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CREDIT AGREEMENT
dated as of August 16, 1999
among
AIRGATE PCS, INC.,
as Borrower,
THE LENDERS PARTY HERETO,
STATE STREET BANK AND TRUST COMPANY,
as Collateral Agent
And
LUCENT TECHNOLOGIES INC.,
as Administrative Agent
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.................................................................... 1
SECTION 1.01. Defined Terms......................................................... 1
SECTION 1.02. Classification of Loans and Borrowings................................ 18
SECTION 1.03. Terms Generally....................................................... 19
SECTION 1.04. Accounting Terms; GAAP................................................ 19
ARTICLE II LOANS.......................................................................... 19
SECTION 2.01. Commitments........................................................... 19
SECTION 2.02. Loans and Borrowings.................................................. 19
SECTION 2.03. Requests for Borrowings............................................... 20
SECTION 2.04. Funding of Borrowings................................................. 21
SECTION 2.05. Interest Elections.................................................... 22
SECTION 2.06. Termination, Reduction and Increase of Commitments.................... 23
SECTION 2.07. Repayment of Loans; Evidence of Debt.................................. 24
SECTION 2.08. Amortization of Loans................................................. 25
SECTION 2.09. Prepayment of Loans................................................... 25
SECTION 2.10. Fees.................................................................. 26
SECTION 2.11. Interest.............................................................. 27
SECTION 2.12. Alternate Rate of Interest............................................ 27
SECTION 2.13. Increased Costs....................................................... 28
SECTION 2.14. Break Funding Payments; Prepayment Fees............................... 29
SECTION 2.15. Taxes................................................................. 29
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Setoffs............ 31
SECTION 2.17. Mitigation Obligations; Replacement of Lenders........................ 33
ARTICLE III REPRESENTATIONS AND WARRANTIES................................................. 33
SECTION 3.01. Organization; Powers.................................................. 33
SECTION 3.02. Authorization; Enforceability......................................... 34
SECTION 3.03. Governmental Approvals; No Conflicts.................................. 34
SECTION 3.04. Financial Condition; No Material Adverse Change....................... 34
SECTION 3.05. Properties; Licenses.................................................. 34
SECTION 3.06. Litigation and Environmental Matters.................................. 35
SECTION 3.07. Compliance with Laws, Agreements and Licenses......................... 35
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TABLE OF CONTENTS
(continued)
Page
SECTION 3.08. No Default............................................................ 35
SECTION 3.09. Investment and Holding Company Status................................. 36
SECTION 3.10. Taxes................................................................. 36
SECTION 3.11. ERISA................................................................. 36
SECTION 3.12. Disclosure............................................................ 36
SECTION 3.13. Subsidiaries.......................................................... 36
SECTION 3.14. Insurance............................................................. 37
SECTION 3.15. Labor Matters......................................................... 37
SECTION 3.16. Supply Agreement...................................................... 37
SECTION 3.17. No Burdensome Restrictions............................................ 37
SECTION 3.18. Security Documents.................................................... 37
SECTION 3.19. Year 2000 Compliance.................................................. 38
SECTION 3.20. Sprint Affiliation Agreements......................................... 38
ARTICLE IV CONDITIONS..................................................................... 39
SECTION 4.01. Tranche 1 Loans....................................................... 39
SECTION 4.02. Tranche 2 Loans....................................................... 41
SECTION 4.03. Conditions for Each Loan.............................................. 43
ARTICLE V AFFIRMATIVE COVENANTS.......................................................... 44
SECTION 5.01. Financial Statements and Other Information............................ 44
SECTION 5.02. Notices of Material Events............................................ 46
SECTION 5.03. Information Regarding Collateral...................................... 46
SECTION 5.04. Existence; Conduct of Business........................................ 47
SECTION 5.05. Payment of Obligations................................................ 47
SECTION 5.06. Maintenance of Properties............................................. 47
SECTION 5.07. Insurance............................................................. 47
SECTION 5.08. Books and Records; Inspection Rights.................................. 49
SECTION 5.09. Compliance with Laws and Agreements................................... 49
SECTION 5.10. Use of Proceeds....................................................... 49
SECTION 5.11. Additional Subsidiaries............................................... 49
SECTION 5.12. Further Assurances.................................................... 49
SECTION 5.13. Casualty and Condemnation............................................. 50
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TABLE OF CONTENTS
(continued)
Page
SECTION 5.14. Certain Intercompany Agreements....................................... 51
SECTION 5.15. Interconnection and Co-location Agreements............................ 51
SECTION 5.16. Sprint Affiliation Agreements......................................... 51
ARTICLE VI NEGATIVE COVENANTS............................................................. 52
SECTION 6.01. Indebtedness.......................................................... 52
SECTION 6.02. Liens................................................................. 53
SECTION 6.03. Fundamental Changes................................................... 54
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions; Asset Sales 55
SECTION 6.05. Hedging Agreements.................................................... 57
SECTION 6.06. Restricted Payments................................................... 57
SECTION 6.07. Transactions with Affiliates; Subordination Agreement................. 57
SECTION 6.08. Restrictive Agreements................................................ 57
SECTION 6.09. Prepayment of Indebtedness............................................ 58
SECTION 6.10. Amendment of Material Documents....................................... 58
SECTION 6.11. Management and Service Fee Agreements................................. 58
SECTION 6.12. Limitation on Sale-Leaseback Transactions............................. 58
SECTION 6.13. Covered POPS.......................................................... 58
SECTION 6.14. PCS Subscribers....................................................... 59
SECTION 6.15. Ratio of Total Debt to Total Capitalization........................... 60
SECTION 6.16. Ratio of Total Debt to EBITDA......................................... 61
SECTION 6.17. Ratio of Senior Secured Debt to Total Capitalization.................. 61
SECTION 6.18. Ratio of Senior Secured Debt to EBITDA................................ 63
SECTION 6.19. [Reserved.]........................................................... 63
SECTION 6.20. Ratio of EBITDA to Fixed Charges...................................... 63
SECTION 6.21. Capital Expenditures.................................................. 63
SECTION 6.22. Minimum Revenue....................................................... 64
SECTION 6.23. [Reserved]............................................................ 65
SECTION 6.24. Sprint Affiliation Agreements......................................... 65
SECTION 6.25. Indenture............................................................. 65
ARTICLE VII EVENTS OF DEFAULT.............................................................. 65
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TABLE OF CONTENTS
(continued)
Page
ARTICLE VIII THE AGENTS..................................................................... 68
ARTICLE IX MISCELLANEOUS.................................................................. 71
SECTION 9.01. Notices............................................................... 71
SECTION 9.02. Waivers; Amendments................................................... 71
SECTION 9.03. Expenses; Indemnity; Damage Waiver.................................... 72
SECTION 9.04. Successors and Assigns................................................ 74
SECTION 9.05. Survival.............................................................. 76
SECTION 9.06. Counterparts; Integration; Effectiveness.............................. 76
SECTION 9.07. Severability.......................................................... 77
SECTION 9.08. Right of Setoff....................................................... 77
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process............ 77
SECTION 9.10. WAIVER OF JURY TRIAL.................................................. 78
SECTION 9.11. Headings.............................................................. 79
SECTION 9.12. Confidentiality....................................................... 79
SECTION 9.13. Interest Rate Limitation.............................................. 79
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SCHEDULES:
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Schedule 1.01 - Sprint Affiliation Agreements
Schedule 2.01 - Commitments
Schedule 2.02 - Working Capital Costs
Schedule 3.06 - Litigation
Schedule 3.12 - Subsidiaries
Schedule 3.13 - Assets and Indebtedness of AGW
Schedule 3.14 - Insurance
Schedule 3.20 - Amendments to Sprint Affiliation Agreements
Schedule 6.01 - Existing Indebtedness
Schedule 6.02 - Existing Liens
Schedule 6.04 - Investments
Schedule 6.08 - Existing Restrictions
EXHIBITS:
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Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Guaranty Agreement
Exhibit C -- Form of Pledge Agreement
Exhibit D-1 -- Form of Security Agreement
Exhibit D-2 -- Form of Guarantor Security Agreement
Exhibit E -- Form of Borrowing Request
Exhibit F -- Form of Intercreditor Agreement
CREDIT AGREEMENT, dated as of August 16, 1999, among AIRGATE PCS,
INC., a Delaware corporation (the "Borrower"), the several lending institutions
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that from time to time are party to this Credit Agreement (each a "Lender" and
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collectively, the "Lenders"), STATE STREET BANK AND TRUST COMPANY, a
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Massachusetts banking corporation, in its capacity as collateral agent (the
"Collateral Agent") on behalf of the Secured Parties and LUCENT TECHNOLOGIES
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INC., a Delaware corporation, in its capacity as administrative agent (the
"Administrative Agent") on behalf of the Lenders.
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W I T N E S S E T H:
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WHEREAS, the Borrower has requested that the Lenders enter into
certain financing arrangements with the Borrower pursuant to which the Lenders
may make loans and provide other financial accommodations to the Borrower;
WHEREAS, the Lenders are willing to make such loans and provide such
financial accommodations on the terms and conditions set forth herein;
WHEREAS, the Administrative Agent is willing to administer such loans
on behalf of the Lenders and in accordance with the terms and conditions set
forth herein;
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
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SECTION 1.01. Defined Terms. As used in this Agreement, the
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following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
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whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBOR Rate" means, with respect to any Eurodollar Borrowing
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for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBOR Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means Lucent Technologies Inc., in its capacity
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as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
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in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
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that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agents" means the Administrative Agent and the Collateral Agent.
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"Agreement" means this Credit Agreement, as amended, supplemented or
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modified from time to time.
"AGW" means AGW Leasing Company, Inc., a Delaware corporation.
---
"Alternate Base Rate" means, for any day, a rate per annum equal to
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the greater of (a) the Prime Rate in effect on such day or (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1% per annum. Any change in
the Alternate Base Rate due to a change in the Prime Rate shall be effective
from and including the effective date of such change in the Prime Rate.
"Assignment and Acceptance" means an assignment and acceptance entered
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into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent,
substantially in the form of Exhibit A.
"Availability Period" means the Tranche 1 Availability Period and the
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Tranche 2 Availability Period, as applicable.
"Availability Termination Date" means (i) with respect to Tranche 1,
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June 30, 2000 and (ii) with respect to Tranche 2, September 30, 2003.
"Board" means the Board of Governors of the Federal Reserve System of
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the United States of America.
"Borrower" means AirGate PCS, Inc., a Delaware corporation.
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"Borrowing" means a Loan or group of Loans of the same Class and Type,
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made, converted or continued on the same date and, in the case of Eurodollar
Loans, as to which a single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a Borrowing in
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accordance with Section 2.03 substantially in the form of Exhibit E.
"Business Day" means any day that is not a Saturday, Sunday or other
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day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
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the term "Business Day" shall also exclude any day on which banks are not open
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for dealings in dollar deposits in the London interbank market.
"Capital Expenditures" means, for any period, (a) the additions to
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property, plant and equipment and other capital expenditures (including all
systems and development expenditures related to the build-out of PCS networks)
of the Borrower and its consolidated
2
Subsidiaries that are (or would be) set forth in a consolidated statement of
cash flows of the Borrower for such period prepared in accordance with GAAP;
provided that no consideration paid for or expenditure related to the
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acquisition of any License and no capitalized interest shall be treated as a
Capital Expenditure and (b) Capital Lease Obligations incurred by the Borrower
and its consolidated Subsidiaries during such period.
"Capital Lease Obligations" of any Person means the obligations of
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such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Cash Interest Expense" means for any period, the sum of (a) the
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amount of Interest Expense for such period, excluding any portion thereof that
constitutes Deferred Interest plus (b) any cash payments made during such period
in respect of any obligation that constituted Deferred Interest in a previous
period.
"Change in Control" means (a) the consummation of any transaction,
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including, without limitation, any merger or consolidation, the result of which
is the acquisition of ownership, directly or indirectly, beneficially or of
record, by any Person or group (within the meaning of Sections 13(d) and 14(a)
under the Exchange Act), other than such Person or group approved by the
Required Lenders of equity interests or shares (or other securities convertible
into shares) representing 35% or more of the aggregate ordinary voting power of
the Borrower (each such Person or group, a "Controlling Person"); (b) the sale,
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transfer, conveyance or other disposition, other than by way of merger or
consolidation, in one or a series of related transactions, of all or
substantially all of the assets of the Borrower and the Subsidiaries taken as a
whole; (c) the adoption of a plan relating to the liquidation or dissolution of
the Borrower; (d) occupation of a majority of the seats (other than vacant
seats) on the Board of Directors of the Borrower by Persons who were not
directors of the Borrower as of the date of this Agreement; or who were not
nominated for election or elected to such Board of Directors with the approval
of a majority of the directors then still in office who were directors on such
date or whose nomination for election was previously so approved; (e) AirGate,
LLC or its members failing to own, directly or indirectly, beneficially and of
record, at least 100% of the equity interests or shares of the Borrower at any
time prior to the initial public offering of common stock of the Borrower.
"Change in Law" means (a) the adoption of any law, rule or regulation
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of any Governmental Authority after the date of this Agreement, (b) any change
in any law, rule or regulation or in the interpretation or application thereof
by any Governmental Authority after the date of this Agreement or (c) compliance
by any Lender (or, for purposes of Section 2.13(b), by any lending office of
such Lender or by such Lender's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
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whether such Loan, or the Loans comprising such Borrowing, are Tranche 1 Loans
or Tranche 2 Loans and,
3
when used in reference to any Commitment, refers to whether such Commitment is a
Tranche 1 Commitment or a Tranche 2 Commitment.
"Closing Date" means the date that this Agreement is signed by the
------------
parties hereto.
"Code" means the Internal Revenue Code of 1986, as amended from time
----
to time.
"Collateral" means any and all "Collateral", as defined in any
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applicable Security Document.
"Collateral Agent" means State Street Bank and Trust Company, in its
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capacity as collateral agent for the Secured Parties (as defined in the Security
Documents) under the Security Documents.
"Commitment" means the Tranche 1 Commitment and the Tranche 2
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Commitment, as applicable.
"Commitment Fee" means the commitment fee payable by the Borrower
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pursuant to Section 2.10(a).
"Communications Act" means the Communications Act of 1934, and any
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similar or successor federal statute, and the rules and regulations of the FCC
thereunder.
"Consent" means the Consent and Agreement dated August 16, 1999 among
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Lucent, Sprint Spectrum L.P., SprintCom, Inc., Sprint Communications Company,
L.P. and WirelessCo, L.P. and acknowledged by the Borrower.
"Contractual Obligation" means, as to any Person, any provision of any
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security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Contributed Capital" means, at any time, the aggregate amount which
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shall have been received by the Borrower as a contribution to its capital or as
consideration for the issuance of equity interests in the Borrower, provided
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that Contributed Capital shall exclude the proceeds of any intercompany loans or
transfers.
"Control" means the possession, directly or indirectly, of the power
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to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
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"Cooperation Agreement" has the meaning set forth in Section 4.01(j).
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"Covered POPS" means, at any time, the aggregate number of POPS within
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the geographic area subject to the Sprint Affiliation Agreements for which the
Borrower and its Subsidiaries own or operate facilities that provide service and
have achieved substantial completion.
4
"Default" means any event or condition which constitutes an Event of
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Default or which upon notice, lapse of time, or both, would, unless cured or
waived, constitute an Event of Default.
"Deferred Interest" means, for any period, any portion of the Interest
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Expense of the Borrower and its consolidated Subsidiaries for such period that
is not payable in cash during such period but will be payable in cash in a
future period, including accreted interest in respect of original issue discount
and interest payments deferred pursuant to pay-in-kind or similar arrangements;
provided that interest expense accrued in such period that is payable in cash
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within six months after the end of such period shall not constitute "Deferred
Interest".
"dollars" or "$" refers to lawful money of the United States of
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America.
"EBITDA" means, for any period, the consolidated net income (or loss)
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of the Borrower and its consolidated Subsidiaries for such period plus, to the
extent deducted in determining such consolidated net income (or loss) for such
period, the sum (without duplication) of (a) income tax expense, (b) interest
expense, (c) depreciation and amortization expense, and (d) extraordinary,
unusual or non-recurring losses or charges and (e) any non-cash losses or
charges minus, to the extent added in determining such consolidated net income
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(or loss) for such period, (i) interest income, (ii) extraordinary, unusual or
non-recurring gains and any other non-cash gains and (iii) income attributable
to investments in any entity (other than consolidated Subsidiaries) except to
the extent the Borrower or a wholly-owned Subsidiary actually received such
income in the form of cash dividends or other similar cash distributions.
"Effective Date" means the date on which the conditions specified in
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Section 4.02 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all laws, statutes, rules, regulations,
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codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, the management, release or threatened
release of any Hazardous Material or to health and safety matters, including
without limitation the Comprehensive Environmental Response, Compensation and
Liability Act, the Resource Conservation and Recovery Act, the Clean Air Act,
the Federal Water Pollution Control Act, the Solid Waste Disposal Act, the Toxic
Substances Control Act and the Safe Drinking Water Act.
"Environmental Liability" means any liability, contingent or otherwise
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(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
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amended from time to time.
5
"ERISA Affiliate" means any trade or business (whether or not
---------------
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
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4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
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to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBOR Rate.
"Event of Default" has the meaning assigned to such term in Article
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VII.
"Excess Cash Flow" means, for any period, the sum (without
----------------
duplication) of:
(a) the consolidated net income or net loss of Borrower and its
Subsidiaries; plus
----
(b) the aggregate amount of all non-cash charges deducted in arriving
at net income or net loss; minus
-----
(c) the aggregate amount of all scheduled repayments and voluntary and
mandatory prepayments of Indebtedness of the Borrower and its Subsidiaries
for borrowed money (excluding (i) payments on revolving credit facilities
if such amounts remain available to be reborrowed, (ii) mandatory
prepayments of the Loans pursuant to Section 2.09(b), (c) or (d), and (iii)
repayments and prepayments of Indebtedness pursuant to refinancings
permitted under Section 6.01(f) or (h); minus
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(d) the aggregate of cash Capital Expenditures; minus
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(e) any net increases in working capital and any net decreases in
deferred revenues; plus
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6
(f) any net decreases in working capital and any net increases in
deferred revenues; plus
----
(g) any cash payments received by the Borrower or its Subsidiaries
from termination of interest rate swaps to the extent not included in net
income or net loss; minus
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(h) all cash payments made by the Borrower or its Subsidiaries in
connection with termination of interest rate swaps to the extent not
included in net income or net loss; plus
----
(i) any extraordinary, unusual or non-recurring gains excluded from
the calculation of net income or net loss, except to the extent such gains
are non-cash gains; minus
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(j) any extraordinary, unusual or non-recurring losses excluded from
the calculation of net income or net loss, except to the extent such losses
are non-cash losses; minus
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(k) any gains attributable to any sale, transfer or other disposition
of any property or asset of the Borrower or any Subsidiary to the extent
included in any prepayment made pursuant to Section 2.09(b).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
------------
and the rules and regulations promulgated thereunder, as amended, modified,
succeeded, or replaced from time to time.
"Excluded Taxes" means, with respect to the Administrative Agent or
--------------
the Collateral Agent, any Lender or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder, (a) net
income, net profit or franchise taxes imposed by the United States of America,
or by the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which
its applicable lending office is located or by any Governmental Authority of or
in any of the foregoing, (b) any branch profits taxes imposed by the United
States of America or any similar tax imposed by any other jurisdiction in which
the Borrower, the Administrative Agent, the Collateral Agent, any Lender, or any
other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, as applicable, is located or organized or by any
Governmental Authority of or in any of the foregoing, (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.17(b)), any withholding tax that is imposed on amounts payable
to such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office), except to the extent that such
Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to
Section 2.15(a), and (d) any Taxes that are attributable to the failure of a
Lender, the Administrative Agent, the Collateral Agent or any other recipient of
any payment to be made by or on account of any obligation of the Borrower
hereunder, as applicable, to fully comply with the certification requirements
described in Sections 2.15(e) or 9.4(f).
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"Facility" means the senior secured facility in an aggregate original
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principal amount of $153,500,000 created pursuant to this Agreement and the
other Loan Documents.
"FCC" means the Federal Communications Commission, or any other
---
similar or successor agency of the Federal government administering the
Communications Act.
"Federal Funds Effective Rate" means, for any day, the weighted
----------------------------
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
-----------------
accounting officer, treasurer or controller of the Borrower.
"Fixed Charges" means, for any period, Cash Interest Expense for such
-------------
period plus the aggregate amount of all scheduled payments of principal of all
Indebtedness of the Borrower and its consolidated subsidiaries.
"Foreign Lender" means any Lender that is not a "United States person"
--------------
as defined in Section 7701(a)(30) of the Code.
"GAAP" means generally accepted accounting principles in the United
----
States of America in effect from time to time.
"Governmental Authority" means the government of the United States of
----------------------
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
--------- ---------
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
---------------
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
--------
endorsements for collection or deposit in the ordinary course of business.
8
"Guarantor Security Agreement" means the Guarantor Security Agreement
----------------------------
by and between AGW and the Collateral Agent, substantially in the form of
Exhibit D-2.
"Guaranty Agreement" means the Guaranty Agreement among the
------------------
Subsidiaries and the Administrative Agent, substantially in the form of Exhibit
B.
"Hazardous Materials" means all explosive or radioactive substances
-------------------
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
-----------------
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person means, without duplication, whether or
------------
not contingent; (a) all obligations of such Person for borrowed money or with
respect to deposits or advances of any kind from a third party or, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person upon which interest charges are
customarily paid (other than lease payments which are not Capital Lease
Obligations and current accounts payable incurred in the ordinary course of
business) to the extent interest is so accruing, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations of such Person as an account party in respect of letters of
credit and letters of guaranty, (j) all obligations of such Person in respect of
bankers' acceptances, (k) net obligations under Hedging Agreements of such
Person, and (l) the maximum redemption price of any shares in the capital of
such Person which are subject to mandatory redemption or redemption at the
option of the holder at any time prior to the Tranche 2 Maturity Date. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
-----------------
"Indenture" means the Indenture to be entered into by the Borrower and
---------
the Trustee for the holders of the senior subordinated discount notes issued
thereunder.
"Intellectual Property" means any patent or any trademark, trade name,
---------------------
copyright or service mark registrations, or any pending applications for the
same.
9
"Intercreditor Agreement" means the Intercreditor Agreement to be
-----------------------
entered into among the Administrative Agent, the Collateral Agent and Bankers
Trust Company contemporaneonsly the execution of the Indenture, substantially in
the form of Exhibit F.
"Interest Election Request" means a request by the Borrower to convert
-------------------------
or continue a Borrowing in accordance with Section 2.05.
"Interest Expense" means, for any period, the interest expense of the
----------------
Borrower and its consolidated Subsidiaries for such period (excluding
amortization of debt discounts and other non-cash interest expense, but
including Deferred Interest), including the portion of any rents payable under
capital leases allocable to interest expense, all as determined on a
consolidated basis in accordance with GAAP.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
---------------------
last day of each March, June, September and December and (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period.
"Interest Period" means, with respect to any Eurodollar Borrowing, the
---------------
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect; provided that (i) if any Interest Period
--------
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day and (ii) any Interest Period
that commences 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 of
such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter shall
be the effective date of the most recent conversion or continuation of such
Borrowing.
"Lenders" means each Person identified as a Lender on Schedule 2.01
-------
and any other Person that shall have become a party hereto pursuant to an
Assignment and Acceptance, other than any such Person that ceases to be a party
hereto pursuant to an Assignment and Acceptance.
"LIBOR Rate" means, with respect to any Eurodollar Borrowing for any
----------
Interest Period, the rate appearing on Page 3750 of the Dow Jones Market Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBOR Rate" with respect to
----------
10
such Eurodollar Borrowing for such Interest Period shall be the rate at which
dollar deposits of $5,000,000 and for a maturity comparable to such Interest
Period are offered by the principal London office of the Administrative Agent
or, in the event the Administrative Agent is not a bank, The Chase Manhattan
Bank in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Licenses" means any and all licenses (excluding PCS Licenses),
--------
permits, easements, public and private rights-of-way and other access
agreements, registrations, municipal/local and other government approvals,
consents or other authority necessary for the Borrower and its Subsidiaries (as
applicable) to operate and manage the Network.
"Lien" means, with respect to any asset of the Borrower or any
----
Subsidiary, as applicable, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or security interest in, on or of such asset,
(b) the interest of a vendor or a lessor under any conditional sale agreement,
capital lease or title retention agreement (or any financing lease having
substantially the same economic effect as any of the foregoing) relating to such
asset and (c) in the case of securities, any purchase option, call or similar
right of a third party with respect to such securities.
"Like Kind Exchange" means the transfer by the Borrower or a
------------------
Subsidiary (other than AGW) of property or equipment with a fair market value of
less than $5 million to a Person who is not an Affiliate of the Borrower in
exchange for property or equipment that is used or useful in the business of the
Borrower and its Subsidiaries and has a fair market value at least equal to the
fair market value of the property or equipment so transferred.
"Loan Documents" means this Agreement, the Guaranty Agreement and the
--------------
Security Documents and any notes or other instruments or agreements issued or
executed pursuant to any of the foregoing.
"Loans" means Tranche 1 Loans and Tranche 2 Loans.
-----
"Lucent" means Lucent Technologies Inc.
------
"Management Agreement Breach" has the meaning assigned to such term in
---------------------------
the Consent as in effect on the Closing Date.
"Material Adverse Change" means any change that has, or would have, a
-----------------------
Material Adverse Effect.
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
business, assets, operations or condition, financial or otherwise, of the
Borrower and the Subsidiaries taken as a whole, (b) the ability of the Borrower
or its Subsidiaries to perform any of their material obligations under any Loan
Document or (c) the material rights of or benefits available to the Lenders
under any Loan Document.
"Material Indebtedness" means Indebtedness (other than the Loans), or
---------------------
obligations in respect of one or more Hedging Agreements, of any of the Borrower
and/or its
11
Subsidiaries in an aggregate principal amount exceeding US$5,000,000.
For purposes of determining Material Indebtedness, the "principal amount" of the
obligations of the Borrower or any Subsidiary in respect of any Hedging
Agreement at any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that the Borrower or such Subsidiary would be required
to pay if such Hedging Agreement were terminated at such time.
"Maturity Date" means (i) for Tranche 1 Loans, June 6, 2007 and (ii)
-------------
for Tranche 2 Loans, September 30, 2008.
"Moody's" means Moody's Investors Service, Inc.
-------
"Mortgage" means a mortgage, deed of trust, assignment of leases and
--------
rents, leasehold mortgage or other security document granting a Lien on any
Mortgaged Property to secure the Obligations. Each Mortgage shall be in form
and substance reasonably satisfactory to the Collateral Agent.
"Mortgaged Property" means each parcel of real property and
------------------
improvements thereto with respect to which a Mortgage is granted pursuant to
Section 5.11 or 5.12.
"Multiemployer Plan" means a multiemployer plan as defined in Section
------------------
4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event (a) the cash proceeds
------------
received in respect of such event including (i) any cash received in respect of
any non-cash proceeds, but only as and when received, (ii) in the case of a
casualty, insurance proceeds, and (iii) in the case of a condemnation or similar
event, condemnation awards and similar payments, net of (b) the sum of (i) all
reasonable fees and out-of-pocket expenses paid by the Borrower and the
Subsidiaries to third parties (other than Affiliates) in connection with such
event, (ii) in the case of a sale or other disposition of an asset (including
pursuant to a casualty or condemnation), the amount of all payments required to
be made by the Borrower and the Subsidiaries as a result of such event to repay
Indebtedness (other than Loans) secured by such asset or otherwise subject to
mandatory prepayment as a result of such event, (iii) in the case of an
underwritten offering of securities, the amount of all underwriting discounts
and commissions, and (iv) the amount of all taxes paid (or reasonably estimated
to be payable) by the Borrower and the Subsidiaries, and the amount of any
reserves established by the Borrower and the Subsidiaries to fund contingent
liabilities reasonably estimated to be payable, in each case during the year
that such event occurred or the next succeeding year and that are directly
attributable to such event (as determined reasonably and in good faith by the
chief financial officer of the Borrower).
"Network" means the wireless PCS telecommunications network to be
-------
operated and managed by the Borrower and its Subsidiaries pursuant to the Sprint
Management Agreement.
"Note" means the Secured Promissory Note in the principal amount of
----
$10,000,000 issued by the Borrower on June 15, 1999 in favor of Lucent.
"Obligations" means any and all Loans and all other obligations,
-----------
liabilities and indebtedness of every kind, nature and description owing by the
Borrower, the Guarantors or any
12
Subsidiary to the Administrative Agent, the Collateral Agent or any Lender
and/or their Affiliates under any Loan Document or any Hedging Agreement with
any Person who is a Lender or Affiliate thereof at the time such Hedging
Agreement is entered into, including without limitation principal, interest,
charges, fees, penalties, indemnifications, reimbursements, damages, costs and
expenses, however evidenced, whether as principal, surety, endorser, guarantor
or otherwise, in each case arising under this Agreement, the Guarantees, any
other Loan Document, whether now existing or hereafter arising, whether arising
before, during or after the term of this Agreement or after the commencement of
any case with respect to the Borrower, a Guarantor or any Subsidiary under the
United States Bankruptcy Code or any similar statute (including, without
limitation, the payment of interest and other amounts which would accrue and
become due but for the commencement of such case), whether direct or indirect,
absolute or contingent, joint or several, due or not due, primary or secondary,
liquidated or unliquidated, secured or unsecured, and however acquired.
"Other Taxes" means any and all present or future stamp or documentary
-----------
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made under any Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, any Loan Document.
"Payment Date" means each of (a) the last day of each March, June,
------------
September or December beginning (i) December of 2002 in the case of Tranche 1
Loans and (ii) March of 2004 in the case of Tranche 2 Loans, and (b) the
Maturity Date.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
----
defined in ERISA and any successor entity performing similar functions.
"PCS" means personal communications services.
---
"PCS License" means any license obtained by or on behalf of SprintCom,
-----------
Inc. and/or its Affiliates to provide PCS for the service areas which will be
managed by the Borrower pursuant to the Sprint Management Agreement from time to
time.
"PCS Subscribers" means customers receiving PCS provided by the
---------------
Network.
"Permitted Encumbrances" means:
----------------------
(a) Liens imposed by law for taxes, assessments or other governmental
charges that are not yet due or are being contested in compliance with
Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 30 days
or are being contested in compliance with Section 5.05;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
13
(d) any interest or title of a lessor in any property subject to any
lease otherwise permitted by the Loan Documents;
(e) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Borrower or any Subsidiary;
and
(g) (i) leases or subleases granted to others with respect to
interests in towers owned or leased by AGW and (ii) other leases or
subleases granted to others with respect to real property owned or leased
by AGW so long as the annual aggregate rent received by or on behalf of AGW
for each such lease or sublease does not exceed $5,000 per fiscal year;
provided that the term "Permitted Encumbrances" shall not include any Lien
- --------
securing Indebtedness.
"Permitted Investments" means:
---------------------
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
and overnight bank deposits issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus of
not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and entered
into with a financial institution satisfying the criteria described in
clause (c) above; and
(e) money market funds at least 95% of the assets of which constitute
Permitted Investments of the kinds described in clauses (a)-(d) above and
Strategic
14
Cash Management program funds offered by DLJ Investment Management Corp. or
comparable funds offered by similar banks or institutions.
"Permitted Refinancing" has the meaning set forth in Section 6.01(j).
---------------------
"Person" means any natural person, individual, corporation, limited
------
liability company, limited liability partnership, trust, business trust, joint
venture, association, company, sole proprietorship, unincorporated association,
joint stock corporation, partnership, Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
----
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" means the Pledge Agreement between or among the
----------------
Borrower and the Administrative Agent and/or the Collateral Agent, substantially
in the form of Exhibit C.
"POPS" means, with respect to any geographic area, the population of
----
such geographic area as measured by the population data maintained for the year
1998 by Equifax/NDS and as used in Schedule 2.1 to the Sprint Management
Agreement.
"Prime Rate" means the rate of interest per annum publicly announced
----------
from time to time by The Chase Manhattan Bank (or, if the Administrative Agent
is a commercial bank, by the Administrative Agent) as its prime rate in effect
at its principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Real Estate Assets" has the meaning set forth in Section 3.05(b).
------------------
"Register" has the meaning set forth in Section 9.04.
--------
"Related Parties" means, with respect to any specified Person, such
---------------
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means (a) at any time that Lucent and its
----------------
Affiliates, if any, who are Lenders have Loans and unused Commitments
representing in excess of 50% of the sum of all Loans outstanding and unused
Commitments at such time, each of (i) Lucent and such Affiliates who are Lenders
at such time and (ii) other Lenders having Loans and unused Commitments
representing in excess of 50% of the sum of all Loans outstanding and held by,
and unused Commitments of, such other Lenders (exclusive of Lucent) at such time
and (b) at any other time, Lenders having Loans and unused Commitments
representing in excess of 50% of the sum of all Loans outstanding and unused
Commitments at such time.
15
"Requirement of Law" means, as to any Person, the certificate of
------------------
incorporation or formation and by-laws, the partnership agreement, the operating
agreement or other organizational or governing documents of such Person, and any
law, statute, code, ordinance, treaty, rule or regulation, or determination,
judgment, writ, injunction, requirement, decree or order of an arbitrator or a
court of other Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any of its
property is bound or subject.
"Restricted Payment" means (a) any dividend or other distribution
------------------
(whether in cash, securities or other property) with respect to any equity
interest in or shares of any class of capital stock of the Borrower or any
Subsidiary, or (b) any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of any equity
interest in or shares of any class of capital stock of the Borrower or any
Subsidiary or any option, warrant or other right to acquire any such equity
interest in or shares of capital stock of the Borrower or any Subsidiary.
"S&P" means Standard & Poor's.
---
"Secured Parties" means each of the Lenders, the Administrative Agent
---------------
and the Collateral Agent.
"Security Agreement" means the Security Agreement by and between the
------------------
Borrower and the Collateral Agent, substantially in the form of Exhibit D-1.
"Security Documents" means the Mortgages, the Pledge Agreement, the
------------------
Security Agreement, the Guarantor Security Agreement, the Consent, the
Intercreditor Agreement and each other security agreement or other instrument or
document executed and delivered pursuant to Section 5.11 or 5.12 to secure the
Obligations.
"Senior Secured Debt" means, at any time, Total Debt of the Borrower
-------------------
at such time for which the Borrower's payment or performance obligations
thereunder are secured by any assets, rights or other tangible or intangible
property of the Borrower or any Subsidiary, excluding any portion thereof which
by its terms is subordinate in right of payment to the prior payment in full of
the Loans and permitted by Section 6.01(h).
"Sprint Affiliation Agreements" means the agreements entered into
-----------------------------
between the Borrower and Sprint PCS and/or its Affiliate(s) which are set forth
on Schedule 1.01.
"Sprint Management Agreement" means that certain Sprint PCS Management
---------------------------
Agreement between SprintCom, Inc. and Borrower, dated as of July 22, 1998.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
----------------------
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which any commercial banks subject to regulation by
the Board are subject with respect to the Adjusted LIBOR Rate, for eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in
16
Regulation D of the Board). Such reserve percentages shall include those
imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any
comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"subsidiary" means, with respect to any Person (the "parent") at any
---------- ------
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
----------
"Supply Agreement" means that certain PCS Procurement and Services
----------------
Contract dated July 31, 1998 between the Borrower and Lucent, as amended,
supplemented or modified from time to time.
"Taxes" means any and all present or future taxes, levies, imposts,
-----
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Total Capitalization" means, at any time, the sum of (a) Total Debt
--------------------
outstanding on such date plus (b) Contributed Capital on such date determined in
----
accordance with GAAP plus (c) if positive, the retained earnings of the Borrower
----
on such date determined in accordance with GAAP minus (e) the aggregate amount
-----
of Restricted Payments to the extent such Restricted Payments have not already
reduced retained earnings (directly or through net income).
"Total Debt" means, at any time, (a) the accreted value of all
----------
Indebtedness of the Borrower and its consolidated Subsidiaries for borrowed
money, in the case of any such Indebtedness issued with original issue discount,
and (b) the outstanding principal amount of all Indebtedness of the Borrower and
its consolidated Subsidiaries for borrowed money (including Capital Lease
Obligations) at such time, and including any capitalized interest with respect
to such Indebtedness, in the case of such Indebtedness other than Indebtedness
issued with original issue discount, minus (c) at any time prior to January 1,
-----
2005 all Indebtedness outstanding included in clause (a) of this definition of
Total Debt; provided that interest on such Indebtedness accretes and is not
payable in cash any time prior to January 1, 2005, in each case as determined on
a consolidated basis in accordance with GAAP.
"Tranche 1 Availability Period" means the period commencing on the
-----------------------------
Closing Date and ending on June 30, 2000.
17
"Tranche 1 Commitment" means, with respect to each Lender, the
--------------------
commitment, if any, of such Lender to make Tranche 1 Loans hereunder, expressed
as an amount representing the maximum principal amount of the Tranche 1 Loans to
be made by such Lender hereunder, as such commitment may be (a) reduced from
time to time pursuant to Section 2.06 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of each Lender's Tranche 1 Commitment is set forth on Schedule
2.01, or in the Assignment and Acceptance pursuant to which such Lender shall
have assumed its Tranche 1 Commitment, as applicable. The initial aggregate
amount of the Lenders' Tranche 1 Commitments is $13,500,000.
"Tranche 1 Loan" means a Tranche 1 Loan made pursuant to Section 2.01.
--------------
"Tranche 2 Availability Period" means the period commencing on October
-----------------------------
1, 2000 and ending on September 30, 2003.
"Tranche 2 Commitment" means, with respect to each Lender, the
--------------------
commitment, if any, of such Lender to make Tranche 2 Loans hereunder during the
Tranche 2 Availability Period, expressed as an amount representing the maximum
principal amount of the Tranche 2 Loans to be made by such Lender hereunder, as
such commitment may be (a) reduced from time to time pursuant to Section 2.06
and (b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04. The initial amount of each Lender's
Tranche 2 Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Tranche 2
Commitment, as applicable. The initial aggregate amount of the Lenders' Tranche
2 Commitments is $140,000,000.
"Tranche 2 Loan" means a Tranche 2 Loan made pursuant to Section 2.01.
--------------
"Transactions" means the execution, delivery and performance by the
------------
Borrower and any Subsidiary of the Loan Documents to which it is to be a party,
the borrowing of Loans and the use of the proceeds thereof.
"Type", when used in reference to any Loan or Borrowing, refers to
----
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBOR Rate or the
Alternate Base Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
--------------------
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Year 2000 Problem" has the meaning set forth in Section 3.18.
-----------------
SECTION 1.02. Classification of Loans and Borrowings. For purposes of
--------------------------------------
this Agreement, Loans may be classified and referred to by Class (e.g., a
----
"Tranche 1 Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
----
(e.g., a "Eurodollar Tranche 1 Loan"). Borrowings also may be classified and
----
referred to by Class (e.g., a "Tranche 1 Borrowing") or by Type (e.g., a
---- ----
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Tranche 1
----
Borrowing").
18
SECTION 1.03. Terms Generally. The definitions of terms herein shall
---------------
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts, contract rights, licenses and intellectual
property.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
----------------------
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
--------
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
LOANS
-----
SECTION 2.01. Commitments. Subject to the terms and conditions
-----------
set forth in this Agreement, each Lender severally agrees to make Loans to the
Borrower from time to time during the applicable Availability Period in the
amount of its pro rata share of such Loans as the Borrower may request under
Section 2.02, in an aggregate principal amount not to exceed such Lender's pro
rata share of the Commitments, as described in Schedule 2.01. Amounts repaid in
respect of Loans may not be reborrowed.
SECTION 2.02. Loans and Borrowings.
--------------------
(a) Each Loan shall be made as part of a Borrowing consisting of
Loans of the same Class and Type made by the Lenders ratably in accordance
with their respective Commitments of the applicable Class. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the
--------
19
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender's failure to make Loans as required.
(b) Subject to Section 2.12, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request in
accordance herewith. Each Lender at its option may make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
--------
of the Borrower to repay such Loan in accordance with the terms of this
Agreement.
(c) The proceeds of the Facility shall be utilized solely (i) to
finance the costs of equipment and services purchased by the Borrower from
Lucent under the Supply Agreement, (ii) to repay the outstanding principal
amount under the Note, and (iii) for general corporate purposes. None of the
proceeds will be used, directly or indirectly, for the purpose of purchasing or
carrying any margin security or for the purposes of reducing or retiring any
indebtedness which was originally incurred to purchase or carry any margin
security or for any other purpose which might cause any of the Loans to be
considered a "purpose credit" within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System, as amended. Borrowings of more than one
Type and Class may be outstanding at the same time; provided that there shall
--------
not at any time be more than a total of eight Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing as a Eurodollar Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.
SECTION 2.03. Requests for Borrowings. To request a Borrowing, the
-----------------------
Borrower shall notify the Administrative Agent of such request by telephone (a)
at any time Lucent is a Lender, not later than 12:00 (noon), New York City time,
four Business Days before the date of the proposed Borrowing, or (b) at any time
that Lucent is not a Lender (i) in the case of Eurodollar Borrowing, not later
than 12:00 (noon), New York City time, three Business Days before the date of
the proposed Borrowing or (ii) in the case of an ABR Borrowing, not later than
12:00 (noon), New York City time on the Business Day before the date of the
proposed Borrowing; provided that the Borrower may make no more than one request
--------
for a Borrowing in any single calendar month (it being understood that all
Borrowings made by the Borrower on the same date shall be treated as a single
request for a Borrowing for purposes of this limitation). Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request
signed by the Borrower. Each such telephonic and written Borrowing Request shall
specify the following information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Tranche 1 Borrowing
or a Tranche 2 Borrowing;
(ii) the aggregate amount of such Borrowing and the use of proceeds
therefrom (and, if such proceeds are to be used to finance the cost of
equipment, such written Borrowing Request shall attach copies of invoices issued
by Lucent and/or third party vendors for which such proceeds are to be used);
20
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(vi) the location and number of the account or accounts to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.04.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed
to have selected an Interest Period of one month's duration. Promptly following
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Funding of Borrowings.
---------------------
(a) Each Lender shall make each Loan to be made by it hereunder on
the proposed date thereof by wire transfer of immediately available funds by
12:00 noon, New York City time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders. The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent (or a bank designated by the
Administrative Agent) in New York City and designated by the Borrower in the
applicable Borrowing Request. Notwithstanding the foregoing, if the proceeds of
any Borrowing are to be used to make any payment to or for the account of Lucent
or any Affiliate thereof (i) if Lucent or any Affiliate thereof is a Lender,
then Lucent or such Affiliate may make its Loan or Loans or portions thereof by
crediting the amount thereof against the payment obligations to Lucent or any
such Affiliate and shall be deemed to have made a Loan in the amount of such
credit and (ii) the Administrative Agent will make the Loans of the other
Lenders available to the Borrower by promptly crediting the amounts so received
from such other Lenders, in immediately available funds, to the account
designated by Lucent, to the extent of the proceeds of such Loans designated to
be used to make payments to Lucent or any of its Affiliates (after giving effect
to any credits pursuant to clause (i) above) and the balance, if any, of such
proceeds shall be made available to the Borrower as provided in the preceding
sentence.
(b) Unless the Administrative Agent shall have received notice from
a Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and
21
the Borrower severally agree to pay to the Administrative Agent forthwith on
demand such corresponding amount with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (i) in the case of
such Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation or (ii) in the case of the Borrower, the interest rate
applicable to ABR Loans. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's Loan included in such
Borrowing.
SECTION 2.05. Interest Elections
------------------
(a) Each Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different Type
or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may
elect Interest Periods therefor, all as provided in this Section. The Borrower
may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02 and paragraph
(f) of this Section:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specific for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
22
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing then, so long as an Event of Default is
continuing (i) no outstanding Borrowing may be converted to or continued as a
Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be
converted to an ABR Borrowing at the end of the Interest Period applicable
thereto.
(f) A Borrowing of any Class may not be converted to or continued as a
Eurodollar Borrowing if after giving effect thereto (i) the Interest Period
therefor would commence before and end after a date on which any principal of
the Loans of such Class is scheduled to be repaid and (ii) the sum of the
aggregate principal amount of outstanding Eurodollar Borrowings of such Class
with Interest Periods ending on or prior to such scheduled repayment date plus
the aggregate principal amount of outstanding ABR Borrowings of such Class would
be less than the aggregate principal amount of Loans of such Class required to
be repaid on such scheduled repayment date.
SECTION 2.06. Termination, Reduction and Increase of Commitments.
--------------------------------------------------
(a) Unless previously terminated, (i) the Tranche 1 Commitments and,
(ii) the Tranche 2 Commitments shall terminate on the applicable Availability
Termination Date.
(b) The Commitment(s) of each Lender shall be reduced on the date of
each Tranche 1 Loan or Tranche 2 Loan made by such Lender by an amount equal to
such Loans.
(c) In the event that a prepayment would be required pursuant to
paragraph (b), (c) or (d) of Section 2.09, the Commitments shall be reduced by
an amount equal to the excess, if any, of the amount of the required prepayment
over the aggregate principal amount of Loans then outstanding, if any.
(d) The Borrower may at any time without premium or penalty terminate,
or from time to time reduce, the Commitments of any Class; provided that each
--------
reduction of the Commitments of any Class pursuant to this paragraph (d) shall
be in an amount that is not less than $1,000,000.
(e) The Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (d) of this Section at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any such notice, the Administrative Agent
23
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable. Any termination or
reduction of the Commitments of any Class shall be permanent. Each reduction of
the Commitments of any Class pursuant to paragraph (c) or (d) of this Section
shall be made ratably among the Lenders of such Class in accordance with their
respective Commitments of such Class. In the event of any reduction of
Commitments under paragraph (c) or (d) above at a time when Commitments of more
than one Class remain in effect, such reduction shall be applied so that the
aggregate amount of such reduction is allocated between the Tranche 1
Commitments and Tranche 2 Commitments pro rata based on the aggregate amount of
the Commitments of each such Class then in effect.
SECTION 2.07. Repayment of Loans; Evidence of Debt.
------------------------------------
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Loan of such Lender as provided in Section 2.08.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
----- -----
amounts of the obligations recorded therein; provided that the failure of any
--------
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.08. Amortization of Loans.
---------------------
(a) Subject to adjustment pursuant to paragraph (c) of this Section,
the Borrower shall repay all outstanding Tranche 1 and Tranche 2 Borrowings in
nineteen consecutive quarterly installments payable on each applicable Payment
Date, each such installment to be in
24
an aggregate principal amount equal to the product of the sum of all Tranche 1
Loans and Tranche 2 Loans made to the Borrower hereunder and (i) for the first
eight payments, 3.75%, (ii) for the next four payments, 5.0%, (iii) for the next
six payments, 7.143%, and (iv) for the final payment on the applicable Maturity
Date 7.142%.
(b) To the extent not previously paid, all Loans shall be due and
payable on the applicable Maturity Date.
(c) Any prepayment of a Borrowing of any Class shall be applied to
reduce the subsequent scheduled repayments of the Borrowings of such Class to be
made pursuant to this Section in reverse chronological order.
SECTION 2.09. Prepayment of Loans.
-------------------
(a) The Borrower may at any time and from time to time prepay any
Borrowing in whole or in part, without premium or penalty subject to the
requirements of this Section and the payment of any applicable fees pursuant to
Section 2.14, upon not less than 30 days' prior written notice to the
Administrative Agent. Partial prepayment made pursuant to this Section 2.09(a)
shall be in an aggregate principal amount of $1,000,000 and multiples thereof.
(b) If and on each occasion that any Net Proceeds are received by or
on behalf of the Borrower or any Subsidiary in respect of any sale, transfer or
other disposition (including pursuant to a sale and leaseback transaction but
excluding issuances of capital stock of the Borrower) of any property or asset
of the Borrower or any Subsidiary (other than dispositions: (V) in the form of a
Like Kind Exchange, provided that the Borrower shall deliver to the
Administrative Agent an officer's certificate certifying that such exchange is a
Like Kind Exchange hereunder, (W) the aggregate Net Proceeds of which are less
than $1,000,000 in any single calendar year, (X) of inventory or used, obsolete
or surplus equipment in the ordinary course of business, (Y) between the
Borrower and its wholly-owned Subsidiaries (other than AGW, excluding transfers
or assignment of interests in real property to AGW by the Borrower or another
Subsidiary) and (Z) of investments described in clauses (i) or (iii) of Section
6.04), or any casualty or other damage to, or any taking under force of eminent
domain or by condemnation or similar proceeding of, any property or assets of
the Borrower or any Subsidiary, the Borrower shall, to the extent such Net
Proceeds are not reinvested in property or assets used or useful in the business
of the Borrower and its Subsidiaries within 180 days of receipt thereof, prepay
Borrowings outstanding (or if no Borrowings are then outstanding, reduce the
Commitments) in an aggregate amount equal to such Net Proceeds.
(c) Upon the prepayment of any Indebtedness incurred pursuant to a
vendor financing arrangement (other than such Indebtedness incurred pursuant to
Section 6.01(d) or 6.01(i)) or other bank or credit facility of (or Guaranteed
by) the Borrower or any Subsidiary (other than prepayments permitted by Section
6.09(b) or prepayments of Borrower's Indebtedness to Nations Bank and [ * ]
in the aggregate principal amounts of $1,000,000 and $7,700,000, respectively),
the Borrower shall, within three Business Days after such prepayment, prepay
Borrowings in aggregate principal amount equal to the product of
- ------------------------
*Portions of the specified exhibit has been omitted pursuant to a request for
confidential treatment and filed separately with the commission.
25
(x) the aggregate principal amount of Loans outstanding and (y) a fraction, the
numerator of which is the aggregate principal amount of such Indebtedness so
prepaid and the denominator of which is the aggregate principal amount of
Indebtedness of (or Guaranteed by) the Borrower or any Subsidiary (excluding (i)
Indebtedness in respect of the Loans and (ii) Indebtedness in respect of the
senior subordinated discount notes issued pursuant to the Indenture or any
Permitted Refinancing thereof) outstanding (immediately prior to such prepayment
of Indebtedness). Upon a prepayment of Indebtedness in connection with a
Permitted Refinancing of such Indebtedness, the Borrower shall prepay
Borrowings, within three Business Days of such Permitted Refinancing, in an
amount equal to amount by which the aggregate principal amount of Indebtedness
incurred pursuant to such Permitted Refinancing exceeds the outstanding
principal amount of the Indebtedness prepaid including accrued interest and
premiums (as determined immediately prior to the Permitted Refinancing) in
connection therewith.
(d) Following the end of each fiscal year of the Borrower, commencing
with the fiscal year beginning in 2002, the Borrower shall prepay Borrowings in
an aggregate amount equal to sixty percent (60%) of Excess Cash Flow for such
fiscal year, or, if Borrower's ratio of Total Debt to Total Capitalization is
.65 to 1 or less for the most recent period for which quarterly or annual
financial statements are available, Borrower shall prepay Borrowings in an
aggregate amount equal to fifty percent (50%) of such Excess Cash Flow. Each
prepayment pursuant to this subsection shall be made within 90 days after the
end of the year for which Excess Cash Flow is calculated.
(e) All prepayments pursuant to this Section 2.09 shall be applied, at
the option of the Lenders, to principal payments in the inverse order of their
maturity or on a pro rata basis to all principal payments then outstanding.
SECTION 2.10. Fees.
----
(a) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a Commitment Fee, which shall accrue (i) at the rate of
1.50% per annum on the average daily undrawn amount of the Tranche 1 Commitment
of such Lender during the period from and including June 6, 1999 to but
excluding the applicable Availability Termination Date, (ii) at the rate of
3.75% per annum (or 1.50% per annum after thirty percent of the aggregate
Tranche 2 Commitments shall have been borrowed) on the average daily undrawn
amount of each Tranche 2 Commitment of such Lender during the period from and
including the Closing Date to but excluding January 1, 2001, and (iii) at the
rate of 4.50% per annum (or 1.50% per annum after thirty percent of the
aggregate Tranche 2 Commitments shall have been borrowed) on the average daily
undrawn amount of each Tranche 2 Commitment of such Lender during the period
from and including January 1, 2001 until the Tranche 2 Availability Termination
Date. Accrued Commitment Fees shall be payable in arrears on the last day of
March, June, September and December of each year and on the applicable
Availability Termination Date, commencing on the first such date to occur after
the date of this Agreement. All Commitment Fees shall be computed on the basis
of a 360-day year and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). All fees payable under
this subsection (a) shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, in the case of Commitment
Fees, to each Lender entitled thereto. Commitment Fees paid shall not be
refundable under any circumstances.
26
(b) The Borrower agrees to pay to the Administrative Agent and the
Collateral Agent the fees and expenses set forth in the Cooperation Agreement.
SECTION 2.11. Interest.
--------
(a) The Loans comprising each ABR Borrowing shall bear interest at the
Alternate Base Rate plus 2.75 percent, and the Loans comprising each Eurodollar
Borrowing shall bear interest at the Adjusted LIBOR Rate plus 3.75 percent.
(b) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2.5% plus
the rate otherwise applicable to such Loan as provided in the preceding
paragraphs of this Section, or (ii) in the case of any other amount, 2.5% plus
the rate then applicable to ABR Loans as provided in paragraph (a) of this
Section; provided that, to the extent that the amount of any interest to be
--------
capitalized and added to the principal amount of any Loan of any Lender would,
when aggregated with any Loan to be made by such Lender on the applicable
Interest Payment Date, exceed the amount of such Lender's Commitment on such
Interest Payment Date, such interest shall not be capitalized and added to
principal on such date and shall be payable as provided herein.
(c) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and at the maturity thereof; provided that
--------
(i) interest accrued pursuant to paragraph (b) of this Section shall be payable
on demand, (ii) in the event of any repayment or prepayment of any Loan, accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment and (iii) in the event of any conversion of any
Loan prior to the end of the current Interest Period therefor, accrued interest
on such Loan shall be payable on the effective date of such conversion.
(d) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBOR Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.12. Alternate Rate of Interest. If prior to the
--------------------------
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBOR Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBOR Rate for such Interest Period will not adequately and fairly
reflect the
27
cost to such Lenders of making or maintaining their Loans included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing and the Loans comprising such ABR
Borrowing shall bear interest at the Alternate Base Rate plus the applicable
margin set forth in Section 2.11(a) above.
SECTION 2.13. Increased Costs.
---------------
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of, or
credit extended by, any Lender (except any such reserve requirement reflected in
the Adjusted LIBOR Rate); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender such additional amount or
amounts as will compensate such Lender for such additional costs incurred or
reduction suffered provided that such amount or amounts shall not include any
Excluded Taxes..
(b) If any Lender determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or the Loans made by such Lender to a level
below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section and the basis therefor
shall be delivered to the Borrower by the applicable Lender and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
28
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrower shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than 180 days prior to the date that such Lender
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 180-day period referred to above shall be
extended to include the period of retroactive effect thereof.
SECTION 2.14. Break Funding Payments; Prepayment Fees.
---------------------------------------
(a) In the event of (i) the payment of any principal of any Eurodollar
Loan on any day other than the last day of an Interest Period, (ii) the
conversion of any Loan other than on the last day of the Interest Period
applicable thereto, (iii) the failure to borrow, convert, continue or prepay any
Loan on the date specified in any notice delivered pursuant hereto, or (iv) the
assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.17, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the Adjusted LIBOR Rate that would have been
applicable to such Loan, for the period from the date of such event to the last
day of the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue, for the period that would have been the Interest
Period for such Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the Eurodollar
market (determined as if such Lender were a commercial bank if it is not a
commercial bank).
(b) A certificate of any Lender setting forth any amount or amounts
that such Lender is entitled to receive pursuant to paragraph (a) of this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 30 days after receipt thereof.
SECTION 2.15. Taxes.
-----
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder or under any other Loan Document shall be made free and clear
of and without deduction for any Indemnified Taxes or Other Taxes; provided
--------
that if the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent or Lender receives an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
29
(b) In addition, the Borrower shall timely pay any Other Taxes not
required to be deducted or withheld as set forth in paragraph (a) above to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each
Lender, within 15 days after written demand therefor (which written demand shall
set forth in reasonable detail the amount or amounts to be indemnified and the
method of calculating such amount or amounts), for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent and/or any
Lender on or with respect to any payment by or on account of any obligation of
the Borrower hereunder or under any other Loan Document (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority; provided, that the Administrative Agent or such Lender,
--------
as applicable, shall cooperate with the Borrower, at the Borrower's sole cost
and expense, in good faith to recover any such Indemnified Taxes or Other Taxes
that the Administrative Agent or such Lender, as applicable, and the Borrower
agree were incorrectly or illegally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender, or by the Administrative Agent
on its own behalf or on behalf of a Lender, shall be conclusive absent
demonstrable error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment.
(e) Each Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement or any other Loan Document shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law or at the time a lapse in time or change
in circumstances of such Foreign Lender renders previously delivered
documentation obsolete or inaccurate in any material respect, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without
withholding or at a reduced rate of withholding. The documentation referred to
in the preceding sentence of this paragraph (e) shall include: (i) in the case
of a Foreign Lender that is a bank under Section 881(c)(3)(A) of the Code (x)
two duly completed copies of either Internal Revenue Service Form 1001 or 4224
or applicable successor form, as the case may be, and (y) one duly completed
copy of Internal Revenue Service Form W-8 or W-9 or applicable successor form,
as the case may be, and (ii) in the case of a Foreign Lender that is not a bank
under Section 881(c)(3)(A) of the Code, (x) a certificate (an "Exemption
Certificate") of a duly authorized officer of such Foreign lender certifying
that such Foreign Lender is entitled to receive payments under the Loan
Documents without deduction or withholding of United States federal income taxes
because such Foreign Lender is not (A) a "bank" within the meaning of Section
881(c)(3)(A) of the Code, (B) a "10 percent shareholder" of the Borrower within
the meaning of section 881(c)(3)(B) of the Code or (C) a controlled
30
foreign corporation receiving interest from a related person within the meaning
of section 881(c)(3)(C) of the Code and (y) two duly completed copies of
Internal Revenue Form W-8 (or applicable successor form) to establish an
exemption from United States withholding tax.
(f) If the Administrative Agent or any Lender determines in its
reasonable discretion that it is entitled to receive a refund, credit or other
tax benefit in respect of Taxes with respect to which it has received additional
amounts from the Borrower pursuant to paragraph (a) above or as to which it has
been indemnified by the Borrower pursuant to paragraph (b) or (c) above, the
Administrative Agent or such Lender, as applicable, shall notify the Borrower
and shall, within 45 days (or such shorter period of time as may be prescribed
by applicable law for a timely application) after receipt of a request by the
Borrower, apply for such refund, credit or other tax benefit at the Borrower's
expense. The Administrative Agent or such Lender, as applicable, shall in good
faith prepare or amend any filings, returns or other documentation required to
obtain such refund, credit or other tax benefit and the Borrower shall have no
right to participate therein. If the Administrative Agent or such Lender, as
applicable, receives a refund, credit or other tax benefit pursuant to this
paragraph (f), the Administrative Agent or such Lender, as applicable, shall
promptly pay such amount to the Borrower together with any interest received
thereon.
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of
--------------------------------------------------
Setoffs.
-------
(a) The Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest or
fees, or of amounts payable under Section 2.13, 2.14 or 2.15, or otherwise)
prior to 12:00 noon, New York City time, on the date when due, in immediately
available funds, without setoff or counterclaim. Any amounts received after such
time on any date may, in the discretion of the Administrative Agent, be deemed
to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the
Administrative Agent to an account or accounts designated by the Administrative
Agent at a bank in New York, New York, except that payments pursuant to Sections
2.13, 2.14(a), 2.15 and 9.03 shall be made directly to the Persons entitled
thereto and payments pursuant to other Loan Documents shall be made to the
Persons specified therein. The Administrative Agent shall distribute any such
payments received by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment under any Loan
Document shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All payments under each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, towards payment
of interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal then due to such parties.
31
(c) If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans; provided that (i) if any such participations are
--------
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) Without limiting the generality of paragraph (a) above, the
Borrower's obligations to make each payment required to be made by it hereunder
or under any other Loan Document (whether of principal, interest, fees or
otherwise) shall be absolute and unconditional and shall not be subject to any
delay, reduction, setoff, defense or recoupment for any reason, including any
failure of the Network or any part thereof, or any dispute with, breach of
representation or warranty by or claim against any supplier, manufacturer,
installer, vendor or distributor, including Lucent. The provisions of this
paragraph shall not be construed to constitute a waiver by the Borrower of any
rights that the Borrower may have under the Supply Agreement or (except for
rights that the Borrower may have been able to assert hereunder if not for the
preceding sentence) any other rights at law or in equity with respect to any
item purchased from Lucent by the Borrower or its Affiliates.
32
SECTION 2.17. Mitigation Obligations; Replacement of Lenders.
----------------------------------------------
(a) If any Lender requests compensation under Section 2.13, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.13 or 2.15, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender or the
Borrower. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment;
provided that if such costs and expenses would exceed the increased costs or
additional amounts to be eliminated or avoided by such designation or
assignment, then such Lender shall not be required to make such designation or
assignment and the Borrower shall not be required to pay such costs and
expenses.
(b) If any Lender requests compensation under Section 2.13, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
or if any Lender defaults in its obligation to fund Loans hereunder then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee (which assignee shall be reasonably acceptable to the Borrower if
such assignment is required because the Borrower is required to pay additional
amounts pursuant to Section 2.15) that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
--------
that (i) the Borrower shall have received the prior written consent of the
Administrative Agent, which consent shall not unreasonably be withheld or
delayed and (ii) such Lender shall have received payment of an amount equal to
the outstanding principal of its Loans, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder, from the assignee (to the extent
of such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts). A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
ARTICLE III
Representations and Warranties
------------------------------
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Borrower and its
--------------------
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority, including all Licenses, to carry on its business as now conducted
and, except where the failure to do so, individually or in
33
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transactions to
-----------------------------
be entered into by the Borrower are within the Borrower's corporate powers and
have been duly authorized by all necessary corporate and, if required,
stockholder action. This Agreement has been duly executed and delivered by the
Borrower and constitutes, and each other Loan Document to which the Borrower is
to be a party, when executed and delivered by the Borrower, will constitute, a
legal, valid and binding obligation of the Borrower, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
------------------------------------
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except (i) such as have been
obtained or made and are in full force and effect, and (ii) filings necessary to
perfect Liens created under the Loan Documents, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of the Borrower or its Subsidiaries or any order of any Governmental
Authority, (c) will not violate or result in a default under any material
indenture, agreement or other instrument binding upon the Borrower or its
Subsidiaries or any of their assets, or give rise to a right thereunder to
require any payment to be made by the Borrower or any of its Subsidiaries, and
(d) will not result in the creation or imposition of any Lien on any asset of
the Borrower, except Liens created under the Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse Change.
-----------------------------------------------
(a) The Borrower has heretofore furnished to each Lender its
consolidated balance sheet and statements of income, stockholders equity and
cash flows as of and for the fiscal year ended December 31, 1998. Such financial
statements present fairly, in all material respects, the financial position and
results of operations and cash flows of the Borrower and its consolidated
Subsidiaries as of the dates and for the periods indicated therein in accordance
with GAAP.
(b) Since the date of the most recent financial statements provided to
the Administrative Agent, there has been no Material Adverse Change.
SECTION 3.05. Properties; Licenses.
--------------------
(a) Each of the Borrower and its Subsidiaries has good title in all
personal property material to its business, subject to Liens permitted pursuant
to Section 6.02.
(b) Each of the Borrower and its Subsidiaries has title in fee simple
to, or valid leasehold interests in, all real property material to its business
(including Mortgaged Properties), subject to liens permitted pursuant to Section
6.02. Except as set forth on Schedule 3.05(b) and except as otherwise consented
to in writing by the Administrative Agent, all such interests in real property
other than the Mortgaged Properties (the "Real Estate Assets") are held by AGW.
------------------
34
As of the Closing Date, the Borrower and its Subsidiaries, individually or
jointly, own or lease only that real property (including the Real Estate Assets)
described in Schedule 3.05(b).
(c) The Borrower and each of its Subsidiaries owns, or is licensed to
use, all Intellectual Property material to its business, and the use thereof
does not infringe upon the rights of any other Person, except for any such
infringements that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. As of the Closing Date, except
as set forth in Schedule 3.05(c), neither the Borrower nor any of its
Subsidiaries has any right, title or other interest in, or license to use, any
Intellectual Property.
(d) As of the Closing Date, neither the Borrower nor any of its
Subsidiaries has received notice of, or has knowledge of, any pending or
contemplated condemnation proceeding affecting any Mortgaged Property owned in
fee simple by the Borrower or any Subsidiary or any sale or disposition thereof
in lieu of condemnation, and such Mortgaged Property is not subject to any right
of first refusal, option or other contractual right to purchase such Mortgaged
Property or interest therein.
(e) To the best of Borrower's knowledge, each PCS License required to
operate the Network has been obtained by and duly issued to SprintCom, Inc.
and/or its Affiliates by the FCC or other relevant Governmental Authority is in
full force and effect and there are no grounds for any revocation, early
termination or suspension of, or similar action with respect to, any PCS
License.
SECTION 3.06. Litigation and Environmental Matters.
------------------------------------
(a) Except as described in Schedule 3.06, there are no actions, suits or
proceedings by or before any arbitrator or Governmental Authority pending
against or, to the knowledge of the Borrower, threatened against or affecting
the Borrower or its Subsidiaries (i) as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect or (ii) that involve any of the Loan Documents or the
Transactions.
(b) Except with respect to matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, none of the Borrower or any of its Subsidiaries (i) has failed to comply
with any Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required under any Environmental Law, (ii) has become
subject to any Environmental Liability, (iii) has received notice of any claim
with respect to any Environmental Liability or (iv) knows of any basis for any
Environmental Liability.
SECTION 3.07. Compliance with Laws, Agreements and Licenses. Each of
---------------------------------------------
the Borrower and its Subsidiaries is in compliance with all laws, regulations
and orders of any Governmental Authority (including the FCC) applicable to it or
its property and all indentures, agreements and other instruments (including all
Licenses) binding upon it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 3.08. No Default. No Default has occurred and is continuing.
----------
35
SECTION 3.09. Investment and Holding Company Status. None of the
-------------------------------------
Borrower or any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.10. Taxes. The Borrower and each of its Subsidiaries has
-----
timely filed or caused to be filed all federal and state income tax returns and
all other material tax returns and reports required to have been filed and has
paid or caused to be paid all federal and state income taxes and all other
material Taxes required to have been paid by it, except for (a) Taxes that are
being contested in good faith by appropriate proceedings and for which such
party has set aside on its books adequate reserves or (b) local tax returns and
reports to the extent that the failure to do so could not reasonably be expected
to result in a Material Adverse Effect.
SECTION 3.11. ERISA. No ERISA Event has occurred or is reasonably
-----
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, would reasonably be expected to
result in a Material Adverse Effect. As of the Closing Date, there are not any
Plans. With respect to any Plans created after the Closing Date, the present
value of all accumulated benefit obligations under each such Plan (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No.
87) did not, as of the date of the most recent financial statements reflecting
such amounts, exceed by more than $2,000,000 the fair market value of the assets
of such Plan, and the present value of all accumulated benefit obligations of
all underfunded Plans (based on the assumptions used for purposes of Statement
of Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than
$5,000,000 the fair market value of the assets of all such underfunded Plans.
SECTION 3.12. Disclosure. The Borrower has disclosed to the Lenders all
----------
agreements, instruments and corporate or other restrictions to which any of the
Borrower or its Subsidiaries is subject, and all other matters known to any of
them, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. None of the reports, financial statements,
certificates or other information, taken as a whole furnished by or on behalf of
the Borrower and its Subsidiaries to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement or any other Loan Document or
delivered hereunder or thereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading in any material
respect; provided, that with respect to projections of financial information,
the Borrower represents only that such information was prepared in good faith
based upon assumptions believed by the Borrower to be reasonable at the time.
SECTION 3.13. Subsidiaries.
------------
(a) As of the Closing Date, the Borrower does not have any Subsidiary
other than AGW. All equity interests in or outstanding shares of capital stock
of AGW are owned directly by the Borrower.
36
(b) AGW has not engaged in any business or activity other than owning,
leasing and permitting the Borrower to use the Real Estate Assets, and
activities incidental thereto. Except as set forth on Schedule 3.13, AGW does
not own and has not otherwise acquired any assets (other than Real Estates
Assets) and has not incurred any Indebtedness (other than pursuant to the
Guaranty Agreement and the Security Documents) or other liability (other than
liabilities for franchise taxes and similar liabilities incidental to its
existence and liabilities incurred in connection with owning or leasing the Real
Estate Assets).
SECTION 3.14. Insurance. Schedule 3.14 sets forth a description of all
---------
insurance maintained by or on behalf of the Borrower and its Subsidiaries as of
the Closing Date. The insurance maintained by or on behalf of the Borrower and
its Subsidiaries meets the requirements set forth in Section 5.07 and all
premiums in respect of such insurance have been paid or are not yet due.
SECTION 3.15. Labor Matters. As of the Closing Date, there are no
-------------
strikes, lockouts or slowdowns against the Borrower and its Subsidiaries pending
or, to the knowledge of the Borrower and its Subsidiaries, threatened. With such
exceptions as could not reasonably be expected to have a Material Adverse
Effect, the hours worked by and payments made to employees of the Borrower and
its Subsidiaries have not been in violation of the Fair Labor Standards Act or
any other applicable Federal, state, local or foreign law dealing with such
matters. All payments due from the Borrower and its Subsidiaries, or for which
any claim may be made against the Borrower and its Subsidiaries, on account of
wages and employee health and welfare insurance and other benefits, have been
paid or accrued as a liability on the books of the such party. The consummation
of the Transactions will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement
to which the Borrower and its Subsidiaries is bound.
SECTION 3.16. Supply Agreement. The Borrower (i) is in compliance in
----------------
all material respects with the terms and conditions of the Supply Agreement and
(ii) has not terminated, nor taken any action which could result in the
termination of, the Supply Agreement.
SECTION 3.17. No Burdensome Restrictions. No Requirement of Law or
--------------------------
Contractual Obligation (other than, in the case of clause (b) below, any
restriction under Sections 6.04 and 6.06 hereof) applicable to the Borrower or
any of its Subsidiaries could reasonably be expected to (a) have a Material
Adverse Effect or (b) limit the ability of any Subsidiary to pay dividends or to
make distributions or advances to the Borrower or any other Subsidiary except as
contemplated by Section 6.08.
SECTION 3.18. Security Documents.
------------------
(a) The Pledge Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties (as defined in
the Pledge Agreement), a legal, valid and enforceable security interest in the
Collateral (as defined in the Pledge Agreement) and, when the stock certificates
and other instruments evidencing such Collateral are delivered to the Collateral
Agent, the Pledge Agreement shall constitute a fully perfected first priority
Lien on, and security interest in, all right, title and interest of the pledgors
thereunder in such Collateral, in each case prior and superior in right to any
other Person.
37
(b) The Security Agreement and the Guarantor Security Agreement are
effective to create in favor of the Collateral Agent, for the ratable benefit of
the Secured Parties, legal, valid and enforceable security interests in the
Collateral (as defined in each of the Security Agreement and the Guarantor
Security Agreement) and, when financing statements in appropriate form are filed
in the appropriate offices, each Lien created by each of the Security Agreement
and the Guarantor Security Agreement shall constitute a fully perfected (to the
extent such lien can be perfected by such filing) Lien on, and security interest
in, all right, title and interest of the grantors thereunder in such Collateral
(other than the Intellectual Property), in each case prior and superior in right
to any other Person, other than with respect to Liens expressly permitted by
each of the Security Agreement, the Guarantor Security Agreement or this
Agreement.
(c) Each Mortgage, if any, is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable Lien on all of the Borrower's or any of its Subsidiaries' right,
title and interest in and to the Mortgaged Property thereunder and the proceeds
thereof, and when filed in the appropriate filing offices, each such Mortgage
shall constitute a fully perfected Lien on, and security interest in, all right,
title and interest of such party in such Mortgaged Property and the proceeds
thereof, in each case prior and superior in right to any other Person, other
than with respect to the rights of Persons pursuant to Liens expressly permitted
by such Mortgage or this Agreement.
SECTION 3.19. Year 2000 Compliance. The Borrower and each of its
--------------------
Subsidiaries has [to the extent it reasonably deemed necessary] (a) initiated a
review and assessment of all areas within its business and operations (including
those affected by suppliers and vendors) that could be adversely affected by the
risk that computer applications used by it (or its suppliers and vendors) may be
unable to recognize and perform properly date-sensitive functions involving
certain dates prior to and any date after December 31, 1999 (the "Year 2000
---------
Problem"), (b) developed a plan and timetable for addressing the Year 2000
- -------
Problem on a timely basis, and (c) implemented such plan in accordance with such
timetable in all material respects. Each of the Borrower and its Subsidiaries
reasonably believe that all computer applications (including those of suppliers
and vendors other than Lucent) that are material to its business, condition
(financial or otherwise), operations, properties, results of operations, value
or prospects, will on a timely basis be able to perform properly date-sensitive
functions for all dates prior to, on and after January 1, 2000, except where
such inability to perform would not have a Material Adverse Effect.
SECTION 3.20. Sprint Affiliation Agreements. The Sprint Affiliation
-----------------------------
Agreements and any assignments thereof, true and complete copies of which have
been furnished to the Administrative Agent, have been duly authorized, executed
and delivered by all parties thereto, as of the Closing Date have not been
amended or otherwise modified except as set forth in Schedule 3.20, and are in
full force and effect and are binding upon and enforceable against all parties
thereto in accordance with their terms. To the extent any Sprint Affiliation
Agreement was not originally executed by the Borrower, but rather by an
Affiliate of the Borrower, such Sprint Affiliation Agreement has been assigned
to the Borrower, all third party consents required with respect to such
assignment have been obtained and each of the Borrower and the SprintCom, Inc.
Affiliate or Affiliates a party to such assignment are bound by the terms of
such assignment. There has occurred no (i) default which could reasonably be
expected to have a
38
Material Adverse Effect, (ii) Management Agreement Breach or (iii) Event of
Termination, in each case under any Sprint Affiliation Agreement by any party
thereto.
ARTICLE IV
Conditions
----------
SECTION 4.01. Tranche 1 Loans. The obligations of each Lender to make
---------------
the first Tranche 1 Loan hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance
with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated the
Closing Date) of each of (i) Patton Boggs LLP, counsel for the Borrower and
the Subsidiaries, substantially in the form reasonably acceptable to the
Administrative Agent, and (ii) local counsel for the Borrower and its
Subsidiaries, in a form reasonably acceptable to the Administrative Agent,
covering such other matters relating to the Borrower and its Subsidiaries,
the Loan Documents or the Transactions as the Administrative Agent shall
reasonably request.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing the
Borrower and each of its Subsidiaries, the authorization of the Transactions
and any other legal matters relating to the Borrower and each of its
Subsidiaries, the Loan Documents or the Transactions, all in form and
substance reasonably satisfactory to the Administrative Agent and its
counsel.
(d) The Administrative Agent shall have received a certificate, dated
the Closing Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming compliance with the conditions
set forth in Section 4.03.
(e) Each of the Administrative Agent and the Collateral Agent shall have
received counterparts of (i) the Guaranty Agreement signed on behalf of each
Subsidiary and (ii) any subordination agreements and/or pledge agreements,
if any, required in order to comply with Section 6.07(b).
(f) The Collateral Agent shall have received (i) counterparts of the
Pledge Agreement signed on behalf of the Borrower, (ii) stock certificates
representing all the equity interests in or outstanding shares of capital
stock of each Subsidiary owned by or on behalf of the Borrower, (iii) all
promissory notes evidencing Indebtedness owed to the Borrower or any
Subsidiary and (iv) stock powers and instruments of transfer, endorsed in
blank, with respect to such stock certificates and promissory notes.
39
(g) The Collateral Agent shall have received (i) counterparts of the
Security Agreement signed on behalf of the Borrower, (ii) counterparts of
the Guarantor Security Agreement signed on behalf of AGW, (iii) evidence
satisfactory to the Collateral Agent that all documents and instruments,
including Uniform Commercial Code financing statements, required by law or
reasonably requested by the Collateral Agent to be filed, registered or
recorded to create or perfect the Liens intended to be created under each of
the Security Agreement and the Guarantor Security Agreement have been so
filed, registered or recorded and arrangements satisfactory to the
Administrative Agent shall have been made for the filing, registering or
recording thereof on or prior to the Closing Date and (iv) all Mortgages
required to be entered into pursuant to the terms hereof.
(h) The Collateral Agent shall have received (i) the results of a
search of the Uniform Commercial Code (or equivalent) filings made with
respect to the Borrower and its Subsidiaries in the jurisdictions requested
by the Administrative Agent and/or the Collateral Agent (ii) copies of the
financing statements (or similar documents) disclosed by such search and
(iii) evidence reasonably satisfactory to the Collateral Agent that the
Liens indicated by such financing statements (or similar documents) are
permitted by Section 6.02 or have been released.
(i) The Borrower shall be in compliance in all material respects with
the terms of each of the Supply Agreement and the Sprint Affiliation
Agreements, each of which shall be valid and in full force and effect.
(j) The Borrower and Lucent shall have entered into a cooperation
agreement, in form and substance satisfactory to Lucent, whereby the
Borrower agrees to cooperate in the marketing and syndication of the Loans
by Lucent (the"Cooperation Agreement").
----------------------
(k) Except as specified in Schedule 3.06, there shall exist no action,
suit, investigation or proceeding pending or to the knowledge of the
Borrower threatened in any court or before any arbitrator or government
instrumentality that might be expected to result in a Material Adverse
Change, or that purports to affect the legality, validity or enforceability
of the Loan Documents or the Transactions contemplated thereby or any
Lender's rights thereunder.
(l) The Borrower and its Subsidiaries (as applicable) shall have paid
all filing and recording fees and taxes relating to the Collateral due and
owing as of the Closing Date.
(m) The Borrower shall have printed a preliminary prospectus that will
be distributed to potential investors, with respect to the offering by the
Borrower to the public of no less than $215 million of unsecured debt
subordinated to the Loans or equity of which not less than $85 million will
be equity substantially on terms and conditions set forth in the
Registration Statement on Form S-1 filed with the Securities and Exchange
Commission on August 2, 1999 including the preliminary prospectuses filed
in connection therewith.
(n) On or prior to the Closing Date, the Administrative Agent and the
Collateral Agent shall have received all outstanding fees and other amounts
due and
40
payable to them from the Borrower as of the Closing Date, including, to the
extent invoiced, reimbursement or payment of all out of pocket expenses
required to be reimbursed or paid by the Borrower hereunder, pursuant to
the Cooperation Agreement or under any other Loan Document.
(o) The Consent shall have been executed by the parties thereto, on
terms and conditions satisfactory to the Administrative Agent.
(p) The Administrative Agent and the Collateral Agent shall each have
received evidence of the Borrower's satisfaction of the insurance
requirements set forth in Section 5.07.
(q) Borrower shall have paid all outstanding amounts due under the Note,
including principal, interest and any applicable fees, or made
arrangements, satisfactory to Lucent, for the payment of such amounts.
(r) The Administrative Agent shall have received from the SprintCom,
Inc. Affiliate(s) which holds the PCS Licenses, a certificate signed on
behalf of such Affiliate and dated the Closing Date which certifies (i)
that all of PCS Licenses required to operate the Network have been obtained
and remain in effect, such Affiliate is in compliance in all material
respects with the terms of each PCS License, no law or regulation has
impaired the use of such PCS Licenses and such Affiliate has not received
from the FCC or any other relevant party any notice that such party intends
to terminate, amend or modify any of the PCS Licenses; and (ii) that to its
knowledge except as set forth in the certificate all interconnection
agreements necessary to operate the Network have been obtained and are in
full force and effect and SprintCom, Inc. is in compliance in all material
respects with the terms and conditions set forth therein. No law or
regulation has impaired the use of any such agreement and such Affiliate
has not received from any relevant party any notice that such party intends
to terminate, amend or modify any such agreement.
SECTION 4.02. Tranche 2 Loans. The obligations of each Lender to
---------------
make the first Tranche 2 Loan hereunder shall not become effective until the
date on which the conditions specified in Section 4.03 and each of the following
conditions is satisfied (or waived in accordance with Section 9.02), it being
understood that such date may occur at any time on or after the Closing Date;
provided that no Default then exists (the "Effective Date").
(a) The Administrative Agent and the Collateral Agent shall have
received all outstanding fees and other amounts due and payable to them
from the Borrower as of the Effective Date, including, to the extent
invoiced, reimbursement or payment of all out of pocket expenses required
to be reimbursed or paid by the Borrower hereunder, pursuant to the
Cooperation Agreement or under any other Loan Document..
(b) The Administrative Agent shall be satisfied with any Material
Adverse Changes to the Borrower's business and financing plan provided to
the Administrative Agent on the Closing Date.
41
(c) The Borrower shall have received not less than $215,000,000 in cash
proceeds from the issuance of equity (on terms consistent with the
prospectus referred to in Section 4.01(m)) and/or debt obligations
(pursuant to the Indenture), of which not less than $85,000,000 shall be
equity.
(d) The Administrative Agent and/or the Lenders, and the Trustee for the
holders of the senior subordinated discount notes issued pursuant to the
Indenture shall have entered into the Intercreditor Agreement.
(e) The Indenture shall have been executed by the parties thereto on
terms and conditions satisfactory to the Administrative Agent.
(f) If the Effective Date is more than three (3) months after the
Closing Date, the Administrative Agent shall have received from the
appropriate Affiliate(s) of SprintCom, Inc., a certificate meeting the
requirements of Section 4.01(r) signed on behalf of such Affiliate and
dated the Effective Date.
(g) The first Tranche I Loan has been made.
(h) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of each of (i) counsel for the Borrower and the
Subsidiaries, substantially in the form reasonably acceptable to the
Administrative Agent, and (ii) local counsel for the Borrower and its
Subsidiaries, in a form reasonably acceptable to the Administrative Agent,
covering such other matters relating to the Borrower and its Subsidiaries,
the Loan Documents or the Transactions as the Administrative Agent shall
reasonably request.
(i) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing the
Borrower and each of its Subsidiaries, the authorization of the
Transactions and any other legal matters relating to the Borrower and each
of its Subsidiaries, the Loan Documents or the Transactions, all in form
and substance reasonably satisfactory to the Administrative Agent and its
counsel.
(j) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming compliance with the
conditions set forth in Section 4.03.
(k) The Administrative Agent shall have received counterparts of any
subordination agreements and/or pledge agreements, if any, required in
order to comply with Section 6.07(b).
(l) The Collateral Agent shall have received (i) all promissory notes
evidencing Indebtedness owed to the Borrower or any Subsidiary, (ii) all
stock certificates representing all the equity interests in or outstanding
shares of capital stock of each Subsidiary owned by or on behalf of the
Borrower or any Subsidiary and (iii) stock powers and instruments of
transfer, endorsed in blank, with respect to such stock certificates and
promissory notes.
42
(m) The Borrower shall be in compliance in all material respects with
the terms of each of the Supply Agreement and the Sprint Affiliation
Agreements, each of which shall be valid and in full force and effect.
(n) Except as specified in Schedule 3.06, there shall exist no action,
suit, investigation or proceeding pending or to the knowledge of the
Borrower threatened in any court or before any arbitrator or government
instrumentality that might be expected to result in a Material Adverse
Change, or that purports to affect the legality, validity or enforceability
of the Loan Documents or the Transactions contemplated thereby or any
Lender's rights thereunder.
(o) The Borrower and its Subsidiaries (as applicable) shall have paid
all filing and recording fees and taxes relating to the Collateral due and
owing as of the Effective Date.
(p) The Administrative Agent and the Collateral Agent shall each have
received evidence of the Borrower's compliance with, as of the Effective
Date, the insurance requirements set forth in Section 5.07.
If the Borrower so requests, the Administrative Agent shall notify the Borrower
and the Lenders of the Effective Date, and such notice shall be conclusive and
binding. The Borrower may request a Tranche 2 Borrowing on or after the
occurrence of the Effective Date and during the Tranche 2 Availability Period;
provided that the conditions set forth in Section 4.03 must also be satisfied as
- --------
of such date.
SECTION 4.03. Conditions for Each Loan. The obligations of the Lenders
------------------------
to make any Loan hereunder, including the first Loan under Tranche 1 or Tranche
2, shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 9.02):
(a) The representations and warranties of the Borrower and its
Subsidiaries set forth in the Loan Documents shall be true and correct in
all material respects on and as of the date of such Loan except to the
extent a representation and warranty expressly relates solely to an earlier
date in which case such representation and warranty shall have been true
and correct in all material respects on such earlier date; and
(b) At the time of and immediately after giving effect to such Loan no
Default or Event of Default shall have occurred and be continuing.
Each Loan shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in this Section.
43
ARTICLE V
Affirmative Covenants
---------------------
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The Borrower
------------------------------------------
will furnish to the Administrative Agent with copies for each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower,
its audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end of and for
such year, setting forth in each case in comparative form the figures for
the previous fiscal year, all reported on by KPMG, LLP or other independent
public accountants of recognized national standing (without a "going
concern" or like qualification or exception and without any qualification
or exception as to the scope of such audit) to the effect that such
consolidated financial statements present fairly in all material respects
the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, its consolidated balance
sheet and related statements of operations, stockholders' equity and cash
flows as of the end of and for such fiscal quarter and the then elapsed
portion of the fiscal year, setting forth in each case in comparative form
the figures for the corresponding period or periods of (or, in the case of
the balance sheet, as of the end of) the previous fiscal year, all
certified by one of its Financial Officers as presenting fairly in all
material respects the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) concurrently with any delivery of the Borrower's financial
statements under clause (a) or (b) above, a certificate of a Financial
Officer of the Borrower (i) certifying as to whether a Default has occurred
and, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) setting
forth reasonably detailed calculations demonstrating compliance with
Sections 6.13 through 6.22, (iii) certifying the number of Covered POPS and
the number of PCS Subscribers as of the end of the most recent fiscal
quarter, (iv) setting forth any new locations of real property owned in fee
simple or leased by AGW or the Borrower acquired since the date of the last
certificate delivered pursuant to this clause (c) and (v) stating whether
any change in GAAP or in the application thereof has occurred since the
date of the Borrower's most recent audited financial statements referred to
in Section 3.04 and, if any such change has occurred, specifying the effect
of such change on the financial statements accompanying such certificate;
44
(d) concurrently with any delivery of financial statements under clause
(a) above, an auditor's report from the accounting firm that reported on
such financial statements and a certificate issued by such firm stating
whether it obtained knowledge during the course of its examination of such
financial statements of any Default (which certificate may be limited to
the extent required by accounting rules or guidelines);
(e) promptly after the same become available, annual operating budgets
broken down on a quarterly basis with the same format and scope as those
provided to Lucent prior to the date of this Agreement, and prompt written
notice explaining in detail any material amendment or modification of or
departure from any such budget so delivered;
(f) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Borrower or any Subsidiary with the Securities and Exchange Commission,
or any Governmental Authority succeeding to any or all of the functions of
said Commission, or with any national securities exchange, or distributed
by the Borrower to its shareholders generally, as the case may be;
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of any Loan
Document, as the Administrative Agent or any Lender may reasonably request;
(h) as soon as available, but in no event later than 90 days after the
beginning of each fiscal year of the Borrower, the annual business plan of
Borrower for the current fiscal year and updated projections through the
Maturity Date reflecting, among other things, changes caused by actual
results of prior periods and changes in such business plan;
(i) promptly, and in any case within 10 Business Days, after any
additional subsidiary of the Borrower is acquired or formed, notice of the
name and jurisdiction of organization of such subsidiary, the Borrower's
direct or indirect ownership interest therein and all actions taken or to
be taken in order to comply with Section 5.11 with respect to such
subsidiary;
(j) Within 30 days after the end of each quarter through March 31, 2000,
the Borrower shall deliver to the Administrative Agent (with sufficient
copies for each Lender) a certificate signed by a Financial Officer setting
forth in reasonable detail the efforts of the Borrower with respect to (a)
reprogramming any computer programs used in the conduct of its business to
insure proper functioning of such programs on and after January 1, 2000 and
(b) seeking certifications from any vendors, customers or other Persons
with whom the Borrower has a business relationship in which such vendors,
customers or Persons certify that they are taking the steps necessary to
avoid a Year 2000 Problem. The Borrower shall take all actions reasonably
necessary to assure that there will be no Material Adverse Effect as a
result of a Year 2000 Problem.
45
SECTION 5.02. Notices of Material Events. The Borrower will furnish
--------------------------
to the Administrative Agent and each Lender prompt written notice upon obtaining
knowledge of the following:
(a) any amendment, modification, revocation, or termination of any
Sprint Affiliation Agreement or any PCS License or any agreement relating
thereto, if any, or receipt by the Borrower from SprintCom, Inc. and/or its
Affiliate of any written notice that a Management Agreement Breach or an
Event of Termination, or an event that if not cured or if notice is
provided would constitute a Management Agreement Breach or an Event of
Termination, has occurred under the Sprint Management Agreement;
(b) the occurrence of any Default;
(c) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any Subsidiary that, if adversely determined, could reasonably
be expected to result in a Material Adverse Effect;
(d) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate
amount exceeding $5,000,000;
(e) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Information Regarding Collateral.
--------------------------------
(a) The Borrower will furnish to the Collateral Agent prompt written
notice of any change (i) in the Borrower's or any Subsidiary's corporate name or
in any trade name used to identify it in the conduct of its business or in the
ownership of its properties, (ii) in the location of the Borrower's or any
Subsidiary's chief executive office, its principal place of business, any office
in which it maintains books or records relating to Collateral owned by it or any
office or facility at which Collateral (other than antennae or any related base
stations) owned by it is located (including the establishment of any such new
office or facility), (iii) in the Borrower's or any Subsidiary's identity or
corporate structure or (iv) in the Borrower's or any Subsidiary's Federal
Taxpayer Identification Number; provided that only quarterly notices pursuant to
5.01(c) hereof shall be required with respect to new locations of real property
owned in fee simple or leased by AGW or the Borrower used for the purpose of the
installation or relocation of antennae or any related base stations. The
Borrower agrees not to effect or permit any change referred to in the preceding
sentence unless all filings have been made under the Uniform Commercial Code or
otherwise as requested by the Administrative Agent that are required in order
for the Collateral Agent to continue at all times following such change to have
a valid, legal and perfected security interest in all the Collateral as required
by the Security Agreement. The
46
Borrower also agrees promptly to notify the Collateral Agent if any material
portion of the Collateral is damaged or destroyed.
(b) Each year, at the time of delivery of annual financial statements
for the Borrower with respect to the preceding fiscal year pursuant to clause
(a) of Section 5.01, the Borrower shall deliver to the Collateral Agent a
certificate of a Financial Officer certifying that the Borrower provided all of
the information required pursuant to Section 5.03(a) during the preceding fiscal
year.
SECTION 5.04. Existence; Conduct of Business.
------------------------------
(a) The Borrower will, and will cause each of the Subsidiaries to, do or
cause to be done all things necessary to (a) preserve, renew and keep in full
force and effect its legal existence and the rights, Licenses, privileges and
franchises material to the conduct of its business and to comply with the terms
and conditions thereof; provided that the foregoing shall not prohibit any
--------
merger, consolidation, liquidation or dissolution or disposition permitted under
Section 6.03.
(b) On and after the Closing Date, all equity interests or outstanding
shares of capital stock of each Subsidiary shall be owned directly by the
Borrower. The only business or activity of AGW shall be the ownership of Real
Estate Assets and activities incidental thereto. Except as permitted by this
Agreement, no Subsidiary shall own or acquire any assets (other than, with
respect to AGW, Real Estate Assets) or incur any Indebtedness (other than
pursuant to the Guaranty Agreement and the Security Documents) or other
liability (other than liabilities for franchise taxes and similar liabilities
incidental to its existence and liabilities incurred in connection with owning
and leasing Real Estate Assets). No Subsidiary shall sell, assign or otherwise
transfer any asset held by it, except as permitted in accordance with the terms
of this Agreement.
SECTION 5.05. Payment of Obligations. The Borrower will, and will
----------------------
cause each of the Subsidiaries to, pay its Indebtedness and other material
obligations, including Tax liabilities and other amounts owed to Governmental
Authorities, before the same shall become delinquent or in default, except where
(a) the validity or amount thereof is being contested in good faith by
appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on
its books adequate reserves with respect thereto in accordance with GAAP, (c)
such contest effectively suspends collection of the contested obligation and the
enforcement of any Lien securing such obligation and (d) the failure to make
payment pending such contest could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 5.06. Maintenance of Properties. The Borrower will, and will
-------------------------
cause each of the Subsidiaries to, keep and maintain all property material to
the conduct of its business in good working order and condition, ordinary wear
and tear excepted.
SECTION 5.07. Insurance.
---------
(a) The Borrower will, and will cause each of the Subsidiaries to,
maintain, with financially sound and reputable insurance companies, insurance in
such amounts and against such risks (including fire, business interruption and
other risks insured by extended coverage) as
47
are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations, including public
liability insurance against claims for personal injury, death or property damage
occurring upon, about or in connection with the use of any properties owned,
occupied or controlled by it as well as such other insurance as may be required
by law.
(b) All polices of casualty insurance maintained by or for the benefit
of the Borrower or any Subsidiary shall be endorsed or otherwise amended to
include a "standard" or "New York" lender's loss payable endorsement, in favor
of and satisfactory to the Collateral Agent, which endorsement shall provide
that if the insurance carrier shall have received written notice from the
Administrative Agent or the Collateral Agent of the occurrence of a Default, or
if the proceeds payable thereunder are in an amount exceeding $1,000,000, then
the insurance carrier shall pay all proceeds otherwise payable to the Borrower
or any Subsidiary under such policies directly to the Collateral Agent subject
to Section 5.13. All such policies also shall provide that neither the Borrower,
the Administrative Agent, the Collateral Agent nor any other party shall be a
coinsurer thereunder and shall contain a "Replacement Cost Endorsement", without
any deduction for depreciation, "mortgagee's interest"/"breach of warranty
coverage" and such other provisions as the Administrative Agent or the
Collateral Agent may reasonably require from time to time to protect the
interests of the Lenders. To the extent obtainable on commercially reasonable
terms from the Borrower's insurers, each such policy also shall provide that it
shall not be canceled, modified or not renewed (i) by reason of nonpayment of
premium except upon not less than 10 days' prior written notice thereof by the
insurer to the Administrative Agent and the Collateral Agent (giving the
Administrative Agent and the Collateral Agent the right to cure defaults in the
payment of premiums) or (ii) for any other reason except upon not less than 30
days' prior written notice thereof by the insurer to the Administrative Agent
and the Collateral Agent. The Borrower shall deliver to the Administrative Agent
and the Collateral Agent, prior to any cancellation, modification or nonrenewal
of any such policy of insurance, a copy of a renewal or replacement policy (or
other evidence of renewal of a policy previously delivered to the Administrative
Agent and the Collateral Agent) together with evidence satisfactory to the
Administrative Agent and the Collateral Agent of payment of the premium
therefor.
(c) If at any time the area in which any Mortgaged Property is located
is designated (i) a "flood hazard area" in any Flood Insurance Rate Map
published by the Federal Emergency Management Agency (or any successor agency),
the Borrower shall obtain flood insurance in such total amount as the
Administrative Agent, the Collateral Agent or the Required Lenders may from time
to time require, and otherwise comply with the National Flood Insurance Program
as set forth in the Flood Disaster Protection Act of 1973, as amended from time
to time, or (ii) a "Zone 1" area, the Borrower shall obtain earthquake insurance
in such total amount as the Administrative Agent, the Collateral Agent or the
Required Lenders may from time to time require.
(d) With respect to any Mortgaged Property, the Borrower shall carry and
maintain comprehensive general liability insurance including the "broad form CGL
endorsement" and coverage on an occurrence basis against claims made for
personal injury (including bodily injury, death and property damage), naming the
Collateral Agent as an additional insured, in scope and form reasonably
satisfactory to the Collateral Agent.
48
(e) The Borrower shall notify the Administrative Agent and the
Collateral Agent immediately whenever any separate insurance concurrent in form
or contributing in the event of loss with that required to be maintained under
this Section is taken out by the Borrower or any Subsidiary; and shall promptly
deliver to the Administrative Agent and the Collateral Agent a duplicate
original copy of such policy or policies.
SECTION 5.08. Books and Records; Inspection Rights. The Borrower will,
------------------------------------
and will cause each of its Subsidiaries to, keep proper books of record and
account in which true, complete and correct (in all material respects) entries
are made of all dealings and transactions in relation to its business and
activities. The Borrower will, and will cause each of the Subsidiaries to,
permit any representatives designated by either the Administrative Agent or any
Lender, upon reasonable prior notice, to visit and inspect its properties, to
examine and make extracts from its books and records, and to discuss its
affairs, finances and condition with its officers and independent accountants,
all at such reasonable times and as often as reasonably requested.
SECTION 5.09. Compliance with Laws and Agreements. The Borrower will,
-----------------------------------
and will cause each of the Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority (including the FCC)
applicable to it or its property and all of the terms and conditions contained
in indentures, agreements (including, without limitation, the Supply Agreement
and the Indenture), and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.10. Use of Proceeds. The proceeds of the Loans will be used
---------------
only as permitted by Section 2.02.
SECTION 5.11. Additional Subsidiaries. If any additional Subsidiary
-----------------------
shall be formed or acquired after the Closing Date, the Borrower will notify the
Administrative Agent and each Lender thereof and (i) the Borrower will cause
such Subsidiary to become a party to the Guaranty Agreement, the Guarantor
Security Agreement and any other security document the Administrative Agent and
the Collateral Agent reasonably require within three Business Days after such
Subsidiary is formed or acquired and promptly take all actions required to
create and perfect Liens on such Subsidiary's assets intended to be created by
the Loan Documents to secure the Obligations as the Collateral Agent or the
Administrative Agent shall reasonably request and (ii) the Borrower will cause
all equity interests in or shares of capital stock of such Subsidiary and
promissory notes evidencing all Indebtedness of such Subsidiary, in each case to
the extent owned by or on behalf of the Borrower or any Subsidiary, to be
pledged pursuant to the Guarantor Security Agreement within three Business Days
after such Subsidiary is formed or acquired.
SECTION 5.12. Further Assurances.
------------------
(a) The Borrower will, and will cause each Subsidiary to, execute any
and all further documents, financing statements, agreements and instruments, and
take all such further actions (including the filing and recording of financing
statements, fixture filings, mortgages, deeds of trust and other documents),
which may be required under any applicable law unless otherwise consented to by
the Agent, or which the Administrative Agent or the Required Lenders
49
may reasonably request, to effectuate the transactions contemplated by the Loan
Documents or to grant, preserve, protect or perfect the Liens created or
intended to be created by the Security Documents or the validity or priority of
any such Lien as contemplated by the Loan Documents, all at the expense of the
Borrower; provided that neither Borrower nor AGW shall be required to take any
such actions with respect to any of the real property owned or leased by AGW or
subleased by the Borrower from AGW except for sites to install Network switches.
The Borrower also agrees to provide to the Administrative Agent, upon its
reasonable request, evidence reasonably satisfactory to the Administrative Agent
as to the perfection and priority of the Liens created or intended to be created
by the Security Documents. Such Liens will be created under the Security
Documents and other security agreements, instruments and documents in form and
substance satisfactory to the Collateral Agent, and the Borrower shall deliver
or cause to be delivered to the Administrative Agent and each Lender all such
instruments and documents (including legal opinions, title insurance policies
and Lien searches) as the Collateral Agent shall reasonably request to evidence
compliance with this Section. Notwithstanding anything contained herein to the
contrary, the Borrower shall assign or transfer to AGW, and/or obtain leasehold
mortgages or landlord waivers in favor of the Collateral Agent with respect to,
all of the Borrower's interests in real property listed on Schedule 3.05(b), in
each case within ninety (90) days of the date hereof.
(b) If any material assets (including, but not limited to, Intellectual
Property and any Real Estate Assets or improvements thereto or any interest
therein and excluding Real Estate Assets of AGW and related subleases to the
Borrower other than those used as sites to install Network switches) are
acquired by the Borrower or any Subsidiary after the Closing Date (other than
assets constituting Collateral under the Pledge Agreement, the Security
Agreement or the Guarantor Security Agreement as of the Closing Date), the
Borrower will notify the Administrative Agent thereof, and, if requested by the
Administrative Agent or the Required Lenders, the Borrower will cause such
assets to be subjected to a Lien securing the Obligations to the extent
permitted by law and will take, and cause the Subsidiaries to take, such actions
as shall be necessary or reasonably requested by the Collateral Agent to grant
and perfect such Liens, including actions described in paragraph (a) of this
Section, all at the expense of the Borrower or such Subsidiary; provided that
--------
the provisions of this paragraph (b) shall not apply to any asset so long as
such asset is subject to a Lien permitted by clause (d) of Section 6.02.
(c) Except as otherwise provided for in Section 2.15, obligations to the
Lenders, the Administrative Agent and the Collateral Agent shall be absolute and
unconditional and shall not be subject to any delay, reduction, set-off,
defense, counterclaim or recoupment for any reason, including any failure of the
Collateral or the Network, or any part thereof, or any representation or service
of any supplier, manufacturer, installer, vendor or distributor, including,
without limitation, Lucent.
SECTION 5.13. Casualty and Condemnation.
-------------------------
(a) The Borrower will furnish to the Administrative Agent, the Collateral Agent
and the Lenders prompt written notice of any casualty or other insured
damage to any portion of the Network, any Mortgaged Property or other
material portion of Collateral or the commencement of any action or
proceeding for the taking of the Network, any Mortgaged
50
Property or other Collateral or any part thereof or interest therein under power
of eminent domain or by condemnation or similar proceeding.
(b) If any event described in paragraph (a) of this Section results in
Net Proceeds (whether in the form of insurance proceeds, condemnation award or
otherwise), the Collateral Agent is authorized to collect such Net Proceeds and,
if received by the Borrower or any Subsidiary, such Net Proceeds shall be paid
over to the Collateral Agent within two Business Days following the receipt of
such Net Proceeds; provided that if the aggregate Net Proceeds in respect of
--------
such event are less than $1,000,000, such Net Proceeds shall be paid over to the
Borrower unless a Default has occurred and is continuing. All such Net Proceeds
retained by or paid over to the Collateral Agent shall be held by the Collateral
Agent and released from time to time to pay the costs of repairing, restoring or
replacing the affected property in accordance with the terms of the applicable
Security Documents, subject to the provisions of the applicable Security
Documents regarding application of such Net Proceeds during a Default.
(c) If any Net Proceeds retained by or paid over to the Collateral Agent
as provided above continue to be held by the Collateral Agent on the date that
is 180 days after the occurrence of the event resulting in such Net Proceeds,
then such Net Proceeds shall be applied to prepay Borrowings as provided in
Section 2.09(b).
SECTION 5.14. Certain Intercompany Agreements. If, on or after the
-------------------------------
Closing Date, any Subsidiary conducts any material business or acquires any
material assets, the Borrower shall, if requested by the Administrative Agent or
the Required Lenders, enter into and cause such Subsidiary to enter into
agreements reasonably satisfactory to the Required Lenders providing for any
taxes and other expenses of such Subsidiary to be equitably allocated so that
the Borrower does not bear any such taxes or expenses that are not fairly
attributable to the Borrower.
SECTION 5.15. Interconnection and Co-location Agreements. The
------------------------------------------
Borrower shall have and maintain, directly or through an Affiliate of SprintCom,
Inc., all interconnection, interexchange and co-location agreements necessary to
operate the Network.
SECTION 5.16. Sprint Affiliation Agreements. The Borrower shall, and
-----------------------------
shall cause its Subsidiaries to, at its expense:
(a) Perform and observe all of the material terms and provisions of the
Sprint Affiliation Agreements to be performed or observed by it, maintain the
Sprint Affiliation Agreements in full force and effect and enforce the Sprint
Affiliation Agreements in accordance with their terms except as otherwise
contemplated by Section 6.10.
(b) Furnish to the Administrative Agent promptly upon receipt thereof
copies of all notices, requests and other documents received which involve
matters that would be of Material Adverse Effect to the Lenders which involve
the inability of the Borrower to perform in any material respect in each case
under or pursuant to any Sprint Affiliation Agreement, and from time to time (i)
furnish to the Administrative Agent such information and reports regarding the
Sprint Affiliation Agreements as the Administrative Agent may reasonably request
and (ii) upon the reasonable request of the Administrative Agent, make to
SprintCom, Inc., Sprint
51
Spectrum L.P. and Sprint Communications Company, L.P. such demands and requests
for information and reports or for action as the Borrower is entitled to make
under the Sprint Affiliation Agreements.
ARTICLE VI
Negative Covenants
------------------
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in
full, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Indebtedness. Without the prior written consent of the
------------
Administrative Agent, the Borrower will not, nor will it permit any Subsidiary
to, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness created under the Loan Documents;
(b) subject to Section 6.04, Indebtedness of the Borrower to any
Subsidiary and of any Subsidiary (other than AGW except with respect to (i)
intercompany obligations related to leases of real property and (ii)
Indebtedness permitted by Section 6.01(h)) to the Borrower or any other
Subsidiary;
(c) subject to Section 6.04, Guarantees by the Borrower of Indebtedness
of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower;
(d) Indebtedness of the Borrower or any Subsidiary (other than AGW)
incurred to finance the acquisition, construction or improvement of
any fixed or capital assets, including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such assets
or secured by a Lien on any such assets prior to the acquisition thereof,
and extensions, renewals and replacements of any such Indebtedness that do
not increase the outstanding principal amount thereof; provided that (i)
--------
such Indebtedness is incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement, (ii) any
such Indebtedness incurred in connection with any particular acquisition,
construction or improvement shall not exceed the cost of such acquisition,
construction or improvement, and (iii) the aggregate principal amount of
all Indebtedness permitted by this clause (d) shall not exceed $10,000,000
at any time outstanding;
(e) obligations of the Borrower under Hedging Agreements permitted
pursuant to Section 6.05;
(f) Indebtedness of the Borrower outstanding on the date hereof and set
forth on Schedule 6.01;
(g) prior to the Effective Date, with respect to the Borrower,
Indebtedness in an amount equal to the purchase price of goods and services
under the Supply Agreement deferred pursuant to the terms thereof or the
interest rate or other fees applicable thereto;
52
(h) Indebtedness of the Borrower under senior subordinated discount
notes which are subordinated to the Loans and issued pursuant to the
Indenture and unsecured Guarantees of such Indebtedness which are
subordinated to the Loans and issued pursuant to the Indenture;
(i) other unsecured Indebtedness of the Borrower in an aggregate
principal amount (at any time outstanding) not exceeding $10,000,000 minus
the aggregate principal amount of Indebtedness permitted pursuant to clause
(d) then outstanding;
(j) Indebtedness incurred in connection with the refinancing of
Indebtedness permitted by clause 6.01 (d), (f), (h), (i) and (j) above so
long as the Indebtedness incurred in connection with such refinancing (i)
has a scheduled maturity date that is on or after the scheduled maturity
date of the Indebtedness being refinanced, (ii) has a weighted average life
to maturity that is equal to or longer than the remaining weighted average
life to maturity of the Indebtedness being refinanced, determined
immediately prior to giving effect to such repayment. (iii) does not
include any provisions that may require mandatory prepayment thereof prior
to scheduled maturity, other than scheduled prepayments taken into
consideration in determining compliance with clause (ii) above and other
provisions that are not materially more burdensome than any such provisions
included in the Indebtedness being refinanced, (iv) is issued or incurred
by the same Person that issued or incurred the Indebtedness being
refinanced and is not Guaranteed or secured by any Lien unless the
Indebtedness being refinanced was Guaranteed or secured (in which case such
Indebtedness shall not be Guaranteed by any Person that did not Guarantee
the Indebtedness being refinanced and shall not be secured by a Lien on any
asset that did not secure the Indebtedness being refinanced) and (v) is
subordinated to the Obligations on terms no less favorable than the terms
on which the Indebtedness being refinanced was so subordinated, if such
refinanced Indebtedness is subordinated and (vi) has an aggregate principal
amount which is equal to or larger than that of the Indebtedness being
refinanced; provided, that with respect to Indebtedness permitted under
clause (f) above the Borrower may, notwithstanding clause (vi) above,
obtain refinancing in an aggregate principal amount which is less than the
outstanding principal amount of the Indebtedness being refinanced (subject
to the approval of the Required Lenders, with such approval not to be
unreasonably withheld) if the amount of such refinancing is no less than
ninety percent (90%) of the principal amount of the outstanding
Indebtedness which is being replaced; provided, further, that Indebtedness
--------
incurred hereunder which has an aggregate principal amount that is larger
than that of the Indebtedness being refinanced shall not be permitted by
this clause (j) unless a prepayment of the Loans is made in accordance with
Section 2.09 hereof (each refinancing undertaken in accordance with this
clause (j) shall be referred to herein as a "Permitted Refinancing");
(k) deposits or advances of any kind from a third party in the ordinary
course of business; and
(l) Indebtedness of the Borrower incurred under the Deferred Amount Note
issued pursuant to the Consent.
53
SECTION 6.02. Liens. The Borrower will not, and will not permit any
-----
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Liens created under the Loan Documents;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of the Borrower or any Subsidiary
(other than AGW) existing on the date hereof and set forth in Schedule
6.02; provided that (i) such Lien shall not apply to any other property or
--------
asset of the Borrower or any Subsidiary and (ii) such Lien shall secure
only those obligations which it secures on the date hereof and extensions
and renewals thereof that do not increase the outstanding principal amount
thereof or the interest rate or other fees applicable thereto, and
Permitted Refinancings thereof in accordance with Section 6.01(j);
(d) any Lien existing on any property or asset prior to the acquisition
thereof by the Borrower or any Subsidiary (other than AGW) or existing on
any property or asset of any Person that becomes a Subsidiary after the
date hereof prior to the time such Person becomes a Subsidiary; provided
--------
that (i) such Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary, as the case may be,
(ii) such Lien shall not apply to any other property or assets of the
Borrower or any Subsidiary and (iii) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the date
such Person becomes a Subsidiary, as the case may be, and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof;
(e) Liens on fixed or capital assets acquired, constructed or improved
by the Borrower or any Subsidiary (other than AGW); provided that (i) such
--------
Liens secure only Indebtedness permitted under Section 6.01(d) (other than
Indebtedness that is expressly required by such clause to be unsecured),
(ii) such Liens and the Indebtedness secured thereby are incurred prior to
or within 90 days after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness secured thereby does
not exceed 100% of the cost of acquiring, constructing or improving such
fixed or capital assets and (iv) such Liens shall not apply to any other
property or assets of the Borrower or any Subsidiary;
(f) Liens on the stock of Subsidiaries other than AGW which secure
Indebtedness permitted under Section 6.01(h); and
(g) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII.
SECTION 6.03. Fundamental Changes.
-------------------
(a) Except as permitted by Section 6.04, the Borrower will not, nor will
it permit any Subsidiary to, merge into or consolidate with any other Person, or
permit any other Person to
54
merge into or consolidate with it, or sell, transfer, lease or otherwise dispose
of (in one transaction or in a series of transactions) all or substantially all
of its assets, or all or substantially all of the equity or capital stock of any
of its Subsidiaries (in each case, whether now owned or hereafter acquired), or
liquidate or dissolve, except that, if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing any
Subsidiary may (i) merge into the Borrower in a transaction in which the
Borrower is the surviving corporation, (ii) merge into any other Subsidiary in a
transaction in which the surviving entity is a Subsidiary, (iii) sell, transfer,
lease or otherwise dispose of its assets to the Borrower or to another
Subsidiary or (iv) liquidate or dissolve if the Borrower determines in good
faith that such liquidation or dissolution is in the best interests of the
Borrower and is not materially disadvantageous to the Lenders; provided that any
--------
such merger involving a Person that is not a wholly-owned Subsidiary immediately
prior to such merger shall not be permitted unless also permitted by Section
6.04.
(b) Without the prior written consent of the Required Lenders, the
Borrower will not, and will not permit any of its Subsidiaries to, engage to any
material extent in any business other than the operation and management of PCS
and similar wireless telecommunications services and the subscriber equipment
related thereto.
(c) The Borrower will not permit AGW to engage in any business other
than the ownership of the Real Estate Assets, and activities incidental thereto.
(d) The Borrower will not create or acquire any Subsidiary after the
Closing Date.
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions;
----------------------------------------------------------
Asset Sales.
- -----------
(a) Except as permitted by Section 6.03, the Borrower will not, and will
not permit any of its Subsidiaries to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a wholly-owned Subsidiary
prior to such merger) any capital stock, evidences of indebtedness or other
securities (including any option, warrant or other right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment or any other interest
in, any other Person, or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person constituting a business
unit, except:
(i) Permitted Investments (other than by AGW);
(ii) investments by the Borrower and its Subsidiaries in the equity or
capital stock of their Subsidiaries; provided that any such equity
--------
or shares of capital stock shall be pledged pursuant to the Pledge
Agreement;
(iii) loans or advances made by the Borrower to any Subsidiary and loans
or advances made by any Subsidiary (other than AGW except with respect to
intercompany obligations related to real property leases) to the Borrower
or any other Subsidiary (other than AGW); provided that any such loans and
--------
advances shall be evidenced by a promissory note and delivered, immediately
after execution thereof, to the Collateral Agent, along with appropriate
transfer documents executed in blank; provided, further,
-------- -------
55
that upon request from the Collateral Agent, the Borrower and its
Subsidiary shall execute a subordination agreement, in form and substance
satisfactory to the Collateral Agent, with respect to such loans or
advances, pledged pursuant to the Security Agreement;
(iv) Guarantees by the Borrower of Indebtedness of any Subsidiary and by
any Subsidiary (other than AGW except for Indebtedness permitted by Section
6.01(h)) of Indebtedness of the Borrower or any other Subsidiary;
(v) promissory notes received by the Borrower or any Subsidiary in
connection with any sales of assets permitted under paragraph (b) below;
provided that, such promissory notes shall be delivered, immediately after
--------
execution thereof, to the Collateral Agent, along with appropriate transfer
documents executed in blank;
(vi) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(vii) investments set forth on Schedule 6.04(a);
(viii) payroll, travel and similar advances made in the ordinary course
of business; and
(ix) other investments in which the only consideration paid by the
Borrower or any Subsidiary consists of capital stock of the Borrower.
(b) Except as permitted by Section 6.03, the Borrower will not, and will
not permit any of its Subsidiaries to, sell, transfer, lease or otherwise
dispose of any asset, including any capital stock (but excluding issuances of
capital stock of the Borrower), except:
(i) sales of inventory, used, obsolete or surplus equipment and Permitted
Investments in the ordinary course of business;
(ii) transfers constituting investments permitted by paragraph (a)(i) and
(ii) of this Section or Restricted Payments permitted by Section 6.06;
(iii) Like Kind Exchanges;
(iv) sales, transfers and dispositions to the Borrower or a Subsidiary
(other than AGW except with respect to sales, transfers and assignments of
interests in real property); and
(v) sales, transfers and dispositions of assets (other than those of
AGW), the Net Proceeds with respect to which are applied in accordance with
Section 2.09(b);
provided further that all sales, transfers, leases and other dispositions
- ----------------
permitted hereby (other than pursuant to clauses (iii) and (iv) above) shall be
made for fair market value and at least 80% of the consideration received
therefor shall consist of cash.
56
SECTION 6.05. Hedging Agreements. The Borrower will not, and will not
------------------
permit any of its Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities.
SECTION 6.06. Restricted Payments. The Borrower will not, nor will it
-------------------
permit any Subsidiary to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment (or incur any obligation to do so), except
(i) the Subsidiaries may declare and pay dividends ratably to their
equityholders or shareholders with respect to their equity or capital stock,
(ii) the Borrower and its Subsidiaries may redeem stock from their former
employees and directors and (iii) the Borrower and its Subsidiaries may declare
and pay dividends payable in common stock.
SECTION 6.07. Transactions with Affiliates; Subordination Agreement.
------------------------------------------------------
(a) The Borrower will not, nor will it permit any Subsidiary to, sell,
lease or otherwise transfer any property or assets to, or purchase, lease or
otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, the Borrower or any of its other Affiliates, except (i)
transactions that are at prices and on terms and conditions not less favorable
to the Borrower or such Subsidiary than could be obtained on an arm's-length
basis from unrelated third parties, (ii) transactions between or among the
Borrower and the Subsidiaries not involving any other Affiliate, (iii) any
Restricted Payment permitted by Section 6.06, and (iv) transactions undertaken
pursuant to Sections 5.14.
(b) The Borrower will not, and will not permit any of its Subsidiaries to,
create, incur, assume or permit to exist any Indebtedness otherwise permitted
under this Agreement owing to or for the benefit of any Affiliate of the
Borrower or any Subsidiary (other than AGW), unless (i) such Affiliate shall
have become a party to a subordination agreement, in form and substance
satisfactory to the Administrative Agent and shall have agreed to subordinate
such Indebtedness (or such other obligation or liability) as provided therein
and (ii) in the case of any such Indebtedness, such Indebtedness is evidenced by
one or more promissory notes or similar instruments that are pledged in favor of
the Collateral Agent pursuant to a security agreement in the form of Exhibit
D-2; provided that the foregoing shall not prohibit Guarantees permitted by
--------
clause (c) of Section 6.01 or Indebtedness permitted by clause (b) of Section
6.01.
SECTION 6.08. Restrictive Agreements. The Borrower will not,
----------------------
nor will it permit any Subsidiary to, directly or indirectly, enter into, incur
or permit to exist any agreement or other arrangement that prohibits, restricts
or imposes any condition upon (a) the ability of the Borrower or any Subsidiary
to create, incur or permit to exist any Lien upon any of its property or assets,
or (b) the ability of any Subsidiary to pay dividends or other distributions
with respect to any shares of its equity or capital stock or to make or repay
loans or advances to the Borrower or any other Subsidiary or to Guarantee
Indebtedness of the Borrower or any other Subsidiary; provided that (i) the
--------
foregoing shall not apply to restrictions and conditions imposed by law or by
any Loan Document, (ii) the foregoing shall not apply to restrictions and
conditions existing on the date hereof identified on Schedule 6.08 (but shall
apply to any extension or renewal of, or any amendment or modification expanding
the scope of, any such restriction or condition),
57
(iii) clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness, (iv) the foregoing shall not apply to the
terms of the Indebtedness permitted under Section 6.01(h) and (v) clause (a) of
the foregoing shall not apply to customary provisions in leases and other
contracts restricting the assignment thereof.
SECTION 6.09. Prepayment of Indebtedness. The Borrower will
--------------------------
not, and will not permit any Subsidiary to, voluntarily prepay any obligation in
respect of any Indebtedness (other than the Loans) of the Borrower or any
Subsidiary except the prepayment of (a) Indebtedness (other than by AGW)
resulting in a prepayment of Loans pursuant to Section 2.09, (b) Indebtedness
owing under a revolving credit facility to the extent that (i) the commitments
of the lenders to make loans thereunder remain in effect after giving effect
to such prepayment and (ii) the borrower thereunder does not voluntarily
reduce the principal amount available under such revolving credit facility
within six months of any such prepayment; (c) Indebtedness to NationsBank and
[ * ] in the aggregate principal amounts of $1,000,000 and $7,700,000,
respectively, (d) Indebtedness prepaid in connection with a Permitted
Refinancing of such Indebtedness, (e) Indebtedness owed to Robert E. Gourlay,
David C. Roberts and Larry W. Foster in the aggregate principal amounts of
$65,000, $55,000 and $30,000, respectively, and (f) Indebtedness of the Borrower
or Subsidiary permitted by Sections 6.01(d) or 6.01(i); provided, however, the
-------- -------
Borrower will not, and will not permit any Subsidiary, to prepay or defease its
obligations with respect to the senior subordinated discount notes described in
the Indenture except for prepayments permitted by clause (d).
SECTION 6.10. Amendment of Material Documents. The Borrower
-------------------------------
will not permit any Sprint Affiliation Agreement nor any other material
agreement, document or instrument to which it is a party to be amended, modified
or terminated in a manner which could reasonably be expected to have a Material
Adverse Effect on the Lenders, nor shall the Borrower waive, or permit any
Subsidiary to waive, any of its rights thereunder in a manner which materially
adversely affects the Lenders; provided, that the unilateral regulatory action
--------
by the FCC affecting any PCS License will not constitute a breach of this
covenant; provided further, that amendments, modifications and terminations of
-------- -------
the Sprint Affiliation Agreements are subject to the additional restrictions set
forth in Section 6.24.
SECTION 6.11. Management and Service Fee Agreements. The Borrower
--------------------------------------
will not, and will not permit any of its Subsidiaries to, enter into any
management or service fee agreements, other than the Sprint Affiliation
Agreements which would involve material management of the Borrower's or any
Subsidiary's business by a third party.
SECTION 6.12. Limitation on Sale-Leaseback Transactions. The
-----------------------------------------
Borrower will not, nor will it permit any Subsidiary to, directly or indirectly,
sell, transfer or otherwise dispose of any asset pursuant to any arrangement
whereby the Borrower or any Subsidiary shall rent or lease such asset or another
asset to be used for the same or similar purposes (any such arrangement, a
"Sale-Leaseback Transaction").
- ---------------------------
- -----------------
* Portions of the specified exhibit has been omitted pursuant to a request for
confidential treatment and filed separately with the commission.
58
SECTION 6.13. Covered POPS. The Borrower will not, and will not
------------
permit any Subsidiary to, incur any Indebtedness at any time during any period
set forth below if the number of Covered POPS at the time such Indebtedness is
incurred is less than the number set forth below opposite such date:
Fiscal Quarter Ending Number
--------------------- ------
September 30, 2000 4,000,000
December 31, 2000 4,316,569
March 31, 2001 4,375,592
June 30, 2001 4,434,516
September 30, 2001 4,493,639
December 31, 2001 4,552,662
March 31, 2002 4,552,682
June 30, 2002 4,552,882
September 30, 2002 4,628,588
December 31, 2002 4,653,909
Fiscal Year Ending Number
------------------ ------
December 31, 2003 4,742,447
December 31, 2004 5,079,614
December 31, 2005 5,138,362
December 31, 2006 5,197,662
December 31, 2007 5,257,620
Fiscal Quarter Ending Number
--------------------- ------
March 31, 2008 5,270,664
June 30, 2008 5,283,808
September 30, 2008 5,296,952
SECTION 6.14. PCS Subscribers. The Borrower will not, and will not
---------------
permit any Subsidiary to, incur any Indebtedness at any time during any period
set forth below if the number of PCS Subscribers at the time such Indebtedness
is incurred is less than the number set forth below opposite such date:
Fiscal Quarter Ending Number
--------------------- ------
June 30, 2000 5,698
September 30, 2000 21,500
December 31, 2000 43,089
March 31, 2001 60,000
June 30, 2001 80,000
September 30, 2001 100,000
December 31, 2001 130,000
59
March 31, 2002 158,042
June 30, 2002 173,536
September 30, 2002 190,752
December 31, 2002 225,184
Fiscal Year Ending Number
------------------ ------
December 31, 2003 305,287
December 31, 2004 379,889
December 31, 2005 444,796
December 31, 2006 503,106
December 31, 2007 552,294
Fiscal Quarter Ending Number
--------------------- ------
March 31, 2008 562,708
June 30, 2008 573,122
September 30, 2008 583,536
SECTION 6.15. Ratio of Total Debt to Total Capitalization. The Borrower
-------------------------------------------
will not permit the ratio of (i) Total Debt on any of the dates set forth below
to (ii) Total Capitalization on such date, to exceed the ratio set forth below
opposite such date:
Date Ratio
---- -----
On or after October 1, 1999
but prior to October 1, 2000 18%
On or after October 2, 2000
but prior to April 1, 2001 30%
On or after April 2, 2001
but prior to July 1, 2001 38%
On or after July 1, 2001
but prior to October 1, 2001 42%
On or after October 1, 2001
but prior to April 2002 42%
On or after April 1, 2002
but prior to July 1, 2002 44%
On or after July 1, 2002
but prior to January 1, 2003 45%
60
On or after January 1, 2003
but prior to January 1, 2004 43%
On or after January 1, 2004
but prior to January 1, 2005 38%
On or after January 1, 2005,
but prior to January 1, 2006 82%
Thereafter 81%
SECTION 6.16. Ratio of Total Debt to EBITDA. The Borrower will not
-----------------------------
permit the ratio of (i) Total Debt outstanding on any of the dates set forth
below to (ii) EBITDA for the two most recent fiscal quarters multiplied by two,
to exceed the ratio set forth below opposite such date:
Date Ratio
---- -----
On or after January 1, 2003 but
prior to January 1, 2004 6.90
On or after January 1, 2004 but
prior to January 1, 2005 3.30
On or after January 1, 2005 but
prior to January 1, 2006 5.90
On or after January 1, 2006 but
prior to January 1, 2007 4.20
On or after January 1, 2007 but
prior to January 1, 2008 3.00
On or after January 1, 2008 but
prior to April 1, 2008 2.90
On or after April 1, 2008 but
prior to July 1, 2008 2.80
On or after July 1, 2008 but
prior to October 1, 2008 2.70
SECTION 6.17. Ratio of Senior Secured Debt to Total Capitalization. The
----------------------------------------------------
Borrower shall not permit the ratio of (i) Senior Secured Debt outstanding on
any date during any period set forth below to (ii) Total Capitalization on such
date, to exceed the ratio set forth below opposite such period:
61
Date Ratio
---- -----
On or after October 1, 1999 but
prior to October 1, 2000 18%
On or after October 1, 2000 but
prior to April 1, 2001 30%
On or after April 1, 2001 but prior
to July 1, 2001 38%
On or after July 1, 2000 but prior
to October 1, 2001 42%
On or after October 1, 2001 but
prior to April 1, 2002 42%
On or after April 1, 2002 but prior
to July 1, 2002 44%
On or after July 1, 2002 but prior
to January 1, 2003 45%
On or after January 1, 2003 but
prior to January 1, 2004 43%
On or after January 1, 2004 but
prior to January 1, 2005 38%
On or after January 1, 2005 but
prior to January 1, 2006 35%
On or after January 1, 2006 but
prior to January 1, 2007 29%
On or after January 1, 2007 but
prior to January 1, 2008 20%
On or after January 1, 2008 but
prior to April 1, 2008 20%
On or after April 1, 2008 but prior
to July 1, 2008 18%
On or after July 1, 2008 but prior
to October 1, 2008 16%
62
SECTION 6.18. Ratio of Senior Secured Debt to EBITDA. The Borrower
--------------------------------------
shall not permit the ratio of (i) Senior Secured Debt outstanding on any date
during any period set forth below to (ii) EBITDA for the two most recent fiscal
quarters multiplied by two, to exceed the ratio set forth opposite such period:
Fiscal year Ending Ratio
------------------ -----
December 31, 2003 6.90
December 31, 2004 3.30
December 31, 2005 2.80
December 31, 2006 1.80
December 31, 2007 1.30
Thereafter 1.00
SECTION 6.19. [Reserved.].
-----------
SECTION 6.20. Ratio of EBITDA to Fixed Charges. The Borrower will not
--------------------------------
permit the ratio of (i) EBITDA for any of the periods set forth below to (ii) to
Fixed Charges for such period, to exceed the ratio set forth below opposite such
period:
Fiscal year Ending Ratio
------------------ -----
December 31, 2003 1.00
December 31, 2004 1.00
December 31, 2005 1.00
December 31, 2006 1.25
December 31, 2007 1.40
Fiscal Quarter Ending Ratio
--------------------- -----
March 31, 2008 1.45
June 30, 2008 1.50
September 30, 2008 1.55
SECTION 6.21. Capital Expenditures. The Borrower shall not permit Capital
--------------------
Expenditures for any period set forth below to exceed the value set forth below
opposite such period:
63
Fiscal Year Ending Amount
------------------ ------------
December 31, 1999 $ 64,500,000
December 31, 2000 $125,000,000
December 31, 2001 $ 50,000,000
December 31, 2002 $ 40,000,000
December 31, 2003 $ 30,000,000
December 31, 2004 $ 25,000,000
December 31, 2005 $ 25,000,000
December 31, 2006 $ 24,000,000
December 31, 2007 $ 23,000,000
Fiscal Quarter Ending Amount
--------------------- ------------
March 31, 2008 $ 5,750,000
June 30, 2008 $ 5,750,000
September 30, 2008 $ 5,750,000
; provided however, that, to the extent the amount of Capital Expenditures
permitted to be made in any fiscal year pursuant to this Section 6.21 exceeds
the aggregate amount of Capital Expenditures actually made during such Fiscal
Year, such excess may be carried forward to any succeeding fiscal year to the
extent not applied in prior fiscal years.
SECTION 6.22. Minimum Revenue. The Borrower shall not permit the net
---------------
service revenues of the Borrower and its consolidated Subsidiaries determined on
a consolidated basis in accordance with GAAP, for any period set forth below to
be less than the number set forth below opposite such date:
Fiscal Quarter Ending Revenue
--------------------- -----------
June 30, 2000 $ 381,000
September 30, 2000 $ 2,138,000
December 31, 2000 $ 4,800,000
March 31, 2001 $ 8,453,000
June 30, 2001 $11,110,000
September 30, 2001 $13,000,000
December 31, 2001 $16,000,000
March 31, 2002 $21,460,000
June 30, 2002 $23,947,000
September 30, 2002 $26,309,000
December 31, 2002 $30,039,000
64
Fiscal Year Ending Revenue
------------------ ------------
December 31, 2003 $147,015,000
December 31, 2004 $189,118,000
December 31, 2005 $228,658,000
December 31, 2006 $263,435,000
December 31, 2007 $294,020,000
Fiscal Quarter Ending Revenue
--------------------- -----------
March 31, 2008 $70,358,000
June 30, 2008 $79,953,000
September 30, 2008 $83,151,000
SECTION 6.23. [Reserved].
-----------
SECTION 6.24. Sprint Affiliation Agreements. Sprint Affiliation
------------------------------
Agreements. The Borrower shall not:
(a) Sell, assign (by operation of law or otherwise) or otherwise dispose of
or create or suffer to exist any lien, security interest or other charge or
encumbrance upon or with respect to the Sprint Affiliation Agreements or any
portion thereof to any person or entity, except for the assignment and security
interest contemplated by this Agreement.
(b) Cancel or terminate the Sprint Affiliation Agreements or agree in
writing to any cancellation or termination thereof.
(c) Consent to, waive, approve or agree in writing to any amendment or
other modification of the Sprint Affiliation Agreements, except where such
action would not materially adversely affect the Lenders.
(d) Waive any default under or breach of the Sprint Affiliation Agreements,
except where such action would not materially adversely affect the Lenders.
SECTION 6.25. Indenture. The Borrower shall not, at any time, designate
---------
Indebtedness other than that created pursuant to the Loan Documents to be
"Designated Senior Debt" as defined in the Indenture.
ARTICLE VII
-----------
Events of Default
-----------------
If any of the following events ("Events of Default") shall occur:
-----------------
(a) the Borrower shall fail to pay any principal of any Loan when and as
the same shall become due and payable, whether at the due date thereof or
at a date fixed for prepayment thereof or otherwise;
65
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement, when and as the same shall become
due and payable, and such failure shall continue unremedied for a period of
five Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of the Borrower or any Subsidiary in or in connection with any Loan
Document or any amendment or modification thereof or waiver thereunder
shall prove to have been incorrect in any material respect in the case of
representations and warranties not qualified as to materiality and, in the
case of representations, warranties qualified as to materiality, in any
respect when made or deemed made, or any representation or warranty made or
deemed made by or on behalf of the Borrower or any Subsidiary in any
report, certificate, financial statement or other document furnished
pursuant to or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder shall prove to have been
incorrect in any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Sections 5.02(a), 5.02(b), 5.04 (a) or
5.10 or in Article VI;
(e) the Borrower or any Subsidiary shall fail to observe or perform any
covenant, condition or agreement contained in any Loan Document (other than
those specified in clause (a), (b) or (d) of this Article), and such
failure shall continue unremedied for a period of 30 days after notice
thereof from the Administrative Agent to the Borrower (which notice will be
given at the request of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of
any Material Indebtedness, when and as the same shall become due and
payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that this clause (g)
--------
shall not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such
Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization, winding
up, adjustment, protection, composition of it or its debts or other relief
in respect of the Borrower or any Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any
Subsidiary or for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue unstayed or undismissed for 30
days or an order or decree approving or ordering any of the foregoing shall
be entered;
66
(i) the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization,
winding up, adjustment, protection, composition of it or its debts or other
relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for it or for a substantial
part of its assets, (iv) file an answer admitting the material allegations
of a petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit in writing
its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $5,000,000 shall be rendered against the Borrower or
any Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 60 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of the Borrower or any
Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, when taken together with
all other ERISA Events that have occurred, would reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate
amount exceeding (i) $5,000,000 in any year or (ii) $10,000,000 for all
periods;
(m) any Lien purported to be created under any Security Document shall
cease to be, or shall be asserted by the Borrower or any Subsidiary not to
be, a valid and perfected Lien on any material portion of the Collateral,
with the priority required by the applicable Security Document, except (i)
as a result of the sale or other disposition of the applicable Collateral
in a transaction permitted under the Loan Documents or (ii) as a result of
the Collateral Agent's failure to maintain possession of any stock
certificates, promissory notes or other instruments delivered to it under
the Pledge Agreement;
(n) there shall occur a Change in Control with respect to the Borrower
or any Subsidiary;
(o) there shall have occurred any "Management Agreement Breach" or
"Event of Termination" under the Sprint Management Agreement;
(p) the Supply Agreement or any Loan Document shall cease to be or shall
be asserted by the Borrower or any Subsidiary not to be in full force and
effect (unless such agreement is terminated and released in accordance with
its terms) or any Guarantor fails to perform any of the terms of the
Guaranty Agreement and such failure adversely affects the Lenders;
67
(q) at anytime prior to the Borrower's initial public offering, any
entity (other than Lucent) that manufactures equipment or provides services
similar to those that are the subject of the Supply Agreement shall own,
directly or indirectly, equity interests in the Borrower in excess of three
percent of the total equity interests (on a fully diluted basis) of the
Borrower;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower; and
in case of any event with respect to the Borrower described in clause (h) or (i)
of this Article, the Commitments shall automatically terminate and the principal
of the Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower. All
rights, powers and remedies of the Administrative Agent, the Collateral Agent
and the Lenders in connection with the Loan Documents may be exercised at any
time and from time to time after the occurrence of an Event of Default so long
as such Event of Default is continuing, are cumulative and not exclusive, and
shall be in addition to any other rights, power or remedies provided by law or
equity.
ARTICLE VIII
The Agents
----------
Each of the Lenders hereby irrevocably appoints the Administrative
Agent and the Collateral Agent as its agents and authorizes each of them to
enter into, and to take such actions on its behalf and to exercise such powers
as are delegated to each such Agent by the terms of the Loan Documents, together
with such actions and powers as are reasonably incidental thereto.
Any Person serving as an Agent hereunder shall have the same rights
and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not an Agent, and such Person may accept deposits from,
lend money to and, may generally engage in any kind of business with the
Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent
hereunder.
Neither Agent shall have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality of
the foregoing, (a) neither Agent shall be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred
68
and is continuing, (b) neither Agent shall have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated by the Loan Documents that such Agent
is required to exercise as directed in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02), and (c) except as expressly set
forth in the Loan Documents, neither Agent shall have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by such
Agent or any of its Affiliates in any capacity. Neither Agent shall be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 9.02) or in the
absence of its own gross negligence or willful misconduct. Except as prohibited
by law, neither Agent shall be liable for any indirect, consequential, special
or punitive damages (as opposed to direct or actual damages other than damages
waived hereunder) arising out of, in connection with, or as a result of, this
Agreement or any agreement or instrument contemplated hereby, the Transactions,
any Loan or the use of proceeds thereof. Each Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and neither Agent shall be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Loan Document, (ii)
the contents of any certificate, report or other document delivered thereunder
or in connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to such Agent.
Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. Each Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts. Neither Agent shall be
obligated to take any legal or other action hereunder which might in its
judgment involve or cause it to incur any expense or liability unless it shall
have been furnished with acceptable indemnification.
Each Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by such Agent.
Each Agent and any such sub-agent may perform any and all its duties and
exercise its rights and powers through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such sub-
agent and to the Related Parties of each Agent and any such sub-agent, and shall
apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as an Agent.
69
Subject to the appointment and acceptance of a successor Agent as
provided in this paragraph, an Agent may resign at any time by notifying the
Lenders and the Borrower. Upon any such resignation, the Required Lenders shall
have the right to appoint a successor with the approval of the Borrower (not to
be unreasonably withheld or delayed). If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation, then
the retiring Agent may, on behalf of the Lenders, appoint a successor Agent
which shall be a bank with an office in New York, New York, or an Affiliate of
any such bank. Upon the acceptance of its appointment as an Agent hereunder by
a successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor Agent. After an Agent's resignation hereunder, the provisions of this
Article and Section 9.03 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while it was acting
as an Agent.
Each Lender acknowledges that it has, independently and without
reliance upon either Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon either Agent or any other Lender
and based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or related agreement
or any document furnished hereunder or thereunder.
The Lenders agree to indemnify the Agents in their capacity as such
(to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to their respective
participation in the Commitments on the date on which indemnification is sought
(or, if indemnification is sought after the date upon which the Commitments
shall have terminated and the Loans shall have been paid in full, ratably in
accordance with their respective participations in the Commitments immediately
prior to such date), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Loans) be imposed on,
incurred by or asserted against the Agents in any way relating to or arising out
of, the Commitments, this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Agents
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from any Agent's gross negligence or willful misconduct.
The agreements in this Section shall survive the payment of the Loans and all
other amounts payable hereunder.
70
ARTICLE IX
Miscellaneous
-------------
SECTION 9.01. Notices. Except in the case of notices and other
-------
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to AirGate PCS, Inc., Harris Tower, Suite 1700,
233 Peachtree Street, N.E., Atlanta, Georgia 30303, Attention: President,
Telecopy No.: (404) 525-7922, with, in the case of a notice of Default, a
copy to AirGate PCS, Inc., 6511 Griffith Road, Laytonsville, Maryland
20882, Attention: Corporate Counsel, Telecopy No. (301) 540-7930;
(b) if to the Collateral Agent, to State Street Bank and Trust Company,
2 Avenue de Lafayette, 6th Floor, Boston, Massachusetts 02111-1724,
Attention: Patrick E. Thebado, Assistant Vice President, Telecopy No.:
(617) 662-1460
(c) if to the Administrative Agent, to Lucent Technologies Inc., 283
King George Road, Warren, New Jersey 07059, Attention: Assistant Treasurer,
Customer Finance, Telecopy No.: (908) 559-1711;
(d) if to Lucent Technologies Inc., in its capacity as a Lender, to
Lucent Technologies Inc., 283 King George Road, Warren, New Jersey 07059,
Attention: Assistant Treasurer, Customer Finance Telecopy No.: (908) 559-
1711;
(e) if to an Administrative Agent (if other than Lucent) at such address
and number as is provided to the Borrower and the Lenders upon appointment
of such Administrative Agent; and
(f) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date delivered by
hand, overnight courier service or telecopy.
SECTION 9.02. Waivers; Amendments.
-------------------
(a) No failure or delay by the Administrative Agent, the Collateral
Agent or any Lender in exercising any right or power hereunder or under any Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent, the Collateral Agent and the Lenders hereunder and
under the other
71
Loan Documents are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of any Loan Document
or consent to any departure by the Borrower or any Subsidiary therefrom shall in
any event be effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan shall not be construed as a
waiver of any Default, regardless of whether the Administrative Agent, the
Collateral Agent or any Lender may have had notice or knowledge of such Default
at the time.
(b) Neither this Agreement nor any other Loan Document nor any provision
hereof or thereof may be waived, amended or modified except, in the case of this
Agreement, pursuant to an agreement or agreements in writing entered into by the
Borrower and the Required Lenders or, in the case of any other Loan Document,
pursuant to an agreement or agreements in writing entered into by the
Administrative Agent or the Collateral Agent, as applicable, and the Borrower
and/or the Subsidiary that are parties thereto, in each case with the consent of
the Required Lenders; provided that no such agreement shall (i) increase the
--------
Commitment of any Lender without the written consent of such Lender, (ii) reduce
the principal amount of any Loan or reduce the rate of interest thereon, or
reduce any fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the scheduled date of payment of the principal
amount of any Loan, or any interest thereon, or any fees payable hereunder, or
reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, without the written consent of
each Lender affected thereby, (iv) change Section 2.16(b) or (c) in a manner
that would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender, (v) change any of the provisions of this Section
or the definition of "Required Lenders" or any other provision of any Loan
Document specifying the number or percentage of Lenders required to waive, amend
or modify any rights thereunder or make any determination or grant any consent
thereunder, without the written consent of each Lender; (vi) release any
Subsidiary from its Guarantee under the Guarantee Agreement (except as expressly
provided in the Guarantee Agreement), or limit its liability in respect of such
Guarantee, without the written consent of each Lender or (vii) release all or
any substantial part of the Collateral from the Liens of the Security Documents
(except as expressly provided in the Security Documents), without the written
consent of each Lender or (viii) change any provisions of any Loan Document in a
manner that by its terms adversely affects the rights in respect of payments due
to Lenders holding Loans of any Class differently than those holding Loans of
any other Class, without the written consent of Lenders holding a majority in
interest of the outstanding Loans and unused Commitments of each affected Class,
in addition to the written consent of the Required Lenders; provided further
----------------
that no such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent or the Collateral Agent hereunder without its
prior written consent.
SECTION 9.03. Expenses; Indemnity; Damage Waiver.
----------------------------------
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and the Collateral Agent, including the
reasonable fees, charges and disbursements of counsel for and any consultants
and appraisers retained by the Administrative Agent and the Collateral Agent, in
connection with Lucent's due diligence investigation related
72
to the extension of credit hereunder and the negotiation, preparation,
execution and delivery of the Loan Documents (whether or not the transactions
contemplated hereby or thereby shall be consummated), including without
limitation expenses relating to the extension of credit pursuant to the Note and
the Obligations repaid to Lucent with the proceeds of the Note; provided that
--------
the aggregate amount of expenses that the Borrower shall be obligated to pay
pursuant to this clause (i) shall be subject to the limitations separately
agreed between the Borrower and Lucent, if any, (ii) all reasonable out-of-
pocket expenses incurred by the Administrative Agent and the Collateral Agent,
including the fees, charges and disbursements of any counsel for such agent in
connection with the administration of the Loan Documents, or any amendments,
modifications or waivers of the provisions thereof, (iii) all out-of-pocket
expenses incurred by each Lender, the Administrative Agent and the Collateral
Agent, including the fees, charges and disbursement of counsel for such party,
in connection with the enforcement or protection of such party's rights in
connection with the Loan Documents, including its rights under this Section, or
in connection with enforcement the Loans made hereunder, including all such out-
of-pocket expenses incurred during any workout, restructuring or negotiations in
respect of such Loans and (iv) all reasonable out-of-pocket expenses incurred by
the Administrative Agent in connection with the syndication of the Loans,
subject to the terms of the Cooperation Agreement.
(b) The Borrower shall indemnify each Lender, the Administrative Agent
and the Collateral Agent, and each Related Party of any of the foregoing Persons
(each such Person being called an "Indemnitee") against, and hold each
----------
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of any
Loan Document or any other agreement or instrument contemplated hereby, the
performance by the parties to the Loan Documents of their respective obligations
thereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or the use of the proceeds therefrom, (iii)
any actual or alleged presence or release of Hazardous Materials on or from any
Mortgaged Property or any other property owned or operated by the Borrower or
any of its Subsidiaries, or any Environmental Liability related in any way to
the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
--------
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent or the Collateral Agent, as
applicable, under paragraph (a) or (b) of this Section, each Lender severally
agrees to pay to the Administrative Agent or the Collateral Agent, as
applicable, such Lender's pro rata share (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim,
--------
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent or the Collateral Agent, as
applicable, in its capacity as such. For purposes hereof, a Lender's "pro rata
share" shall be determined based upon its share of the sum of the total
outstanding Loans and unused Commitments at the time.
73
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages other than damages waived hereunder) arising out of,
in connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or the use of the
proceeds thereof.
(e) All amounts due under this Section shall be payable not later than
30 days after written demand therefor. Notwithstanding the foregoing, any
amounts otherwise payable by the Borrower pursuant to clause (i) of paragraph
(a) of this Section shall accrue until, and be due and payable on, the earlier
of (i) the Closing Date and (ii) the termination by the Borrower of the
Commitments to pursue negotiations with another vendor. Any deferral of amounts
payable by the Borrower pursuant to the preceding sentence shall not relieve the
Borrower of its liability for such amounts or prevent the accrual thereof.
SECTION 9.04. Successors and Assigns.
----------------------
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Collateral Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more Eligible Assignees (as
defined in the Consent) all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it); provided that (i) in the case of an assignment to a
--------
Person which is a competitor (or an Affiliate thereof) of the Borrower or any of
its Subsidiaries, in the Borrower's good faith judgment, the Borrower must give
its prior written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) except in the case of an assignment to a Lender or
an Affiliate of a Lender or an assignment of the entire remaining amount of the
assigning Lender's Commitment or Loans, the amount of the Commitment or Loans of
the assigning Lender subject to each such assignment (determined as of the date
the Assignment and Acceptance with respect to such assignment is delivered to
the Administrative Agent) shall not be less than $5,000,000 unless the Borrower
otherwise consents, (iii) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and obligations
under this Agreement, except that this clause (iii) shall not be construed to
prohibit the assignment of (A) a proportionate part of all the assigning
Lender's rights and obligations in respect of one Class of Commitments or Loans
or (B) a proportionate part of the assigning Lender's outstanding Loans of any
Class without assigning any Commitment of such Class, (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of $3,500, and
(v) the assignee, if it shall not be a Lender, shall deliver to the
74
Administrative Agent an Administrative Questionnaire; and provided further
----------------
that any consent of the Borrower otherwise required under this paragraph shall
not be required if an Event of Default has occurred and is continuing. Subject
to acceptance and recording thereof pursuant to paragraph (d) of this Section,
from and after the effective date specified in each Assignment and Acceptance
the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.13,
2.14, 2.15 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and principal amount of the
Loans owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the Borrower,
--------
the Administrative Agent, the Collateral Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the Borrower,
the Collateral Agent and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder) and any written consent to such assignment required by paragraph (b)
of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent or the Collateral Agent, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such Lender's
-----------
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
--------
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent, the
Collateral 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. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce the Loan Documents and to approve any amendment,
modification or waiver of any provision of the Loan Documents; provided that
--------
such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
75
described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (f) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits and subject to the limitations of
Sections 2.13, 2.14 and 2.15 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.16(c) as though it were a Lender.
Notwithstanding anything in this Section 9.04 to the contrary, no Participant
shall be entitled to receive any greater amounts under this Agreement than the
Lender selling such participation would have been entitled to receive had no
participation been sold.
(f) A Participant that would be a Foreign Lender if it were a Lender
shall not be entitled to the benefits of Section 2.15 unless the Borrower is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Sections 2.15 and 2.17
as though it were a Lender. Each Participant that would be a Foreign Lender if
it were a Lender shall only be indemnified for increased costs or additional
amounts pursuant to Section 2.13 or 2.15 if and to the extent that the Lender
that sold such participation is entitled to make a claim on the Borrower for
such increased costs or additional amounts.
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
grant of a security interest; provided that no such pledge or grant of a
--------
security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or grantee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements,
--------
representations and warranties made by the Borrower or any Subsidiary in the
Loan Documents and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of the Loan Documents and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent, the Collateral Agent
or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.13, 2.14, 2.15 and 9.03 and
Article VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Commitments or the termination of
this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
----------------------------------------
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and any separate letter agreements with respect to the
Borrower's agreement to cooperate with Lucent with respect to marketing, selling
76
or syndicating Loans and Commitments or with respect to fees payable to Lucent
the Administrative Agent or the Collateral Agent constitute the entire contract
among the parties relating to the subject matter hereof and supersede any and
all previous agreements and understandings, oral or written, relating to the
subject matter hereof. Except as provided in Section 4.01, this Agreement shall
become effective when it shall have been executed by the Administrative Agent
and the Collateral Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held
------------
to be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction. The parties shall endeavor in good faith negotiations to replace
the invalid, illegal or unenforceable provision with valid provisions the
economic effect of which is as close as possible to that of the invalid, illegal
or unenforceable provision.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
---------------
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
--------------------------------------------------
Process.
-------
(a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York, excluding (to the greatest extent
permissible by law) any rule of law that would cause the application of the laws
of any jurisdiction other than the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to any
Loan Document, or for recognition or enforcement of any judgment, and each of
the parties hereto hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in such
New York State court or, to the extent permitted by law, in such Federal court.
Each of the parties hereto agrees that a final
77
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or any other Loan Document shall
affect any right that the Administrative Agent, the Collateral Agent or any
Lender may otherwise have to bring any action or proceeding relating to this
Agreement or any other Loan Document against the Borrower or any of its
Subsidiaries or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any other Loan Document in any
court referred to in paragraph (b) of this Section. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(d) The Borrower irrevocably and unconditionally consents to the
appointment of CT Corporation System, with an office at 1633 Broadway, New York,
New York 10019, as its process agent (together with any successor process agent,
the "Process Agent") upon which service of process in New York, New York, may be
-------------
served in any legal action or proceeding instituted in such courts. To the
extent permitted by applicable law, the Borrower agrees that service of process
may be made personally or by mailing or delivering a copy of the summons and
complaint or other legal process in any legal action or proceeding to the
Borrower, in care of the applicable Process Agent and such agent is hereby
authorized to accept, receive and acknowledge the same for and on behalf of the
Borrower, and to admit service with respect thereto. Service upon the applicable
Process Agent shall be deemed in every respect effective service of process upon
the Borrower and shall be legal and binding upon the Borrower for all purposes
notwithstanding any failure to mail copies of such legal process to the
Borrower, or any failure on the part of the Borrower, to receive the same. The
Borrower further agrees that it will not revoke the appointment of the
applicable Process Agent so long as any of the Loans remain outstanding or until
the appointment, which appointment the Borrower similarly agrees not to revoke,
of a successor Process Agent and such successor's acceptance of such
appointment. The Borrower agrees that it will at all times continuously maintain
the applicable Process Agent to receive service of process in the State of New
York on behalf of itself, and, in the event that for any reason such Process
Agent shall cease to be the applicable Process Agent, the Borrower shall
promptly appoint a successor Process Agent for service of process in the State
of New York and shall promptly deliver to the Administrative Agent a copy of
such successor Process Agent's acceptance or acknowledgment of that appointment.
The Borrower will take any and all reasonable action, including, the filing of
any and all documents and instruments, that may be necessary to continue the
appointment of the applicable Process Agent in full force and effect. Each other
party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the
right of any party to this Agreement to serve process in any other manner
permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
--------------------
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY
78
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of
--------
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Borrower, the
---------------
Administrative Agent, the Collateral Agent and the Lenders agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates' directors, officers,
employees and agents, including accountants, legal counsel and other advisors
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to any
assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement, (g) with the consent of
the Borrower, the Administrative Agent, the Collateral Agent or the Lenders, as
applicable, (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to
any party to this Agreement on a nonconfidential basis from a source other than
any other party to this Agreement. For the purposes of this Section,
"Information" means all information received from any party to this Agreement
- ------------
relating to such party or its business, other than any such information that is
available to the receiving party on a nonconfidential basis prior to disclosure
by the disclosing party; provided that such information is clearly identified at
--------
the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
------------------------
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
-------
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
------------
taken, received or reserved by the Lender(s) holding such Loan in accordance
with applicable law, the rate of interest payable in respect of such Loan
hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such
79
Loan but were not payable as a result of the operation of this Section shall be
cumulated and the interest and Charges payable to such Lender in respect of
other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been received
by such Lender.
[Signatures follow on next page.]
80
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
AIRGATE PCS, INC.,
by
[SIG]
________________________
Name: Thomas M. Dougherty
Title: President and Chief Executive Officer
LUCENT TECHNOLOGIES INC.,
as Administrative Agent and as Lender,
by
[SIG]
________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Collateral Agent
by
[SIG]
________________________
Name: Patrick E. Thebado
Title: Assistant Vice President
Schedule 1.01
Sprint Affiliation Agreements
-----------------------------
Sprint PCS Management Agreement between SprintCom, Inc. and AirGate
Wireless, LLC dated July 22, 1998.*
Sprint PCS Services Agreement between Sprint Spectrum L.P. and AirGate
Wireless, L.L.C. dated July 22, 1998*.
Sprint Trademark and Service Mark License Agreement between Sprint
Communications Company, L.P. and AirGate Wireless, L.L.C. dated July 22,
1998.*
Sprint Spectrum Trademark and Service Mark License Agreement between Sprint
Spectrum L.P. and AirGate Wireless, L.L.C. dated July 22, 1998.*
- ------------------------
* (assigned to AirGate Wireless, Inc. on November 20, 1998 with the consent of
SprintCom, Inc., Sprint Communications Company, L.P., and Sprint Spectrum L.P.)
Schedule 2.01
Commitments
-----------
Lender Tranche 1 Tranche 2
------ --------- ---------
Commitment Commitment
---------- ----------
Amount Amount
------ ------
Lucent Technologies Inc. $13,500,000 $140,000,000
Schedule 3.05(b)
Real Property
-------------
Borrower's interests in real property:
*411 Huger Street, Columbia, S.C. (switch site under renovation)
*485 Columbia Industrial Blvd., Augusta, GA (former potential switch site)
*4925 LaCross Road, Suite 104, North Charleston, SC 29401
*Harris Tower, 233 Peachtree Street, N.E., Suite 1700, Atlanta, Georgia 30303
AGW's interests in real property:
*See spread sheet entitled Lease List attached hereto
*111 Smith Hines Road, Suite D, Greenville, SC
*4201 Congress Street, Suite 440, Charlotte, NC
*1492 highway 17 North, Mount Pleasant, SC
*765 Haywood Road, Greenville, SC
*1854 Henderson Road, Asheville, N.C.
Real property jointly held by the Borrower and AGW:
* Real property that constitutes any part of the Real Estate Assets appears
with an asterisk.
Schedule 3.05(c)
Intellectual Property
---------------------
Borrower: None, other than those rights provided for in the Sprint PCS
Affiliation Agreements set forth on Schedule 1.01.
AGW: None.
Schedule 3.06
Litigation
----------
None.
Schedule 3.13
Assets and Indebtedness of AGW
------------------------------
Assets (other than the Real Estate Assets):
None.
Indebtedness (other than pursuant to the Guaranty or the Security Documents):
None
Schedule 3.14
Insurance
---------
See attached
Schedule 3.20
Amendments to Sprint Affiliation Agreements
-------------------------------------------
Addendum I to Sprint PCS Management Agreement dated July 22, 1998.
Addendum II to Sprint PCS Management Agreement dated May 24, 1999.
Addendum III to Sprint PCS Management Agreement dated August 2, 1999.
SprintCom, Inc. has certain rights set forth in the Sprint Affiliation
Agreements to amend and modify certain programs and requirements upon notice to
the Borrower.
Schedule 6.01
Existing Indebtedness
---------------------
1) Secured Promissory Note to Lucent Technologies Inc. in the principal amount
of $10,000,000 issued by the Borrower on June 15, 1999.
2) +Convertible Promissory Note to Weiss Peck & Greer Venture Associates III,
L.P. in the principal amount of $1,437,655 issued by the Borrower on
May 18, 1999.
3) +Convertible Promissory Note to WPG Enterprise Funds II, L.P. in the
principal amount of $1,728,986 issued by the Borrower on May 18, 1999.
4) +Convertible Promissory Note to JAFCO, Ltd. in the principal amount of
$175,760 issued by the Borrower on May 18, 1999.
5) +Convertible Promissory Note to JAFCO G-6(A) Investment Enterprise
Partnership in the principal amount of $106,896 issued by the Borrower
on May 18, 1999.
6) +Convertible Promissory Note to JAFCO G-6(B) Investment Enterprise
Partnership in the principal amount of $106,896 issued by the Borrower
on May 18, 1999.
7) +Convertible Promissory Note to JAFCO G-7(A) Investment Enterprise
Partnership in the principal amount of $244,624 issued by the Borrower on
May 18, 1999.
8) +Convertible Promissory Note to JAFCO G-7(B) Investment Enterprise
Partnership in the principal amount of $244,624 issued by the Borrower
on May 18, 1999.
9) +Convertible Promissory note to JAFCO USIT Fund III, L.P. in the principal
amount of $3,515,200 issued by the Borrower on May 18, 1999.
10) **Promissory Note to SprintCom, Inc. in the principal amount of $7,700,000,
as amended, issued by the Borrower on July 22, 1998.
11) **Promissory Note to NationsBank, N.A. in the principal amount of
$1,000,000, issued by AirGate Wireless, L.L.C. on May 9, 1997 and
assigned to the Borrower.
12) **Promissory Note to Robert E. Gourlay, as amended, in the principal amount
of $65,000 issued by AirGate, L.L.C. on June 11, 1996 and assumed by the
Borrower.
13) **Promissory Note to David C. Roberts, as amended, in the principal amount
of $55,000 issued by AirGate, L.L.C. on June 11, 1996 and assumed by the
Borrower.
14) **Promissory Note to Larry W. Foster, as amended, in the principal amount
of $30,000 issued by AirGate, L.L.C. on June 11, 1996 and assumed by the
Borrower.
- ----------------------------
+ Convertible into equity at the IPO.
** to be repaid with proceeds from concurrent common stock offering and
offering of senior subordinated discount notes.
Schedule 6.02
Existing Liens
--------------
Liens/interests granted to Lucent Technologies Inc. pursuant to the
conditions for the $10,000,000 promissory note to Lucent Technologies Inc.
issued by the Borrower on June 15, 1999.
Schedule 6.04(a)
Permitted Investments
---------------------
Promissory Note from AirGate Wireless, L.L.C. to AirGate Wireless, Inc. in
the principal amount of $343,855.52 dated October 27, 1998.
Promissory Note from AirGate Wireless, L.L.C. to AirGate Wireless, Inc. in
the principal amount of $310,971.25 dated April 27, 1999.
Schedule 6.08
Existing Restrictions
---------------------
None.
EXHIBIT C
---------
PLEDGE AGREEMENT
(AirGate PCS, Inc.)
THIS PLEDGE AGREEMENT, dated as of August 16, 1999 (this "Pledge
------
Agreement"), is made by AIRGATE PCS, INC., a Delaware corporation (the
- ---------
"Pledgor"), in favor of STATE STREET BANK AND TRUST COMPANY, a Massachusetts
-------
banking corporation, as collateral agent for the Lenders (as defined below) (in
such capacity, "Collateral Agent" and "Pledgee").
---------------- -------
W I T N E S S E T H:
-------------------
WHEREAS, Pledgor is the sole owner of all of the shares of the capital
stock of AGW Leasing Company, Inc. ("AGW Leasing");
-----------
WHEREAS, Pledgor has entered into that certain Credit Agreement, of
even date herewith, among the several lending institutions from time to time
party thereto (the "Lenders"), Collateral Agent and Administrative Agent (the
-------
"Credit Agreement"); and
- -----------------
WHEREAS, to secure the due and prompt payment and performance by
Pledgor of the Obligations under the Credit Agreement, the Lenders have required
the Pledgor to execute and deliver this Pledge Agreement to the Pledgee and to
pledge hereunder the security hereinafter referred to;
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. Definitions; Interpretation. (a) Defined Terms. Capitalized
--------------------------- -------------
terms which are used herein without definition and which are defined in the
Credit Agreement shall have the same meaning herein as in the Credit Agreement,
and the following terms shall have the following meanings:
"AGW Leasing" shall have the meaning ascribed in the preamble hereto.
-----------
"AGW Leasing By-Laws" shall mean the By-Laws of AGW Leasing, dated as
-------------------
of December 16, 1998, as the same may, from time to time, be amended.
"Administrative Agent" shall have the meaning ascribed thereto in the
--------------------
recitals hereof.
"Collateral Agent" shall have the meaning ascribed thereto in preamble
----------------
hereto.
"Credit Agreement" shall have the meaning ascribed thereto in the
----------------
recitals hereto.
"Lenders" shall have the meaning ascribed thereto in the recitals
-------
hereto.
"Obligations" shall have the same meaning ascribed thereto in the
-----------
Credit Agreement.
"Person" means any natural person, individual, corporation, limited
------
liability company, limited liability partnership, trust, business trust,
joint venture, association, company, sole proprietorship, unincorporated
association, joint stock corporation, partnership, Governmental Authority
or other entity.
"Pledge Agreement" shall have the meaning ascribed thereto in the
----------------
preamble hereto.
"Pledged Collateral" has the meaning ascribed thereto in Section 2
------------------
hereof.
"Pledged Stock" has the meaning ascribed thereto in Section 2 hereof.
-------------
"Pledgee" shall have the meaning ascribed in the preamble hereto.
-------
"Pledgor" shall have the meaning ascribed thereto in the preamble
-------
hereto.
"Requirement of Law" has the meaning ascribed thereto in the Credit
------------------
Agreement.
"Securities Act" shall mean the Securities Act of 1933.
--------------
"Security Interest" has the meaning ascribed thereto in Section 2
-----------------
hereof.
"Termination Date" shall mean the date on which all of the Obligations
----------------
have been paid in full and the Commitment of the Lenders to make Loans
under the Credit Agreement shall have expired or been terminated.
(b) Terms Generally. The definitions of terms herein shall apply
---------------
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The word
"will" shall be construed to have the same meaning and effect as the word
"shall". Unless the context requires otherwise (i) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to
any restrictions on such amendments, supplements or modifications set forth
herein), (ii) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (iii) the words "herein",
"hereof" and "hereunder", and words of similar import, shall be construed
to refer to this Pledge Agreement in its entirety and not to any particular
provision hereof, (iv) all references herein to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections
of, and Exhibits and Schedules to, this Pledge Agreement and (v) the words
"asset" and "property" shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts, contract rights, licenses
and intellectual property.
2
(c) Accounting Terms; GAAP. Except as otherwise expressly provided
----------------------
herein, all terms of an accounting or financial nature shall be construed
in accordance with GAAP, as in effect from time to time; provided that, if
--------
Pledgor notifies Pledgee that Pledgor requests an amendment to any
provision hereof to eliminate the effect of any change occurring after the
date hereof in GAAP or in the application thereof on the operation of such
provision (or if Pledgee requests of Pledgor an amendment to any provision
hereof for such purpose), regardless of whether any such notice is given
before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until
such notice shall have been withdrawn or such provision amended in
accordance herewith.
SECTION 2. Grant of Security Interest. As collateral security for the
--------------------------
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations, the Pledgor hereby
delivers, pledges with, and sets over, transfers, assigns and hypothecates and
grants a general first priority continuing security interest (the "Security
--------
Interest") and lien in favor of the Pledgee in all right, title and interest of
- --------
the Pledgor, whether now owned or hereafter acquired, in the equity interests of
AGW Leasing (collectively referred to as the "Pledged Collateral"), including:
------------------
(a) all of the capital stock of AGW Leasing (the "Pledged Stock"),
-------------
currently represented by certificate No. 2;
(b) all additional shares of capital stock of AGW Leasing hereafter
issued to or acquired by the Pledgor in any manner;
(c) all shares of capital stock of AGW Leasing which the Pledgor
receives by reason of any stock split, bonus, dividend, distribution or
other form of issue, with respect to or arising from any of the stock
described in subsection (a) or (b) above;
(d) all warrants, options or rights to acquire, or securities
convertible into, any capital stock of AGW Leasing, now existing or
hereafter issued to or acquired by the Pledgor;
(e) all dividends or distributions of cash or other property declared,
paid or payable upon the Pledged Stock or any other stock or securities
described above;
(f) all increases and profits of the foregoing and all proceeds,
replacements and substitutions thereof; and
(g) all proceeds of the foregoing including, without limitation, all
securities or other property acquired with any proceeds.
Concurrently herewith the Pledgor has delivered to Pledgee, the
certificate representing the Pledged Stock, together with stock powers in
form and substance satisfactory to the Pledgee duly executed in blank,
regarding the Pledged Collateral. The Pledgor will hold in trust for the
Pledgee and forthwith cause to be delivered to the
3
Pledgee or its designated agent any certificates or other instruments
representing Pledged Collateral hereafter coming into existence.
SECTION 3. Representations and Warranties of the Pledgor. The Pledgor
---------------------------------------------
represents and warrants that, except as otherwise disclosed by the Pledgor to
the Pledgee:
(a) Title; No Other Liens. All of the shares of stock described in
---------------------
Section 2 are fully paid, non-assessable and validly issued. Except for the
Security Interest, the Pledgor owns each item of the Pledged Collateral
free and clear of any and all liens or claims of others; no security
agreement, financing statement or other public notice with respect to all
or any part of the Pledged Collateral is on file or of record in any public
office, except for the Security Interest;
(b) Perfected First Priority Security Interest. Upon delivery of the
------------------------------------------
Pledged Stock and any other instruments and certificates representing
Pledged Collateral, the Security Interest and lien constitutes and will
continue to constitute a valid, perfected first priority security interest
in such Pledged Collateral in favor of the Pledgee, enforceable as such
against all creditors of and purchasers from the Pledgor;
(c) Power and Authority. The Pledgor has full power and authority to
-------------------
pledge any or all of its rights and interests in the Pledged Collateral,
and the Pledgor has full power and authority to execute and deliver this
Pledge Agreement and to perform its obligations hereunder and this Pledge
Agreement constitutes the valid and legally binding obligation of the
Pledgor, enforceable in accordance with its terms and conditions (except as
such enforcement may be limited by applicable bankruptcy, insolvency,
moratorium or similar state or federal laws affecting enforcement of
creditors' rights and remedies generally and except for the enforceability
of provisions providing for injunctive relief, specific performance or
other equitable remedies, regardless of whether such enforcement is sought
in a proceeding in equity or at law);
(d) No Conflict. The execution and delivery by the Pledgor of, and
-----------
performance by the Pledgor of its obligations under, this Pledge Agreement
do not and will not result in any violation of or conflict with the terms
of:
(i) Any Requirement of Law applicable to AGW Leasing or the
Pledgor; or
(ii) Any other material agreement, indenture, instrument or
license applicable to or binding upon AGW Leasing or the Pledgor and
not covered by clause (i) above;
(e) Pledged Stock. As of the date hereof, the Pledged Stock
-------------
constitutes all of the issued and outstanding capital stock of AGW Leasing
and the Pledge of Collateral will at all times constitute all of the issued
and outstanding capital stock of the AGW Leasing;
4
(f) Options, Etc. There is no option, warrant, call or other right or
------------
commitment of any character giving any Person the right to purchase any of
the Pledged Stock or other Pledged Collateral from the Pledgor or AGW
Leasing;
(g) Stock Powers. The instruments of transfer delivered with the
------------
Pledged Collateral are duly executed;
(h) Voting Rights. There are no restrictions on the voting rights
-------------
associated with the Pledged Collateral or upon the transfer of any of the
Pledged Collateral (other than the restrictions contained in this Pledge
Agreement) that have not been waived by the party having the right to
enforce such restrictions; and
(i) No Consent. No consent of, and no authorization, approval or other
----------
action by, and no notice to or filing with, any (A) Governmental Authority
is required either (i) for the grant by the Pledgor of the security
interest or pledge granted hereby or for the execution, delivery or
performance of this Pledge Agreement by the Pledgor, (ii) for the
perfection or maintenance of the pledge and security interest created
hereby in the Pledged Stock (including the first priority nature of such
pledge or security interest) or (iii) for the exercise by the Pledgee of
its rights provided for in this Pledge Agreement or the remedies in respect
of the Pledged Collateral pursuant to this Pledge Agreement (except as may
be required in connection with the disposition of any portion of the
Pledged Collateral by laws affecting the offering and sale of securities
generally), other than consents, authorizations, approvals and other
actions which have already been obtained (copies of which have been
delivered to Pledgee) and (B) third party is required to effect the pledge
of the Pledged Stock.
SECTION 4. Covenants of the Pledgor. The Pledgor covenants and agrees
------------------------
with the Pledgee that, from and after the date hereof, the Pledgor:
(a) Adverse Claims. Shall warrant and defend the Pledged Collateral
--------------
against the claims and demands of all other parties and keep the Pledged
Collateral free from all security interests or other encumbrances, except
as otherwise permitted under this Pledge Agreement;
(b) Assignment. Shall not sell, transfer, assign, deliver, convey or
----------
otherwise dispose of any Pledged Collateral or any interest therein or
right thereunder or grant to any Person any option, warrant or other right
to acquire any of the Pledged Collateral or any interest therein or right
thereunder, except as otherwise permitted hereunder or under the Credit
Agreement;
(c) Pledge. Shall not pledge, hypothecate, grant a security interest
------
or lien in or otherwise encumber in any manner any of the Pledged
Collateral except to the Trustee for the holders of the senior subordinated
discount notes issued under the Indenture (as defined in the Credit
Agreement);
(d) AGW Leasing By-Laws. Shall not, except upon the Pledgee's request
-------------------
or with the Pledgee's prior written consent, cause, permit or consent to
any amendment or modification to the AGW Leasing By-Laws or the articles of
incorporation of AGW
5
Leasing; provided however, that if such amendment does not materially lessen
the rights granted to Pledgee by this Pledge Agreement, only prior notice to
Pledgee shall be required;
(e) Certificates, Etc. Shall not, except as permitted under Section
-----------------
6.01(b), Section 6.04(a) and Section 6.06 of the Credit Agreement, or upon
the Pledgee's request or with the Pledgee's prior written consent, seek or
take delivery of any additional certificate, instrument or other written
document constituting or evidencing any Pledged Collateral, and if the
Pledgor receives any such certificate, instrument or document (including,
but not limited to, instruments evidencing intercompany obligations related
to real property leases), the Pledgor shall immediately notify the Pledgee
thereof and immediately deliver such certificate, instrument or document to
the Pledgee, duly endorsed as the Pledgee requests or accompanied by an
appropriate instrument of transfer executed in blank; and
(f) Taxes. Shall pay or reimburse the Pledgee for all taxes,
-----
assessments and other charges of every nature that may be imposed, levied
or assessed on the Pledgee in respect of the Pledged Collateral other than
taxes on net income or any tax in lieu thereof, subject to Section 2.15 of
the Credit Agreement.
SECTION 5. Voting Rights. During the term of this Pledge Agreement, so
-------------
long as there shall not occur and be continuing any Event of Default, the
Pledgor shall have the right to vote the Pledged Collateral on all corporate
questions for all purposes not inconsistent with the terms of this Pledge
Agreement or the Credit Agreement. Upon the occurrence of an Event of Default so
long as such Event of Default shall be continuing, the Pledgee shall thereafter
have, at its discretion, the option to exercise all voting powers and other
corporate rights pertaining to the Pledged Collateral. The Pledgee may, upon or
at any time after the occurrence of an Event of Default so long as such Event of
Default shall be continuing, at its option, transfer or register the Pledged
Collateral or any part thereof into its own or its nominee's name.
SECTION 6. Distributions and Other Income from Pledged Collateral.
(a) Any and all:
(i) Cash distributions paid in respect of the Pledged
Collateral;
(ii) Distributions paid or payable other than in cash in
respect of the Pledged Collateral; and
(iii) Instruments, securities and other property received,
receivable or otherwise distributed in respect of, upon the
subdivision or combination of, or in exchange for, any Pledged
Collateral,
shall constitute Pledged Collateral, and shall forthwith be paid or delivered
directly to the Pledgee to hold as Pledged Collateral; provided, however, that
-------- -------
if no Event of Default shall have occurred and be continuing, the Pledgor shall
be entitled to receive and retain any and all cash distributions and interest
paid in respect of the Pledged Collateral to the extent such payments are not
prohibited by the Credit Agreement.
6
(b) Any and all distributions paid or payable in cash in respect of
any Pledged Collateral in connection with a partial or total liquidation or
dissolution, and any and all cash paid, payable or otherwise distributed in
respect to redemption of, or in exchange for, any Pledged Collateral, shall
be paid or delivered directly to the Pledgee, which, at the Pledgee's sole
election, shall be held as Pledged Collateral or applied to the Obligations
in such order and manner as the Pledgee determines.
(c) If, notwithstanding the foregoing, the Pledgor receives any
distribution or other property that should have been paid or delivered
directly to the Pledgee as provided in this Section 6, or that was paid to
the Pledgor in violation of Section 6 hereof, the Pledgor shall:
(i) Receive such distribution or property, as the case may be,
in trust for the benefit of the Pledgee;
(ii) Segregate such distribution or property from the other
property or funds of the Pledgor; and
(iii) Deliver such distribution or property immediately to the
Pledgee in the form received (with any necessary endorsement).
SECTION 7. Remedies.
--------
(a) Generally. During the existence of an Event of Default, the
---------
Pledgee shall have, and may exercise with respect to the Pledged
Collateral, in such order and manner as it determines, all rights and
remedies of a secured party under the Uniform Commercial Code and under any
other applicable law, as well as those rights granted herein and in any
other agreement now or hereafter in effect between the Pledgor and the
Pledgee. Without limiting the generality of the foregoing, during the
existence of an Event of Default, the Pledgee may sell or otherwise dispose
of all or any part of the Pledged Collateral upon prior notice to the
Pledgor, by public or private sale, in one or more transactions, and in
such order as the Pledgee determines. Proceeds realized from such sales and
dispositions shall be applied first to the Pledgee's costs and expenses in
connection therewith and then to the Obligations in such order as the
Pledgee determines.
(b) Private Sales. The Pledgor recognizes that the Pledgee may be
-------------
unable to effect a public sale of all or a part of the Pledged Collateral
by reason of certain provisions contained in the Securities Act and the
securities laws of various states, and may be compelled to resort to one or
more private sales to a restricted group of purchasers that will be obliged
to agree, among other things, to acquire the Pledged Collateral for their
own account, for investment and without a view to the distribution or
resale thereof. The Pledgor understands that private sales so made may be
at prices and other terms less favorable than if the Pledged Collateral
were sold at public sales, and agrees that the Pledgee has no obligation to
delay the sale of the Pledged Collateral for the period of time necessary
to permit the Pledgee to register the Pledged Collateral for sale under the
Securities Act or such state laws. The Pledgor agrees that private sales
7
under the foregoing circumstances shall be deemed to have been made in a
commercially reasonable manner.
(c) Notice of Sale. Without in any way requiring notice to be given in
--------------
the following time and manner, the Pledgor agrees that any notice by the
Pledgee of a sale, disposition or other intended action hereunder or in
connection herewith, whether required by the Uniform Commercial Code or
otherwise, shall constitute reasonable notice to the Pledgor if such notice
is:
(i) Mailed by registered or certified mail, return receipt
requested, postage prepaid;
(ii) Delivered personally against receipt;
(iii) Sent by a recognized overnight delivery service; or
(iv) Sent via telecopy, telex or cable,
in each case at least ten days prior to such action, to the
Pledgor's address specified in Section 10(f) hereof.
(d) Right to Purchase the Pledged Collateral. The Pledgee shall have
----------------------------------------
the right upon any such public sale and, to the extent permitted by law,
upon any such private sale, to purchase the whole or any part of the
Pledged Collateral so sold, free of any right or equity of redemption in
the Pledgor, which right or equity is hereby waived and released.
(e) Costs. All costs and expenses incurred by the Pledgee in enforcing
-----
this Pledge Agreement, in realizing upon or protecting any Pledged
Collateral and in enforcing and collecting any Obligations or any guaranty
thereof (including, if the Pledgee retains counsel for advice, suit,
appeal, insolvency or other proceedings under the federal Bankruptcy Code
or otherwise, or for any of the above purposes, the actual attorneys' and
paralegals' fees incurred by the Pledgee), shall constitute part of the
Obligations, and all such costs and expenses are secured by the Pledged
Collateral, as well as by all other property serving as security for the
Obligations.
(f) Transfer of Pledged Collateral. During the existence of an Event
------------------------------
of Default, the Pledgee is authorized to transfer the Pledged Collateral or
any part thereof into its own name or that of its nominee on the books of
AGW Leasing so that the Pledgee or its nominee may appear of record as the
sole owner thereof.
(g) No Limitation on the Pledgee's Rights. The rights of the Pledgee
-------------------------------------
hereunder shall not be conditioned or contingent upon the pursuit by the
Pledgee of any right or remedy against the Pledgor or against any other
Person that may be or become liable in respect of all or any part of the
Obligations or against any collateral security therefor, guarantee thereof
or right of offset with respect thereto.
(h) Duties of the Pledgor. During the existence of any Event of
---------------------
Default, the Pledgor shall:
8
(i) Use its best efforts to assist and cooperate in obtaining
all approvals that are then required by applicable law or contract
for or in connection with any transaction contemplated by the UCC;
(ii) Consent to (and not challenge) the transfer of control or
assignment of the Pledged Collateral to a receiver, trustee, transfer
or similar official or to any purchaser of any of the Pledged
Collateral pursuant to any public or private sale, judicial sale,
foreclosure or exercise of other remedies available to the Pledgee
as permitted herein and by applicable law;
(iii) Assist and cooperate (and use its best efforts to cause
others to assist and cooperate) with the Pledgee to ensure that AGW
Leasing continues:
(A) To operate in the normal course of business;
(B) To fulfill all of its legal, regulatory and
contractual obligations; and
(C) To otherwise be properly and professionally managed;
such assistance and cooperation may include the employment of one or
more qualified and independent consultants and/or professional
managers acceptable to the Pledgee to assist in the interim operations
of AGW Leasing, all of which the Pledgor agrees not to challenge;
(iv) At the request of the Pledgee, cooperate in effecting the
transfer of any and all of the Pledged Collateral to a transferee
acceptable to the Pledgee; and
(v) Not accept (or permit AGW Leasing to accept) any offer to
buy all or any part of the Pledged Collateral or AGW Leasing
operations pursuant to this Section 7 without the Pledgee's prior
written consent.
SECTION 8. Further Assurances; Waivers; Etc.
--------------------------------
(a) Further Assurances. At any time and from time to time, upon the
------------------
written request of the Pledgee, and at the sole expense of the Pledgor
(including all costs for lien searches and filing fees of every kind), the
Pledgor shall promptly and duly execute and deliver such further
instruments and documents and take such further actions as the Pledgee may
reasonably request for the purpose of obtaining or preserving the full
benefits of this Pledge Agreement and of the rights and powers herein
granted, including, but not limited to, the filing of any financing
statements, assignments, continuations or other documents under the Uniform
Commercial Code in effect in any jurisdiction with respect to the Liens
created hereby. The Pledgor hereby authorizes the Pledgee to file any such
financing or continuation statement without the signature of the Pledgor to
the extent permitted by applicable law. A photocopy or other reproduction
of this Pledge Agreement shall be sufficient as a financing statement for
filing in any jurisdiction. If any amount payable under or in connection
with any of the Pledged Collateral shall be or become evidenced by any
instrument, such instrument shall be promptly delivered to the
9
Pledgee, duly endorsed in a manner reasonably satisfactory to the Pledgee,
to be held as Pledged Collateral pursuant to this Pledge Agreement.
(b) Authorizations. The Pledgor authorizes the Pledgee, without notice
--------------
or demand and without affecting any obligation hereunder in accordance with
the terms of the Loan Documents, from time to time:
(i) To renew, extend, increase, accelerate or otherwise change
the time of payment or the terms of, or the interest on, the
Obligations or any part thereof;
(ii) To take from any Person and hold collateral (other than
the Pledged Collateral) for the payment of the Obligations or any
part thereof, and to exchange, enforce or release such collateral or
any part thereof;
(iii) To accept and hold any endorsement or guaranty of the
Obligations or any part thereof and to release or substitute any such
endorser or guarantor or any Person that has given any security
interest in any other collateral as security for the payment of the
Obligations or any part thereof or any other party in any way
obligated to pay the Obligations or any part thereof; and
(iv) To direct the order or manner of the disposition of the
Pledged Collateral and any and all other collateral for any of the
Obligations and the enforcement of any and all endorsements and
guaranties relating to the Obligations or any part thereof as the
Pledgee, in its sole discretion, may determine.
(c) Attorney-in-Fact. The Pledgor hereby appoints the Pledgee as the
----------------
Pledgor's attorney-in-fact (without requiring the Pledgee) and authorizes
Pledgee to act as Pledgor's attorney-in-fact, from time to time, upon the
occurrence of an Event of Default and during the continuance thereof:
(i) To perform all acts that the Pledgee deems appropriate in
accordance with this Pledge Agreement to perfect and continue its
interests hereunder in the Pledged Collateral;
(ii) To protect, preserve and realize upon the Pledged
Collateral; and
(iii) To execute such orders and receipts for payment of the
Pledged Collateral in accordance with this Pledge Agreement as the
Pledgee deems appropriate in its sole discretion.
The foregoing power of attorney is coupled with an interest and shall be
irrevocable and is given to secure performance by Pledgor of the Obligations.
Subject to the terms of this Pledge Agreement, effective upon the occurrence of
an Event of Default and during the continuance thereof, the Pledgee may demand,
collect and sue on the Pledged Collateral (in either its or the Pledgor's name,
at the Pledgee's sole option), and enforce, compromise, settle or discharge the
Pledged Collateral, without discharging the Obligations or any part thereof and
whether or not
10
any such action results in the imposition of any penalty. The Pledgor authorizes
and directs AGW Leasing to make any payments in respect of the Pledged
Collateral as the Pledgee may direct, effective upon the occurrence of an Event
of Default and during the continuance thereof, and hereby releases AGW Leasing
from any liability to the Pledgor for making such payments.
(d) Performance by the Pledgee. Upon the Pledgor's failure to perform
--------------------------
any of its duties hereunder, the Pledgee may, but shall not be obligated
to, perform any or all such duties, and the cost thereof shall constitute
Obligations and be secured by the Pledged Collateral.
(e) Care of the Pledged Collateral. The Pledgee shall be deemed to
------------------------------
have exercised reasonable care in the custody and preservation of the
Pledged Collateral in its possession if such Pledged Collateral is accorded
treatment substantially equal to the care that the Pledgee accords its own
property, it being understood that the Pledgee shall not have
responsibility for:
(i) Ascertaining or taking action with respect to any matter
relative to any Pledged Collateral, whether or not the Pledgee has
or is deemed to have knowledge of such matters; or
(ii) Taking any step to preserve rights against any Person with
respect to any of the Pledged Collateral.
The Pledgor shall have the sole responsibility for taking any and all steps to
preserve rights against any and all Persons to any of the Pledged Collateral,
whether or not in the Pledgee's possession. The Pledgee shall not be
responsible for loss or damage resulting from the Pledgee's failure to enforce
or collect any of the Pledged Collateral or to collect any moneys due or to
become due thereunder.
(f) Waivers. The Pledgor waives notice of any action taken by the
-------
Pledgee, other than those actions taken by Pledgee for which notice is
required under this Pledge Agreement.
(g) Reinstatement. If after receipt of any payment of, or proceeds of,
-------------
any of the Pledged Collateral applied to the payment of, any of the
Obligations, the Pledgee is required to surrender or return such payment or
proceeds to any Person for any reason, then the Obligations intended to be
satisfied by such payment or proceeds shall be reinstated and continue and
this Pledge Agreement shall continue in full force and effect as if such
payment or proceeds had not been received by the Pledgee. This Section 8(g)
shall:
(i) Remain effective notwithstanding any contrary action that
may be taken by the Pledgee in reliance upon such payment or
proceeds; and
(ii) Survive the termination or revocation of this Pledge
Agreement.
(h) Consequential Damages. To the extent permitted by applicable law,
---------------------
the Pledgor shall not assert, and hereby waives, any claim against Pledgee,
or any Affiliate thereof, on any theory of liability, for special,
indirect, consequential or punitive damages
11
(as opposed to direct or actual damages other than damages waived
hereunder) arising out of, in connection with, or as a result of, this
Pledge Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or the use of the proceeds thereof.
SECTION 9. Termination. When all of the Obligations shall have been
-----------
paid in full and the Commitment of the Lenders to make Loans have expired or
been terminated, this Pledge Agreement shall terminate, and the Pledgee shall
forthwith assign, transfer and deliver to the Pledgor, against its receipt, the
Pledged Collateral then held by the Pledgee hereunder and release the lien of
the Pledge hereunder and release Pledgor from its obligations hereunder.
SECTION 10. Miscellaneous.
-------------
(a) Severability. Any provision of this Pledge Agreement that is
------------
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or make unenforceable such provision in any other jurisdiction.
The parties shall endeavor in good faith negotiations to replace the
invalid, illegal or unenforceable provision with valid provisions the
economic effect of which is as close as possible to that of the invalid,
illegal or unenforceable provision.
(b) Amendments, Waivers, Etc. None of the terms or provisions of this
------------------------
Pledge Agreement may be waived, amended, supplemented or otherwise modified
except by a written instrument executed by the Pledgor and the Pledgee;
provided that any provision of this Pledge Agreement may be waived by the
--------
Pledgee in writing.
(c) No Waiver. The Pledgee shall not by any act (except by a written
---------
instrument pursuant to Section 10(b) hereof), delay, indulgence, omission
or otherwise (including any failure to exercise any right, remedy or option
under this Pledge Agreement) be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Event of Default or any breach of
any of the terms and conditions hereof. No failure to exercise, nor any
delay in exercising, on the part of the Pledgee, any right, power or
privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power
or privilege. No waiver by the Pledgee shall affect its right to require
strict performance of this Pledge Agreement. A waiver by the Pledgee of any
right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy that the Pledgee would otherwise have on any
future occasion.
(d) Cumulative Remedies. The rights and remedies herein provided are
-------------------
cumulative, may be exercised singly or concurrently and are not exclusive
of any right or remedy provided by law.
(e) Successors and Assigns. This Pledge Agreement shall be binding
----------------------
upon and inure to the benefit of the parties hereto and their respective
successors and assigns
12
permitted by the Credit Agreement, except that Pledgor may not assign or
otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Lender (and any attempted assignment or
transfer by Pledgor without such consent shall be null and void).
(f) Notices. Except as otherwise specified herein, all notices,
-------
requests, demands, consents, instructions or other communications hereunder
shall be duly given or made if sent in writing and shall be deemed to have
been duly given or made:
(i) If sent by fax, upon the transmittal thereof;
(ii) If sent by nationally recognized overnight courier, on the
following Business Day; and
(iii) If sent by first-class mail, on the fifth Business Day
following the deposit thereof in the mails, postage prepaid,
in each case addressed to the Person to which such notice is requested or
permitted to be given or made hereunder at the following address (or such other
address as may hereafter be designated, in writing, by the relevant Person in
accordance with this Section 10(f)):
(A) If to the Pledgee:
-----------------
State Street Bank and Trust Company
2 Avenue de Lafayette, 6th Floor
Boston, Massachusetts 02111-1724
Telephone No.: (617) 662-1726
Telecopier No.: (617) 662-1460
Attention: Patrick E. Thebado, Assistant Vice President
With a copy to:
Lucent Technologies Inc.
600 Mountain Avenue
Murray Hill, New Jersey 07974
Telephone No.: (908) 582-8754
Telecopier No.: (908) 582-8048
Attention: Corporate Counsel
(B) If to the Pledgor:
-----------------
Harris Tower, Suite 1700
233 Peachtree Street, N.E.
Atlanta, Georgia 30303
Telephone No.: (404) 522-8004
Telecopier No.: (404) 552-0130
Attention: Chief Executive Officer
13
With a copy to:
AirGate PCS Inc.
6511 Griffith Road
Laytonville, MD 20882
Telephone No.: (301) 540-6222
Telecopier No.: (301) 540-7930
Attention: General Counsel and Secretary
(g) Integration. This Pledge Agreement represents the agreement of the
-----------
Pledgor with respect to the subject matter hereof, and there is no promise,
undertaking, representation or warranty by the Pledgee relative to the
subject matter hereof not expressly set forth or referred to herein.
(h) Governing Law. This Pledge Agreement shall for all purposes be
-------------
governed by, and construed and interpreted in accordance with, the laws of
the State of New York, excluding (to the greatest extent permissible by
law) any rule of law that would cause the application of the laws of any
jurisdiction other than the State of New York.
(i) Submission To Jurisdiction; Waivers. The Pledgor hereby
-----------------------------------
irrevocably and unconditionally:
(i) Submits for itself and its property in any legal action or
proceeding relating to this Agreement, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive
general jurisdiction of the courts of the State of New York, the
courts of the United States of America for the Southern District of
New York, and the appellate courts from any thereof;
(ii) Consents that any such action or proceeding may be brought
in any such court and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) Agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Pledgor at its address set forth in Section 10(f)
hereof or at such other address of which the Pledgee shall have been
notified pursuant thereto; and
(iv) Agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to sue in any other jurisdiction.
(j) Waiver of Jury Trial. The Pledgor and, by its acceptance hereof,
--------------------
the Pledgee, hereby irrevocably and unconditionally waive trial by jury in
any legal action or proceeding relating to the AGW Leasing By-laws or any
counterclaim arising therefrom.
14
(k) Acknowledgements. The Pledgor hereby acknowledges that:
----------------
(i) It has been advised by counsel in the negotiation,
execution and delivery of this Pledge Agreement;
(ii) The Pledgee has no fiduciary relationship to the Pledgor;
and
(iii) No joint venture exists between the Pledgor and the Pledgee.
(l) Security Documents. This Pledge Agreement shall be a Security
------------------
Document (as defined in the Credit Agreement).
[Signatures follow on next page.]
15
IN WITNESS WHEREOF, the undersigned has caused this Pledge Agreement to be
duly executed and delivered as of the date first above written.
AIRGATE PCS, INC.,
a Delaware corporation
By:
----------------------------------------
Thomas Dougherty
President and Chief Executive Officer
STATE STREET BANK AND TRUST COMPANY,
a Massachusetts banking corporation,
as Collateral Agent for the Lenders
By:
----------------------------------------
Patrick E. Thebado
Assistant Vice President
16
Exhibit F
---------
INTERCREDITOR AGREEMENT
-----------------------
INTERCREDITOR AGREEMENT, dated as of _________ ___, 1999, among
BANKERS TRUST COMPANY, as Trustee (the "Trustee"), under the Indenture dated as
-------
of _________ ___, 1999 by and between AirGate PCS, Inc. ("AirGate") as and the
-------
Trustee; Lucent Technologies Inc., as Administrative Agent under the Credit
Agreement (capitalized terms having the definitions set forth in Section 1
below; in such capacity, the "Administrative Agent"), State Street Bank and
--------------------
Trust Company, as Collateral Agent for the Senior Secured Lenders under the
Pledge Agreement (in such capacity, the "Collateral Agent") and AGW Leasing
Company, Inc., a Delaware corporation.
W I T N E S S E T H:
-------------------
WHEREAS, AirGate intends to make secured borrowings under the Credit
Agreement;
WHEREAS, AirGate intends to issue Subordinated Notes under the
Indenture;
WHEREAS, AirGate has pledged certain collateral to secure its
obligations under each of the foregoing agreements;
WHEREAS, the parties hereto desire to set forth their relative rights
in respect of such shared collateral and the security interests granted therein;
NOW, THEREFORE, in consideration of the premises, the parties hereto
hereby agree as follows:
1. Definitions. (a) Unless otherwise defined herein, terms defined
-----------
in the Credit Agreement and the Senior Loan Documents have the meanings given to
them in such documents.
(b) The following terms shall have the following meanings:
"Agreement": this Intercreditor Agreement.
---------
"AGW": AGW Leasing Company, Inc., a Delaware corporation.
---
"Common Collateral": the collective reference to the capital
-----------------
stock or other equity interests issued by the Pledged Subsidiaries and
any and
all property related thereto, in each case from time to time subject
to a security interest to secure payment or performance of the Senior
Loan Obligations and the Trustee Obligations.
"Credit Agreement": the Credit Agreement, dated as of August 16,
----------------
1999, among the Senior Agents, the Senior Lenders and AirGate; for the
purposes hereof, "Credit Agreement" shall also be deemed to refer to
any credit agreement or similar document entered into by AirGate and
any lenders to replace the Credit Agreement in whole or in part to the
extent permitted by the Indenture.
"Indenture": the Indenture, dated as of the date hereof by and
---------
between AirGate and the Trustee; for the purposes hereof, "Indenture"
shall also be deemed to refer to any indenture entered into by AirGate
and any trustee to replace the Indenture, in whole or in part, to the
extent permitted by the Credit Agreement.
"Pledged Subsidiaries": means each Subsidiary of AirGate (other
--------------------
than AGW) in which AirGate owns directly any equity interest.
"Senior Agents": the Administrative Agent and the Collateral
-------------
Agent.
"Senior Guarantees": the collective reference to each guarantee
-----------------
of the Senior Loan Obligations by a Subsidiary executed by such Subsid
iary pursuant to the Credit Agreement and "Subsidiary Guarantee" shall
--------------------
mean any one of such guarantees.
"Senior Lenders": the lenders parties from time to time to the
--------------
Credit Agreement in their capacity as lenders thereunder, and their
respective successors and assigns.
"Senior Loan Documents": the collective reference to the Credit
---------------------
Agreement and each other "Loan Document" as defined therein.
"Senior Loan Obligations": the Obligations.
-----------------------
"Senior Security Documents": the collective reference to the
-------------------------
Pledge Agreement and any and all other documents providing for the
pledge of the capital stock or other equity interests of each Pledged
Subsidiary and AGW and the proceeds related thereto as collateral
2
security in connection with the Credit Agreement and the other Loan
Documents.
"Senior Secured Lenders": each of the Senior Agents and each of
----------------------
the Senior Lenders.
"Subordinated Guarantees": the collective reference to each
-----------------------
Guaranty (as defined in the Indenture) of the Trustee Obligations
executed by a Subsidiary pursuant to the Indenture each of which is
subordinated to the Senior Loan Obligations in accordance with the
terms of the Indenture and "Subordinated Guarantee" shall mean any one
----------------------
of such Guarantees.
"Subordinated Notes": the collective reference to the senior
------------------
subordinated discount notes issued under the Indenture.
"Subordinated Obligations": the collective reference to the
------------------------
Obligations (as defined in the Indenture) with respect to the Subordi
nated Notes and shall include, without limitation, the unpaid
principal of and interest owing under the Indenture and the
Subordinated Notes issued thereunder and all other obligations and
liabilities of AirGate or any Subsidiary thereunder (including,
without limitation, interest accrued at the then applicable rate
provided in the Indenture and the Subordinated Notes issued thereunder
after the maturity of the principal obligations owing thereunder and
interest accruing at the then applicable rate provided in the
Indenture and the Subordinated Notes issued thereunder after the
filing of any petitions in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to AirGate,
whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, the
Indenture, the Subordinated Notes issued thereunder, this Agree ment,
any Guaranty (as defined in the Indenture) or any other Subordi nated
Security Document, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Trustee that are required to be paid
by AirGate pursuant to the terms of the Indenture, this Agreement, any
Guaranty (as defined in the Indenture) or any other Subordinated
Security Document).
3
"Subordinated Security Documents": the collective reference to
-------------------------------
any and all documents providing for the pledge of the capital stock or
other equity interests of each Pledged Subsidiary and the property
related thereto as collateral security in connection with the
Indenture and the Subordinated Notes issued under the Indenture.
"Subsidiary": shall have the meaning set forth in the Credit
----------
Agreement as in effect on the date hereof.
"Trustee Documents": the collective reference to the Indenture,
-----------------
the Subordinated Notes issued thereunder and the Subordinated Security
Documents.
(c) Unless the context requires otherwise (i) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth in the
Credit Agreement or in the Indenture), (ii) any reference herein to any Person
shall be construed to include such Person's successors and assigns and (iii) the
words "hereof", "herein" and "hereunder" and words of similar import when used
in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and section and paragraph references are
to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Rights in Common Collateral. (a) Notwithstanding anything to the
---------------------------
contrary contained in any filing or agreement to which the Trustee, the Senior
Secured Lenders or AirGate now or hereafter may be a party and irrespective of
the time, order or method of attachment or perfection of the security interests
created by the Senior Security Documents or the Subordinated Security Documents,
the rules for determining priority under the Uniform Commercial Code or any
other law governing the relative priorities of secured creditors, any security
interest in any Common Collateral in favor of or for the benefit of the Senior
Secured Lenders pursuant to the Senior Security Documents has and shall have
priority, to the extent of any unpaid Senior Loan Obligations, over any security
interest in such Common Collateral in favor of or for the benefit of the Trustee
pursuant to the Subordinated Security Documents.
(b) So long as the Senior Loan Obligations have not been paid in
full or the commitments under the Credit Agreement have not been terminated or
4
expired (i) the Trustee will not institute any action or proceeding to enforce
any of its rights or remedies with respect to any Common Collateral, including,
without limitation, any action of foreclosure upon any Common Collateral and
(ii) the Senior Secured Lenders shall have the exclusive right to enforce rights
and exercise remedies with respect to the Common Collateral under the Senior
Security Documents and the Trustee shall have no right to consent to, require
notice of (except as provided herein or in the applicable Uniform Commercial
Code) or be consulted with respect to, the enforcement of such rights or the
exercise of such remedies by the Senior Secured Lenders with respect thereto
subject to clause 2(c) below.
(c) Any money, property, securities or other distributions of any
nature whatsoever received from the sale, disposition or other realization upon
a foreclosure or other exercise of remedies with respect to the Common
Collateral upon the occurrence and continuance of an Event of Default (as
defined in the Credit Agreement or the Indenture) by any Senior Secured Lender
or the Trustee, of all or any part of the Common Collateral, regardless of
whether such money, property, securities or other distributions are received
during the pendency of or in connection with any bankruptcy, insolvency or other
like proceeding or otherwise, shall be delivered to the Collateral Agent in the
form received, duly indorsed to such party, if required, and applied by the
Collateral Agent in the following order:
First, to the payment in full of all costs and expenses (including,
-----
without limitation, attorneys' fees and disbursements) paid or incurred by
the Senior Secured Lenders in connection with such realization on the
Common Collateral or the protection of any of their rights and interests
therein;
Second, to the payment in full of all Senior Loan Obligations in the
------
order prescribed by Section 2.16(b) of the Credit Agreement;
Third, to the Trustee for application to the Trustee Obligations to
-----
the full extent thereof at such time; and
Fourth, to pay AirGate or the appropriate designee thereof or as a
------
court of competent jurisdiction may direct, any surplus then remaining.
(d) In the event that:
(i) all of the Senior Loan Obligations have been paid in
full and the commitments under the Senior Credit Agreement have
been terminated or expired,
5
(ii) after giving effect thereto any Common Collateral
remains that remains pledged pursuant to the Subordinated
Security Documents, and
(iii) at such time there are Trustee Obligations out
standing, then the Trustee shall have the right to enforce the
provisions of the Subordinated Security Documents in respect of
the Common Collateral without any consent of, notice to or
consultation with any Senior Secured Lender.
(e) THE BORROWER, EACH OF THE SENIOR AGENTS (ON THEIR OWN BEHALF
AND ON BEHALF OF THE SENIOR LENDERS) AND THE TRUSTEE HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
3. Release of AGW Guarantee. If the Senior Secured Lenders foreclose
------------------------
upon the security interest of the Senior Secured Lenders in all of the equity
interests of AGW, the Trustee shall deliver an appropriate instrument evidencing
the release of AGW (in the event the capital stock of AGW is so foreclosed upon)
from its Subordinated Guarantee (to the same extent as the release of the Senior
Guarantee described in clause (ii) below) (A) upon the occurrence of the later
of (i) the date that one hundred percent (100%) of the capital stock of AGW has
been sold pursuant to such foreclosure and (ii) the date that the Lien securing
the Senior Loan Obligations in all of the capital stock of AGW has been
released, AGW has been released from all other Loan Documents (including,
without limitation, the Senior Guarantee) to which it is a party and all Liens
granted in connection therewith have been released and (B) so long as the
capital stock of AGW is not sold pursuant to such foreclosure sale directly or
indirectly to any Senior Agent, any Lender or any Affiliate of any of the
foregoing unless prior notice of such foreclosure sale is given to the Trustee.
AGW hereby agrees, and the Senior Agents and the Trustee hereby agree, that to
the extent that any sale of the capital stock of AGW is rescinded, revoked or
otherwise terminated or cancelled in whole or in part and/or any proceeds of
such capital stock of AGW must be returned or required to be repaid to any
purchaser of such stock, then such Subordinated Guarantee and such Senior
Guarantee shall be reinstated and continued in full force and effect.
Notwithstanding the foregoing, neither the Trustee nor any holder of any
Subordinated Note waives or shall be deemed to have waived any right (other than
any claim against AGW under the Subordinated Guarantee of AGW to the extent such
Subordinated Guarantee is released pursuant to this paragraph 3) to which any of
them would otherwise be entitled under applicable law.
6
4. Provisions Define Relative Rights. This Agreement is intended
---------------------------------
solely for the purpose of defining the relative rights of the Senior Lenders,
the Senior Agent and the Trustee with respect to the Lender Priority Collateral
and the Subordi nated Guarantee of AGW, and no other Person shall have any
right, benefit or other interest under this Agreement. Notwithstanding anything
to the contrary contained herein, this Agreement shall not modify or amend the
rights and obligations of AirGate or any subsidiary of AirGate under any Senior
Loan Document or any Trustee Document.
5. Termination of Agreement; Acknowledgments. The rights of the
-----------------------------------------
Senior Secured Lenders under this Agreement shall terminate when the Senior Loan
Obligations have been paid in full in cash and all commitments to extend credit
under the Credit Agreement have terminated or expired. The Senior Agents
acknowledge on behalf of the Senior Secured Lenders that the Senior Loan
Obligations shall be deemed "paid in full in cash" for all purposes of this
Agreement when the Senior Secured Lenders have received payment in cash of all
principal, interest and other amounts then outstanding under the Senior Loan
Obligations. The Senior Agents agree that, within five Business Days after
payment in cash of all principal, interest and other amounts then outstanding
under the Senior Loan Obligations and termination or expiration of all
commitments to extend credit under the Credit Agreement, they will, upon the
request of the Trustee, provide a written acknowledgment of such payment to the
Trustee, which acknowledgment shall also acknowledge that the Senior Secured
Lenders have no further rights under this Agreement or in respect of the Common
Collateral securing the Senior Loan Obligations. Concurrent with such
acknowledgment, the Senior Agents will deliver to the Trustee if any of the
Subordinated Obligations shall be outstanding, any items of such Common
Collateral held in the possession of either of the Senior Agents, provided that
if no Subordinated Obligations shall be outstanding, the Senior Agents will
deliver any such items of Collateral to AirGate. The Collateral Agent
acknowledges that prior to such delivery it holds such items of Common
Collateral for the Trustee in accordance with the terms of this Agreement, for
purposes of perfecting the Trustee's security interest therein.
6. Notices. All notices, requests and demands to or upon the parties
-------
to be effective shall be in writing (or by telex, fax or similar electronic
transfer confirmed in writing) and shall be deemed to have been duly given or
made (a) when delivered by hand or (b) if given by mail, five days after being
deposited in the mails by certified mail, return receipt requested, or (c) if by
telex, fax or similar electronic transfer, when sent and receipt has been
confirmed, addressed as follows:
7
If to the Administrative Agent: LUCENT TECHNOLOGIES INC.
283 King George Road
Warren, New Jersey 07059
Attention: _______________________________
Telecopy: ________________________________
If to the Collateral Agent: STATE STREET BANK AND TRUST COMPANY
2 Avenue de Lafayette, 6/th/ Floor
Boston, Massachusetts 02111-1724
Attention: Patrick E. Thebado,
Assistant Vice President
Telecopy: (617) 662-1460
If to the Trustee: BANKERS TRUST COMPANY
-------------------------------------------
-------------------------------------------
-------------------------------------------
If to the Borrower: AIRGATE PCS, INC.
Harris Tower, Suite 1700
233 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attention: President
Telecopy: (404) 525-7922
The parties hereto may change their addresses and transmission numbers for
notices by notice in the manner provided in this Section.
7. Counterparts. This Agreement may be executed by one or more of
------------
the parties on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A set
of the counterparts of this Agreement signed by all the parties shall be lodged
with the Collateral Agent and the Trustee.
8. Severability. Any provision of this Agreement which is prohibited
------------
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
8
9. Integration. This Agreement represents the entire agreement of
-----------
the Senior Secured Lenders and the Trustee with respect to the subject matter
hereof and there are no promises or representations by any of them relative to
the subject matter hereof not reflected herein.
10. Amendments in Writing. None of the terms or provisions of this
---------------------
Agreement may be waived, amended, supplemented or otherwise modified except by a
written instrument executed by the Senior Agents and the Trustee; provided that
the penultimate sentence of paragraph 3 of this Agreement may not be amended or
otherwise modified without the consent of AGW.
11. Successors and Assigns. (a) This Agreement shall be binding upon
----------------------
and inure to the benefit of each of the Senior Secured Lenders, AGW and the
Trustee and their successors and assigns.
(b) Upon a successor administrative agent or collateral agent
becoming the Administrative Agent or the Collateral Agent, respectively, under
the Credit Agreement, such successor Administrative Agent or Collateral Agent,
as the case may be, automatically shall become a Senior Agent hereunder with all
the rights and powers of such party hereunder, and bound by the provisions
hereof, without the need for any further action on the part of any party hereto.
(c) Upon a successor trustee becoming the Trustee under the
Indenture, such successor Trustee automatically shall become the Trustee
hereunder with all the rights and powers of the Trustee hereunder, and bound by
the provisions hereof, without the need for any further action on the part of
any party hereto.
12. Governing Law; Jurisdiction. This Agreement shall be governed by,
---------------------------
and construed and interpreted in accordance with, the law of the State of New
York, excluding (to the greatest extent permissible by law) any rule of law that
would cause the application of the laws of any jurisdiction other than the State
of New York. Each party hereto agrees that all judicial proceedings brought
against it arising out of or relating to this Agreement or its obligations
hereunder may be brought in any federal court of competent jurisdiction in the
State, County and City of New York, and accepts generally and unconditionally
the nonexclusive jurisdiction and venue of such courts.
9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
LUCENT TECHNOLOGIES INC., as
Administrative Agent
By: _______________________________
Title:
STATE STREET BANK AND
TRUST COMPANY, as Collateral Agent
By: _______________________________
Title:
BANKERS TRUST COMPANY, as Trustee
By: _______________________________
Title:
AGW LEASING COMPANY, INC.
By: _______________________________
Title:
10
Consented:
AIRGATE PCS, INC., as Borrower and Issuer
By: _______________________________
Title:
11