Loan is made or the date on which any portion of the Base Rate Loan
is converted into a LIBOR Loan, or, in the case of immediately successive
Interest Periods, each successive Interest Period shall commence on the day
on which the immediately preceding Interest Period expires;
(ii) if the Interest Period would otherwise expire on a day that
is not a Business Day, then it will expire on the next Business Day,
provided, that if any Interest Period would otherwise expire on a day that
--------
is not a Business Day and such day is a day of a calendar month after which
no further Business Day occurs in such month, such Interest Period shall
expire on the Business Day next preceding such day;
(iii) any Interest Period that begins on the last Business Day
of a calendar month or on a day for which there is no numerically
corresponding day in the last calendar month in such Interest Period shall
end on the last Business Day of the last calendar month in such Interest
Period;
(iv) no Interest Period shall be selected for any Loan if, in
order to make repayments required pursuant to Subsection 1.6(D) in
connection with scheduled
** Greater than
* Less than
4
reductions of the Loan Commitments pursuant to Subsection 1.6(A), repayment
of all or any portion of such Loan prior to the expiration of such Interest
Period would be necessary; and
(v) no Interest Period shall extend beyond the date set forth in
clause (iii) of the definition of the term "Expiration Date."
(D) Calculation and Payment. Interest on all LIBOR Loans shall be
-----------------------
calculated daily on the basis of a three hundred sixty (360) day year for the
actual number of days elapsed. The interest on the Base Rate Loan and all other
Obligations and the amount of any fees set forth in Subsection 1.4 shall be
calculated daily on the basis of a three hundred sixty-five or -six (365-6) day
year for the actual number of days elapsed. The date of funding or conversion to
a Base Rate Loan and the first day of an Interest Period with respect to a LIBOR
Loan shall be included in the calculation of interest. The date of payment of
any Loan and the last day of an Interest Period with respect to a LIBOR Loan
shall be excluded from the calculation of interest; provided, if a Loan is
--------
repaid on the same day that it is made, one (1) day's interest shall be charged.
Interest accruing on the Base Rate Loan is payable in arrears on each
of the following dates or events: (i) the last day of each calendar quarter,
(ii) the prepayment of such Loan (or portion thereof) and (iii) the Expiration
Date, whether by acceleration or otherwise. Interest accruing on each LIBOR
Loan is payable in arrears on each of the following dates or events: (i) the
last day of each calendar quarter, (ii) the last day of each applicable Interest
Period, (iii) the prepayment of such Loan (or portion thereof) and (iv) the
Expiration Date, whether by acceleration or otherwise.
(E) Default Rate of Interest. At the election of Administrative
------------------------
Agent or Requisite Lenders, after the occurrence of an Event of Default and for
so long as it continues, all Loans and other Obligations shall bear interest at
variable rates that are two percent (2.000%) in excess of the rates otherwise in
effect, including, without limitation, rates in effect pursuant to the proviso
in the second sentence of Subsection 1.2(B), with respect to such Loans and
other Obligations.
(F) Excess Interest. Under no circumstances will the rate of
---------------
interest chargeable be in excess of the maximum amount permitted by law. If any
such excess interest is charged and paid in error, then the excess amount will
be promptly refunded.
(G) Selection, Conversion or Continuation of Loans; LIBOR
-----------------------------------------------------
Availability. Provided that no Default or Event of Default has occurred and
- ------------
is then continuing, Borrower shall have the option to (i) select all or any part
of a new borrowing to be a LIBOR Loan in a principal amount equal to $3,000,000
or any whole multiple of $500,000 in excess thereof, (ii) convert at any time
all or any portion of the Base Rate Loan in a principal amount equal to
$3,000,000 or
5
any whole multiple of $500,000 in excess thereof into one or more LIBOR Loans,
(iii) upon the expiration of any Interest Period, convert all or any part of any
LIBOR Loan into the Base Rate Loan, and (iv) upon the expiration of its Interest
Period, continue any LIBOR Loan in a principal amount of $3,000,000 or any whole
multiple of $500,000 in excess thereof into one or more LIBOR Loans for such new
Interest Period(s) as selected by Borrower. Each LIBOR Loan must be made under
either the Term Loan Facility or the Revolving Loan Facility, but may not be
made under both concurrently. During any period in which any Default or Event of
Default is continuing, as the Interest Periods for LIBOR Loans then in effect
expire, such Loans shall be converted into the Base Rate Loan and the LIBOR
option will not be available to Borrower until all Events of Default are cured
or waived. Notwithstanding the foregoing, there may be no more than a total of
six (6) Loans outstanding under the Facilities at any one time (including, as a
single Loan, all amounts under a single Facility accruing interest at the Base
Rate).
1.3 Notice of Borrowing, Conversion or Continuation of Loans.
--------------------------------------------------------
Whenever Borrower desires to request a Loan pursuant to Subsection 1.1
or to convert or continue Base Rate or LIBOR Loans pursuant to Subsection
1.2(G), Borrower shall give Administrative Agent irrevocable prior written
notice in the form attached hereto as Exhibit 1.3 (a "Notice of
Borrowing/Conversion/Continuation"), (i) if requesting a borrowing of,
conversion to or continuation of the Base Rate Loan (or any portion thereof),
not later than 11:00 a.m. (Denver time), one (1) Business Day before the
proposed borrowing, conversion or continuation is to be effective or (ii), if
requesting a borrowing of, a conversion to or a continuation of a LIBOR Loan,
not later than 11:00 a.m. (Denver time), three (3) Business Days before the
proposed borrowing, conversion or continuation is to be effective. Each Notice
of Borrowing/Conversion/Continuation shall specify (a) the Loan (or portion
thereof) to be converted or continued and, with respect to any LIBOR Loan to be
converted or continued, the last day of the current Interest Period therefor,
(b) the effective date of such borrowing, conversion or continuation (which
shall be a Business Day), (c) the principal amount of such Loan to be borrowed,
converted or continued, (d) the Interest Period to be applicable to any new
LIBOR Loan, and (e) the Facility under which such borrowing, conversion or
continuation is to be made. In the event Borrower fails to elect a LIBOR Loan
upon any advance hereunder or upon the termination of any Interest Period,
Borrower shall be deemed to have elected to have such amount constitute a
portion of the Base Rate Loan.
1.4 Fees and Expenses.
-----------------
(A) Commitment Fees.
---------------
(1) Term Loan Commitment Fee. From the Closing Date through the
------------------------
Term Loan Availability Expiration Date, Borrower shall pay Administrative Agent,
for the benefit of all Lenders (based upon their respective Pro Rata Shares of
the Term Loan Commitment), a
6
fee in an amount equal to (i) the Term Loan Commitment less the average daily
----
outstanding balance of Term Loans during the preceding calendar quarter
multiplied by (ii) the Applicable Commitment Fee Percentage. Such fee is to paid
- ---------- --
quarterly in arrears on the last day of each calendar quarter for such calendar
quarter (or a portion thereof) with the final such payment due on the Term Loan
Availability Expiration Date.
(2) Revolving Loan Commitment Fee. From the Closing Date,
Borrower shall pay Administrative Agent, for the benefit of all Lenders (based
upon their respective Pro Rata Shares of the Revolving Loan Commitment), a fee
in an amount equal to (i) the Revolving Loan Commitment less the average daily
----
outstanding balance of Revolving Loans during the preceding calendar quarter
multiplied by (ii) the Applicable Commitment Fee Percentage. Such fee is to be
- ---------- --
paid quarterly in arrears on the last day of each calendar quarter for such
calendar quarter (or portion thereof), with the final such payment due on the
Expiration Date.
(B) Certain Other Fees. Borrower shall pay the fees specified in
------------------
that certain letter agreement, dated October 6, 1999, among Borrower, the
Agents, First Union and the BNY Capital Markets, Inc., at such times and to such
entities as specified in such letter agreement.
(C) LIBOR Breakage Fee. Upon any repayment or payment of a LIBOR
------------------
Loan on any day that is not the last day of the Interest Period applicable
thereto (regardless of the source of such repayment or prepayment and whether
voluntary, mandatory, by acceleration or otherwise), Borrower shall pay
Administrative Agent, for the benefit of all affected Lenders, an amount (the
"Breakage Fee") equal to the amount of any losses, expenses and liabilities
(including any loss (including interest paid) sustained by each such affected
Lender in connection with the re-employment of such funds) that any such
affected Lender may sustain as a result of the payment of such LIBOR Loan on
such day.
(D) Expenses and Attorneys Fees. Borrower agrees to pay promptly
---------------------------
all fees, costs and expenses (including those of attorneys) incurred by
Administrative Agent in connection with (i) any matters contemplated by or
arising out of the Loan Documents, and (ii) the continued administration of the
Loan Documents, including any such fees, costs and expenses incurred in
perfecting, maintaining, determining the priority of and releasing any security,
any tax payable in connection with any Loan Documents and any amendments,
modifications and waivers. In addition to fees due under Subsection 1.4(B),
Borrower shall also reimburse on demand each of the Agents, First Union and BNY
Capital Markets, Inc. for their respective out-of-pocket expenses (including
reasonable attorneys' fees and expenses and syndication costs and expenses)
incurred in connection with the transactions contemplated herein. Borrower
agrees to pay promptly all fees, costs and expenses incurred by Administrative
Agent and Lenders in connection with any action to enforce any Loan Document or
to collect any payments due from Borrower. All fees, costs and expenses for
which Borrower is responsible under this Subsection 1.4(D) shall be
7
deemed part of the Obligations when incurred, payable upon demand and in
accordance with the second paragraph of Subsection 1.5 and secured by the
Collateral.
1.5 Payments. All payments by Borrower of the Obligations shall be made
--------
in same day funds and delivered to Administrative Agent, for the benefit of
Administrative Agent and Lenders, as applicable, by wire transfer to the
following account or such other place as Administrative Agent may from time to
time designate:
Account Number 3070-8875-4
Federal Reserve Bank of Kansas City
Reference: CoBank for the benefit of US Unwired Inc.
Borrower shall receive credit on the day of receipt for funds received by
Administrative Agent by 11:00 a.m. (Denver time) on any Business Day. Funds
received on any Business Day after such time shall be deemed to have been paid
on the next Business Day. Whenever any payment to be made hereunder shall be
stated to be due on a day that is not a Business Day, the payment shall be due
on the next succeeding Business Day and such extension of time shall be included
in the computation of the amount of interest and fees due hereunder.
Borrower hereby authorizes Lenders to make (but Lenders shall not be
obligated to make) a Base Rate Loan under the Revolving Loan Facility, on the
basis of their respective Pro Rata Shares of the Revolving Loan Facility, for
the payment of interest, commitment fees and Breakage Fees. Prior to an Event of
Default, other fees, costs and expenses (including those of attorneys)
reimbursable pursuant to Subsections 1.4(A), 1.4(B) and 1.4(D) or elsewhere in
any Loan Document may be debited to the Base Rate Loan under the Revolving Loan
Facility after fifteen (15) days notice. After the occurrence of an Event of
Default, any such other fees, costs and expenses may be debited to the Base Rate
Loan under the Revolving Loan Facility without notice.
To the extent Borrower or any Guarantor makes a payment or payments to
Administrative Agent for the ratable benefit of Lenders or for the benefit of
Administrative Agent in its individual capacity, which payments or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside and/or required to be repaid to a trustee, receiver or any other party
under any bankruptcy law, state or federal law, common law or equitable cause,
then, to the extent of such payment or proceeds repaid, the Obligations or part
thereof intended to be satisfied shall be revived and continued in full force
and effect as if such payment or proceeds had not been received by
Administrative Agent.
1.6 Repayments and Reduction of Loans and Commitments and Related
-------------------------------------------------------------
Mandatory Repayments.
- --------------------
(A) Scheduled Repayments and Reductions of Loans and Commitments.
------------------------------------------------------------
8
(1) Term Loan. Commencing on June 30, 2003, Borrower shall repay
---------
the aggregate outstanding principal balance of the Term Loans on each date set
forth below in the amount set forth opposite such date:
Quarterly Payment
Dates of Repayment Amount
------------------ ----------------
June 30, 2003, September 30, 2003 and $1,333,333.34
December 31, 2003
March 31, 2004, June 30, 2004, September 30, $2,500,000.00
2004, and December 31, 2004
March 31, 2005, June 30, 2005, September 30, $3,750,000.00
2005, and December 31, 2005
March 31, 2006, June 30, 2006, September 30, $3,750,000.00
2006, and December 31, 2006
March 31, 2007, June 30, 2007 and September 30, $2,000,000.00
2007
(2) Revolving Loan Commitment. Commencing on June 30, 2002, the
-------------------------
Revolving Loan Commitment shall be permanently reduced on each date shown below
in an amount set forth opposite each such date (which reductions shall be in
addition to those provided for in Subsection 1.6(B) and, to the extent set forth
therein, Subsection 1.6(C)):
9
Quarterly Amount of
Reduction
Dates of Commitment Reduction Revolving Loan Commitment
----------------------------- -------------------------
June 30, 2002, September 30, 2002 and $1,333,333.34
December 31, 2002
March 31, 2003, June 30, 2003, September 30, $2,000,000.00
2003, and December 31, 2003
March 31, 2004, June 30, 2004, September 30, $2,000,000.00
2004, and December 31, 2004
March 31, 2005, June 30, 2005, September 30, $6,000,000.00
2005, and December 31, 2005
March 31, 2006, June 30, 2006, September 30, $6,000,000.00
2006, and December 31, 2006
March 31, 2007, June 30, 2007 and $4,000,000.00
September 30, 2007
(B) Reductions Resulting From Mandatory Repayments. The Revolving
----------------------------------------------
Loan Commitment also shall be permanently reduced to the extent and in the
amount that Borrower is required, pursuant to Section 1.8, to apply mandatory
repayments to be made pursuant to Subsection 1.7 (B), (C), (D), (E), (F) or (G)
to the Revolving Loan Facility (whether or not any Revolving Loans are then
outstanding and available to be repaid). All reductions provided for in this
Subsection 1.6(B) shall be in addition to (and shall not serve to reduce the
amount or date of) the scheduled reductions provided for in Subsection 1.6(A)
and the voluntary reductions provided for in Subsection 1.6(C) and, accordingly,
may result in the termination of the Revolving Loan Commitment prior to the date
set forth in clause (iii) of the definition of the term "Expiration Date."
(C) Voluntary Reduction of Revolving Loan Commitment. Borrower
------------------------------------------------
shall have the right, upon at least three Business Days' notice to
Administrative Agent, to permanently reduce the then unused portion of the
Revolving Loan Commitment. Each reduction shall be in a minimum amount of at
least $1,000,000, or any whole multiple of $500,000 in excess thereof, and shall
be applied as to each Lender based upon its Pro Rata Share. Notwithstanding the
foregoing, no reduction shall be permitted if, after giving effect thereto and
to any prepayment
10
made therewith, the aggregate principal balance of the Loans then outstanding
would exceed the Revolving Loan Commitment as so reduced. Each reduction
pursuant to this Subsection 1.6(C) may be used as a one-time credit against the
next succeeding scheduled reduction(s) required pursuant to Subsection 1.6(A).
(D) Mandatory Repayments. On the date of each Revolving Loan
--------------------
Commitment reduction provided for in this Subsection 1.6, Borrower shall repay
Revolving Loans in an amount at least sufficient to reduce the aggregate
principal balance of Revolving Loans then outstanding to the amount of the
Revolving Loan Commitment as so reduced. If at any time the aggregate
outstanding amount of Revolving Loans exceeds the Available Revolving Loan
Commitment, Borrower shall repay Revolving Loans in an amount at least
sufficient to reduce the aggregate principal balance of Revolving Loans then
outstanding to the amount of the Available Revolving Loan Commitment, and until
such repayment is made, Lenders shall not be obligated to make Loans. Any
repayments pursuant to this Subsection 1.6(D) shall be applied in accordance
with Subsection 1.8, and shall be accompanied by accrued interest on the amount
repaid and any amount required pursuant to Subsection 1.4(C).
1.7 Voluntary Prepayments and Other Mandatory Repayments.
----------------------------------------------------
(A) Voluntary Prepayment of Loans. Subject to the provisions of
-----------------------------
Section 1.8, at any time, with one day's notice, Borrower may prepay the Base
Rate Loan, in whole or in part, without penalty. Subject to the provisions of
Section 1.8, payment of the Breakage Fee pursuant to Subsection 1.4(C) and the
notice requirement in the following sentences, at any time Borrower may prepay
any LIBOR Loan, in whole or in part. Notice of any prepayment of a LIBOR Loan
shall be given not later than 11:00 a.m. (Denver time) on the third Business Day
preceding the date of prepayment. All prepayment notices shall be irrevocable.
All prepayments shall be accompanied by accrued interest on the amount prepaid
and any amount required pursuant to Subsection 1.4(C).
(B) Repayments from Excess Cash Flow. Within one hundred twenty
--------------------------------
(120) days after the end of each of its fiscal years, commencing with the fiscal
year ending December 31, 2002, Borrower shall repay the Loans in an amount equal
to fifty percent (50%) of the Excess Cash Flow for such fiscal year. For the
purposes of this Subsection 1.7(B), Excess Cash Flow shall be calculated on a
consolidated basis for Borrower and its Restricted Subsidiaries, but excluding
the Unrestricted Subsidiary; provided, however, that the results of Texas
-------- -------
Unwired shall be consolidated only to the extent of LA Unwired's percentage
ownership interest in Texas Unwired. All such repayments shall be applied in
accordance with Subsection 1.8.
(C) Repayments from Insurance Proceeds. Borrower shall repay the
----------------------------------
Loans in an amount equal to all Net Proceeds received by Borrower or any of its
Restricted Subsidiaries which are insurance proceeds from any Asset Disposition
to the extent that such proceeds are not
11
reinvested in equipment or other assets that are used or useful in the business
of Borrower or such Restricted Subsidiary, as applicable, within nine months of
receipt by Borrower or such Restricted Subsidiary of such proceeds; provided,
--------
however, that in the event of an Asset Disposition by Texas Unwired, prepayment
- -------
pursuant to this Subsection 1.7(C) will only be required in proportion to LA
Unwired's percentage ownership interest in Texas Unwired. All such repayments
shall be applied in accordance with Subsection 1.8.
(D) Repayments from Equity Issuances. Immediately upon receipt of
--------------------------------
proceeds from the issuance of any ownership interests in Borrower or any rights
to purchase any such interest, Borrower shall repay the Loans in an amount
equal to fifty percent (50%) of the amount of (i) such proceeds minus (ii) all
-----
fees, costs and expenses actually incurred in connection with such equity
issuance; provided, however, that Borrower shall not be required to repay Loans
-------- -------
from proceeds of the issuance of the Preferred Stock. All such repayments shall
be applied in accordance with Subsection 1.8.
(E) Repayments from Debt Incurrence. Immediately upon receipt of
-------------------------------
proceeds from the incurrence of any additional Indebtedness, other than the
Indebtedness described in Subsection 3.1(C), Borrower shall repay the Loans in
an amount equal to the amount of (i) such proceeds minus (ii) all fees, costs
-----
and expenses actually incurred in connection with such debt incurrence. All
such repayments shall be applied in accordance with Subsection 1.8.
(F) Repayments from proceeds of Intercompany Debt. Immediately upon
---------------------------------------------
receipt by Borrower or LA Unwired of proceeds of repayment of all or any part of
the loans from Borrower or LA Unwired to Texas Unwired permitted pursuant to
Subsection 3.1(C)(4), Borrower shall repay the Loans in an amount equal to the
amount of such proceeds.
(G) Repayments from Asset Dispositions. Immediately upon receipt
----------------------------------
by Borrower or any of its Restricted Subsidiaries of Net Proceeds other than
insurance proceeds from any Asset Disposition, Borrower shall repay the Loans in
an amount equal to such Net Proceeds; provided, however, that in the event of an
-------- -------
Asset Disposition by Texas Unwired, prepayment pursuant to this Subsection
1.7(F) will only be required in proportion to LA Unwired's percentage ownership
interest in Texas Unwired; provided further, however, that Borrower shall not be
---------------- -------
required to repay the Loans from Asset Dispositions by Texas Unwired to the
extent that the proceeds thereof were applied to repayments of the indebtedness
of Texas Unwired described in Subsection 3.1(C)(4) and to the repayment of the
Loans pursuant to Subsection 1.7(F). All such repayments shall be applied in
accordance with Subsection 1.8.
1.8 Application of Repayments; Payment of Breakage Fees, Etc. All
---------------------------------------------------------
repayments made pursuant to Subsections 1.7(B), (C), (D), (E), (F) and (G) shall
be applied first to Loans outstanding under the Term Loan Facility and then to
Loans outstanding under the Revolving Loan Facility. All repayments made
pursuant to Subsection 1.7(A) shall be applied first to Loans
12
outstanding under the Revolving Loan Facility and then to Loans outstanding
under the Term Loan Facility. All repayments made pursuant to Subsections 1.6
and 1.7 shall first be applied to such of the applicable type of Loans as
Borrower shall direct in writing and, in the absence of such direction, shall
first be applied to the Base Rate Loan and then to such LIBOR Loans as Borrower
and Administrative Agent shall agree. All repayments required or permitted
hereunder shall be accompanied by payment of all applicable Breakage Fees and
accrued interest on the amount repaid. All repayments applied to Loans
outstanding under the Term Loan Facility shall be applied to principal
installments in the inverse order of maturity.
1.9 Loan Account. Administrative Agent will maintain loan account
-------------
records for (i) all Loans, interest charges and payments thereof, (ii) the
charging and payment of all fees, costs and expenses and (iii) all other debits
and credits pursuant to this Agreement. The balance in the loan accounts shall
be presumptive evidence of the amounts due and owing to Lenders, provided that
--------
any failure by Administrative Agent to maintain such records shall not limit or
affect Borrower's obligation to pay. During the continuance of an Event of
Default, Borrower irrevocably waives the right to direct the application of any
and all payments and Borrower hereby irrevocably agrees that Administrative
Agent shall have the continuing exclusive right to apply and reapply payments in
any manner it deems appropriate.
1.10 Changes in LIBOR Rate Availability. If with respect to any
----------------------------------
proposed Interest Period, Administrative Agent or any Lender (after consultation
with Administrative Agent) determines that deposits in dollars (in the
applicable amount) are not being offered to each Lender in the relevant market
for such Interest Period, Administrative Agent shall forthwith give notice
thereof to Borrower and Lenders, whereupon and until Administrative Agent
notifies Borrower that the circumstances giving rise to such situation no longer
exist, the obligations of any affected Lender to make its portion of such type
of LIBOR Loan shall be suspended.
If the introduction of, or any change in, any Applicable Law or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender with any request or
directive (whether or not having the force of law) of any such Governmental
Authority, central bank or comparable agency, shall make it unlawful or
impossible for one or more Lenders to honor its obligations hereunder to make or
maintain any LIBOR Loan, such Lender shall promptly give notice thereof to
Administrative Agent, and Administrative Agent shall promptly give notice
thereof to Borrower and all other Lenders. Thereafter, until Administrative
Agent notifies Borrower that such circumstances no longer exist, (i) the
obligations of Lenders to make LIBOR Loans and the right of Borrower to convert
any Loan or continue any Loan as a LIBOR Loan shall be suspended and (ii) if any
Lender may not lawfully continue to maintain a LIBOR Loan to the end of the then
current Interest Period applicable thereto, such Loan shall immediately be
converted to the Base Rate Loan.
13
1.11 Capital Adequacy and Other Adjustments.
--------------------------------------
(A) If the introduction of or the interpretation of any law, rule, or
regulation would increase the reserve requirement or otherwise increase the cost
to any Lender of making or maintaining a LIBOR Loan, then Administrative Agent,
on behalf of all affected Lenders, shall submit a certificate to Borrower
setting forth the amount and demonstrating the calculation of such increased
cost. Borrower shall pay the amount of such increased cost to Administrative
Agent for the benefit of the affected Lenders within fifteen (15) days after
receipt of such certificate. Such certificate shall, absent manifest error, be
final, conclusive and binding for all purposes. There is no limitation on the
number of times such a certificate may be submitted.
(B) In the event that any Lender shall have determined that the
adoption after the date hereof of any law, treaty, governmental (or quasi-
governmental) rule, regulation, guideline or order regarding capital adequacy,
reserve requirements or similar requirements or compliance by any Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy, reserve requirements or similar requirements (whether or not
having the force of law and whether or not failure to comply therewith would be
unlawful) from any central bank or governmental agency or body having
jurisdiction does or shall have the effect of increasing the amount of capital,
reserves or other funds required to be maintained by such Lender or any
corporation controlling such Lender and thereby reducing the rate of return on
such Lender's or such corporation's capital as a consequence of its obligations
hereunder, then Borrower shall from time to time within fifteen (15) days after
notice and demand from such Lender (together with the certificate referred to in
the next sentence and with a copy to Administrative Agent) pay to Administrative
Agent, for the account of such Lender, additional amounts sufficient to
compensate such Lender for such reduction. A certificate as to the amount of
such cost and showing the basis of the computation of such cost submitted by
such Lender to Borrower and Administrative Agent shall, absent manifest error,
be final, conclusive and binding for all purposes. There is no limitation on
the number of times such a certificate may be submitted.
1.12 Optional Prepayment/Replacement of Lender in Respect of Increased
-----------------------------------------------------------------
Costs. Within fifteen (15) days after receipt by Borrower of written notice
- -----
and demand from any Lender (an "Affected Lender") for payment of additional
costs as provided in Subsection 1.11, Borrower may, at its option, notify
Administrative Agent and such Affected Lender of its intention to do one of the
following:
(A) Borrower may obtain, at Borrower's expense, a replacement Lender
("Replacement Lender") for such Affected Lender, which Replacement Lender shall
be reasonably satisfactory to Administrative Agent. In the event Borrower
obtains a Replacement Lender within ninety (90) days following notice of its
intention to do so, the Affected Lender shall sell and assign its Loans and its
obligations under the Loan Commitments to such Replacement Lender, provided
--------
14
that Borrower has reimbursed such Affected Lender for its increased costs for
which it is entitled to reimbursement under this Agreement through the date of
such sale and assignment; or
(B) Borrower may prepay in full all outstanding Obligations owed to
such Affected Lender and terminate such Affected Lender's Pro Rata Share of the
Loan Commitments, in which case the Loan Commitments will be permanently reduced
by the amount of such Pro Rata Share. Borrower shall, within ninety (90) days
following notice of its intention to do so, prepay in full all outstanding
Obligations owed to such Affected Lender (including all applicable Breakage Fees
and such Affected Lender's increased costs for which it is entitled to
reimbursement under this Agreement through the date of such prepayment), and
terminate such Affected Lender's obligations under the Loan Commitments. Any
such prepayment pursuant to this Subsection 1.12(B) shall be applied in
accordance with Subsection 1.8 and shall be accompanied by payment of all
applicable Breakage Fees and accrued interest on the amount repaid.
1.13 Taxes.
-----
(A) No Deductions. Any and all payments or reimbursements made
-------------
hereunder or under the Notes shall be made free and clear of and without
deduction for any and all taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto (all such taxes, levies,
imposts, deductions, charges or withholdings and all liabilities with respect
thereto excluding such taxes imposed on net income, herein "Tax Liabilities"),
excluding, however, taxes imposed on the net income of a Lender or
Administrative Agent. If Borrower shall be required by law to deduct any such
amounts from or in respect of any sum payable hereunder to any Lender or
Administrative Agent, then, except as provided in Subsection 1.13(B), the sum
payable hereunder shall be increased as may be necessary so that, after making
all required deductions, such Lender or Administrative Agent receives an amount
equal to the sum it would have received had no such deductions been made.
(B) Foreign Lenders. Each Lender organized under the laws of a
---------------
jurisdiction outside the United States (a "Foreign Lender") as to which payments
to be made under this Agreement or under the Notes are exempt from United States
withholding tax or are subject to United States withholding tax at a reduced
rate under an applicable statute or tax treaty shall provide to Borrower and
Administrative Agent (1) a properly completed and executed Internal Revenue
Service Form 4224 or Form 1001 or other applicable form, certificate or document
prescribed by the Internal Revenue Service of the United States certifying as to
such Foreign Lender's entitlement to such exemption or reduced rate of
withholding with respect to payments to be made to such Foreign Lender under
this Agreement and under the Notes (a "Certificate of Exemption") or (2) a
letter from any such Foreign Lender stating that it is not entitled to any such
exemption or reduced rate of withholding (a "Letter of Non-Exemption"). Prior
to becoming a Lender under this Agreement and within fifteen (15) days after a
reasonable written request of Borrower or Administrative Agent from time to time
thereafter, each Foreign Lender that becomes
15
a Lender under this Agreement shall provide a Certificate of Exemption or a
Letter of Non-Exemption to Borrower and Administrative Agent.
If a Foreign Lender is entitled to an exemption with respect to
payments to be made to such Foreign Lender under this Agreement (or to a reduced
rate of withholding) and does not provide a Certificate of Exemption to Borrower
and Administrative Agent within the time periods set forth in the preceding
paragraph, Borrower shall withhold taxes from payments to such Foreign Lender at
the applicable statutory rates and Borrower shall not be required to pay any
additional amounts as a result of such withholding, provided that all such
--------
withholding shall cease or be reduced, as appropriate, upon delivery by such
Foreign Lender of a Certificate of Exemption to Borrower and Administrative
Agent.
1.14 Changes in Tax Laws. In the event that, subsequent to the Closing
-------------------
Date, (i) any changes in any existing law, regulation, treaty or directive or in
the interpretation or application thereof, (ii) any new law, regulation, treaty
or directive enacted or any interpretation or application thereof, or (iii)
compliance by Administrative Agent or any Lender with any request or directive
(whether or not having the force of law) from any Governmental Authority:
(i) does or shall subject Administrative Agent or any Lender
to any tax of any kind whatsoever with respect to this Agreement, the other Loan
Documents or any Loans made hereunder, or change the basis of taxation of
payments to Administrative Agent or such Lender of principal, fees, interest or
any other amount payable hereunder (except for net income taxes, or franchise
taxes imposed in lieu of net income taxes, imposed generally by federal, state
or local taxing authorities with respect to interest or commitment or other fees
payable hereunder or changes in the rate of tax on the overall net income of
Administrative Agent or such Lender); or
(ii) does or shall impose on Administrative Agent or any Lender
any other condition or increased cost in connection with the transactions
contemplated hereby or participations herein;
and the result of any of the foregoing is to increase the cost to Administrative
Agent or any such Lender of making or continuing any Loan, or to reduce any
amount receivable hereunder, then, in any such case, Borrower shall promptly pay
to Administrative Agent or such Lender, upon its demand, any additional amounts
necessary to compensate Administrative Agent or such Lender, on an after-tax
basis, for such additional cost or reduced amount receivable, as determined by
Administrative Agent or such Lender with respect to this Agreement or the other
Loan Documents. If Administrative Agent or such Lender becomes entitled to
claim any additional amounts pursuant to this Subsection 1.14, it shall promptly
notify Borrower of the event by reason of which Administrative Agent or such
Lender has become so entitled. A certificate as to any additional amounts
payable pursuant to the foregoing sentence submitted by Administrative Agent
16
or such Lender to Borrower and Administrative Agent shall, absent manifest
error, be final, conclusive and binding for all purposes. There is no limitation
on the number of times such a certificate may be submitted.
1.15 Term of This Agreement. All of the Obligations shall become due
----------------------
and payable as otherwise set forth herein, but in any event, all of the
remaining Obligations shall become due and payable on the date set forth in
clause (iii) of the definition of the term "Expiration Date." This Agreement
shall remain in effect through and including, and shall terminate immediately
after, the date on which all Obligations shall have been indefeasibly and
irrevocably paid and satisfied in full.
SECTION 2
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that so long as this Agreement is in effect
and until payment in full of all Obligations, unless Requisite Lenders shall
otherwise give their prior written consent, Borrower shall perform and comply,
and shall cause its Restricted Subsidiaries to perform and comply, with all
covenants in this Section 2.
2.1 Compliance With Laws. Borrower will (i) comply with and will cause
--------------------
its Restricted Subsidiaries to comply with the requirements of all Applicable
Laws (including laws, rules, regulations and orders relating to taxes, employer
and employee contributions, securities, employee retirement and welfare
benefits, environmental protection matters and employee health and safety) as
now in effect and which may be imposed in the future in all jurisdictions in
which Borrower or any of its Restricted Subsidiaries are now or hereafter doing
business, other than those laws, rules, regulations and orders the noncompliance
with which could not reasonably be expected to have, either individually or in
the aggregate, a Material Adverse Effect, and (ii) obtain and maintain and will
cause each of its Restricted Subsidiaries to obtain and maintain all licenses,
qualifications and permits (including the Licenses) now held or hereafter
required to be held by Borrower or any of its Restricted Subsidiaries, the loss,
suspension or revocation of which or which the failure to obtain or renew could
reasonably be expected to have a Material Adverse Effect. This Subsection 2.1
shall not preclude Borrower or any of its Restricted Subsidiaries from
contesting any taxes or other payments, if they are being diligently contested
in good faith and if adequate reserves therefor are maintained in conformity
with GAAP.
2.2 Maintenance of Books and Records; Properties; Insurance. Borrower
-------------------------------------------------------
will and will cause each of its Subsidiaries to keep adequate records and books
of account, in which complete entries will be made in accordance with GAAP
consistently applied, reflecting all financial transactions. Borrower will and
will cause each of its Restricted Subsidiaries to maintain or cause to be
maintained in good repair, working order and condition all material properties
used in the
17
business of the Borrower and its Restricted Subsidiaries, and will make or cause
to be made all appropriate repairs, renewals and replacements thereof. Borrower
will and will cause each of its Restricted Subsidiaries to maintain or cause to
be maintained, with financially sound and reputable insurers, public liability,
property loss and damage and business interruption insurance with respect to its
business and properties and the business and properties of Borrower and its
Restricted Subsidiaries against loss and damage of the kinds customarily carried
or maintained by corporations of established reputation engaged in the cellular
telephone and wireless communications industry and in amounts acceptable to
Administrative Agent and will deliver evidence thereof to Administrative Agent.
If any part of the Collateral lies within a "special flood hazard area" as
defined and specified by the Federal Emergency Management Agency (or other
appropriate Governmental Authority) pursuant to the Flood Disaster Protection
Act of 1973, as amended (the "FDPA"), and Administrative Agent or any Lender
determines that flood insurance coverage is required to be obtained for such
Collateral in order for Administrative Agent or such Lender to comply with the
FDPA, Borrower shall or shall cause the applicable Subsidiary Guarantor to,
obtain and maintain such flood insurance policies as Administrative Agent or
such Lender reasonably requests so that Administrative Agent or such Lender
shall be deemed in compliance with the FDPA and shall deliver evidence thereof
to Administrative Agent or such Lender. Such policies of flood insurance shall
be in form satisfactory to Administrative Agent or such Lender and shall be in
an amount of at least the lessor of the value of such Collateral constituting
buildings, structures or personal property located within the "special flood
hazard area" or the maximum limit of coverage available under Applicable Law.
Borrower will, and will cause each of the Subsidiary Guarantors to, cause
Administrative Agent, for the benefit of Administrative Agent and Lenders,
pursuant to endorsements and assignments in form and substance reasonably
satisfactory to Administrative Agent to be named, (i) as a lender loss payee in
the case of casualty insurance, (ii) as an additional insured in the case of all
liability insurance, (iii) as assignee in the case of all business interruption
insurance and (iv) as an additional insured in the case of all flood insurance.
All insurance policies required hereunder shall (i) include effective waivers by
the insurer of subrogation, (ii) provide that all insurance proceeds shall be
adjusted with and paid to Administrative Agent and (iii) be non-cancelable as to
Administrative Agent except upon thirty (30) days prior written notice given by
the insurer to Administrative Agent.
2.3 Inspection; Lender Meeting. Borrower will and will cause each of
--------------------------
its Subsidiaries to permit any authorized representatives of any Lender (i) to
visit and inspect any of the properties of Borrower and its Subsidiaries,
including their financial and accounting records, and to make copies and take
extracts therefrom, (ii) for the purpose of determining or monitoring the value
of the collateral, to obtain environmental audits or assessments (including soil
samples) by an independent engineer of any Collateral constituting real estate
or interests in real estate, and (iii) to discuss its and their affairs,
finances and business with its and their officers, employees and certified
public accountants, at such reasonable times during normal business hours and as
often as may be reasonably requested. Without in any way limiting the
foregoing, Borrower will and
18
will cause each of its Subsidiaries to participate and will cause its and their
key management personnel to participate in a meeting with Administrative Agent
and Lenders at least once during each year, which meeting shall be held at such
time and such place as may be reasonably requested by Administrative Agent.
2.4 Legal Existence, Etc. Except as otherwise permitted by Subsection
---------------------
3.6, Borrower will and will cause each of its Restricted Subsidiaries to at all
times preserve and keep in full force and effect its legal existence and good
standing and all rights and franchises material to its or their business.
2.5 Use of Proceeds. Borrower will use the proceeds of the Loans solely
---------------
for the purposes described in the recital paragraphs to this Agreement. No part
of any Loan will be used to purchase any margin securities or otherwise in
violation of the regulations of the Federal Reserve System.
2.6 Further Assurances; Notices of Acquisition of Real Property.
-----------------------------------------------------------
Borrower will and will cause each of the Subsidiary Guarantors, from time to
time, do, execute and deliver all such additional and further acts, documents
and instruments as Administrative Agent or any Lender reasonably requests to
consummate the transactions contemplated hereby and to vest completely in and
assure Administrative Agent and Lenders of their respective rights under this
Agreement and the other Loan Documents, including such financing statements,
documents, security agreements and reports to evidence, perfect or otherwise
implement the security for repayment of the Obligations contemplated by the Loan
Documents. Borrower will notify Administrative Agent in writing prior to the
acquisition (including by way of lease) by Borrower or any Subsidiary Guarantor
of any real property or any interest therein (and the cost thereof or annual
rentals with respect thereto) and will, prior to any such acquisition, execute
and deliver all such additional documents and instruments as Administrative
Agent may require pursuant to this Section 2.6 (including mortgages, title
insurance policies, environmental audits, surveys and legal opinions).
2.7 CoBank Patronage Capital. So long as CoBank is a Lender hereunder,
------------------------
Borrower will acquire non-voting participation certificates in CoBank in such
amounts and at such times as CoBank may require in accordance with CoBank's
Bylaws and Capital Plan (as each may be amended from time to time), except that
the maximum amount of participation certificates that Borrower may be required
to purchase in CoBank in connection with the Loans may not exceed the maximum
amount permitted by the Bylaws at the time this Agreement is entered into. The
rights and obligations of the parties with respect to such participation
certificates and any distributions made on account thereof or on account of
Borrower's patronage with CoBank shall be governed by CoBank's Bylaws. Borrower
hereby consents and agrees that the amount of any distributions with respect to
its patronage with CoBank that are made in qualified written notices of
allocation (as defined in 26 U.S.C. (S) 1388) and that are received by Borrower
from CoBank, will be taken into account by Borrower at the stated dollar amounts
whether the distribution is
19
evidenced by a participation certificate or other form of written notice that
such distribution has been made and recorded in the name of Borrower on the
records of CoBank. CoBank's Pro Rata Share of the Loans and other Obligations
due to CoBank shall be secured by a statutory first lien on all equity which
Borrower may now own or hereafter acquire in CoBank. Such equity shall not,
however, constitute security for the Obligations due to any other Lender. CoBank
shall not be obligated to set off or otherwise apply such equities to Borrower's
obligations to CoBank.
2.8 Collateral Assignments of Material Contracts. On the Closing Date,
--------------------------------------------
Borrower shall and shall cause each Subsidiary Guarantor to, execute and deliver
to Administrative Agent, for the benefit of itself and all Lenders, Collateral
Contract Assignments with respect to each of the Material Contracts listed on
Schedule 2.8. Thereafter, Borrower shall and shall cause each Subsidiary
- ------------
Guarantor to, promptly execute and deliver to Administrative Agent, for the
benefit of itself and all Lenders, all such Collateral Contract Assignments with
respect to Material Contracts as Administrative Agent may request from time to
time.
2.9 Year 2000 Preparation. Borrower shall take all action necessary to
---------------------
assure that Borrower's and each Restricted Subsidiary's computer-based systems
are able to operate and effectively process data including dates prior to, on
and after January 1, 2000 (that is, be "Year 2000 compliant") and to implement
the plan described in Subsection 5.20 in accordance with the timetable described
in Subsection 5.20. Borrower shall use its best efforts to assure that its and
its Restricted Subsidiaries' material third-party customers, suppliers and
vendors develop and implement programs to be Year 2000 compliant. At the
request of any Lender, Borrower shall provide such Lender assurance reasonably
satisfactory to such Lender of Borrower's and its Restricted Subsidiaries'
compliance with this Subsection 2.9. Borrower shall advise the Administrative
Agent and the Lenders promptly of any reasonably anticipated Material Adverse
Effect resulting from an inability of Borrower's and its Restricted
Subsidiaries' or any third-party's computer-based systems to be Year 2000
compliant.
2.10 Enforcement of Sprint Agreements. Borrower will diligently enforce
--------------------------------
and will cause its Restricted Subsidiaries diligently to enforce the obligations
of Sprint under the Sprint Agreements.
2.11 Covenants of the Unrestricted Subsidiary. Borrower will cause the
----------------------------------------
Unrestricted Subsidiary to comply with covenants set forth in Sections 4.05,
4.07, 4.09, 4.10, 4.11, 4.12, 4.13, 4.18 and 4.19 of the Subordinated Indenture,
without giving effect to any amendment, waiver or termination thereof unless
Requisite Lenders shall have consented in writing to such amendment, waiver or
termination.
SECTION 3
NEGATIVE COVENANTS
20
Borrower covenants and agrees that so long as this Agreement is in effect
and until payment in full of all Obligations, unless Requisite Lenders shall
otherwise give their prior written consent, Borrower shall perform and comply
with all covenants in this Section 3.
3.1 Indebtedness. Borrower will not and will not permit any of its
------------
Restricted Subsidiaries directly or indirectly to create, incur, assume,
guaranty or otherwise become or remain liable with respect to any Indebtedness
other than:
(A) the Obligations;
(B) Contingent Obligations permitted by Section 3.4; and
(C) the following Indebtedness:
(1) the Subordinated Notes, in an amount not to exceed the
amount of such Notes necessary to be issued in order to result in Borrower
receiving $225,000,000 in gross proceeds from the issuance thereof;
(2) Indebtedness incurred by Borrower for the purpose of
financing the acquisition, construction and renovation of a headquarters
building and associated rights in real estate, in a principal amount not to
exceed $7,000,000;
(3) Indebtedness of Command Connect to the FCC to be assumed by
LA Unwired in connection with the transfer by Command Connect to LA Unwired of
certain Licenses, in an amount not to exceed $1,600,000; and
(4) Indebtedness incurred by Texas Unwired to LA Unwired, in an
amount not to exceed $20,000,000; provided that (a) such Indebtedness shall not
--------
be incurred prior to the date that Texas Unwired is formed, and the existing
Beaumont and Lufkin, Texas PSC properties and operations of Meretel
Communications shall have been transferred to Texas Unwired, on terms and
conditions satisfactory to Agents as described in Subsection 6.1(Y), (b) such
Indebtedness is secured by a first priority pledge of all assets, real and
personal, of Texas Unwired, (c) such Indebtedness is guaranteed by the minority
partners of Texas Unwired in an amount equal to their percentage ownership
interests in Texas Unwired, (d) such Indebtedness is pursuant to terms and
conditions, including, without limitation, amortization schedule, and is
evidenced by notes, mortgages, security agreements, guaranties and other
documents, consistent with this Agreement and otherwise satisfactory in all
respects to Administrative Agent, (e) Lenders receive an opinion of counsel to
Texas Unwired or other evidence of enforceability of such documents and pledge
and the priority of such pledge satisfactory to Administrative Agent; and (f)
such documents and rights thereunder have been collaterally assigned to
Administrative Agent, for its benefit and the benefit of Lenders, all pursuant
to terms and documents acceptable to
21
Administrative Agent; provided further, that (i) any pledge by Texas Unwired of
-------- -------
its assets, whether real or personal, pursuant to this Subsection 3.1(C)(4)
shall be solely for purposes of securing Indebtedness incurred by Texas Unwired
to LA Unwired pursuant to this Subsection 3.1(C)(4) and shall not constitute
security for any other Indebtedness under this Agreement, and (ii) any guarantee
given by the minority partners of Texas Unwired pursuant to this Subsection
3.1(C)(4) shall be solely with respect to Indebtedness incurred by Texas Unwired
to LA Unwired pursuant to this Subsection 3.1(C)(4) and shall not constitute a
guarantee of any other Indebtedness under this Agreement.
3.2 Liens and Related Matters.
-------------------------
(A) No Liens. Borrower will not and will not permit any of its
--------
Restricted Subsidiaries directly or indirectly to create, incur, assume or
permit to exist any Lien on or with respect to any property or asset (including
any document or instrument with respect to goods or accounts receivable) of
Borrower or its Restricted Subsidiaries, whether now owned or hereafter
acquired, or any income or profits therefrom, except Permitted Encumbrances.
(B) No Negative Pledges. Borrower will not and will not permit any
-------------------
of its Restricted Subsidiaries directly or indirectly to enter into or assume
any agreement (other than the Loan Documents and the Subordinated Debt
Documents) prohibiting the creation or assumption of any Lien upon its or their
properties or assets, whether now owned or hereafter acquired.
3.3 Investments. Borrower will not and will not permit any of its
-----------
Restricted Subsidiaries directly or indirectly to make or own any Investment in
any Person except:
(A) Borrower and the Restricted Subsidiaries may make and own
Investments in Cash Equivalents; provided that such Cash Equivalents (other than
--------
deposit accounts in which no more than $50,000 is held overnight) are not
subject to set off rights;
(B) Investments by Borrower in LA Unwired and Unwired Telecom;
(C) Investments by Borrower or LA Unwired in Texas Unwired which, if
in the form of equity contributions, shall not, in the aggregate, exceed
$4,000,000 or, if in the form of loans permitted pursuant to Subsection
3.1(C)(iv), shall not, in the aggregate, exceed $20,000,000;
(D) Investments by Borrower in the Unrestricted Subsidiary; provided
--------
such Investments are made upon the following terms and conditions:
(1) Investments by Borrower made as of the Closing Date that
shall not, in the aggregate, exceed $5,000,000;
22
(2) other Investments by Borrower that shall not, in the
aggregate, exceed $10,000,000, provided that if such Investment occurs
--------
subsequent to the earlier to occur of (i) nine months from the Closing Date
or (ii) the initial Loan hereunder, immediately prior to and after giving
effect to such other Investment, Borrower, the Restricted Subsidiaries and
the Unrestricted Subsidiary will be in compliance on a pro forma basis with
all of the covenants on their part contained herein or in any other Loan
Document and no Default or Event of Default then exists or shall result
from such other Investment; and
(3) Investments by Borrower consisting of LMDS licenses
contributed by Borrower to the Unrestricted Subsidiary.
(E) Investments by Borrower or any of its Restricted Subsidiaries in
Meretel Communications and Command Connect existing on the Closing Date that
shall not, in the aggregate, exceed $16,500,000;
(F) equities in CoBank, as set forth in Subsection 2.7; and
(G) other Investments by Borrower and the Restricted Subsidiaries
which shall not, in the aggregate for Borrower and the Restricted Subsidiaries,
exceed $1,000,000.
3.4 Contingent Obligations. Borrower will not and will not permit any
----------------------
of its Restricted Subsidiaries directly or indirectly to create or become or be
liable with respect to any Contingent Obligation except those:
(A) resulting from endorsement of negotiable instruments for
collection in the ordinary course of business;
(B) arising under indemnity agreements to title insurers in
connection with mortgagee title insurance policies in favor of Administrative
Agent;
(C) arising with respect to customary indemnification obligations
incurred in connection with permitted Asset Dispositions;
(D) incurred in the ordinary course of business with respect to
surety and appeal bonds, performance and return-of-money bonds and other similar
obligations not exceeding at any time outstanding $100,000 in aggregate
liability; and
(E) arising with respect to the following Contingent Obligations:
23
(1) a guarantee by Borrower of Indebtedness of Meretel
Communications in the maximum principal amount of $4,000,000; provided that such
--------
guarantee is made pursuant to documentation containing terms and conditions
reasonably satisfactory to Administrative Agent;
(2) a guarantee by Borrower of Indebtedness of the Unrestricted
Subsidiary in the maximum principal amount of $4,500,000; provided that such
--------
guarantee is made pursuant to documentation containing terms and conditions
reasonably satisfactory to Administrative Agent; and
(3) guarantees by Unwired Telecom and LA Unwired of the
Subordinated Notes, which guarantees shall be subordinated as provided in the
Subordinated Debt Documents.
3.5 Restricted Junior Payments. Borrower will not and will not permit
--------------------------
any of its Restricted Subsidiaries directly or indirectly to declare, order,
pay, make or set apart any sum for any Restricted Junior Payment, including,
without limitation, (i) payments with respect to any put, redemption or similar
rights granted to the holders of the Preferred Stock or the Subordinated Notes,
(ii) payments with respect to any purchase or repurchase options granted to the
holders of the Subordinated Notes, or (iii) payments of "Liquidated Damages" as
defined in the Registration Rights Agreement; provided, however, that Borrower
-------- -------
may make scheduled payments of cash interest on the Subordinated Notes.
3.6 Restriction on Fundamental Changes. Borrower will not and will not
----------------------------------
permit any of its Restricted Subsidiaries directly or indirectly to: (i) unless
and only to the extent required by law, amend, modify or waive any term or
provision of its articles of organization, partnership agreement, operating
agreement, management agreements, articles of incorporation, certificates of
designations pertaining to preferred stock or by-laws; (ii) enter into any
transaction of merger or consolidation except any Subsidiary of Borrower may be
merged with or into Borrower or any wholly-owned Subsidiary of Borrower
(excluding the Unrestricted Subsidiary), provided that Borrower or such wholly-
--------
owned Subsidiary of Borrower is the surviving entity; (iii) liquidate, wind-up
or dissolve itself (or suffer any liquidation or dissolution); or (iv) acquire
by purchase or otherwise all or any substantial part of the business or assets
of any other Person.
3.7 Restriction on Equity Issuance. Borrower will not and will not
------------------------------
permit any Restricted Subsidiary directly or indirectly to issue any capital
stock or other equity interests in Borrower or any Restricted Subsidiary (other
than the Preferred Stock, the Warrants, capital stock issued upon the conversion
or exercise of the Preferred Stock or Warrants pursuant to the terms of the
Preferred Stock Documents and equity interests issued and outstanding on the
date of this Agreement and reflected on Schedule 5.18 hereto).
-------------
24
3.8 Disposal of Assets or Subsidiary Stock. Borrower will not and will
--------------------------------------
not permit any of its Restricted Subsidiaries directly or indirectly to:
convey, sell, lease, sublease, transfer or otherwise dispose of, or grant any
Person an option to acquire, in one transaction or a series of transactions, any
of its property, business or assets, or the capital stock of or other equity
interests in any of its Subsidiaries, whether now owned or hereafter acquired,
except for (i) bona fide sales of inventory to customers for fair value in the
ordinary course of business and dispositions of obsolete equipment not used or
useful in the business; (ii) fair market value sales of Cash Equivalents; (iii)
dispositions among Borrower, LA Unwired and Unwired Telecom or by Texas Unwired
to Borrower, LA Unwired or Unwired Telecom; (iv) dispositions by LA Unwired of
Licenses not covering the Service Areas; and (v) all other Asset Dispositions if
all of the following conditions are met: (a) the aggregate market value of
assets sold in any one transaction or series of related transactions does not
exceed $250,000; (b) the aggregate market value of assets (including such assets
but excluding any assets sold pursuant to clauses (i) through (v) above
inclusive) sold or otherwise disposed of in the immediately preceding 12-month
period does not exceed $1,000,000 in the aggregate for Borrower and its
Restricted Subsidiaries; (c) the consideration received is at least equal to the
fair market value of such assets; (d) the sole consideration received is cash;
(e) after giving effect to the sale or other disposition of such assets,
Borrower, on a consolidated basis with the Restricted Subsidiaries as set forth
in Section 4, but excluding the Unrestricted Subsidiary, is in compliance on a
pro forma basis with the covenants set forth in Section 4 recomputed for the
most recently ended month for which information is available and Borrower is in
compliance with all other terms and conditions contained in this Agreement; and
(f) no Default or Event of Default then exists or shall result from such sale or
other disposition.
3.9 Transactions with Affiliates. Borrower will not and will not permit
----------------------------
any of its Restricted Subsidiaries directly or indirectly to enter into or
permit to exist any transaction (including the purchase, sale, lease or exchange
of any property or the rendering of any service) with any Affiliate or with any
director, officer or employee of Borrower or any Affiliate, except (i) as set
forth on Schedule 3.9; (ii) transactions in the ordinary course of and pursuant
------------
to the reasonable requirements of the business of Borrower or such Restricted
Subsidiary and upon fair and reasonable terms which are fully disclosed to
Lenders and are no less favorable to Borrower or such Restricted Subsidiary than
would be obtained in a comparable arm's length transaction with a Person that is
not an Affiliate; or (iii) payment of compensation to directors, officers and
employees in the ordinary course of business for services actually rendered in
their capacities as directors, officers and employees, provided such
compensation is reasonable and comparable with compensation paid by companies of
like nature and similarly situated. Notwithstanding the foregoing, upon the
election of Administrative Agent or Requisite Lenders no payments may be made
with respect to any items set forth in clauses (i) and (ii) of the preceding
sentence upon the occurrence and during the continuation of a Default or Event
of Default.
3.10 Management Fees and Compensation. Borrower will not and will not
--------------------------------
permit any of its Restricted Subsidiaries directly or indirectly to pay any
management, consulting or other
25
similar fees to any Person, except (i) fees paid by Borrower or any Restricted
Subsidiary to Borrower or LA Unwired; provided, that prior to December 31, 1999,
--------
Borrower or LA Unwired may pay such fees to Unwired Telecom, and (ii) other
management, consulting or similar fees as set forth on Schedule 3.10.
-------------
Notwithstanding the foregoing, upon the election of Administrative Agent or
Requisite Lenders no payments may be made with respect to any items set forth on
Schedule 3.10 upon the occurrence and during the continuation of a Default or
- -------------
Event of Default.
3.11 Conduct of Business. Borrower will not permit any of its
-------------------
Restricted Subsidiaries directly or indirectly to engage in any business other
than businesses of owning, constructing, managing, operating and investing
(subject to Section 3.3) in Wireless Systems. Borrower will not engage in any
business other than the ownership of its Subsidiaries and provision of certain
administrative services to its Subsidiaries, and shall acquire no equipment or
other assets not reasonably associated with such ownership or provisions of such
administrative services.
3.12 Fiscal Year. Borrower will not and will not permit any of its
-----------
Restricted Subsidiaries to change its fiscal year.
3.13 Subsidiaries. Borrower will not and will not permit any of its
------------
Restricted Subsidiaries directly or indirectly to establish, create or acquire
any Subsidiary.
3.14 Sprint Agreements. Borrower will not and will not permit LA Unwired
-----------------
or Texas Unwired to (a) agree or enter into any amendment or termination of any
of the Sprint Agreements or (b) exercise any of its or their elections or rights
under Section 11 of the Management Agreements that are part of the Sprint
Agreements.
3.15 Subordinated Debt Documents.
---------------------------
(A) Borrower shall not amend or otherwise change the terms of any of
the Subordinated Debt Documents. Borrower shall not make any payment which would
not have been made in the absence of an amendment or change of terms of the
Subordinated Debt Documents unless such amendment or change has been approved by
the Requisite Lenders.
(B) Borrower shall deliver to Administrative Agent (i) a copy of each
notice or other communication delivered by it or on its behalf to the trustee
under the Subordinated Note Indenture, such delivery to be made at the same time
and by the same means as such notice or other communication is delivered to such
trustee, and (ii) a copy of each notice or other communication received by
Borrower from any such trustee, such delivery to be made promptly after such
notice or other communication is received by Borrower; provided that unless
--------
Administrative Agent or the Lenders shall so request, notices of or
communications regarding amounts due and changes in interest rates which are
provided to Borrower in the ordinary course by any such trustee shall not be
required to be delivered to the Administrative Agent.
26
3.16 Preferred Stock Documents. Borrower shall not amend or otherwise
-------------------------
change the terms of any of the Preferred Stock Documents. Borrower shall
promptly deliver to Administrative Agent a copy of each notice or other
communication delivered by it (or on its behalf) or to it under the Preferred
Stock Documents.
SECTION 4
FINANCIAL COVENANTS AND REPORTING
Borrower covenants and agrees that so long as this Agreement is in effect
and until payment in full of all Obligations, unless Requisite Lenders shall
otherwise give their prior written consent, Borrower shall perform and comply
with, and shall cause its Restricted Subsidiaries to perform and comply with,
all covenants in this Section 4. For the purposes of this Section 4, all
covenants calculated for Borrower shall be calculated on a consolidated basis
for Borrower and its Restricted Subsidiaries, but excluding the Unrestricted
Subsidiary; provided that the results of Texas Unwired shall be consolidated
--------
with Borrower only to the extent of LA Unwired's percentage ownership interest
in Texas Unwired. For the purposes of this Section 4, all covenants for LA
Unwired and Texas Unwired shall be calculated on a combined basis for LA Unwired
and Texas Unwired, but in the case of Texas Unwired only to the extent of LA
Unwired's percentage ownership interest in Texas Unwired.
4.1 Indebtedness to POPs Ratio. Commencing on the Closing Date,
--------------------------
Borrower shall maintain at all times during each period set forth below a ratio
of Indebtedness to POPs of not more than the ratio set forth opposite such
period:
Period Ratio
------ -----
Closing Date through June 30, 2000 30.0:1.0
July 1, 2000 through December 31, 2000 37.0:1.0
January 1, 2001 through June 30, 2001 42.0:1.0
July 1, 2001 through December 31, 2001 45.0:1.0
January 1, 2002 through December 31, 2002 52.0:1.0
January 1, 2003 and thereafter 55.0:1.0
4.2 Minimum Ending Subscribers for LA Unwired and Texas Unwired.
-----------------------------------------------------------
Commencing on December 31, 1999, Borrower shall cause LA Unwired and Texas
Unwired, on a combined
27
basis, to achieve at each of the dates set forth below, and to maintain until
the next such date, a number of Subscribers not less than the amounts set forth
below opposite such date:
Date Subscribers
---- -----------
December 31, 1999 38,000
March 31, 2000 43,000
June 30, 2000 52,000
September 30, 2000 66,000
December 31, 2000 86,000
March 31, 2001 95,000
June 30, 2001 113,000
September 30, 2001 138,000
December 31, 2001 174,000
March 31, 2002 187,000
June 30, 2002 206,000
September 30, 2002 230,000
December 31, 2002 and thereafter 270,000
4.3 Minimum Monthly Revenues per Subscriber for LA Unwired and Texas
----------------------------------------------------------------
Unwired. Commencing on the Closing Date, Borrower shall cause LA Unwired and
- -------
Texas Unwired, on a combined basis, to achieve for each fiscal quarter end
occurring during each period set forth below, Revenues per Subscriber of at
least the amount set forth opposite such period:
Revenues
Period Per Subscriber
------ --------------
Closing Date through December 31, 1999 $36
January 1, 2000 through December 31, 2000 $45
January 1, 2001 and thereafter $47
4.4 Capital Expenditures for LA Unwired and Texas Unwired. Commencing
-----------------------------------------------------
on the Closing Date, Borrower will not, prior to each date set forth below,
permit LA Unwired and Texas Unwired, on a combined basis, to make capital
expenditures for the period commencing on January 1, 1999 and ending on each
date set forth below in a cumulative amount that exceed, in the aggregate for LA
Unwired and Texas Unwired, the amount set forth below opposite such date:
28
Maximum Cumulative
Date Capital Expenditures
---- --------------------
December 31, 1999 $ 70,000,000
December 31, 2000 $215,000,000
December 31, 2001 $260,000,000
December 31, 2002 $270,000,000
December 31, 2003 $280,000,000
4.5 Maximum Loss for LA Unwired and Texas Unwired. Commencing December 31,
---------------------------------------------
1999, Borrower shall cause LA Unwired and Texas Unwired, on a combined basis, to
achieve for each period of four consecutive fiscal quarters ending on fiscal
quarter end set forth below, EBITDA for such period of not less than the amounts
set forth below opposite such period end:
Four Fiscal Quarters Maximum EBITDA
Ending Loss
------ ----
December 31, 1999 ($20,500,000)
March 31, 2000 ($24,500,000)
June 30, 2000 ($28,500,000)
September 30, 2000 ($35,000,000)
December 31, 2000 ($37,000,000)
March 31, 2001 ($39,000,000)
June 30, 2001 ($41,000,000)
September 30, 2001 ($43,000,000)
December 31, 2001 ($44,000,000)
March 31, 2002 ($37,000,000)
June 30, 2002 ($28,000,000)
September 30, 2002 ($17,000,000)
December 31, 2002 ($7,000,000)
29
4.6 Operating Cash Flow for Unwired Telecom. Commencing December 31, 1999,
---------------------------------------
Borrower shall cause Unwired Telecom to achieve, on a stand alone basis
(unconsolidated with any other Person), for each period of four fiscal quarters
ending on the fiscal quarter end set forth below, Operating Cash Flow for such
period of four fiscal quarters of not less than the amount set forth below
opposite such fiscal quarter end:
Four Fiscal Quarters Minimum Operating
Ending Cash Flow
------ ---------
December 31, 1999 $11,500,000
March 31, 2000 $11,500,000
June 30, 2000 $11,500,000
September 30, 2000 $11,500,000
December 31, 2000 $11,000,000
March 31, 2001 $11,000,000
June 30, 2001 $11,000,000
September 30, 2001 $11,000,000
December 31, 2001 $11,000,000
March 31, 2002 $11,000,000
June 30, 2002 $11,000,000
September 30, 2002 $11,000,000
December 31, 2002 $10,700,000
March 31, 2003 $10,700,000
June 30, 2003 $10,700,000
September 30, 2003 $10,700,000
December 31, 2003 $10,500,000
4.7 Capital Expenditures for Unwired Telecom. Commencing on the Closing
----------------------------------------
Date, Borrower will not, prior to each date set forth below, permit Unwired
Telecom, on a stand alone basis (unconsolidated with any other Person), to make
capital expenditures for the period
30
commencing on January 1, 1999 and ending on each date set forth below in a
cumulative amount that exceeds, in the aggregate, the amount set forth below
opposite such date:
Maximum Cumulative
Date Capital Expenditures
---- --------------------
December 31, 1999 $25,000,000
December 31, 2000 $30,000,000
December 31, 2001 $35,000,000
December 31, 2002 $40,000,000
December 31, 2003 $45,000,000
4.8 Total Leverage Ratio. Commencing January 1, 2003, Borrower shall
--------------------
maintain at all times, measured at each fiscal quarter end set forth below and
maintained through the next measurement date, a Total Leverage Ratio less than
or equal to the ratio set forth below opposite such date:
Date Ratio
---- -----
March 31, 2003 22.5:1.0
June 30, 2003 12.5:1.0
September 30, 2003 12.5:1.0
December 31, 2003 12.5:1.0
March 31, 2004 10.0:1.0
June 30, 2004 7.5:1.0
September 30, 2004 7.5:1.0
December 31, 2004 7.5:1.0
March 31, 2005 6.5:1.0
June 30, 2005 5.0:1.0
September 30, 2005 5.0:1.0
December 31, 2005
through June 29, 2006 5.0:1.0
31
Date Ratio
---- -----
June 30, 2006 and
thereafter 4.0:1. 0
4.9 Senior Debt Leverage Ratio. Commencing January 1, 2003, Borrower
--------------------------
shall maintain at all times, measured at each fiscal quarter end occurring on
each date set forth below and maintained through the next measurement date, a
Senior Debt Leverage Ratio less than or equal to the ratio set forth below
opposite such date:
Date Ratio
---- -----
March 31, 2003 6.0:1.0
June 30, 2003 3.5:1.0
September 30, 2003 3.5:1.0
December 31, 2003 3.5:1.0
through June 29, 2004
June 30, 2004 and thereafter 2.5:1.0
4.10 Adjusted Quarterly Interest Coverage Ratio. Commencing January 1,
------------------------------------------
2003, Borrower shall maintain at all times, measured at each fiscal quarter end,
from March 31, 2003 through March 30, 2004, an Adjusted Quarterly Interest
Coverage Ratio greater than or equal to 1.5:1.0, and from March 31, 2004 and
thereafter, an Adjusted Quarterly Interest Coverage Ratio greater than or equal
to 2.0:1.0.
4.11 Fixed Charge Coverage Ratio. Commencing January 1, 2003, Borrower
---------------------------
shall maintain at all times, measured at each fiscal quarter end commencing with
the fiscal quarter ending March 31, 2003, a Fixed Charge Coverage Ratio greater
than or equal to 1.0:1.0.
4.12 Pro Forma Debt Service Coverage Ratio. Commencing January 1, 2003,
-------------------------------------
Borrower shall maintain at all times, measured at each fiscal quarter end
commencing with the fiscal quarter ending March 31, 2003, a Pro Forma Debt
Service Coverage Ratio greater than or equal to 1.0:1.0.
4.13 Financial Statements and Other Reports. Borrower will maintain,
--------------------------------------
and cause each of its Subsidiaries to maintain, a system of accounting
established and administered in accordance with sound business practices to
permit preparation of financial statements in conformity with GAAP (it being
understood that quarterly financial statements are not required to have footnote
32
disclosures). Borrower will deliver each of the financial statements and other
reports described below to Administrative Agent (and each Lender in the case of
the financial statements and other reports described in Subsections 4.13(A),
(B), (C), (F), (H) and (I)). In addition, so long as the Vendor Guaranty is in
effect, Borrower shall provide to Vendor Guarantor (concurrently with providing
such information to Administrative Agent), copies of all information, reports,
certificates and other documents set forth in Subsections (A) thorough (G), (I)
and (L) below, and so long as any Event of Default exists, copies of all
information or data delivered to Administrative Agent pursuant to Subsection (M)
below.
(A) Quarterly Financials. As soon as available and in any event
--------------------
within sixty (60) days after the end of each fiscal quarter, Borrower will
deliver the consolidated and consolidating balance sheets of Borrower and its
Subsidiaries, as at the end of such fiscal quarter, and the related consolidated
and consolidating statements of income, stockholder's equity and cash flow for
such fiscal quarter and for the period from the beginning of the then current
fiscal year of Borrower to the end of such quarter.
(B) Year-End Financials. As soon as available and in any event
-------------------
within one hundred twenty (120) days after the end of each fiscal year of
Borrower, Borrower will deliver (i) the consolidated and consolidating balance
sheets of Borrower and its Subsidiaries, as at the end of such year, and the
related consolidated and consolidating statements of income, stockholders'
equity and cash flow for such fiscal year and (ii) a report with respect to the
financial statements from a firm of certified public accountants selected by
Borrower and reasonably acceptable to Administrative Agent, which report shall
be prepared in accordance with Statement of Auditing Standards No. 58 (the
"Statement") entitled "Reports on Audited Financial Statements" and such report
shall be "Unqualified" (as such term is defined in such Statement).
(C) Borrower Compliance Certificate. Together with each delivery
-------------------------------
of consolidated and consolidating financial statements of Borrower and its
Subsidiaries pursuant to Subsections 4.13(A) and 4.13(B), Borrower will deliver
a fully and properly completed compliance certificate in substantially the same
form as Exhibit 4.13(C) (each, a "Compliance Certificate") signed by the chief
executive officer or chief financial officer of Borrower.
(D) Accountants' Reliance Letter. Together with each delivery of
----------------------------
consolidated and consolidating financial statements of Borrower and its
Subsidiaries pursuant to Subsection 4.13(B), Borrower will deliver a copy of a
letter addressed to Borrower's certified public accountants informing such
accountants that a primary intent of Borrower for the professional services such
accountants provided to Borrower in preparing their audit report was to benefit
or influence Lenders and their successors or assigns, and identifying Lenders as
parties that Borrower intends to rely on such professional services provided to
Borrower by such accountants.
33
(E) Accountants' Reports. Promptly upon receipt thereof, Borrower
--------------------
will deliver copies of all significant reports submitted by Borrower's firm of
certified public accountants in connection with each annual, interim or special
audit or review of any type of the financial statements or related internal
control systems of Borrower made by such accountants, including any comment
letter submitted by such accountants to management in connection with their
services.
(F) Management Report. Together with each delivery of consolidated
-----------------
and consolidating financial statements of Borrower and its Subsidiaries pursuant
to Subsections 4.13(A) and 4.13(B), Borrower will deliver a management report
(i) outlining principal factors affecting performance in each market and
describing the operations and financial condition of Borrower, each of its
Restricted Subsidiaries for the quarter then ended and the portion of the
current fiscal year then elapsed (or for the fiscal year then ended in the case
of year-end financials), including a report on key subscriber, penetration,
churn, additions, deactivations and operating statistics, (ii) setting forth in
comparative form the corresponding figures for the corresponding periods of the
previous fiscal year and the corresponding figures from the most recent
Projections for the current fiscal year delivered pursuant to Subsection 4.13(G)
and (iii) discussing the reasons for any significant variations. The information
above shall be presented in reasonable detail and shall be certified by the
chief financial officer of Borrower to the effect that such information fairly
presents the results of operations and financial condition of Borrower each of
its Restricted Subsidiaries as at the dates and for the periods indicated.
(G) Projections. As soon as available and in any event prior to
-----------
the end of each of Borrower's fiscal years, Borrower will deliver Projections of
Borrower and each of its Restricted Subsidiaries for such fiscal year, quarter
by quarter. Together with each delivery of consolidated and consolidating
financial statements of Borrower and its Subsidiaries pursuant to Subsections
4.13(A) and 4.13(B), Borrower will deliver a schedule comparing the actual
performance of Borrower and each of its Restricted Subsidiaries for such fiscal
quarter and for the portion of the fiscal year then ended against the
Projections for the then-current fiscal year delivered pursuant to this
Subsection 4.13(G). Promptly after becoming aware thereof, Borrower will notify
Administrative Agent of any material amendment to or deviation from such
Projections.
(H) SEC Filings and Press Releases. Promptly upon their becoming
------------------------------
available, Borrower will deliver copies of (i) all financial statements,
reports, notices and proxy statements sent or made available by Borrower or any
of its Subsidiaries to its or their security holders, (ii) all regular and
periodic reports and all registration statements and prospectuses, if any, filed
by Borrower or any of its Subsidiaries with any securities exchange or with the
Securities and Exchange Commission (the "SEC") or any governmental or private
regulatory authority, and (iii) all press releases and other statements made
available by Borrower or any of its Subsidiaries to the public concerning
developments in the business of any such Person.
34
(I) Events of Default, Etc. Promptly upon any officer of Borrower
-----------------------
obtaining knowledge of any of the following events or conditions, Borrower shall
deliver copies of all notices given or received by Borrower or any of its
Subsidiaries with respect to any such event or condition and a certificate of
Borrower's chief executive officer specifying the nature and period of existence
of such event or condition and what action Borrower has taken, is taking and
proposes to take with respect thereto: (i) any condition or event that
constitutes an Event of Default or Default; (ii) any notice that any Person has
given to Borrower or any of its Subsidiaries or any other action taken with
respect to a claimed default or event or condition of the type referred to in
Subsection 6.1(B); or (iii) any event or condition that could reasonably be
expected to have a Material Adverse Effect.
(J) Litigation. Promptly upon any officer of Borrower obtaining
----------
knowledge of (i) the institution of any action, suit, proceeding, governmental
investigation or arbitration against or affecting Borrower or any of its
Restricted Subsidiaries not previously disclosed by Borrower to Administrative
Agent or (ii) any material development in any action, suit, proceeding,
governmental investigation or arbitration at any time pending against or
affecting Borrower or any of its Subsidiaries which, in each case, could
reasonably be expected to have a Material Adverse Effect, Borrower will promptly
give notice thereof to Administrative Agent and provide such other information
as may be reasonably available to Borrower to enable Administrative Agent and
its counsel to evaluate such matter.
(K) Supplemented Schedules; Notice of Corporate Changes. Annually,
---------------------------------------------------
concurrently with Borrower's delivery of the Projections required by Subsection
4.13(G), Borrower shall supplement in writing and deliver revisions of the
Schedules annexed to this Agreement to the extent necessary to disclose new or
changed facts or circumstances after the Closing Date; provided that subsequent
--------
disclosures shall not constitute a cure or waiver of any Default or Event of
Default resulting from the matters disclosed.
(L) Regulatory and Other Notices. Within fifteen (15) days after
----------------------------
filing, receipt or becoming aware thereof, copies of any filings or
communications sent to or notices and other communications received by Borrower
or any of its Subsidiaries from any Governmental Authority, including the FCC,
any applicable PUC and the SEC, relating to any noncompliance by Borrower or any
of its Subsidiaries with any law or with respect to any matter or proceeding the
effect of which could reasonably be expected to have a Material Adverse Effect
or which could reasonably be expected to result in a material adverse amendment,
change or termination of any License.
(M) Filings and Notices Relating to Sprint Agreements. Promptly
-------------------------------------------------
upon receipt or availability, Borrower will deliver copies of (i) all FCC
filings, orders or other writings relating to (a) the "Licenses," as defined in
the Sprint Agreements, (b) any of the Sprint Agreements or (c) the transactions
contemplated thereby, and (ii) all notices delivered to or given by Borrower
35
relating to a breach, default or "Event of Termination," as defined in the
Sprint Agreements, including any threatened action with respect thereto, under
any of the Sprint Agreements.
(N) Other Information. With reasonable promptness, Borrower will
-----------------
deliver such other information and data with respect to Borrower and any of its
Subsidiaries as from time to time may be reasonably requested by Administrative
Agent.
4.14 Accounting Terms; Utilization of GAAP for Purposes of Calculations
------------------------------------------------------------------
Under Agreement. For purposes of this Agreement, all accounting terms not
- ---------------
otherwise defined herein shall have the meanings assigned to such terms in
conformity with GAAP. Except as otherwise expressly provided, financial
statements and other information furnished to Administrative Agent pursuant to
this Agreement shall be prepared in accordance with GAAP as in effect at the
time of such preparation. No "Accounting Changes" (as defined below) shall
affect financial covenants, standards or terms in this Agreement; provided that
--------
Borrower shall prepare footnotes to each Compliance Certificate and the
financial statements required to be delivered hereunder that show the
differences between the financial statements delivered (which reflect such
Accounting Changes) and the basis for calculating financial covenant compliance
(without reflecting such Accounting Changes). "Accounting Changes" means: (i)
changes in accounting principles required by GAAP and implemented by Borrower;
(ii) changes in accounting principles recommended by Borrower's certified public
accountants and implemented by Borrower; and (iii) changes in carrying value of
Borrower's or any of its Subsidiaries' assets, liabilities or equity accounts.
All such adjustments resulting from expenditures made subsequent to the Closing
Date (including, but not limited to, capitalization of costs and expenses or
payment of pre-Closing Date liabilities) shall be treated as expenses in the
period the expenditures are made.
SECTION 5
REPRESENTATIONS AND WARRANTIES
In order to induce Administrative Agent and Lenders to enter into this
Agreement and to make Loans, Borrower represents and warrants to Administrative
Agent and each Lender on the Closing Date and on the date of each request for a
Loan that the following statements are true, correct and complete:
5.1 Disclosure. No information furnished by or on behalf of Borrower or
----------
any Subsidiary contained in this Agreement, the financial statements referred to
in Subsection 5.8 or any other document, certificate, opinion or written
statement furnished to any Agent or any Lender for use in connection with the
Loan Documents contains any untrue statement of a material fact or omitted,
omits or will omit to state a material fact necessary in order to make the
statements contained herein or therein not misleading in light of the
circumstances in which the same were made. Borrower is not aware of any facts
which it has not disclosed in writing to the Agents
36
having a Material Adverse Effect, or insofar as Borrower can now foresee, that
could reasonably be expected to have a Material Adverse Effect.
5.2 No Material Adverse Effect. Since December 31, 1998, there has been
--------------------------
no event or change in facts or circumstance affecting Borrower or any of its
Restricted Subsidiaries which individually or in the aggregate have had or could
reasonably be expected to have a Material Adverse Effect and that have not been
disclosed herein or in the attached Schedules.
5.3 Organization, Powers, Authorization and Good Standing.
-----------------------------------------------------
(A) Organization and Powers. Each of Borrower and its Restricted
-----------------------
Subsidiaries is a limited liability company, corporation or partnership duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation (which jurisdiction is set forth on Schedule
--------
5.3(A)). Each of Borrower and each of its Restricted Subsidiaries has all
- ------
requisite legal power and authority to own and operate its properties, to carry
on its business as now conducted and proposed to be conducted, to enter into
each Loan Document to which it is a party and to carry out its respective
obligations with respect thereto.
(B) Authorization; Binding Obligation. Each of Borrower and its
---------------------------------
Restricted Subsidiaries has taken all necessary corporate and other action to
authorize the execution, delivery and performance of this Agreement and each of
the other Loan Documents to which it is a party. This Agreement is, and the
other Loan Documents when executed and delivered will be, the legally valid and
binding obligations of the applicable parties thereto (other than Administrative
Agent and the Lenders), each enforceable against each of such parties, as
applicable, in accordance with their respective terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar state or federal debt or relief laws from time to time in effect
which affect the enforcement of creditors' rights in general and general
principles of equity.
(C) Qualification. Each of Borrower and its Restricted
-------------
Subsidiaries is duly qualified and authorized to do business and in good
standing in each jurisdiction where the nature of its business and operations
requires such qualification and authorization, except where the failure to be so
qualified, authorized and in good standing could not reasonably be expected to
have a Material Adverse Effect. All jurisdictions in which each such Person is
qualified and authorized to do business are set forth on Schedule 5.3 (C).
----------------
5.4 Compliance of Agreement, Loan Documents and Borrowings with
-----------------------------------------------------------
Applicable Law. The execution, delivery and performance by Borrower and each
- --------------
of its Restricted Subsidiaries of the Loan Documents to which each such Person
is a party, the borrowings hereunder and the transactions contemplated hereby
and thereby do not and will not, by the passage of time, the giving of notice or
otherwise, (i) except as set forth on Schedule 5.4 hereto, require any
------------
Governmental Approval or violate any Applicable Law relating to Borrower or any
of its
37
Restricted Subsidiaries, (ii) conflict with, result in a breach of or constitute
a default under the articles of incorporation, bylaws or other organizational
documents of Borrower or any of its Restricted Subsidiaries or any Material
Contract to which such Person is a party or by which any of its properties may
be bound or any Governmental Approval relating to such Person or (iii) result in
or require the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by such Person.
5.5 Compliance with Law; Governmental Approvals. Each of Borrower and
-------------------------------------------
each of its Restricted Subsidiaries (i) has all material Governmental Approvals,
including the Licenses, required by any Applicable Law for it to conduct its
business and (ii) is in material compliance with each Governmental Approval,
including the Licenses, applicable to it and in compliance with all other
Applicable Laws relating to it or any of its respective properties the violation
of which could reasonably be expected to have a Material Adverse Effect. Each
such Governmental Approval is in full force and effect, is final and not subject
to review on appeal and is not the subject of any pending or threatened attack
by direct or collateral proceeding.
5.6 Tax Returns and Payments. Each of Borrower and each of its
------------------------
Restricted Subsidiaries has duly filed or caused to be filed all federal, state,
local and other tax returns required by Applicable Law to be filed, and has
paid, or made adequate provision for the payment of, all federal, state, local
and other taxes, assessments and governmental charges or levies upon it and its
property, income, profits and assets which are due and payable, except where the
------
payment of such tax is being diligently contested in good faith and adequate
reserves therefor have been established in compliance with GAAP. The charges,
accruals and reserves on the books of Borrower and each of its Restricted
Subsidiaries in respect of federal, state, local and other taxes for all fiscal
years and portions thereof are in the judgment of Borrower adequate, and neither
Borrower nor any of its Restricted Subsidiaries anticipates any additional
material taxes or assessments for any of such years.
5.7 Environmental Matters. Each of Borrower and each of its Restricted
---------------------
Subsidiaries is in compliance in all material respects with all applicable
Environmental Laws, and there is no contamination at, under or about such
properties or such operations which interfere in any material respect with the
continued operation of such properties or impair in any material respect the
fair saleable value thereof, except for any such violations or contamination as
could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
5.8 Financial Statements. All financial statements concerning Borrower
--------------------
and its Subsidiaries which have been or will hereafter be furnished to
Administrative Agent pursuant to this Agreement have been or will be prepared in
accordance with GAAP consistently applied (except as disclosed therein) and do
or will present fairly the financial condition of the Persons covered thereby as
of the date thereof and the results of their operations for the periods covered
thereby and do and will disclose all material liabilities and Contingent
Obligations of any of
38
Borrower or its Subsidiaries as at the dates thereof. Neither Borrower nor any
of its Restricted Subsidiaries has outstanding, as of the Closing Date, and
after giving effect to the initial Loans hereunder on the Closing Date, any
Indebtedness for borrowed money or Contingent Obligations other than (i) the
Loans, (ii) the Indebtedness permitted under Subsection 3.1, and (iii) the
Contingent Obligations permitted under Subsection 3.4.
5.9 Intellectual Property. Each of Borrower and its Restricted
---------------------
Subsidiaries owns, or possesses through valid licensing arrangements, the right
to use all patents, copyrights, trademarks, trade names, service marks,
technology know-how and processes used in or necessary for the conduct of its
business as currently conducted (collectively, the "Intellectual Property
Rights") without infringing upon any validly asserted rights of others. No
event has occurred which permits, or after notice or lapse of time or both would
permit, the revocation or termination of any such rights. Neither Borrower nor
any of its Restricted Subsidiaries has been threatened with any litigation
regarding Intellectual Property Rights that would present a material impediment
to the business of any such Person.
5.10 Litigation, Investigations, Audits, Etc. Except as set forth on
----------------------------------------
Schedule 5.10, there is no action, suit, proceeding or investigation pending
- -------------
against, or, to the knowledge of Borrower, threatened against or in any other
manner relating adversely to, Borrower or any of its Restricted Subsidiaries or
any of their respective properties, including the Licenses, in any court or
before any arbitrator of any kind or before or by any Governmental Authority
(including the FCC). None of the actions, suits, proceedings or investigations
disclosed on Schedule 5.10 (i) calls into question the validity of this
-------------
Agreement or any other Loan Document, or (ii) individually or collectively
involves the possibility of any judgment or liability not fully covered by
insurance which, if determined adversely to Borrower or any of its Restricted
Subsidiaries, could reasonably be expected to have a Material Adverse Effect.
Neither Borrower nor any of its Restricted Subsidiaries is the subject of any
review or audit by the Internal Revenue Service or any investigation by any
Governmental Authority concerning the violation or possible violation of any
law.
5.11 Employee Labor Matters. Except as set forth on Schedule 5.11, (i)
---------------------- -------------
none of Borrower, its Restricted Subsidiaries nor any of their respective
employees is subject to any collective bargaining agreement, (ii) no petition
for certification or union election is pending with respect to the employees of
any such Person and no union or collective bargaining unit has sought such
certification or recognition with respect to the employees of any such Person
and (iii) there are no strikes, slowdowns, work stoppages or controversies
pending or, to the best knowledge of Borrower after due inquiry, threatened
between any such Person and its respective employees, other than employee
grievances arising in the ordinary course of business which could not reasonably
be expected to have, either individually or in the aggregate, a Material Adverse
Effect.
39
5.12 Employee Benefit Plans. Borrower and its Restricted Subsidiaries
----------------------
are in compliance in all material respects with the applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended, and the regulations
and published interpretations thereunder, the failure to comply with which could
reasonably be expected to have a Material Adverse Effect.
5.13 Communications Regulatory Matters.
---------------------------------
(A) Schedule 5.13(A) sets forth a true and complete list of the
----------------
following information for each License issued to Borrower or any of its
Restricted Subsidiaries: the name of the licensee, the type of service, the
expiration date and the geographic area covered by such License.
(B) The Licenses are valid and in full force and effect without
conditions except for such conditions as are generally applicable to holders of
such Licenses. No event has occurred and is continuing which could reasonably be
expected to (i) result in the imposition of a material forfeiture or the
revocation, termination or adverse modification of any such License or (ii)
materially and adversely affect any rights of Borrower or any of its Restricted
Subsidiaries thereunder. Borrower has no reason to believe and has no knowledge
that any Licenses will not be renewed in the ordinary course, except that all of
the Licenses are subject to revocation if LA Unwired fails to meet required
build-out requirements due to obligations to Sprint pursuant to the Sprint
Agreements to use Sprint spectrum. Neither Borrower nor any of its Restricted
Subsidiaries is a party to any investigation, notice of violation, order or
complaint issued by or before the FCC, and there are no proceedings pending by
or before the FCC which could in any manner threaten or adversely affect the
validity of any License.
(C) All of the material properties, equipment and systems owned,
leased or managed by Borrower and its Restricted Subsidiaries are, and (to the
best knowledge of Borrower) all such property, equipment and systems to be
acquired or added in connection with any contemplated system expansion or
construction will be, in good repair, working order and condition (reasonable
wear and tear excepted) and are and will be in compliance with all terms and
conditions of the Licenses and all standards or rules imposed by any
Governmental Authority or as imposed under any agreements with telephone
companies and customers.
(D) Each of Borrower and its Restricted Subsidiaries has paid all
franchise, license or other fees and charges which have become due pursuant to
any Governmental Approval in respect of its business and has made appropriate
provision as is required by GAAP for any such fees and charges which have
accrued.
5.14 Perfection and Priority. The Security Interest is a valid and
-----------------------
perfected first priority lien, security title or security interest in the
Collateral in favor of Administrative Agent, for the
40
benefit of itself and Lenders, securing, in accordance with the terms of the
Security Documents, the Obligations, and the Collateral is subject to no Lien
other than permitted pursuant to Subsection 3.2. The Security Interest is
enforceable as security for the Obligations in accordance with its terms.
5.15 Solvency. Each of Borrower and its Restricted Subsidiaries: (i)
--------
owns and will own assets the present fair saleable value of which are (a)
greater than the total amount of liabilities (including contingent liabilities)
of Borrower or such Restricted Subsidiary and (b) greater than the amount that
will be required to pay the probable liabilities of its then existing debts and
liabilities as they become absolute and matured considering all financing
alternatives and potential asset sales reasonably available to Borrower or such
Restricted Subsidiary; (ii) has capital that is not unreasonably small in
relation to its business as presently conducted or after giving effect to any
contemplated transaction; and (iii) does not intend to incur and does not
believe that it will incur debts and liabilities beyond its ability to pay such
debts and liabilities as they become due.
5.16 Investment Company Act; Public Utility Holding Act. None of
--------------------------------------------------
Borrower or any of its Restricted Subsidiaries is an "investment company" as
that term is defined in and is not otherwise subject to regulation under, the
Investment Company Act of 1940, as amended. None of Borrower or any of its
Restricted Subsidiaries is a "holding company" as that term is defined in, and
is not otherwise subject to regulation under, the Public Utility Holding Company
Act of 1935, as amended.
5.17 Certain Agreements and Material Contracts. Schedule 5.17 sets
----------------------------------------- -------------
forth a complete and accurate list of all loan agreements, indentures,
guarantees, capital leases and other similar credit or reimbursement agreements
and all Material Contracts of Borrower and its Restricted Subsidiaries. Each of
Borrower and its Restricted Subsidiaries has performed all of its material
obligations under such agreements and Material Contracts and, to the best
knowledge of Borrower, each other party thereto is in compliance with each such
agreement or Material Contract. Each such agreement or Material Contract is in
full force and effect in accordance with the terms thereof. Borrower has made
available a true and complete copy of each such agreement or Material Contract
listed on Schedule 5.17 for inspection by Administrative Agent.
-------------
5.18 Capitalization. The outstanding capital stock or other ownership
--------------
interests of Borrower and its Subsidiaries is described on Schedule 5.18. All
-------------
such capital stock or other ownership interests is owned beneficially and of
record as shown on Schedule 5.18.
-------------
5.19 Title to Properties. Borrower and each Restricted Subsidiary has
-------------------
such title or leasehold interest in and to the real property owned or leased by
it as is necessary or desirable to the conduct of its business and valid and
legal title or leasehold interest in and to all of its personal property,
including those reflected on the balance sheets of Borrower delivered pursuant
to Subsection 5.8, except those which have been disposed of by Borrower
subsequent to such date
41
which dispositions have been in the ordinary course of business or as otherwise
expressly permitted hereunder. Borrower owns no real property.
5.20 Year 2000 Compliance. Each of Borrower and its Restricted
--------------------
Subsidiaries has (i) initiated a review and assessment of all areas within its
business and operations (including those affected by suppliers, vendors and
customers) that could be adversely affected by the "Year 2000 Problem" (that is,
the risk that computer applications used by such Person (or its suppliers,
vendors and customers) may be unable to recognize and perform properly date-
sensitive functions involving certain dates prior to, on and after December 31,
1999), (ii) developed a plan and timeline for addressing the Year 2000 Problem
on a timely basis, and (iii) to date, implemented that plan in accordance with
the timetable. Based on the foregoing, each of Borrower and its Restricted
Subsidiaries believes that all computer applications (including those of its
suppliers, vendors and customers) that are material to its and their business
and operations are reasonably expected on a timely basis to be able to perform
properly date-sensitive functions for all dates before and after January 1, 2000
(that is, be "Year 2000 compliant"), except to the extent that a failure to do
so could not reasonably be expected to have a Material Adverse Effect.
5.21 Incorporation of Representation and Warranties. The
----------------------------------------------
representations and warranties of Borrower contained in the Preferred Stock
Documents and the Subordinated Debt Documents are true and correct in all
material respects as of each date that the representations and warranties under
this Section 5 are deemed made or remade (and Borrower acknowledges that
Administrative Agent and Lenders are relying on the truth and accuracy of such
representation and warranties in the making of the Loans hereunder).
SECTION 6
EVENTS OF DEFAULT AND RIGHTS AND REMEDIES
6.1 Event of Default. "Event of Default" shall mean the occurrence or
----------------
existence of any one or more of the following:
(A) Payment. Failure to repay any outstanding principal amount of
-------
the Loans at the time required pursuant to this Agreement, or failure to pay,
within five (5) days after the due date, any interest on any Loan or any other
amount due under this Agreement or any of the other Loan Documents; or
(B) Default in Other Agreements. (i) Failure of Borrower or any of
---------------------------
its Restricted Subsidiaries to pay when due or within any applicable grace
period any principal or interest on Indebtedness (other than the Loans) or any
Contingent Obligation, (ii) any other breach or default of Borrower or any of
its Restricted Subsidiaries with respect to any Indebtedness (other than the
Loans) or any Contingent Obligation, including without limitation, with respect
to the
42
Subordinated Notes and, in the case of Texas Unwired, any Indebtedness to
Borrower permitted pursuant to Subsection 3.1(C)(iv), if the effect of such
breach or default is to cause or to permit the holder or holders then to cause
such Indebtedness or Contingent Obligation having an aggregate principal amount
for Borrower and the Restricted Subsidiaries in excess of $250,000 to become or
be declared due prior to its stated maturity, (iii) any breach or default of
Borrower or any of its Restricted Subsidiaries under any Material Contract,
including, without limitation, any of the Sprint Agreements, (iv) any event
occurs which would give rise to an obligation of Borrower or any Restricted
Subsidiary to pay "Liquidated Damages" pursuant to Section 5 of the Registration
Rights Agreement, or (v) any event occurs which would give rise to an obligation
of Borrower to purchase or repurchase any of the Subordinated Notes from the
holder thereof; or
(C) Breach of Certain Provisions. Failure of Borrower or any
----------------------------
Subsidiary to perform or comply with any term or condition contained in that
portion of Subsection 2.2 relating to Borrower's or a Restricted Subsidiary's
obligation to maintain insurance, Subsection 2.4, Subsection 2.12, Section 3 or
Section 4; or
(D) Breach of Warranty. Any representation, warranty, certification
------------------
or other statement made by Borrower, any of its Restricted Subsidiary or Vendor
Guarantor in any Loan Document or in any statement or certificate at any time
given by Borrower, any of its Restricted Subsidiary or Vendor Guarantor in
writing pursuant or in connection with any Loan Document is false in any
material respect on the date made or deemed made; or
(E) Other Defaults Under Loan Documents. Borrower, any of its
-----------------------------------
Restricted Subsidiaries, Vendor Guarantor or any other party (other than a
Lender) breaches or defaults in the performance of or compliance with any term
contained in this Agreement or the other Loan Documents and such default is not
remedied or waived within fifteen (15) days after receipt by Borrower, such
Restricted Subsidiary, Vendor Guarantor or such other party of notice from
Administrative Agent or Requisite Lenders of such default (other than
occurrences described in other provisions of this Subsection 6.1 for which a
different grace or cure period is specified or which constitute immediate Events
of Default); or
(F) Involuntary Bankruptcy; Appointment of Receiver; Etc. (i) A
-----------------------------------------------------
court enters a decree or order for relief with respect to Borrower, any of its
Restricted Subsidiaries or Vendor Guarantor in an involuntary case under the
Bankruptcy Code, which decree or order is not stayed or other similar relief is
not granted under any applicable federal or state law within forty-five (45)
days; or (ii) the continuance of any of the following events for forty-five (45)
days unless dismissed, bonded or discharged: (a) an involuntary case is
commenced against Borrower, any of its Restricted Subsidiaries or Vendor
Guarantor, under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect; or (b) a decree or order of a court for the appointment
of a receiver, liquidator, sequestrator, trustee, custodian or other officer
having similar powers over Borrower, any of its Restricted Subsidiaries or
Vendor Guarantor, or over
43
all or a substantial part of its property, is entered; or (c) an interim
receiver, trustee or other custodian is appointed without the consent of
Borrower, any of its Restricted Subsidiaries or Vendor Guarantor, for all or a
substantial part of the property of Borrower, any such Restricted Subsidiary or
Vendor Guarantor; or
(G) Voluntary Bankruptcy; Appointment of Receiver; Etc. Borrower,
---------------------------------------------------
any of its Restricted Subsidiaries or Vendor Guarantor (i) commences a voluntary
case under the Bankruptcy Code, files a petition seeking to take advantage of
any other law relating to bankruptcy, insolvency, reorganization, winding up or
composition for adjustment of debts of Borrower, any of its Restricted
Subsidiaries or Vendor Guarantor, or consents to, or fails to contest in a
timely and appropriate manner, the entry of an order for relief in an
involuntary case, the conversion of an involuntary case to a voluntary case
under any such law, or the appointment of or taking possession by a receiver,
trustee or other custodian of all or a substantial part of the property of
Borrower, any of its Restricted Subsidiaries or Vendor Guarantor; or (ii) makes
any assignment for the benefit of creditors; or (iii) the Board of Directors of
Borrower, any of its Restricted Subsidiaries or Vendor Guarantor adopts any
resolution or otherwise authorizes action to approve any of the actions referred
to in this Subsection 6.1(G); or
(H) Governmental Liens. Any Lien, levy or assessment (other than
------------------
Permitted Encumbrances) is filed or recorded with respect to or otherwise
imposed upon all or any part of the Collateral or the other assets of Borrower
or any of its Restricted Subsidiaries by the United States or any department or
instrumentality thereof or by any state, county, municipality or other
Governmental Authority; or
(I) Judgment and Attachments. Any money judgment, writ or warrant
------------------------
of attachment or similar process (other than those described in Subsection
6.1(H)) involving an amount in any individual case or in the aggregate for
Borrower and its Restricted Subsidiaries at any time in excess of $250,000 (in
either case not adequately covered by insurance as to which the insurance
company has acknowledged coverage) is entered or filed against Borrower or any
of its Restricted Subsidiaries or any of their respective assets and remains
undischarged, unvacated, unbonded or unstayed for a period of sixty (60) days or
in any event later than five (5) Business Days prior to the date of any proposed
sale thereunder; or
(J) Dissolution. Any order, judgment or decree is entered against
-----------
Borrower, any of its Restricted Subsidiaries or Vendor Guarantor decreeing the
dissolution or split up of Borrower, such Restricted Subsidiary or Vendor
Guarantor and such order remains undischarged or unstayed for a period in excess
of fifteen (15) days; or
(K) Solvency. Borrower, any of its Restricted Subsidiaries or Vendor
--------
Guarantor ceases to be solvent or Borrower, any of its Restricted Subsidiaries
or Vendor Guarantor admits in writing its present or prospective inability to
pay its debts as they become due; or
44
(L) Injunction. Borrower, any of its Restricted Subsidiaries or
----------
Vendor Guarantor is enjoined, restrained or in any way prevented by the order of
any court or any Governmental Authority from conducting all or any material part
of its business and such order continues for more than fifteen (15) days; or
(M) ERISA; Pension Plans. (i) Borrower, any of its Restricted
--------------------
Subsidiaries or Vendor Guarantor fails to make full payment when due of all
amounts which, under the provisions of any employee benefit plans or any
applicable provisions of the IRC, any such Person is required to pay as
contributions thereto and such failure results in or could reasonably be
expected to have a Material Adverse Effect; or (ii) an accumulated funding
deficiency occurs or exists, whether or not waived, with respect to any such
employee benefit plans; or (iii) any employee benefit plan of Borrower, any of
its Restricted Subsidiaries or Vendor Guarantor loses its status as a qualified
plan under the IRC and such loss results in or could reasonably be expected to
have a Material Adverse Effect; or
(N) Environmental Matters. Borrower or any of its Restricted
---------------------
Subsidiaries fails to: (i) obtain or maintain any operating licenses or permits
required by environmental authorities; (ii) begin, continue or complete any
remediation activities as required by any environmental authorities; (iii) store
or dispose of any hazardous materials in accordance with applicable
environmental laws and regulations; or (iv) comply with any other environmental
laws, if in any such case such failure could reasonably be expected to have a
Material Adverse Effect; or
(O) Invalidity of Loan Documents. Any of the Loan Documents for
----------------------------
any reason, other than a partial or full release in accordance with the terms
thereof, ceases to be in full force and effect or is declared to be null and
void, or Borrower, any Restricted Subsidiary or Vendor Guarantor denies that it
has any further liability under any Loan Documents to which it is party, or
gives notice to such effect; or
(P) Damage; Strike; Casualty. Any material damage to, or loss,
------------------------
theft or destruction of, any Collateral, whether or not insured, or any strike,
lockout, labor dispute, embargo, condemnation, act of God or public enemy, or
other casualty which causes, for more than fifteen (15) consecutive days, the
cessation or substantial curtailment of revenue producing activities at any
facility of Borrower or any of its Restricted Subsidiaries if any such event or
circumstance results in or could reasonably be expected to have a Material
Adverse Effect; or
(Q) Licenses and Permits. (i) The loss, suspension or revocation
--------------------
of, or failure to renew, any license or permit now held or hereafter acquired by
Borrower or any of its Restricted Subsidiaries, if such loss, suspension,
revocation or failure to renew could reasonably be expected to have a Material
Adverse Effect; or (ii) one or more Licenses shall be terminated, revoked,
substantially adversely modified or fail to be renewed at its stated expiration,
unless such termination, revocation, modification or non-renewal results from LA
Unwired's failure to satisfy
45
FCC build out or operational requirements as a result of transferring operations
to Sprint's spectrum pursuant to requirements of the Sprint Agreements; or
(R) Failure of Security. Administrative Agent, for the benefit of
-------------------
Administrative Agent and Lenders, does not have or ceases to have a valid and
perfected first priority security interest (subject to Permitted Encumbrances)
in the Collateral or any substantial portion thereof, in each case, for any
reason other than the failure of Administrative Agent to take any action within
its control; or
(S) Change in Control. William L. Henning, Sr., William L.
-----------------
Henning, Jr., Thomas G. Henning and John A. Henning, together, cease to
beneficially own and control at least 51% of the voting stock of Borrower and at
least 51% of all ownership interests (based upon rights to receive payments upon
a distribution of the assets of Borrower) of Borrower, or LA Unwired ceases to
be the Managing Partner of Texas Unwired; or
(T) Material Adverse Effect. Any event not referred to elsewhere
-----------------------
in this Subsection 6.1 shall occur which results in a Material Adverse Effect;
or
(U) Sprint Agreements and other Material Contracts. Any breach,
----------------------------------------------
default, termination or Event of Termination shall have occurred under any of
the Sprint Agreements or other Material Contracts by any of the parties thereto,
or any of the Sprint Agreements or other Material Contracts shall have been
terminated or otherwise have ceased to be in full force and effect; or
(V) Preferred Stock. Borrower shall fail within 10 days of the
---------------
Closing Date (i) to issue and sell the Preferred Stock for gross proceeds of at
least $50,000,000, pursuant to the Preferred Stock Documents, and (ii) deliver
to Agents legal opinions addressed to Agents and Lenders with respect thereto
satisfactory to Agents; or
(W) Subordinated Notes. Borrower shall fail within 10 days of the
------------------
Closing Date (i) to issue and sell the Subordinated Notes within 10 days of the
Closing Date for gross proceeds of at least $200,000,000 but not to exceed
$225,000,000, substantially on the terms set forth in the Subordinated Debt
Documents, and (ii) to deliver to Agents legal opinions with respect thereto
satisfactory to Agents; or
(X) Transfer of PCS Licenses. Command Connect shall fail, within 45
------------------------
days of the Closing Date, to validly transfer all of its PCS licenses to LA
Unwired; or
(Y) Texas Unwired. Within 180 days of the Closing Date, the existing
-------------
Beaumont and Lufkin, Texas PSC properties and operations of Meretel
Communications (including, without limitation, customers) shall not have been
transferred to Texas Unwired, all
46
on terms and conditions as set forth in the Omnibus Agreement and otherwise
satisfactory to Agents.
6.2 Suspension of Commitments. Upon the occurrence of any Default or
-------------------------
Event of Default, Administrative Agent and each Lender, without notice or
demand, may immediately cease making additional Loans and cause its obligation
to lend its Pro Rata Share of each Loan Commitment to be suspended; provided
--------
that, in the case of a Default, if the subject condition or event is waived,
cured or removed by Requisite Lenders within any applicable grace or cure
period, any suspended portion of the Loan Commitments shall be reinstated.
6.3 Acceleration. Upon the occurrence of any Event of Default described
------------
in the foregoing Subsections 6.1(F) or 6.1(G), the unpaid principal amount of
and accrued interest and fees on the Loans and all other Obligations shall
automatically become immediately due and payable, without presentment, demand,
protest, notice of intent to accelerate, notice of acceleration or other
requirements of any kind, all of which are hereby expressly waived by Borrower,
and the obligations of Administrative Agent and Lenders to make Loans shall
thereupon terminate. Upon the occurrence and during the continuance of any
other Event of Default, Administrative Agent may, and upon written demand by
Requisite Lenders shall, by written notice to Borrower declare all or any
portion of the Loans and all or some of the other Obligations to be, and the
same shall forthwith become, immediately due and payable together with accrued
interest thereon, and upon such acceleration the obligations of Administrative
Agent and Lenders to make Loans shall thereupon terminate.
6.4 Rights of Collection. Upon the occurrence of any Event of Default
--------------------
and at any time thereafter and unless and until such Event of Default is waived
by Requisite Lenders, Administrative Agent may exercise on behalf of Lenders all
of their other rights and remedies under this Agreement, the other Loan
Documents and Applicable Law, in order to satisfy all of Borrower's Obligations.
6.5 Consents. Borrower acknowledges that certain transactions
--------
contemplated by this Agreement and the other Loan Documents and certain actions
which may be taken by Administrative Agent or Lenders in the exercise of their
respective rights under this Agreement and the other Loan Documents may require
the consent of a Governmental Authority. If counsel to Administrative Agent
reasonably determines that the consent of a Governmental Authority is required
in connection with the execution, delivery and performance of any of the
aforesaid Loan Documents or any Loan Documents delivered to Administrative Agent
or Lenders in connection therewith or as a result of any action which may be
taken pursuant thereto, then Borrower, at Borrower's sole cost and expense,
agrees to use its reasonable efforts, and to cause its Restricted Subsidiaries
to use their reasonable best efforts, to secure such consent and to cooperate
with Administrative Agent and Lenders in any action commenced by Administrative
Agent or any Lender to secure such consent.
47
6.6 Performance by Administrative Agent. If Borrower shall fail to
-----------------------------------
perform any covenant, duty or agreement contained in any of the Loan Documents,
Administrative Agent may perform or attempt to perform such covenant, duty or
agreement on behalf of Borrower after the expiration of any cure or grace
periods set forth herein. In such event, Borrower shall, at the request of
Administrative Agent, promptly pay any amount reasonably expended by
Administrative Agent in such performance or attempted performance to
Administrative Agent, together with interest thereon at the highest rate of
interest in effect upon the occurrence of an Event of Default as specified in
Subsection 1.2(E) from the date of such expenditure until paid. Notwithstanding
the foregoing, it is expressly agreed that Administrative Agent shall not have
any liability or responsibility for the performance of any obligation of
Borrower under this Agreement or any other Loan Document.
6.7 Set Off and Sharing of Payments. In addition to any rights now or
-------------------------------
hereafter granted under applicable law and not by way of limitation of any such
rights, during the continuance of any Event of Default, each Lender is hereby
authorized by Borrower at any time or from time to time, with reasonably prompt
subsequent notice to Borrower (any prior or contemporaneous notice being hereby
expressly waived) to set off and to appropriate and to apply any and all (A)
balances held by such Lender at any of its offices for the account of Borrower
or any of its Restricted Subsidiaries (regardless of whether such balances are
then due to Borrower or its Restricted Subsidiaries), and (B) except as provided
in Subsection 8.2(J), other property at any time held or owing by such Lender to
or for the credit or for the account of Borrower or any of its Restricted
Subsidiaries, against and on account of any of the Obligations; provided, that
--------
no Lender shall exercise any such right without the prior written consent of
Administrative Agent. Any Lender exercising a right to set off shall, to the
extent the amount of any such set off exceeds its Pro Rata Share of the amount
set off, purchase for cash (and the other Lenders shall sell) interests in each
such other Lender's Pro Rata Share of the Obligations as would be necessary to
cause such Lender to share such excess with each other Lender in accordance with
their respective Pro Rata Shares. Borrower agrees, to the fullest extent
permitted by law, that any Lender may exercise its right to set off with respect
to amounts in excess of its Pro Rata Share of the Obligations and upon doing so
shall deliver such excess to Administrative Agent for the benefit of all Lenders
in accordance with their Pro Rata Shares; provided, that CoBank may exercise its
--------
rights against any equity of CoBank held by Borrower without complying with this
sentence.
6.8 Application of Payments. Subsequent to the acceleration of the Loans
-----------------------
pursuant to Subsection 6.3, all payments received by the Lenders on the
Obligations and on the proceeds from the enforcement of the Obligations shall be
distributed pro rata among the Loans and shall be further applied among
Administrative Agent and the Lenders as follows: First, to all Administrative
Agent's fees and expenses then due and payable, then to all other expenses then
due and payable by Borrower hereunder, then to all indemnitee obligations then
due and payable by Borrower hereunder, then to all commitment and other fees and
commissions then due and payable by Borrower, then to accrued and unpaid
interest on the Loans (pro rata) in accordance
48
with all such amounts due on the Loans), and then to the principal amount of the
Loans (pro rata among all Loans), in that order.
6.9 Adjustments. If any Lender (a "Benefitted Lender") shall at any
-----------
time receive any payment of all or part of its Loans, or interest thereon in a
greater proportion than any such payment received by any other Lender, if any,
in respect of such other Lender's Loans, or interest thereon, such Benefitted
Lender shall, to the extent permitted by Applicable Law, purchase for cash from
the other Lenders such portion of each such other Lender's Loans as shall be
necessary to cause such Benefitted Lender to share the excess payment or
benefits ratably with each Lender; provided, that if all or any portion of such
--------
excess payment or benefits is thereafter recovered from such Benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits returned
to the extent of such recovery, but without interest. Borrower agrees that each
Lender so purchasing a portion of another Lender's Loans may exercise all rights
of payment (including rights of set-off) with respect to such portion as fully
as if such Lender were the direct holder of such portion. This Subsection 6.9
shall not apply to any action taken by CoBank with respect to equity in it held
by Borrower.
SECTION 7
CONDITIONS TO LOANS
The obligations of Lenders to make Loans are subject to satisfaction of all
of the applicable conditions set forth below.
7.1 Conditions to Initial Loan. The obligations of Lenders to make the
--------------------------
initial Loan are, in addition to the conditions precedent specified in
Subsection 7.2, subject to the satisfaction of each of the following conditions:
(A) Executed Loan Documents. (i) This Agreement, (ii) the Notes, (iii)
-----------------------
the Security Agreements, (iv) the Mortgages, (v) the Pledge Agreements, (vi) the
Subsidiary Guaranties, (vii) the Vendor Guaranty, (viii) the Collateral Contract
Assignments, (ix) the Sprint Consent and Agreement, (x) the Negative Pledge
Agreement and (xi) all other documents and instruments contemplated by such
agreements, shall have been duly authorized and executed by each of Borrower and
the applicable Guarantor in form and substance satisfactory to Agents, and each
of Borrower and the applicable Guarantor shall have delivered original
counterparts thereof to Administrative Agent.
49
(B) Closing Certificates; Opinions.
-------------------------------
(1) Officer's Certificate. Administrative Agent shall have received,
---------------------
a certificate from the chief executive officer and chief financial officer of
Borrower and each of the Subsidiary Guarantors, in form and substance reasonably
satisfactory to Agents, to the effect that, as of such date: all
representations and warranties of Borrower and each of the Subsidiary Guarantors
contained in this Agreement and the other Loan Documents are true, correct and
complete; that none of Borrower nor any of its Subsidiaries is in violation of
any of the covenants contained in this Agreement and the other Loan Documents;
that, after giving effect to the transactions contemplated by this Agreement, no
Default or Event of Default has occurred and is continuing; that Borrower and
each of the Subsidiary Guarantors has satisfied each of the closing conditions
to be satisfied hereby; and that Borrower and each of the Subsidiary Guarantors
has filed all required tax returns and owes no delinquent taxes, except where
------
the payment of such tax is being diligently contested in good faith and adequate
reserves therefor have been established in compliance with GAAP.
(2) Certificate of Secretary of Borrower and each Subsidiary
--------------------------------------------------------
Guarantor. Administrative Agent shall have received, a certificate of the
- ---------
secretary or assistant secretary of Borrower and each of the Subsidiary
Guarantors certifying as of such date that attached thereto is a true and
complete copy of the articles of organization or incorporation of Borrower and
each of the Subsidiary Guarantors, as the case may be, and all amendments
thereto, certified as of a recent date by the appropriate Governmental Authority
in its jurisdiction of organization or incorporation; that attached thereto is a
true and complete copy of the operating agreement or bylaws, if any, of Borrower
and each of the Subsidiary Guarantors as in effect on the date of such
certification; that attached thereto is a true and complete copy of consents of
members or resolutions duly adopted by the Board of Directors of Borrower and
each of the Subsidiary Guarantors, as the case may be, authorizing the
borrowings or guaranties contemplated hereunder, the execution, delivery and
performance of this Agreement and the other Loan Documents, and the granting of
the Security Interest; and as to the incumbency and genuineness of the signature
of each officer of Borrower and each of the Subsidiary Guarantors executing Loan
Documents.
(3) Certificates of Good Standing. Administrative Agent shall have
-----------------------------
received long-form certificates as of a recent date of the good standing of
Borrower and each of the Subsidiary Guarantors under the laws of its
jurisdiction of organization and such other jurisdictions as are requested by
Agents.
(4) Opinions of Counsel. Administrative Agent shall have received
-------------------
favorable opinions of (i) counsel to Borrower and each of the Subsidiary
Guarantors addressed to Agents and Lenders with respect to Borrower and each of
the Subsidiary Guarantors (including, without limitation, the formation of
Borrower and the transfer to Borrower of the capital stock or other ownership
interests of Unwired Telecom and LA Unwired), the Loan Documents, the Security
50
Interest and regulatory matters (including, without limitation, the Licenses)
reasonably satisfactory in form and substance to Agents, (ii) counsel to the
Vendor Guarantor addressed to Agents and Lenders with respect to the Vendor
Guaranty and the other Loan Documents to which it is a party reasonably
satisfactory in form and substance to Agents and (iii) counsel to Sprint
addressed to Agents and Lenders with respect to the Licenses owned by Sprint
reasonably satisfactory in form and substance to Agents.
(C) Collateral.
----------
(1) Filings and Recordings. All filings and recordings that are
----------------------
necessary to perfect the Security Interest in the Collateral constituting
personal property described in the Security Documents shall have been filed in
all appropriate locations and Administrative Agent shall have received evidence
satisfactory to Agents that such Security Interest constitutes a valid and
perfected first priority Lien therein.
(2) Lien Searches. Borrower shall have delivered to Administrative
-------------
Agent the results of a Lien search of all filings made against each of Borrower
and each Restricted Subsidiary under the Uniform Commercial Code as in effect in
any jurisdiction in which any of its respective assets are located, indicating
among other things that Borrower's and the Restricted Subsidiaries' assets are
free and clear of any Lien, except for Permitted Encumbrances.
(3) Insurance. Administrative Agent shall have received certificates
---------
of insurance and certified copies of insurance policies in the form required
under Subsection 2.2 and the Security Documents and otherwise in form and
substance reasonably satisfactory to Agents.
(D) Consents.
--------
(1) Governmental and Third Party Approvals. Borrower and each
--------------------------------------
Subsidiary Guarantor shall have delivered to Administrative Agent all necessary
approvals, authorizations and consents, if any, of all Persons, Governmental
Authorities, including the FCC and all applicable PUC's, and courts having
jurisdiction with respect to the execution and delivery of this Agreement and
the other Loan Documents, the granting of the Security Interest and the
execution and delivery of the Sprint Agreements, and all such approvals shall be
in form and substance satisfactory to Agents.
(2) Permits and Licenses. Administrative Agent shall have received
--------------------
copies of all material permits and licenses, including the Licenses, required
under Applicable Laws for the conduct of Borrower's and its Restricted
Subsidiaries' businesses.
(3) No Injunction, Etc. No action, proceeding, investigation,
------------------
regulation or legislation shall have been instituted, threatened or proposed
before any Governmental Authority
51
to enjoin, restrain or prohibit, or to obtain substantial damages in respect of,
or which is related to or arises out of this Agreement or the other Loan
Documents or the consummation of the transactions contemplated hereby or
thereby, or which, as determined by Agents in their reasonable discretion, would
make it inadvisable to consummate the transactions contemplated by this
Agreement and such other Loan Documents.
(E) Financial Matters.
-----------------
(1) Financial Statements. Administrative Agent and each Lender shall
--------------------
have received recent annual and interim financial statements and other financial
information with respect to Borrower and each Restricted Subsidiary prepared in
accordance with GAAP.
(2) Fees, Expenses, Taxes, Etc. There shall have been paid by
--------------------------
Borrower to Agents the fees set forth or referenced in Subsection 1.4 and any
other accrued and unpaid fees or commissions due hereunder (including legal fees
and expenses), and to any other Person such amount as may be due thereto in
connection with the transactions contemplated hereby, including all taxes, fees
and other charges in connection with the execution, delivery, recording, filing
and registration of any of the Loan Documents.
(F) Miscellaneous.
-------------
(1) Creation of Borrower as Holding Company; Repayment of Existing
--------------------------------------------------------------
Indebtedness. Administrative Agent shall have received evidence, in form and
- ------------
substance reasonably satisfactory to Agents, that (i) all of the capital stock
or other ownership interests of each Restricted Subsidiary have been validly
transferred to Borrower, (ii) all Indebtedness incurred by such Restricted
Subsidiary prior to the initial Loan hereunder and/or secured by such capital
stock or other ownership interests of or by the assets of such Restricted
Subsidiary has been fully paid, satisfied and discharged, including, without
limitation, the repayment of all Indebtedness of Unwired Telecom pursuant to
that certain Loan Agreement dated as of August 15, 1997, between Unwired Telecom
and the lenders named therein and of LA Unwired pursuant to that certain Credit
Agreement dated as of June 23, 1999, between LA Unwired and lenders named
therein and (iii) that all Liens in respect of any such Indebtedness have been
terminated.
(2) Proceedings and Documents. All opinions, certificates and other
-------------------------
instruments and all proceedings in connection with the transactions contemplated
by this Agreement shall be reasonably satisfactory in form and substance to
Agents. Administrative Agent shall have received copies of all other instruments
and other evidence as Agents may reasonably request, in form and substance
reasonably satisfactory to Agents, with respect to the transactions contemplated
by this Agreement and the taking of all actions in connection therewith.
52
(3) Sprint Agreements. Borrower and Sprint shall have entered into
-----------------
agreements with respect to Borrower's operations in form and content
satisfactory to Agents and Agents shall have approved the form of the agreements
to be entered into between Texas Unwired and Sprint.
(4) Sprint Certificate. Sprint shall have executed and delivered to
------------------
Administrative Agent a certificate as to breaches or potential Events of
Termination under the Sprint Agreements, in form and content satisfactory to
Agents.
(5) Meretel Communications/Texas Unwired. Meretel Communications and
------------------------------------
its owners (including, without limitation, Borrower) shall have entered into
agreements, including, without limitation, the Omnibus Agreement, with respect
to distribution, and contribution unto Texas Unwired, of the existing PCS
properties and operations serving the Beaumont and Lufkin, Texas BTAs, all in
form and content satisfactory to Agents.
(6) Preferred Stock Issuance. Administrative Agent shall have
------------------------
received evidence, including, without limitation, opinions of counsel,
satisfactory to Agents that the Preferred Stock has been issued and sold as
contemplated on the date hereof, for gross proceeds of at least $50,000,000,
pursuant to the Preferred Stock Documents.
(7) Subordinated Notes Issuance. Administrative Agent shall have
---------------------------
received evidence, including, without limitation, opinions of counsel,
satisfactory to Agents that the Subordinated Notes have been issued and sold as
contemplated on the date hereof, for gross proceeds of between $200,000,000 and
$225,000,000, pursuant to the Subordinated Debt Documents.
7.2 Conditions to All Loans. The several obligations of Lenders to make
-----------------------
Loans, including the initial Loan, on any date (each such date a "Funding Date")
are subject to the further conditions precedent set forth below.
(A) Administrative Agent shall have received, in accordance with the
provisions of Subsection 1.3, a notice requesting an advance of a Loan.
(B) The representations and warranties contained in Section 5 of this
Agreement and elsewhere herein and in the Loan Documents shall be (and each
request by Borrower for a Loan shall constitute a representation and warranty by
Borrower that such representations and warranties are) true, correct and
complete in all material respects on and as of such Funding Date to the same
extent as though made on and as of that date, except for any representation or
warranty limited by its terms to a specific date and taking into account any
amendments to the Schedules or Exhibits as a result of any disclosures made in
writing by Borrower to Administrative Agent after the Closing Date and approved
by Requisite Lenders in writing.
53
(C) No event shall have occurred and be continuing or would result
from the consummation of the borrowing contemplated that would constitute an
Event of Default or a Default.
(D) No order, judgment or decree of any court, arbitrator or
Governmental Authority shall purport to enjoin or restrain any Lender from
making any Loan.
(E) Since December 31, 1998, there shall not have occurred any event
or condition that has had or could reasonably be expected to have a Material
Adverse Effect.
(F) All Loan Documents shall be in full force and effect.
(G) Borrower and Guarantors shall have delivered to Administrative
Agent such other documents, certificates and opinions as Agents reasonably
request.
SECTION 8
ASSIGNMENT AND PARTICIPATION
8.1 Assignments and Participations in Loans and Notes. Each Lender
-------------------------------------------------
(including CoBank) may assign, subject to the terms of a Lender Addition
Agreement, its rights and delegate its obligations under this Agreement to one
or more Persons, provided that (a) such Lender shall first obtain the written
--------
consent of each of Administrative Agent and, if no Default or Event of Default
shall have occurred and be continuing, Borrower, which consents shall not be
unreasonably withheld or delayed; (b) the Pro Rata Share of a Loan Commitment
being assigned shall in no event be less than the lesser of (i) $5,000,000
(which may be aggregated where several Lenders are simultaneously assigning to
the same Person) and (ii) the entire amount of the Pro Rata Share of such Loan
Commitment of the assigning Lender; and (c) upon the consummation of each such
assignment the assigning Lender shall pay Administrative Agent a non-refundable
administrative fee of $2,000; provided, that in connection with an assignment
--------
from a Lender to an affiliate of such Lender written consent of Borrower shall
not be required and no administrative fee shall be payable. From and after the
effective date specified in a duly executed, delivered and accepted Lender
Addition Agreement, which effective date shall be at least five (5) Business
Days after the execution thereof (unless Administrative Agent shall otherwise
agree), (A) the assignee thereunder shall be a party hereto and, to the extent
that rights and obligations hereunder have been assigned to it pursuant to such
Lender Addition Agreement, shall have the rights and obligations of the
assigning Lender hereunder with respect thereto and (B) the assigning Lender
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Lender Addition Agreement, relinquish its rights (other than
rights under the provisions of this Agreement and the other Loan Documents
relating to indemnification or payment of fees, costs
54
and expenses, to the extent such rights relate to the time prior to the
effective date of such Lender Addition Agreement) and be released from its
obligations under this Agreement other than obligations to the extent relating
to the time prior to the effective date of such Lender Addition Agreement (and,
in the case of a Lender Addition Agreement covering all or the remaining portion
of such assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto). The terms and provisions of each
Lender Addition Agreement shall, upon the effectiveness thereof be incorporated
into and made a part of this Agreement, and the covenants, agreements and
obligations of each Lender set forth therein shall be deemed made to and for the
benefit of Administrative Agent and the other parties hereto as if set forth at
length herein. Upon its receipt of a duly completed Lender Addition Agreement
executed by an assigning Lender and an assignee, and Borrower (if required),
together with any Note subject to such assignment and the processing fee
referred to above, Administrative Agent will accept such Lender Addition
Agreement and give notice thereof to Borrower and the other Lenders. In the
event of an assignment pursuant to this Subsection 8.1, Borrower shall, upon
surrender of the assigning Lender's Note, issue a new Note to reflect the
interests of the assigning Lender and the Person to which interests are to be
assigned.
Each Lender (including Administrative Agent) may sell participations in all
or any part of its Pro Rata Share of each Loan Commitment to one or more
Persons; provided that such Lender shall first obtain the prior written consent
--------
of Administrative Agent; and provided, further, that such Lender's obligations
-------- -------
under this Agreement shall remain unchanged; Borrower, Administrative Agent and
the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement; all
amounts payable by Borrower hereunder shall be determined as if that Lender had
not sold such participation; and the holder of any such participation shall not
be entitled to require such Lender to take or omit to take any action hereunder
except action directly affecting (i) any reduction, modification or forgiveness
in the principal amount, interest rate or fees payable with respect to any Loan;
(ii) any extension of the Expiration Date, or any change of any date fixed for
any payment of any of the Obligations; and (iii) any consent to the assignment,
delegation or other transfer by Borrower of any of its rights and obligations
under any Loan Document. Borrower hereby acknowledges and agrees that any
participation will give rise to a direct obligation of Borrower to the
participant, and the participant shall for purposes of Subsections 1.11, 1.13,
1.14, 6.7 and 9.1 be considered to be a "Lender."
Except as otherwise provided in this Subsection 8.1, no Lender shall, as
between Borrower and such Lender, be relieved of any of its obligations
hereunder as a result of any sale, assignment, transfer or negotiation of, or
granting of a participation in, all or any part of the Loans, the Note or other
Obligations owed to such Lender. Each Lender may furnish any information
concerning Borrower and its Subsidiaries in the possession of that Lender from
time to time to assignees and participants (including prospective assignees and
participants), subject to the provisions of Subsection 9.13.
55
Nothing in this Agreement shall be construed to prohibit any Lender from
pledging or assigning all or any portion of its rights and interest hereunder or
under any Note to any Federal Reserve Bank as security for borrowings therefrom;
provided, that no such pledge or assignment shall release a Lender from any of
- --------
its obligations hereunder.
Notwithstanding anything contained in this Agreement to the contrary, so
long as Requisite Lenders shall remain capable of making LIBOR Loans, no Person
shall become a "Lender" hereunder unless such Person shall also be capable of
making LIBOR Loans.
CoBank reserves the right to assign or sell participations in all or any
part of its Pro Rata Share of each Loan Commitment on a non-patronage basis.
8.2 Agents.
------
(A) Appointment. Each Lender hereby irrevocably appoints and
-----------
authorizes (i) CoBank, as Administrative Agent, to act as Administrative Agent
hereunder and under any other Loan Document with such powers as are specifically
delegated to Administrative Agent by the terms of this Agreement and any other
Loan Document, together with such other powers as are reasonably incidental
thereto, (ii) The Bank of New York, as Documentation Agent, to act as
Documentation Agent hereunder and under any other Loan Document with such powers
as are specifically delegated to the Documentation Agent by the terms of this
Agreement and any other Loan Document, together with such other powers as are
reasonably incidental thereto, and (iii) First Union Capital Markets Corp., as
Syndication Agent, to act as Syndication Agent hereunder and under any other
Loan Document with such powers as are specifically delegated to the Syndication
Agent by the terms of this Agreement and any other Loan Document, together with
such other powers as are reasonably incidental thereto. Administrative Agent is
authorized and empowered to amend, modify or waive any provisions of this
Agreement or the other Loan Documents on behalf of Lenders subject to the
requirement that the consent of certain Lenders be obtained in certain
instances as provided in Subsections 8.3 and 9.2. CoBank hereby agrees to act
as Administrative Agent on the express conditions contained in this Subsection
8.2. The provisions of this Subsection 8.2 are solely for the benefit of Agents
and Lenders, and Borrower shall have no rights as a third party beneficiary of
any of the provisions hereof. In performing its functions and duties under this
Agreement, Agent shall act solely as an agent of Lenders and does not assume and
shall not be deemed to have assumed any obligation toward or relationship of
agency or trust with or for Borrower. Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through agents
or attorneys-in-fact and shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact that it selects with reasonable
care.
(B) Nature of Duties. The duties of Agents and Co-Arrangers shall
----------------
be mechanical and administrative in nature. None of Agents shall have by reason
of this Agreement
56
a fiduciary relationship in respect of any Lender. Nothing in this Agreement or
any of the Loan Documents, express or implied, is intended to or shall be
construed to impose upon Agents any obligations in respect of this Agreement or
any of the Loan Documents except as expressly set forth herein or therein. Each
Lender expressly acknowledges that none of Administrative Agent or any other
Agent or any Co-Arranger nor any of their respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representation
or warranty to it and that no act by Agent or Co-Arranger or any such Person
hereafter taken, including any review of the affairs of Borrower and its
Subsidiaries, shall be deemed to constitute any representation or warranty by
Agent or Co-Arranger to any Lender. Each Lender represents to Agent and Co-
Arranger that (i) it has, independently and without reliance upon Agents, Co-
Arrangers or any other Lender and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, properties, financial and other condition and
creditworthiness of Borrower and its Subsidiaries and made its own decision to
enter into this Agreement and extend credit to Borrower hereunder, and (ii) it
will, independently and without reliance upon Agents, Co-Arrangers or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis, appraisals and decisions
in taking or not taking action hereunder and under the other Loan Documents and
to make such investigation as it deems necessary to inform itself as to the
business, prospects, operations, properties, financial and other condition and
creditworthiness of Borrower and its Subsidiaries. Neither Administrative Agent,
any other Agent nor Co-Arrangers shall have any duty or responsibility, either
initially or on a continuing basis, to provide any Lender with any credit or
other information with respect thereto (other than as expressly required
herein). If Administrative Agent seeks the consent or approval of any Lenders to
the taking or refraining from taking of any action hereunder, then
Administrative Agent shall send notice thereof to each Lender. Administrative
Agent shall promptly notify each Lender any time that Requisite Lenders have
instructed Administrative Agent to act or refrain from acting pursuant hereto.
(C) Rights, Exculpation, Etc. None of Agents or Co-Arrangers nor
-------------------------
any of their respective officers, directors, employees, agents or attorneys-in-
fact shall be liable to any Lender for any action taken or omitted by them
hereunder or under any of the Loan Documents, or in connection herewith or
therewith, except that each such entity shall be liable with respect to its own
gross negligence or willful misconduct. Administrative Agent shall not be
liable for any apportionment or distribution of payments made by it in good
faith and if any such apportionment or distribution is subsequently determined
to have been made in error the sole recourse of any Lender to whom payment was
due but not made, shall be to recover from other Lenders any payment in excess
of the amount to which they are determined to be entitled (and such other
Lenders hereby agree to return to such Lender any such erroneous payments
received by them). In performing its functions and duties hereunder,
Administrative Agent shall exercise the same care which it would in dealing with
loans for its own account, but Administrative Agent shall not be responsible to
any Lender for any recitals, statements, representations or warranties herein or
for the execution, effectiveness, genuineness, validity, enforceability,
collectibility or sufficiency
57
of this Agreement or any of the Loan Documents or the transactions contemplated
thereby, or for the financial condition of Borrower. Administrative Agent may at
any time request instructions from Lenders with respect to any actions or
approvals which by the terms of this Agreement or of any of the Loan Documents
Administrative Agent is permitted or required to take or to grant, and if such
instructions are promptly requested, Administrative Agent shall be absolutely
entitled to refrain from taking any action or to withhold any approval and shall
not be under any liability whatsoever to any Person for refraining from any
action or withholding any approval under any of the Loan Documents (i) if such
action or omission would, in the reasonable opinion of Administrative Agent,
violate any Applicable Law or any provision of this agreement or any other Loan
Document, or (ii) until it shall have received such instructions from Requisite
Lenders or all of the Lenders, as applicable. Without limiting the foregoing, no
Lender shall have any right of action whatsoever against Administrative Agent as
a result of Administrative Agent acting or refraining from acting under this
Agreement, the Notes, or any of the other Loan Documents in accordance with the
instructions of Requisite Lenders.
(D) Reliance. Administrative Agent shall be entitled to rely, and
--------
shall be fully protected in relying, upon any written or oral notices,
statements, certificates, orders or other documents or any telephone message or
other communication (including any writing, telex, telecopy or telegram)
believed by it in good faith to be genuine and correct and to have been signed,
sent or made by the proper Person, and with respect to all matters pertaining to
this Agreement or any of the Loan Documents and its duties hereunder or
thereunder, upon advice of counsel selected by it in connection with the
preparation, negotiation, execution, delivery, administration, amendment,
modification, waiver or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement or any of the other Loan Documents.
(E) Indemnification. Lenders will reimburse and indemnify each
---------------
Agent and Co-Arranger and their respective officers, directors, employees,
agents, attorneys-in-fact and Affiliates, on demand for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including, attorney's fees and expenses), advances or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against any Agent or Co-Arranger (i) in any way relating to or
arising out of this Agreement or any of the Loan Documents or any action taken
or omitted by such Agent or Co-Arranger under this Agreement or any of the Loan
Documents, and (ii) in connection with the preparation, negotiation, execution,
delivery, administration, amendment, modification, waiver or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement or any of
the other Loan Documents in proportion to each Lender's Pro Rata Share;
provided, that no Lender shall be liable for any portion of such liabilities,
- --------
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, advances or disbursements resulting from such Agent's or Co-Arranger's
gross negligence or willful misconduct. If any indemnity furnished to
Administrative Agent for any
58
purpose shall, in the opinion of Administrative Agent, be insufficient or become
impaired, Administrative Agent may call for additional indemnity and cease, or
not commence, to do the acts indemnified against until such additional indemnity
is furnished. The obligations of Lenders under this Subsection 8.2(E) shall
survive the payment in full of the Obligations and the termination of this
Agreement.
(F) CoBank Individually. With respect to its obligations under the
-------------------
Loan Commitments, the Loans made by it, and the Notes issued to it, CoBank shall
have and may exercise the same rights and powers hereunder and is subject to the
same obligations and liabilities as and to the extent set forth herein for any
other Lender. The terms "Lenders" or "Requisite Lenders" or any similar terms
shall, unless the context clearly otherwise indicates, include CoBank in its
individual capacity as a Lender or one of the Requisite Lenders. CoBank may
lend money to, and generally engage in any kind of banking, trust or other
business with, Borrower or any of its Subsidiaries as if it were not acting as
Administrative Agent pursuant hereto.
(G) Notice of Default. Administrative Agent shall not be required
-----------------
to make any inquiry concerning either the performance or observance of any of
the terms, provisions or conditions of this Agreement or any of the Loan
Documents or the financial condition of Borrower or any of its Subsidiaries, or
the existence or possible existence of any Default or Event of Default.
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless Administrative Agent shall
have received written notice from Borrower or a Lender referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default." In the event that Administrative Agent receives
such a notice, Administrative Agent will give notice thereof to Lenders as soon
as reasonably practicable; provided, that if any such notice has also been
--------
furnished to Lenders, Administrative Agent shall have no obligation to notify
Lenders with respect thereto. Administrative Agent shall (subject to this
Subsection 8.2) take such action with respect to such Default or Event of
Default as shall reasonably be directed by the Required Lenders; provided,
--------
further, that, unless and until Administrative Agent shall have received such
- -------
directions, Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable and in the best interests of
Lenders.
(H) Successor Administrative Agent.
------------------------------
(1) Resignation. Administrative Agent may resign from the
-----------
performance of all its agency functions and duties hereunder at any time by
giving at least thirty (30) Business Days' prior written notice to Borrower and
Lenders. Such resignation shall take effect upon the acceptance by a successor
Administrative Agent of appointment pursuant to clause (2) below or as otherwise
provided below.
59
(2) Appointment of Successor. Upon any such notice of resignation
------------------------
pursuant to clause (1) above, Requisite Lenders shall, upon receipt, if no Event
of Default or Default shall have occurred and be continuing, of Borrower's prior
consent which shall not be unreasonably withheld, appoint a successor
Administrative Agent from among Lenders. If a successor Administrative Agent
shall not have been so appointed within the thirty (30) Business Day period,
referred to in clause (1) above, the retiring Administrative Agent, upon notice
to Borrower, shall then appoint a successor Administrative Agent from among
Lenders who shall serve as Administrative Agent until such time, if any, as
Requisite Lenders, upon receipt of Borrower's prior written consent which shall
not be unreasonably withheld, appoint a successor Administrative Agent as
provided above.
(3) Successor Administrative Agent. Upon the acceptance of any
------------------------------
appointment as Administrative Agent under the Loan Documents by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under the Loan Documents.
After any retiring Administrative Agent's resignation as Administrative Agent
under the Loan Documents, the provisions of this Subsection 8.2 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under the Loan Documents.
(I) Collateral Matters.
------------------
(1) Release of Collateral. Lenders hereby irrevocably authorize
---------------------
Administrative Agent, at its option and in its discretion, to release any Lien
granted to or held by Administrative Agent upon any property covered by the
Security Documents (i) upon termination of the Loan Commitments and payment and
satisfaction of all Obligations (other than contingent indemnification
Obligations not then due and payable); (ii) constituting property being sold or
disposed of if Borrower certifies to Administrative Agent that the sale or
disposition is made in compliance with the provisions of this Agreement (and
Administrative Agent may rely in good faith conclusively on any such
certificate, without further inquiry); or (iii) constituting property leased to
Borrower under a lease which has expired or been terminated in a transaction
permitted under this Agreement or is about to expire and which has not been, and
is not intended by Borrower to be, renewed or extended. In addition,
Administrative Agent, with the consent of Requisite Lenders, may release or
compromise any Collateral and the proceeds thereof; provided that in any fiscal
--------
year, the consent of all Lenders shall be required for any release or compromise
of Collateral or the proceeds thereof if (a) such Collateral constitutes a
License or (b) the net book value of such Collateral and proceeds, together with
the net book value of all other Collateral and proceeds released in such fiscal
year, exceeds ten percent (10%) of the net book value of all assets of Borrower
as of the last day of the preceding fiscal year, as determined by Administrative
Agent.
60
(2) Confirmation of Authority; Execution of Releases. Without in
------------------------------------------------
any manner limiting Administrative Agent's authority to act without any specific
or further authorization or consent by Lenders (as set forth in Subsection
8.2(I)(1)), each Lender agrees to confirm in writing, upon request by
Administrative Agent or Borrower, the authority to release any property covered
by the Security Documents conferred upon Administrative Agent under clauses (i)
through (iii) of the first sentence of Subsection 8.2(I)(1). Upon receipt by
Administrative Agent of confirmation from Requisite Lenders, if any, of its
authority to release or compromise any particular item or types of property
covered by the Security Documents, and upon at least ten (10) Business Days
prior written request by Borrower, Administrative Agent shall (and is hereby
irrevocably authorized by Lenders to) execute such documents as may be necessary
to evidence the release or compromise of the Liens granted to Administrative
Agent, for the benefit of Administrative Agent and Lenders, upon such
Collateral, provided that (i) Administrative Agent shall not be required to
--------
execute any such document on terms which, in Administrative Agent's opinion,
would expose Administrative Agent to liability or create any obligation or
entail any consequence other than the release or compromise of such Liens
without recourse or warranty, and (ii) such release or compromise shall not in
any manner discharge, affect or impair the Obligations or any Liens upon (or
obligations of Borrower, in respect of), all interests retained by Borrower in
the Collateral, including the proceeds of any sale or other disposition of
Collateral, all of which shall continue to constitute part of the property
covered by the Security Documents.
(3) Absence of Duty. Administrative Agent shall have no obligation
---------------
whatsoever to any Lender or any other Person to assure that the property covered
by the Security Documents exists or is owned by Borrower or is cared for,
protected or insured or has been encumbered or that the Liens granted to
Administrative Agent have been properly or sufficiently or lawfully created,
perfected, protected or enforced or are entitled to any particular priority, or
to exercise at all or in any particular manner or under any duty of care,
disclosure or fidelity, or to continue exercising, any of the rights,
authorities and powers granted or available to Administrative Agent in this
Agreement or in any other Loan Document, it being understood and agreed that in
respect of the property covered by the Security Documents or any act, omission
or event related thereto, Administrative Agent may act in any manner it may deem
appropriate, in its discretion, given Administrative Agent's own interest in
property covered by the Security Documents as one of the Lenders and that
Administrative Agent shall have no duty or liability whatsoever to any of the
other Lenders, provided that Administrative Agent shall exercise the same care
--------
which it would in dealing with loans for its own account.
(J) Agency for Perfection; Enforcement of Security by Administrative
----------------------------------------------------------------
Agent. Administrative Agent and each Lender hereby appoint each other Lender
- -----
as agent for the purpose of perfecting Administrative Agent's security interest
in assets which, in accordance with Article 9 of the Uniform Commercial Code in
---------
any applicable jurisdiction, can be perfected only by possession. Should any
Lender (other than Administrative Agent) obtain possession of any such
61
Collateral, such Lender shall notify Administrative Agent thereof, and, promptly
upon Administrative Agent's request therefor, shall deliver such Collateral to
Administrative Agent or in accordance with Administrative Agent's instructions.
Each Lender agrees that it will not have any right individually to enforce or
seek to enforce any Security Document or to realize upon any collateral security
for the Loans, it being understood and agreed that such rights and remedies may
be exercised only by Administrative Agent.
(K) Dissemination of Information. Administrative Agent will use
----------------------------
its best efforts to provide Lenders with any information received by
Administrative Agent from Borrower which is required to be provided to a Lender
hereunder, provided that Administrative Agent shall not be liable to Lenders for
--------
any failure to do so, except to the extent that such failure is attributable to
Administrative Agent's gross negligence or willful misconduct.
8.3 Amendments, Consents and Waivers for Certain Actions.
----------------------------------------------------
(A) Except as otherwise provided in this Agreement (including this
Subsection 8.3 and Subsection 9.2), any Lender Addition Agreement or any other
Loan Document, the consent of Requisite Lenders and Borrower will be required to
amend, modify, terminate, or waive any provision of this Agreement or any of the
other Loan Documents.
(B) In the event Administrative Agent requests the consent of a Lender
and does not receive a written consent or denial thereof within ten (10)
Business Days after such Lender's receipt of such request, then such Lender will
be deemed to have denied the giving of such consent.
8.4 Disbursement of Funds. Administrative Agent shall advise each
---------------------
Lender by telephone or telecopy of the amount of such Lender's Pro Rata Share of
any Loan requested by Borrower no later than 11:00 a.m. (Denver time) on the
Funding Date applicable thereto, and each such Lender shall pay Administrative
Agent such Lender's Pro Rata Share of such requested Loan, in same day funds, by
wire transfer to Administrative Agent's account by no later than 1:00 p.m.
(Denver time) on such Funding Date. If any Lender fails to pay the amount of its
Pro Rata Share forthwith upon Administrative Agent's demand, Administrative
Agent shall promptly notify Borrower, and Administrative Agent shall disburse to
Borrower, by wire transfer of immediately available funds, that portion of such
Loan as to which Administrative Agent has received funds. In such event,
Administrative Agent may, on behalf of any Lender not timely paying
Administrative Agent, disburse funds to Borrower for Loans requested, subject to
the provisions of Subsection 8.5(B). Each such Lender shall reimburse
Administrative Agent on demand for all funds disbursed on its behalf by
Administrative Agent. Nothing in this Subsection 8.4 or elsewhere in this
Agreement or the other Loan Documents, including the provisions of Subsection
8.5, shall be deemed to require Administrative Agent to advance funds on behalf
of any Lender or to relieve any Lender from its obligation to fulfill its
commitments hereunder or to prejudice
62
any rights that Administrative Agent or Borrower may have against any Lender as
a result of any default by such Lender hereunder.
8.5 Disbursements of Advances; Payments.
-----------------------------------
(A) Pro Rata Treatment; Application. Upon receipt by
-------------------------------
Administrative Agent of each payment from Borrower hereunder, other than as
described in the succeeding sentence, Administrative Agent shall credit each
Lender's account with its Pro Rata Share of such payment in accordance with such
Lender's Pro Rata Share and shall wire advice of the amount of such credit to
each Lender. Each payment to Administrative Agent of its fees shall be made in
like manner, but for the account of Administrative Agent.
(B) Availability of Lender's Pro Rata Share.
---------------------------------------
(1) Unless Administrative Agent has been notified by a Lender
prior to a Funding Date of such Lender's intention not to fund its Pro Rata
Share of the Loan amount requested by Borrower, Administrative Agent may assume
that such Lender will make such amount available to Administrative Agent on the
Funding Date. If such amount is not, in fact, made available to Administrative
Agent by such Lender when due, and Administrative Agent disburses funds to
Borrower on behalf of such Lender, Administrative Agent will be entitled to
recover such amount on demand from Borrower, without set-off, counterclaim or
deduction of any kind, with interest thereon at the rate per annum then
applicable to such Loan.
(2) Nothing contained in this Subsection 8.5(B) will be deemed
to relieve a Lender of its obligation to fulfill its commitments or to prejudice
any rights Administrative Agent or Borrower may have against such Lender as a
result of any default by such Lender under this Agreement.
(C) Return of Payments
------------------
(1) If Administrative Agent pays an amount to a Lender under
this Agreement in the belief or expectation that a related payment has been or
will be received by Administrative Agent from Borrower and such related payment
is not received by Administrative Agent, then Administrative Agent will be
entitled to recover such amount from such Lender without set-off, counterclaim
or deduction of any kind.
(2) If Administrative Agent determines at any time that any
amount received by Administrative Agent under this Agreement must be returned to
Borrower or paid to any other Person pursuant to any solvency law or otherwise,
then, notwithstanding any other term or condition of this Agreement,
Administrative Agent will not be required to distribute any portion thereof to
any Lender. In addition, each Lender will repay to Administrative Agent on
demand
63
any portion of such amount that Administrative Agent has distributed to
such Lender, together with interest at such rate, if any, as Administrative
Agent is required to pay to Borrower or such other Person, without set-off,
counterclaim or deduction of any kind.
SECTION 9
MISCELLANEOUS
9.1 Indemnities. Borrower agrees to indemnify, pay, and hold each
-----------
Agent, each Co-Arranger and each Lender and their respective officers,
directors, employees, agents, and attorneys (the "Indemnities") harmless from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits and claims of any kind or nature whatsoever that may
be imposed on, incurred by, or asserted against the Indemnitee as a result of
its being a party to this Agreement; provided, that Borrower shall have no
--------
obligation to an Indemnitee hereunder with respect to liabilities arising from
the gross negligence or willful misconduct of that Indemnitee as determined by a
court of competent jurisdiction. This Subsection 9.1 and all indemnification
provisions contained within any other Loan Document shall survive the
termination of this Agreement.
9.2 Amendments and Waivers. Except as otherwise provided herein, no
----------------------
amendment, modification, termination or waiver of any provision of this
Agreement, the Notes or any of the other Loan Documents, or consent to any
departure by Borrower therefrom, shall in any event be effective unless the same
shall be in writing and signed by Borrower and Requisite Lenders (or
Administrative Agent, if expressly set forth herein, in any Note or in any other
Loan Document); provided, that except to the extent permitted by any applicable
--------
Lender Addition Agreement, no amendment, modification, termination or waiver
shall, unless in writing and signed by all Lenders, do any of the following: (i)
increase any Lender's Pro Rata Share of either Loan Commitment; (ii) reduce the
principal of, rate of interest on or fees payable with respect to any Loan;
(iii) extend the Expiration Date or extend the date on which any Obligation is
to be paid; (iv) change the aggregate unpaid principal amount of the Loans; (v)
change the percentage of Lenders which shall be required for Lenders or any of
them to take any action hereunder; (vi) release Collateral (except if the sale
or disposition of such Collateral is permitted under Subsection 8.2 or any other
Loan Document or of any guaranty of the Obligations (except to the extent
expressly contemplated thereby)); (vii) amend or waive this Subsection 9.2 or
the definitions of the terms used in this Subsection 9.2 insofar as the
definitions affect the substance of this Subsection 9.2; or (viii) consent to
the assignment, delegation or other transfer by Borrower of any of its rights
and obligations under any Loan Document; provided, further, that no amendment to
-------- -------
the Sprint Consent and Agreement shall be amended without the consent of Lenders
who have in the aggregate Pro Rata Shares greater than sixty-six percent (66%);
and provided, further, that no amendment, modification, termination or waiver
-------- -------
affecting the rights or duties of Administrative Agent under
64
any Loan Document shall in any event be effective, unless in writing and signed
by Administrative Agent, in addition to Lenders required hereinabove to take
such action. Each amendment, modification, termination or waiver shall be
effective only in the specific instance and for the specific purpose for which
it was given. No amendment, modification, termination or waiver shall be
required for Administrative Agent to take additional Collateral pursuant to any
Loan Document. No amendment, modification, termination or waiver of any
provision of any Note shall be effective without the written concurrence of the
holder of that Note. No notice to or demand on Borrower in any case shall
entitle Borrower to any other or further notice or demand in similar or other
circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this Subsection 9.2 shall be binding upon each
holder of the Notes at the time outstanding, each future holder of the Notes,
and, if signed by Borrower, on Borrower.
9.3 Notices. Any required notice or other communication shall be in
-------
writing addressed to the respective party as set forth below and may be
personally delivered, telecopied, sent by overnight courier service or U.S. mail
and shall be deemed to have been given: (i) if delivered in person, when
delivered; (ii) if delivered by telecopy, on the date of transmission if
transmitted on a Business Day before 2:00 p.m. (Denver time) and otherwise on
the Business Day next succeeding the date of transmission; (c) if delivered by
overnight courier, two (2) days after delivery to the courier properly
addressed; or (d) if delivered by U.S. mail, four (4) Business Days after
deposit with postage prepaid and properly addressed.
Notices shall be addressed as follows:
If to Borrower: US Unwired Inc.
One Lakeshore Drive, Suite 1900
Lake Charles, Louisiana 70602-3709
Attn: Finance Department
Fax No.: 318/439-0769
cc: Thomas G. Henning
Fax No.: 318/497-3479
If to a Lender: To the address set forth on the signature page hereto or
in the applicable Lender Addition Agreement
9.4 Failure or Indulgence Not Waiver; Remedies Cumulative. No failure
-----------------------------------------------------
or delay on the part of Administrative Agent or any Lender to exercise, nor any
partial exercise of, any power, right or privilege hereunder or under any other
Loan Documents shall impair such power, right, or privilege or be construed to
be a waiver of any Default or Event of Default. All rights and remedies
existing hereunder or under any other Loan Document are cumulative to and not
exclusive of any rights or remedies otherwise available.
65
9.5 Marshaling; Payments Set Aside. Neither Administrative Agent nor
------------------------------
any Lender shall be under any obligation to marshal any assets in payment of any
or all of the Obligations. To the extent that Borrower makes payment(s) or
Administrative Agent enforces its Liens or Administrative Agent or any Lender
exercises its right of set-off, and such payment(s) or the proceeds of such
enforcement or set-off is subsequently invalidated, declared to be fraudulent or
preferential, set aside, or required to be repaid by anyone, then to the extent
of such recovery, the Obligations or part thereof originally intended to be
satisfied, and all Liens, rights and remedies therefor, shall be revived and
continued in full force and effect as if such payment had not been made or such
enforcement or set-off had not occurred.
9.6 Severability. The invalidity, illegality, or unenforceability in
------------
any jurisdiction of any provision under the Loan Documents shall not affect or
impair the remaining provisions in the Loan Documents.
9.7 Lenders' Obligations Several; Independent Nature of Lenders' Rights.
-------------------------------------------------------------------
The obligation of each Lender hereunder is several and not joint and no Lender
shall be responsible for the obligation or commitment of any other Lender
hereunder. In the event that any Lender at any time should fail to make a Loan
as herein provided, the Lenders, or any of them, at their sole option, may make
the Loan that was to have been made by the Lender so failing to make such Loan.
Nothing contained in any Loan Document and no action taken by Administrative
Agent or any Lender pursuant hereto or thereto shall be deemed to constitute
Lenders to be a partnership, an association, a joint venture or any other kind
of entity. The amounts payable at any time hereunder to each Lender shall be a
separate and independent debt.
9.8 Headings. Section and Subsection headings are included herein for
--------
convenience of reference only and shall not constitute a part of this Agreement
for any other purposes or be given substantive effect.
9.9 Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND SHALL BE
--------------
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
COLORADO, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
9.10 Successors and Assigns. This Agreement shall be binding upon and inure
----------------------
to the benefit of the parties hereto and their respective successors and assigns
except that Borrower may not assign its rights or obligations hereunder without
the written consent of all Lenders.
9.11 No Fiduciary Relationship. No provision in the Loan Documents and no
-------------------------
course of dealing between the parties shall be deemed to create any fiduciary
duty owing to Borrower by any Agent, Co-Arranger or Lender.
66
9.12 Construction. Each Agent, each Co-Arranger, each Lender and
------------
Borrower acknowledge that each of them has had the benefit of legal counsel of
its own choice and has been afforded an opportunity to review the Loan Documents
with its legal counsel and that the Loan Documents shall be constructed as if
jointly drafted by each Agent, each Co-Arranger, each Lender and Borrower.
9.13 Confidentiality. Agents, Co-Arrangers and Lenders agree to hold
---------------
any confidential information that they may receive from Borrower and its
Subsidiaries pursuant to this Agreement in confidence, except for disclosure:
(i) on a confidential basis to legal counsel, independent public accountants and
other professional advisors of Agents, Co-Arrangers or Lenders; (ii) to
regulatory officials having jurisdiction over Agents, Co-Arrangers or Lenders;
(iii) as required by Applicable Law or legal process or (iv) in connection with
any legal proceeding between Agents, Co-Arrangers or Lenders and Borrower
(provided that, in the event Agents, Co-Arrangers or Lenders are so required to
disclose such confidential information pursuant to clauses (iii) or (iv) of this
Subsection 9.13, Agents, Co-Arrangers or Lenders shall promptly notify Borrower,
so that Borrower or any of its Subsidiaries may seek a protective order or other
appropriate remedy); and (v) to another Person in connection with a disposition
or proposed disposition to that Person of all or part of that Lender's interests
hereunder or a participation interest in its Pro Rata Share, provided that such
disclosure is made subject to an appropriate confidentiality agreement on terms
substantially similar to this Subsection 9.13. For purposes of the foregoing,
"confidential" information" shall mean all information respecting Borrower or
its Subsidiaries, other than (A) information previously filed by Borrower or any
of its Subsidiaries with any Governmental Authority and available to the public,
and (B) information previously published in any public medium from a source
other than, directly or indirectly, Lenders.
9.14 Consent to Jurisdiction and Service of Process. (A) BORROWER HEREBY
----------------------------------------------
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL COURT OR COLORADO STATE COURT IN THE STATE OF COLORADO HAVING SUBJECT
MATTER JURISDICTION OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
ANY LOAN DOCUMENTS. BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT,
PERSONAL JURISDICTION OF ANY SUCH COURT OR THAT SUCH COURT IS AN INCONVENIENT
FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF ADMINISTRATIVE AGENT OR ANY
LENDER TO BRING PROCEEDINGS AGAINST BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION.
(B) BORROWER HEREBY AGREES THAT SERVICE OF THE SUMMONS AND COMPLAINT AND
ALL OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH
67
SUIT, ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING BY REGISTERED MAIL A COPY
OF SUCH PROCESS TO BORROWER AT THE ADDRESS TO WHICH NOTICES TO BORROWER ARE THEN
TO BE SENT PURSUANT TO SUBSECTION 9.3 AND THAT PERSONAL SERVICE OF PROCESS SHALL
NOT BE REQUIRED. NOTHING HEREIN SHALL BE CONSTRUED TO PROHIBIT SERVICE OF
PROCESS BY ANY OTHER METHOD PERMITTED BY LAW.
9.15 Waiver of Jury Trial. BORROWER, EACH AGENT, EACH CO-ARRANGER AND
--------------------
EACH LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER
LOAN DOCUMENTS, OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS LOAN TRANSACTION AND ANY LENDER/BORROWER RELATIONSHIP THAT IS BEING
ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY
AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT
MATTER OF THIS TRANSACTION, INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
BORROWER, EACH AGENT, EACH CO-ARRANGER AND EACH LENDER ACKNOWLEDGE THAT THIS
WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH
HAS ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH
WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. BORROWER,
EACH AGENT, EACH CO-ARRANGER AND EACH LENDER FURTHER WARRANT AND REPRESENT THAT
EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY
AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THE LOAN DOCUMENTS, OR TO ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS. IN THE EVENT OF LITIGATION, THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT. BORROWER,
EACH AGENT, EACH CO-ARRANGER AND EACH LENDER ALSO WAIVE ANY BOND OR SURETY OR
SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF EACH
AGENT, EACH CO-ARRANGER AND EACH LENDER.
9.16 Survival of Warranties and Certain Agreements. All agreements,
---------------------------------------------
representations and warranties made herein shall survive the execution and
delivery of this Agreement, the making of the Loans, and the execution and
delivery of the Notes. Notwithstanding anything in this Agreement or implied by
law to the contrary, the agreements of Borrower set forth in Subsections
68
1.4 (D), 1.11, 9.1, 9.14 and 9.15 shall survive the payment of the Loans and the
termination of this Agreement.
9.17 Entire Agreement. This Agreement, the Notes and the other Loan
----------------
Documents referred to herein embody the final, entire agreement among the
parties hereto and supersede any and all prior commitments, agreements,
representations, understandings, whether oral or written, relating to the
subject matter hereof and may not be contradicted or varied by evidence of
prior, contemporaneous or subsequent oral agreements or discussions of the
parties hereto.
9.18 Counterparts; Effectiveness. This Agreement and any amendments,
---------------------------
waivers, consents or supplements may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all of which
counterparts together shall constitute but one and the same instrument. This
Agreement shall become effective upon the execution of a counterpart hereof by
each of the parties hereto.
SECTION 10
DEFINITIONS
10.1 Certain Defined Terms. The terms defined below are used in this
---------------------
Agreement as so defined. Terms defined in the preamble and recitals to this
Agreement are used in this Agreement as so defined.
"Adjusted Quarterly Interest Coverage Ratio" means the ratio derived by
dividing (i) Annualized Operating Cash Flow as of the end of the then most
recently completed fiscal quarter by (ii) cash interest expense during the then
most recently completed four fiscal quarters.
"Adjustment Date" means each date which is the fifth Business Day after the
receipt by Administrative Agent of (i) each Compliance Certificate delivered by
Borrower pursuant to Subsection 4.10(C) and (ii) in the case a decrease in an
applicable margin is warranted, a written notice from Borrower to decrease such
margin.
"Administrative Agent" means CoBank in its capacity as administrative agent
for Lenders under this Agreement and each of the other Loan Documents and any
successor in such capacity appointed pursuant to Subsection 8.2.
"Affiliate" means any Person: (i) directly or indirectly controlling,
controlled by, or under common control with, Borrower or any of its Restricted
Subsidiary; (ii) directly or indirectly owning or holding five percent (5%) or
more of any equity interest in Borrower or any of its
69
Restricted Subsidiary; or (iii) five percent (5%) or more of whose voting stock
or other equity interest is directly or indirectly owned or held by Borrower or
any of its Restricted Subsidiary. For purposes of this definition, "control"
(including with correlative meanings, the terms "controlling," "controlled by"
and "under common control with") means the possession directly or indirectly of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities or by contract or
otherwise.
"Agents" means, collectively, Administrative Agent, Documentation Agent and
Syndication Agent.
"Agreement" means this Credit Agreement (including all schedules and
exhibits hereto), as amended and supplemented from time to time as permitted
herein.
"Annualized Operating Cash Flow" means, as of any date, (i) Operating Cash
Flow for the two (2) most recently completed fiscal quarters multiplied by (ii)
----------
two (2).
"Applicable Commitment Fee Percentage" means, from time to time, a per
annum percentage equal to (i) 1.500% per annum, if the outstanding balance of
all Loans is less than or equal to 33.33% of the sum of the Term Loan Commitment
and the Revolving Loan Commitment, (ii) 1.250% per annum if the outstanding
balance of all Loans is greater than 33.33%, but less than or equal to 50%, of
the sum of the Term Loan Commitment and the Revolving Loan Commitment, and (iii)
1.000% per annum if the outstanding balance of all Loans is greater than 50% of
the Term Loan Commitment and the Revolving Loan Commitment, in each case as the
Term Loan Commitment shall be adjusted to reflect repayments and prepayments and
as the Revolving Loan Commitment shall be adjusted to reflect mandatory and
voluntary reductions.
"Applicable Law" shall mean, in respect of any Person, all provisions of
constitutions, statutes, rules, regulations and orders of governmental bodies or
regulatory agencies applicable to such Person, including the Licenses, the
Communications Act and all Environmental Laws, and all orders, decisions,
judgments and decrees of all courts and arbitrators in proceedings or actions to
which the Person in question is a party or by which it is bound.
"Asset Disposition" means the disposition, whether by sale, lease,
transfer, loss, damage, destruction, condemnation or otherwise, by Borrower or
any of its Restricted Subsidiaries, of any of the following: (i) any of the
capital stock or the ownership interests of any of its Subsidiaries or (ii) any
or all of its assets, other than sales of inventory in the ordinary course of
business, sales of Cash Equivalents for fair value and sales by LA Unwired of
Licenses not covering the Service Areas.
"Available Revolving Loan Commitment" means, at any time, the lesser of (i)
the Revolving Loan Commitment as it may have been reduced pursuant to this
Agreement, minus the
-----
70
aggregate principal balance of Revolving Loans then outstanding, (ii) the
product of Total Vendor Purchases multiplied by 1.6, or (iii) the sum of the
---------- --
Total Vendor Purchases plus $43,333,333, minus, in the case of clauses (ii) and
---- -----
(iii), the sum of $50,000,000 plus the aggregate principal balance of all
----
Revolving Loans then outstanding.
"Available Term Loan Commitment" means, at any time, the lesser of (i) the
Term Loan Commitment or (ii) the product of the Total Vendor Purchases
multiplied by 1.6, minus, in either case, the aggregate principal amount of Term
- ---------- -- -----
Loans advanced.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy," as amended from time to time or any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect and all rules and
regulations promulgated thereunder.
"Base Rate" means a variable rate of interest per annum equal, on any day,
to the higher of (i) First Union's Prime Rate or (ii) the Federal Funds Rate
plus 0.50%.
- ----
"Base Rate Loans" means, at any time, the aggregate amount of all Loans
then bearing interest at the rate determined by reference to the Base Rate.
"Base Rate Margin" means the applicable percent per annum determined in
accordance with Subsection 1.2(B).
"Borrower Pledge Agreements" means, collectively, the membership interest
security agreement and the stock pledge agreement dated as of even date
herewith, each executed by Borrower in favor of Administrative Agent, for the
benefit of itself and Lenders, in form and content approved by Agents, pursuant
to which Borrower has pledged, as security for the Obligations, on a first
priority basis, all membership and equity interests, respectively, in LA Unwired
and Unwired Telecom that it now owns or may hereafter acquire, as such
agreements may be amended and supplemented from time to time.
"Business Day" means (i) for all purposes other than as covered by clause
(ii) below, any day excluding Saturday, Sunday and any day which is a legal
holiday under the laws of the State of Colorado, or is a day on which banking
institutions located in such state are closed or which the Federal Reserve Banks
are closed, and (ii) with respect to all notices, determinations, fundings and
payments in connection with LIBOR Loans, any day that is a Business Day
described in clause (a) above and that is also a day for trading by and between
banks in U.S. dollar deposits in the applicable interbank LIBOR market.
"Calculation Period" means each period commencing on each Adjustment Date
and ending on the day preceding each subsequent Adjustment Date.
71
"Cameron Pledge Agreement" means the membership interest security agreement
dated as of even date herewith, executed by Cameron Communications Corporation
in favor of Administrative Agent, for the benefit of itself and Lenders, in form
and content approved by Agents, pursuant to which Cameron Communications
Corporation has pledged, as security for the Obligations, on a first priority
basis, all membership interests in LA Unwired that it now owns or may hereafter
acquire, as such agreement may be amended and supplemented from time to time.
"Cash Equivalents" means: (i) marketable direct obligations issued or
unconditionally guarantied by the United States Government or issued by any
agency thereof, in each case maturing within one (1) year from the date of
acquisition thereof; (ii) commercial paper maturing no more than one (1) year
from the date issued and, at the time of acquisition, having a rating of at
least A-1 from Standard & Poor's Rating Service or at least P-1 from Moody's
Investors Service, Inc.; (iii) certificates of deposit or bankers' acceptances
maturing within one (1) year from the date of issuance thereof issued by, or
overnight reverse repurchase agreements from, any commercial bank organized
under the laws of the United States of America or any state thereof or the
District of Columbia having combined capital and surplus of not less than
$500,000,000; and (iv) time deposits maturing no more than thirty (30) days from
the date of creation thereof with commercial banks having membership in the
Federal Deposit Insurance Corporation in amounts at any one such institution not
exceeding the lesser of $100,000 or the maximum amount of insurance applicable
to the aggregate amount of Borrower's deposits at such institution.
"Closing Date" means October 28, 1999.
"Co-Arranger" and "Co-Arrangers" mean, individually, each of First Union
Capital Markets Corp. and BNY Capital Markets, Inc., each in their capacity as
Co-Arrangers, and collectively, both such entities.
"Collateral" means, collectively: (i) all "Collateral" as defined in the
Security Documents; (ii) all real property and interests in real property
mortgaged pursuant to the Security Documents; and (iii) any property or interest
provided in addition to or in substitution for any of the foregoing.
"Collateral Contract Assignments" means, collectively, all collateral
assignments of Material Contracts, in form and content approved by
Administrative Agent, executed by Borrower and each Subsidiary Guarantor in
favor of Administrative Agent, for the benefit of itself and Lenders, as
required pursuant to Subsection 2.9, as amended and supplemented from time to
time.
"Command Connect" means Command Connect, LLC, a Louisiana limited liability
company, and its successors and assigns.
72
"Communications Act" shall mean the Communications Act of 1934, as amended
and any similar or successor federal statute, and the rules and regulations of
the FCC thereunder, all as the same may be in effect from time to time.
"Contingent Obligation," as applied to any Person, means any direct or
indirect liability of that Person: (i) with respect to any indebtedness, lease,
dividend or other obligation of another Person if the primary purpose or intent
of the Person incurring such liability, or the primary effect thereof, is to
provide assurance to the obligee of such liability that such liability will be
paid or discharged, or that any agreements relating thereto will be complied
with, or that the holders of such liability will be protected (in whole or in
part) against loss with respect thereto; (ii) with respect to any letter of
credit issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings; or (iii) under any foreign
exchange contract, currency swap agreement, interest rate swap agreement or
other similar agreement or arrangement designed to alter the risks of that
Person arising from fluctuations in currency values or interest rates.
Contingent Obligations shall also include (a) the direct or indirect guaranty,
endorsement (other than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with recourse by such
Person of the obligation of another, (b) the obligation to make take-or-pay or
similar payments if required regardless of nonperformance by any other party or
parties to an agreement, and (c) any liability of such Person for the
obligations of another through any agreement to purchase, repurchase or
otherwise acquire such obligation or any property constituting security
therefor, to provide funds for the payment or discharge of such obligation or to
maintain the solvency, financial condition or any balance sheet item or level of
income of another. The amount of any Contingent Obligation shall be equal to
the amount of the obligation so guaranteed or otherwise supported or, if not a
fixed and determined amount, the maximum amount so guaranteed.
"Default" means a condition or event that, after notice or lapse of time or
both, would constitute an Event of Default if that condition or event were not
cured or removed within any applicable grace or cure period.
"Documentation Agent" means The Bank of New York in its capacity as
Documentation Agent.
"EBITDA" means, as of any fiscal quarter-end, net income for the trailing
four-quarter period, plus interest expense paid or accrued during such period
----
plus any non-cash charges for such period and minus net interest income for such
- ---- -----
period, to the extent included in determining net income, and minus any non-cash
-----
gains for such period, but excluding depreciation and amortization expense to
the extent deducted during such period in calculating net income.
"Environmental Laws" shall mean all applicable federal, state or local
laws, statutes, rules, regulations or ordinances, codes, common law, consent
agreements, orders, decrees, judgments
73
or injunctions issued, promulgated, approved or entered thereunder relating to
public health, safety or the pollution or protection of the environment,
including those relating to releases, discharges, emissions, spills, leaching,
or disposals to air, water, land or ground water, to the withdrawal or use of
ground water, to the use, handling or disposal of polychlorinated biphenyls,
asbestos or urea formaldehyde, to the treatment, storage, disposal or management
of hazardous substances (including petroleum, crude oil or any fraction thereof,
or other hydrocarbons), pollutants or contaminants, to exposure to toxic,
hazardous or other controlled, prohibited, or regulated substances, including
any such provisions under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C. (S) 9601 et seq.), or the
-- ---
Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. (S) 6901
et seq.).
- -- ---
Excess Cash Flow" means, for any fiscal year, (i) Operating Cash Flow for
such year minus (ii) the sum of (a) Fixed Charges plus (b) net changes in
----- ----
working capital for such year.
"Expiration Date" means the earlier of (i) the suspension (subject to
reinstatement) of the Lenders' obligations to make Loans pursuant to Subsection
6.2, (ii) the acceleration of the Obligations pursuant to Subsection 6.3 or
(iii) September 30, 2007.
"Facilities" means, collectively, the Revolving Loan Facility and the Term
Loan Facility.
"FCC" shall mean the Federal Communications Commission, or any other
similar or successor agency of the federal government administering the
Communications Act.
"Federal Funds Rate" shall mean, for any day, the rate of interest per
annum (rounded upward, if necessary, to the nearest whole multiple of 1/100 of
1%) equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day, provided that (i) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day and (ii) if no such rate is so
published on the next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Administrative Agent on such day on such
transactions as determined by Administrative Agent.
"First Union's Prime Rate" means, at any time, the rate of interest per
annum then in effect publicly announced from time to time by First Union
National Bank as its prime rate. Each change in the Prime Rate shall be
effective as of the opening of business on the day such change occurs. The
parties hereto acknowledge that First Union's Prime Rate is an index or base
rate and shall not necessarily be First Union National Bank's lowest or best
rate charged to its customers or other banks.
74
"Fixed Charge Coverage Ratio" means the ratio derived by dividing (i)
Operating Cash Flow by (ii) Fixed Charges, in each case calculated for the then
most recently completed previous four (4) fiscal quarters.
"Fixed Charges" means the sum of (i) scheduled principal payments
(including any principal paid pursuant to scheduled reductions in commitments to
lend), (ii) cash interest expense, (iii) cash taxes, and (iv) capital
expenditures.
"GAAP" means generally accepted accounting principles as set forth in
statements from Auditing Standards No. 69 entitled "The Meaning of `Present
Fairly in Conformance with Generally Accepted Accounting Principles in the
Independent Auditors Reports'" issued by the Auditing Standards Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board that are applicable
to the circumstances as of the date of determination; provided, however, that
when used with respect to any item that is to be calculated for Borrower and its
Restricted Subsidiaries on a consolidated basis, "GAAP" shall not be
interpreted to require or permit the consolidation of all or any part of any
Subsidiary that is not a Restricted Subsidiary.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities, including all Licenses.
"Governmental Authority" means any nation, province, or state or any
political subdivision of any of the foregoing, and any government or any Person
exercising executive, legislative, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing, including the FCC and any PUC.
"Guarantors" means, collectively, the Subsidiary Guarantors and the Vendor
Guarantor.
"Indebtedness," as applied to any Person, means, without duplication: (i)
all indebtedness for borrowed money; (ii) that portion of obligations with
respect to capital leases or other capitalized agreements that is properly
classified as a liability on a balance sheet in conformity with GAAP; (iii)
notes payable and drafts accepted representing extensions of credit whether or
not representing obligations for borrowed money; (iv) any obligation owed for
all or any part of the deferred purchase price of property or services, except
trade payables arising in the ordinary course of business not more than ninety
(90) days past due; (v) all indebtedness secured by any Lien on any property or
asset owned or held by that Person regardless of whether the indebtedness
secured thereby shall have been assumed by that Person or is nonrecourse to the
credit of that Person, but only to the extent of the fair value of such property
or asset; (vi) fixed rate hedging obligations that are due (after giving effect
to any period of grace or notice requirement applicable
75
thereto) and remain unpaid; (vii) obligations with respect to principal under
Contingent Obligations for the repayment of money or the deferred purchase price
of property, whether or not then due and payable (calculated as the amount of
such principal); and (viii) obligations under partnership, organizational or
other agreements to fund capital contributions or other equity calls with
respect to any Person or investment, or to redeem, repurchase or otherwise make
payments in respect to capital stock or other securities of such Person.
"Indebtedness to POP Ratio" means the ratio delivered by dividing (i)
Indebtedness by (ii) POP.
--
"Investment" means (i) any direct or indirect purchase or other acquisition
by Borrower or any of its Restricted Subsidiaries of any beneficial interest in,
including stock, partnership interest or other equity securities of, any other
Person; and (ii) any direct or indirect loan, advance, guarantee, assumption of
liability or other obligation of liability, or capital contribution by Borrower
or any of its Restricted Subsidiaries to any other Person, including all
indebtedness and accounts receivable from that other Person that are not current
assets or did not arise from sales to that other Person in the ordinary course
of business. The amount of any Investment shall be the original cost of such
Investment plus the cost of all additions thereto, without any adjustments for
----
increases or decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment.
"IRC" means the Internal Revenue Code of 1986, as amended from time to time
and all rules and regulations promulgated thereunder.
"LA Unwired" means Louisiana Unwired, LLC, a Louisiana limited liability
company, and its successors and assigns.
"LA Unwired Pledge Agreement" means the partnership interest security
agreement dated as of even date herewith, executed by LA Unwired in favor of
Administrative Agent, for the benefit of itself and Lenders, in form and content
approved by Agents, pursuant to which LA Unwired has pledged, as security for
the Obligations, on a first priority basis, all partnership interests in Texas
Unwired that it now owns or may hereafter acquire, as such agreement may be
amended and supplemented from time to time.
"Lender" or "Lenders" means one or more of the banks identified as Lenders
in the first paragraph of this Agreement and their successors and permitted
assigns pursuant to Subsection 8.1.
"Lender Addition Agreement" means an agreement among Administrative Agent,
a Lender and such Lender's assignee regarding their respective rights and
obligations with respect to
76
assignments of the Loans, the Loan Commitments and other interests under this
Agreement and the other Loan Documents.
"LIBOR" means for each applicable Interest Period, a fixed annual rate
equal to: (a) the rate of interest determined by Administrative Agent at which
deposits in U.S. dollars for the relevant Interest Period are offered based on
information presented by the Telerate Service as quoted by the British Bankers
Association as of 11:00 a.m. (London time) on the day which is two (2) Business
Days prior to the first day of such Interest Period, provided, that in the event
--------
British Bankers Association ceases to provide such quotations (as determined by
Administrative Agent), then Administrative Agent will notify Borrower and Agents
and Borrower will agree upon a substitute basis for obtaining such quotations,
divided by (b) a number equal to 1.0 minus the aggregate (but without
- ------- -----
duplication) of the rates (expressed as a decimal fraction) of reserve
requirements in effect on the day which is two (2) Business Days prior to the
beginning of such Interest Period for Eurocurrency funding (currently referred
to as "Eurocurrency Liabilities" in Regulation D of such Board) which are
required to be maintained by a member bank of the Federal Reserve System
(including, without limitation, basic, supplemental, marginal and emergency
reserves under any regulations of the Board of Governors of the Federal Reserve
System or other Governmental Authority having jurisdiction with respect thereto,
as now and from time to time in effect); such rate to be rounded upward to the
next whole multiple of one-sixteenth of one percent (0.0625%).
"LIBOR Loans" means Loans accruing interest at rates determined by
reference to the LIBOR.
"LIBOR Margin" means the applicable percent per annum determined in
accordance with Subsection 1.2(B).
"Licenses" shall mean any cellular telephone, microwave, personal
communications or other telecommunications or similar license, authorization,
waiver, certificate of compliance, franchise, approval or permit, whether for
the acquisition, construction or operation of any Wireless System, granted or
issued by the FCC or any applicable PUC and held by Borrower or any of its
Restricted Subsidiaries, all of which are listed as of the Closing Date on
Schedule 10.1(A).
- ----------------
"Lien" means any lien, mortgage, pledge, security interest, charge or
encumbrance of any kind, whether voluntary or involuntary (including any
conditional sale or other title retention agreement and any lease in the nature
thereof), and any agreement to give any lien, mortgage, pledge, security
interest, charge or encumbrance.
"Loan" or "Loans" means an advance or advances under the Revolving Loan
Commitment or the Term Loan Commitment.
77
"Loan Commitment" and "Loan Commitments" mean, individually, each of the
Revolving Loan Commitment and the Term Loan Commitment, and collectively, the
Revolving Loan Commitment and the Term Loan Commitment, as each such commitment
is reduced from time to time as provided in this Agreement.
"Loan Documents" means this Agreement, the Notes, the Security Documents,
the Sprint Consent and Agreement and all other instruments, documents and
agreements executed by or on behalf of Borrower and delivered concurrently
herewith or at any time hereafter to or for the benefit of Administrative Agent
or any Lender in connection with the Loans and other transactions contemplated
by this Agreement, all as amended, supplemented or modified from time to time.
"Material Adverse Effect" means (i) a material adverse effect upon the
business, operations, properties, assets or condition (financial or otherwise)
of Borrower, any of its Restricted Subsidiaries or Vendor Guarantor or (ii) the
impairment of the ability of Borrower, any of its Restricted Subsidiaries or
Vendor Guarantor to perform its obligations under any Loan Document to which it
is a party or of Administrative Agent or any Lender to enforce any Loan Document
or collect any of the Obligations. In determining whether any individual event
could reasonably be expected to have a Material Adverse Effect, notwithstanding
that such event does not of itself have such effect, a Material Adverse Effect
shall be deemed to have occurred if the cumulative effect of such event and all
other then existing events could reasonably be expected to have a Material
Adverse Effect.
"Material Contracts" means (a) any contract or any other agreement, written
or oral, of Borrower or any of its Restricted Subsidiaries involving monetary
liability of or to any such Person in an amount in excess of $500,000 per annum
and (b) any other contract or agreement, written or oral, of Borrower or any of
its Restricted Subsidiaries the failure to comply with which could reasonably be
expected to have a Material Adverse Effect; provided, however, that any contract
or agreement which is terminable by a party other than Borrower or any of its
Restricted Subsidiaries without cause upon notice of ninety (90) days or less
shall not be considered a Material Contract.
"Meretel Communications" means Meretel Communications Limited Partnership,
a Louisiana partnership in condendum, and its successors and assigns.
"Mortgages" means, collectively, the Mortgages, each dated as of even date
herewith, in form and content approved by Agents, executed by LA Unwired and
Unwired Telecom in favor of Administrative Agent, for the benefit of itself and
Lenders, encumbering all interests now owned or hereafter acquired by LA Unwired
or Unwired Telecom in real property situated in the States of Louisiana, Texas
and Arkansas, as amended and supplemented from time to time.
78
"Negative Pledge Agreement" means the negative pledge agreement, dated as
of even date herewith, executed by William L. Henning, Sr., William L. Henning,
Jr., Thomas G. Henning and John A. Henning in favor of Administrative Agent, for
the benefit of itself and Lenders, in form and content approved by Agents,
pursuant to which such persons have agreed, as security for the Obligations, not
to create any pledges or liens on, or security interests in, or to otherwise
encumber, their respective equity interests in Borrower, except for liens,
pledges, security interests or encumbrances in favor of the Administrative
Agent, for the benefit of itself and Lenders, as such agreement may be amended
or supplemented from time to time.
"Net Proceeds" means cash proceeds received by Borrower or any of its
Restricted Subsidiaries from any Asset Disposition (including insurance
proceeds, awards of condemnation, and payments under notes or other debt
securities received in connection with any Asset Disposition), net of (i) the
costs of such sale, lease, transfer or other disposition (including taxes
attributable to such sale, lease or transfer) and (ii) amounts applied to
repayment of Indebtedness (other than the Obligations) secured by a Lien on the
asset or property disposed.
"Note" or "Notes" means one or more of the Revolving Notes and the Term
Notes.
"Obligations" means all obligations, liabilities and indebtedness of every
nature of Borrower from time to time owed to Administrative Agent or any Lender
under the Loan Documents including the principal amount of all debts, claims and
indebtedness, accrued and unpaid interest and all fees, costs and expenses,
whether primary, secondary, direct, contingent, fixed or otherwise, heretofore,
now and/or from time to time hereafter owing, due or payable whether before or
after the filing of a proceeding under the Bankruptcy Code by or against
Borrower, any of its Restricted Subsidiaries or Vendor Guarantor.
"Omnibus Agreement" means that certain Omnibus Agreement, dated as of
September 7, 1999, among Borrower, EATELCORP, Inc., Fort Bend Telephone Company,
XIT Leasing, Inc., Wireless Management Corporation, Meretel Communications
Limited Partnership and Meretel Wireless, Inc., relating to the formation of
Texas Unwired.
"Operating Cash Flow" means the sum of (i) pre-tax income or deficit, as
the case may be (excluding extraordinary gains and losses, the write up or down
of any asset and interest income), (ii) total interest expense (including non-
cash interest), (iii) depreciation and amortization expense and (iv) taxes,
federal or state, imposed upon income. For any period of calculation, Operating
Cash Flow shall be adjusted to give effect to any acquisition, sale or other
disposition of any operation or business (or any portion thereof) during the
period of calculation as if such acquisition, sale or other disposition occurred
on the first day of such period of calculation.
79
"PCS System" shall mean any broadband personal communications services
telecommunications system operating on radio spectrum at 1800 MHZ or a License
to operate such a system.
"PCS" means personal communications services operations on radio spectrum
at 1800 MHZ.
"Permitted Encumbrances" means the following:
(1) Liens for taxes, assessments or other governmental charges not yet
due and payable unless the same are being diligently contested in good faith and
by appropriate proceedings and then only if and to the extent that adequate
reserves therefor are maintained in accordance with GAAP;
(2) statutory Liens of landlords, carriers, warehousemen, mechanics,
materialmen and other similar liens imposed by law, which are incurred in the
ordinary course of business for sums not more than sixty (60) days delinquent or
which are being contested in good faith; provided that a reserve or other
--------
appropriate provision shall have been made therefor and the aggregate amount of
liabilities secured by such Liens is less than $100,000;
(3) Liens incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other types
of social security (other than any Lien imposed by the Employee Retirement
Income Security Act of 1974 or any rule or regulation promulgated thereunder),
or to secure the performance of tenders, statutory obligations, surety, stay,
customs and appeal bonds, bids, leases, government contracts, trade contracts,
performance and return of money bonds and other similar obligations (exclusive
of obligations for the payment of borrowed money);
(4) deposits, in an aggregate amount not to exceed $100,000, made in
the ordinary course of business to secure liability to insurance carriers;
(5) any attachment or judgment Lien not constituting an Event of
Default under Subsection 6.1(I);
(6) easements, rights of way, restrictions and other similar charges
or encumbrances not interfering in any material respect with the ordinary
conduct of the business of Borrower or any of its Subsidiaries;
(7) Liens in favor of Administrative Agent, for the benefit of
Administrative Agent and Lenders;
80
(8) Liens in favor of CoBank as set forth in Subsection 2.7;
(9) Liens granted in connection with the Indebtedness permitted
pursuant to Subsection 3.1(C)(ii) to the extent such Liens attach only to the
building constructed or acquired with such Indebtedness and associated interests
in real estate, including assignments of or security interests in tenant leases;
(10) Liens in favor of LA Unwired granted by Texas Unwired in
connection with the Indebtedness permitted pursuant to Subsection 3.1(C)(iv);
and
(11) Liens in favor of the Trustee under the Subordinated Debt
Documents granted by LA Unwired in all of its rights in (i) partnership
interests of Texas Unwired that it now or may hereafter acquire, and (ii) the
Indebtedness permitted pursuant to Subsection 3.1(C)(ii) and the documents
evidencing the same such Lien to be fully subordinated to the Lien in favor of
the Administrative Agent, for the benefit of itself and Lenders, on terms and
conditions satisfactory to Administrative Agent.
"Person" means and includes natural persons, corporations, limited
liability companies, limited partnerships, limited liability partnerships,
general partnerships, joint stock companies, joint ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments and agencies and
political subdivisions thereof and their respective permitted successors and
assigns (or in the case of a governmental person, the successor functional
equivalent of such Person).
"Pledge Agreements" means, collectively, the Borrower Pledge Agreements,
the LA Unwired Pledge Agreement, the Unwired Telecom Pledge Agreement and the
Cameron Pledge Agreement.
"POP" means the total number of population equivalents covered by
Borrower's or the Restricted Subsidiary's PCS BTAs (including those BTA's served
pursuant to the Sprint Agreements), as of the Closing Date.
"Preferred Stock" means not less than $50,000,000 and not more than
$55,000,000 of Senior Redeemable Convertible Preferred Stock, Series A, to be
issued by Borrower pursuant to the Preferred Stock Documents.
"Preferred Stock Documents" means, collectively, the Securities Purchase
Agreement between Borrower and The 1818 Fund, L.P., and the related documents
executed in connection therewith, each of which shall be in substantially the
forms of the October 19, 1999 drafts thereof submitted to Agents, with only such
changes as shall be reasonably acceptable to the Agents.
81
"Pro Forma Debt Service Coverage Ratio" means, as of the date of
calculation, the ratio derived by dividing (i) Annualized Operating Cash Flow by
(ii) the sum of: (a) all principal payments scheduled to be made on Indebtedness
(or scheduled reductions in commitments on lines of credit to the extent such
reductions would cause the repayment of principal amounts then outstanding under
such lines) during the next 12 month period plus (b) Pro Forma Interest Expense.
----
"Pro Forma Interest Expense" shall mean, as of the date of calculation, the
interest expense calculated to be due and payable on Indebtedness during the
succeeding 12 month period in accordance with the following formula:
(A+B)/2 x C, whereby:
A = Indebtedness.
B = A minus all principal payments scheduled (or scheduled
reductions in commitments on lines of credit to the
extent such reductions would cause the repayment of
principal amounts outstanding under such lines) to be
made on Indebtedness during the succeeding 12 months.
C = The LIBOR plus the applicable LIBOR Margin for an
----
Interest Period of 3 months, determined as of the date
of calculation.
"Pro Rata Share" means (i) with respect to matters relating to a particular
Loan Commitment, the percentage obtained by dividing (a) the commitment of a
Lender under such Loan Commitment by (b) all commitments of all Lenders under
such Loan Commitment and (ii) with respect to all other matters, including,
without limitation, for purposes of the definition of "Requisite Lenders," the
percentage obtained by dividing (a) the aggregate Total Lender Loan Commitments
of a Lender by (b) the aggregate Total Lender Loan Commitments of all Lenders,
in either case as such percentage may be adjusted by assignments permitted
pursuant to Subsection 8.1; provided, however, if any Loan Commitment is
terminated pursuant to the terms hereof, in lieu of commitments, the calculation
of clauses (i) and (ii) above, as they relate to or include such Loan
Commitment, shall be based on the aggregate amount of such Lender's outstanding
loans related to such Loan Commitment and the aggregate amount of all
outstanding loans related to such Loan Commitment.
"Projections" means, for Borrower and each of its Restricted Subsidiaries,
forecasted; (i) balance sheets; (ii) profit and loss statements; and (iii) cash
flow statements, all prepared on a consistent basis with Borrower's or such
Restricted Subsidiary's historical financial statements, together with
appropriate supporting details and a statement of underlying assumptions. The
82
Projections represent and will represent as of the date thereof the good faith
estimate of Borrower and its senior management concerning the most probable
course of its business.
"PUC" means any state, provincial or other local regulatory agency or body
that exercises jurisdiction over the rates or services or the ownership,
construction or operation of any Wireless System or long distance
telecommunications systems or over Persons who own, construct or operate a
Wireless System or long distance telecommunications systems, in each case by
reason of the nature or type of the business subject to regulation and not
pursuant to laws and regulations of general applicability to Persons conducting
business in any such jurisdiction.
"Registration Rights Agreement" means the A/B Exchange Registration Rights
Agreement relating to the Subordinated Notes among Borrower, the Unrestricted
Subsidiaries and Donaldson Lufkin & Jenrette Securities Corporation, which shall
be in substantially the form of the October 19, 1999 draft thereof submitted to
Agents, with only such changes as shall be reasonably acceptable to Agents.
"Requisite Lenders" means at least two Lenders who have in the aggregate
Pro Rata Shares greater than fifty-one percent (51.0%).
"Restricted Junior Payment" means: (i) any dividend or other distribution,
direct or indirect, on account of any equity interest in Borrower or any of its
Subsidiaries, including any membership interest and any shares of any class of
stock of Borrower or any of its Subsidiaries now or hereafter outstanding,
except a dividend payable solely in shares of a class of stock to the holders of
that class; (ii) any redemption, conversion, exchange, retirement, sinking fund
or similar payment, purchase or other acquisition for value, direct or indirect,
of any equity interest in Borrower or any of its Subsidiaries, including any
membership interest and any shares of any class of stock of Borrower or any of
its Subsidiaries now or hereafter outstanding; (iii) any payment or prepayment
of interest on, principal of, premium, if any, redemption, conversion, exchange,
purchase, retirement, defeasance, sinking fund or similar payment with respect
to, any Indebtedness subject to subordination provisions for the benefit of
Administrative Agent and Lenders; and (iv) any payment made to retire, or to
obtain the surrender of, any outstanding warrants, options or other rights to
acquire any equity interest in Borrower or any of its Subsidiaries, including
any membership interest and shares of any class of stock of Borrower or any of
its Subsidiaries now or hereafter outstanding; provided that the term
--------
"Restricted Junior Payment" shall not include (a) conversion of the Preferred
Stock in accordance with its terms, (b) adjustments to the Conversion Price (as
defined in the Preferred Stock Documents) pursuant to the terms of the Preferred
Stock, (c) payments of cash not to exceed, in the aggregate, $50,000, in lieu of
fractional shares upon conversion of the Preferred Stock in accordance with its
terms, and (d) issuance and exercise of the Warrants in accordance with the
terms of the Preferred Stock Documents and the Warrants.
83
"Restricted Subsidiaries" means all Subsidiaries of Borrower except the
Unrestricted Subsidiary and Command Connect.
"Revenues per Subscriber" means, as of any date of calculation, total
revenues minus total equipment revenues, each as calculated for the then most
-----
recently completed six fiscal months, divided by the average number of
----------
Subscribers at each month-end during the most recently completed six fiscal
months.
"Revolving Loan" or "Revolving Loans" means an advance or advances under
the Revolving Loan Commitment.
"Revolving Loan Commitment" means, initially, $80,000,000, as such amount
is reduced from time to time as provided in this Agreement.
"Revolving Loan Facility" means, the revolving loan credit facility
extended to Borrower pursuant to Section 1.1(B).
"Revolving Note" or "Revolving Notes" means one or more of the notes of
Borrower substantially in the form of Exhibit 10.1(A), or any combination
---------------
thereof, and any replacements, restatements, renewals or extensions of any such
notes, in whole or in part.
"Security Agreements" means, collectively, the Security Agreements, each
dated as of even date herewith, in form and content approved by Agents, executed
by Borrower and each Subsidiary Guarantor in favor of Administrative Agent, for
the benefit of itself and Lenders, encumbering all of the personal property of
Borrower and each Subsidiary Guarantor, wherever situated, as amended and
supplemented from time to time.
"Security Documents" means, collectively, all instruments, documents and
agreements executed by or on behalf of Borrower to provide collateral security
with respect to the Obligations, including, without limitation, the Mortgages,
the Security Agreements, the Subsidiary Guaranties, the Pledge Agreements, the
Negative Pledge Agreement, the Vendor Guaranty, the Collateral Contract
Assignments and all instruments, documents and agreements executed pursuant to
the terms of the foregoing.
"Security Interest" shall mean all Liens in favor of Administrative Agent,
for the benefit of itself and Lenders, created hereunder or under any of the
Security Documents to secure the Obligations.
"Senior Indebtedness" means all Indebtedness of Borrower, including without
limitation the Obligations, but excluding the Subordinated Notes.
---------
84
"Senior Leverage Ratio" means, for any period, the ratio determined by
dividing the outstanding amount of all Senior Indebtedness by Annualized
Operating Cash Flow, each as of the last day of such month.
"Service Areas" means the PCS business trading areas (BTAs) described on
Schedule 10.1(B)
- ----------------
"Sprint" means, collectively, Sprint Spectrum L.P., SprintCom, Inc. and
WirelessCo, L.P.
"Sprint Agreements" means, collectively, the two Sprint PCS Management
Agreements, one dated June 8, 1998 and one dated February 8, 1999, between LA
Unwired, and any similar agreement entered into between Texas Unwired and
Sprint, as heretofore amended and supplemented, and related services, trademark,
service mark, and other agreements, as any such agreement may be amended or
supplemented from time to time, and all other agreements entered into between or
among Sprint and LA Unwired or Texas Unwired in connection therewith as they may
be amended or supplemented from time to time.
"Sprint Consent and Agreement" means that certain Consent and Agreement
dated as of October 26, 1999, between Sprint and Administrative Agent and by
Borrower, LA Unwired, Texas Unwired and the other owners of LA Unwired and Texas
Unwired.
"Subordinated Debt Documents" means the Subordinated Note Indenture, the
Subordinated Notes, the Registration Rights Agreement, and any and all other
documents, instruments, certificates, opinions and proceedings related to the
terms, issuance, sale or remarketing of the Subordinated Notes.
"Subordinated Note Indenture" means Indenture among Borrower, the
Restricted Subsidiaries and State Street Bank & Trust Co., as Trustee, pursuant
to which the Subordinated Notes are issued, which shall be in substantially the
form of the October 28, 1999 draft thereof submitted to Agents, with only such
changes as shall be reasonably acceptable to Agents.
"Subordinated Notes" means the Series A Notes and Series B Notes described
in the Subordinated Note Indenture.
"Subscribers" means subscriber units in service in Borrower's or any
Restricted Subsidiary's market that (i) are active in both the switch and
billing subscriber data bases of Borrower or any Restricted Subsidiary, (ii) are
not suspended for any reason, (iii) do not have outstanding any amounts owed to
the Borrower or such Restricted Subsidiary that have been unpaid for more than
90 days after the billing date therefor and (iv) are not demo or employee
accounts.
85
"Subsidiary" means, with respect to any Person, any corporation,
partnership, association or other business entity of which more than fifty
percent (50%) of the total voting power of shares of stock (or equivalent
ownership or controlling interest) entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof.
"Subsidiary Guaranties" means the continuing guaranties, dated as of even
date herewith, in form and content approved by Agents, executed by each
Subsidiary Guarantor in favor of Administrative Agent, for the benefit of itself
and Lenders, as amended and supplemented from time to time.
"Subsidiary Guarantor" means each of LA Unwired and Unwired Telecom.
"Syndication Agent" means First Union Capital Markets Corp., in its
capacity as Syndication Agent.
"Term Loan" or "Term Loans" means an advance or advances under the Term
Loan Commitment.
"Term Loan Availability Expiration Date" means the earlier of (i) the day
which is 364 days after the Closing Date; provided, however, that if such day is
-------- -------
not a Business Day, the Term Loan Availability Expiration Date pursuant to this
clause (i) shall be the Business Day immediately preceding such day, (ii) the
suspension (subject to reinstatement) of the Lenders' obligations to make Loans
pursuant to Subsection 6.2 or (iii) the acceleration of the Obligations pursuant
to Section 6.3.
"Term Loan Commitment" means, initially, $50,000,000, as such amount is
reduced from time to time as provided in this Agreement.
"Term Loan Facility" means, the term loan credit facility extended to
Borrower pursuant to Section 1.1(A).
"Term Note" or "Term Notes" means one or more of the notes of Borrower
substantially in the form of Exhibit 10.1(B), or any combination thereof, and
---------------
any replacements, restatements, renewals or extensions of any such notes, in
whole or in part.
"Texas Unwired" means Texas Unwired, a Louisiana general partnership in
which LA Unwired owns approximately 80% of the partnership interests as of the
date of this Agreement; provided, however, that in determining compliance with
any financial covenant, test or condition contained in this Agreement that is
based on combined or consolidated financial or operating
86
information of Texas Unwired and the Borrower and/or one or more Restricted
Subsidiaries, only the pro rata portion of Texas Unwired's financial or
operating data that is allocable to LA Unwired in accordance with its percentage
ownership of Texas Unwired for the period of computation shall be included.
"Total Lender Loan Commitment" means the aggregate commitments of any
Lender with respect to the Revolving Loan Commitment and the Term Loan
Commitment.
"Total Leverage Ratio" means, for any period, the ratio derived by dividing
all Indebtedness by Annualized Operating Cash Flow, each as of the last day of
--
such month.
"Total Vendor Purchases" means, at the time of any requested advance, the
aggregate purchase price of all equipment and services purchased by Borrower or
any Restricted Subsidiary from Vendor through and including the date of such
advance, including any equipment or services to be paid with the proceeds of
such advance.
"Unrestricted Subsidiary" means LEC Unwired, Inc., a Louisiana corporation,
and its successors and assigns.
"Unwired Telecom" means Unwired Telecom Corp. (formerly known as US Unwired
Inc.), a Louisiana corporation, and its successors and assigns.
"Unwired Telecom Pledge Agreement" means the membership interest pledge
agreement, dated as of even date herewith, executed by Unwired Telecom in favor
of Administrative Agent, for the benefit of itself and Lenders, in form and
content approved by Agents, pursuant to which Unwired Telecom has pledged, as
security for the Obligations, on a first priority basis, all equity interests in
Command Connect it now owns or may hereafter acquire, as amended and
supplemented from time to time.
"Vendor" and "Vendor Guarantor" means Lucent Technologies, Inc.
"Vendor Guaranty" means the continuing guaranty, dated as of even date
herewith, in form and content approved by Agents, executed by Vendor in favor of
Administrative Agent, for the benefit of itself and Lenders, as amended and
supplemented from time to time.
"Warrants" means the Warrants to be issued by the Borrower pursuant to the
Preferred Stock Documents.
"Wireless System" means a cellular mobile radio telephone system, or a PCS
System, and shall include a microwave system or a paging system operated in
connection with (and in the same general service area as) any of the foregoing
systems.
87
10.2 Other Definitional Provisions. References to "Sections,"
-----------------------------
"Subsections," "Exhibits" and "Schedules" shall be to Sections, Subsections,
Exhibits and Schedules, respectively, of this Agreement unless otherwise
specifically provided. Any of the terms defined in Subsection 10.1 may, unless
the context otherwise requires, be used in the singular or the plural depending
on the reference. In this Agreement, "hereof," "herein," "hereto," "hereunder"
and the like mean and refer to this Agreement as a whole and not merely to the
specific section, paragraph or clause in which the respective word appears;
words importing any gender include the other gender; references to "writing"
include printing, typing, lithography and other means of reproducing words in a
tangible visible form; the words "including," "includes" and "include" shall be
deemed to be followed by the words "without limitation"; references to
agreements and other contractual instruments shall be deemed to include
subsequent amendments, assignments, and other modifications thereto, but only to
the extent such amendments, assignments and other modifications are not
prohibited by the terms of this Agreement or any other Loan Document; references
to Persons include their respective permitted successors and assigns or, in the
case of governmental Persons, Persons succeeding to the relevant functions of
such Persons; and all references to statutes and related regulations shall
include any amendments of same and any successor statutes and regulations.
88
Witness the due execution hereof by the respective duly authorized officers
of the undersigned as of the date first written above.
US UNWIRED INC., as Borrower
By:__________________________________
Name:_____________________________
Title:____________________________
Attest:_______________________________
Name:__________________________
Title:_________________________
[Signatures Continued on Following Page]
[Signatures Continued from Previous Page]
Commitment to make Term Loans: COBANK, ACB, as Administrative
$12,820,512.82 Agent and a Lender
Pro Rata Share of Term Loan
Commitment: 25.6410256% By: /s/ Rick L. Freeman
------------------------------
Name: Rick L. Freeman
Commitment to make Revolving Loans: Title: Vice President
$20,512,820.52
Pro Rata Share of Revolving Loan Address: CoBank, ACB
Commitment: 25.6410256% 200 Galleria Parkway, Suite 1900
Atlanta, Georgia 30339
Attention: Rural Utility Banking Group
Total Lender Loan Commitment: Fax: (770) 618-3202
$33,333,333.34
Pro Rata Share of Term Loan
Commitment and Revolving Loan
Commitment: 25.6410256%
[Signatures Continued on Following Page]
[Signatures Continued from Previous Page]
FIRST UNION CAPITAL MARKETS CORP., as
Syndication Agent and a Co-Arranger
By:__________________________________
Name______________________________
Title:____________________________
Address: 301 South College Street,
5th Floor Charlotte, NC 28288-0735
Fax: (704) 374-4092
[Signatures Continued on Following Page]
[Signatures Continued from Previous Page]
Commitment to make Term Loans: THE BANK OF NEW YORK, as Documentation
$12,820,512.82 Agent and a Lender
Pro Rata Share of Term Loan
Commitment: 25.6410256% By:__________________________________
Name:_____________________________
Commitment to make Revolving Title:____________________________
Loans: $20,512,820.51
Address: One Wall Street
Pro Rata Share of Revolving Loan Sixteenth Floor
Commitment: 25.6410256% New York, NY 10286
Fax: (212) 635-8593
Total Lender Loan Commitment: (212) 635-8595
$33,333,333.33
Pro Rata Share of Term Loan
Commitment and Revolving Loan
Commitment: 25.6410256%
[Signatures Continued on Following Page]
[Signatures Continued from Previous Page]
BNY CAPITAL MARKETS, INC.,
as a Co-Arranger
By:__________________________________
Name:_____________________________
Title:____________________________
Address: One Wall Street
Eighteenth Floor
New York, NY 10286
Fax: (212) 635-8059
[Signatures Continued on Following Page]
[Signatures Continued from Previous Page]
Commitment to make Term Loans: FIRST UNION NATIONAL BANK,
$12,820,512.82 as a Lender
Pro Rata Share of Term Loan
Commitment: 25.6410256% By:__________________________________
Name:_____________________________
Commitment to make Revolving Title:____________________________
Loans:$20,512,820.51
Address: First Union National Bank
Pro Rata Share of Revolving Loan 301 South College Street, 5th Floor
Commitment: 25.6410256% Charlotte, North Carolina 28288-0735
Fax: (704) 374-4092
Total Lender Loan Commitment:
$33,333,333.33
Pro Rata Share of Term Loan
Commitment and Revolving Loan
Commitment: 25.6410256%
[Signatures Continued on Following Page]
[Signatures Continued from Previous Page]
Commitment to make Term Loans: THE CIT GROUP/EQUIPMENT
$5,769,230.77 FINANCING, INC., as a Lender
Pro Rata Share of Term Loan By:__________________________________
Commitment: 11.5384615% Name:_____________________________
Title:____________________________
Commitment to make Revolving Loans:
$9,230,769.23 Address:_____________________________
_____________________________________
Pro Rata Share of Revolving Loan Fax:
Commitment: 11.5384615%
Total Lender Loan Commitment:
$15,000,000.00
Pro Rata Share of Term Loan
Commitment and Revolving Loan
Commitment: 11.5384615%
[Signatures Continued on Following Page]
[Signatures Continued from Previous Page]
Commitment to make Revolving: COAST BUSINESS CREDIT,
Loans: $6,153,846.15 a division of SOUTHERN PACIFIC
BANK, as a Lender
Pro Rata Share of Term Loan
Commitment: 7.6923077% By:__________________________________
Name:_____________________________
Commitment to make Term Loans: Title:____________________________
$3,846,153.85
Address:_____________________________
Pro Rata Share of Revolving Loan ______________________________________
Commitment: 7.6923077% Fax:_________________________________
Total Lender Loan Commitment:
$10,000,000.00
Pro Rata Share of Term Loan
Commitment and Revolving Loan
Commitment: 7.6923077%
[Signatures Continued on Following Page]
[Signatures Continued from Previous Page]
Commitment to make Term Loans: CITY NATIONAL BANK (LSA),
$1,923,076.92 as a Lender
Pro Rata Share of Term Loan By:__________________________________
Commitment: 3.8461538% Name:_____________________________
Title:____________________________
Commitment to make Revolving
Loans:$3,076,923.08 Address:_____________________________
_____________________________________
Pro Rata Share of Revolving Loan Fax:__________________________________
Commitment: 3.8461538%
Total Lender Loan Commitment:
$5,000,000.00
Pro Rata Share of Term Loan
Commitment and Revolving Loan
Commitment: 3.8461538%